Summary
stating that the court found "the Beason decision to be well reasoned and agrees with the holding that a cause of action based on a perceived disability is not a legally recognized action in Connecticut"
Summary of this case from McGee v. New Breed Logistics, Inc.Opinion
No. CV-06-4015692-S
September 9, 2010
MEMORANDUM OF DECISION
The present action arises from the defendant, Diageo North America, Inc.'s (Diageo) termination of the plaintiff's employment with the company. In addition to commencing an action against Diageo, the plaintiff has brought suit against her former co-employee, Lawrence Levine. The plaintiff is proceeding under a disparate treatment theory of discrimination, claiming that she was terminated as a result of being treated differently than others based on her (1) race, color and national origin, (2) age and (3) physical disability. In addition to making claims of discrimination against Diageo under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq., the plaintiff brings claims for negligent misrepresentation and promissory estoppel against Levine.
The summons served with the original complaint names Diageo, Levine and Colleen Ooten as defendants. The original complaint consisted of two counts. The first count was brought against Diageo and asserted claims of discrimination. The second count claimed negligent misrepresentation against Diageo based on statements made by "Diageo . . . and its agents, servants and/or employees." The plaintiff did not attribute any such statements forming the basis of that count to either Levine or Ooten. In response to the defendants' request to revise the complaint, the plaintiff filed an "Amended Complaint" on September 15, 2006. That complaint is the operative complaint. Therein, the plaintiff set forth the discrimination claims in separate counts, specified in the negligent misrepresentation count that the statements were allegedly made by Levine, and added a count based on promissory estoppel grounded on the same representation allegedly made by Levine as alleged in the negligent misrepresentation count. Neither the original complaint nor the amended complaint contain any allegations of any conduct by Ooten for which she may be individually liable. As a result, Ooten is a defendant in name only. Moreover, the plaintiff claims in it memorandum in opposition to summary judgment that Levine and Ooten "may be liable for aiding and/or abetting discriminatory practices" pursuant to General Statutes § 46a-60(a)(5). That section provides that it is a discriminatory practice "[f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so." The plaintiff has not alleged such an action in her complaint, and the court will not consider the claim in deciding the present motion.
The defendants presently move for summary judgment as to all counts of the plaintiff's complaint, which the plaintiff opposes. For the reasons hereinafter discussed, the defendants' summary judgment motion is granted in part and denied in part.
The following facts are not disputed. Diageo is a producer of alcoholic beers, wines and spirits. The plaintiff began work at Diageo in 1993. She was an at-will employee for the entire period of her employment. In 2001, Diageo merged with another alcoholic beverages company, Seagram. The plaintiff's procurement analyst position was eliminated as a result of a post-merger restructuring.
Levine, the plaintiff's supervisor, chose to retain the plaintiff as an employee in the newly merged company in the position of a Value Added Packaging (VAP) buyer. The plaintiff believed that Diageo would give her the training and support necessary for her to learn the job. Ooten held the position of innovative business manager, which involved managing the VAP projects. Among other things, Ooten coordinated activities across different departments of Diageo and, at times, worked with the plaintiff.
In their memorandum in support of their motion, the defendants describe VAP as "the practice of repackaging the Company's products for holidays, special occasions, or other promotions. For example, Diageo combines a novelty item, such as a glass or drink recipe, with one of Diageo's products in a specialty holiday gift pack."
In September 2004, Levine formally evaluated the plaintiff and informed her of certain work performance inadequacies. Consequently, the plaintiff was placed into a ninety-day performance improvement plan (PIP) written by Levine. The plaintiff met with Levine periodically to discuss the plan and to receive assistance. The plaintiff was on vacation during the Christmas holidays and returned to work on January 4, 2005. Upon her return, the plaintiff informed Levine that she needed time off from work to undergo surgery for a tumor on her right shoulder. On January 5, 2005, Levine informed the plaintiff that her employment was terminated. Diageo placed the plaintiff on short-term disability until the end of March 2005.
The defendants move for summary judgment on all five counts of the plaintiff's complaint. Diageo claims that there is no genuine issue of material fact the plaintiff cannot establish a prima facie case of discrimination based on race, color and national origin, age, and physical disability as alleged in the first three counts of the complaint.
Additionally, for purposes of deciding the present summary judgment motion, the defendants do not dispute the statement in the plaintiff's affidavit that "on November 17, 2004 at a meeting held with my manager, Lawrence D. Levine, I was told my progress was satisfactory, I was no longer in need of the performance improvement plan, and I no longer had to worry about the criteria stated in the memo delivered to me on September 15, 2004." As will be more fully discussed below, the plaintiff relies on this statement in opposing the defendants' summary judgment motion on the fourth and fifth counts alleging negligent misrepresentation and promissory estoppel, respectively.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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. 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.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"[If] documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
I
The court first addresses the plaintiff's claims made in the first three counts alleging disparate treatment discrimination. The plaintiff in the present action makes the following claims of discrimination in her amended complaint against the Diageo: race, color and national origin in the first count; age in the second count; and physical disability in the third count. The plaintiff alleges in those counts that she was "treated differently than all other employees" based on those factors.
Connecticut statutorily prohibits discrimination in employment except where there is a valid occupational reason. General Statutes § 46a-60(a)(1). "The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status." Levy v. CHRO, 236 Conn. 96, 104, 671 A.2d 349 (1996).
That subsection provides as follows: "It shall be a discriminatory practice in violation of this Section . . . [for an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . ."
"The elements of a prima facie case under the disparate treatment theory were first set forth by the United States Supreme Court in McDonnell Douglas [Corp.] v. Green, [ 411 U.S. 792, 802, 93 S.Ct. 1817 (1973)], in relation to employment discrimination claims." Miko v. Commission on Human Rights Opportunities, 220 Conn. 192, 203, 596 A.2d 396 (1991). "We note that the analytical framework set forth by the United States Supreme Court in McDonnell Douglas Corp. . . . and its progeny is used to determine whether a complainant may prevail on a claim of disparate treatment under our state law . . . McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . . Once the prima facie case has been established, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment action . . . This burden is one of production, not persuasion . . . Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him." (Citations omitted; internal quotation marks omitted.) Dept. of Transportation v. Commission, 272 Conn. 457, 463 n. 9, 863 A.2d 204 (2005).
"[I]t is widely recognized that courts must be particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination . . . Nonetheless, courts have found that the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Thus, the Connecticut Supreme Court has established that even with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact." (Citations omitted; emphasis added; internal quotation marks omitted.) Dumas v. Bridgeport Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV 05 4005258 (January 11, 2008, Upson, J.).
A
The defendants agree that the plaintiff satisfies some of the elements necessary to establish a prima facie case of discrimination. Particularly, the defendants concede that the plaintiff is a member of a protected class under the first count of the complaint based on race, color and national origin, and the second count based on age. The defendants further concede for the purpose of determining this motion as it relates to the first three counts that the plaintiff was qualified for her position and that she suffered an adverse employment action. The defendants dispute that the plaintiff is a member of a protected class under the third count based on physical disability. Finally, the defendants dispute as to the first three counts that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.
The court will first address the defendants' motion for summary judgment on the first two counts of the complaint wherein Diageo claims that the plaintiff has failed to demonstrate an issue of material fact that the plaintiff was terminated under circumstances giving rise to an inference of discrimination on the basis of her race, color and national origin, or her age. Diageo asserts that "[s]imply being a member of a minority group or being over age [forty] does not under these circumstances give rise to an inference of discrimination." Moreover, Diageo contends that the plaintiff has failed to establish an issue of material fact that there was discriminatory intent on the part of the defendants in their alleged actions, comments and remarks allegedly made to the plaintiff leading up to her termination.
The plaintiff argues that material questions of facts exist concerning her claims of discrimination made in the first two counts of the complaint, in her memorandum in opposition to summary judgment, the plaintiff contends that she has set forth in her affidavit particular circumstances of disparate treatment sufficient to create questions of fact. Specifically, the plaintiff claims, as set forth in her affidavit, that she was the only minority employee of the "VAP team"; she was terminated by two Caucasian employees, Levine and Ooten; she "was one of the oldest members of the VAP team other than her manager . . . Levine"; and "as the only black person in a management position within the VAP Group, and one of the oldest employees in the group, I was continuously singled out for ridicule and sarcasm by . . . Ooten and . . . Levine."
The plaintiff further states that she was treated differently from similarly situated employees in that Ooten went out of her way to single out the plaintiff, to pick on her more so than other employees and to criticize the plaintiff's ability to write and communicate with other employees in the company. Ooten allegedly told the plaintiff that people could not understand her when she spoke, and that she was required to have emails proofread before sending them even though this was not a requirement for any other employee.
The plaintiff allegedly has a Haitian accent.
To establish a prima facie case as to whether or not the circumstances of the plaintiff's termination give rise to an inference of discrimination, the plaintiff may demonstrate that she "was treated differently from similarly situated co-workers." (Internal quotation marks omitted.) Martin v. Town of Westport, 558 F.Sup.2d 228, 241 (D.Conn. 2008). "In order for employees to be similarly situated for the purposes of establishing a prima facie case for discrimination, they must have engaged in conduct similar to the plaintiff's." See Norville v. Staten Island University Hospital, 196 F.3d 89, 96 (2d Cir. 1999).
The plaintiff has failed to sustain her burden to produce evidence that there are material issues of fact concerning whether she was subject to disparate treatment discrimination by Diageo; that is, whether she was treated differently than other similarly situated employees. The plaintiff submits in her affidavit only the unsupported and conclusory statements to support her claimed disparate treatment. The plaintiff does not identify any similarly situated employees by their gender, race, color, national origin or age, or by their job functions. The record is wholly devoid of any facts giving rise to a question of fact that she was subject to discrimination on the basis of disparate treatment relating to her race, color, national origin and age.
The Martin case involves similar facts. The plaintiff, Robert E. Martin, Jr., an African American, was a mechanic in the defendant town's public works department. Martin v. Town of Westport, supra, 558 F.Sup.2d 232. As a result of suffering numerous work-related injuries, the town sought to have the plaintiff retire on a disability pension. Id., 234-35. Ultimately, the defendant's pension board decided to retire the plaintiff. Id., 235. The plaintiff brought an action against the defendant claiming, among other things, that he was discriminated against in violation of CFEPA. Id.
In considering the plaintiff's claim of discrimination under the framework of the McDonnell Douglas test, the Court considered the requirement that the plaintiff "show that the adverse employment action taken against him occurred under circumstances giving rise to an inference of discrimination." Id., 240. In analyzing that issue, the Court noted as follows:
"Martin argues that six white employees of the Town who sustained work-related injuries . . . were treated differently than he, a black employee, was. Martin offers nothing to show that these men were similarly situated to him. To be similarly situated, the individuals with whom [a plaintiff] attempts to compare h[im]self must be similarly situated in all material respects . . . Martin has not shown that these white employees were similarly situated to him in terms of their job functions. More importantly, however, Martin has submitted no evidence that any of these white employees sustained injuries similar to his; were injured for as great a length of time as he was; or required the same work accommodations as he did. Martin's affidavit is insufficient to raise a genuine issue of material fact in this regard. Martin himself is not qualified to swear to the extent or nature of those white employees' injuries. Rather, he must present some admissible evidence to make his case (i.e., deposition testimony or affidavits from those white employees). He has not done so here." (Internal quotation marks omitted; citations omitted.) Id., 241. See also Delgado v. Achieve Global, Superior Court, judicial district of Fairfield, Docket No. CV 99 0362720 (November 15, 2000, Melville, J.) (granting summary judgment in favor of the defendant employers on counts pertaining to race discrimination because "the plaintiff failed to present evidence from which it can be inferred that the defendant afforded different treatment to similarly situated Hispanic and non-Hispanic employees").
The plaintiff's affidavit and supporting documentation fail to provide any evidence giving rise to a question of fact as to whether the plaintiff was subject to disparate treatment that led to her termination. For the foregoing reasons, this court grants summary judgment as to counts one and two of the plaintiff's complaint.
B
In the third count of her complaint, the plaintiff claims that she was discriminated against on the basis of her actual or perceived physical disability in violation of § 46a-60(a)(1). The plaintiff alleges that a tumor existing on her right shoulder at the time that she was terminated, under the circumstances, is a physical disability within the meaning of the statute. The defendants dispute that the plaintiff is a member of a protected class based on her claims of actual and perceived disability relating to the tumor. More particularly, the defendants contend that there are no questions of material fact that the plaintiff's tumor condition does not meet the statutory definition of physical disability because the tumor is not a chronic handicap, infirmity or impairment. Additionally, the defendants claim that Connecticut does not recognize a cause of action based on a perceived disability.
" Physically disabled refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." (Internal quotation marks omitted; emphasis added.) General Statutes § 46a-51(15).
"Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. CHRO, supra, 236 Conn. 103. The case of Beason v. United Technologies Corp., 337 F.3d 271 (2d Cir. 2003) addresses the issue of the meaning of physical disability within § 46a-60(a)(1) and the CFEPA.
In Beason, the plaintiff employee appealed from a judgment of the United States District Court for the District of Connecticut granting summary judgment in favor of the defendant employer. Id., 173. Two of the issues on appeal were "(1) whether the CFEPA definition of physical disability differs substantively from the American with Disabilities Act's (ADA) definition of disability, and (2) whether the CFEPA provides a cause of action for perceived physical disability discrimination." Id., 275.
Concerning the issue of the difference in the CFEPA's and ADA's definitions of physical disability, the Court stated: "Under the CFEPA it is a prohibited practice for an employer — except in the case of a bona fide occupational qualification or need to refuse to hire or employ or to discharge from employment an individual because of the individual's physical disability. [General Statutes] § 46a-60(a)(1). The CFEPA defines the term `[p]hysically disabled' as `refer[ring] to any individual who has any chronic physical handicap, infirmity or impairment.' [General Statutes] § 46a-51(15) . . . The ADA also prohibits disability-based discrimination and similarly defines disability as `a physical or mental impairment.' But, significantly, it adds a requirement that the impairment ` substantially limit one or more of the major life activities of [the] individual.' 42 U.S.C. § 12102(2)(A) . . .
"We have ruled that the ADA's requirement that a physical disability substantially limit a major life activity is `a significant threshold for seeking redress under the ADA.' . . . Absent similar language in the CFEPA, we believe the Connecticut Supreme Court would decline to find the CFEPA possesses the same restrictive threshold. Such view is consistent with both the Connecticut Supreme Court's precedent that the most important factor to be considered when interpreting a statute is its language . . . and with its view that remedial statutes should be construed liberally . . ."
"Our conclusion that Connecticut and federal laws do not provide coextensive disability discrimination coverage is bolstered by legislative history. The Connecticut General Assembly first made disability discrimination an unlawful employment practice in 1973 under the CFEPA . . . The state legislature added a specific definition of physical disability to the statute the following year . . . and then amended the definition again in 1975, so that the present definition of physical disability has been in force, unchanged save for a minor technical adjustment, since 1975." (Citations omitted.) Beason v. United Technologies Corp., 337 F.3d 271, 277 (2d Cir. 2003). "[T]he case law on point, although not extensive, uniformly confirms . . . that the CFEPA's definition of physical disability is broader than the ADA's." Id., 278.
Based on the foregoing analysis, the Court held that the District Court erred in applying the ADA standards in granting summary judgment on the plaintiff's CFEPA cause of action. Id., 275.
The defendant did not dispute "that it was an error to employ the ADA's definition of disability to decide a CFEPA claim." Beason v. United Technologies Corp., supra, 337 F.3d 275.
In this action, Diageo asserts that the plaintiff cannot establish a prima facie case that she is a member of a protected class based on an actual disability because her tumor is not a chronic condition, a handicap, an infirmity or an impairment as those terms are used to define the term physically disabled within the meaning of §§ 46a-60(a)(15) and 46a-51(15). The case of Jackson v. Water Pollution Control Authority, 278 Conn. 692, 900 A.2d 498 (2006) provides guidance to the court in determining this issue. The plaintiff in that case brought an action against the defendant claiming discrimination on the basis of race and physical disability in violation of the CFEPA. Id., 695.
The plaintiff appealed from the judgment on the verdict rendered in his favor and the defendant cross appealed. Id., 695-96. In its cross appeal, the defendant claimed "that the trial court improperly denied its motion to set aside the jury's findings that the defendant . . . discriminated against the plaintiff on the basis of a physical disability." Id., 696. In upholding the decision of the trial court on the issue, the Court discussed that "the defendant contends that, pursuant to General Statutes § 46a-51(15), the term `[p]hysically disabled refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device,' and the evidence proffered by the plaintiff was insufficient to satisfy this statutory definition. The defendant further contends that, even if the plaintiff were, in fact, disabled, the record contains insufficient evidence for the jury to have concluded that the defendant discriminated against him on that basis. We disagree with both of these claims.
"The record contains ample support for the jury's findings that the plaintiff was physically disabled and that the defendant discriminated against him on the basis of physical disability. The plaintiff testified that, in either 1986 or 1987, he sustained an injury to his right knee in the course of his employment. The plaintiff further testified that, as a result of that injury, he underwent surgery, received workers' compensation benefits and was given a disability rating for his knee. The plaintiff also testified that he later suffered a strained . . . lower lumbar spine. As a result of his injuries and accompanying surgery, the plaintiff experienced continuing discomfort. The defendant offered no evidence to refute the plaintiff's testimony regarding these injuries. Such evidence certainly satisfies the broad statutory definition of physical disability contained in § 46a-51(15), which includes a `chronic . . . infirmity . . . resulting from bodily injury . . .'" (Internal quotation marks omitted.) Id., 702-03. The court concluded, therefore, that the plaintiff satisfied his burden of establishing a prima facie case that he was a member of a protected class. See also Gilman Brothers Co. v. Connecticut Commission on Human Rights and Opportunities, Superior Court, judicial district of Hartford, Docket No. CV 95 0536075 (May 13, 1997, McWeeny, J.) (finding that the plaintiff's employer discriminated against her based upon her disability because the plaintiff was terminated after she informed her employer that she had carpal tunnel syndrome and required special accommodation on the job for her disability).
The plaintiff in this case states in her affidavit that on January 4, 2005 she told Levine that she needed an operation at the end of the month to remove the tumor on her right shoulder. The plaintiff further states that the tumors resulted from a condition referred to as lipoma, that the condition caused the tumors to frequently recur and that she had surgeries in 2000 and at other times to remove tumors. Diageo terminated the plaintiff's employment on January 5, 2005 for the purported reason that she failed to satisfactorily complete her probationary period.
Similar to the evidence in Jackson, the evidence in the plaintiff's affidavit relating to her lipoma condition raises an issue of fact to be resolved by the trier of fact as to whether the plaintiff has established a prima facie case that she is a member of a protect class on the basis of an actual physical disability. The defendant's contrary claims in this regard hinge on a restrictive reading of the statutes improperly request that the court decide the ultimate issue. "[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist . . ." Shukis v. Board of Education, 122 Conn.App. 555, 556 (2010).
In view of the foregoing, the court denies Diageo's summary judgment motion on the third count challenging the plaintiff's claim of discrimination based on the actual physical disability relating to her shoulder tumor.
Diageo also moves for summary judgment on the third count claiming that there is no recognized cause of action in Connecticut for a "perceived," as opposed to an actual disability. Even if a cause of action based on a "perceived disability" were recognized, Diageo claims that the plaintiff has failed to establish an issue of material fact that they perceived the plaintiff as having a disability. Diageo additionally contends that even if the plaintiff could make out a prima facie case of discrimination, there exists no question of material fact that they had a legitimate, nondiscriminatory reason for terminating the plaintiff's employment in that she had a documented history of poor performance, and that the plaintiff cannot establish that the reason proffered by the defendants is pretextual. The plaintiff counters that "a question of fact exists as to whether the Defendant perceived the plaintiff to be disabled and allegedly unable to work when she requested time off from work for surgery . . ."
The defendants rely on the court's holding in Beason in asserting that Connecticut does not recognize a cause of action based on a claim of a perceived disability. See Beason v. United Technologies, Corp., supra, 337 F.3d 279 ("Connecticut law does not provide a cause of action for perceived physical disability discrimination"). Because "Connecticut law does not provide a cause of action for perceived physical disability discrimination . . . [a plaintiff] must establish a genuine issue of material fact as to whether he was actually disabled, in order to survive summary judgment on [a] CFEPA claim." Brown v. Waterbury Board of Education, United States District Court, Docket No. CV 1923 (D.Conn. 2010).
The plaintiff cites to Graham v. Boehringer Ingelheim Pharmaceuticals, Superior Court, judicial district of New Haven, Docket No. CV 04 0488908 (October 19, 2007, Corradino, J.), arguing that the court's finding of a "perceived disability" in that case demonstrates that such a cause of action exists. However, in Graham, the court specifically addressed a perceived mental disability based on a different statute. Therefore, the analysis in Graham does not apply to the present action.
The court finds the Beason decision to be well reasoned and agrees with the holding that a cause of action based on a perceived disability is not a legally recognized action in Connecticut. In view of the foregoing, the court grants Diageo's summary judgment motion on the third count to the extent that it alleges a cause of action based on a perceived disability.
II
The defendants move for summary judgment on the fourth count of the plaintiff's complaint, which count alleges a negligent misrepresentation cause of action against Diageo and Levine. The plaintiff alleges in that count that Diageo and Levine "represented to the plaintiff that she satisfactorily completed her probationary period in her VAP job position and was satisfactorily performing her work for the [d]efendants. The [p]laintiff did not seek other employment possibilities, thus relying to her detriment on the expressed and implied promises and statements, and/or representations, as aforesaid made by . . . Diageo . . . and its agents, servants and/or employees including . . . Levine."
As previously indicated, the defendants do not dispute the statement in the plaintiff's affidavit, essentially mirroring the allegation in her complaint, that "on November 17, 2004 at a meeting held with my manager, Lawrence D. Levine, I was told my progress was satisfactory, I was no longer in need of the performance improvement plan, and I no longer had to worry about the criteria stated in the memo delivered to me on September 15, 2004." The plaintiff relies on this statement in opposing summary judgment on the fourth count.
The plaintiff did not state in her affidavit, as she alleged in her complaint, that she did not pursue other employment opportunities due to the alleged representation of Levine. In her memorandum in opposition to summary judgment, the plaintiff additionally claims that she relied to her detriment by continuing her employment with Diageo, which fact also was not stated in the plaintiff's affidavit. Because the court concludes that, under the circumstances, the plaintiff could not have detrimentally relied on Levine's representations, the court need not decide whether the plaintiff has met her burden of demonstrating an issue of fact concerning detrimental reliance.
"The governing principles [of negligent misrepresentation] are set forth in . . . § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result . . . Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact . . ." Sovereign Bank v. Licata, 116 Conn.App. 483, 502, 977 A.2d 228, cert. granted on other grounds, 293 Conn. 935, 981 A.2d 1080 (2009).
The plaintiff is an at-will employee. As a result, the plaintiff's claim of negligent misrepresentation must be analyzed in light of this undisputed fact.
"Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity." Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). "In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at-will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002).
The defendants admit for the purposes of deciding this motion that Levine made a statement of fact concerning the plaintiff's positive progress under her personal improvement plan. Assuming, without deciding, that there exists an genuine issue of material fact as to whether Levine know or should have know that the statement was false, the issue is whether the plaintiff, an at-will employee, could have justifiably relied on Levine's statement.
The case of Petitte v. DSL.net, 102 Conn.App. 363, 925 A.2d 457 (2007) involves similar facts. In Petitte, the plaintiff, an at-will employee, brought an action against the defendant alleging breach of contract, negligent misrepresentation and infliction of emotional distress arising from the defendant's termination of the plaintiff's employment. Id., 365-66. The circumstances of the termination were that the plaintiff left his prior employment and went to work for the defendant as an at-will employee after receiving from the defendant an offer of employment letter. Id. The defendant terminated the plaintiff's employment three days after the plaintiff commenced work. Id., 366.
The trial court granted the defendant's motion for summary judgment on all of the counts of the complaint. The plaintiff appealed claiming, among other issues, that the trial court improperly granted the defendant's summary judgment motion on the count alleging misrepresentation. Id., 372.
The decision of the trial court was affirmed. Id., 377. The Appellate Court found that "the facts alleged do not constitute a cause of action." Id., 372. The Court further noted that they "agree with the court's conclusion that as a matter of law, the employment offer contained in the December 10, 2003 letter did not constitute negligent misrepresentation because it (1) did not guarantee employment and (2) stated that any employment relationship was at will . . . Moreover, the plaintiff's reliance on the letter as a guarantee of employment was not justifiable as a matter of law. As noted by the court, `the offer letter was fraught with risk because [the defendant] reserved unfettered discretion to end the employment relationship at any time.'" Id., 373.
Similarly, there is no question of fact that Levine's statement did not constitute a negligent misrepresentation because the plaintiff's employment relationship with the defendant was at-will. Levine did not make to the plaintiff any guarantee of employment or otherwise alter her status as an at-will employee. Consequently, the defendant's motion for summary judgment on the fourth count is granted.
III
The plaintiff relies on the same statement by Levine in support of her claim in the fifth count based on promissory estoppel. Specifically, the plaintiff alleges that the representation made by Levine "was sufficiently clear and concise to create a promise upon which she reasonably relied to her detriment and that caused her injury. The defendants counter that the plaintiff cannot demonstrate that the defendants made a clear and definite promise to her and such a promise is a necessary element of a promissory estoppel claim.
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003).
Even if Levine's statement was a clear and definite promise, which issue the court need not decide, he had no objective reason to expect that the plaintiff would rely on it for the reasons discussed in part II of this opinion. Therefore, the court grants the defendants' motion for summary judgment on the fifth count.
Based on the foregoing reasons, the court grants the defendants' motion for summary judgment as to counts one, two, four and five, and denies the motion as to count three.