Opinion
No. CV03-0406893
January 20, 2005
MEMORANDUM OF DECISION MOTION TO STRIKE
Pursuant to Practice Book § 10-39, the defendants have filed a motion to strike the plaintiff's complaint, which sounds in three counts. The First Count alleges a hostile work environment due to sexual harassment in violation of Statutes § 46a-60(8)(A)(B) and (C) is brought against the Bridgeport Board of Education. The Second Count, also brought against the Board of Education alleges retaliation pursuant to General Statutes § 46a-60(4). The Third Count alleges intentional infliction of emotional distress is brought against the defendants Darlene Tickey and the Bridgeport Board of Education. The genesis of the plaintiff's action rests with a charge of discrimination filed by the plaintiff with the Commission on Human Rights and Opportunities on November 14, 2002. The plaintiff's charge of discrimination passed the Commission's "Merit Assessment Review." The plaintiff subsequently obtained a "Release of Jurisdiction" on or about August 5, 2003. In releasing jurisdiction, the Commission found that the Complaint Affidavit had been pending with the Commission for at least 210 days. Thereafter, the plaintiff filed the present action by way of a complaint dated October 1, 2003, bearing a return date of October 21, 2003.
In moving to strike the three counts of the plaintiff's complaint, the defendants argue that in the First Count the plaintiff has failed to allege sufficient facts that her submission to sexual advances or conduct were made explicitly or implicitly a term or condition of the plaintiff's employment. The defendants also argue that the plaintiff has failed to allege sufficient facts to support a causal connection between sexual advances or conduct and any subsequent adverse employment action that affected a term or condition of employment. Next, regarding the First Count the defendants argue that the plaintiff's claim of hostile work environment is legally insufficient because all of the allegations are untimely pursuant to General Statutes § CT Page 1112 46a-82(e). Lastly, the defendants argue that in the First Count the defendants have failed to allege sufficient facts to establish a severe or pervasive hostile work environment.
Regarding the Second Count which alleges retaliation, the defendants claim that the plaintiff fails to state a claim upon which relief can be granted in that the Second Count does not allege any protected activity; does not allege any adverse employment actions; and fails to state a causal connection between any protected activity and any timely filed retaliatory adverse employment actions.
Finally, regarding the Third Count alleging intentional infliction of emotional distress, the defendants argue that the alleged conduct by the defendants does not rise to the level of extreme or outrageous behavior required to sustain an action for intentional infliction of emotional distress.
A summary of the complaint reveals that the plaintiff has been a teacher in the Bridgeport public school system since 1987. Several years later she was assigned to the Maplewood Annex Elementary School. In the spring of 2000, the defendant Board of Education named the defendant Tickey to serve as the Principal. Tickey was plaintiff's direct supervisor. During October 2000 Tickey hugged and kissed the plaintiff on the cheek "seemingly" in appreciation for the plaintiff's writing two technology grants for the school on short notice. Later in October 2000, Tickey inquired into the sexual orientation of the plaintiff, who informed Tickey that she was a homosexual. Tickey allegedly revealed to the plaintiff that she had bisexual tendencies and related a sexual fantasy. Tickey then suggested that she and the plaintiff meet socially after working hours. Several days later the plaintiff advised Tickey that a social meeting would be inappropriate and that the plaintiff had no further interest in a personal relationship or personal discussions with Tickey.
The plaintiff's complaint alleges that as a result of her rebuffing Tickey, she was subjected to a series of adverse employment actions including being removed as the "teacher in charge" of the school as of January 1, 2001; being forced to resign as the Union Representative for the school in March 2001; being called a "pompous arrogant bitch" in May 2001; and attempts being made to change her grade late in the 2001 school year with the change becoming effective with the 2001-2002 school year. The plaintiff complained to her employee's Union regarding this grade change, prompting Tickey to advise the plaintiff that "she (Tickey) would never forgive her (plaintiff) for calling in the Union."
The complaint further alleges that Tickey made an additional advance toward the plaintiff during the spring of 2001, insofar as Tickey requested that the plaintiff accompany her to Philadelphia for professional meetings related to a reading program being considered by the Board of Education. The plaintiff refused this invitation and Tickey informed the plaintiff that if the plaintiff refused, "the Board will say no to you."
The plaintiff further alleges that after returning for the 2001-2002 school academic year, in late August 2001, Tickey also subjected the plaintiff to a series of adverse employment actions including the removal of the plaintiff as a member of the "Student Assessment Team," and removing the plaintiff as a mentor.
The complaint further alleges that Tickey hugged and kissed the plaintiff in September 2001, to congratulate the plaintiff for receiving her Administrative Certificate, and that on September 11, 2001, Tickey told the plaintiff that she liked the plaintiff, even if the plaintiff did not feel the same way about Tickey.
Thereafter, in December 2001, Tickey allegedly berated the plaintiff at a faculty meeting and later, in January 2002, convened a disciplinary meeting with the Assistant Superintendent of the Board during which Tickey falsely accused the plaintiff of acting inappropriately during the December faculty meeting. Subsequent to this, in February and March 2002, Tickey began depriving the plaintiff of her classroom aide and subjected the plaintiff to special rules regarding the scheduling of classroom birthday parties and the removal of classroom decorations.
The complaint further alleges that in May 2002, the plaintiff approached Tickey to get her signature on a form required for the plaintiff to apply for a Summer School position, and Tickey refused to sign the form. Tickey additionally refused to provide the plaintiff with a letter of reference, in late May 2002, which was required for a separate administrative position which was open that same summer. Lastly, the complaint alleges that, due to abuse, the plaintiff transferred to another school for the 2002-2003 school year.
The law regarding the court's review of a motion to strike is well established. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (emphasis omitted). Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
I General Statutes § 46a-82(e)
General Statutes § 46a-82(e) requires that any discrimination complaint must be filed within 180 days of the alleged discriminatory act. If an individual fails to comply with this mandatory time requirement, the complaint may be dismissed . . . Williams v. Commission on Human Rights and Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001). "[D]iscrete discriminatory acts are not actionable if time barred, even though they are related to alleged acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore must be filed within the 180 . . . day time period after the discrete discriminatory act occurred." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 112 S.Ct. 2061 (2002). Furthermore, "discrete acts that fall within the statutory time period do make timely acts that fall outside the time period." Id. at 112.
Sec. 46a-82 reads in relevant part as follows:
(a) Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission. After the filing of a complaint pursuant to this subsection, the commission shall serve upon the person claiming to be aggrieved a notice that: (1) Acknowledges receipt of the complaint and (2) advises of the time frames and choice of forums available under this chapter.
(e) Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination except that any complaint by a person claiming to be aggrieved by a violation of subsection (a) of section 46a-80 must be filed within thirty days of the alleged act of discrimination.
The defendants argue that the only discriminatory actions that may be considered are those actions occurring after May 18, 2002, as those actions are the only ones alleged that occurred within the 180 days preceding the plaintiff's complaint. These actions would be Tickey's May 2002 refusal to make herself available to sign the plaintiff's application; Tickey's refusal to provide a letter of recommendation; and the plaintiff's voluntary transfer to a new school. The defendants claim that all other discriminatory acts alleged by the plaintiff are, therefore, untimely.
Similarly, the defendants argue, the vast majority of acts taken based upon the plaintiff's reaction to Tickey's alleged sexual advances are untimely, as the only alleged adverse changes in the plaintiff's terms or conditions of employment that were timely filed were Tickey's refusal to provide a letter of recommendation; and the plaintiff's transfer to a new school. All other alleged actions by Tickey occurred within a time period from October 2000 through September 11, 2001, which the defendants argue, are outside the 180-day time limit.
The plaintiff argues that the defendants are collaterally estopped from contesting the timeliness of the plaintiff's allegations. The plaintiff states that during the proceedings before the Commission on Human Rights and Opportunities, the defendant Board of Education challenged the timeliness of the allegations, but had the challenge effectively denied insofar as the "Merit Assessment Review" was returned in favor of the plaintiff. The plaintiff has submitted photocopies of the Board of Education's Motion to Dismiss and the Merit Assessment Review for the court's consideration. The plaintiff contends that the resolution of the timeliness argument was "essential" to the favorable "Merit Assessment Review" finding.
A. COLLATERAL ESTOPPEL
[T]he decision whether to apply the doctrine of collateral estoppel in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.
(Citation omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 59 (2002) 808 A.2d 1107; quoting, Isaac v. Truck Service, Inc., 253 Conn. 416, 422-23, 752 A.2d 509 (2000). "[T]he application of the collateral estoppel doctrine has dramatic consequences for the party against whom the doctrine is applied. (Consequently] [c]ourts should be careful that the effect of the doctrine does not work an injustice." Id.
The doctrine of collateral estoppel or issue preclusion protects the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. Collateral estoppel or issue preclusion is distinguishable from res judicata or claim preclusion. Rocco v. Garrison, 268 Conn. 541, 554-55, 848 A.2d 352 (2004).
"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." (Citations omitted; internal quotation marks omitted.) Id. at 555; quoting, Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74, 727 A.2d. 1245 (1999); see also, Albhary v. Bristol, 84 Conn.App. 329, 853 A.2d 577 (2004); 1 Restatement (Second), Judgments § 27, comment (d) (1982).
"In other words, [the doctrine of] collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of th[at] issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675, 846 A.2d 849 (2004).
The doctrine of collateral estoppel is applicable to administrative rulings in general. Hill v. State Employees Retirement Commission, 83 Conn. App. 599, 613, 851 A.2d 320 (2004); Lafayette v. General Dynamics Corp., 255 Conn. 762, 773, 770 A.2d 1 (2001); see also 2 Restatement (Second), Judgments § 83(1), p. 266 (1982) ("a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications.
The court has reviewed the Merit Assessment Review issued by the Commission and finds that it does not address the defendants' motion to dismiss or the timeliness of the plaintiff's claim. The court can find no evidence from the documents submitted by the plaintiff that the issue regarding timeliness and General Statutes § 46-82(e) was ever litigated before the Commission, or that any decision by the Commission was predicated upon findings that, in fact, the plaintiff's claims were timely filed. The only argument that the plaintiff advances is that a resolution of the timeliness argument was essential to the favorable "Merit Assessment Review" finding by the Commission. The "Merit Assessment Review" is a one-page letter from the Commission to the parties dated April 23, 2003. This letter states that the plaintiff's complaint "has been retained" and that the allegations merit further investigation. The plaintiff was then notified that she would be advised of the next process the complaint would undergo. The plaintiff's conclusion that this initial merit assessment review was a final determination of the timeliness issue and compliance with § 46a-82(e) is simply a conclusion and is without merit. The parameters of the Merit Assessment Review are limited by the specific mandates of General Statutes § 46a-83.
Sec. 46a-83 reads in relevant part as follows:
(a) Within twenty days after the filing of any discriminatory practice complaint, or an amendment adding an additional respondent, the commission shall cause the complaint to be served upon the respondent together with a notice (1) identifying the alleged discriminatory practice, and (2) advising of the procedural rights and obligations of a respondent under this chapter.
The respondent shall file a written answer to the complaint under oath with the commission within thirty days of receipt of the complaint, provided a respondent may request, and the commission may grant, for good cause shown, one extension of time of fifteen days within which to file an answer to a complaint. The answer to any complaint alleging a violation of section 46a-64c or 46a-81e shall be filed within ten days of receipt.
(b) Within ninety days of the filing of the respondent's answer to the complaint, the executive director or the executive director's designee shall review the file. The review shall include the complaint, the respondent's answer and the responses to the commission's requests for information, if any, and the complainant's comments, if any, to the respondent's answer and information responses. If the executive director or the executive director's designee determines that the complaint fails to state a claim for relief or is frivolous on its face, that the respondent is exempt from the provisions of this chapter or that there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause, the complaint shall be dismissed. This subsection shall not apply to any complaint alleging a violation of section 46a-64c or 46a-81e. The executive director shall report the results of the executive director's determinations pursuant to this subsection to the commission quarterly during each year.
(c) The executive director of the commission or his designee shall determine the most appropriate method for processing any complaint pending after review in accordance with subsection (b) of this section. The commission may conduct mandatory mediation sessions, expedited or extended fact-finding conferences or complete investigation or any combination thereof during the investigatory process for the purpose of finding facts, promoting the voluntary resolution of complaints or determining if there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. As used in this section and section 46a-84, reasonable cause means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint. A complaint may be dismissed if a complainant, after notice and without good cause, fails to attend a mandatory mediation session. A mediator may recommend, but not order, a resolution of the complaint. A complaint may be dismissed if the respondent has eliminated the discriminatory practice complained of or taken steps to prevent a like occurrence in the future and offered full relief to the complainant, even though the complainant has refused such relief.
(d) Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission's file, except as otherwise provided by federal law or any other provision of the general statutes. The investigator shall consider such comments in making his determination. The investigator shall make a finding of reasonable cause or no reasonable cause in writing and shall list the factual findings on which it is based not later than one hundred ninety days from the date of the determination based on the review of the complaint, conducted pursuant to subsection (b) of this section, except that for good cause shown, the executive director or his designee may grant no more than two extensions of the investigation of three months each. If the investigator makes a determination that there is reasonable cause to believe that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from receipt of notice of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to section 46a-84. If either the complainant or the respondent requests a civil action, the commission, through the Attorney General or the commission counsel, shall commence an action pursuant to subsection (b) of section 46a-89 within forty-five days of receipt of the complainant's or the respondent's notice of election of a civil action.
(e) If the investigator issues a finding of no reasonable cause or if the complaint is dismissed (1) for failure to state a claim for relief, (2) because it is frivolous on its face, (3) because the respondent is exempt from the provisions of this chapter, or (4) because there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause or if the complaint is dismissed pursuant to subsection (c) of this section, the complainant may request reconsideration of such finding or dismissal with the executive director of the commission, or the executive director's designee, not later than fifteen days from the issuance of such finding or dismissal. The executive director of the commission, or the executive director's designee, shall reconsider or reject within ninety days of the issuance of such finding or dismissal. The executive director of the commission, or the executive director's designee, shall conduct such additional proceedings as may be necessary to render a decision on the request for reconsideration.
(f) Upon a determination that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion within fifty days of a finding of reasonable cause. The refusal to accept a settlement shall not be grounds for dismissal of any complaint . . .
There is no specific authority for the Commission to rule upon motions such as the defendants' motion to dismiss. There was no final determination on the issue of timeliness. Therefore the court will address the defendants' claims that only those alleged acts of discrimination subsequent to May 18, 2002 have been timely filed.
B. General Statutes § 46a-82(e) and Alleged Untimely Acts
The plaintiff argues that whatever the general filing requirements of § 46a-82(e), the instant case plainly qualifies for treatment under the "continuing violation" doctrine, which imparts a far greater review power upon the court. See State v. Connecticut Commission on Human Rights and Opportunities, 211 Conn. 464, 473 (1989) (recognizing the continuing violation doctrine for purposes of the Connecticut Fair Employment Practices Act.)
Whereas the Connecticut Supreme Court has decided that the "continuing violation" doctrine is available for claims brought under the Connecticut Fair Employment Practices Act, the Court often relies upon federal jurisprudence in defining the "contours" of the doctrine. See e.g. Brittell v. Department of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998).
The plaintiff urges the court to consider all events alleged by the plaintiff's complaint, regardless of timing, so long as the events were a part of a policy or practice of discrimination and at least one of the events occurred during the 180-day period preceding the filing of the charge. See Fitzgerald v. Henderson, 251 F.3d 345 (2nd Cir. 2001). The continuing violation does not depend upon any formal discriminatory policy or practice, but rather can rest upon a de facto policy or practice arising from "specific and related" acts of discrimination that an employer continues to tolerate. Id. at 361.
The defendants argue that the factual allegations in the instant case are distinguishable from those presented in Fitzgerald v. Henderson, supra, and that the plaintiff fails to properly apply this doctrine after the decision by the United States Supreme Court in National R.R. Passenger Corp. v. Morgan, supra, 536 U.S. 101.
In Fitzgerald, the court held that the continuing violation doctrine applied only to the hostile work environment claim of the plaintiff. Fitzgerald v. Henderson, supra, at 36. The facts in Fitzgerald involved a claim that the employee's supervisor engaged in an almost daily pattern of insults and abuse over a two-year period. After the supervisor stopped making sexual advances as a result of the employee's rejections of them, the supervisor became increasingly hostile toward the employee. The supervisor subjected the employee to constant criticism, harsh treatment, overtime abuses, disciplinary actions, verbal abuse, profanities and physical intimidation. On three occasions the employee complained to her employer about harassment. However, the employer refined to remedy the conduct of its supervisor. The court held that the supervisor's actions were related instances of harassment adequate to depict a continuity of allegedly unlawful conduct. Id. at 361.
The defendants argue that in the instant case the plaintiff has asserted unrelated and isolated discrete acts by Tickey that were spread out over a two-year period and are not similar to the daily verbal and hostile abuse that the plaintiff in Fitzgerald was forced to endure at the hands of her supervisor. Additionally, the policy or practice of discrimination in Fitzgerald was made known to the employer who refined to take remedial action, where in the present case, the plaintiff does not allege any facts to support a conclusion that the Bridgeport Board of Education was aware of the alleged acts by Tickey. The defendants also argue that the plaintiff's complaint has no allegations that the Board of Education did not have a procedure for sexual harassment claims to be reported, or that even if a procedure was in existence, that the plaintiff was unaware its existence.
In National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 106, a black male, filed a charge of discrimination and retaliation against Amtrak with the Equal Employment Opportunites Commission (EEOC) and cross filed with the California — Department of Fair Employment and Housing. The plaintiff alleged that during the time period that he worked for Amtrak he was "consistently harassed and disciplined more harshly than other employees on account of his race."
The EEOC issued a "Notice of Right to Sue" on July 3, 1996, and the plaintiff filed his lawsuit on October 2, 1996. While some of the allegedly discriminatory acts about which the plaintiff complained occurred within 300 days of the time that he filed his charge with the EEOC, many took place prior to that time period. Amtrak filed a motion, arguing, among other things, that it was entitled to summary judgment on all incidents that occurred more than 300 days before the filing of Morgan's EEOC charge. The District Court granted summary judgment in part to Amtrak, holding that the company could not be liable for conduct occurring before May 3, 1994, because that conduct fell outside of the 300-day filing period. "The District Court held that because the plaintiff Morgan that he was being discriminated against at the time that all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran." Id. at 106.
The United States Court of Appeals for the Ninth Circuit reversed, relying on its previous articulation of the continuing violation doctrine, which "allows courts to consider conduct that would ordinarily be time barred `as long as the untimely incidents represent an ongoing unlawful employment practice.'" 232 F.3d 1008, 1014 (2000) (quoting Anderson v. Reno, 190 F.3d 930, 936 (CA9 1999)). National Railroad Passenger Corp. v. Morgan, supra 107.
In the Ninth Circuit's view a plaintiff can establish a continuing violation that allows recovery for claims filed outside of the statutory period in one of two ways. Id. at 107. First, a plaintiff may show a series of related acts one or more of which are within the limitations period. Such a "serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period." Id. The alleged incidents, however, "cannot be isolated, sporadic, or discrete." Ibid. Second, a plaintiff may establish a continuing violation if he shows "a systematic policy or practice of discrimination that operated, in part, within the limitations period — a systemic violation." Id. at 108; See also, 232 F.3d at 1015-16. The Court of Appeals thus, applied the continuing violations doctrine to what it termed "serial violations," holding that so long as one act falls within the charge filing period, discriminatory and retaliatory acts that are plausibly or sufficiently related to that act may also be considered for the purposes of liability. Id. See also, 232 F.3d at 1015.
In reversing in part and affirming in part, the United States Supreme Court held that a plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period. National Railroad Passenger Corp. v. Morgan, supra 114. However, the court also held that a charge alleging a hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Id. at 115.
In so holding, the Supreme Court stated that each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. A plaintiff can only file a charge to cover discrete acts that occurred within the appropriate time period. While the plaintiff alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through the date that he was fired, only incidents that took place within the timely filing period are actionable. All prior discrete discriminatory acts are untimely filed and no longer actionable. Id. 114-15.
"Hostile environment claims, however, are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann P. Grossman, Employment Discrimination Law 348-49 (3d ed. 1996) ("The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence"). The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Such claims are based on the cumulative effect of individual acts." National Railroad Passenger Corp. v. Morgan, supra, 115.
Thus, "[w]hen the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Systems, Inc., supra, 510 U.S. 21 (citations omitted).
"In determining whether an actionable hostile work environment claim exists, we look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id., at 23. "A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice . . . The timely filing provision only requires that a . . . plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." National Railroad Passenger Corp. v. Morgan, supra 117.
"That act need not, however, be the last act. As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has "occurred," even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole." Id.
"Given, therefore, that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 days . . . of any act that is part of the hostile work environment." Id. at 118. Although many of the acts upon which the plaintiff's claim depends occurred outside the 300-day filing period, they were part of the same actionable hostile environment claim. Id. 120-21.
The decision in National R.R. Passenger Corp. v. Morgan, supra, 536 U.S. 101, as the defendants argue, constrained the applicability of the continuing violation doctrine. "[D]iscrete discriminatory acts are not actionable if time barred, even though they are related to alleged acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180 . . . day time period after the discrete discriminatory act occurred." Id. at 113. Furthermore, "discrete acts that fall within the statutory time period do make timely acts that fall outside the time period." Id. at 112.
Each of the alleged acts by Tickey can be shown to be discrete discriminatory acts that occurred on the date that they happened. The plaintiff had 180 days to file a discrimination claim after the occurrence of each of these acts. The plaintiff, in the majority of occurrences did not file any such claim, and therefore, those acts would be time barred. They cannot be used as a basis for a continuing violation theory. When the time barred acts are not considered by this court, it becomes apparent that the plaintiff has failed to establish a policy or practice of sexual harassment that has been tolerated by the defendant Board of Education. The court agrees with the defendants that all untimely alleged actions that serve as the basis for the plaintiff's quid pro quo sexual harassment claims may not be considered by the court under the continuing violation doctrine.
However, hostile work environment claims are different in kind from discrete acts. Because their very nature involves repeated conduct, the unlawful employment practice, cannot be said to occur on any particular day. National R.R. Passenger Corporation v. Morgan, supra at 115. "Such claims are based on the cumulative affect of individual acts." Id. "A hostile work environment claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice." Id. at 117. "Because such a claim is composed of a series of separate acts that collectively constitute one unlawful employment practice, it does not matter that some of the component acts fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered for the purposes of determining liability. Therefore, a court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Id.
Therefore, this court can consider the plaintiff's untimely filed claims when considering the plaintiff's claim regarding a hostile work environment. The court will discuss the allegations of hostile work environment further in this memorandum of decision.
II Count One: Hostile Work Environment A.
Traditionally, a claim of sexual harassment under federal law has proceeded "on one of two theories: (1) quid pro quo — e.g., favorable treatment in return for sought sexual favors — or (2) hostile work environment." Brittell v. Department of Correction, supra, 247 Conn. 165-66; Gallagher v. Delaney, 139 F.3d 338, 346 (2d Cir. 1998); see Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751-52, 118 S.Ct. 2257, 2264, 141 L.Ed.2d 633 (1998). In order to prevail on a claim of hostile work environment the plaintiff must establish the following five criteria to prove the defendant should be held liable: "(1) she belongs to a protected class; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment . . . and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996), citing Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir. 1986), cert.denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also, Brittell v. Department of Correction, supra, 247 Conn. 148, 186 (Berdon, dissenting).
The Connecticut Supreme Court in Brittell v. Department of Correction, 247 Conn. 148, 179, n. 30, 717 A.2d 1254 (1998) discussed an employer's vicarious liability for a supervisor's sexual harassment as follows:
Although this case was brought alleging a hostile work environment caused by the plaintiff's co-workers, it is worthy of note that the United States Supreme Court, in two recently issued opinions, has clarified the standards for imputing liability to an employee for certain harassing conduct on the part of a supervisor, reducing, to some extent, the importance of the distinction between the two theories for sexual harassment claims. 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). Historically, the lower federal courts had held an employer vicariously liable if an employee established a quid pro quo claim. Burlington Industries, Inc. v. Ellerth, supra, 2264. In Ellerth, the court addressed the issue of whether an employer also may be held vicariously liable for a supervisor's harassment" where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances." (Internal quotation marks omitted.) Id., 2265. The court rejected the notion that "the categories quid pro quo and hostile work environment . . . will be controlling on the issue of vicarious liability." (Emphasis in original.) Id. The court, instead, held: "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." (Citation omitted.) Id., 2270; accord Faragher v. Boca Raton, supra, 2292-93. The court, however, did not alter the standards for establishing a hostile work environment or for imputing liability to an employer for a coworker's harassing conduct.
Brittell v. Department of Correction, 247 Conn. 148, 179, n. 30, 717 A.2d 1254 (1998).
To establish a claim of hostile work environment, "the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . Harris v. Forklift Systems, Inc., supra, 510 U.S. 21 . . ." (Internal quotation marks omitted.) Oncale v. Sundowner Offshore Services, Inc., CT Page 1125 523 U.S. 75-78, 118 S.Ct. 998-1001, 140 L.Ed.2d 201 (1998); Brittell v. Department of Correction, supra, 247 Conn. 167, "[i]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ." (Citations omitted; internal quotation marks omitted.) Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998); Brittell v. Department of Correction, supra at 167.
"A plaintiff pursuing a hostile work environment claim must establish a basis, rooted in common law agency principles, on which to hold an employer liable for the conduct of its employees. Brittell v. Department of Correction, supra, 247 Conn. 167; see also, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2379, 2408, 91 L.Ed.2d 49 (1986)." Gallagher v. Delaney, supra, 139 F.3d 348.
Accordingly, an employer will be held liable for harassment perpetrated by its employees if "the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it." (Emphasis in original; Brittell v. Department of Correction, supra at 167-68; Gallagher v. Delaney, supra, 139 F.3d 348. "Whether an employer has fulfilled [its] responsibility [to take reasonable steps to remedy a discriminatory work environment] is to be determined upon the facts in each case." Id.; Brittell v. Department of Correction, supra at 168-69.
It is a discriminatory practice for an employer to harass an employee on the basis of sex. See General Statutes § 46a-60(a)(8). "Sexual harassment" is 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 decision affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile or offensive working environment." Id.
The plaintiff argues that the complaint does state a cause of action for sexual harassment pursuant to § 46a-60(a)(8)(A) as the pleading alleges "any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . submission to such conduct is made either explicitly or implicitly a term or condition of employment" for the plaintiff. The plaintiff in her objections to the defendants' motion to strike concedes that the complaint does not allege any facts to support a claim of quid pro quo sexual harassment that Tickey "explicitly" conditioned terms or conditions of employment on submission to sexual conduct or sexual advances, as required to establish a claim under § 46a-60(a)(8)(A). The plaintiff in her Memorandum of Law states: "Admittedly, the complaint does not include that allegation, but the plaintiff trusts that the court would agree that the offender might be slightly more discreet." The plaintiff, thus, relies on an argument that submission to sexual advances by Tickey was "implicitly" a term or condition of the plaintiff's employment.
Sec. 46a-60(a)(8) reads as follows:
(a) It shall be a discriminatory practice in violation of this section: (8) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent to harass any employee, person seeking employment or member 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 Merriam Webster Collegiate Dictionary (10th Ed. 1993), defines "implicit" as" capable of being understood from something else, though unexpressed."
As to the plaintiff's argument that she has sufficiently alleged that Tickey made submission to sexual advances an implicit term or condition of employment, the plaintiff argues that the adverse changes in terms or conditions of employment occurred shortly after the plaintiff rejected the alleged sexual advances. The defendants argue that if one were to concede that the social invitation in October 2000, and the invitation to Philadelphia in the spring of 2001 were sexual advances, the adverse changes in the terms and conditions of employment occurred, at a minimum, weeks after the advances. The social invitation occurred in October 2000, and the plaintiff was removed as teacher in charge in November 2000. The invitation to Philadelphia was allegedly made in the spring of 2001, but the next adverse change occurred at the end of August 2001 when Tickey decided that the plaintiff would be removed from the "Student Assistance Team." While it is true that the further the adverse change becomes removed from the alleged act, the temporal proximity argument becomes diluted, the periods of weeks and months between alleged acts and adverse changes contained in the plaintiff's complaint are sufficient to allege a quid pro quo sexual harassment claim based on the implicit conditioning of terms and conditions of employment on submission to sexual advances.
B. Claim for Sexual Harassment Under General Statutes § 46a-60(a)(8)(B).
The defendants argue that if the court only considers the two employment decisions within the 180-day time period a legal theory under § 46a-80(a)(8)(B) is not viable. The court has already determined that it will consider untimely actions in the context of the plaintiff's claim in Count One alleging a hostile work environment. Therefore all of the events from October 2000 through June 2, 2002 are pertinent, as several of the final events were timely filed.
The defendants argue that there is no close temporal proximity as required between the alleged sexual advances or conduct and the adverse employment decisions. The causal connection is normally established by demonstrating that the adverse employment action closely followed the refusal. See Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir. 1990). The court disagrees.
"Because a plaintiff claiming a sexually hostile environment must prove that the sexual harassment was severe and pervasive, courts permit evidence of the existence of a number or series of adverse conditions because the effect of such `adverse conditions in the workplace is cumulative.' Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996). Indeed, one measure of a hostile work environment is `when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive.' (Internal quotation marks omitted.) Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000)." Brittell v. Department of Correction, supra, 247 Conn. 166-67. "Although the events alleged in the complaint occurred over a period of time, there is substantial unity to all the plaintiffs' claims and they are connected to the same subject of action. The complaint alleges facts that describe a common wrongdoer involved in a pattern of discriminatory conduct." Brittell v. Department of Correction, supra, 247 Conn. 166-67; Fairfield Lumber Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884 (1952). The plaintiff's complaint when viewed in a light most favorable to the plaintiff sufficiently demonstrates a unity to her claims and that they are connected to the same subject of action.
C. Claim for Sexual Harassment Under General Statutes § 46a-60(a)(8)(C)
The defendants argue that the plaintiff has failed to plead sufficient facts to support a hostile work environment sexual harassment claim. While the plaintiff alleges that Tickey's conduct was "repeated," "severe," and interfered with her job performance, the defendants claim that the allegations simply depict isolated and discrete incidents that are not a part of a continuous or concerted pattern of conduct by Tickey.
As previously noted herein, untimely actions may be considered by the court in determining the validity of a hostile work environment claim under the theory of continuing violations; see National R.R. Passenger Corp., supra, 536 U.S. 110; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2nd Cir. 1998); State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 473, 559 A.2d 1120 (1989). In National R.R. Passenger Corp, supra, the United States Supreme Court explained the continuing violation theory. "Hostile work environment claims are different from discrete acts . . . Such claims are based on the cumulative effect of individual acts." (Citations omitted; internal quotation marks omitted.) Id. at 115. liability. id. at 117.
"To establish a claim of hostile work environment, the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . Harris v. Forklift Systems, Inc., supra, 510 U.S. 21 . . ." (Internal quotation marks omitted.) Brittell v. Department of Correction, supra, 247 Conn. 166-67; Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). "[I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ." (Citations omitted; internal quotation marks omitted.) Brittell v. Department of Correction, supra; Faragher v. Boca Raton, supra, 524 U.S. 775, 787.
As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive . . . Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness . . . In short, a plaintiff alleging a hostile work environment must either demonstrate either that a single incident was extraordinarily severe or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Alfano v. Costello, 294 F.3d 365, 373, 374 (2nd Cir. 2002).
In the instant case the defendants argue that there were only five arguable instances of inappropriate actions or comments and each was isolated and unrelated. These incidents were not severe acts as interpreted by the courts. Incidents of hugs and kisses were signs of congratulations and well wishes. The conduct was not physically threatening or humiliating, nor does the plaintiff allege she felt threatened or humiliated. As the plaintiff compiled a satisfactory record as a teacher and was granted a voluntary transfer, there is no indication that her work performance suffered as a result of any alleged sexual advances or conduct by the defendant Tickey.
In considering whether an environment is hostile or abusive, the court considers the following factors: (1) the frequency of the alleged discriminatory conduct: (2) its severity; (3) whether it is physically threatening or humiliating; (4) whether it is a mere offensive utterance; (5) whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., supra, 510 U.S. 23. The court finds that the complaint alleges these factors in a manner sufficient to leave it to a trier of fact to determine whether their level of frequency and severity were enough to find that it was reasonable for the plaintiff to feel threatened or humiliated to an extent that it affected her work performance.
The plaintiff, however, to prevail in a claim for a hostile work environment must also establish that the employer knew or should have known of the harassment and failed to take prompt remedial action. Hirras v. National R.R. Passenger Corp., supra, 95 F.3d 399, citing Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also, Brittell v. Department of Correction, supra, 247 Conn. 148, 186 (Berdon, dissenting).
There are no allegations that the plaintiff reported these acts to the employer, which then refused to take remedial action against Tickey. Once an employer has knowledge of a "sexually combative" atmosphere in the workplace, the employer has a duty to take reasonable steps to eliminate it. Snell v. Suffolk County, 782 P.2d 1094, 1104 (2dCir. 1986). Additionally, there are no allegations in the plaintiff's complaint that the defendant Board of Education did not have a procedure for the reporting of sexual harassment claims or; that if the Board did have a procedure, it was insufficient or unreasonable, or; that the plaintiff was unaware of the procedure. The plaintiff has not alleged sufficient facts to indicate that the defendant Board of Education without knowledge of the alleged events, allowed Tickey's practices to continue unremedied for so long as to become a discriminatory policy or practice.
The court emphasizes that sexual harassment in the workplace is intolerable, and, an employer has a serious legal obligation to conduct a reasonably thorough investigation of a harassment complaint. An employer's response to such harassment, however, must be considered in its totality; see Snell v. Suffolk County, supra, 782 F.2d 1105; and its reasonableness viewed in the context of the nature of the harassing conduct. Brittell v. Department of Correction, supra, 247 Conn. 176.
The plaintiff never reported the alleged conduct by Tickey to the Board of Education over the two-year period. The plaintiff voluntarily sought and received a transfer to a different school from the Board of Education. The record in this case does not indicate that the transfer received by the plaintiff was initiated in any way by the Board of Education and that the transfer was onerous, punitive or otherwise unreasonable. Id.
Accordingly, Count One of the plaintiff's complaint alleging a "Hostile Work Environment" is ordered stricken.
III COUNT TWO: RETALIATION
General Statutes § 46a-60(a)(4) makes it a discriminatory practice for an employer "to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory practice or because such person has filed a complaint or testified or assisted in any" Connecticut Human Rights and Opportunities Commission (CHRO) proceeding. To establish a prima facie case for retaliation, the plaintiff must show: (1) participation in a protected activity; (2) knowledge by the defendants of the protected activity; (3) an adverse employment action against the plaintiff based on her protected activity; and (4) a causal connection between the activity and the adverse action. See Gregory v. Daly, 243 F.3d 687, 700 (2nd Cir. 2001).
Sec. 46a-60(a)(4) states as follows:
(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.
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, writing critical letters to customers, protesting against discrimination by industry and expressing support of co-workers who have filed formal charges. Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir. 1990); see also, Gen. Statutes § 46a(a)(4). The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices. Goldieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 291-92 (2nd Cir. 1998).
The defendants argue that the plaintiff has not alleged a single act by the Board or Tickey that occurred after the plaintiff filed her complaint with the CHRO in September 2002. Accordingly, all adverse actions alleged occurred prior to the CHRO complaint. Thus, argue the defendants, actions taken prior to the filing with CHRO cannot be considered in a retaliation claim. Gregory v. Daly, supra, 243 F.3d 701; Matos v. Bristol Bd. of Education, 204 F.Sup.2d 375, 384 (D.Conn. 2002).
The defendants additionally argue that the only other possible protected activity occurred when the plaintiff declined Tickey's social invitation in October 2000, which the plaintiff declined several days later. Assuming that the invitation and conversation content were inappropriate conduct of a sexual nature, they did not constitute protected activity when the plaintiff simply declined the invitation and stated that personal discussions should be avoided in the future. At best add the defendants, the allegations in the plaintiff's complaint portray normal flirtation in the workplace that was proposed and declined, rather than an expression by the plaintiff of opposition to proscribed sexual harassment. See Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. 81 (ordinary socialization and flirtation in the workplace is not discriminatory under Title VII).
The plaintiff argues that protected activity can be comprised of "informal protests" of any "discriminatory practice." See Sumner v. U.S. Postal Service, supra, 899 F.2d 203. The plaintiff states that her complaint alleges (1) that she removed herself from a sexually charged conversation with Tickey; (2) she advised Tickey that a social meeting would be inappropriate; (3) she advised Tickey that she had no romantic interest in her; (4) that further personal discussions were to be avoided; that she enlisted the assistance of her union after Tickey attempted to change her teaching grade; (5) she declined the invitation to go to Philadelphia with Tickey, and (6) that she requested that Tickey cease her criticism of her during a staff meeting. This opposition of the plaintiff consisted of rebuffing Tickey's advances during a two-year period of what the plaintiff terms a "campaign of abuse perpetrated against her."
There 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. Those holding that it isn't 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.
Other courts have held that the refusal to submit to sexual advances does constitute protected activity. The majority of these cases deal with factual circumstances involving repeated sexual advances and touching. Once again, viewing the complaint in a manner favorable to the plaintiff for the purposes of this motion to strike, whether the kisses and hugs by Tickey at work are an inappropriate touching is a question of fact. It is also left to the fact finder to decide if the sexual advances were repeated, including the invitation for a social meeting following the sexually charged conservation and the invitation to Philadelphia.
The more complex issue for the court is whether the plaintiff's declining the invitations for a social meeting and a trip to Philadelphia, and her statement that she was not interested in a relationship with Tickey can reasonably be inferred to be expressions of opposition to sexual harassment. The complaint does allege that the plaintiff had no interest in meeting Tickey outside of the school and that the plaintiff had no interest in having discussions of a personal nature with Tickey within the school. The plaintiff told Tickey that she had no "romantic interest" in Tickey. The plaintiff also resisted a portion of Tickey's alleged reprisals by contacting her union for help, and requested that Tickey cease her admonishment of the plaintiff during a staff meeting. Given the chronological progression of the events alleged in the complaint a finder of fact could find that the alleged acts and conduct are related and constitute more than mere flirtation in the workplace. It is also not illogical to infer that Tickey realized that the plaintiff was protesting Tickey's alleged sexual conduct and/or advances.
In order to maintain her action for retaliation, the plaintiff must also sufficiently allege facts to show that she suffered an adverse employment action based on her protected activity and a causal connection between the activity and the adverse action. See Gregory v. Daly, supra, 243 F.3d 687, 700 (2nd Cir. 2001). The defendants argue that, despite the allegations set forth in the complaint, the plaintiff did not suffer any adverse employment action.
"A plaintiff suffers an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment . . . To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities . . . A materially adverse change might be indicated by a termination of employment, a demotion as evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." (Citations omitted; internal quotation marks omitted.) Galayba v. New York City Bd. of Educ., 202 F.3d 636, 640 (2nd Cir. 2000). The court has recited herein, the actions taken by Tickey that the plaintiff claims were adverse employment actions taken against her as a result of her claimed engagement in protected activity in declining Tickey's alleged sexual actions and/or advances. While these actions by Tickey may have angered the plaintiff, they are not adverse employment actions defined by law to be sufficient to support a retaliation claim. The plaintiff did not suffer an alteration of the terms and conditions of her employment, in that her duties were relatively unchanged. She did not suffer a reduction in pay or material loss of benefits by being denied a teacher in charge position; by being removed from the Student Assistance Team; or failing to be assigned as a mentor. She was not entitled to these positions or privileges as a teacher. These duties were voluntary or incidental to her employment as an elementary school teacher. Her position as a Union representative also was not an entitlement or a requirement of her teaching position. Her voluntary transfer to a new school to a similar position, job title and pay is also not an adverse employment action. Delrio v. University of Connecticut Health Care, 292 F.Sup.2d 412 (D.Conn. 2003); see also, Terry v. Ashcroft, 336 F.3d 128, 144 (2nd Cir. 2003).
Regarding her application for a summer position that Tickey refused to sign, her failure to be hired for this type of position did not affect her current employment with the Bridgeport Board of Education and the terms and conditions of that employment. While it is true that courts have held that a failure to provide post-employment reference letters is an adverse employment action; see Hawkins v. Astor Home for Children, No. 96CIV8778, 1998 WL 142134 (S.D.N.Y. Mar. 25, 1998) (Sotomayor, D.J.), the present claim is not a post-employment factual situation.
The plaintiff has failed to sufficiently allege that she suffered an adverse employment action and therefore, Count Two alleging retaliation is hereby ordered stricken.
IV COUNT THREE: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Count Three of the plaintiff's complaint alleges that Tickey as a result of her harassment of and retaliation against the plaintiff intended to inflict emotional distress upon the plaintiff, or at least should have known that emotional distress was the likely result of her conduct. The plaintiff claims, in fact, that she suffered severe emotional distress by reason of Tickey's aforementioned conduct.
The legal standard for intentional infliction of emotional distress is well "In order for the plaintiff to prevail for a case for liability under . . . (intentional infliction of emotional distress), four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." Id.; Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). "Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, supra, 254 Conn. 210.
"Liability has been found only where the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim. "Outrageous!" . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form a basis for an action based upon intentional infliction of emotional distress." Id., at 210-11.
"It is clear that individuals in the workplace should reasonably expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflict and the like." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002). "Individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluation, both formal and informal, decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance, and disciplinary or investigatory action arising from actual or alleged employee misconduct." Id.
In support of her claim the plaintiff cites Dombrowski v. Envirotest System, Superior Court, judicial district of New Haven at New Haven, No. CV 98 041 2518 (Aug. 10, 1999, Fracasse, J.), 25 CLR 272, as a example of a Connecticut court holding that retaliatory conduct is extreme and outrageous conduct.
In Dombrowski, the plaintiff alleged that the defendants discriminated against the plaintiff based upon her sex, sexual orientation, and in retaliation for filing a complaint with the Commission on Human Rights Opportunities and intentional infliction of emotional distress by the defendants.
The plaintiff in Dombrowski alleged that as a direct and proximate result of the defendant's acts and omissions, she was denied a promotion, was transferred and subsequently constructively discharged from her employment with Envirotest, and thereby suffered the loss of her employment, wages and benefits. Specifically, she alleges that she was subject to verbal taunting by co-workers and threatened with bodily harm, on the basis of her sex and sexual orientation. After reporting these incidents to the human resources department, the plaintiff alleges that no subsequent action was taken. She also alleges that she was given a promotion which was almost immediately withdrawn by the defendant. After a meeting to resolve the promotion situation, the defendant observed how upset the plaintiff was as a result of the chain of events which had transpired. The plaintiff was then advised by the defendant Jackson not to report to work until contacted by the company. A few days later, the plaintiff alleged that she was told by the company that she was being transferred to a different work location. When the plaintiff expressed her dissatisfaction with the proposed transfer, she was given the option to either submit her resignation or accept the transfer. The plaintiff accepted the transfer, however, and allegedly, this resulted in her working fewer hours, being paid a lower rate and not being paid accurately for all the hours she worked, ultimately resulting in a constructive discharge. The court (Fracasse, J.) found that the allegations as pleaded by the plaintiff were sufficient to withstand the defendants' motion to strike stating that "Reasonable minds may differ as to whether the alleged conduct of the defendant Jackson amounts to extreme and outrageous conduct".
The Court has reviewed Dombrowski and differs with the plaintiff's interpretation of the Dombrowski court's holding. The court in Dombrowski did not declare the actions of the defendants "extreme and outrageous." The court only denied the defendant's motion to strike leaving the question as to whether the conduct was extreme and outrageous to the jury.
The defendants in the present case argue that Tickey's actions do not rise to the level of "extreme and outrageous conduct as interpreted by our Connecticut courts." "A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." Craddock v. Church Community Supported Living Assn., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 592711 (November 13, 2000, Hennessey, J.).
In several cases, the judges of the Superior Court have found that a defendant's conduct was not sufficiently egregious to sustain an action for intentional infliction of emotional distress. See Jeffress v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket No. 386866 (August 28, 1997, Silbert, J) (defendants subjected plaintiff to a continuous pattern of harassment, humiliation and degradation); Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 377376 (October 29, 1999, Licari, J.) (defendant did not allow plaintiff to respond to allegations made about his conduct or confront other employees that had a problem with his conduct); Henderson v. Hoban, Superior Court, judicial district of New Haven at New Haven, Docket No. 391352 (July 10, 1998, CT Page 7636, Levitt, J.) (defendant shouted at plaintiff, threatened to strike her, verbally attacked her, threatened and abused her); Baricko v. Chesebrough-Ponds USA, Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 395642 (December 26, 2000. Zoarski J.) (supervisor actively attempted to eliminate plaintiff from employment, prevented plaintiff from using vacation time and played fellow employees against each other).
On the other hand, in those cases where the courts have found that the defendant's behavior was sufficiently extreme or outrageous to give rise to an intentional tort, the circumstances have been particularly egregious. See Brown v. Ellis, 40 Conn. Sup. 165, 165-68, 484 A.2d 944 (1984) (defendant demanded that plaintiff employee, known to have fear of heights, take photographs from high places); Taylor v. Phyllis Bodel Childcare Center, Superior Court, judicial district of New Haven at New Haven, Docket No. 377237 (July 10, 1996, Licari, J.) (defendants accused plaintiff of child abuse and professional misconduct without investigating such claims, portrayed her as incompetent and unprofessional in evaluations to justify her termination and prevent future employment).
The court notes the decisions of the superior courts where alleged sexual conduct, sexual contact and unwanted touching were determined not to be "extreme and outrageous." See Daigenault v. Consolidated Controls, Superior Court, judicial district of Danbury, No. CV 99 0334518 (Jun. 11, 2002, Doherty, J.) (unwanted shoulder massage and hugs); Gur v. Nemeth-Martin Personnel Consulting, Inc., Superior Court, judicial district of Danbury. No. CV98 033 11 18 S (March 20, 2001, Adams, J.) (the use of double entendres, word play, jokes, conversations and gestures in sexual context; viewing pornography within the view of other workers; single incident of graphic verbal reference to a homosexual act and a women's sexual act; single incident of sexually explicit word).
Several court decisions have found that certain acts can survive a motion to strike. However, in those cases the acts relating to sexual conduct were much more continuous and constant than in the present case. See Leone v. New England Communications, Superior Court, judicial district of New Britain at New Britain, Docket No. CV01 0509752 (April 10, 2002, Quinn, J.) ( 32 Conn. L. Rptr. 72) (constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff's computer, and insulting comments on his sexual preference); Lin v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket No. CV96 0384551, (Aug. 25, 1998, Hartmere, J.) (supervisors subjected employee to daily acts of sexual assault and battery, threatening statements and termination after employee reported this conduct).
The court has had the opportunity to review the plaintiff's allegations in depth when determining whether the plaintiff has alleged sufficient facts to maintain her claims of hostile work environment and retaliation as set forth in Counts One and Two of the complaint. The court determined that Counts One and Two should be stricken. The allegations of the complaint and more particularly Count Three, do not amount to the atrocious and utterly intolerable behavior necessary to support the plaintiff's cause of action in Count Three. The plaintiff's allegations are insufficient to meet the standard of "extreme" and "outrageous" conduct required in order to sustain an action for the intentional infliction of emotional distress. Accordingly, Count Three is hereby ordered stricken.
SUMMARY
The court hereby grants the defendants' motion to strike and orders that Counts One, Two and Three are hereby stricken.
THE COURT
By Arnold, Judge