Opinion
CV166030713S
01-25-2017
Cathryn Denault v. Community Mental Health Affiliates et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
Rupal Shah, J.
I
BACKGROUND
The defendants, Community Mental Health Affiliates (" CMHA") and Raymond Gorman, move to strike the plaintiff Cathryn Denault's complaint in its entirety on the ground that each count fails to state a claim upon which relief can be granted. The plaintiff opposes the motion to strike and claims her allegations are legally sufficient to support each cause of action in her complaint. Specifically, the defendants claim each count must be stricken for the following reasons:
1. Count one, alleging a violation of General Statutes § 46a-60(a)(8), does not establish a claim of sexual harassment against either of the defendants. The plaintiff has not set forth a prima facie case of a hostile work environment or constructive discharge. The individual claim against Gorman should fail as a matter of law because he was not the plaintiff's employer, and § 46a-60 (a)(8) does not provide a remedy for individual supervisory employees.
2. Count two, alleging a violation of General Statutes § 46a-60(a)(1), fails to establish a prima facie case of discriminatory harassment on the basis of the plaintiff's gender. Gorman's alleged conduct was not severe or pervasive enough to alter the plaintiff's work conditions. Furthermore, the plaintiff was not constructively discharged because her work conditions were not intolerable.
3. Count three, alleging a violation of General Statutes § 46a-60(a)(4) against both defendants, fails to establish a prima facie case of retaliation. The plaintiff did not engage in a protected activity of which CMHA was aware. In addition, there are insufficient allegations to show that she suffered any adverse employment action.
4. Count four, alleging a violation of General Statutes § 46a-60(a)(5), fails because CMHA has not engaged in any form of discrimination. Gorman thus cannot be liable for aiding and abetting CMHA when CMHA has not participated in any illegal discriminatory conduct. Moreover, even if sufficient facts were pleaded to allege that Gorman engaged in sexual harassment, Gorman cannot be liable for aiding and abetting himself.
In her complaint, the plaintiff alleges the following pertinent facts:
1. The plaintiff began working for CMHA in April 2012, and continued her employment until May 29, 2015, when she felt she was forced to resign from her position as vice president of human resources.
2. The defendant, Raymond Gorman, worked as the plaintiff's direct supervisor while she was employed by CMHA.
3. In her position as vice president of human resources for CMHA, the plaintiff was charged with implementing and enforcing CMHA's employment policies, including, but not limited, to its anti-sexual harassment policy.
4. In November 2012, the plaintiff became the target of, and a witness to, Gorman's pervasive and ongoing sexual harassment of herself and other CMHA female employees. That ongoing and pervasive sexual harassment continued unabated until the plaintiff's resignation in May 2015, despite the plaintiff's protests of such conduct on multiple occasions to Gorman.
5. The plaintiff alleges a series of occasions when Gorman engaged in inappropriate and offensive conduct. Beginning in November 2012, Gorman offered the plaintiff a ride to a coworker's wedding. After the plaintiff declined, Gorman refused to talk to the plaintiff for two weeks. His refusal to talk to the plaintiff was his intimidating and manipulative way of letting the plaintiff know that he was not happy that the plaintiff declined his offer, and it was also a way of letting the plaintiff know that in the future she should be more willing to spend non-work hours with him. This type of conduct became a pattern for Gorman throughout the plaintiff's employment.
6. Gorman continually and regularly made comments about women who worked at CMHA, including stating that he liked " the brown ones" in reference to women of color. Gorman tried to befriend women CMHA employees outside of work that he found attractive. He would also friend his women coworkers on Facebook and made comments to them that he wanted to see more pictures of his coworkers in bikini bathing suits.
7. In one incident, at a Mexican restaurant, when coworker Laura Hurlbirt spilled salad on her blouse, Gorman commented in front of coworkers and vendors that Hurlbirt should lay down on the bar so that the group could scoop the salad off of her chest. He made this comment again at the annual meeting while Hurlbirt was greeting CMHA guests.
8. In December 2014, Gorman commented that Hurlbirt must have received flowers at work because " you sleep around a lot." He also suggested that Hurlbirt may have received the flowers from a female coworker, Jillian, because they were white roses and " white roses means they are from a lesbian." After Jillian learned of his comments, she wanted to make a formal complaint about Gorman.
9. The plaintiff indicates that Gorman's behavior was addressed by the plaintiff and other members of senior management at that time. The behavior did not stop, however.
10. The plaintiff alleges that Gorman was most active in his harassment of the plaintiff, sending inappropriate and suggestive emails and making sexually charged comments.
11. By late April 2015, the plaintiff indicates that Gorman relayed a story to the plaintiff about how he was looking at a website known as Match.com, and he stated to the plaintiff that he was a " tit man" and that he " liked a good rack." This type of conversation was so commonplace that it was unremarkable, except for the fact that, despite the plaintiff's past protestations, he was continuing to make inappropriate and unprofessional comments to her in the workplace.
12. In May 2015, a temporary employee, Ivory Scinto, reported to the plaintiff that Gorman was staring at her breasts and making her feel uncomfortable. She also complained that he was always talking about his personal life and looking to find women to date. Scinto was having attendance issues on the job, and the plaintiff determined that this was related to Gorman's conduct. The plaintiff confronted Gorman about the allegations and his response was that Scinto should have her office moved.
13. Despite the plaintiff's continued opposition to Gorman's requests for a personal relationship, Gorman continued his intimidating and manipulative behavior until the plaintiff determined that she could no longer continue working for CMHA. The plaintiff verbally resigned on May 13, 2015. The plaintiff put in her formal resignation on May 18, 2015, providing a clear explanation to Gorman as to why she was leaving.
14. The plaintiff has alleged that each of the defendants created and maintained a sexually hostile work environment and the plaintiff's sex was the basis for the behavior. By Gorman's behavior and CMHA's inaction, the defendants left the plaintiff with no alternative but to resign her employment in order to escape the sexually harassing atmosphere.
The court heard the matter at short calendar on December 12, 2016. After consideration, the court finds that the plaintiff has properly and sufficiently pleaded counts one, two, and three against CMHA. The plaintiff has not sufficiently pleaded her claims in count one against Gorman. The plaintiff also has not sufficiently pleaded her claims in count four against Gorman. Accordingly, the defendants' motion to strike counts one, two and three is denied. The court grants the motion to strike counts one and four against Gorman.
II
DISCUSSION
" A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). " The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985).
A
Sexual Harassment
With respect to count one against CMHA, the plaintiff has adequately pleaded a prima facie case of sexual harassment hostile work environment.
Section 46a-60(a) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . [for an employer, by the employer or the employer's agent . . . to harass any employee, person seeking employment or member on the basis of sex . . . 'Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment . . ." " Sexual harassment actions fall generally into one of two categories, depending on the nature of the harassment alleged . . . Quid pro quo sexual harassment . . . conditions employment on the return of sexual favors; hostile environment sexual harassment is conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." (Citations omitted; internal quotation marks omitted.) Griffin v. Yankee Silversmith, Ltd., 109 Conn.App. 9, 12-13, 951 A.2d 1, cert. denied, 289 Conn. 925, 958 A.2d 151(2008). The plaintiff's claim of sexual harassment sounds in hostile work environment. As such, the plaintiff must show " the workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . ." (Internal quotations marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 166-67, 717 A.2d 1254 (1998). " [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015). " As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive . . . Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." (Citation omitted; internal quotation marks omitted.) Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). " In short, a plaintiff alleging a hostile work environment must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." (Internal quotation marks omitted.) Id. " For an action against an employer for sexual harassment under General Statutes § 46a-60 to be successful, the plaintiff must show that the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it." (Internal quotation marks omitted.) Boyles v. Preston, 68 Conn.App. 596, 608 n.7, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).
Based on the allegations made in the plaintiff's complaint, which include a course of conduct and series of events that could be found to be sexually charged and offensive, the court cannot find that the allegations, if true, would not meet a proper and legal claim for sexual harassment against CMHA under § 46a-60. Additionally, the complaint sufficiently alleges that CMHA was aware of the alleged offensive conduct and allowed the offensive conduct to continue despite numerous complaints by the plaintiff and other employees, causing the plaintiff to resign. Accordingly, the court denies the defendants' motion to strike count one alleged against CMHA.
With respect to count one against Gormnan, the plaintiff cannot maintain its claim against him individually, given that there is no individual liability created by § 46a-60(a)(8). See Miner v. Town of Cheshire, 126 F.Supp.2d 184, 203 (D.Conn. 2000) (" The legislature, by failing to extend liability expressly to 'persons' in sections 46a-60(a)(1) and (8) and instead limiting liability in that section, did not intend to hold employees, whether supervisory or not, individually liable.") Accordingly, the court grants the defendants' motion to strike count one alleged against Gorman.
B
Sex Discrimination
With respect to count two against CMHA, the plaintiff has sufficiently pleaded a claim for sex discrimination.
" In order to set forth a prima facie case of discrimination under the pretext model, a plaintiff must establish that she: (1) is a member of a protected class; (2) applied for and was qualified for the benefit of the position; (3) suffered an adverse action by the defendant; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Hartford, 138 Conn.App. 141, 154-55, 50 A.3d 917, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012). When an employee is compelled to resign in order to escape intolerable and illegal employment conditions, the law recognizes such circumstances as a dismissal by an employer and considers it a constructive discharge. Brittell v. Dept. of Correction, supra, 247 Conn. 178-79.
In her complaint, the plaintiff has pleaded that she is a female, was qualified for her position, and was compelled to resign from her position due to the sexually-harassing environment she was made to endure because of her sex. Accordingly, the defendants' motion to strike count two against CMHA is denied.
Retaliation
With respect to count three, the plaintiff has sufficiently pleaded a claim for retaliation. The plaintiff has properly pleaded each element of retaliation, specifically, that: (1) the plaintiff was engaged in a protected activity; (2) the defendants knew of the protected activity; (3) the plaintiff suffered an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. The plaintiff alleges that she engaged in protected activity when she addressed complaints of sexual harassment to Gorman as president of CMHA, and thus addressed her complaints to CMHA also; the defendants therefore knew of the protected activity; and the plaintiff experienced adverse employment action when she ultimately felt compelled to resign as a result of her complaints. See Complaint, Count Three, paragraphs 18-21. Although the defendants' claim that the adverse treatment alleged by the plaintiff is not material and thus does not meet the elements required for retaliation, the alleged loss of employment as a result of discriminatory conduct would rise to the level of a material adverse action by the employer. See Hicks v. Baines, 593 F.3d 159, 169 (2d Cir. 2010) (" the proper inquiry [to determine whether employer conduct constituted adverse employment action] . . . is whether the employer's actions [were] harmful to the point they could well dissuade a reasonable worker from making or supporting a charge of discrimination" [internal quotation marks omitted]). Accordingly, the court denies the defendants' motion to strike count three of the plaintiff's complaint.
D
Aiding and Abetting
With respect to the last count of aiding and abetting against Gorman, the plaintiff has not sufficiently pleaded discriminatory practices against CMHA that Gorman could have aided and abetted. The only allegations regarding CMHA's conduct concerns specific actions Gorman engaged in. Since Gorman is the alleged perpetrator of the discriminatory acts, he cannot aid and abet himself. See Bolick v. Alea Group Holdings, Ltd., 278 F.Supp.2d 278, 282-83 (D.Conn. 2003) (supervisor of woman marketing executive was not liable for aiding and abetting gender discrimination and sexual harassment by employer under CFEPA when supervisor was the only alleged perpetrator). Accordingly, the court grants the defendants' motion to strike count four of the plaintiff's complaint.
III
CONCLUSION
For the reasons provided herein, the motion to strike count one against CMHA is denied. The motion to strike counts two and three is also denied. The motion to strike counts one and four against Gorman is granted.
So ordered.