Opinion
No. CV054006524S
December 28, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #121
On June 1, 2006, the plaintiff, Siriwat Singhaviroj, filed a two-count second amended complaint against the defendants, the town of Fairfield, the Fairfield board of education (board), Howard Zwickler, the business director for the board and Margaret Mary Fitzgerald, the assistant superintendent of human resources for the board. In count one, the plaintiff alleges that the defendants unlawfully terminated him in violation of the constitution of Connecticut, article first, §§ 8 and 20, the fourteenth amendment to the United States constitution, and 42 U.S.C. § 1983 and denied him of his due process rights of fair notice and hearing and violated his right to equal protection. In count two, the plaintiff brings an indemnification action against Fairfield and the board pursuant to General Statutes § 7-465.
The Superior Court has previously struck both counts of the original complaint and both counts of the first amended complaint. See Singhaviroj v. Fairfield Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (August 10, 2005, Skolnick, J.); Singhaviroj v Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (May 17, 2006 Gilardi, J.).
Article first, § 8 of the constitution of Connecticut provides in pertinent part: "No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed." Article first, § 20 provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
The plaintiff bases his § 1983 claim on an alleged violation of his fourteenth amendment right to equal protection. Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . ."
Section 7-465 provides in relevant part: "Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ."
The plaintiff alleges the following facts in the second amended complaint:
In 1996, the plaintiff commenced employment with the defendants as a senior field engineer in the information technology department. On May 16, 2003, the defendants conducted an investigation into problems with the board's computer network. The defendants concluded that the plaintiff was responsible for the network problems, and on August 20, 2003 requested that he "resign or the defendants would terminate the plaintiff from his employment alleging he failed to adequately explain the problems and disruptions which had allegedly occurred on the defendant's computer network." The plaintiff informed the defendants that he had not received fair notice and an opportunity to respond to the allegations against him. On September 22, 2003, the defendants notified the plaintiff that his termination was under consideration, and the plaintiff would receive a pre-termination hearing. On April 8, 2004, after the pre-termination hearing, the defendants terminated the plaintiff.
On June 15, 2006, the defendants file a motion to strike both counts of the second amended complaint on the ground that the plaintiff fails to state a claim upon which relief can be granted by law. The defendants have submitted a memorandum of law in support of the motion. On August 23, 2006, the plaintiff filed a memorandum of law in opposition. The defendants filed a reply memorandum on August 25, 2006. The matter was heard on the short calendar on August 28, 2006.
On June 13, 2006, the defendants moved the court to enter judgment against the plaintiff on the ground that the plaintiff failed to replead within fifteen days of the court's granting the defendants' motion to strike. On June 15, 2006, the defendants objected to the plaintiff's second amended complaint on two grounds: (1) the plaintiff failed to file a request for leave to amend; and (2) the "said complaint seeks to replead allegations already stricken by the court."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
The defendants move to strike the second amended complaint on the ground that the plaintiff fails to state a claim upon which relief can be granted by law. According to the defendants, the plaintiff's due process claim is insufficient as a matter of law for two reasons. First, the plaintiff fails to allege a so-called, stigma plus claim and therefore fails to sufficiently allege a liberty interest. The plaintiff does not allege that the defendants' negative comments about him were publicly disclosed and harmed his reputation. He only alleges that the comments would likely be disclosed in the future when he seeks future employment opportunities. In the alternative, the defendants argue that the plaintiff has received all the process that he is due. They cite to Singhaviroj v. Fairfield Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (August 10, 2005, Skolnick, J.), in which the court stated in dicta that "[e]ven if the plaintiff had alleged facts that demonstrate that he had a property interest in his employment, the defendants did give the plaintiff a pre-termination hearing." The defendants also contend that the plaintiff's equal protection claim is insufficient as a matter of law because the plaintiff has failed to adequately plead ill will, or personal animus as case law requires. According to the defendants, while proof of ill will or personal animus is not an essential element of a class of one equal protection claim, a review of case law fails to reveal a decision holding that ill will is not required in a class of one claim.
In the two previous decisions, the court ruled that the plaintiff did not adequately plead a property interest in his continued employment. See Singhaviroj v. Fairfield Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (August 10, 2005, Skolnick, J.) (ruling that the plaintiff did not allege facts to support that he was more than an at-will employee entitled to dismissal only for cause); Singhaviroj v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (May 17, 2006, Gilardi, J.) (ruling that the plaintiff did not sufficiently allege facts that an implied contract existed, which would provide the plaintiff a property right in his continued employment).
In response, the plaintiff counters that he has properly pleaded due process and equal protection violations. With respect to the due process claim, he argues that he has alleged sufficient facts to indicate that he had a liberty interest and that his termination did not accord with due process. Specifically, he contends that he has sufficiently alleged a stigma plus claim. The defendants made stigmatizing comments about his professional competence and dishonesty. These comments will be publicly disclosed when he applies for future employment and will impair his employment opportunities. With respect to the equal protection claim, the plaintiff argues that he has sufficiently alleged a class of one claim. He disputes the defendant's argument that he does not sufficiently plead this claim because he has not alleged ill will.
I COUNT ONE Due Process Claim
The plaintiff alleges that the defendants deprived him of liberty without due process of law. In paragraph thirteen of the complaint, the plaintiff alleges that the defendants falsely accused him of engaging in wrongful conduct during the course of his employment. According to paragraph seven of the complaint, these alleged accusations consisted of comments that the plaintiff failed to adequately explain the problems and disruptions which occurred on the defendant's computer network. In doing so, the plaintiff pleads a stigma plus claim: the defendants made accusations about him, which will be publicly disclosed to future employers and will damage his opportunities for employment. The plaintiff does not allege that the accusations have already been publicly disclosed and hindered his opportunities for future employment. Rather, he cites case law, and argues that it suffices that the comments have been placed in his personnel file and will likely be disclosed to employers.
In response, the defendants dispute that the plaintiff sufficiently alleges a stigma plus claim. They emphasize the public disclosure requirement for a stigma plus claim and argue that the plaintiff has not alleged that the defendants made the accusations public. It is not enough, the defendants maintain, that the plaintiff "has only made a conclusory allegations that disclosure is likely to occur." Further, the defendants argue, public disclosure of comments in the plaintiff's personnel file would be in violation of General Statutes § 31-128f, which prevents an employer from publicly disclosing information in an employee's personnel file without the employee's written authorization.
General Statutes § 31-128f provides in pertinent part: "No individually identifiable information contained in the personnel file . . . of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee . . ."
"Under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a plaintiff claiming due process protection under the Fourteenth Amendment must possess a property or liberty interest that is somehow jeopardized by governmental action, necessitating a pre-or post-deprivation hearing as a safeguard . . . However, [t]he Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions . . . [G]overnment acts defaming an individual implicate a liberty interest only where the individual suffers a related alteration of his legal status or deprivation of a right recognized under state law . . . Accordingly, damage to reputation alone is insufficient to establish a claim for harm to a liberty interest . . . [A] cognizable claim will lie [only] if a plaintiff can show loss of reputation plus some serious additional harm, such as loss of employment, as a result of defamatory remarks by a government official." (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 436-37, 673 A.2d 514 (1996).
"In order to fulfill the requirements of a stigma-plus claim arising from the termination from government employment, a plaintiff must first show that the government made stigmatizing statements about him — statements that call into question plaintiff's good name, reputation, honor, or integrity . . . Statements that denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession may also fulfill this requirement . . . A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false . . . Second, a plaintiff must prove these stigmatizing statements were made public . . . And third, plaintiff must show the stigmatizing statements were made concurrently in time to plaintiff's dismissal from government employment . . . If a plaintiff successfully proves his stigma-plus claim, due process requires that as a remedy he be given a post-deprivation opportunity to clear his name." (Citations omitted; internal quotation marks omitted.) CT Page 23490 Patterson v. Utica, 370 F.3d 322, 330 (2d Cir. 2004).
In this case, for two reasons, the court finds that the plaintiff fails to allege a stigma plus claim and therefore does not sufficiently allege a due process claim. First, the plaintiff has not pleaded any facts that suggest that the defendants made stigmatizing comments about him that would hinder his continued practice as an information technology engineer. See Huntley v. Community School Board of Brooklyn, 543 F.2d 979, 984 (2d Cir. 1976), cert. denied, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 773 (1977). In Huntley, the school board read a litany of negative charges about Huntley at a public board meeting in the course of terminating his employment. Id., 985. The charges included: "Huntley failed to demonstrate that quality of leadership necessary to effectively deal with the educational program; that he was responsible for the rapid deterioration of the school; that he had not provided for the basic safety of the children and staff; and that his leadership had created a climate of confusion and discontent." (Internal quotation marks omitted.) Id. The court found these statements "surely stigmatized Huntley within the meaning of Board of Regents v. Roth" and therefore implicated a liberty interest. Id. "Having discharged Huntley with a public statement of these charges, it is unlikely that Huntley would ever have a chance to obtain another supervisory position — in the public schools or elsewhere." Id.
Here, the defendants allegedly made false accusations that the plaintiff engaged in wrongful conduct during the course of his employment. These accusations are not the "strongly negative litany of published remarks that have been held to effectively foreclose future employment opportunities." Stosuy v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 98 0358369 (August 30, 1999, Nadeau, J.); See Huntley v. Community School Board of Brooklyn, supra, 543 F.2d 985; Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 631 (2d Cir. 1996), cert. denied, 519 U.S. 1150, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997) (finding "strongly negative" evaluations of an assistant principal were "so harsh as to be likely to persuade any other school board not to hire plaintiff as a supervisor"); Segal v. New York, 459 F.3d 207, 213 (2nd Cir. 2006) (stating that a report and letter, which all but accused Segal of inflicting corporal punishment upon a student would be "highly stigmatizing and damaging"). Accordingly, the plaintiff has not alleged that the defendants have damaged his reputation to such an extent that he cannot earn a living as an information technology engineer in the future.
The plaintiff also does not allege statements that impugn his competence as a professional. While the plaintiff states in his memorandum of law that the defendants made stigmatizing comments about his professional competence, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. Further, to sufficiently plead a liberty interest, the plaintiff must allege more than general statements of incompetence. See O'Neill v. Auburn, 23 F.3d 685, 693 (2d Cir. 1994). In O'Neill, a city engineer alleged that the defendants "stigmatized him by publicizing allegations impugning his professional competence" to a local newspaper who later published the statements. Id., 690. The court found that "the vague statements of unspecified incompetence did not damage O'Neill's professional reputation in a manner that required a hearing." (Internal quotation marks omitted.) Id., 693. Nor did they significantly impede his ability to practice his profession. Id. "The statements published in the newspapers were vague and did not specify which aspects of his job he was incompetent to perform . . ." (Internal quotation marks omitted.) Id.
In addition to failing to allege stigmatizing comments, the plaintiff fails to allege that the defendants publically disclosed the accusations. "The purpose of the [public disclosure] requirement is to limit a constitutional claim to those instances where the stigmatizing charges made in the course of discharge have been or are likely to be disseminated widely enough to damage the discharged employee's standing in the community or foreclose future job opportunities." Brandt v. Board of Cooperative Educational Services, 820 F.2d 41, 44 (2d Cir. 1987). Courts have found this requirement satisfied by a public proclamation, see Huntley v. Community School Board, supra, 543 F.2d 985, placement of comments in an employee's personnel file, see Brandt v. Board of Cooperative Educational Services, supra, 820 F.2d 44, and "[a] subtle campaign designed by city officials to make plaintiff the scapegoat for an episode of municipal misfeasance . . ." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447 (2nd Cir. 1980).
Here, the plaintiff does not allege facts to satisfy this requirement. He does not allege that the defendants have publically disseminated the accusations. He does not allege that the defendants placed the accusations in his personnel file for future employers to view. Nor is there an allegation that the defendants engaged in "a carefully conceived scheme of suggestion and innuendo" to scapegoat the plaintiff. Id. The plaintiff only alleges that the defendants accused him "knowing that said accusations would have to be disclosed to future prospective employers of the plaintiff when the plaintiff sought other employment." This is not sufficient to allege that the defendants publically disclosed the accusations.
"Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Here, however, the plaintiff fails to sufficiently allege that his name, reputation, honor, or integrity is at stake. Accordingly, notice and opportunity are not essential, and the court will not address whether the plaintiff received due process of law. The court should and does hereby strike the plaintiff's due process claim.
In his second amended complaint, the plaintiff alleges that he had a property interest in his job because the defendants expressly represented that "as long as he satisfactorily performed his employment duties he would continue to be employed and would not be discharged without just cause." In doing so, the plaintiff only makes a legal conclusion and consequently fails to allege specific facts that would give rise to a property interest. See Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
Equal Protection Claim
The plaintiff also alleges that the defendants violated his right to equal protection. In doing so, he restates the same allegation from the first amended complaint, which the court, Gilardi, J., in Singhaviroj v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (May 17, 2006, Gilardi, J.), ruled "contain[ed] no factual basis on which to base a claim of denial of equal protection" and consequently struck.
In his equal protection claim, the plaintiff alleges: "[t]he defendant's actions also violated the plaintiff's equal protection rights in that the defendants' action in accusing the plaintiff of interrupting the defendants' computer system was irrational and wholly arbitrary without any proper basis and the defendants intentionally treated the plaintiff differently from other employees in that they solely accused the plaintiff of wrongful acts without a rational basis or proper investigation.
"When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise . . . or a second motion to strike . . . Although the pleadings generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken . . . If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading." (Citations omitted; internal quotation marks omitted.) PL Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 50, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). Accordingly, since the plaintiff merely restated the same allegation already stricken by the court, this claim should be and is hereby stricken.
Since the plaintiff bases his § 1983 claim on an alleged violation of his right to equal protection, and his equal protection claim fails, the § 1983 claim also fails.
Violation of the Connecticut Constitution
The plaintiff has also alleged state constitutional violations of due process and equal protection in violation of the Connecticut constitution article first, §§ 8 and 20. "The equal protection and due process clauses of the United States and Connecticut constitutions have the same meanings and the same limits." (Internal quotation marks omitted.) Brunswick Corp. v. Liquor Control Commission, 184 Conn. 75, 82 n. 4, 440 A.2d 792 (1981). Therefore, since the court strikes the federal equal protection and due process claims, the plaintiff's state constitutional claims should be and are hereby also stricken. See Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0479556 (March 31, 2004, Skolnick, J.).
II COUNT TWO
In the second count of the second amended complaint, the plaintiff brings the action against the town of Fairfield and the board pursuant to General Statutes § 7-465. "A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual . . . If the first count of the complaint fails, then the second count against the municipality must also fail as an indemnification duty can only arise if an underlying debt exists." (Citation omitted; internal quotation marks omitted.) Singhaviroj v. Faifield Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006524 (August 10, 2005, Skolnick, J.). Accordingly, since the first count fails, the second count also fails, and the court hereby grants the defendant's motion to strike count two.
As the plaintiff fails to state a due process claim upon which relief can be granted by law and restates a previously stricken equal protection allegation, the court hereby grants the defendants' motion to strike both counts of the plaintiff's complaint.
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