Opinion
HHDCV156056506S
05-11-2016
Oskar Harmon et al. v. University of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
This action is brought by three employees of the defendant, University of Connecticut, alleging employment discrimination under the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. The defendant moves to strike the plaintiffs' complaint on the ground of improper joinder.
FACTS
The plaintiffs, Oskar Harmon, Rosanne Fitzgerald, and Vicki Knoblauch, who are employees in the economics department at the University of Connecticut commenced this action against the defendant, University of Connecticut, on December 30, 2014.
" In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).
The plaintiffs' operative complaint alleges the following facts. Beginning in 2011, Harmon was subjected to an ongoing pattern of age discrimination from the head of the economics department, Professor Metin Cosgel. As a result, in December 2012, Harmon filed an age discrimination complaint with the University's Office of Diversity and Equity (ODE). Fitzgerald and Knoblauch testified before the ODE on Harmon's behalf. Thereafter, Cosgel engaged in an ongoing pattern of retaliation against each of the plaintiffs. The retaliatory conduct included adverse employment actions, loss of compensation and detrimental working conditions. The plaintiffs individually sought relief through the defendant's remedial resources, including, but not limited to: the ODE, the Office of Audit, Ethics and Compliance, and the Ombudsman. The defendant failed and/or refused to correct Cosgel's discriminatory and retaliatory behavior.
Count one of the plaintiffs' operative complaint alleges Cosgel's pattern of age discrimination against Harmon in violation of General Statutes § 46a-60(a)(1). Counts two through four allege Cosgel's pattern of retaliation against Harmon, Fitzgerald, and Knoblauch, respectively, in violation of General Statutes § 46a-60(a)(4).
General Statutes § 46a-60(a)(1) 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, 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 . . . age . . ."
General Statutes § 46a-60(a)(4) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . [for any person, employer, labor organization or employment agency to . . . discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
On December 21, 2015, the defendant filed its motion to strike for misjoinder accompanied by a supporting memorandum of law. The plaintiffs responded with their memorandum in opposition on December 30, 2015. On January 29, 2016, the defendant filed its reply memorandum. Oral argument was heard on this matter during the February 8, 2016 short calendar.
DISCUSSION
" [T]he exclusive remedy for misjoinder of parties . . . is by motion to strike." Bender v. Bender, 292 Conn. 696, 722 n.23, 975 A.2d 636 (2009); see also Practice Book § 11-3. " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
The defendant argues that: (1) the plaintiffs have three distinct claims that should be severed; (2) judicial economy will not be served because the factual underpinnings as to each plaintiff are entirely different; (3) that the claims do not arise out of the same transaction; (4) that there are no common questions of fact or law; (5) severance of the claims would avoid prejudice to the defendant because the collective evidence could not be commingled; and, (6) that the witnesses and documentary proof required will be entirely different as to each plaintiff.
The plaintiffs counter that the practice book permits the liberal joinder of claims. The plaintiffs further argue that their claims are properly joined because their claims arose out of the same transaction or series of transactions. Each of the plaintiffs experienced a pattern of retaliation from the same person for the same reason; the reason stems from Harmon's age discrimination complaint, and the fact that Fitzgerald and Knoblauch testified on Harmon's behalf. Moreover, judicial economy will be served as the plaintiffs intend to call as witnesses other faculty and staff members in the economics department who either observed the alleged discriminatory conduct, or experienced the same treatment.
" All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise . . ." General Statutes § 52-104; Practice Book § 9-4. " Transactions connected with the same subject of action . . . may include any transactions which grew out of the subject matter in regard to which the controversy has arisen . . ." Practice Book § 10-22. " [W]hether some series of acts can be defined as arising out of the same transaction or series of transactions is arrived at as the end result of an analysis of the alleged operative facts . . ." Zahedi v. Envirotest Systems, Superior Court, judicial district of New London, Docket No. CV-99-0552215-S (February 28, 2000, Corradino, J.) (26 Conn. L. Rptr. 509, 512, *17) . " The 'transaction test' is one of practicality . . . Relevant considerations in determining whether the 'transaction test' has been met include whether the same issues of fact and law are presented by the complaint . . . and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Citations omitted.) Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976). " [T]o enable parties to settle all their controversies in a single action . . . furthers the general policy of our law which favors as far as possible the litigation of related controversies in one action." (Citation omitted; internal quotation marks omitted.) Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948).
Construing the allegations in plaintiffs' operative complaint in a manner most favorable to sustaining its legal sufficiency, the plaintiffs are properly joined in this action. In this case, the operative complaint alleges a pattern of discriminatory behavior, and a pattern of retaliatory actions which the plaintiffs experienced from Cosgel. Additionally, the operative complaint alleges an interconnection between the individual claims, as the discriminatory conduct they experienced from Cosgel arose out of Harmon's age discrimination complaint, and the subsequent hearing before the ODE, at which Fitzgerald and Knoblauch testified. The operative complaint further alleges that the defendant, through its agents, repeatedly failed to address the plaintiffs' numerous attempts at seeking relief through the defendant's remedial resources, prior to initiating this action. These allegations, taken together, raise questions of common fact regarding the existence of a common plan or design. See Lofts on Lafayette Condominium Association, Inc., v. Lancaster Gate, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-09-4027725-S, (February 17, 2010, Tobin, J.); Mascia v. Solhjoo, Superior Court, judicial district of Waterbury, Docket No. CV-05-4006397-S (February 22, 2006, Gallagher, J.) (40 Conn. L. Rptr. 784, 785-86, *6); Zahedi v. Envirotest Systems, supra, 26 Conn. L. Rptr. 512. The allegations, therefore, arise from the same transaction or series of transactions pursuant to General Statutes § 52-104 and Practice Book § 9-4. Further, purposes of judicial economy alone support the conclusion that the plaintiffs' claims are properly joined. Accordingly, the defendant's motion to strike is denied.