Opinion
AANCV176025114
07-10-2018
Helen SIERANSKI v. TJC, ESQ., A Professional Services Corporation
UNPUBLISHED OPINION
OPINION
TYMA, J.
The defendant, TJC Esq., A Professional Services Corporation, moves to strike all three counts of the complaint filed by the plaintiff, Helen Sieranski, claiming that it fails to allege legally sufficient causes of action for wrongful termination in violation of public policy, pregnancy discrimination, and gender discrimination. The plaintiff objects contending that she has pleaded legally sufficient actions.
On November 13, 2017, the plaintiff filed the three-count complaint against the defendant, alleging common-law wrongful discharge in violation of public policy embodied in General Statutes § § 3-94h and 53a-157b, pregnancy discrimination in violation of General Statutes § 46a-60(b)(7), and gender discrimination in violation of General Statutes § 46a-60(b)(1). In her complaint, the plaintiff alleges the following facts. On October 12, 2016, the plaintiff began employment as a litigation paralegal for the defendant. She recently had a child, and was still breastfeeding at the time she was hired. The plaintiff reported in the firm to Attorney Brooke Goff. During the plaintiff’s employment, Attorney Goff regularly asked the plaintiff if she planned on having another child, and, if so, when. Attorney Goff told other employees in the office that the plaintiff was pregnant, although she was not.
The plaintiff mistakenly cites to General Statutes § 46a-60(a)(1) and (7), instead of General Statutes § 46a-60(b)(1) and (7), in her complaint. Section 46a-60 was recently amended by No. 17-118 of the 2017 Public Acts, effective October 1, 2017, to add definitions to subsection (a), thereby relocating the previous subsection (a) to subsection (b). The court will, therefore, cite to § 46a-60(b)(1) and (7).
On March 15, 2017, in response to a phone message left by Attorney Goff, the plaintiff returned her call. Attorney Goff asked the plaintiff if she was pregnant. The plaintiff responded that "she wasn’t sure, it’s possible and inquired as to why Attorney Goff was asking." Attorney Goff informed the plaintiff that "she had seen a psychic and the psychic had told her that [the] plaintiff was pregnant." On March 23, 2017, Attorney Goff realized that a deadline to appeal an arbitrator’s decision on a case had lapsed. Goff asked the plaintiff to prepare an affidavit that stated that the defendant had never received the arbitrator’s decision. The plaintiff drafted the affidavit, but refused to notarize it because she knew the information in it was not true as the defendant received the decision. On March 27, 2017, the plaintiff told Attorney Goff that "she was feeling nauseous an[d] at that time told Attorney Goff she was 99.9% sure she was pregnant." On March 31, 2017, the defendant terminated the plaintiff’s employment claiming "she was not a good fit." The present action ensued.
The defendant filed a motion to strike the plaintiff’s complaint on the grounds that: (1) count one fails to allege sufficient facts to establish that the employer’s conduct at issue contravenes the cited public policy; (2) count two fails to allege that the plaintiff was a member of the protected class at the time of the alleged discriminatory conduct; and (3) count three fails to allege that the plaintiff was a member of the protected class, and that her termination was due to gender. On February 16, 2018, the plaintiff filed a memorandum of law in opposition to the defendant’s motion to strike. On March 6, 2018, the defendant filed reply memorandum. The court heard oral argument on the matter on March 12, 2018.
In the defendant’s reply, it addresses the plaintiff’s request to amend the complaint contained within her opposition memorandum. In her opposition memorandum, the plaintiff requests to modify count two to allege pregnancy discrimination in violation of § 46a-60(b)(9), instead of § 46a-60(b)(7). The defendant, in its reply, argues that the Superior Court lacks subject matter jurisdiction over the plaintiff’s claim that the defendant violated § 46a-60(b)(9) because the plaintiff has failed to exhaust her administrative remedies.
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest ... the legal sufficiency of ... any one or more counts ... to state a claim upon which relief can be granted ..." "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [W]e construe the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
I
WRONGFUL TERMINATION
The defendant moves to strike the first count for the reason that the plaintiff has failed to allege that the defendant’s action in terminating her employment violated a clear and important public policy. The plaintiff opposes the motion asserting that the defendant’s action violated § § 3-94h and 53a-157b.
"In Sheets v. Teddy’s Frosted Foods, Inc., [ 179 Conn. 471, 475, 427 A.2d 385 (1980) ] ... we recognized ... a common law cause of action in tort for discharges if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy ... This public policy exception to the employment at will rule carved out in Sheets attempts to balance the competing interests of [the] employer and [the] employee. Under the exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy. The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Morris v. Hartford Courant Co., 200 Conn. 676, 678-79, 513 A.2d 66 (1986).
"The question of whether a challenged discharge violates public policy ... is a question of law to be decided by the court ..." Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "In Morris v. Hartford Courant Co., supra, , we recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [w]e look to see whether the plaintiff has ... alleged that his discharge violated any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy ... Faulkner v. United Technologies Corp., [supra, 580-81]." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 698-99, 802 A.2d 731 (2002).
"[W]e repeatedly have underscored our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one ... Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer’s violation of an important and clearly articulated public policy." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 408, 142 A.3d 227, 242 (2016).
In the present case, the plaintiff alleges in the first count of her complaint that she was wrongfully terminated in violation of the public policy found in § § 3-94h and 53a-157b. The plaintiff’s claim that the defendant’s actions violated the public policy is grounded on her allegation that "[t]he [d]efendant terminated the [p]laintiff in retaliation for refusing to notarize a false affidavit." The defendant moves to strike the claim for wrongful discharge for the reason that the plaintiff has failed to plead any facts that implicate those statutes, or that her discharge was in violation of the public policy embodied in those statutes.
Section § 3-94h provides in relevant part: "A notary public shall not (1) perform any official action with intent to deceive or defraud ..."
Section § 53a-157b(a) provides: "A person is guilty of false statement when such person (1) intentionally makes a false written statement that such person does not believe to be true with the intent to mislead a public servant in the performance of such public servant’s official function, and (2) makes such statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable." Pursuant to § 53a-157b, it is required that "the defendant made a false statement under oath, that he knew the statement to be false when he made it and that he intended to mislead a public servant in the performance of his official functions." State v. Brazzell, 38 Conn.Supp. 695, 697, 460 A.2d 1306 (1983).
In support of her claim, the plaintiff alleges that Attorney Goff, in response to the defendant missing a time limitation for filing an appeal of an arbitrator’s decision, requested that she prepare an affidavit stating that the defendant did not receive the decision. The plaintiff knew that the representation was untrue. She drafted the affidavit, but refused to notarize it "because she knew it was false." The plaintiff further alleges that "[for the rest of the week Attorney Goff kept asking [the] plaintiff what the status was for the affidavit, and [the] plaintiff repeatedly stated it was not filed because [the] plaintiff would not sign it."
The defendant claims that the first count should be stricken because the defendant’s alleged conduct does not fall within the scope of the public policy related to those statutes. The plaintiff disagrees asserting that the "statutes outline a general policy against making false statements and a notary performing any action with the intent to deceive or defraud," and, therefore, support a claim for wrongful termination in violation of public policy. More particularly, the plaintiff alleges that she was terminated by the defendant "in retaliation for refusing to notarize a false affidavit," and that the defendant’s action against her violates the public policy emanating from those statutes.
The court concludes that § 53a-157b(a) is inapplicable, and fails to support the public policy limitation on the employee at will doctrine. That statute makes it a crime for a person to make a false statement within the terms of the statute. Here, the plaintiff failed to allege the content of the affidavit, or that anyone made a false statement intended to mislead a public official, or made such a statement under oath. At most, the plaintiff alleges that she prepared a document at the request of Attorney Goff that was not signed or notarized.
The court also concludes that § 3-94h is inapplicable, and fails to support a claim for wrongful termination in violation of public policy. Notaries public are subject to the provisions of General Statutes § § 3-94a through 3-95. Notaries have the authority to administer oaths, General Statutes § 3-94a(7); take an acknowledgement certifying that the signer of the document has satisfactorily identified himself, and admitted in the notary’s presence "to having voluntarily signed the document for its stated purpose," § 3-94a(1); and, by jurat certify that the identified person under oath "vouch[ed] for the truthfulness of the signed document." § 3-94a(3). As the statutory scheme demonstrates, a notary has the authority to administer oaths, take an acknowledgement, and provide a jurat, but does not have the power to themselves affirm the truth of the contents of the document signed by another. The document signer swears to the truth of the content of the document, instead, the notary just affirms that the signer vouched for the truthfulness.
Acts that are prohibited by notaries are defined in § 3-94h. Number 91-110, § 4 of the 1991 Public Acts deleted the prohibition that a notary shall not notarize a document containing a statement known by a notary to be false or notarize a blank document. The deleted prohibition was replaced by the present statutory language that prohibits a notary from "performing any action with the intent to deceive or defraud."
In the present case, the plaintiff’s complaint only alleges that the defendant terminated her for refusing to notarize "a false affidavit." The plaintiff only alleges facts to the extent that she was asked in her position as paralegal to prepare an affidavit she knew was to contain false information, drafted the document as requested by her supervisor in the office, but refused to notarize it. The plaintiff is not the affiant of the document. In fact, there are no allegations that the affidavit was signed or acknowledged, and that identify the purported affiant. Rather, the plaintiff prepared the document in her paralegal capacity, and refused to sign it in her notary capacity. Accepting the allegations as true, the plaintiff fails to make any allegations that the defendant terminated the plaintiff because she refused to perform an official notary act with the intent to deceive or defraud. In view of the foregoing, the motion to strike the first count is granted.
II
CLAIM FOR PERCEIVED PREGNANCY DISCRIMINATION
The defendant moves to strike the second count purportedly sounding in perceived pregnancy discrimination claiming that the plaintiff fails to allege that she was a member of a protected class at the time of the defendant’s alleged discriminatory conduct against her, and there is no legally cognizable action in Connecticut based on perceived pregnancy discrimination. Specifically, the defendant contends that the plaintiff fails to allege that she was pregnant during her employment, or "that she was affected by her pregnancy or a related medical condition" at the time the defendant terminated her employment. The plaintiff counters that the second count is legally sufficient as it is grounded on a claim of perceived pregnancy discrimination; that is, the defendant "perceived the plaintiff to be pregnant and terminated her employment due to this pregnancy."
"The legal standards governing discrimination claims involving adverse employment actions are well established. The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. Lyon v. Jones, 291 Conn. 384, 406-07, 968 A.2d 416 (2009). We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both ... Under this analysis, the employee must first make a prima facie case of discrimination ... In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015).
The Connecticut Fair Employment Practices Act (act) provides that "[i]t shall be a discriminatory practice ... [f]or an employer ... to discharge from employment any individual ... because of ... the individual’s sex ..." General Statutes § 46a-60(1). Sex discrimination includes "discrimination related to pregnancy." General Statutes § 46a-51(17). It is a discriminatory practice "[f]or an employer ... (A) [t]o terminate a woman’s employment because of her pregnancy ..." § 46a-60(b)(7).
Pregnancy discrimination claims under the act are analyzed similarly to claims under federal law. Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996). "Courts have found that an employee terminated while pregnant, on maternity leave, or soon after returning from maternity leave, is a member of a protected class." Briggs v. Women in Need, Inc., 819 F.Supp.2d 119, 127 (E.D.N.Y. 2011).
The plaintiff does not allege that she was pregnant during her employment with the defendant or at the time the defendant terminated her. The issue raised by the defendant’s motion to strike is whether Connecticut recognizes a cause of action for discrimination based upon an employer’s perception that the employee is pregnant. The issue has not been directly addressed by our appellate courts. The defendant contends that, as a matter of statutory construction, that the Act "does not recognize a claim potential pregnancy or presumed pregnancy." The plaintiff agrees with the defendant that the act does not expressly recognize such an action, but contends that the rationale of our Supreme Court in case of Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 105 A.3d 103 (2014), provides persuasive authority for a cause of action for perceived pregnancy discrimination.
In Desrosiers, the plaintiff brought an action against, among others, the named defendant, her employer, claiming that the defendant discriminated against her in terminating her employment on the basis of her physical disability and/or perceived physical disability. Id., 778. A review of the lengthy procedural history is not necessary to decide the present motion. The Supreme Court granted the plaintiff’s petition for certification to appeal from the Appellate Court’s affirmance of the trial court’s decision granting summary judgment for the defendant. Id., 780. The certified appeal was limited to the issue of whether "the Appellate Court properly affirm[ed] the trial court’s granting of summary judgment in favor of the defendant[s] on the basis that Connecticut does not recognize a cause of action for discrimination based on a perceived physical disability." (Internal quotation marks omitted.) Id.
The Supreme Court reviewed the text of the statute and concluded as follows: "As a result, upon considering the text of § 46a-60(a)(1) and the related provisions of § 46a-51(15) and (20), we agree with the Appellate Court’s conclusion that the text of § 46a-60 is clear and unambiguous in that it does not cover claims of discrimination based on a perceived physical disability." (Internal quotation marks omitted.) Id., 784. Despite having found the statutory language to be clear and unambiguous, the Supreme Court further concluded that a literal application of the statute would lead to a bizarre result. "Namely, under the plain language of § 46a-60(a)(1), if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of § 46a-60(a)(1) do not protect the employee from discharge on that basis, despite the fact that the employer’s action, in both cases, was premised on the same discriminatory purpose. Similarly, under Diageo’s interpretation of § 46a-60(a)(1), an employee who is discharged because his employer believes a rumor that he has a chronic impairment can pursue a cause of action, but only if the rumor is true and the employee actually has the chronic impairment. If the rumor is false, and the employee does not have the impairment, but is merely believed to have the impairment, the employee has no recourse, despite the fact that in either case the employer’s action was based on the same discriminatory motive. That scenario is contrary to the very idea of an antidiscrimination statute and is inconsistent with the legislature’s clear statement that discrimination based on a physical disability is prohibited ... Because a literal interpretation of § 46a-60(a)(1) would lead to a bizarre result, we must examine other sources, including the legislative history of the act, case law and the decisions of the commission. After careful review of these sources, we conclude that § 46a-60(a)(1) prohibits employers from discriminating against individuals who are perceived to be physically disabled." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 785-86.
The Supreme Court reviewed the legislative history of the act first published in No. 73-279, § 14 of the 1973 Public Acts along with decisions of the Commission on Human Rights and Opportunities (commission) addressing claims of discrimination based on a physical disability. Id., 786-94. The Supreme Court reasoned as follows: "After considering the intended scope of the term physically disabled in the context of the legislative history of the act and the decisions of the commission, we conclude that § 46a-60(a)(1) protects individuals who are regarded as physically disabled from employment discrimination. To interpret the statute otherwise would be inconsistent with the legislature’s efforts to define physically disabled to cover as many people as possible under the definition and leave it open and broad ... and with the legislature’s consistent intent to increase protections for individuals with disabilities ... We decline to interpret § 46a-60(a)(1) in a manner that would thwart this purpose ... As a result, we conclude that § 46a-60(a)(1) prohibits employers from discriminating against individuals whom they regard as physically disabled ..." (Citations omitted; internal quotation marks omitted.) Id., 794.
Although Desrosiers concerned a claim of perceived physical discrimination, the Supreme Court’s reasoning provides strong persuasive authority that a cause of action based on a claim that the defendant terminated the plaintiff’s employment because it regarded, or perceived, her as pregnant is a legally recognizable claim in Connecticut. Significantly, the same statute at issue in Desrosiers that prohibits discrimination based on an individual’s physical disability, § 46a-60(a)(1), also prohibits employers from discriminating against individuals because of an individual’s sex, which includes discrimination related to pregnancy. § 46a-51(17).
Therefore, the court concludes that the reasoning in Desrosiers supporting the Supreme Court’s conclusion that a cause of action based on a perceived physical disability is legally recognized in Connecticut is applicable to an action based on sex and/or perceived pregnancy disability. To conclude otherwise would lead to the same bizarre result under the same statute as the Supreme Court discussed in Desrosiers. Namely, an employer’s action based on the same discriminatory motive of terminating an individual’s employment because the employer regards the individual as pregnant would only be a legally recognizable claim if the individual is actually pregnant, as opposed to being regarded as pregnant. "That scenario is contrary to the very idea of an antidiscrimination statute and is inconsistent with the legislature’s clear statement that discrimination based on" sex is prohibited, as it is to discrimination based on physical disability. (Internal quotation marks omitted.) Id., 785-86. "To interpret the statute otherwise would be inconsistent with the legislature’s efforts to define [disabilities] to cover as many people as possible under the definition[s] and leave it open and broad ... and with the legislature’s consistent intent to increase protections for individuals with disabilities." (Citation omitted; internal quotation marks omitted.) Id., 794.
In view of the foregoing, the court concludes that § 46a-60(a)(1) prohibits employers from discriminating against individuals based on a perceived sexual disability of pregnancy. Put another way, § 46a-60(a)(1) prohibits employers from discriminating against individuals whom they regard as pregnant.
In the present case, the plaintiff makes the following allegations relating to her claim that the defendant discriminated against her on the basis of the employer’s perception that she was pregnant. The plaintiff told Attorney Goff that she recently had a child that she was breastfeeding, and inquired whether there was a room for her to use her pump. Attorney Goff would regularly ask the plaintiff if she planned on having another baby, and if so, when. Another time, Attorney Goff told the plaintiff that she had seen a psychic who told her that the plaintiff was pregnant. On March 27, 2017, Attorney Goff asked the plaintiff how she was feeling. The plaintiff responded that "she was 99.9% sure she was pregnant." The defendant terminated the plaintiff’s employment on March 31, 2017, for the purported reason that "she was not a good fit." These facts, taken in a light most favorable to the plaintiff, demonstrate that the plaintiff has pleaded sufficient facts to allege membership in a protected class. As a result, the plaintiff’s perceived pregnancy discrimination claim is legally sufficient, and the defendant’s motion to strike the second count of the complaint is denied.
The court will not consider the plaintiff’s request for leave to amend her complaint seeking to change the basis for her perceived pregnancy discrimination claim from § 46a-60(b)(7) to § 46a-60(b)(9), as it was not filed in accordance with your rules of practice. See Practice Book § 10-60.
III
GENDER DISCRIMINATION
The defendant moves to strike the third count of gender discrimination for the reason that the plaintiff has failed to sufficiently allege the legal elements to support her claim. Specifically, the defendant contends that the plaintiff has failed to allege that she was a member of a protected class, and that she was treated less differently from similarly situated male employees. The plaintiff responds, in conclusory fashion, that she has pleaded facts supporting her gender discrimination claim. She contends that the same facts that support her perceived pregnancy discrimination claim support her gender discrimination action.
The framework this court employed in assessing the plaintiff’s disparate treatment discrimination claim in the second count of her complaint, which was adapted by Connecticut from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802, and its progeny, applies to the analysis of the claim in the third count for gender discrimination. The act provides that "[i]t shall be a discriminatory practice ... [f]or an employer ... to discharge from employment any individual ... because of ... the individual’s ... gender ..." § 46a-60(1).
The plaintiff has alleged in her complaint that she is a member of a protected class, that is, gender. The plaintiff, as a female, is in a protected class. See Sweeney v. Research Foundation of State University of N.Y., 711 F.2d 1179, 1185 (2nd Cir. 1983). The defendant additionally asserts that the plaintiff has failed to allege any facts from which an inference of discrimination may be drawn. "To meet the fourth prong of that prima facie showing, a female employee must establish that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred ... In other words, the female employee must show that in all material respects, she was similarly situated to a male employee, but was treated differently on the basis of her gender." (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 226, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).
In her complaint, the plaintiff does not allege any instances where similarly situated male individuals were treated differently than she was. As a result, the plaintiff has failed to allege a prima facie case of gender discrimination. Therefore, the defendant’s motion to strike the third count of the plaintiff’s complaint is granted.
IV
CONCLUSION
In summary, the defendant’s motion to strike the first and third counts of the plaintiff’s complaint is granted. The motion to strike the second count is denied.