Opinion
No. LLI CV 06 5001435S
October 16, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #153
I FACTS
On December 5, 2006, Ashley Chance (the plaintiff), commenced this action against Leno's Lawn Service, LLC (the defendant) and Gregory Bernoi, by writ, summons and complaint. On August 28, 2008, the plaintiff filed her fifth amended complaint (amended complaint) with this court in which she alleges that: (1) she became an employee of the defendant in April of 2000, when she was thirteen years old; (2) Bernoi was the "owner . . . manager, and a member of the defendant;" (3) throughout the course of her employment until July 3, 2001, she was manipulated, sexually assaulted and abused by Bernoi; and (4) she thereby suffered severe emotional distress and loss of wages and other compensation.
On June 5, 2009, the defendant filed the present motion for summary judgment as to counts nine and ten of the plaintiff's amended complaint sounding in wrongful constructive discharge and sexual discrimination in the form of sexual harassment, in violation of the Connecticut Fair Employment Practices Act (the CFEPA), respectfully. The plaintiff filed a memorandum in opposition to the defendant's motion on August 21, 2009. Argument was heard before this court at short calendar on August 24, 2009.
General Statutes § 46a-51 et seq.
II DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be granted "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Id.
In the present case, the defendant argues that it is entitled to summary judgment on count nine of the amended complaint because the claim is time-barred, as it was not brought until more than five years after the alleged constructive discharge. Alternatively, the defendant argues that even if said claim was not untimely filed, the motion should be granted because a remedy for the discharge was already available to the plaintiff under the CFEPA. The defendant also argues that it is entitled to summary judgment on count ten because the plaintiff did not file her complaint with the Connecticut commission on human rights and opportunities within the required one hundred eighty days of the alleged discriminatory conduct.
In her memorandum in opposition to the motion for summary judgment, the plaintiff counters, arguing that the statute of limitations on both contested counts is extended by thirty years from the date she attained the age of majority pursuant to General Statutes § 52-577d, because both the constructive wrongful discharge and sexual harassment claims are counts sounding in `personal injury' to a minor caused by sexual abuse and assault. Additionally, the plaintiff argues that count nine is not precluded by the existence of a statutory remedy because it is not a sexual harassment claim, but rather, "a claim that she was constructively discharged in violation of a public policy not covered by [the] CFEPA." The court analyzes each claim in order.
A. Count Nine (Wrongful Constructive Discharge)
"Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity . . . We have recognized an exception to that rule, however, where an employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . . In such cases, the plaintiff may have a common-law cause of action against the employer." (Citations omitted; emphasis in original; internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). Moreover, this public policy exception to the employment-at-will doctrine applies with equal force to situations where an employee has been constructively discharged. See Sophia v. City of Danbury, 116 Conn.App. 68, 74-75, 974 A.2d 804 (2009). Significantly, however, in Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court narrowed the wrongful discharge cause of action to "cases in which there are no other available [statutory] remedies." Campbell v. Plymouth, supra, 67.
"Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily . . . Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." (Citations omitted; internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998).
Therefore, in order to determine whether the defendant is entitled to summary judgment on count nine, the court must resolve two threshold issues: first, whether the plaintiff's claim is time-barred by the applicable statute of limitations; and second, whether there are any alternative statutory remedies available to the plaintiff, thereby precluding the same from prevailing on a common-law claim of wrongful discharge per Atkins and its progeny.
1. Statute of Limitations
Under Connecticut law, the three-year statute of limitations set forth at General Statutes § 52-577 applies to a common-law cause of action in tort for wrongful discharge. Holub v. Babcock, Superior Court, judicial district of Fairfield, Docket No. CV 95 0319683 (January 18, 1996, Hartmere, J.). General Statutes § 52-577d, however, extends the time period in which a plaintiff may bring suit by thirty years from the date such person attains the age of majority when the action is "to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault . . ." (Emphasis added.) General Statutes § 52-577d. Hence, the applicability of § 52-577d hinges on whether an action sounding in wrongful discharge can constitute `an action to recover damages for personal injury' when damages for emotional distress are claimed therein.
The plaintiff argues that such an action, as is maintained in count nine, falls under the purview of § 52-577d, thereby extending the statute of limitations; while the defendant adopts the opposing viewpoint, and argues that a wrongful termination action is not a personal injury action. Much of the parties' arguments were centered around the meaning of the term "personal injury." With respect to this count, however, the court finds such arguments rendered superfluous by the text of the statute itself, which expressly includes emotional distress as a personal injury for purposes of extending the time period in which a plaintiff may bring an action arising out of sexual abuse that he or she sustained as a minor. Moreover, wrongful discharge actions under the public policy exception to the employment at-will rule in Connecticut are grounded in tort. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980). Therefore, in such an action, "the successful employee may seek . . . damages for emotional distress." (Emphasis added.) Connecticut Labor Employment Law, 3rd Ed., p. 305. (2004).
In the present case, the plaintiff alleges, as part of her constructive wrongful discharge claim, that she has suffered emotional distress as the result of sexual abuse that she endured while in the employ of the defendant. Accordingly, because such emotional distress constitutes a "personal injury" under § 52-577d, the court finds that the extended time-period in which she may bring an action therein applies, and that therefore, the plaintiff's suit is timely.
2. Alternative Remedies
The defendant also argues that the plaintiff is precluded from bringing count nine because a remedy for the alleged wrongful discharge was already available to her under the CFEPA. This argument, however, necessarily fails, as the court finds that the public policy of preventing the sexual abuse of a minor at the workplace is not protected by the CFEPA. See Snyder v. J.M. Ney Co., United States District Court, Docket No. H-85-653 (D.Conn. March 25, 1987). Indeed, the wrongful constructive discharge was not merely the culmination of unlawful discrimination or unwelcome sexual harassment in violation of the CFEPA, but of repeated sexual assault perpetrated by an adult on a minor. Accordingly, the motion for summary judgment as to count nine is denied.
B. Count Ten (Sexual Harassment)
The defendant also argues that it is entitled to summary judgment on count ten because the plaintiff did not file her complaint with the Connecticut commission on human rights and opportunities within the required one hundred eighty days of the alleged discriminatory conduct. The plaintiff counters, similarly arguing that the statute of limitations on this count is tolled by § 52-577d because a cause of action sounding in sexual harassment is a "personal injury" claim.
At the onset, it should be noted that the term "personal injury" is not defined in the General Statutes for purposes of its use in § 52-577d. General Statutes § 1-1(a) provides: "[i]n the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." "If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 288 Conn. 628, 636, 953 A.2d 877 (2008).
Webster's Third New International Dictionary defines "personal injury" as "an injury affecting one's physical and mental person as contrasted with one causing damage to one's property." (Emphasis added.) The term is also defined in Black's Law Dictionary, Seventh Edition, as " [a]ny invasion of a personal right, including mental suffering and false imprisonment." (Emphasis added.) In the present case, the plaintiff is alleging that she was sexually harassed in violation of the CFEPA. Because a sexual harassment action under the CFEPA does not constitute a property claim, but rather, is an action to vindicate a statutorily created personal right, the court finds that it is indeed an action to recover damages for "personal injury." Accordingly, the motion for summary judgment as to count ten is also denied.
III CONCLUSION
Based on the foregoing reasons, the defendant's motion for summary judgment as to counts nine and ten of the plaintiff's amended complaint is denied in its entirety.