Angel Gonzalez v. Harte Subaru, Inc. (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

I. INTRODUCTION

On May 25, 2010, the plaintiff, Angel Gonzalez, filed a ten-count complaint (“Complaint”) against the defendants, Harte Subaru, Inc. (“Harte”) and Jeffrey Lajoie (“Lajoie”), in which he alleges the following facts.   The plaintiff began working as an independent contractor for Harte in December of 2007, where he was assigned to clean, wash, vacuum and detail automobiles.   Complaint, Counts I-X, ¶ 5.¹  While the plaintiff was working at Harte, his supervisor, Lajoie, made several derogatory statements to him about his Puerto Rican ethnicity.²  On or about October 14, 2008, the plaintiff informed Harte's general manager, Steve Smith, of Lajoie's “highly inappropriate remarks.”  Id., ¶ 17.   Although Smith advised the plaintiff that the matter would be looked into, “nothing was done to correct defendant Lajoie's behavior.”  Id., ¶ 19.   On or about November 17, 2008, after the plaintiff alerted Harte to Lajoie's alcohol consumption during work hours, Lajoie confronted him at work and called him a “snitch.”  Id., ¶ 23.   Eight days later, on November 25, 2008, the word “snitch” was carved into the trunk of the plaintiff's motor vehicle.  Id., ¶ 24.   Shortly thereafter, defendant Harte, through its agents, servants and/or representatives, terminated its business relationship with the plaintiff and no longer paid him as an independent contractor.  Id., ¶ 25.

In each of his claims against Harte, the plaintiff alleges that Lajoie was an “agent, servant and/or employee of [Harte] and acted on behalf of [Harte] as a managerial employee and as the plaintiff's direct supervisor” and that “Lajoie acted for and in furtherance of [Harte] and his actions are to be construed as the actions of [Harte].”  Id. In Counts One, Three, Six, Eight and Ten, respectively, the plaintiff pleads claims against Harte for intentional infliction of emotional distress, negligent infliction of emotional distress, reckless and wanton misconduct, breach of the covenant of good faith and fair dealing, and for racial discrimination and harassment in violation of General Statutes § 46a-60 (a)(1).³

On July 8, 2010, Harte filed a Motion to Strike Counts One, Three, Six, Eight and Ten of the plaintiff's Complaint on the grounds that the plaintiff has failed sufficiently to allege:  (1) in Counts One, Three and Six, which are all based upon the conduct of Lajoie, that Lajoie engaged in such conduct while acting within the scope of his employment for Harte;  (2) in Count Three, claiming negligent infliction of emotional distress, that the plaintiff suffered illness or physical harm as a result of the challenged conduct;  (3) in Count Six, which the defendant associates with the plaintiff's prayer for punitive damages, any valid legal basis for awarding punitive damages under the doctrine of respondeat superior (4) in Count Eight;  claiming breach of the implied covenant of good faith and fair dealing, that Harte acted in bad faith;  and (5) as to Count Ten, the plaintiff has failed to exhaust his administrative remedies, has not alleged that he was sexually harassed or that he suffered from retaliation, has not alleged that Harte was his employer, and has not pleaded facts showing that the claim was brought within the statute of limitations.   Harte further argues that the plaintiff is barred under Connecticut law from bringing a claim of negligent infliction of emotional distress because he does not allege that the underlying conduct occurred during the termination process.   The Motion is accompanied by a supporting memorandum of law.

On August 27, 2010, the plaintiff filed an Objection to the Motion to Strike, which was accompanied by an opposing memorandum of law.   The plaintiff argues in his memorandum that he has sufficiently pleaded facts to support the causes of action in Counts One, Three, Six, and Eight of the Complaint.⁴  On September 9, 2010, Harte filed a reply to the plaintiff's memorandum in opposition, in which it essentially reiterates the arguments set forth in its original supporting memorandum, then adds a final argument that, on a claim for breach of the covenant of good faith and fair dealing, an employee who is not a party to the contract between the plaintiff and the employer cannot be liable.   This matter was heard on the short calendar on September 7, 2010.

II. ANALYSIS

“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).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).  “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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Id. Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

A. CLAIMS ALLEGING VICARIOUS LIABILITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR

1. Claims Based on the Doctrine of Respondeat Superior-Counts One, Three and Six

Harte first argues, as to Counts One, Three and Six, that the plaintiff has failed to plead sufficient facts in those counts to show that Lajoie was acting within the scope of his employment when he engaged in the conduct that provides the basis for the challenged claims.   Harte argues that in order for an employer to be liable for the intentional torts of its employees, the employee must be acting within the scope of his employment and in furtherance of his employer's business, and further, that when the employee's acts are not authorized, he is deemed to be acting in his own interests and not in furtherance of the employer's business.   Harte contends that the plaintiff merely pleads the legal conclusion that Lajoie was acting in furtherance of Harte's business, but fails to allege sufficient facts to support that claim.

The plaintiff responds that he has pleaded sufficient facts to show that Lajoie was acting within the scope of his employment because Lajoie's “racist comments and accusations” concerned Harte's business.   For example, he alleges that Lajoie stated that he was “glad you fu* *ing Puerto Ricans aren't going to be cleaning Infiniti vehicles anymore.” and accused the plaintiff of stealing inventory that was reported missing from Harte's workshop, by stating:  “You Puerto Ricans steal everything.   There are a bunch of catalytic converters missing.   It has to be you guys.   If it were up to me, I'd get rid of you and hire white guys.”   Complaint, Counts I-X, ¶ 11.   Later, on the same theme-combining accusations of theft or dishonesty by the plaintiff or Puerto Ricans in general with his power to influence hiring and firing decisions by Harte-Lajoie allegedly told the plaintiff, “I'm going to give you a key code so that I know when you Spics, oops, I mean Puerto Ricans, steal a car and that way I can fire you.”  Id., ¶ 12, Again, in the same vein, Lajoie told the plaintiff that he needed to hire “white guys” because “I can get along with them better.   I have to hide my hate for you guys.   I might just get rid of you and hire my own kind of guys.”  Id., ¶ 15.   Similarly, Lajoie is alleged to have told the plaintiff on a later occasion, when some other rims were reported missing from the shop, “I hope you know I'm going to blame you for the rims, you Puerto Rican.   You guys are always stealing.   Good, now I have a reason to fire you guys.”  Id., ¶ 15.   The plaintiff contends that such comments and others were in furtherance of Harte's business because they were made by his supervisor and directly concerned the plaintiff's job and job duties while he was working for Harte.   As such, the plaintiff argues that Harte is liable for the negligent acts of Lajoie under the doctrine of respondeat superior because such conduct was within the scope of Lajoie's employment and in furtherance of Harte's business interests.

“Whether the harassing conduct of a supervisor ․ should be imputed to the employer is determined in accordance with common-law principles of agency.”   (Internal quotation marks omitted.)  Massey v. Connecticut Mental Health Center, Superior Court, judicial district of New Haven, Docket No. 96 0388542 (July 31, 1998, Meadow, J.T.R.).  “[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ․ Restatement (Second), 1 Agency § 1 [1958] ․ Thus, the three elements required to show the existence of an agency relationship include:  (1) a manifestation by the principal that the agent will act for him;  (2) acceptance by the agent of the undertaking;  and (3) an understanding between the parties that the principal will be in control of the undertaking.”  (Citations omitted;  internal quotation marks omitted.)   Gordon v. Tobias, 262 Conn. 844, 849-50, 817 A.2d 683 (2003).  “[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the [agency relationship].”  Id. An agent's authority may be apparent or actual, and actual authority may be express or implied.  Id. “Implied authority is actual authority circumstantially proved.   It is the authority which the principal intended his agent to possess ․ Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent.”  Id.

“Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Alvarez v. New Haven Register, 249 Conn. 709, 720, 735 A.2d 306 (1999).   When alleging vicarious liability under the doctrine of respondeat superior, the elements of the cause of action require that the plaintiff allege that the employee was acting within the scope of his employment and in furtherance of the employer's business.  A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).  “The underlying rationale of modem doctrine of respondeat superior ․ is that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.”  (Internal quotation marks omitted.)  Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 900 (2000).

“Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business.”  (Internal quotation marks omitted.)  A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207.  “In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct:  (1) occurs primarily within the employer's authorized time and space limits;  (2) is of the type that the employee is employed to perform;  and (3) is motivated, at least in part, by a purpose to serve the employer.”  Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003).  “An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions.”  (Internal quotation marks omitted.)   Id., 786.   An employer may be liable even when an employee is not acting within the scope of employment “if the employee purported to act or speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relationship.”  Massey v. Connecticut Mental Health Center, supra, Superior Court, Docket No. 96 0388542 (citing, among others, Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994)).⁵

In the present case, viewing the Complaint in the light most favorable to sustaining its legal sufficiency, the plaintiff has pleaded sufficient facts to show that Lajoie was acting within the scope of his employment and in furtherance of Harte's business to support the claims of vicarious liability that the plaintiff alleges against Harte in Counts One, Three and Six under the doctrine of respondeat superior.   It is expressly alleged that Lajoie worked for Harte as a manager and directly supervised the plaintiff's work for Harte.   The plaintiff alleges that Lajoie was the “agent, servant and/or employee of [Harte] and acted on behalf of [Harte] as a managerial employee and as the plaintiff's direct supervisor” and that “Lajoie acted for and in furtherance of [Harte] and his actions are to be construed as the actions of [Harte].”   It can be inferred from the Complaint that Lajoie made the “racist and derogatory” comments to and about the plaintiff during business hours and at the place of business.   Lajoie's comments concern the quality of the plaintiff's work and conduct, such as Lajoie's accusation that the plaintiff stole company property on two occasions, based solely upon the plaintiff's ethnicity.⁶  Lajoie further allegedly advised the plaintiff that he would be giving the plaintiff a key code “so I know when you Spics-oops, I mean Puerto Ricans, steal a car so I can fire you.”   If Lajoie engaged in this conduct as alleged, it can reasonably be inferred that he did so to protect Harte from misconduct that he believed to have been engaged in by the plaintiff or other Puerto Rican workers.   As he was a supervisor, it can be inferred that Lajoie was acting within his implied supervisory authority in making such comments (i.e., that he had the authority to decide whether to share key codes with certain contract workers, to assign cars for such workers to work on, and to terminate such workers' contracts for stealing).   Because the plaintiff has also alleged that he informed Harte's general manager about Lajoie's statements, but that no action was taken to prevent their recurrence, and further, because Harte was in the best position to guard against and correct supervisor misconduct, it can reasonably be inferred that Harte acquiesced in such misconduct.   Based on these allegations, the plaintiff has pleaded sufficient facts to support claims of vicarious liability against Harte under the doctrine of respondeat superior.   Therefore the defendant's Motion to Strike Counts One, Three and Six on this ground must be denied.

2. Claim Based Upon Alleged Intentional

Infliction of Emotional Distress-Count One

Harte also argues that the Court should strike Count One because the plaintiff has failed to plead sufficient facts to show that Lajoie's conduct was “extreme and outrageous.” ⁷  The plaintiff argues that Lajoie's conduct was extreme and outrageous because “Connecticut courts have regularly held that similar conduct has been sufficient for a reasonable member of a jury to determine said conduct” was outrageous, and cites several Connecticut cases involving racial, religious and ethnic discrimination in the employment context.

Count One asserts a claim of intentional infliction of emotional distress against Harte and incorporates twenty-five paragraphs as factual background.   The plaintiff alleges that the actions of Harte, through Lajoie, were extreme and outrageous, emotional distress was the intended or the likely result, and the plaintiff suffered emotional distress, psychological pain, attorneys fees and costs, and loss of the business relationship with Harte as a result.

In order to prevail in a case for intentional infliction of emotional distress, four elements must be established:  “(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's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).   As to the second element, this tort requires “conduct that exceeds all bounds usually tolerated by decent society.”  (Internal quotation marks omitted.)  Id. “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Id., 211.   Patterns of behavior may satisfy the requirement for extreme and outrageous conduct.   See Bell v. Board of Education, 55 Conn.App. 400, 411, 739 A.2d 321 (1999).

“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 ․ Only where reasonable minds disagree does it become an issue for the jury.”  (Citation omitted.)  Appleton v. Board of Education, supra, 254 Conn. 210.   The motion to strike should be denied if “reasonable people could differ as to whether the defendants' conduct was extreme and outrageous.”   Longo v. Waterbury Hospital Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176553 (January 14, 2005, Matasavage, J.).  “There is no bright line rule to determine what constitutes extreme and outrageous conduct ․ The court looks to the specific facts and circumstances of each case in making its decision.   However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility ․ [T]hose cases in the employment context [in which the court has] granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior are more often those that allege little more than that the plaintiff was terminated without just cause ․ There are, however, several Connecticut cases in which the courts concluded that a supervisor's discriminatory comments to an employee based on the employee's race, religion, or ethnicity, could be considered extreme and outrageous conduct.”  (Citations omitted;  internal quotation marks omitted.)   Savage v. Andoh, Superior Court, judicial district of New Haven, Docket No. CV 07 5015657 (April 11, 2008, Bellis, J.) [45 Conn. L. Rptr. 493].

In several Connecticut cases, the trial court has denied motions to strike because reasonable minds could differ as to whether the conduct that the defendant allegedly engaged in was extreme and outrageous, making a motion to strike inappropriate.   Further, in the employment context, in several similar cases, trial court judges have denied defendant employers' motions to strike based on the plaintiffs' allegations that the plaintiffs' supervisors made the comments concerning the plaintiffs' race or ethnicity, and did so numerous times, so as, possibly, to constitute a pattern of conduct.   See, e.g., Savage v. Andoh, supra, Superior Court, Docket No. CV 07 5015657 (Court denied motion to strike intentional infliction of emotional distress claim where plaintiff alleged defendant, a co-faculty member and chair of plaintiff's department, engaged in “ongoing pattern of harassment, slander and libel,” such as making “derogatory and anti-semitic comments about the plaintiff, who is Jewish” and making statements to plaintiff's superiors concerning her attitude, overall merit as a professor, and fulfillment of job responsibilities);  Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72) (Court denied motion to strike intentional infliction of emotional distress claim where plaintiff employee alleged defendant company owner referred to him as “dago, wop, Father Sarducci or Giambroni,” made offensive comments to him about homosexuality and his sexual performance, and placed sexually offensive comments and pictures on his computer, because “there is a strong public policy expressed by statute in our state prohibiting discrimination on the basis of race, sex or national origin”);  Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.) (Court denied motion to strike intentional infliction of emotional distress where plaintiff, an African American, alleged that her supervisor treated her disparately and made disparaging remarks about African American people to her, concluding that “reasonable people could disagree as to whether the facts alleged ․ satisfy the extreme and outrageous requirement”).

By contrast, in several cases in the employment context, trial courts have granted defendant employers' motions to strike claims of intentional infliction of emotional distress on the ground that the defendant's alleged conduct did not rise to the level of extreme and outrageous.   In Syme v. Hawthorne Inn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014632 (April 6, 2010, Swienton, J.), the Court granted the defendant's motion to strike a claim of intentional infliction of emotional distress because it concluded that the supervisor's alleged conduct was not sufficiently extreme and outrageous.   In that case, the plaintiff alleged that the supervisor reduced her hours while increasing the hours of younger employees and made disparaging remarks about the plaintiff's age and ability to perform her job to her and others.  Id. The plaintiff also alleged that she reported the discriminatory conduct to the employer, and no action was taken.   The Court determined that while such conduct may be illegal, it was not sufficiently extreme and outrageous to sustain a claim for intentional infliction of emotional distress.   See also Parker v. Price Chopper, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002349 (August 22, 2008, Upson, J.) (wherein the Court granted a motion to strike a claim of intentional infliction of emotional distress on the ground that a coworker's threats, cursing and calling plaintiff racial slurs did not rise to level of extreme and outrageous conduct);  Burr v. Howell, Superior Court, judicial district of New Haven, Docket No. CV 02 0464225 (June 25, 2003, Arnold, J.) (Court granted motion to strike counterclaim for intentional infliction of emotional distress where the defendant alleged that plaintiff employee referred to him using racial epithets, but the defendant failed to allege that the comments were made directly to him or that he had made them in his presence on more than one occasion).

Viewing the plaintiff's claim in the light most favorable to sustaining its legal sufficiency, it can reasonably be concluded that that claim describes conduct by Lajoie that was extreme and outrageous.   In the Complaint, the plaintiff alleges that Lajoie, who directly supervised the plaintiff's work, made comments that focused specifically on the plaintiff's ethnicity and national origin.   He also alleges Lajoie made comments about his desire to perform sexual acts with the plaintiff's wife and regarding her ethnicity.   Further, according to the plaintiff, these comments were not made in a single isolated incident, but rather they persisted for a period of at least eleven months, reasonably permitting a fact finder to find that they constituted a pattern of abusive conduct.   Connecticut has a “strong public policy expressed by statute in our state prohibiting discrimination on the basis of race, sex or national origin.”  Leone v. New England Communications, supra, Superior Court, Docket No. CV 01 0509752.   Reasonable minds could certainly find that Lajoie's alleged conduct was extreme and outrageous.   Therefore, Harte's Motion to Strike, which claims to the contrary, must be denied with respect to Count One.

3. Claim Based Upon Alleged Negligent Infliction of Emotional Distress-Count Three

Harte also argues that Count Three should be stricken because the plaintiff fails to allege facts showing that the distress that he suffered resulted in illness or bodily harm, and because the conduct he relies upon did not occur within the termination process.   As to the latter, Harte argues that in the employment context, a claim for negligent infliction of emotional distress may be brought by an employee only when the conduct relates to the termination process, and that this limitation applies to independent contractors as well as direct employees.

The plaintiff argues that the employment termination rule for negligent infliction claims does not apply to this case because he was an independent contractor, not an employee of Harte.   The plaintiff also asserts that his allegations regarding the emotional distress he suffered are sufficient to sustain this cause of action.

Count Three's negligent infliction of emotional distress claim against Harte alleges that Lajoie's acts negligently inflicted emotional distress on the plaintiff, Lajoie knew or reasonably should have known that emotional distress would likely result from his conduct, and the plaintiff suffered severe emotional distress, loss of income, psychological pain and suffering, and the loss of his business relationship with Harte as a result.

In order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must show:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).   As to the third element, a claim in which the plaintiff fails to plead that he or she sustained illness or bodily harm is insufficient and vulnerable to a motion to strike.   Hubert v. Frazier, Superior Court, judicial district of Middlesex, Docket No. CV 05 1001684 (March 29, 2006, Booth, J).

In the present case, the Complaint alleges that Lajoie knew or should have known that emotional distress was likely to result from his conduct and that the plaintiff in fact suffered severe emotional distress and loss of income.   The plaintiff fails to allege that the distress he suffered resulted in, or was likely to result in, illness or physical injury, which is a necessary element of the cause of action.   Therefore, Count Three is legally insufficient to state a claim for negligent infliction of emotional distress on this basis.   Therefore, the defendant's Motion to Strike must be granted as to Count Three.⁸

4. Claim Based Upon Alleged Reckless and Wanton Misconduct-Count Six

Harte argues that this Court should strike the fourth paragraph of the plaintiff's prayer for relief, in which he seeks to recover punitive damages, because such damages are not a valid remedy for a cause of action premised on the theory of vicarious liability.   The plaintiff counters that he is not seeking punitive damages against Harte on this claim.⁹

It is noted that in the Complaint, the plaintiff does not specifically associate any of his several prayers for relief with any particular counts.   “Practice Book ․ § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   If the plaintiff prevails on some of his other causes of action, he may be entitled to punitive damages if he shows that the conduct that one of the defendants engaged in “evidenced a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 346, 994 A.2d 153 (2010).   Therefore, the defendant's Motion to Strike as to the plaintiff's prayer for relief must be denied.

B. IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Harte argues that the Court should strike Count Eight because the plaintiff has failed to allege sufficient facts to support a cause of action under the implied covenant of good faith and fair dealing.   Specifically, Harte argues that the plaintiff merely stated a legal conclusion, that Harte acted in bad faith, without facts to support the legal conclusion.   In its reply to the plaintiff's memorandum in opposition, Harte further argues that “an individual cannot be liable for a breach of the covenant of good faith and fair dealing, unless they were a party to the contract at issue.”   As Lajoie was not a party to the oral contract between the plaintiff and Harte, he cannot be liable for breach of the covenant, and because the alleged tortfeasor is not liable, Harte contends it cannot be vicariously liable.

The plaintiff argues that Lajoie's conduct forms the actual breach of the covenant of good faith and fair dealing and Harte is liable for Lajoie's acts under the doctrine of respondeat superior.   The plaintiff asserts that it has pleaded sufficient facts to state a claim under this cause of action.

“[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead:  first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits;  second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits;  and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith.”   Austrian, M.D. v. United Health Group, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 05 4010357 (July 17, 2007, Stevens, J.) [43 Conn. L. Rptr. 852].  “The Restatement (Second) of Contracts recognizes an implied covenant of good faith and fair dealing in every contract without limitation.   See 2 Restatement (Second), Contracts § 205 (1979) ․ Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.”  (Citations omitted, internal quotation marks omitted.)   Magnan v. Anaconda Industries, Inc., 193 Conn. DP1⌑As to Harte's first argument, in alleging a breach of the covenant of good faith and fair dealing, the plaintiff must allege that the defendant engaged in bad faith and support the allegation with facts.  “[B]ad faith may include one party's performance or interpretation of the contract in a manner that evades its spirit and is unfaithful to its purpose, resulting in a denial of the justified expectations of the other party.”  Landry v. Spitz, 102 Conn.App. 34, 48, 925 A.2d 334 (2007).  “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Internal quotation marks omitted.)  Alexandru v. Strong, 81 Conn.App. 68, 81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).  “Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient.”  Id.

In order sufficiently to plead this cause of action, the plaintiff must allege that the bad faith occurred because of fraud, misrepresentation, or a dishonest motive.   See, e.g., Kelly v. Noble Environment Power, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 08 5005444 (September 2, 2009, Jones, J.) (Court denied defendant's motion to strike where complaint alleged defendant made false assurances and representations to plaintiff concerning terms of compensation, which satisfied bad faith element of breach of good faith claim);  Gilbert v. Parker X-Ray Solution Service, Inc., Superior Court, judicial district of Hartford, Docket No. CV 08 5019513 (August 26, 2008, Bentivegna, J.) (Court denied defendant's motion to strike breach of good faith claim, based on wrongful termination in violation of public policy, where complaint alleged plaintiff's coworkers “verbally abused him, threatened him with physical violence, spit in his face, and behaved in a generally combative manner toward him,” plaintiff reported conduct to defendant employer, to no avail, and to police, and employer terminated plaintiff;  Court stated conduct “can be characterized as criminal” and termination likely violated public policy and thus was breach of implied covenant of good faith and fair dealing);  Okee Industries, Inc. v. Eastern Building Contractors, Inc., Superior Court, judicial district of Hartford, Docket No. CV 89 700585 (December 17, 1990, Freed, J.) [3 Conn. L. Rptr. 566] (Court denied motion to strike counterclaim of breach of good faith and fair dealing where defendant alleged that plaintiff had induced him to sign writing that was not intended to be the full and final expression of their agreement, thereby establishing the element of fraud, for such a claim requires an aspect of fraud, deceit, or misrepresentation”);  cf.   Twin Oaks Condominium Ass'n, Inc. v. Jones, Superior Court, judicial district of Hartford, CV 04 4004140 (January 22, 2010, Bentivegna, J.) (claim of breach of good faith and fair dealing was unsuccessful where plaintiff failed to demonstrate that defendant acted in bad faith;  plaintiff had alleged that defendant engaged in bad faith but failed to demonstrate any kind of fraudulent conduct).

In the present case, the plaintiff's claim is based on Lajoie's conduct.   In Count Eight, the plaintiff alleges that Lajoie was an agent, employee or servant of Harte and incorporates the twenty-five paragraphs in which he details the conduct that Lajoie allegedly engaged in.   The plaintiff further alleges (1) that he had an oral contract with Harte, (2) that Harte's conduct, through its agent, employee or servant, injured the plaintiff's right to receive the benefits that he reasonably expected under the contract, and (3) that such conduct was “conducted in bad faith.”   The plaintiff does not allege any facts to show that Lajoie or Harte engaged in conduct with a dishonest purpose or sinister motive or how the conduct was conducted in bad faith;  he simply alleges, in conclusory fashion, that Harte acted in bad faith.  “Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient.”  Alexandru v. Strong, supra, 81 Conn.App. 81.   Therefore, Count Eight is legally insufficient to state a claim for breach of the covenant of good faith and fair dealing.   Accordingly, the plaintiff's Motion to Strike as to Count Eight must be granted.¹⁰

III. CONCLUSION

For the foregoing reasons, defendant Harte's Motion to Strike must be DENIED as to Counts One and Six because the plaintiff has sufficiently pleaded an actionable claim of vicarious liability under the doctrine of respondeat superior.   The Motion must be GRANTED, however, as to Counts Three and Eight because the plaintiff has failed to plead legally sufficient causes of action under the claims alleged.   Because the plaintiff agrees with Harte's arguments as to Count Ten and states he will voluntarily withdraw it, the Court declines to rule on the plaintiff's Motion with respect to that Count.   Finally, since the plaintiff may prevail on his other causes of action where punitive damages are a permissible legal remedy, the Court must DENY Harte's Motion to Strike that portion of the plaintiff's prayer for relief.

IT IS SO ORDERED this 26th day of October 2010.

Michael R. Sheldon

FOOTNOTES

FN1. The first twenty-five paragraphs of the Complaint are incorporated into and realleged as the first twenty-five paragraphs of each count of the Complaint..  FN1. The first twenty-five paragraphs of the Complaint are incorporated into and realleged as the first twenty-five paragraphs of each count of the Complaint.

FN2. See generally, Complaint, ¶¶ 7-21.   For example, the plaintiff alleges that Lajoie stated:  “You fu* *ing dumb Puerto Ricans, you mother fu* *ers are a bunch of low-lives, no good pieces of shi*, you can't clean the boat you came in.   What makes you think you can clean a car?”  Id., ¶ 7.   In April of 2008, the plaintiff alleges that Lajoie stated:  “You Puerto Ricans steal everything.   There are a bunch of catalytic converters missing.   It has to be you guys.   If it was up to me, I'd get rid of your guys and hire white guys.”  Id., ¶ 11.   In October 2008, in front of several employees, Lajoie allegedly stated to the plaintiff:  “Let me fu* * your wife.   She has some big fu* *ing tits and she's light skinned.   It will feel like I'm fu* *ing a white girl.”  Id., ¶ 18d.   In November 2008, after inventory had been stolen from Harte, Lajoie allegedly accused the plaintiff of the theft in front of the plaintiff's minor son, stating:  “I hope you know I'm going to blame you for the rims you Puerto Rican.   You guys are always stealing.   Good, now I have a reason to fire you guys.”  Id., ¶ 21..  FN2. See generally, Complaint, ¶¶ 7-21.   For example, the plaintiff alleges that Lajoie stated:  “You fu* *ing dumb Puerto Ricans, you mother fu* *ers are a bunch of low-lives, no good pieces of shi*, you can't clean the boat you came in.   What makes you think you can clean a car?”  Id., ¶ 7.   In April of 2008, the plaintiff alleges that Lajoie stated:  “You Puerto Ricans steal everything.   There are a bunch of catalytic converters missing.   It has to be you guys.   If it was up to me, I'd get rid of your guys and hire white guys.”  Id., ¶ 11.   In October 2008, in front of several employees, Lajoie allegedly stated to the plaintiff:  “Let me fu* * your wife.   She has some big fu* *ing tits and she's light skinned.   It will feel like I'm fu* *ing a white girl.”  Id., ¶ 18d.   In November 2008, after inventory had been stolen from Harte, Lajoie allegedly accused the plaintiff of the theft in front of the plaintiff's minor son, stating:  “I hope you know I'm going to blame you for the rims you Puerto Rican.   You guys are always stealing.   Good, now I have a reason to fire you guys.”  Id., ¶ 21.

FN3. Counts Two, Four, Seven and Nine allege claims against Lajoie individually for intentional infliction of emotional distress, negligent infliction of emotional distress, reckless and wanton misconduct and tortious interference with a business expectancy.   Count Five alleges a claim against Harte for negligent hiring and supervision..  FN3. Counts Two, Four, Seven and Nine allege claims against Lajoie individually for intentional infliction of emotional distress, negligent infliction of emotional distress, reckless and wanton misconduct and tortious interference with a business expectancy.   Count Five alleges a claim against Harte for negligent hiring and supervision.

FN4. In his memorandum, the plaintiff agrees with the defendant's arguments as to Count Ten and states that he will voluntarily withdraw the claim.   Thus, Count Ten will not be discussed in this memorandum..  FN4. In his memorandum, the plaintiff agrees with the defendant's arguments as to Count Ten and states that he will voluntarily withdraw the claim.   Thus, Count Ten will not be discussed in this memorandum.

FN5. The United States Supreme Court has recognized employer vicarious liability for a supervisor's discriminatory conduct in certain contexts, due to the supervisor's position, authority and control over the employee.   Specifically, it has noted that a supervisor “is clearly charged with maintaining a productive, safe work environment,” and “directs and controls the conduct of the employees, and the manner of doing so may inure to the employer's benefit or detriment ․” Faragher v. Boca Raton, 524 U.S. 775, 798, 118 S.Ct. 2275, 141 L.Ed. 26 662 (1998).  “When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position over the people who report to him, or those under him, whereas an employee generally cannot check a supervisor's abusive conduct in the same way she might deal with abuse from a co-worker.”  Id., 803.   Further, “[r]ecognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers;  employers have greater opportunity and incentive to screen them, train them, and monitor their performance.”  Id. The Court noted several cases where lower courts found that a harassing supervisor is “always assisted in his misconduct by the supervisory relationship.”  Id..  FN5. The United States Supreme Court has recognized employer vicarious liability for a supervisor's discriminatory conduct in certain contexts, due to the supervisor's position, authority and control over the employee.   Specifically, it has noted that a supervisor “is clearly charged with maintaining a productive, safe work environment,” and “directs and controls the conduct of the employees, and the manner of doing so may inure to the employer's benefit or detriment ․” Faragher v. Boca Raton, 524 U.S. 775, 798, 118 S.Ct. 2275, 141 L.Ed. 26 662 (1998).  “When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position over the people who report to him, or those under him, whereas an employee generally cannot check a supervisor's abusive conduct in the same way she might deal with abuse from a co-worker.”  Id., 803.   Further, “[r]ecognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers;  employers have greater opportunity and incentive to screen them, train them, and monitor their performance.”  Id. The Court noted several cases where lower courts found that a harassing supervisor is “always assisted in his misconduct by the supervisory relationship.”  Id.

FN6. This inference is further supported by Lajoie's alleged refusal to give the plaintiff cars to clean on or about July 1, 2008, when he allegedly stated:  “I don't want to give you any work.   I hate you.   I like this.   I can control you, you cry baby.”.  FN6. This inference is further supported by Lajoie's alleged refusal to give the plaintiff cars to clean on or about July 1, 2008, when he allegedly stated:  “I don't want to give you any work.   I hate you.   I like this.   I can control you, you cry baby.”

FN7. In addition, Harte argues that the Court should strike Count One if the plaintiff seeks to hold Harte liable for not preventing Lajoie's conduct.   The plaintiff states this count is not premised on such allegations and he therefore does not address this ground..  FN7. In addition, Harte argues that the Court should strike Count One if the plaintiff seeks to hold Harte liable for not preventing Lajoie's conduct.   The plaintiff states this count is not premised on such allegations and he therefore does not address this ground.

FN8. As the plaintiff has failed to sufficiently allege a required element of a claim for negligent infliction of emotional distress, the Court does not need to make a finding on the other ground asserted by the defendant on this count..  FN8. As the plaintiff has failed to sufficiently allege a required element of a claim for negligent infliction of emotional distress, the Court does not need to make a finding on the other ground asserted by the defendant on this count.

FN9. Harte does not argue that this count should be stricken for failure to allege facts to support a cause of action under reckless and wanton misconduct..  FN9. Harte does not argue that this count should be stricken for failure to allege facts to support a cause of action under reckless and wanton misconduct.

FN10. It is unclear whether, under Connecticut law an employer may be vicariously liable for an employee's conduct that allegedly breaches the covenant of good faith and fair dealing.   According to Laschever v. Journal Register Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065372 (November 1, 1994, Pickett, J.), a claim for breach of the implied covenant of good faith and fair dealing is a contract claim that may only be brought against a plaintiff's employer and not against an employer's agent.   Further, “[t]here cannot be a breach of the covenant of good faith and fair dealing by someone who is not a party to the contract.  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 792 A.2d 1144 (2000).”   Nathan v. Expocon Management Associates, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175376 (June 28, 2001, Adams, J.).   These cases lend support to the defendant's contention that the claim may fail because Lajoie has no underlying liability as he was not a party to the contract between the plaintiff and Harte, thus the plaintiff cannot claim that Lajoie breached the covenant of good faith and fair dealing.   Further, vicarious liability under a theory of respondeat superior only applies to torts committed by the servant, and a breach of good faith is a contract theory, which may bar such a claim.   See Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) (Court noted vicarious liability is allowed for underlying tort claims, but not likely for contract claims).   As the plaintiff has failed to allege sufficient facts to satisfy one of the required elements of a claim for a breach of the covenant of good faith and fair dealing, however, the Court need not reach this issue..  FN10. It is unclear whether, under Connecticut law an employer may be vicariously liable for an employee's conduct that allegedly breaches the covenant of good faith and fair dealing.   According to Laschever v. Journal Register Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065372 (November 1, 1994, Pickett, J.), a claim for breach of the implied covenant of good faith and fair dealing is a contract claim that may only be brought against a plaintiff's employer and not against an employer's agent.   Further, “[t]here cannot be a breach of the covenant of good faith and fair dealing by someone who is not a party to the contract.  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 792 A.2d 1144 (2000).”   Nathan v. Expocon Management Associates, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175376 (June 28, 2001, Adams, J.).   These cases lend support to the defendant's contention that the claim may fail because Lajoie has no underlying liability as he was not a party to the contract between the plaintiff and Harte, thus the plaintiff cannot claim that Lajoie breached the covenant of good faith and fair dealing.   Further, vicarious liability under a theory of respondeat superior only applies to torts committed by the servant, and a breach of good faith is a contract theory, which may bar such a claim.   See Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) (Court noted vicarious liability is allowed for underlying tort claims, but not likely for contract claims).   As the plaintiff has failed to allege sufficient facts to satisfy one of the required elements of a claim for a breach of the covenant of good faith and fair dealing, however, the Court need not reach this issue.

Sheldon, Michael R., J.