Opinion
No. AAN-CV-07-5003291-S
April 10, 2008
MEMORANDUM OF DECISION
The plaintiff, Amberlie Hoydic, filed a thirteen-count revised complaint in which she makes the following allegations. The plaintiff began working as a sales associate at the Genesco footwear and accessories store, known as Journeys, on September 17, 2003, in the Connecticut Post Mall in Milford, Connecticut. On September 24, 2003, she began her shift at about 5 p.m. The plaintiff and the defendant Steven Lunn, her "direct supervisor and the senior manager," at this location were the only employees present in the store. During her shift, "Lunn repeatedly physically assaulted [the plaintiff] when [he] was in close proximity to her" and verbally harassed her on numerous occasions. In response, the plaintiff told Lunn not to touch her and to "stop."
At one point "Lunn sat in a chair, spread his legs, and requested oral sex from [the plaintiff]." He repeatedly asked her "to go to the back of the [s]tore with him so that he could `show [her] a good time.'" He also bragged about the size of his penis. Despite the plaintiff's objections to his advances, Lunn "grabbed [the plaintiff] by her waist and also put his hands around her shoulders and neck." "Later in the [s]hift, Lunn grabbed [the plaintiff's] cell phone from her hand and began scrolling through the saved information on [it]." When she asked him to give it back, he "threw the phone to the ground." He then tackled the plaintiff and sat on top of her while punching her leg until it was numb. The plaintiff tried to push Lunn off her. When Lunn finally released the plaintiff, he stepped on her cell phone, damaging it. It was at this point that the plaintiff walked out of the store.
Shortly thereafter, the plaintiff came back to tell Lunn he should pay for the damage to her phone. Lunn responded by throwing her against the wall, pinning her there, putting his hands on her, and pressing his body against hers. He said to "drop it, it's not a big deal" and to "stop being a fucking bitch." After Lunn released her from the wall, the plaintiff "immediately called her household for help." When her family arrived, the plaintiff's father told Lunn to remove her from the schedule. A few days later the plaintiff filed a report with the Milford police. On "September 26, 2003, the [p]olice directed Lunn to appear at the police station, where he gave his statement." On the same day, Lunn faxed a copy of his statement to Brittany Heil, his out of state regional manager. "Genesco never contacted or interviewed [the plaintiff]" about her allegations despite its policy to "respond to any allegations of harassment . . . even after the employee resigns."
On December 1, 2003, the plaintiff filed a "complaint affidavit" with the Connecticut commission on human rights and opportunities (CHRO) and the equal employment opportunity commission (EEOC). On August 13, 2004, the CHRO issued a "release of jurisdiction," allowing the plaintiff to bring this action. On August 20, 2004, the EEOC issued a "right to sue" letter as to the plaintiff's "claims under Title VII of the Civil Rights Act of 1964, as amended."
On September 21, 2007, the defendants filed a motion to strike the following from the complaint: (1) Count three, claiming constructive discharge under the Connecticut Fair Employment Practices Act; (2) counts four and five, claiming retaliation, as to Lunn and Genesco, respectively; (3) counts eight and nine, claiming negligent infliction of emotional distress as to Lunn and Genesco, respectively; (4) counts five, seven, nine, eleven and thirteen as against Genesco, which claim retaliation under the Act, intentional infliction of emotional distress, negligent infliction of emotional distress, assault and battery against Genesco, because those counts fail to state a claim of vicarious liability; (5) claims for punitive damages as to counts eight and nine for negligent infliction of emotional distress; (6) claims for attorneys fees as to counts six, seven, eight, nine, ten, eleven, twelve and thirteen; and (7) count ten, which alleges that Lunn assaulted the plaintiff.
Prior to commencing this action, the plaintiff brought a lawsuit containing similar allegations and claims in the United States District Court of Connecticut. The court in that action granted the defendants' motion for summary judgment on the plaintiff's federal claims. Specifically, the court dismissed the plaintiff's Title VII claims with prejudice, and dismissed her state law claims without prejudice. Hoydic v. Genesco, Inc., United States District Court, Docket No. 3:04 CV 1703 (RNC) (D.Conn. March 31, 2007). In their motion to strike, the defendants do not claim that Judge Chatigny's decision should be given preclusive effect. Res judicata and collateral estoppel cannot be raised by a motion to strike. See, e.g., Terraces Apartments v. Thune-Larsen, Superior Court, judicial district of New London, Docket No. 07 5003106 (February 25, 2008, Martin, J.); cf. Practice Book § 10-50 (res judicata must be specially pleaded).
"We first set forth the applicable standard of review. A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, CT Page 6151 815 A.2d 1188(2003).
I
The defendants move to strike count three, which claims constructive discharge, on the ground that the plaintiff has not alleged facts to establish such a claim. The defendants argue that "based upon conduct occurring on one day, without contacting Genesco, Plaintiff resigned her employment. Such allegations do not suggest any deliberateness on the part of Genesco and are insufficient to state a claim for constructive discharge." The plaintiff counters, arguing that the assaultive behavior of Lunn, Genesco's highest ranking on-site employee, made her "working conditions so intolerable that [she] was forced into an involuntary resignation." The plaintiff also argues that striking count three based on the defendants' argument that there is no deliberateness is premature because she has plead deliberateness, and that "the purpose of a motion to strike is not to test the sufficiency of the evidence."
The third count is purportedly based on the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. See Jackson v. Water Pollution Control Authority, 278 Conn. 692, 693, 695, 900 A.2d 498 (2006); Lyon v. Jones, 104 Conn.App. 547, 549, 935 A.2d 201 (2007), appeal granted in part, 285 Conn. 914 (2008); Vollemans v. Wallingford, 103 Conn.App. 188, 225, 928 A.2d 586, (2007). "Subdivisions (1) and (8) of [General Statutes] § 46a-60(a) prohibit an employer or its agents from discharging, discriminating against or harassing an employee on the basis of sex." Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998).
General Statutes § 46a-60(a)(1) and (8) provide in relevant part: "(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need . . . 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 sex . . . (8) For an employer, by the employer or the employer's agent . . . to harass any employee . . . on the basis of sex. `Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."
The defendants do not contend that constructive discharge is not within the ambit of General Statutes § 46a-60(a)(1) or (8).
The plaintiff alleges in count three that "Genesco violated CFEPA by deliberately creating intolerable working conditions which forced her to involuntarily resign." This is a claim of constructive discharge due to a hostile work environment brought about by sexual harassment.
In discussing employer vicarious liability for violations of the same subdivisions of General Statutes § 46a-60 as are involved here, the Brittell court stated: "In defining the contours of an employer's duties under our state antidiscrimination statutes, [the Connecticut Supreme Court has] looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60. E.g., State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). Although the language of [Title VII of the Civil Rights Act of 1964, § 703(a)(1); 42 U.S.C. § 2000e-2(a)] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 . . . which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex . . . was to make the Connecticut statute coextensive with the federal [statute]." (Internal quotation marks omitted.) Brittell v. Dept. of Correction, supra, 247 Conn. 164. The court then discussed its understanding of federal law of employer vicarious liability for constructive discharge due to a hostile work environment brought about by sexual harassment under Title VII of the Civil Rights Act of 1964.
Genesco claims it cannot be held liable for the plaintiff's constructive discharge because it did not act "deliberately." Some earlier cases state that the employer must have deliberately acted to create an intolerable working environment. See Lombardo v. Oppenheimer, 701 F.Sup. 29, 30 (D.Conn. 1987). "Deliberateness exists only if the actions complained of were intended by the employer as an effort to force the employee to quit." (Internal quotation marks omitted.) Leson v. Ari of Connecticut, Inc., 51 F.Sup.2d 135, 143 (D.Conn. 1999).
The word "deliberate" or "deliberately" nowhere appears in either the federal or state statute. Rather, the analysis to determine employer vicarious liability for constructive discharge due to a hostile work environment brought about by sexual harassment under Title VII of the Civil Rights Act of 1964 was enunciated in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and subsequently clarified in Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
In Suders, the plaintiff was subjected to sexual harassment similar to that alleged here. Although the plaintiff in Suders resigned, she brought suit alleging that because of a hostile work environment, she was constructively discharged. The United States Supreme Court held: "To establish hostile work environment, plaintiffs like Suders must show harassing behavior sufficiently severe or pervasive to alter the conditions of [their] employment . . . Beyond that, we hold, to establish `constructive discharge,' the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions." (Citations omitted; internal quotation marks omitted.) Pennsylvania State Police v. Suders, supra, 542 U.S. 133-34.
The facts alleged in the plaintiff's complaint easily satisfy the objective requirements for hostile work environment constructive discharge. The defense to vicarious liability is available to Genesco since it did not take an official action, also referred to as a "tangible employment action," Id., 143-46; against the plaintiff. Nevertheless, it cannot be determined from the complaint whether it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment. Even assuming it did, it cannot be determined from the pleadings whether the plaintiff unreasonably failed to avail herself of that apparatus, although there appears to be no question that she did not employ it. Accordingly, the defendants' motion to strike count three is denied.
II
The defendants move to strike the plaintiff's claims of retaliation in counts four and five on the grounds that the plaintiff has "failed to allege that she engaged in protected activity, or that she suffered an adverse employment action, which are predicate acts for a claim of retaliation." The plaintiff counters that "she engaged in protected activity because she rebuffed [Lunn's] advances . . ." and that the defendants "retaliated against [her] for opposing discriminatory employment practices."
General Statutes § 46a-60(a)(4) provides: "(a) It shall be a discriminatory practice in violation of this section . . . (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise 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." (Emphasis added.)
"To establish a prima facie case of retaliation, an employee must show [1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Hebrew Home Hospital, Inc. v. Brewer, 92 Conn.App. 762, 770, 886 A.2d 1248 (2005).
The defendants first argue that not only does the complaint fail to allege that the plaintiff "filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84," but the complaint also fails to allege any other protected activity. "A protected activity is an action taken to protest or oppose statutorily prohibited discrimination. These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management . . . Sumner v. U.S. Postal Service, 899 F.2d 203, 209 ([2d] Cir. 1990); see also [General] Statutes § 46a[-60](a)(4)." Majewski v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 03 0406893 (January 20, 2005, Arnold, J.).
The plaintiff replies that her protests to Lunn to "stop" amounted to protected activity. She relies on the district court opinion in Little v. National Broadcasting Co., 210 F.Sup.2d 330 (S.D.N.Y. 2002), in which the court stated that "rejecting sexual advances from an employer does constitute protected activity. The prohibition against retaliation is intended to protect employees who resist unlawful workplace discrimination . . . Sexual harassment by an employer or supervisor is an unlawful practice, and an employee's refusal is a means of opposing such unlawful conduct." (Citation omitted; internal quotation marks omitted.) Id., 386.
The defendant relies on opinions from the United States Court of Appeals for both the Ninth and Eleventh Circuits, as well as some United States District Court opinions that were decided previous to Little v. National Broadcasting Co., supra, 210 F.Sup.2d 330. See Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir. 1997); Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978); Del Castillo v. Pathmark Stores, Inc., 941 F.Sup. 437, 439 (S.D.N.Y. 1996) (involving the harassment of an employee by her supervisor, in which the court held that to allow the plaintiff's claim would mean "every harassment claim would automatically state a retaliation claim as well"). Rashid v. Beth Israel Medical Center, United States District Court, Docket No. 96 CIV 1833 (AGS) (S.D.N.Y. October 2, 1998) (involving a laboratory supervisor who sexually harassed an employee, in which the court held that a retaliation claim would duplicate the proper claim for quid pro quo sex discrimination); Bampoe v. Coach Stores, Inc., 93 F.Sup.2d 360, 372 (S.D.N.Y. 2000) (holding that a "mere statement to the alleged antagonist, albeit a supervisor employed by a defendant, that a comment was inappropriate does not rise to the level of protected activity for a retaliation claim." (Internal quotation marks omitted.)). Notably, neither Little v. United Technologies, Carrier Transicold Division, supra, 103 F.3d 956, nor Silver v. KCA, Inc., supra, 586 F.2d 138, involved a supervisor harassing an employee and, therefore, are inapposite. As for the district court opinions, "[t]here is a split of authority among federal courts regarding whether the refusal to submit to sexual advances constitutes protected activity. Several courts have held that the refusal is not protected activity, while some have held that it is. [Courts] holding that it [is not protected activity] use two major rationales. The first is that if the denial of sexual advances was a protected activity then every claim of quid pro quo sexual harassment would automatically state a retaliation claim as well. The second rationale is that merely declining sexual advances is insufficient to place the alleged harasser on notice that the employee is opposing statutorily prohibited discrimination." Majewski v. Board of Education, supra, Superior Court, Docket No. CV 03 0406893.
The Ninth Circuit case, Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978), involved complaints by one employee to a coworker about a coworker's conduct. A supervisor's conduct was not the initial problem. "Such opposition does not fall within the protection of the Act. A single unauthorized act of discrimination by a co-worker has never been held to justify opposition in the sense of protecting a protesting employee from employer discipline." (Internal quotation marks omitted.) Id., 142.
"The district courts in this Circuit are split on this issue. See Rashid v. Beth Israel Med Ctr., No. 96 Civ. 1833, 1998 WL 689931, at *2 (S.D.N.Y. October 2, 1998) (Schwartz, J.) (noting district split); Del Castillo v. Pathmark Stores, Inc., 941 F.Sup. 437, 438-39 (S.D.N.Y. 1996) (Rakoff, J.) (holding that refusal to submit to sexual advances does not constitute protected activity because [i]f it were otherwise, every harassment claim would automatically state a retaliation claim as well.) . . .
"The majority of courts in other districts have held that an employee's refusal to submit to sexual advances constitutes protected activity. See Black v. City County of Honolulu, 112 F.Sup.2d 1041, 1048 (D.Hi. 2000) (collecting cases); see also Fleming v. South Carolina Dept. of Corrections, 952 F.Sup. 283, 288 (D.S.C. 1996) (refusal of sexual advances constitutes protected activity); Farrell v. Planters Lifesavers Co., 22 F.Sup.2d 372, 392 (D.N.J. 1998), aff'd in part, reversed in part on other grounds, 206 F.3d 271 (3d Cir. 2000); Armbruster v. Epstein, No. Civ. A. 96-CV-1059, 1996 WL 289991, at *3 (E.D.Pa. May 31, 1996) (same); Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F.Sup. 1155, 1167 (W.D.Tenn.1987) (same); EEOC v. Domino's Pizza, 909 F.Sup. 1529, 1533 (M.D.Fla. 1995) (same); but see Fitzgerald v. Henderson, 36 F.Sup.2d 490, 499 (N.D.N.Y. 1998), aff'd in part, reversed in part on other grounds, 251 F.3d 345 (2d Cir. 2001); Speer v. Rand, No. 95 C 6265, 1996 WL 667810, at *8 n. 4 (N.D.Ill. November 1996), aff'd on other grounds, 123 F.3d 658 (7th Cir. 1997)." (Citation omitted; internal quotation marks omitted.) Little v. National Broadcasting Co., supra, 210 F.Sup.2d 385-86.
I find both rationales unpersuasive. Saying "no" to sexual harassment, and certainly to sexual assault, constitutes "oppos[ing] any discriminatory employment practice" within the ambit of General Statutes § 46a-60(a)(4). Federal courts have long held that "the protection afforded by Title VII against retaliation, 42 U.S.C. § 2000e-3(a), is not limited to individuals who have filed formal complaints, but may also extend to informal protests. Sias v. City Demonstration Agency, 588 F.2d 692, 694-96 (9th Cir. 1978); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981); EEOC v. Kallir, Philips, Ross, Inc., 401 F.Sup. 66, 71-73 (S.D.N.Y. 1975) (Weinfeld, J.)." Graham v. Texasgulf, Inc., 662 F.Sup. 1451, 1462 (D.Conn. 1987), aff'd CT Page 6156 842 F.2d 1287 (2d Cir. 1988); accord, Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1015 (10th Cir. 2004); Jeseritz v. Potter, 282 F.3d 542, 548 (8th Cir. 2002); Rollins v. State of Florida Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (per curiam); Knox v. Portland, United States District Court, Docket No. 06 459 HA (D.Or. March 5, 2008); Truskoski v. ESPN, Inc., 823 F.Sup. 1007, 1013 (D.Conn. 1993); Channon v. United Parcel Service, Inc., 629 N.W.2d 835, 862 (Iowa 2001); but see Durkin v. Chicago, 341 F.3d 606, 614-15 (7th Cir. 2003). "Other courts have held that the refusal to submit to sexual advances does constitute protected activity." Majewski v. Board of Education, supra, Superior Court, Docket No. CV 03 0406893. While the context of any sexual advance and the plaintiff's protest to it may ultimately prove determinative of the question, this court holds that the plaintiff has sufficiently alleged that she engaged in protected activity by pleading that she demanded Lunn cease his sexual advances and attacks on her.
The defendants also claim that there is no allegation that they took adverse employment action against the plaintiff. In Burlington Northern Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006), the court established the test for what the plaintiff must prove to establish discriminatory or adverse employment action. "[The] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." (Internal quotation marks omitted.) Burlington Northern Santa Fe Railway Co. v. White, supra, 548 U.S. 126 S.Ct. 2415. For present purposes, the plaintiff need not prove anything. She must merely allege it.
The complaint alleges that "in response to the [various] incidents of assault and physical and verbal harassment, [the plaintiff] consistently told Lunn" to stop and not to touch her. The complaint further alleges that "[a]s a result of [her] opposition, Lunn retaliated against [her] by refusing to cease his harassment . . . increasing both the frequency and severity of his harassment . . ."
As the defendants' argument suggests, it is troubling that the acts alleged to constitute the offending behavior, the protected activity and the adverse employment action are conflated into one episode that occurred during one shift. If so, it would seem that a claim of adverse employment action here would be merely subterfuge; that is, the offensive, even criminal, conduct would be simply that, which no reasonable employee would find dissuasive of a charge of discrimination. However, on a motion to strike, the court is dealing with a matter of pleading, not proof. The plaintiff has adequately alleged adverse employment action. The motion to strike counts four and five are denied.
III
The defendants move to strike counts eight and nine which claim that Lunn and Genesco, respectively, negligently inflicted emotional distress on the plaintiff, on the grounds that the plaintiff has failed to allege that Lunn or Genesco "engaged in unreasonable conduct in the termination process." The defendants argue, that in the employment setting, courts limit negligent infliction of emotional distress claims to the termination process. The defendants assert that even if this was a case involving constructive discharge, the review is limited to events that happened during the resignation process or thereafter. The plaintiff counters by arguing that negligent infliction of emotional distress is available to an employee who alleges that her employment ended by way of constructive discharge.
An employee "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002).
After Lunn's second assault of the day, the plaintiff's father told Lunn not to put his daughter on the schedule. At no point did anyone discuss termination. In fact, the plaintiff herself never discussed it. There are no facts alleging Genesco or Lunn did anything to the plaintiff during, or after the termination process. Nevertheless, the plaintiff argues her claim for constructive discharge fulfills the termination requirement. In support of her claim she cites Presley v. Pepperidge Farm, Inc., 356 F.Sup.2d 109, 140 (D.Conn. 2005), in which the court stated: "Courts have . . . held that allegations of constructive discharge may qualify as termination under Perodeau. Pecoraro v. New Haven Register, 344 F.Sup.2d 840, 846 (D.Conn. 2004); Grey v. Norwalk Board of Education, 304 F.Sup.2d 314, 332 (D.Conn. 2004)." The plaintiff omits the sentence in Presley that follows: "In a case of constructive discharge, courts will consider only the incidents which occurred during the plaintiff's resignation process or thereafter in evaluating a negligent infliction of emotional distress claim." Id., 140. See also Michaud v. Farmington Community, Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) (33 Conn. L. Rptr. 206); Wilcox v. Yale University, Superior Court, judicial district of Waterbury, Docket No. CV 02 0174796 (August 24, 2005, Eveleigh, J.).
There was no "termination process" here, nor an allegation as to a formal resignation. Thus, there are no facts alleging any wrongdoing by either Lunn or Genesco during a termination process. At most, the plaintiff's father told Lunn to remove the plaintiff from the schedule. Nothing untoward occurred thereafter. The motion to strike counts eight and nine is, therefore, granted.
IV
The defendants next move to strike the fifth, seventh, ninth, eleventh and thirteenth counts of the complaint on the ground that the plaintiff "fails to allege a claim for vicarious liability against Genesco for the alleged tortious acts of Mr. Lunn." The defendant asserts that Lunn was acting outside the scope of his employment, his actions were not in furtherance of Genesco's business and the complaint fails to allege "facts from which a fact finder could conclude Genesco endorsed Lunn's alleged conduct." The plaintiff argues in response that respondeat superior applies. She asserts that a fact specific inquiry into Lunn's motives is required in order to determine if he believed he was acting on behalf of Genesco while committing the alleged acts.
A.
The fifth count alleges that Genesco is liable pursuant to General Statutes § 46a-60(a)(4). As discussed supra, claims under this statute are analyzed in the same manner as Title VII claims. Vasquez v. Claire's Accessories, Inc., 392 F.Sup.2d 342, 349 (D.Conn. 2005). Under Title VII, an employer is subject to vicarious liability to a victimized employee, for an actionable harm committed by a supervisor with immediate authority over the employee, subject to certain special defenses. Pennsylvania State Police v. Suders, supra, 542 U.S. 129; Faragher v. Boca Raton, supra, 524 U.S. 775; Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. 742. The court can rarely grant a motion to strike a complaint based on an as yet unpleaded special defense. Cf. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) ("In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied.").
B.
Unlike count five, the seventh, ninth, eleventh and thirteenth counts allege solely common-law causes of action and thus are not governed by the federal Suders-Ellerth-Faragher doctrine but, rather, by state common law. The seventh count asserts a claim for intentional infliction of emotional distress; the ninth count a claim for negligent infliction of emotional distress; the eleventh count a claim for assault; and the thirteenth count a claim for battery. In addition to incorporating the facts recounted supra, each of these counts alleges that Lunn was acting within the scope of his employment and in furtherance of Genesco's business.
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990). "In such cases it is, and must usually remain, a question depending upon the degree of deviation and all the attendant circumstances. In cases where the deviation is slight and not unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master's business. So too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his own." Ritchie v. Waller, 63 Conn. 155, 161, 28 A. 29 (1893). Thus, "there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc. supra, 216 Conn. 207. Connecticut is a fact pleading state, and here the plaintiff's amended complaint provides the facts.
"[I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply . . . Wells v. Walker Bank Trust Co., 590 P.2d 1261, 1264 (Utah 1979) (if employee's actions are not authorized by his employer and he is acting for his own interests and not in furtherance of his employer's business, employer cannot be held vicariously liable for employee's actions) . . .
"The factual conclusion that [the employee's intentional acts] occurred during business hours, however, is not sufficient to support the conclusion that [the employee] was acting within the scope of his employment . . . A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 208-10; see Turner v. American District Telegraph Messenger Co., 94 Conn. 707, 713, 110 A. 540 (1920) ("The test is to be found in the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do."). Of particular relevance to the ninth count here, the Supreme Court has stated that "[t]his principle applies whether the tort was wilful or negligent." Rappaport v. Rosen Film Delivery System, Inc., 127 Conn. 524, 526, 18 A.2d 362 (1941). Thus, if an intentional tort is committed by an employee to "vent his own spleen"; (internal quotation marks omitted.) Sheridan v. Desmond, 45 Conn.App. 686, 695, 697 A.2d 1162 (1997); or "upon a frolic of his own;" (internal quotation marks omitted.) Bradlow v. American District Telegraph Co., 131 Conn. 192, 196, 38 A.2d 679 (1944); the principal is not liable.
In response to the defendants' motion to strike the plaintiff argues that the issue of vicarious liability cannot be disposed of on a motion to strike but requires a "fact-specific inquiry." She quotes Kilduff v. Cosential, Inc., United States District Court, Docket No. CIV. 3:02CV651 (PCD) (D.Conn. February 25, 2003), where the court stated: "Regardless of the nature of the intentional tort alleged . . . it would be contrary to Connecticut law to adopt a per se rule against vicarious liability in cases involving sexual assault. Some factual inquiry is mandated by Connecticut law, and the matter will not be decided absent allegations describing details of [the defendant supervisor's] position and motives for his conduct, motives that may extend beyond the obvious motive of self-gratification." (Emphasis in original.) The plaintiff also argues that to grant the defendants' motion now would be premature and that "[i]t would only deny Plaintiff the opportunity to conduct meaningful discovery into the motivation behind Defendant."
Analysis of the plaintiff's argument is facilitated by an examination of Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997). In Mullen, the plaintiff sued a religious order whose priest engaged in sexual relations with the plaintiff during counseling sessions. The priest had weekly duties at a local parish but was also a psychologist with a private practice, the proceeds of which were contributed to the religious order in full in accordance with his vow of poverty. He also served as the staff psychologist for the religious order, providing counseling during religious retreats. The priest began counseling the plaintiff. He sexually exploited her during his church-sanctioned pastoral-psychological counseling sessions, as well as while he staffed church retreats. In reversing the granting of summary judgment for the religious order, the Appellate Court held that a trier of fact could reasonably determine that the "sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business." Id., 765-66. This outcome was based partially on an affidavit of a clinical psychologist who stated that sexual relationships often mistakenly arise out of emotional therapeutic relationships because of the transference-counter transference phenomenon. In addition, the court noted that the order "did benefit monetarily from [the priest's] misguided counseling of the plaintiff." Id., 770.
"Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past . . . What the notion of transference assumes is that as therapy develops, and if therapy is working, the client comes to either consciously or unconsciously, or both, regard the therapist as a child might regard the parent . . . [W]hat happens when therapy is working . . . is that this transference relationship grows so that the client comes to experience the therapist as a powerful, benevolent parent figure . . . Transference is crucial to the therapeutic process because the patient unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents . . . [I]t is though the creation, experiencing and resolution of these feelings that [the patient] becomes well . . . Understanding of transference forms a basic part of the psychoanalytic technique . . . The proper therapeutic response is countertransference, a reaction which avoids emotional involvement and assists the patient in overcoming problems . . . Courts have uniformly regarded mishandling of transference as malpractice or gross negligence." (Citations omitted; internal quotation marks omitted.) Simmons v. United States, 805 F.2d 1363, 1364-65 (9th Cir. 1986).
This case is unlike Mullen. Genesco is a footwear and accessories store. First, the plaintiff was Lunn's fellow employee, not a patient-parishioner. Second, the complaint here alleges not a "relationship" as in Mullen, but rather, inter alia, sexual harassment and attempted and actual sexual assault. Most importantly, Lunn's alleged sexual harassment and sexual assaults cannot possibly be construed as a misguided attempt to do anything remotely related to his employment. The instant case is more analogous to Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988) and Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn. 1995), in that the alleged sexual actions of the employee are best characterized as criminal rather than "misguided."
Therefore, with respect to the allegations that Lunn solicited the plaintiff for sex (paragraphs 18 and 19), the context alone belies any suggestion that Lunn could possibly have been "actuated at least in part by a purpose to serve a principal . . ." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 210. No amount of discovery can bring such conduct within the scope of employment of a retail clothing store. There is a point beyond which the law will not permit the employee's subjective motivation to impose vicarious liability on the employer. See Bradlow v. American District Telegraph Co., supra, 131 Conn. 196, (no vicarious liability where employee sought "to carry out the mad purpose of an insane delusion"). "A sexual assault . . . is the type of assault that is so excessive and so dangerous as to be totally without responsibility or reason and done for personal reasons, that it was not done to perform the business of the employer and thus is not within the scope of employment. See CT Page 6162 Costa [v. Roxborough Memorial Hospital, 708 A.2d 490, 493 (Pa.Super.Ct. 1998)]." (Emphasis added; internal quotation marks omitted.) Belt v. Geo Group, Inc., United States District Court, Docket No. 06 1210 (E.D.Pa. April 4, 2007); see Frazier v. Badger, 361 S.C. 94, 100-04, 603 S.E.2d 587 (2004); Horodysky v. Karanian, 32 P.3d 470 (Colo. 2001). Scheer v. State Farm Fire And Casualty Co., 708 So.2d 312 (Fla.App. 1998), cert. denied 719 So.2d 893 (Fla. 1998); Farmers Ins. Group v. Santa Clara County, 11 Cal. 4th 992, 906 P.2d 440, 47 Cal. Rptr.2d 478 (Cal. 1995) (lewd propositioning and offensive touching by deputy sheriff is not within scope of employment even when misconduct occurs at place and during time of employment).
The remaining allegations of Lunn's (non-sexual) wrongdoing, are of a different ilk. Context and exploration of Lunn's motivation — if he in fact committed such acts — could be relevant to the issue of vicarious liability. Although "[t]he general rule is that sexual harassment by a supervisor is not conduct within the scope of employment"; Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. 757; Ellerth and other cases discuss instances where, short of sexual assault, it may be within the scope of employment, even at common law. See also Ohio Government Risk Management Plan v. Harrison, 115 Ohio St.3d 241, 874 N.E.2d 1155 (2007); Ocana v. American Furniture Co., 135 N.M. 539, 552, 91 P.3d 58 (2004); Farmers Ins. Group v. Santa Clara County, supra, 11 Cal.4th 1017-18 (collecting cases); but see Northern Ins. Co. of New York v. Morgan, 186 Ariz. 33, 918 P.2d 1051 (App. 1995). The court agrees with the plaintiff that it would not be proper for the court to dispose of these remaining allegations of non-sexual wrongdoing on a motion to strike. For this reason, the motion to strike the fifth, seventh, ninth, eleventh and thirteenth counts is denied.
However, the ninth count is stricken on other grounds. See part III, supra.
V
Practice Book § 10-39 "allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). The defendants move to strike the plaintiff's claim for punitive damages for her common-law claims of negligent infliction of emotional distress in counts 8 and 9. Since those counts have been ordered stricken in part III, supra, the claims for relief incident to those counts also are stricken.
The defendants also move to strike the plaintiff's claim for attorneys fees. The court finds the defendant's arguments unpersuasive.
In conclusion, the defendants' motion to strike is denied as to counts three, four, five, seven, eleven and thirteen, and the claims for attorneys fees. The motion is granted as to counts eight and nine.