Opinion
No. CV 03 0520421 S
April 28, 2004
MEMORANDUM OF DECISION RE MOTION #109 MOTION TO DISMISS
FACTS
On March 21, 2003, Gary Gallo (hereinafter the "plaintiff"), commenced an action for monetary damages against the defendants, Michael Barile, Paula Robarge, and Ronald Roberts.
The plaintiff's complaint alleges that on March 27, 2002, the defendants complained to police officers of the State of Connecticut, Department of Public Safety, Division of State Police, that he had engaged in "tumultuous or threatening behavior" in a public place, and that based on these complaints and charges, he was arrested for the crime of breach of peace.
In September 2002, the plaintiff was tried on the breach of peace charge in the Superior Court. Each of the defendants appeared in court and testified against him.
On September 24, 2002, the plaintiff was acquitted of the charge against him.
The plaintiff alleges that the defendants' complaint to the State Police and the charges brought against him were false, and that the defendants acted without probable cause and/or with motives of malice in notifying the police and testifying against him. The plaintiff also alleges that the defendants acted unreasonably and/or with negligence toward him and moreover, that the defendant's actions were extreme and outrageous and constituted a reckless disregard for his just rights. He further alleges that as a result of the defendants' conduct, he suffered monetary and emotional damages, which included termination from his employment as an Investigation Supervisor with the State, Department of Social Services.
The nine-count complaint in this matter alleges common-law defamation, negligence and intentional infliction of emotional distress by Barile in counts one, two and three; common-law defamation, negligence and intentional infliction of emotional distress by Robarge in counts four, five and six; and common-law defamation, negligence and intentional infliction of emotional distress by Roberts in counts seven, eight, and nine.
The defendants filed a motion to dismiss on August 4, 2003, asserting that this Court lacks personal and subject matter jurisdiction and that the complaint fails to state a claim upon which relief can be granted.
The attorney general filed an appearance on behalf of all three defendants on May 1, 2003. On May 8, 2003, Vincent T. McManus, Jr., filed a separate appearance, on behalf of Barile and a request to revise the complaint on his behalf was filed at the same time. An objection to this request was filed and later sustained. On July 28, 2003, another appearance was filed on behalf of defendants Robarge and Roberts by assistant attorney general, Stephen Courtney. The August 4, 2003, motion to dismiss was filed by Courtney and purported to be on behalf of all defendants. The plaintiff filed a motion for extension of time to file a memorandum in opposition to the defendants' motion to dismiss without objection from the defendants. A subsequent motion for extension of time was granted. The plaintiff argued in his memorandum of law that the motion to dismiss should be denied as to Barile because Practice Book § 3-7 prohibits an attorney from appearing in court or to be heard on behalf of a party until the attorney's appearance has been entered. Thereafter, on November 19, 2003, Barile moved to dismiss the complaint and joined in the motion filed by the Attorney General's office filed August 4, 2003, through his own attorney, and adopted the memorandum in support. The plaintiff opposed Barile's motion and adopted his earlier memorandum in opposition as against Barile.
The defendants assert that the plaintiff's claims are barred because of defective service of process, sovereign immunity, and by statutory immunity under Connecticut General Statutes § 4-165. A supporting memorandum was attached to the motion to dismiss.
On November 14, 2003, the plaintiff filed a memorandum in opposition to the defendants' motion to dismiss.
On December 3, 2003, the defendants, in a supplemental memorandum in support of the motion to dismiss, reasserted their motion to dismiss based on the doctrine of sovereign immunity and/or statutory immunity pursuant to § 4-165 of the C.G.S. The defendants also submitted affidavits with attached exhibits from each individual defendant.
On December 24, 2003, the plaintiff filed a memorandum in opposition to the defendants' supplemental motion to dismiss and attached the plaintiff's affidavit with supporting documentation.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 504, 815 A.2d 1188 (2003).
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . Motions to dismiss are granted solely on jurisdictional grounds." (Internal quotation marks omitted). Pitruzello v. Muro, 70 Conn. App. 309, 312, 798 A.2d 469 (2002).
The defendants first argue that the court lacks personal jurisdiction over them. "It is fundamental that jurisdiction over a person can be obtained by waiver. Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny plaintiff, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.'" (Citation omitted; emphasis in original.) Conner v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), quoting Practice Book § 10-30. "[Practice Book § 10-30] specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
On May 1, 2003, the Attorney General filed an appearance on behalf of all three defendants.
On May 8, 2003, Vincent T. McManus, Jr. filed a separate appearance on behalf of Barile.
The defendants' motion to dismiss for lack of personal jurisdiction was not filed until August 4, 2003, which is beyond the 30-day filing deadline to file such a motion. The defendants therefore waived any lack of personal jurisdiction claim. The motion to dismiss for reason of lack of personal jurisdiction is therefore denied.
The defendants also argue that the court lacks personal jurisdiction over the defendants because the plaintiff failed to effect personal service upon the individual defendants as required by General Statutes § 52-57. Section 52-57(a) provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint with the defendant or at his usual place of abode, in this state."
The Deputy Sheriff's return of process indicates that service was made via hand delivery to Barile and Robarge on March 21, 2003, in the town of New Britain and via hand delivery to Roberts on March 25, 2003, in the town of New Haven.
The defendants have also moved to dismiss based on lack of subject matter jurisdiction. "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, `essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.'" Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 749 A.2d 498 (2002). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003).
The defendants have also move to dismiss the claims against them based on the common-law doctrine of sovereign immunity. They argue that they were state employees employed by the Department of Social Services (hereinafter "DSS") in New Britain and that they were acting within the scope of employment at all times relevant to the complaint. They further assert that they were required to report the incident that had occurred between the plaintiff and Barile pursuant to Executive Order No. Sixteen.
The supporting affidavits submitted by both parties contain the following undisputed facts concerning the incident giving rise to the plaintiff's arrest on March 27, 2002. On that date, at approximately 11:40 a.m., Barile was leaving the DSS building when he encountered the plaintiff with another employee, Bridget Barrows-Cooper, as they were returning from a walk. Barile greeted the plaintiff and Barrows-Cooper to which the plaintiff responded, "Yeah right." Barile answered, "Do you have a problem with me?" or words to that effect. The plaintiff and Barile then exchanged words. The conversation was short in duration.
The parties dispute whether voices were raised, if there were body movements and the distance the plaintiff and Barile stood from one another. The plaintiff avers that the conversation occurred in a "nonhostile manner" and "[t]here was no threatening nor harassing behavior by either." (Affidavit of Gary Gallo, ¶ 28.) Barile avers, "It was clear that [Gallo] was enraged for some reason that I did not know. I felt physically threatened by Mr. Gallo and believed he was about to hit me." (Affidavit of Michael J. Barile, ¶ 5.) Barile avers that he reported the incident to human resources but not to the police. (Affidavit of Michael J. Barile, ¶ 6.) It is undisputed that Paula Robarge witnessed the incident. Robarge avers that she reported the incident to her supervisor, Anne Claunch, who advised her to contact Roberts which she did by e-mail and that she did not contact the police. (Affidavit of Paula Robarge, ¶ 7-8.) Roberts avers that Barile reported the incident to him and that he directed Barile to contact human resources. (Affidavit of Ronald Roberts, ¶ 8.) Later that afternoon, the plaintiff was arrested at his home in Southington.
Executive Order No. Sixteen, which sets forth the Violence in the Workplace Prevention Policy of the State of Connecticut, was signed by Governor John Rowland on August 4, 1999. The policy provides in relevant part, "That all state agency personnel, contractors, subcontractors, and vendors comply with the following Violence in the Workplace Prevention Policy: The State of Connecticut adopts a statewide zero tolerance policy for workplace violence . . . That all managers and supervisors are expected to enforce this policy fairly and uniformly . . . That any employee who feels subjected to or witnesses violent, threatening, harassing, or intimidating behavior in the workplace immediately report the incident or statement to their supervisor, manager, or human resources office. That any employee who believes that there is a serious threat to their safety or the safety of others that requires immediate attention notify proper law enforcement authorities and his or her manager or supervisor . . . That any manager or supervisor receiving such a report shall immediately contact their human resources office to evaluate, investigate and take appropriate action . . . That all parties must cooperate fully when questioned regarding violations of this policy . . ."
The plaintiff asserts that sovereign immunity is inapplicable in the case at bar because the complaint does not allege that the defendants were acting as state officers or employees, or that they were in fact state officers or employees and that no such inference can be drawn from the facts of the complaint. The plaintiff further argues that the relevant incident did not occur in the workplace and was not in the discharge of the defendants' duties and that the defendants' allegations of threatening conduct were rejected by the jury in acquitting the plaintiff.
"[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). In Hultman v. Blumenthal, 67 Conn. App. 613, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002), it was unclear from the plaintiff's complaint whether the State Attorney General was being sued in his official or individual capacity because the complaint did not describe the defendant as the attorney general. Id., 620. However, the court held that, "the identities of the parties are determined by their description in the summons." Id. In Carson v. Ragaglia, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 00 076213 (June 27, 2003, Moran J.), the court held that the plaintiff was suing the defendants only in their official capacities. The summons names each of the defendants, followed by "State of Conn., Dept. of Children and Families." Id. The complaint described the defendants as the commissioner, principal personnel officer, and supervisors. Id.
In the present action, the defendants are not named in their official capacity in the complaint and the complaint does not describe their jobs or their roles as employees for the state of Connecticut. The summons, however, named each of the defendants, followed by "State of Connecticut Department of Social Services." Each defendant was served in his official capacity at the Attorney General's office in Hartford. As reflected in the defendants' affidavits attached to the supplemental memorandum, at the times relevant to the complaint, Barile was employed as a "Social Services Investigations Supervisor" in the DSS office and was the plaintiff's direct supervisor. Robarge was employed as a "Head Clerk" in the DSS office. Roberts was employed as "Field Manager," the top agency manager for the DSS office. The plaintiff avers in his affidavit that the defendants were in fact employed by DSS and held the positions as purported by the defendants. (Affidavit of Gary Gallo.)
"Our Supreme Court has set forth criteria to determine whether an action is against the state or against a defendant in an individual capacity." Hultman v. Blumenthal, supra, 67 Conn. App. 621. The four criteria are as follows: "(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 308.
In Hultman, the attorney general met the first two criteria. Hultman v. Blumenthal, 67 Conn. App. 621. "The third criterion [was] met because the liability for the damages sought [was] that of the state. The fourth criterion [was] met because any judgment against the defendant would operate to control the activities of the state, specifically the role of the Attorney General's office in informing the public." Id. Therefore, the court held that the Attorney General was being sued in his official capacity. CT Page 6711 Id.
In Miller, the plaintiff named as defendants individual sheriffs and the State of Connecticut. Miller v. Egan, supra, 265 Coin. 302. The plaintiff claimed that his complaint sued the "individually named defendants in their individual capacities, as well as in their official capacities." Id., 307. He argued that the third criterion of the test was not met because "the complaint sought relief both from the state and from the individual defendants." Id., 308. The complaint, however, repeatedly alleged that the defendants acted in their "official capacity." Id. The court found that the third criterion was met because "the complaint sought relief solely against the state," and the fourth criterion was satisfied because "a judgment against the state would subject it to liability." Id., 311. Therefore, the court held the defendants were being sued in their official capacity only. Id., 312.
Applying the four criteria to the defendants in this case, the defendants, as employees of the State of Connecticut, meet the first criterion that a state official has been sued.
The defendants meet the second criterion for reason that the suit concerns some matter in which they represent the state because they assert that they were following an established policy against workplace violence when they reported the alleged actions of the plaintiff.
The third criterion requires that the State of Connecticut be the real party against whom relief is sought. Unlike Hultman and Miller, where the liability for damages was that of the state, in this case, the third criterion has not been met for reason that the liability for damages would be that of the individual defendants rather than that of the state. Furthermore, unlike Miller, there are no allegations in the complaint that the defendants had acted in their official capacities.
The fourth criterion has not been met because a judgment against the defendants has the potential to control the activities of the state, in that state officials would not feel comfortable adhering to the violence in the workplace policy. However, given that the defendants have failed to meet the third criterion of the test, it readily appears that they were sued exclusively in their individual capacities and, therefore, the doctrine of common-law sovereign immunity does not apply.
The defendants next argue that the plaintiff's claims are barred by statutory immunity pursuant to § 4-165 of the Connecticut General Statutes. The plaintiff argues that § 4-165 C.G.S. is not applicable to these claims because the plaintiff has brought suit against the defendants in their individual capacities alleging that the defendants' conduct was wanton, reckless and malicious. The plaintiff asserts that he did not allege in the complaint that the defendants' conduct was within the scope of their employment.
Statutory immunity under § 4-165 applies where sovereign immunity does not apply. Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000), rev'd on other grounds, 265 Conn. 301, 828 A.2d 549 (2003). Section 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment." In interpreting this statute, the court has held that: "State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 319. "[O]n a threshold [statutory] immunity issue, pursuant to a motion to dismiss . . . [the court] does not pass on whether the complaint was legally sufficient to state a cause of action . . . [the court] examines the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously." (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
The plaintiff alleges in counts two, five, and eight of the complaint that the defendants were negligent in reporting the plaintiff's actions to the police. According to § 4-165, the defendants, as State employees cannot be held personally liable for negligence if they acted in the discharge of their duties or within the scope of their employment. Therefore, the court must determine whether the defendants were acting within the scope of their employment when they reported the plaintiff's behavior.
"In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, supra, 261 Conn. 377. For example, in Martin, the plaintiff sued the defendants in their individual rather than official capacities. Id. The court held that allegations that the defendants sought the plaintiff's arrest, executed a search warrant and conducted a search in an attempt to effectuate an arrest were within the scope of the defendants' employment as state police officers. Id., 378-79.
Reading the facts of this case in the light most favorable to the plaintiff, the court could reasonably find that the defendants negligently made false accusations of the plaintiff's behavior to the police. However, the supporting affidavits of both parties set forth that the defendants at all times relevant to the complaint were employees of the State of Connecticut. Executive Order No. 16 provides in relevant part: "That any employee who believes that there is a serious threat to their safety or the safety of others that requires immediate attention notify proper law enforcement authorities and his or her manager or supervisor . . . That any manager or supervisor receiving such a report shall immediately contact their human resources office to evaluate, investigate and take appropriate action."
The defendants have submitted affidavits to support their motion to dismiss to show they were acting within the scope of their duties as supervisors at the DSS office.
The defendants have averred that they felt the plaintiff was a threat to workplace safety and that they felt the actions they were taking were within the scope of their workplace duties. Like the plaintiff in Martin, the plaintiff in the present case has not made allegations that the defendants were acting outside the scope of their duties.
In his affidavit, Barile avers that on March 27, 2002, he submitted a security/safety incident report concerning an incident that had taken place with the plaintiff. (Affidavit of Michael J. Barile, ¶ 4.) Barile states, "It was clear that [Gallo] was enraged for some reason that I did not know. I felt physically threatened by Mr. Gallo and believed he was about to hit me." (Affidavit of Michael J. Barile, ¶ 5.) He then reported the incident to Jeanne Anderson of the Human Resources Department of the agency, and after describing the incident to her, he was instructed to draft the incident report, which has been attached to his affidavit. (Affidavit of Michael J. Barile, ¶ 6.) Barile purports that he believed it to be his duty and obligation to formally record his recollection of the incident that occurred involving the plaintiff. (Affidavit of Michael J. Barile, ¶ 10.) Barile further states, `As a supervisor I am aware of my obligation to report any such incidents of potential violence since I am responsible to contribute toward not only a safe and healthy work environment, but to insure compliance with the state's workplace violence prevention policy. In fact, I was required by the governing work-place violence protocol to pursue this matter. In essence, I was acting in compliance with these policies." (Affidavit of Michael J. Barile, ¶ 11.)
In her affidavit, Robarge avers, "As [Gallo] passed I noticed his face was red and he appeared very angry. I was concerned for others if anyone approached him. I was extremely shaken by witnessing this incident because of the hostile and threatening conduct by Mr. Gallo." (Affidavit of Paula Robarge, ¶ 6.) She states, "Sometime later that day, I noticed that two State Police troopers came to the office. I did not contact the state police about this incident and have no knowledge who did. I was later questioned by the State Policemen that afternoon and gave the attached statement to them. I heard that Mr. Gallo was later arrested." (Affidavit of Paula Robarge, ¶ 8.) She further avers, "As a Head Clerk I felt it my obligation to report what I had observed concerning this incident to contribute toward the safety and health of the DSS New Britain office." (Affidavit of Paula Robarge, ¶ 11.)
In his affidavit, Roberts avers, "On March 27, 2002 the day of the incident, Mr. Barile contacted me, described the conduct exhibited by Mr. Gallo, expressing concern and alarm about Mr. Gallo's threatening and abusive behavior. I directed him to contact Jeanne Anderson of the Human Resources Department of the agency, who in turn, instructed Mr. Barile to submit a written safety/security incident report." (Affidavit of Ronald Roberts, ¶ 8.) Roberts further states, "As a manager in the New Britain DSS office, I firmly believe that it was my duty, as well as the duty of supervisors Mr. Michael J. Barile, and Ms. Paula Robarge (Head Clerk) to report any incidents of potential violence and implement the agency workplace violence prevention policies and disciplinary procedures addressing these issues, since, as supervisors, we are responsible to contribute toward not only a safe and healthy work environment in the DSS offices, but to insure compliance with the state's workplace violence prevention policy." (Affidavit of Ronald Roberts, ¶ 12.)
The defendants assert that they were acting within the scope of their employment when they made the report of the plaintiff's behavior and were acting pursuant to an established workplace policy mandated by the governor. All employees of the State of Connecticut are required to follow this policy. Therefore, the defendants cannot be held personally liable for negligence in accordance with § 4-165.
The defendants' motion to dismiss is granted as to counts two, five and eight of the complaint because the defendants cannot be held liable for negligence that may have occurred while following an established workplace policy.
Counts one, four, and seven of the plaintiff's complaint sound in defamation. In these counts, the plaintiff alleges that the defendants falsely complained against the plaintiff without probable cause and/or from motives of malice. Counts three, six and nine of the complaint bring claims for intentional infliction of emotional distress against the defendants.
The plaintiff alleges that the defendants acted with reckless and wanton misconduct in making false complaints about the plaintiff. The court must, therefore, determine whether the plaintiff has sufficiently alleged that the defendants' conduct was "wanton, reckless or malicious" so as to fall within the exception to immunity provided in § 4-165. Martin v. Brady, supra, 261 Conn. 379.
"[The Court has] never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, [the Court has] stated: In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . Indeed, in some instances, the mere fact that an official has acted in excess of his or her authority may suffice to prove that the conduct was wanton, reckless or malicious." (Citation omitted; internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379.
In Morgan v. Bubar, Superior Court, judicial district of New London, Docket No. CV 02 0562555 (February 10, 2003, Hurley, J.T.R.), the Superior Court considered the kind of allegations that must be made in order to fall within the "wanton, reckless, wilful and malicious" exception to § 4-165. The plaintiff's complaint alleged defamation by defendant Bubar, plaintiff's co-worker, and violations of 42 U.S.C. § 1983 by the plaintiff's supervisors, defendants Carini and Castronova. Id. In support of their motion to dismiss, the defendants argued that they were immune from suit based on the doctrine of sovereign immunity and in their individual capacities pursuant to § 4-165. Id. In addressing whether the plaintiff had sufficiently made allegations to bring the complaint within the exception to § 4-165, the court stated, "If, as alleged, Bubar stated to her fellow employees that `[the plaintiff] put her hands on my neck and choked me so hard I could not feel my feet,' the statement may be slanderous if she knew it to be untrue. Such conduct, as alleged, is `wanton, reckless, wilful, intentional and malicious.'" Id. The court held, "Bubar's filing of a false report and making false statements, which the plaintiff claims injured her reputation and professional career, may rise to the level of reckless disregard of rights or safety of others or of the consequences of her actions." Id.
The court further held that the behavior of defendants, Carini and Castronova, also fell within the exception to § 4-165 because they failed to initiate an investigation into the report of violence as required by Executive Order No. 16 and as a result, the plaintiff suffered adverse employment actions. Id. Therefore, the defendants were not entitled to statutory immunity and the court denied the defendants' motion to dismiss. Id.
The Superior Court further considered this statutory exception in Okwu v. Meo, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166397 (April 4, 2002, Pittman, J.), a factually similar case to the one presently before this court. In Okwu, the plaintiff and defendant were co-workers at a community college. Id. The defendant accused the plaintiff of making threatening remarks and went to college authorities with the accusations. Id. The plaintiff alleged in his complaint, that he did not make such threats and that the defendant's conduct constituted the torts of slander per se, slander and intentional infliction of emotional distress. Id. In all counts of the complaint, the plaintiff alleged that "the conduct of the defendant was malicious and that the defendant knew that the plaintiff had made no such threats, so that her statements were untrue." Id. The defendant moved to dismiss, on grounds of sovereign immunity or under § 4-165. Id. In supporting papers, the parties set forth additional allegations, for example: "[T]he defendant argue[d] that she reported the plaintiff['s] statements to college authorities pursuant to a policy promulgated by the [s]tate of Connecticut for instances involving threats of violence in the workplace. The plaintiff argue[d] that the defendant had a personal vendetta against the plaintiff and that her accusations were not made in the scope of her employment." Id.
The court, in denying the defendant's motion to dismiss, held that the allegations in the complaint governed at the motion to dismiss phase of the case. Id. The court stated, "the complaint . . . [alleges] a personal, intentional act on the part of the defendant, which was committed out of malice and not in furtherance of any State policy. That the defendant vigorously denied this to be so does not provide the basis for a dismissal of this case at this stage, however." Id. The court further held that, "[Section] 4-165 does not shield a person employed by the [s]tate from personal liability for intentional malicious acts." Id. citing Shay v. Rossi, supra, 253 Conn. 181.
In reaching its decision that intentional actions also fall within the § 4-165 exception, the court in Okwu relied on the analogous case of Witczak v. Gerald, 69 Conn. App. 106, 793 A.2d 1193 (2002). In Witczak, the trial court dismissed the plaintiff's complaint, which alleged "intentional interference with the [plaintiff's] employment contract and intentional infliction of emotional distress." Id., 107. The plaintiff had alleged that the defendants acted in bad faith when recommending that the plaintiff be denied tenure. Id., 109-10. The Appellate Court reversed the dismissal holding that the plaintiff had alleged "wanton, reckless, or malicious" conduct by the defendants that would fall within the exception to § 4-165. Id., 107-08. The plaintiff had made specific factual allegations as to how the defendants had intentionally interfered with contract terms and had alleged the underlying illicit motive for the interference with contract right and for intentional infliction of emotional distress. Id., 112-13. The court therefore concluded that intentional conduct such as that alleged by the plaintiff is included in the definition of "wanton, reckless and malicious conduct." Id., 115.
Like Morgan and Okwu, the plaintiff in the present action has alleged that the defendants acted with motives of malice and that the defendants acted with reckless and wanton misconduct in making false complaints to the police. The plaintiff has also submitted an affidavit in support of his allegations which specifically sets forth the possible motivations of the defendants to act against him. The defendants' statements alleging that the plaintiff's actions constituted threatening behavior may be considered defamation if they knew the statements they were making were false. The plaintiff has specifically alleged that on March 27, 2002, he was terminated from his employment with the State of Connecticut. If the facts are as the plaintiff has alleged, then the defendants' statements and actions may have caused injury to the plaintiff's reputation and to his career. Construed in the manner most favorable to the plaintiff, the alleged statements made by the defendants, the filing of false reports and the making of false statements could rise to the level of reckless disregard for the rights or safety of others or of the consequences of their actions. The defendants' actions could, therefore, reasonably fall within the exception to § 4-165.
The plaintiff's affidavit includes allegations of several inconsistencies with the defendants' affidavits. The plaintiff has submitted forty-three exhibits that show the nature of the work environment at DSS and his relationship with the defendants in the years and months leading up to the March 27, 2002 incident. While not all are relevant to the motion at issue, the plaintiff's affidavit, taken in the light most favorable to him, does illustrate that there are present issues of fact as to whether the defendants were motivated by malice or acted recklessly in making accusations against him. For example, the plaintiff avers, "Mr. Barile and I exchanged words outside, on [March 27, 2002] in a non hostile manner. There was no threatening nor harassing behavior by either. Mr. Barile saw this as an opportunity to make fraudulent allegations against me in order to promote his own personal agenda in having me terminated and advancing his own position with [DSS]. He enlisted the support of Paula Robarge and Ronald Roberts to have me arrested on false charges." (Affidavit of Gary Gallo, ¶ 28.)
In Morgan, in denying the defendants' motion to dismiss, the court held that the defendants could have been acting recklessly when they did not initiate an investigation into a report of violence as required by Executive Order No. 16. Likewise, in this case, the defendants may have also been reckless had they not reported the March 27, 2002 incident. While not reporting may have been reckless, if true, making such a report may also have been reckless if done maliciously or if the statements were false.
Therefore, as illustrated by Okwu, the defendants' denial that they were not acting maliciously and their assertions that they were acting pursuant to Executive Order No. 16 do not provide the basis for dismissing this case at this stage.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted as to counts two, five and eight and is denied as to counts one, three, four, six, seven and nine. So ordered.
Richard A. Robinson, J.