Opinion
HHDCV166067482
12-27-2016
Jessica Darrity v. Columbia Dental, P.C
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
The plaintiff, Jessica Darrity, commenced this action by service of process on the defendant, Columbia Dental, P.C., on April 9, 2016. The plaintiff's complaint sounds in pregnancy discrimination in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(7) (count one) and in intentional infliction of emotional distress (count two). The defendant filed a motion to strike both counts of the complaint on July 5, 2016. The defendant moved to strike count one on the ground that the plaintiff did not allege that she was pregnant at the time of the allegedly discriminatory conduct. The defendant moved to strike count two of the complaint on the ground that the plaintiff did not allege conduct that was extreme or outrageous.
The plaintiff's complaint alleges the following relevant facts. The plaintiff was hired by the defendant in July 2013, and worked as a receptionist. In July 2014, the plaintiff needed to take a leave of absence to undergo a pregnancy-related medical procedure. She disclosed the nature of the procedure to her supervisor in order to take a short medical leave of absence. She did not authorize the supervisor to disclose the medical procedure to other employees. She returned to work following the short leave of absence. In September 2014, the plaintiff discovered that the supervisor had disclosed the medical procedure to the defendant's staff. In November 2014, her work hours were decreased, which reduced her earnings. The plaintiff notified the defendant that she needed her regular hours restored. The plaintiff did not receive a pay raise although other employees received pay raises. The defendant forced the plaintiff to resign on or about May 18, 2015. The defendant unlawfully disclosed the plaintiff's private medical information to its staff. The plaintiff filed charges against the defendant on July 3, 2015, with the Commission on Human Rights and Opportunities and received a release of jurisdiction on January 12, 2016.
In count one, the plaintiff alleges the following additional facts. The defendant violated § 46a-60(a)(7) by: interfering with the plaintiff's privilege of employment on the basis of the plaintiff's pregnancy; limiting and classifying the plaintiff by her pregnancy in such a way that deprived her of her employment and employment opportunities; discriminating against the plaintiff in such a way that adversely affected her status as an employee; treating the plaintiff differently than similarly situated nonpregnant employees; constructively discharging the plaintiff from her employment on account of her pregnancy; and discriminating against the plaintiff for requiring an accommodation due to her pregnancy. Consequently, the plaintiff suffered severe humiliation, embarrassment and emotional distress, and she lost her employment, income, wages, and benefits.
General Statutes § 46a-60(a) provides in relevant part: " It shall be a discriminatory practice in violation of this section: . . . (7) For an employer, by the employer or the employer's agent: (A) To terminate a woman's employment because of her pregnancy . . ."
In count two of the complaint, the plaintiff repeats the prior allegations and alleges the following additional facts in count two of the complaint. The defendant intended to inflict emotional distress by disclosing the sensitive medical procedure to multiple employees. The defendant's conduct was extreme and outrageous, which created an unreasonable risk of emotional distress. The plaintiff suffers from stress, anxiety, embarrassment, nightmares, and interference with sleep as a result of the defendant's conduct.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
I. Count One: Pregnancy Discrimination
The defendant argues in its memorandum of law in support of its motion that the plaintiff fails to allege that she was pregnant or affected by pregnancy, childbirth, or related medical conditions at or near the time of any alleged discriminatory conduct such that the plaintiff was not a member of a protected class under General Statutes § 46a-60(a)(7) and federal case law interpreting the Pregnancy Discrimination Act. In response, the plaintiff argues that she does not need to be pregnant at the time of the alleged adverse employment action in order to be a member of the protected class. In support of her theory, the plaintiff asserts that " a pattern has developed" in the Second Circuit " establishing a loose line at approximately four months" from giving birth in which a plaintiff may fall within the protected class. The plaintiff maintains that because she alleges an adverse employment action that occurred four months after the alleged pregnancy-related medical procedure, she has alleged sufficient facts to support her claim.
Within § 46a-60(a)(7), the only provision that could apply to count one is subparagraph (A). Section 46a-60(a)(7)(A) prohibits an employer or their agent from terminating " a woman's employment because of her pregnancy . . ." The parties have not cited to, and the research does not reveal, any cases interpreting § 46a-60(a)(7)(A); instead they rely on federal case law interpreting the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), provides in relevant part that " [t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work."
" The legal standards governing discrimination claims involving adverse employment actions are well established. The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny . . . We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both . . . Under this analysis, the employee must first make a prima facie case of discrimination . . . In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). " Pregnancy discrimination claims under [§ 46a-60] are analyzed similarly to claims under [the Pregnancy Discrimination Act]." Canales v. Schick Mfg., United States District Court, Docket No. 3:09CV253 (MRK), (D.Conn. September 15, 2011). In the present case, the defendant is only contesting the sufficiency of the allegations pertaining to the plaintiff's membership in the protected class.
" The time at which the plaintiff ceases being affected by pregnancy, childbirth, or related medical conditions depends on the facts and circumstances of the particular case." (Internal quotation marks omitted.) Briggs v. Women in Need, Inc., 819 F.Supp.2d 119, 127 (E.D.N.Y. 2011). " Certainly, women who are pregnant at or very near the time of the adverse employment action are members of the protected class, as are women who are on maternity leave or recently have returned to work from maternity leave when the employment action occurs." Helmes v. South Colonie Central School District, 564 F.Supp.2d 137, 147 (N.D.N.Y. 2008). " Pregnancy also differs from most other protected personal attributes in that it is not immutable. While some effects of pregnancy linger beyond the act of giving birth, at some point the female employee is no longer affected by pregnancy, childbirth, or related medical conditions, for purposes of the [Pregnancy Discrimination Act] . . . Such an understanding is implicit in the opinions of several federal courts that have denied protection under the [Pregnancy Discrimination Act] to plaintiffs based upon their status as mothers with young children." (Citation omitted; internal quotation marks omitted.) Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 753 (E.D.Pa. 2002). " [E]ven if this [c]ourt had at its disposal a firm temporal cutoff to define the outer bounds of the pregnancy protected class another factor is the date of the adverse employment action, and when it [is] first set in motion." (Internal quotation marks omitted.) Albin v. LVMH Moet Louis Vuitton, Inc., United States District Court, Docket No. 13-CV-4356 (JPO), (S.D.N.Y. July 8, 2014). " While the focus should be on the date of the adverse employment action, the fact that that action was set in motion, at least in part, by an earlier event renders that event relevant to the discussion." Helmes v. South Colonie Central School District, supra, 564 F.Supp.2d 147.
Membership in the protected class is fact specific because pregnancy is a mutable characteristic. The plaintiff must allege that she was pregnant or affected by pregnancy or a related medical condition to be a member in the protected class. Courts have been hesitant to apply a per se time limit beyond which the plaintiff is no longer a member of the protected class. Instead, the court looks to whether the plaintiff has pleaded facts that would indicate that the plaintiff was either pregnant, or affected by pregnancy or a related medical condition at the time of the adverse employment action.
The plaintiff alleges in her complaint that she requested a medical leave of absence for a pregnancy-related medical procedure in July 2014. She alleges that she disclosed the nature of the procedure to her supervisor in order to obtain the leave. The plaintiff alleges that she returned to work following the procedure and that her hours were reduced in November 2014. The plaintiff does not allege that she was pregnant at the time of the medical procedure or whether she was pregnant after the procedure. Nor does the plaintiff allege in her complaint at what time she returned to work after the pregnancy-related medical procedure. More importantly, the plaintiff fails to allege any facts to indicate that she was pregnant or affected by pregnancy or a related medical condition at the time of the alleged adverse employment action . She instead relies on the temporal proximity between her pregnancy-related medical procedure and her reduction in hours in November 2014. As the previously cited case law indicated, however, temporal proximity is not in and of itself significant; it is significant only to the extent that it serves to create an inference that the plaintiff was still affected by pregnancy or a related medical condition. The allegation that the plaintiff had a pregnancy-related medical procedure is not sufficient to establish that the plaintiff was still affected by her pregnancy, childbirth, or related medical condition four months later.
The plaintiff cites to Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995), Albin v. LVMH Moet Louis Vuitton, Inc., supra, United States District Court, Docket No. 13-CV-4356 (JPO), Helmes v. South Colonie Central School District, supra, 564 F.Supp.2d 147, Koppenal v. Nepera, Inc., 74 F.Supp.2d 409 (1999), to support the position that a woman is still a member of the protected class up to four months after giving birth. This argument however, is unavailing because each of these cases is distinguishable from the present case.
In Quaratino v. Tiffany & Co., supra, 71 F.3d 64, both parties agreed that the plaintiff, who was terminated from her position while on maternity leave, was a member of the protected class. In Albin v. LVMH Moet Louis Vuitton, Inc., supra, United States District Court, Docket No. 13-CV-4356, (JPO), the court reasoned that the plaintiff had pleaded sufficient facts to show membership in the protected class because the adverse employment action took place three and a half months after the plaintiff gave birth, and within weeks of the plaintiff returning from maternity leave. The plaintiff pleaded facts from which the court could infer all proceedings after the plaintiff expressed interest in the position were a " sham." Id. Moreover, the plaintiff in that case alleged additional facts to support the inference that the alleged employment action occurred because of her pregnancy, including the unusually long delay in interviewing the plaintiff, the suspicious timing of the new manager's payroll check, as well as derogatory comments made by her supervisor prior to the plaintiff's maternity leave. In Helmes v. South Colonie Central School District, supra, 564 F.Supp.2d 147, the court determined that the plaintiff was a member of the protected class because she was terminated within nine weeks of returning from maternity leave. The court, however, did not simply decide that nine weeks after maternity leave is sufficiently limited to bring the plaintiff within the protected class. Rather, the court also considered that the plaintiff was subjected to a " pop-in" evaluation two weeks after her return from maternity leave, and that the pop-in evaluation was the basis for the decision to terminate the plaintiff. Finally, Koppenal v. Nepera, Inc., supra, 74 F.Supp.2d 409, is distinguishable because the plaintiff was pregnant at the time of her termination. The court specifically found that the plaintiff was a member of the protected class because she was pregnant at the time of termination. Id., 411.
In the cases cited by the plaintiff, where the court determined that the plaintiffs were members of the protected class, allegations or evidence were present indicating that the plaintiffs were pregnant or were affected by pregnancy or a related medical condition at the time of the adverse employment actions. In the present case, the plaintiff does not allege any facts other than that she informed her supervisor in July 2014, that she needed a short medical leave of absence. She also alleges that she told the supervisor the nature of the procedure. The plaintiff then alleges that reducing her hours was an adverse employment action. These facts, taken in a light most favorable to the plaintiff, do not demonstrate that the plaintiff was pregnant or affected by pregnancy or a related medical condition when her hours were reduced or when she was forced to resign.
In light of the above, the court finds that the plaintiff has failed to plead sufficient facts to allege membership in the protected class, and that, therefore, the plaintiff's pregnancy discrimination claim is legally insufficient. The court grants the motion to strike count one.
II. Count Two: Intentional Infliction of Emotional Distress
The defendant argues that the plaintiff does not allege conduct that is extreme or outrageous. In response, the plaintiff asserts that the defendant had no legitimate business reason to disclose the plaintiff's highly sensitive medical procedure to other employees, the disclosure was outrageous, and the defendant knew or should have known that the disclosure would cause the plaintiff severe emotional distress.
" The law relevant to an allegation of intentional infliction of emotional distress provides the following: [F]or the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68 (2003). " [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder, could find to be extreme or outrageous." (Internal quotation marks omitted.) Gillians v. Vivanco-Small, 128 Conn.App. 207, 211, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011).
" Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn.App. 704, 708, 757 A.2d 1207 (2000). " Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). " Although employment discrimination is illegal, it does not per se give rise to a claim for intentional infliction of emotional distress." Allen v. Egan, 303 F.Supp.2d 71, 78 (D.Conn. 2004).
" In Appleton, the plaintiff teacher alleged that the defendants (1) subjected her to condescending comments in front of her colleagues, (2) subjected her to two psychiatric examinations, (3) told her daughter that the plaintiff was acting differently and should take a few days off from work, (4) had police escort the plaintiff out of the school, and (5) suspended her employment and ultimately forced her to resign . . . Our Supreme Court concluded that the defendants' actions . . . were not so atrocious as to exceed all bounds usually tolerated by decent society, [and] their conduct [was] insufficient to form the basis of an action for intentional infliction of emotional distress." (Citations omitted; footnote omitted; internal quotation marks omitted.) Dollard v. Board of Education, 63 Conn.App. 550, 554-55, 777 A.2d 714 (2001). In Dollard, the defendants attempted to force the plaintiff to resign by hypercritically examining her professional and personal conduct, forcing the plaintiff's transfer to another school, admonishing her for chewing gum, tardiness, and disorganization. The defendants secretly hired another employee to replace the plaintiff and placed her under intensive supervision. The Appellate Court held " [w]hile the conduct alleged here may have been distressful and hurtful to the plaintiff, it was no more extreme and outrageous than the conduct alleged in Appleton . Accordingly, we conclude that the court properly granted the defendants' motion to strike the plaintiff's claim for intentional infliction of emotional distress." Id., 555; see also Hauer v. Eastern Connecticut Health Network, Superior Court, judicial district of Hartford, Docket No. CV-09-4046119-S, (October 29, 2010, Hale, J.T.R.) (a nurse's statement to a patient that the plaintiff was seeking drugs and thereby breaching the plaintiff's confidentiality was not extreme or outrageous conduct).
" To the contrary, those cases which have found a cause of action [for intentional infliction of emotional distress] to exist have included physical abuse by a co-worker, such as punching and choking, Berry v. Loiseau, 223 Conn. 786, 793, 614 A.2d 414 (1992), or racial, ethnic, religious or sexual attacks. Leone v. New England Communications Corp., Superior Court, judicial district of New Britain, Docket No. CV-01-0509752-S, (April 10, 2002, Quinn, J.)" [32 Conn.L.Rptr. 72, ]. Pinckney v. Miss Porter's School, Inc., Docket No. CV-08-5009273-S, (March 30, 2009, Tanzer, J.).
In the present case, similarly to Dollard and Appleton, the plaintiff fails to plead facts that allege conduct that was extreme and outrageous. The motion to strike count two is granted.
CONCLUSION
For the forgoing reasons, the courts grants the motion to strike counts one and two.