Opinion
No. HHD-CV-05-4011301S
April 28, 2006
MEMORANDUM OF DECISION
In his complaint, the plaintiff asserts claims for libel and slander in count one, for negligent infliction of emotional distress in count two, and for intentional infliction of emotional distress in count three. He alleges that he and the defendant were coworkers in the state of Connecticut department of children and families (DCF) and that he served as the defendant's supervisor from May 2004 until January 2005. In November and December of 2004 and January of 2005, the defendant "filed a number of complaints and writings and made a number of verbal statements to third parties and personnel at the State of Connecticut Department of Children and Families regarding alleged acts of misconduct by the plaintiff." (Emphasis added.) The plaintiff claims that the defendant repeatedly uttered and wrote sexual harassment, workplace harassment and workplace retaliation complaints against the plaintiff which were untrue, libelous and slanderous and alleged false and unsubstantiated claims. He goes on to allege that the statements were filed primarily for retaliation and to cause him mental, physical and emotional distress, and in an attempt to divert attention from the defendant's poor work performance.
The defendant has moved to dismiss the complaint for lack of subject matter jurisdiction on the grounds of absolute immunity which "attaches to a persons' involvement in quasi-judicial proceedings." She has filed a memorandum in support and an affidavit of Sharon Y. Gaddy, assistant director of affirmative action office for the state of Connecticut, DCF, describing the internal discrimination procedures outlined in DCF Policy Manual. The plaintiff has filed a memorandum in opposition.
The first issue the court must address is a procedural one. The plaintiff asserts that the defendant's claim of absolute immunity is premature. He asserts that absolute immunity must be raised as a special defense and decided in the context of a summary judgment motion as was the procedure employed in Craig v. Stafford Construction, Inc., 271 Conn. 78, 82, 856 A.2d 372 (2004). Whether a motion to dismiss is the "proper procedural vehicle by which to raise absolute immunity" has not been decided by our appellate courts. See Carrubba v. Moskowitz, 274 Conn. 533, 537, 877 A.2d 773 (2003).
On this issue, this court agrees with and adopts the reasoning expressed in Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) ( 40 Conn. L. Rptr. 537), finding support in the Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005). In Chadha, our Supreme Court, considering whether the denial of a motion for summary judgment based on absolute immunity is a final judgment for purposes of appeal, reasoned that "the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state. Thus, for the same reason that the rejection of a colorable claim of sovereign immunity gives rise to an immediately appealable final judgment — that is, to protect against the threat of suit — so, too, does the rejection of a colorable claim of absolute immunity based upon participation in judicial and quasi-judicial proceedings." Id., 787. The rationale that the sovereign immunity doctrine "protects against suit as well as liability — in effect, against having to litigate at all . . . also is applicable to the common-law immunity afforded participants in judicial and quasi-judicial proceedings." (Internal quotation marks omitted.) Id., 786. Such reasoning supports use of a motion to dismiss as a proper procedural vehicle by which to raise absolute immunity because, at an early stage in the proceedings, it serves to protect against discovery and depositions — in effect, against having to litigate. On that basis, this court will entertain the motion to dismiss on the grounds of absolute immunity.
The next issue is whether an investigation by the DCF affirmative action office of complaints of sexual and workplace harassment constituted a quasi-judicial proceeding, thereby affording absolute immunity to the complainant whose claim gave rise to the investigation.
"In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein." Field v. Kearns, 43 Conn.App. 265, 271, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). "The effect of an absolute privilege in a defamation action . . . is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 788. The policy underlying the privilege is "that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Id., 786. "There is, of course, no really effective civil remedy against perjurers; that lack is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say." (Internal quotation marks omitted.) Preston v. O'Rourke, 74 Conn.App. 301, 311, 811 A.2d 753 (2002).
"The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986); Preston v. O'Rourke, supra, 74 Conn.App. 311. For example, the protection of absolute immunity extends to statements made in the course of an investigation of a complaint which leads to the quasi-judicial proceedings of a police internal affairs hearing. Craig v. Stafford Construction, Inc., supra, 271 Conn. 93.
"In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published . . . The privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged." (Citation omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 575, 606 A.2d 693 (1992). The plaintiff's complaint when read in a light most favorable to him raises the question of "to whom the matter [was] published." (Internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 335-36, 827 A.2d 708 (2003). "Whether a communication is published in the course of a judicial proceeding, so as to obtain the benefit of the absolute privilege, is a question of law for the court to decide . . ." Id., 334. In McManus, the Appellate Court, noting that some superior courts treat that question as one of fact, took the "opportunity to clarify that `[w]hether a defamatory communication implicates an interest worthy of protection is a question of law . . .' Bleich v. Ortiz, [ 196 Conn. 498, 501, 493 A.2d 236 (1985)]. It is, therefore, the courts' duty to determine, on the basis of the underlying facts, whether a particular communication was published in the course of a judicial proceeding so that the benefit of the absolute privilege applies." McManus v. Sweeney, supra, 78 Conn.App. 334 n. 6.
In deciding a motion to dismiss for lack of subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. However, "[w]hen issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Cross v. Hudon, 27 Conn.App. 729, 733, 609 A.2d 1021 (1992).
Accordingly, before ruling on the defendant's motion to dismiss this action, the parties are ordered to appear before this court for an evidentiary hearing to argue and/or present evidence concerning the plaintiff's allegation in Paragraph 5 of the complaint that "the defendant filed a number of complaints and writings and made a number of verbal statements to third parties and personnel at the State of Connecticut Department of Children and Families regarding alleged acts of misconduct by John Mattera."
As to the causes of action set forth in counts two and three for intentional and negligent infliction of emotional distress, insofar as they are based on statements made in the course of a judicial or quasi-judicial proceeding and have some relation thereto, they are subject to dismissal. "[T]he absolute immunity afforded a party's conduct in a defamation claim [cannot] be `maneuvered around' by recasting the claim . . ." Rioux v. Barry, supra, 40 Conn. L. Rptr. 540, quoting Medphone Corp. v. Denigris, United States District Court, Docket No. Civ. 92-3785(HLS), 1993 (D.N.J. July 28, 1993).
A hearing will be scheduled by the caseflow office.
So ordered.