Opinion
No. 4003860
August 15, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108.5
On July 21, 2005, the plaintiff, Anne Marie Slowik, filed an eight-count complaint against the defendants, Morgan Stanley Co. (Morgan Stanley) and John Paul Morales. In count one of the complaint, which purports to set forth a claim for sexual harassment in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., the plaintiff alleges the following facts. The plaintiff is a Connecticut resident. She filed a complaint with the commission on human rights and opportunities (CHRO) on October 29, 2004, and has received a release of jurisdiction from the CHRO. Morgan Stanley is a Delaware corporation licensed to do business in Connecticut and maintains an office at Mystic. The plaintiff was hired by Morgan Stanley in 1995 to work as a financial adviser in its Boston, Massachusetts, office and transferred to Morgan Stanley's Mystic office in September of 2003. Throughout the course of her employment, she was the victim of sexual harassment and discrimination. Although she filed numerous complaints as to discriminatory and offensive behavior, no supervisor followed Morgan Stanley's stated policy of initiating investigations or taking action to prevent or address sexual harassment in the workplace. The plaintiff was subjected to a hostile work environment over several years and in each office location. On May 3, 2004, Morgan Stanley terminated the plaintiff's employment and the plaintiff's termination was "the culmination of a longstanding and continuing practice of hostility and discrimination" against the plaintiff on the basis of her gender.
On October 19, 2005, Morgan Stanley filed a motion to strike count one of the plaintiff's complaint on the ground that the plaintiff's sexual harassment claim is untimely because the plaintiff failed to file a claim with the CHRO within 180 days of the alleged act of discrimination as required by General Statutes § 46a-82(e). The defendant has submitted a memorandum of law in support of the motion. On November 4, 2005, the plaintiff filed a memorandum of law in opposition.
As a general rule, "[a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . An exception to this general rule exists, however, when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted; internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12. As the plaintiff did not raise this issue in its objection to the motion to strike, the court considers the motion in the form presented and need not reach this issue.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Consequently, "[a] motion to strike . . . requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . 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." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Morgan Stanley moves to strike count one on the ground that the plaintiff's sexual harassment claim was not filed with the CHRO within 180 days of the alleged act of discrimination as required by General Statutes § 46a-82(e). In its memorandum of law, Morgan Stanley argues that the most recent incident of sexual harassment alleged in the complaint is purported to have taken place in April 2004, and, therefore, the plaintiff would have had to file a complaint with the CHRO on or before October 27, 2004, 180 days after April 30, 2004, the last day of the month in which the most recent incident of harassment allegedly occurred. It further argues that because the plaintiff did not file a complaint with the CHRO until October 29, 2004, not one of the alleged incidents of sexual harassment occurred within the statutory limitation period and the plaintiff's sexual harassment claim, therefore, is time barred.
The plaintiff counters that Morgan Stanley subjected her to discriminatory conduct contributing to a hostile work environment, which is allegedly the basis of her sexual harassment claim, until the date of her termination on May 3, 2004, and that her claim, therefore, is timely because May 3, 2004, is less than 180 days before the date on which she filed a complaint with the CHRO.
In its reply memorandum of law, Morgan Stanley argues that the discrete acts of disparate treatment discrimination alleged by the plaintiff cannot form the basis of a hostile work environment sexual harassment claim and that any such acts are, themselves, time barred since not one of them falls within the 180-day period. It further argues that, as the United States Supreme Court held in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 206, 153 L.Ed.2d 106 (2002), a plaintiff is explicitly prohibited from utilizing a continuing violation theory to recover for otherwise untimely discrete acts of discrimination by incorporating the same discrete acts into a hostile work environment claim. The plaintiff counters that in count one, she alleges not discrete acts of discrimination but a continuing violation representing a single course of conduct contributing to a hostile work environment that Morgan Stanley continued to implement throughout the duration of the plaintiff's employment until the date of her termination.
The Connecticut Fair Employment Practices Act, specifically, General Statutes § 46a-60(a)(8), provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . [for an employer, by the employer or the employer's 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 intimidating, hostile or offensive working environment . . ." General Statutes § 46a-82(a) and (e) provide in relevant part: "Any person claiming to be aggrieved by an alleged discriminatory practice . . . may, by himself or his attorney, make, sign and file with the [CHRO] a complaint in writing under oath . . . Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." "In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60." Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998). "Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." (Internal quotation marks omitted.) State v. Commission on Human Rights Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). "Consequently, on occasion, we have interpreted our statutes even more broadly than their federal counterparts, to provide greater protections to our citizens, especially in the area of civil rights." Commission on Human Rights Opportunities v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 386 n. 11, 870 A.2d 457 (2005).
In arguing that the plaintiff's sexual harassment claim is time barred because all of the incidents alleged in the plaintiff's complaint are discrete acts of discrimination, none of which occurred within 180 days of the date that the plaintiff filed her complaint with the CHRO, Morgan Stanley relies on the United States Supreme Court's recent decision in National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 113, which interpreted Title VII of the Civil Rights Act of 1964. In that case, the court recognized that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges [because] [e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Id., 113. Nevertheless, Morgan Stanley's reliance on National Railroad Passenger Corp. v. Morgan is misplaced because in that case 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., 122. The court differentiated between claims based on discrete discriminatory acts and claims based on a hostile work environment stating that "[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct . . . 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. Such claims are based on the cumulative effect of individual acts." (Citations omitted; internal quotation marks omitted.) Id., 115.
In the present case, the plaintiff argues that her sexual harassment claim is based on hostile work environment, not on discrete acts of discrimination. "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 . . . [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. Dept of Correction, supra, 247 Conn. 166-67. "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." (Citations omitted; internal quotation marks omitted.) Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). "In short, a plaintiff alleging a hostile work environment must 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." (Internal quotation marks omitted.) Id.
In her complaint, the plaintiff alleges at least thirty incidents of harassment and discriminatory treatment, many of which were overtly sexual in character, that allegedly took place during her ten-year employment with Morgan Stanley culminating in her termination on March 3, 2004. In count one of the complaint, the plaintiff alleges, inter alia, that the following statements were made to her, by several of her male coworkers: "You wanna play the hard to get bitch, I know you want me"; "Are you gay? It's just that you haven't f____ anyone here so, all the guys in the office were wondering if you were"; "I know your type, you like it rough"; "Everyone in the office is wondering if your ass and boobs are real, they're so big and firm." The plaintiff also alleges the following incidents: someone in her office took her client list, called all her clients and told them that she was no longer with the firm; one of the plaintiff's male coworkers disparaged her to people with whom she was cultivating business relationships and when she complained to the manager, the manager cornered the plaintiff, screamed at her pointing a finger in her face and threatened her with termination; the other male coworker, in spite of her protests, repeatedly pressed his body against her and asked her if she was frigid; the plaintiff's office was broken into and vandalized by one of her male colleagues; somebody urinated on the rug in the plaintiff's office; and obscene voice messages were repeatedly left on the plaintiff's voice mail at work.
In addition, the plaintiff's allegations of sexual harassment by Morgan Stanley include the following facts: during the hiring process, the plaintiff had to go through four interviews, a mathematical exam, a phone test, a marketing plan and questioning about her marriage and family plans, while a male candidate went through only one interview; she was intentionally selected for audits in four consecutive years, unlike her male co-workers; she was denied promotion on several occasions despite meeting company's standards for promotion, while her male coworkers were promoted without meeting such standards; the credit for the project she developed was given to a male coworker; when Morgan Stanley and the plaintiff were sued by clients, Morgan Stanley initially denied the plaintiff legal representation that it provided to male employees; one of the managers dismissed the plaintiff's inquiries regarding his refusal to process her trade tickets, while he did not dismiss similar inquiries from male employees; one of the managers moved the plaintiff's accounts to himself without required authorization while other managers disproportionally assigned the available profitable accounts to male brokers; starting September 1995 until May 2004, the plaintiff repeatedly complained about harassment and discrimination to her supervisors and managers; the management had done nothing to address her complaints; on May 3, 2004, Morgan Stanley terminated the plaintiff's employment in retaliation for her complaints.
The plaintiff's allegations in count one are sufficient to support a claim that her workplace was permeated with discriminatory intimidation and insult that was sufficiently severe and pervasive to alter the conditions of her employment and to create an abusive, sexually objectionable working environment, and are, therefore, sufficient to support a claim of hostile work environment. For these reasons, the plaintiff's sexual harassment claim, which is based on the hostile work environment, is not time barred because all acts which constitute the claim are a part of the same allegedly unlawful employment practice and at least one act, i.e., the act of termination, allegedly occurred within 180 days of the date that the plaintiff filed her complaint with the CHRO.
Furthermore, even if the incidents alleged in the plaintiff's complaint were discrete acts of discrimination, the continuing violation principle, expressly recognized by the Connecticut Supreme Court in Board of Education v. Commission on Human Rights Opportunities, 177 Conn. 75, 411 A.2d 40 (1979), would extend the statute of limitations in the present case because the plaintiff alleged an ongoing discriminatory practice purportedly implemented by Morgan Stanley. "The continuing-violation theory extends the statute of limitations where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue for so long as to amount to a discriminatory policy or practice. Cruz v. Coach Stores, 202 F.3d 560, 569 n. 4 (2d Cir. 2000)." (Internal quotation marks omitted.) Hartford v. Commission on Human Rights Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 03 0520745 (February 19, 2004, Shapiro, J.). In Board of Education, the trial court had upheld the CHRO's order granting relief to a female complainant who had alleged continuing acts of discrimination based on the plaintiff board's refusal to pay female custodians the same rate of pay as male custodians. Board of Education v. Commission on Human Rights Opportunities, supra, 177 Conn. 76-78. The board claimed on appeal that the complaint lacked specificity by, inter alia, failing to disclose the precise date of the alleged act of discrimination. Id., 76-77. The Supreme Court held that "[t]he complaint adequately informed the plaintiff of an allegation of continued discrimination against all of its female custodians . . . [T]here was no one single violation whose specific date should have been disclosed." (Citations omitted.) Id., 77-78. Thus, in Board of Education, the Supreme Court expressly recognized that discrete incidents occurring during a continuum of discriminatory employment practices may constitute new violations of General Statutes § 46a-60(a). Id.; see also State v. Commission on Human Rights Opportunities, supra, 211 Conn. 473 (explaining Board of Education v. Commission on Human Rights Opportunities). The Supreme Court addressed the issue of the timeliness of a discrimination complaint again in State v. Commission on Human Rights Opportunities, supra, 211 Conn. 464. In that case, the plaintiffs, the state and the state teachers retirement board, appealed from a decision by the CHRO awarding a retired teacher an increase in his retirement benefits based on the board's use of gender-based tables to calculate those benefits. Id., 465. The plaintiffs claimed that the teacher's complaint was untimely "because he had failed to file it with the CHRO within 180 days of the alleged act of discrimination." Id., 468. "The trial court agreed with the CHRO that because each pension check [the teacher] received constituted a `new act of discrimination' under General Statutes [§ 46a-60(a)], [the teacher's] complaint was not untimely." Id. The court affirmed this part of the decision. Id., 476. The court also discussed the concept of equitable tolling: "[T]he principle of the `equitable tolling' of limitations periods based on an employer's continuing acts of discrimination is well established in the federal courts . . . The federal courts have expressly recognized the applicability of equitable tolling in Title VII sex discrimination employment cases." (Citation omitted.) Id., 475. The court "decline[d] to follow other cases . . . [which hold] that discriminatory pension benefit payments are the present effects of a past violation and therefore cannot be considered a discriminatory act in determining whether a complaint is timely." (Internal quotation marks omitted.) Id., 476; see also Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 275-76, 777 A.2d 645 (2001) (explaining State v. Commission on Human Rights Opportunities).
In count one of the complaint, the plaintiff alleges that her termination on May 3, 2004, was "the culmination of a longstanding and continuing practice of hostility and discrimination against women including the plaintiff on the basis of her gender and in retaliation for her complaints about sexual harassment," was motivated by Morgan Stanley's discriminatory animus against female employees and was followed by Morgan Stanley's submission of false information about the plaintiff to the NASD, the organization that handles regulatory complaints in the securities industry. The plaintiff's allegations of the numerous incidents of hostility and discrimination against women in general and against the plaintiff in particular are sufficient to support the claim of a continuous violation. Therefore, under Connecticut law, even if the alleged act of the plaintiff's termination and Morgan Stanley's alleged actions after her termination were discrete acts, they constitute new violations of General Statutes § 46a-60(a) because these acts occurred during a continuum of Morgan Stanley's alleged discriminatory employment practices. These alleged acts fall within the 180-day statutory limitation period set forth in § 46a-82(e). For the foregoing reasons, the plaintiff has sufficiently alleged facts to show that her sexual harassment claim was timely filed with the CHRO and, accordingly, the defendant's motion to strike is denied.