Opinion
No. CV-03-0476708 S
November 5, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 109)
In this lawsuit the plaintiff, Dolores Hall, alleges that the defendants (1) wrongfully terminated her from her job as a crossing guard; (2) violated her constitutional rights and (3) intentionally inflicted emotional distress upon her. The defendants are (1) Leonard Gallo, Chief of Police, (Chief Gallo) (2) the East Haven Police Department and (3) the Town of East Haven (Town). The operative complaint is the plaintiff's Second Revised Complaint dated March 22, 2004. This complaint is in thirteen counts: wrongful termination by Chief Gallo (count one), indemnification liability as to the East Haven Police Department (count two), indemnification as to the Town (count three), discrimination as to the East Haven Police Department (count four), discrimination as to the Town of East Haven (count five), violation of United State's Constitution first amendment rights by Chief Gallo (count six), intentional infliction of emotional distress by Chief Gallo (count seven), violation of state constitutional rights as to Chief Gallo (count eight), violation of state constitutional rights as to the East Haven Police Department (count nine), violation of state constitutional rights as to the Town of East Haven (count ten), discharge on account of exercise of free speech as to Chief Gallo (count eleven), discharge on account of exercise of free speech as to East Haven Police Department (count twelve), and discharge on account of exercise of free speech as to Town of East Haven (count thirteen).
For a variety of legal reasons, the defendants move to strike all counts in the Second Revised Complaint. For the reasons set forth below, the motion is granted as to counts one, two, three, four, five, six, eight, nine and ten, eleven, twelve and thirteen. The motion is denied as to count seven.
STANDARD
Whenever any party wishes to contest the legal sufficiency of the allegations of any complaint, that party may do so by filing a motion to strike. Practice Book § 10-39. In considering a motion to strike, the court is limited to the facts alleged in the complaint. Doe v. Marselle, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996). For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). Moreover, the court must construe the facts in the complaint most favorably to the plaintiff. Faulkner v. United Technologies Corp., 240 Conn. 576 (1997).
The role of the trial court in ruling on a motion to strike is to examine the complaint, construed in favor of the plaintiff, to determine whether the pleading party has stated a legally sufficient cause of action. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).
DISCUSSION A.
Counts one through five allege wrongful termination, gender discrimination and indemnification. The motion to strike must be granted as to these counts because the plaintiff has failed to allege exhaustion of her administrative remedies with the Commission on Human Rights and Opportunities ("CHRO"). Sullivan v. Board of Police Commissioners, 196 Conn. 208, 215 (1985). Moreover, the motion to strike the indemnification count (count two) as to the East Haven Police Department must be granted because General Statutes § 7-465 is only applicable to a town, city or borough. An administrative subdivision of a town, such as a police department, is outside of the reach of the statute.
At oral argument, plaintiff's counsel stated that he had a release to sue letter from the CHRO and intends to plead over as to these counts. See Practice Book § 10-44 (substitute pleading permitted within fifteen days of granting of motion to strike).
B.
Counts eight, nine and ten seek damages for violation of plaintiff's state constitutional rights. The current law in the State of Connecticut does not permit a cause of action for damages based on a violation of state constitutional rights. Kelley Property Development, Inc. v. Town of Lebanon, 226 Conn. 314, 339 (1993). The plaintiff's reliance on Leydon v. Town of Greenwich, 257 Conn. 318 (2001) is unpersuasive. Leydon concerned the question of whether a town ordinance that restricted access to a shorefront park to town residents violated the Connecticut Constitution. It did not consider the present issue as to whether violation of state constitutional rights permits a private cause of action for money damages.
The motion to strike counts eight, nine and ten is granted.
C.
Counts six, eleven, twelve and thirteen seek damages based on the alleged violation of the plaintiff's first amendment rights regarding free speech. Count six appears to assert a claim based on 42 U.S.C. § 1983. Counts eleven, twelve and thirteen explicitly allege violation of General Statutes § 31-51q.
The defendants assert that the plaintiff's speech, as alleged in the complaint is not protected speech. Specifically, the defendants argue that under both § 1983 and § 31-51q speech is protected if it addresses a matter of public concern. They further assert that the speech alleged in the complaint pertains only to the plaintiff's private dispute with her neighbors. The plaintiff acknowledges that to warrant protection, her speech must relate to a matter of public concern. She asserts, however, that this question should not be resolved on a motion to strike.
Under both § 31-51q and § 1983, protected speech is speech that addresses a matter of public concern. Daley v. Aetna Life Casualty Co., 249 Conn. 766, 777 (1999); Benson v. Daniels, 89 F.Sup.2d 212, 216 (D.Conn. 2000). Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court. Daley v. Aetna Life Casualty, supra, 249 Conn. 777. Whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. Id. This latter inquiry necessarily involves a question of fact. Stated differently, in determining whether the plaintiff has alleged protected speech, the inquiry on a motion to strike is only directed to the subject matter of the statement and not the particulars of the statement itself.
In the present case, the issue is whether, construed in the plaintiff's favor, the complaint alleges speech that address a matter of public concern. Speech that addresses a matter of public concern involves statements that can "be fairly considered as relating to any matter of political, social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The "speech" alleged in the complaint consists of (1) a civil lawsuit arising out of harassment from plaintiff's neighbors, (2) calls for police assistance regarding actions of the plaintiff's neighbors, (3) Chief Gallo's efforts to pressure plaintiff to drop the lawsuit against her neighbors, (4) plaintiff's statement to Chief Gallo that he cease discussing her pending legal matters with her and cease trying to pressure her to drop the suit, and (5) the plaintiff's alleged conduct in "giving the finger" to a friend of one of the defendants in the lawsuit. The subject matters of all of these statements concern her personal dispute with her neighbors and her objection to Chief Gallo's efforts to intrude into her personal legal affairs. Such subject matters are not matters of public concern, but rather relate to plaintiff's private interests. As such they are not protected speech.
The motion to strike is granted as to Counts six, eleven, twelve and thirteen.
D.
Count seven alleges intentional infliction of emotional distress. The defendants assert that plaintiff's allegations are not sufficiently extreme and outrageous to support this tort. This count is based on Chief Gallo's alleged efforts to get the plaintiff to drop her lawsuit against her neighbors. The alleged efforts included (1) Chief Gallo's suggestions that the neighbors make complaints about the plaintiff for which the police would take "appropriate action," (2) Chief Gallo's false accusation that plaintiff abused her crossing guard position, (3) Chief Gallo's (false) claim that there were unspecified complaints against plaintiff, and (4) Chief Gallo's actions in firing her in retaliation for her failure to withdraw her lawsuit. In sum, the count alleges efforts to force the plaintiff to drop her lawsuit through misuse of police power, prevarication and retaliatory discharge.
The complaint alleges that no complaints were ever produced in response to a Freedom of Information request.
Of course, whether the plaintiff can prove these allegations is a separate matter.
The court finds these allegations sufficiently extreme and outrageous to withstand a motion to strike. The motion to strike count seven is denied.
CONCLUSION
The motion to strike counts one, two, three, four, five, six, eight, nine, ten, eleven, twelve and thirteen is granted. The motion to strike count seven is denied.
SO ORDERED at New Haven, Connecticut this 5th day of November 2004.
Devlin, J.