Opinion
No. CV 02-039 78 29 S
March 10, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#124)
On November 7, 2002, the plaintiff, Mirelle Labbe, filed an eight-count complaint against the defendant, St. Vincent's Medical Center, for damages she sustained as a result of her employment with the defendant. In her complaint, the plaintiff alleges the following pertinent facts: She has been employed by the defendant since November 1, 1989. At some point she was diagnosed with the human immunodeficiency virus (HIV), which she claims the defendant improperly disclosed. On October 18, 1999, she injured her back while at work and became disabled. Consequently, she missed time away from work for which she received workers' compensation benefits. As a result of filing a claim for workers' compensation benefits, the defendant removed Labbe from her position as a certified nursing assistant, did not reinstate her to a full-time nursing assistant position, suspended her from employment, and failed to properly and equally apply employment policies and procedures to her.
Based on these facts, the plaintiff alleged the following causes of action: (1) violation of General Statutes § 19a-581 et seq., for improperly disclosing her HIV-related information; (2) invasion of privacy; (3) disability discrimination in violation of General Statutes § 46a-60(a)(1); (4) race, national origin, ancestry and color discrimination in violation of § 46a-60(a)(1); (5) retaliation for exercising workers' compensation rights in violation of General Statutes § 31-290a; (6) breach of contract; (7) breach of the implied covenant of good faith and fair dealing; and (8) negligent misrepresentation.
The court, Doherty, J., on January 13, 2004, granted the defendant's motion to dismiss counts three and four for lack of subject matter jurisdiction because the plaintiff did not obtain a release of jurisdiction under the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq., prior to bringing suit in Superior Court. Therefore, counts three and four are not discussed in this decision.
The defendant filed a motion for summary judgment on July 11, 2005, accompanied by a memorandum of law in support thereof. It also filed a supplemental memorandum on December 5, 2005. In support of its motion, the defendant submitted the following evidence: (1) the signed and sworn affidavit of Tess Kryspin, the physician director of St. Vincent's employee occupational health department. Attached to the affidavit are copies of sections from the defendant's employee occupational health policy; (2) the signed and sworn affidavit of Linda Russell, director of employee occupational health for the defendant; (3) the signed and sworn affidavit of Faith Argraves, a human resource representative for the defendant. Attached to the affidavit is a copy of the human resources manual for managers of St. Vincent's Medical Center that was in effect in 2000, the plaintiff's typing test results, and a page from the defendant's employee handbook; and (4) the signed and sworn affidavit of Lisa Zarny, who was the director of food and nutrition for the defendant in 2001.
At oral argument on November 21, 2005, the court requested that the defendant provide information as to whether the plaintiff signed an acknowledgment of receipt of information about the relationship between the defendant's emergency department and its employee occupational health department. In response, the defendant provided a supplemental memorandum of law and a copy of an acknowledgment signed by the plaintiff dated February 21, 1998.
The plaintiff filed a memorandum in opposition on November 18, 2005. In support of her motion, the plaintiff submitted the following evidence: (1) a copy of the signed and sworn affidavit of the plaintiff; (2) a copy of a letter dated February 16, 2000, from James R. Wittstein, Nurse Manager; (3) a copy of a letter dated August 3, 2000, from Wittstein regarding the plaintiff's request for a two-month medical leave of absence; (4) copies of sections from the defendant's employee handbook; and (5) a copy of an excerpt from Faith Argraves' deposition testimony.
Both the defendant and the plaintiff provide unauthenticated documents to support their motions. These documents include: Copies of sections from the defendant's employee occupational health policy; a copy of the defendant's human resources manual; the plaintiff's typing test results; the plaintiff's signed acknowledgment that she received a copy of the defendant's employee handbook dated February 21, 1998; and sections from the defendant's employee handbook. "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Other Superior Courts have considered unauthenticated documents in deciding a motion for summary judgment when both parties relied on the same documents and neither party objected to the other party's use of the documents. See Scully v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 05 4010763 (September 13, 2005, Booth, J.); and Iorio v. Sherman IGA, Inc., Superior Court, judicial district of Waterbury, Docket No. CV01 0162720 (January 7, 2005, Matasavage, J.). Therefore this Court has considered the unauthenticated documents both parties have relied upon since neither party objected to the other's use of the documents.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
I. VIOLATION OF GENERAL STATUTES § 19a-581 ET SEQ.
The defendant moves for summary judgment on the grounds that the plaintiff cannot establish the elements of each of her claims as a matter of law. It argues that the plaintiff's claim in count one fails because General Statutes § 19a-583 imposes liability on willful disclosures made outside the confines of a healthcare facility, and not when a physician reviews a person's medical records for treatment purposes. The plaintiff counters that material facts exist as to whether the defendant improperly disclosed the plaintiff's medical condition because the director of employee occupational health did not treat the plaintiff for her work-related injury or her HIV.
Section 19a-583 provides in relevant part: "(a) No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information, except to the following: (1) The protected individual . . . (4) A health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected individual . . . or when confidential HIV-related information is already recorded in a medical chart or record and a health care provider has access to such record for the purpose of providing medical care to the protected individual . . ." Subsection (b) of § 19a-583 provides that "[n]o person, except the protected individual, his legal guardian or a person authorized to consent to health care for such individual, to whom confidential HIV-related information is disclosed may further disclose such information, except as provided in this section and sections 19a-584 and 19a-585."
General Statutes § 19a-590 provides in relevant part: "Any person . . . who wilfully violates any provision of [Chapter 386x, AIDS testing and medical information] shall be liable in a private cause of action for injuries suffered as a result of such violation. Upon a finding that an individual has been injured as a result of such violation, damages shall be assessed in the amount sufficient to compensate said individual for such injury." (Emphasis added.)
The defendant further argues that even if the plaintiff's medical condition was disclosed when the physician director of the employee occupational health department received her medical chart, it was not a wilful disclosure under § 19a-590. In Doe v. Marselle, 236 Conn. 845, 859, 675 A.2d 835 (1996), the court analyzed the definition of wilful in § 19a-590 and reasoned that "[a] definition of wilful that would require a plaintiff to prove that confidentiality was breached with the intent to cause injury would do nothing to advance the laudable goals of the [sponsors of the AIDS legislation]." The court interpreted "wilful to mean a knowing disclosure of confidential HIV-related information." Id., 860. The court further stated that "[h]ad the term wilful not been used, persons would be liable for inadvertent disclosures or nonvolitional acts. By establishing liability only for wilful violations, the legislature indicated that inadvertent violations would not be actionable." Id.
The court in Doe, however, did not define a "knowing" disclosure. In Pascarelli v. Corning Clinical Laboratories, Inc., Superior Court, judicial district of Danbury, Docket No. 0325312 (March 25, 1997, Moraghan, J.) ( 19 Conn. L. Rptr. 82), the court stated "[a]lthough this court's research has failed to discover a definition of knowing in a civil context in our state's decisional law, knowing has been defined in Webster, Third New International Dictionary, as with awareness and having cognizance or awareness." (Internal quotation marks omitted.) Id.
In support of her objection to the defendant's motion for summary judgment, the plaintiff submitted her signed and sworn affidavit. The plaintiff attests that she received treatment from the defendant's emergency room when she injured her back while at work and told emergency room personnel that she was taking medication for HIV. The plaintiff further attests that the physician director of employee occupational health never treated her for any medical condition and that she received her confidential HIV-related information from the emergency room staff. She also testified that she does not know of any other disclosures made by the defendant.
In support of its motion for summary judgment, the defendant submits the signed and sworn affidavit of Tess Kryspin, the physician director of the defendant's employee occupational health department. In her affidavit, Kryspin attests that employee occupational health is responsible for the medical oversight of all work-related injuries and workers' compensation claims. As the physician director of employee occupational health, Kryspin averred that she provides "diagnosis, clinical consult and treatment of employee conditions arising while on duty and of all occupationally related injuries and illnesses of the defendant's employees." She stated that she received a copy of a report from "within the Medical Center" concerning the plaintiff, which indicated that the plaintiff took medication for HIV. Kryspin also attests that she met with the plaintiff and discussed with her that "HIV can have a compounding effect on unrelated injuries including back injuries such as the one [the plaintiff] had suffered."
Kryspin further attests that employee occupational health "maintains medical records related to employees injured and/or treated while on duty as well as records to all workers' compensation illnesses, injuries and claims." Kryspin also attests that she received a copy of the plaintiff's emergency room report in accordance with her duties as the physician director of employee occupational health.
The defendant has satisfied its burden of establishing that no genuine issues of material fact exist as to whether the defendant improperly disclosed the plaintiff's HIV-related information. Since the plaintiff's HIV-related information was recorded in her emergency room record, and Kryspin had access to her record for the purpose of providing medical diagnosis and treatment to employees injured on the job as the physician director of employee occupational health, the disclosure was not a wilful disclosure under §§ 19a-583 and 19a-590. Although the defendant's emergency department disclosed the plaintiff's HIV-related information to the employee occupational health department, the disclosure was in compliance with the defendant's policy for handling work-related injuries and was a nonvolitional act. Therefore, as a matter of law, summary judgment should be and is hereby granted for the defendant on the plaintiff's first count.
II. INVASION OF PRIVACY
The defendant argues that the plaintiff cannot establish a claim for invasion of privacy because the plaintiff had no reasonable expectation of privacy concerning Kryspin's access to her medical report. The plaintiff counters that material facts exist as to whether the defendant violated her right to privacy when the defendant's emergency room personnel disclosed the plaintiff's medical condition to the defendant's employee occupational health department.
"In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 126-28, 448 A.2d 1317 (1982), the Supreme Court established a cause of action for invasion of privacy and adopted the four categories as defined in § 652A of the Restatement (Second) of Torts. The four categories are: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unseasonably places the other in a false light before the public. The court explained these four categories to have not developed as a single tort, but as a complex of four distinct kinds of invasions of four different interests of the plaintiff which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone." (Internal quotation marks omitted.) Adams v. Lin Television Corp., Superior Court, judicial district of New London, Docket No. CV 02 0562799 (July 25, 2005, Jones, J.) ( 39 Conn. L. Rptr. 699).
The defendant has met its burden that no genuine issues of material fact exist as to whether the defendant invaded the plaintiff's privacy. The plaintiff did not allege facts that would support a claim for invasion of privacy. The category that may apply to the plaintiff's claim is the first category, an unreasonable intrusion upon the seclusion of another. For this category, the plaintiff would need to prove "an intentional interference with [her] interest in solitude or seclusion, either as to [her] person or as to [her] private affairs or concerns, of a kind that would be highly offensive to a reasonable [person]." Meyer v. O'Connor, Superior Court, judicial district of New Haven, Docket No. 4011945 (October 25, 2005, Blue, J.) ( 40 Conn. L. Rptr. 168).
The plaintiff, however, does not allege facts sufficient to support that the defendant intentionally interfered with her interest in solitude or seclusion. She alleged in her complaint that the defendant wrongfully intruded upon her seclusion by improperly disclosing her HIV, and that the defendant violated General Statutes § 19a-581 et seq. The plaintiff had no expectation of privacy to the information contained in her emergency room report when it was sent to the employee occupational health department because her report was being provided in accordance with the defendant's policy for work-related injuries. Since the disclosure by the emergency room personnel to Kryspin did not violate General Statutes § 19a-583, and because the plaintiff did not establish that the defendant invaded her privacy, summary judgment should be and is hereby granted for the defendant on the plaintiff's second count.
III. RETALIATION UNDER GENERAL STATUTES § 31-290a
The defendant argues that the plaintiff was disciplined pursuant to a neutral application of its absence control policy and not because she exercised her rights under the Workers' Compensation Act. It further argues that the plaintiff cannot claim that her transfer from a nurse's aide position to a parking lot attendant was an "adverse action." The defendant contends that the plaintiff requested the transfer, and therefore, the transfer cannot be considered to have been made for a discriminatory or retaliatory purpose. The defendant further maintains that the denial of the plaintiff's subsequent job transfer requests cannot be connected to her workers' compensation claim because none of the managers involved in hiring had knowledge of her claim.
The plaintiff argues that questions of material fact exist as to whether the defendant violated General Statutes § 31-290a. She argues that she has established a prima facie case of discrimination under § 31-290a by showing that she filed a workers' compensation claim, and that adverse employment actions were taken against her when the defendant would not reinstate her to her former position as a nurse's aide.
General Statutes § 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of [chapter 568, the Workers' Compensation Act] shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of [chapter 568]."
"In setting forth the burden of proof requirements in a § 31-290a action, [the court looks] to federal law for guidance." Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990). "The Ford burden-shifting analysis provides: The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the fact finder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Cable v. Bic Corp., 270 Conn. 433, 435 n. 2, 854 A.2d 1057 (2004).
"To make out a prima facie case of [a retaliation claim], the plaintiff must satisfy a three-prong test. The plaintiff must establish (a) [protected activity, i.e.,] that [she] filed a claim for workers' compensation benefits or otherwise exercised [her] rights under . . . [the] [Workers' Compensation Act]; (b) an employment action disadvantaging the plaintiff; and (c) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Kujawa v. J.T. Slocomb Corp., Superior Court, judicial district of New Britain, Docket No. CV03 0518836 (July 15, 2004, Robinson, J.). "A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." (Internal quotation marks omitted.) Lopez v. Walnut Hill, Inc., Superior Court, judicial district of New Britain, Docket No. CV 99 0498763 (November 30, 2001, J. Quinn).
Evidence presented by the plaintiff includes a letter dated February 16, 2000, from James Wittstein, a nurse manager for the defendant, which indicates that the plaintiff's leave of absence began on October 25, 1999, and that effective February 21, 2000, her position as a nurse's aide would no longer be held for her reinstatement. The reason provided by Wittstein was that the plaintiff met her maximum length of leave of absence under federal and state law. The plaintiff, in her affidavit, however, attests that she was not on a leave of absence beginning October 25, 1999. She attests that she was out of work after her injury on October 18, 1999, and that she returned to work on November 22, 1999. She stated that she returned to work for two days after November 22, 1999, and then was out of work until February 2000. She also stated that she worked approximately three days in February 2000, and then was out of work until approximately June 8, 2000. All of these absences, according to the plaintiff, were due to her work-related injury.
The defendant's employee handbook states the following: "Under both [s]tate and [fe]deral law, an employee returning from either a twelve or sixteen week leave of absence is entitled to reinstatement to the same or equivalent position with comparable pay, benefits and other employment terms." The plaintiff, however, has not offered evidence that she requested a leave of absence, and whether the defendant granted her a leave of absence. Furthermore, the plaintiff attests that she was not on a leave of absence. Therefore, issues of material fact exist as to whether the plaintiff was on a leave of absence following her back injury.
Also, the plaintiff established that she sought workers' compensation benefits, and that there is an issue of fact as to whether she was disadvantaged by the defendant's action of not reinstating her to her former position as a nurse's aide. Because the plaintiff did not offer evidence as to when she filed a workers' compensation claim, there is a genuine issue of fact as to whether she can establish a causal connection between the filing of her workers' compensation claim and the adverse employment action.
There is a genuine issue of fact as to whether the plaintiff was on a leave of absence when she was out of work for her back injury, and whether the defendant's leave of absence policy applied to her. To support her retaliation claim, the plaintiff presented an excerpt from Faith Argraves' deposition testimony. Argraves testified that she was unsure whether absences due to a work-related injury is considered a leave of absence. Therefore, the defendant's motion for summary judgment should be and is hereby denied as to count five of the plaintiff's complaint.
Also, the plaintiff attests in her affidavit that she was out of work in October 2000 for her work-related injury when she was suspended for three days because of her absences. She maintains that she was out of work for a longer period of time in 1999, and in early 2000, but no disciplinary action was taken against her. She argues that the defendant inconsistently applied its attendance policy to her. The defendant maintains, however, that the plaintiff was disciplined pursuant to a neutral application of its absence control policy and not because she exercised her rights under the Workers' Compensation Act. Evidence presented by the defendant includes an affidavit from Argraves attesting that the plaintiff's absences in September and October of 2000, for which the plaintiff received written warnings and a three-day suspension, fell below the standards in the defendant's employee attendance policy.
Argraves attests that the plaintiff was absent from work on September 7, 10-15, 22, and 25 of 2000 and on October 3, 16, and 21 of 2000. She further attests that under the defendant's employee attendance policy, six or more occasions in a year or three or more occasions in a quarter, are considered "below standard" for employees working three to four days per week, such as the plaintiff. Under the policy, single-day absences and absences for two or more consecutive days, are counted as one occasion.
Even though the defendant presented evidence that the plaintiff was disciplined pursuant to a neutral application of its attendance policy, the plaintiff provided sufficient evidence to give rise to an inference of unlawful discrimination. Specifically, a question of material fact exists as to whether the defendant "inconsistently" applied its attendance policy to the plaintiff. Therefore, for the foregoing additional reasons, the motion for summary judgment should be and is hereby denied as to the fifth count of the plaintiff's complaint.
IV. BREACH OF CONTRACT
The defendant argues that the plaintiff's breach of contract claim is precluded by the lack of any statement, written or oral, by the defendant promising full-time employment in the same or similar position that she held at the time she sustained her work-related injury. The plaintiff counters that genuine issues of material fact exist as to whether an express or oral contract of employment existed between herself and the defendant. The plaintiff also contends that material issues of fact exist as to whether the defendant violated its implied or express contract of employment with the plaintiff by refusing to reinstate her to her position as a nurse's aide.
In order to prevail on her claim that an implied or express contract existed between herself and the defendant, "the plaintiff must demonstrate an actual agreement by the [defendant] to have an employment contract with [her]. A contract implied in fact, like an express contract, depends on actual agreement . . . To survive a motion for summary judgment, the plaintiff [has] the burden of presenting evidence that the [defendant] [has] agreed to some form of contract commitment. "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties . . . In order to support contractual liability, the [defendant's] representations must be sufficiently definite to manifest a present intention on the part of the [defendant] to undertake immediate contractual obligations to the plaintiff." (Citations omitted; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 388-89, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).
The plaintiff provides excerpts from the defendant's employee handbook to establish that a contract exists. "It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). "[E]mployers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract . . ." (Internal quotation marks omitted.) Id., 535. "Superior Courts have held [on numerous occasions] that contract claims based solely on the terms of an employee handbook must fail if the handbook has an effective disclaimer." (Internal quotation marks omitted.) Ruiz v. Dunbar Armored, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 03 0404213 (July 19, 2005, Hiller, J.) ( 39 Conn. L. Rptr. 710).
In her affidavit, Argraves attests that the plaintiff had no written employment agreement with the defendant. Attached to her affidavit is a section of the defendant's employee handbook that states: "The Handbook should not be construed as a promise or contract of employment, either expressed or implied. The nature of employment [r]elationships are considered voluntary employment `at-will.'" Attached to its supplemental memorandum of law in support of its motion for summary judgment, the defendant provided a copy of an acknowledgment signed by the plaintiff on February 21, 1998, that she has received a copy of the defendant's employee handbook. The acknowledgment states the following: "I understand that the contents of the Handbook are not to be understood or construed as a promise or contract between St. Vincent's Medical Center and myself." This language and the language in the defendant's employee handbook establishes that the defendant effectively disclaimed its intention to contract. Therefore, the plaintiff has not met her burden of proving that there is an issue of material fact that an implied or express contract existed between herself and the defendant.
"The existence of disclaimer language in an employee handbook [however] does not always defeat a claim for breach of an express or implied contract, particularly under circumstances where other representations have been made independent of a handbook which are not themselves disclaimed." (Internal quotation marks omitted.) Ruiz v. Dunbar Armored, Inc., supra, 39 Conn. L. Rptr. 711. The plaintiff does not present facts to establish that the defendant made other representations that may have created an implied or express contract independent of the employee handbook. For the foregoing reasons, the motion for summary should be and is hereby granted for the defendant on the sixth count of the plaintiff's complaint.
V. BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
The defendant argues that since there is no basis for finding that there was an employment contract between the defendant and the plaintiff, there can be no implied covenant claim on any contractual basis. The plaintiff counters that questions of material fact exist as to whether the defendant breached the implied covenant of good faith and fair dealing when it chose, in bad faith, to ignore its own employment policies and procedures concerning sick leave and leaves of absences.
"[E]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement . . . To constitute a breach of [that duty], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 333-34, 880 A.2d 106 (2005).
The plaintiff has not alleged sufficient facts to show that the defendant's conduct was motivated by bad faith. Although there may be an issue of fact as to whether the defendant "inconsistently" applied its attendance policy to the plaintiff, the plaintiff does not raise an issue of fact as to whether the defendant acted with a dishonest purpose. As noted in part IV of this decision, since the defendant has established that no contract existed between itself and the plaintiff, there cannot be a breach of the implied covenant of good faith and fair dealing. Therefore, the motion for summary should be and is hereby granted for the defendant on the seventh count of the plaintiff's complaint.
See part III.
VI. NEGLIGENT MISREPRESENTATION
The defendant argues that the plaintiff was unable to identify a single representation made to her in support of her breach of contract, implied covenant of good faith and fair dealing or misrepresentation claims. The plaintiff counters that the defendant's representations concerning sick leave and absences from work were false, and that she justifiably relied on the defendant's representations in accepting and continuing her employment with the defendant. She further argues that her position as a nurse's aide should have remained available to her because she did not apply for a leave of absence, and as a result of the defendant's negligent misrepresentations, she had to accept a position as a parking lot attendant.
"[The Supreme Court] has long recognized liability for negligent misrepresentation. [The court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts [1979]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).
At her deposition, the plaintiff testified that the defendant did not tell her that her job at the hospital would be guaranteed. She testified that "[she] thought [she] would always have a job with St. Vincent's because [she tries and she works] hard." Further, she testified that she has incurred expenses associated with looking for another job, but that she does not know the exact amount. At the plaintiff's deposition, her attorney conceded that the plaintiff relied on representations contained in a personnel manual, policy or procedure, to the extent that any representation exists, to support her negligent misrepresentation claim.
The plaintiff does not provide sufficient facts to show that she justifiably relied on the information in the defendant's employee handbook, and that the information in the employee handbook was false. Although the plaintiff was placed in different jobs within the defendant's medical facility, no facts establish that she was discharged or had to look for a job as a result. Also, the plaintiff has not established that she suffered pecuniary loss due to the information contained in the defendant's employee handbook. Since the plaintiff has provided no evidence from which a trier of fact reasonably could infer that the defendant made representations to the plaintiff that were untrue, the motion for summary judgment should be and is hereby granted for the defendant on the plaintiff's eighth count.
VII. CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is hereby granted as to counts one, two, six, seven, and eight, but denied as to count five.