Opinion
No. NH CV 07 4027175 S
January 26, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #111
Whether the court should grant the defendants' motion to strike counts two, three, four, six, seven and eight of the plaintiff's complaint because the applicable portions of General Statutes § 31-51q and General Statutes § 46a-60 only allow for claims against employers.
Whether the court should grant the defendants' motion to strike count nine of the plaintiff's complaint against the defendant Roger Tausig on the ground that the plaintiff has failed to plead any legally recognized cause of action, and in the alternative, on the ground that defendant Tausig did not owe the plaintiff a legal duty.
Whether the court should grant the defendants' motion to strike counts ten and eleven of the plaintiff's complaint regarding defamation on the grounds that the plaintiff has failed to allege specific defamatory statements or special damages.
FACTS
On July 26, 2007, the plaintiff, Christine Maisano, commenced this action by service of process on the defendants Congregation Or Shalom (synagogue), Alan Liebnick, Alvin Wainhaus, Arthur Weinstein and Roger Tausig (collectively known as the individual defendants). In her revised complaint, the plaintiff states claims against the synagogue and defendants Liebnick, Wainhaus and Weinstein for wrongful discharge pursuant to General Statutes § 31-51q and discriminatory employment practices pursuant to General Statutes § 46a-60. Moreover, count nine of the complaint alleges a claim against defendant Tausig, and counts ten and eleven state claims against the synagogue and defendant Wainhaus in defamation. Finally, in count twelve, the plaintiff contends that the synagogue is variously liable for the conduct of the rest of the defendants because the alleged malfeasances occurred during the scope of their employment and association with the synagogue.
The original complaint also stated claims against Gary Pearl and Ron Novick, but the plaintiff withdrew the case against these defendants on October 10, 2007.
Specifically, count one states a wrongful discharge claim against the synagogue, then counts two through four state wrongful discharge causes of action against the defendants Liebnick, Wainhaus and Weinstein respectively. Similarly, count five states a discriminatory practices claim against the synagogue, and counts six through eight state the same claim against Liebnick, Wainhaus and Weinstein respectively.
Although not labeled with a specific cause of action, it appears that count nine alleges a claim for negligent hiring.
The plaintiff's complaint alleges the following facts. For a period of over ten years, the plaintiff was employed as a bookkeeper with the synagogue. Defendant Libenick is the president of the synagogue, defendant Wainhaus is the rabbi, defendant Weinstein is the treasurer and defendant Tausig serves on the board of directors. In his role on the board of directors, defendant Tausig directed the search committee that chose Mordecai Kamlot as executive director of the synagogue. At the beginning of her employment, the plaintiff told the synagogue that she had previously undergone a cornea transplant and suffered from a degenerative eye disease known as Kerataconus. As a result of this condition as well as her child care responsibilities, the synagogue allowed the plaintiff to complete many of her work-related tasks at home. In June 2005, the plaintiff revealed that she was pregnant with her third child. Upon hearing this announcement, defendant Wainhaus asked the plaintiff, "how are you going to come back to work with three children?" The plaintiff responded that she would return to work when her pregnancy leave ended. In the months before the plaintiff's child was born on January 2, 2006, the plaintiff alleges that Kamlot engaged in a series of behaviors designed to cause her to quit her job, including rubbing the plaintiff's feet in the presence of co-workers and insisting on staying in the plaintiff's hospital room while she took a shower. While out on maternity leave, the plaintiff received a letter from Kamlot that indicated her job was being restructured to involve additional hours as well as new vision requirements, including being able to exercise "close vision, distant vision, color vision, peripheral vision, depth perception, and the ability to adjust focus." The plaintiff contends these requirements were unnecessary for the job and were only added to disqualify her as a candidate for continued employment.
Following her return to work, on March 1, 2006, the plaintiff sent a letter to Kamlot that detailed his alleged financial improprieties with synagogue funds. The plaintiff copied the rest of the defendants on this letter. On March 3, 2006, the plaintiff was terminated from her employment because she purportedly refused to accept the new job description as outlined in the letter she received from Kamlot. The plaintiff alleges that this explanation was a pretext for the real reasons that she was fired; namely discrimination based on gender, pregnancy, visual disability and for voicing her concerns about Kamlot's use of synagogue funds. Kamlot subsequently resigned from the synagogue, and a letter sent from the synagogue's executive committee revealed that he was accused of misappropriation of funds.
On August 26, 2008, the defendants filed this motion to strike and a memorandum of law in support of their motion. Specifically, the defendants have moved to strike counts two, three, four, six, seven and eight against the individual defendants on the grounds that the statutes the plaintiff has cited, General Statutes § 31-51q and § 46a-60, only apply to employers. The defendants have also moved to strike count nine against defendant Tausig on the grounds that it states no cognizable cause of action, as well as counts ten and eleven in defamation for failure to allege any defamatory statements or special damages. The plaintiff has filed a memorandum of law in opposition.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Consequently, "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gutlack v. Gutlack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993), citing Practice Book § 10-39. In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, the moving party "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Finally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
I CONNECTICUT RETALIATORY DISCHARGE STATUTE
The individual defendants first argue that counts two, three and four must be stricken because the applicable portion of Connecticut's retaliatory discharge statute only applies to employers. In response, the plaintiff contends that the individual defendants were acting as her "employer in concert" with the synagogue, and consequently they can be held liable under the statute. General Statutes § 31-51q provides in relevant part: "Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state . . . shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages."
By its plain terms, this statutory language only applies to employers, and does not contain a clause establishing liability for other parties. Although there appears to be a dearth of appellate authority on this direct issue, the individual defendants cite a Superior Court case that stands for the proposition that "[a] cause of action founded upon § 31-51q of the General Statutes and the common law theories of wrongful discharge and breach of the implied covenant of good faith and fair dealing contract lie only against a plaintiff's employer and not directly against an employer's agent." Laschever v. Journal Registry Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065372 (November 1, 1994, Pickett, J.). As a general rule, "[i]t is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation . . . Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Citations omitted; internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995). As a result, it is logical that § 31-51q should be interpreted exactly as it is written; namely that it only allows for liability against employers.
The plaintiff does not really dispute that § 31-51q applies only to employers. Instead, the plaintiff argues that the individual defendants were acting as her "employer in concert" with the synagogue. In her memorandum of law in opposition to the defendants' motion to strike, the plaintiff does not provide any case citation defining "employer in concert" or any case citation where this supposed term of art has been used. From an examination of the complaint's allegations found in counts two, three and four, it appears that the plaintiff simply means that the individual defendants were acting as another employer, as opposed to a supervisory employee capacity or agent of the employer. Despite this argument, it is apparent that the complaint implicitly acknowledges the fact that each of the individual defendants either worked for the synagogue or were acting as the synagogue's agent. Specifically, count two of the complaint refers to defendant Liebnick as "President of the of the Synagogue," count three calls defendant Wainhaus "the Synagogue's Rabbi," and defendant Weinstein is termed the "Treasurer of the Synagogue" in count four. Implicit in these statements is the conclusion that these defendants all served the synagogue in an employee or agency capacity, while the synagogue was the plaintiff's only true employer. Moreover, there is no allegation that the plaintiff had any type of a traditional employer/employee with the individual defendants. Most notably, there is no contention that any of the individual defendants paid the plaintiff for her services or engaged in supervisory functions over the plaintiff. Indeed, it is only alleged that each of these individual defendants merely "acquiesced" to Kamlot's termination of the plaintiff, not that they actually had the power to do so themselves. Accordingly, since § 31-51q only allows for employer liability, counts two, three and four against the individual defendants are stricken.
II CONNECTICUT FAIR EMPLOYMENT PRACTICES ACT
In moving to strike counts six through eight, the individual defendants make a similar argument as they raised when attempting to strike counts two through four; namely that the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq., only applies to employers. In support of this argument, the individual defendants point to the Supreme Court's decision in Perodeau v. Hartford, 259 Conn. 729, 744, 792 A.2d 752 (2002), where the court held that there could be no individual liability under § 46a-60(a)(1). The plaintiff counters this argument by stating that other sections of the statute, such as § 46a-60(a)(6), allow for any person to be held liable for their discriminatory behavior.
In the alternative, the plaintiff once again argues that the individual defendants were acting as "employers in concert" with the synagogue, and therefore they are subject to individual liability. For reasons outlined in the previous section, this argument is rejected.
In Perodeau, the Supreme Court did hold that individual employees cannot be held liable under § 46a-60(a)(1). When making this determination, however, the Supreme Court was only interpreting subsection one of the statute, which provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent . . . 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 . . . sex . . . learning disability or physical disability, including, but not limited to, blindness." As noted in Perodeau, the plain language of this subsection applies only to employers, and as a result the Supreme Court concluded that "[i]t would defy common sense to conclude that the legislature intended . . . to change the common meaning of the word `employer' to include `persons' who do not employ anyone . . ." Perodeau v. Hartford, supra, 259 Conn. 736-37.
Conversely, other subsections of the Connecticut Unfair Employment Practices Act include language making it illegal for any person to engage in the practice prohibited by that subsection. For instance, § 46a-60(a)(6) provides in relevant part that: "It shall be a discriminatory practice in violation of this section . . . [for any person, employer, employment agency or labor organization to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their . . . sex . . . learning disability or physical disability, including, but not limited to, blindness." Subsections four and five also prohibit any person from retaliating against an employee for opposing a discriminatory employment practice and make it illegal for any person to aid a discriminatory employment act. When interpreting this statute, many courts have concluded that the inclusion or non-inclusion of the word "person" in the applicable subsection is determinative as to whether individuals can be held liable. See, e.g., Miner v. Cheshire, 126 F.Sup.2d 184, 203-04 (D.Conn. 2000) (allowing for individual liability under subsections four, five and six of the Connecticut Fair Employment Practices Act but not one and eight because four, five and six contain language prohibiting any person from engaging in the prohibited activity whereas one and eight only refer to employers); Robinson v. Connecticut Rental Centers, Superior Court, judicial district of Middlesex, Docket No. CV 99 0087536 (August 7, 2000, Gordon, J.) (allowing for individual liability under retaliation portion of the Connecticut Fair Employment Practices Act); Miller v. Edward Jones Co., 355 F.Sup.2d. 629, 642 (D.Conn. 2005) ("an individual may be held liable under Connecticut's retaliation provision").
Consequently, when determining whether the plaintiff can state a cause of action against the individual defendants under the Connecticut Fair Employment Practices Act, it is necessary to determine precisely which subsections are applicable to the allegations raised in the complaint, especially since this complaint does not refer to particular subsections. Paragraph twenty-two of the complaint alleges that "the Plaintiff was discriminated against on the basis of her gender, her pregnancy, as well as her visual disability." When construed in a light most favorable to the plaintiff, there is also an allegation of sexual harassment found in paragraph twenty, where the plaintiff alleges that Kamlot massaged her feet and would not leave her hospital room while she took a shower. As previously discussed, discrimination on the basis of gender and disability is prohibited in subsection one, which, according to Perodeau, supra, 259 Conn. 729, applies only to employers. Similarly, sexual harassment and discrimination based on pregnancy are banned in subsections eight and seven respectively, and the language of these subsections only makes it illegal for employers to discriminate. See, e.g., Jones v. Gem Chevrolet, 166 F.Sup.2d 647, 650-51 (D.Conn. 2001) (no individual liability under subsection seven for pregnancy discrimination). Notably, there is no explicit allegation in the complaint that the individual defendants retaliated against the plaintiff for voicing a complaint about discrimination, and consequently subsections four and five are not applicable here.
In her memorandum of law, the plaintiff focuses her argument in support of individual liability on subsection six, which imposes liability against all persons and employers who "advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their . . . learning disability or physical disability, including, but not limited to, blindness." The plaintiff argues subsection six applies in this matter because the individual defendants had knowledge of Kamlot's decision to change the plaintiff's job description to require increased visual acuity. Nevertheless, by its plain language, subsection six only refers to advertisements of employment opportunities, not changes in job descriptions. Since statutory language should be narrowly construed, and the plaintiff has failed to cite any case where advertisements under § 46a-60(a)(6) have been held to include job descriptions, the individual defendants' motion to strike counts six, seven and eight is granted.
III NEGLIGENCE CLAIM
Defendant Tausig has also moved to strike count nine of the complaint on the grounds that it does not state a legally cognizable claim. Specifically, Tausig argues that the plaintiff has not identified any cause of action upon which she is proceeding, as demonstrated by the fact that the plaintiff failed to place a specific legal theory in the heading of count nine. Moreover, should the court find that the plaintiff has articulated a legal theory, Tausig argues that the plaintiff cannot recover because Tausig did not owe the plaintiff any legal duty. The plaintiff responds by arguing that she has sufficiently pleaded a cause of action based in negligence.
Among other similar allegations, count nine alleges that Tausig, in his role as head of the search committee that hired Kamlot, failed to perform a background check that would have revealed Kamlot's history of financial mismanagement at other jobs, misrepresented to synagogue employees that he had conducted a background check, negotiated an overly generous employment contract with Kamlot and exposed the plaintiff to a hostile work environment when he hired Kamlot. These allegations make it apparent that the plaintiff was attempting to state a cause of action for negligent hiring.
The Appellate Court has stated "that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third pat." Seguro v. Cummiskey, 82 Conn.App. 186, 196, 844 A.2d 224 (2004). "A common-law claim in negligent hiring exists in any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." (Internal quotation marks omitted.) Seda v. Maxim Health Care Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.); see also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). As with any negligence action, a plaintiff alleging negligent hiring must demonstrate a breach of duty on the part of the defendant. "The existence of a duty is question of law." Shore v. Stonington, supra, 187 Conn. 151. "Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person . . . [A]bsent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811, cert. denied, 519 U.S. 872, 117 S.Ct. 188, 136 L.Ed.2d 126 (1996). One example of such a relationship is employer/employee. See generally Shore v. Stonington, supra, 187 Conn. 155-56. "In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role." Fraser v. United States, supra, 236 Conn. 632.
At the outset, there is a noticeable problem with the plaintiff's negligent hiring claim. The plaintiff has stated this cause of action against an individual as opposed to an employer. While the plaintiff has alleged that Tausig served on the synagogue's board of directors and headed the search committee that hired Tausig, there is no contention that he was an employer or even a co-employee of the plaintiffs. Since there is no employment relationship between the parties or other legally recognized special relationship, Tausig merely owes the plaintiff the same duty of ordinary care owed to all third parties. As Connecticut law only recognizes a limited duty to prevent potential harm to third parties, it is apparent that Tausig had no duty to the plaintiff when he directed the search committee that decided to hire Kamlot. Accordingly, defendant Tausig's motion to strike count nine is granted.
IV DEFAMATION
Lastly, the individual defendants ask this court to strike count ten against the synagogue and count eleven against defendant Wainhaus in defamation. Specifically, the individual defendants argue that the plaintiff has not alleged any defamatory statements or pleaded special damages. The plaintiff counters this argument by stating that she has sufficiently alleged both elements. "To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to the third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). "A claim of [defamation] must be pled with specificity, as the precise meaning and choice of words employed is a crucial factor in any evaluation of falsity . . . [A] complaint for defamation must, on its face specifically identify what allegedly defamatory statements were made, by whom, and to whom." Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003).
Here the plaintiff has only alleged oral statements. There are two types of slanderous statements, slander per se and slander per quod. Examples of slander per se include statements alleging "incompetence or dishonesty in office, or charg[ing] a professional person with general incompetence . . . [a] crime involving moral turpitude or to which an infamous penalty is attached . . . [and] [s]tatements accusing a plaintiff of theft . . ." (Citations omitted.) Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987). Unless a plaintiff can prove that alleged false statements fall within the categories of slander per se, special damages must be established. Id. As none of the slander per se categories apply in this matter, the plaintiff would therefore need to plead special damages. "The special damage, to which we now refer, must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander." Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952).
Count ten of the complaint states a defamation claim against the synagogue as a result of the alleged statements of former executive director Kalmot. Specifically, paragraph thirteen alleges that Kamlot "publicly referred to the Plaintiff as `evil," and well as `money hungry.'" This count also contains an allegation that "while the Plaintiff was attempting to assert her rights . . . in resolving what the Plaintiff believed were her meritorious employment related claims . . . the Plaintiff was, and continues to be disparaged by the Defendant." Similarly, count eleven alleges that defendant Wainhaus "has publicly referred to the Plaintiff as `evil,' as well as `money hungry,' because the Plaintiff has attempted to assert her rights as a former employee of Congregation Or Shalom." While these allegations do reference the alleged speaker and the substance of the statements, they only mention that the statements were made "publicly." Such a vague contention does not provide the defendant with any guidance as to the precise audience that heard the allegedly defamatory remarks. The reason for requiring such specificity in pleading a defamation case is that "[t]here are a number of special defenses . . . that may be appropriate, depending on the nature of the statements alleged to have been made." Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) (40 Conn. L. Rptr. 565, 570). Without knowledge of to whom the defendants allegedly spoke these words, the defendants would be unable to appropriately frame their response and raise any possible special defenses such as privilege. Accordingly, these allegations do not satisfy the specific pleading requirements necessary to state a cause of action in defamation.
CONCLUSION
For the reasons stated above, the defendants' motion to strike counts two, three, four, six, seven and eight of the plaintiff's complaint because the applicable portions of General Statutes § 31-51q and § 46a-60 apply only to employers is granted. Defendant Tausig's motion to strike count nine of the complaint is granted as the plaintiff has failed to establish that he had any legal duty to the plaintiff. The synagogue and defendant Wainhaus' motion to strike counts ten and eleven is granted.