Ulrike Colonna v. Baran Institute of Technology, Inc. (2011)

MEMORANDUM OF DECISION

On March 2, 2009, the plaintiff, Ulrike Colonna, filed a six-count amended complaint against the defendants, Baran Institute of Technology, Inc., Lincoln Technical Institute, Inc. and NN Acquisition, LLC.¹ The amended complaint is set forth in six counts as follows:  violation of General Statutes § 31-51q (count one);  wrongful termination (count two);  breach of the covenant of good faith and fair dealing (count three);  intentional infliction of emotional distress (count four);  sex/gender discrimination in violation of General Statutes § 46a-60(a)(1) (count five);  and retaliation in violation of General Statutes § 46a-60(4) (count six).

The plaintiff alleges the following facts.   She was employed as director of career services at Baran Institute of Technology, Inc. from October 1996, until she was terminated on December 24, 2008.   Baran Institute of Technology, Inc., now known as Lincoln Technical Institute, Inc. (the school), is an educational organization that receives state and federal funding for students that maintain passing grades and graduate from its programs.   The school issues progress reports to the state of Connecticut that include students' grades.   If the school reports that students are failing and/or not graduating, it does not receive state and federal funding and must return a portion of the funds it has received.   The school's accrediting body, the Accrediting Commission of Career Schools and Colleges of Technology (ACCSCT), mandates that students attend a week-long externship in order to qualify for graduation.

As director of career services, the plaintiff was responsible for overseeing the defendant's programs and making sure that approximately seventy percent of graduated students become employed in their field of study.   The plaintiff alleges that, in 2008, she began to receive negative feedback from employers concerning students that had graduated from the school.   The plaintiff also became aware that the school had allowed many students to graduate without documentation that they had attended the required week-long externship, and that it was engaged in a practice of changing failing students' grades to passing so that it could continue to receive state and federal funding.   The plaintiff alleges that she felt these actions were “improper and unethical” and that, on numerous occasions in 2008, she approached her supervisor, Brian Clancey, the school's director of education, to inform him of her concerns.   Clancey told the plaintiff that “these students [were] required to graduate in a timely fashion, even if they did not adequately complete the program and received failing grades, because [the defendant] received financial aid and funding from federal and state programs ․ if the [d]efendant did not graduate the students, [it] would not receive the money, which would result in financial hardship to [the defendants].”   The plaintiff claims that she told Clancy that this course of action was “improper” and that she did not want to take part in such conduct because it was “unethical and illegal.”

After this exchange with Clancy, the plaintiff alleges that she voiced her concerns to all directors and employees in attendance at a meeting and that, after the meeting, Clancy approached the plaintiff and “in a very agitated style and in a harsh voice stated ․ ‘you just threw me under the bus and then backed up and ran me over again!’  “ The plaintiff claims that she repeated her concerns that the actions taken by the defendant in order to receive funding “clearly violated the [a]ccreditation guidelines” and stated that she “was not going to partake [in or] support these improper and illegal activities.”   Clancy, in a “harsh and rude” tone of voice, told the plaintiff that “[he would] be the bus driver some day.”

The plaintiff alleges that she also brought her concerns to the attention of Lou Gianelli, the school's corporate director of education, and Brad Baran, the school's president, and that they did nothing to address the plaintiff's complaints.   The school's managerial employees, including Anthony Tomasiello, the school's director of student services, continued to direct instructors “not to fail students” and to change failing grades so that the school would continue to receive federal and state funding.   The plaintiff alleges that numerous instructors and coworkers approached her to say that they shared her concerns.   In December of 2008, Rangy Minde, the school's vice president of operations, showed the plaintiff a list of students who were receiving failing grades given to him by the registrar.   The school refused to accept that list and “expressly instructed [the registrar] to go back over the grades so that the students received passing grades.”   The plaintiff then learned that the students on the list had their failing grades changed to passing.

The plaintiff claims that the working environment at the school became “extremely hostile and uneasy” for the plaintiff and other staff because they did not support the school's policies and practices.   As a result, some of the instructors and staff, including the plaintiff, participated in and developed a petition to contest the school's conduct.   After the petition was submitted to Baran, Clancy called a meeting where the employees, instructors and staff voiced their concerns about the school's “improper and illegal procedures.”

Following the meeting and the plaintiff's numerous complaints to her supervisors, the plaintiff alleges that the school's managerial employees, including Gianelli, Clancy and Tomasiello, engaged in a course of retaliatory conduct against the plaintiff in an effort to terminate her employment, and that they became “hostile, degrading and threatening in their behavior” and made negative and offensive comments her.²  On December 24, 2008, the plaintiff was informed that she was being terminated because her position had been consolidated.   The plaintiff claims that the school's reason for terminating her employment was “pretext for retaliation” and “wrongful termination” in response to the plaintiff's speaking out in opposition to the school's illegal and unethical practices of falsifying and changing student grades, for participating in preparing and filing a petition with the school, for opposing discriminatory behavior and retaliation and for exercising her free speech rights protected by the state and federal constitutions.

On August 18, 2010, the defendants filed a motion to strike all six counts of the amended complaint.³  The matter was heard on the short calendar on October 12, 2010.   Additional facts will be discussed as they become necessary to decide particular legal issues.

“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 (2003).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   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 [plaintiff 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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotations omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

I

COUNT ONE:  VIOLATION OF GENERAL STATUTES § 31-51q

In support of their motion, the defendants argue that the court should strike count one of the amended complaint because the plaintiff's speech does not relate to a matter of public concern as required to state a claim under General Statutes § 31-51q.   Specifically, the defendants assert that the plaintiff's complaint stems from her personal disagreements with the defendants' employees, rather than any desire to address an issue “of political, social or other concern to the community.”   In opposition, the plaintiff contends that her allegations may fairly be considered as relating to matters of public concern, social concern or concern to the community sufficient to withstand the defendants' motion to strike.

General Statutes § 31-51q provides, in relevant part:  “Any employer ․ who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution of section 3, 4, or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge ․” “In order to plead a violation of Section 31-51q, the plaintiff must allege:  (1) that [she] was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution;  (2) that [she] was fired on account of [her] exercise of such rights;  and (3) that [her] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer.”  (Internal quotation marks omitted.)   Sierra v. State, Superior Court judicial district of Hartford, Docket No. CV 00 0803588 (June 4, 2001, Beach, J.) (29 Conn. L. Rptr. 734, 736-37).

“Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern.”  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999).  “Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters.”  Id., 778.  “An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community.”   (Internal quotation marks omitted.)  DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003).  “[W]hether the subject matter addressed by a particular statement is of public concern involves a question of law for the court ․ [W]hether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made.   This later inquiry necessarily involves a question of fact.”  (Emphasis added.)  Daley v. Aetna Life & Casualty Co., supra, 777.

In the present case, the plaintiff argues that she opposed participating in and complained about the “illegal and unethical” practices of the school.   Specifically, the plaintiff claims that she opposed the school's falsification of students' transcripts and grades so that the defendants could defraud the government by continuing to receive state and federal funding that would otherwise have been lost.   The plaintiff further claims that she expressed speech that the school's practices were in violation of the rules and regulations of the state ACCSCT standards of accreditation, and that falsification of failing students' transcripts allowed them to graduate and certified to employers and to the general public that the students were qualified to perform auto body and auto mechanical work when they were not in fact qualified.   The plaintiff alleges that she voiced her concerns to numerous supervisors and that she, along with her co-workers, established a petition to oppose the defendant's conduct.   The plaintiff maintains that she was terminated in retaliation for voicing her concerns, for opposing the unlawful practices of the defendant and for participating with other employees to bring those unlawful practices to the public's attention.

Viewing the allegations of count one in a light most favorable to sustaining the legal sufficiency of plaintiff's claim, the statements in question involve a matter of public concern because they relate, inter alia, to efforts by the defendants to defraud the state and federal governments.   See Guimard v. Falcon Financial, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4003828 (December 16, 2005, Rogers, J.) (40 Conn. L. Rptr. 498, 498) (“Employee speech concerning an employer's illegal or fraudulent behavior has consistently been found by our courts to be a matter of public concern”);  Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of New London, Docket No. CV 03 0564783 (August 19, 2003, Hurley, J.T.R.) (35 Conn. L. Rptr. 295, 298) (speech made by employee concerning employer's potential tax evasion implicates public policy).⁴  The particulars of the plaintiff's speech-the content, form and context in which her statements were made-is a question of fact.   See Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777.  “Where the legal grounds for [a motion to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   Accordingly, for the purposes of the instant motion to strike, the plaintiff has alleged protected speech and sufficient facts to sustain her claim under § 31-51q.

II

COUNT TWO:  WRONGFUL TERMINATION

The defendants argue that the court should strike count two of the amended complaint because a plaintiff claiming discharge in contravention of public policy bears the burden of alleging that the discharge violated an explicit statutory provision, constitutional provision or judicially conceived notion of public policy, and the plaintiff has failed to do so.   In opposition, the plaintiff maintains that she has properly asserted a cause of action for common-law wrongful termination in violation of public policy because she has “alleged that her termination violated numerous public policies as explicitly stated in counts two and three.”

Connecticut recognizes a common-law action for wrongful termination where the employment action is contrary to a strong and well-established public policy of the state;  Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980);  and where no other means exist to vindicate the public policy.  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000).  “A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer.   The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 159-60.   Thus, if a statutory remedy exists to address the public policy violation which forms the basis of the plaintiff's complaint, then a common-law action for wrongful termination is unavailable.   See Burnham v. Karl & Gelb, P.C., supra, 159-62;  Campbell v. Plymouth, 74 Conn.App. 67, 74-75, 811 A.2d 243 (2002);  Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985);  see also Mendez v. Utopia Home Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 6006222 (November 5, 2010, Peck, J.) (“Burnham stands for the proposition that if there is a statutory remedy for a particular type of wrongful conduct a common-law action for wrongful discharge based on that conduct is precluded”).

In the present case, the plaintiff has alleged a claim for wrongful termination, as well as a violation of General Statutes § 31-51q, on essentially the same facts.⁵  Pleading the same facts and allegations in count two as she does in support of count one makes clear that the plaintiff is not “otherwise without remedy.”   Because a statutory remedy is available to the plaintiff with respect to the alleged wrongful conduct, no common-law action is available to her.   See Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 159-60;  see also Mendez v. Utopia Home Care, Inc., supra, Superior Court, Docket No. CV 09 6006222 (“That a statutory remedy exists for certain alleged conduct precludes the plaintiff from stating a legally sufficient claim for common-law wrongful termination based on that [same] conduct”).   Accordingly, the allegations contained in the plaintiff's amended complaint do not sufficiently state a cause of action for wrongful termination in violation of public policy.

III

COUNT THREE:  BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

The defendants argue that the court should strike count three of the amended complaint because the plaintiff fails to allege that she was discharged in violation of some important public policy, and therefore, is unable to sustain a cause of action for breach of the covenant of good faith and fair dealing.   In opposition, the plaintiff maintains that she has properly asserted a cause of action for breach of the covenant of good faith and fair dealing because she has “alleged that her termination violated numerous public policies as explicitly stated in counts two and three.”

As to the plaintiff's allegation that the defendants breached the implied covenant of good faith and fair dealing, “[i]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.   See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984);  see also 2 Restatement (Second), Contracts § 205 (1979) ( [e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement) ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Citations omitted;  emphasis added.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004).   Thus, “the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.”  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144.

In the present case, the plaintiff has not alleged that she was employed pursuant to an employment contract or that a contractual relationship exists or existed between herself and the defendants.   Accordingly, the allegations contained in the plaintiff's amended complaint do not sufficiently state a cause of action for breach of the implied covenant of good faith and fair dealing.

IV

COUNT FOUR:  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The defendants argue that the court should strike count four of the amended complaint because it fails to allege any conduct by the defendants that is extreme and outrageous, as required to state a claim for intentional infliction of emotional distress.   In opposition, the plaintiff maintains that the conduct alleged is sufficiently extreme and outrageous to withstand the defendants' motion to strike.

“To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements:  (1) that the [defendant] 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.)   Davis v. Davis, 112 Conn.App. 56, 65, 962 A.2d 140 (2009).   As to the second element, “[i]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of' a complaint ․ set forth behaviors that a reasonable factfinder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Id., 66.

“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’  “ (Citations omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).  “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.”   (Citations omitted;  internal quotation marks omitted.)  Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).

In the present case, the plaintiff alleges that Tomasiello made critical comments to other employees about the number of times the plaintiff had been married and spread untrue rumors that the plaintiff drank alcohol.   The plaintiff claims that “[t]hese comments were made out loud in staff meetings and in a degrading fashion to embarrass and humiliate the plaintiff.”   The plaintiff claim is that she complained to Clancy about Tomasiello's “unprofessional and humiliating” comments and conduct, but that no corrective action was taken and the “offensive and degrading” comments and conduct continued.   The plaintiff alleges that Clancy's statement, “you [the plaintiff] just threw me [Clancy] under the bus and then backed up and ran me over again!” was made to intimidate her.   In paragraphs forty-four through forty-seven of her amended complaint, the plaintiff further alleges that Tomasiello made numerous “sexually offensive and racist” comments in the plaintiff's presence.   These comments included:  “how bad it would be if Senator Obama was elected president because he was black;” “why don't we get one of our Puerto Rican friends to break into the car [that was abandoned in the parking lot] and find out whose car it is” (the plaintiff, who is Caucasian, claims that she “became very emotionally upset” about this comment);  “he [a male co-worker who had recently undergone surgery and was confined to a hospital bed] wouldn't mind being strapped to a bed, at least not for a weekend;” and, to the plaintiff, “I'm sure you get along fine with him [an African American student] especially because of his penchant for white women.”   The plaintiff alleges that she expressed concern about the way Tomasiello spoke to the plaintiff and to others in meetings, that Tomasiello was “sexually offensive and racist” and that she felt “extremely offended” by the working environment and the discriminatory comments from her supervisors.   The plaintiff claims that the defendant and its agents, servants and/or employees intended to inflict emotional distress upon her and that, as a result of the above-described conduct, she has suffered severe emotional distress and will continue to experience “severe emotional pain and suffering” in the future.

In Appleton v. Board of Education, supra, 254 Conn. 205, the plaintiff teacher alleged that the defendants:  (1) subjected her to condescending comments in front of her colleagues;  (2) subjected her to two psychiatric examinations;  (3) told her daughter that the plaintiff was acting differently and should take a few days off from work;  (4) had police escort the plaintiff out of the school;  and (5) suspended her employment and ultimately forced her to resign.   In that case, the Supreme Court concluded that the “defendants' actions ․ were not so atrocious as to exceed all bounds usually tolerated by decent society, [and] their conduct [was] insufficient to form the basis of an action for intentional infliction of emotional distress.”  Id., 212.   False accusations of criminal conduct;  Carnemolla v. Walsh, 75 Conn.App. 319, 332-33, 815 A.2d 1251, cert. denied 263 Conn. 913, 821 A.2d 768 (2003);  and public admonishment are similarly insufficient.  Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001).   While the conduct alleged by the plaintiff herein was offensive and insulting to her, it was far less egregious than the conduct alleged in the foregoing cases wherein the Supreme and Appellate Courts determined that the allegations did not rise to the level of “extreme and outrageous.”   See Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.   Accordingly, facts provable in the plaintiff's amended complaint do not support a cause of action for intentional infliction of emotional distress.

V

COUNT FIVE:  SEX/GENDER DISCRIMINATION

The defendants argue that the court should strike count five of the amended complaint because the allegations do not support an action under any theory of sex discrimination.   In opposition, the plaintiff maintains that the defendant “discriminated against the plaintiff [and] terminated her because of her sex/gender” in violation of General Statutes § 46a-60(a)(1).

General Statutes § 46a-60(a) provides, in relevant part:  “It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's ․ sex ․” To establish a prima facie case of discriminatory termination of employment on the basis of sex, under Title VII and the Connecticut Fair Employment Practices Act (CFEPA), an employee must show that:  (1) she was within a protected class;  (2) she was qualified for the position;  (3) she was discharged;  and (4) that the discharge occurred under circumstances giving rise to an inference of sex discrimination.   Dickinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 431 F.Sup.2d 247, 255 (D.Conn.2006).⁶

In the present case, the plaintiff has asserted that she is a woman and that she was terminated.   Implicit in her continued employment with the school for more than ten years is that she was qualified for her position.   The plaintiff has therefore alleged facts that satisfy the first, second and third elements of a claim of sex discrimination.   However, the plaintiff has failed to allege that her discharge occurred under circumstances giving rise to an inference of sex discrimination.   In connection with the fourth element, “a female employee must establish that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred ․ [The] female employee must show that in all material respects, she was similarly situated to a male employee, but was treated differently on the basis of her gender.”  (Citations omitted;  internal quotation marks omitted.)  United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 226, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).

Because the plaintiff has not alleged that she was treated less favorably than a similarly situated male comparator or that the defendant held any discriminatory animus against her because of her gender, she has failed to set forth facts to satisfy the fourth element of a claim of sex discrimination.⁷  Accordingly, facts provable in the plaintiff's amended complaint do not support a cause of action for sex/gender discrimination in violation of General Statutes § 46a-60(a)(1).

VI

COUNT SIX:  RETALIATION

The defendants argue that the court should strike count six of the amended complaint because the plaintiff fails to set forth any facts showing that she opposed a “discriminatory employment practice” as the term is used in General Statutes § 46a-60(a)(4).   In opposition, the plaintiff maintains that she has satisfied all the elements required to make a claim of retaliation.

General Statutes § 46a-60(a) provides, in relevant part:  “It shall be a discriminatory practice in violation of this section ․ (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person opposed any discriminatory employment practice ․” “To establish a prima facie case of retaliation, an employee must show [1] participation in a protected activity known to the defendant;  [2] an employment action disadvantaging the plaintiff, and [3] a causal connection between the protected activity and the adverse employment action.”  (Internal quotation marks omitted.)  Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 770, 886 A.2d 1248 (2005).   As to the first element, “protected activity is an action taken to protect or oppose statutorily prohibited discrimination.   These actions include a broad range of employer conduct such as the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management, writing critical letters to customers, protecting against discrimination by industry and expressing support of co-workers who have filed formal charges ․ The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices ․” (Citation omitted;  internal quotation marks omitted.)   Keith v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven, Docket No. CV 05 4010160 (November 21, 2005, Rodriguez, J.);   see also Kelley v. Sun Microsystems, Inc., 520 F.Sup.2d 388, 402-05 (D.Conn.2007).   As most recently held by the United States Supreme Court, claims can even include a third-party retaliation claim where an employer's action might dissuade “a reasonable worker from making or supporting a charge of discrimination.”   Thompson v. North American Stainless, LP, 562 U.S. (2011) (antiretaliation claim of co-worker allowed even though it was his fiancee, not him, who engaged in protected activity.) ⁸

In the present case, the plaintiff alleges that her employment was terminated in retaliation for her having engaged in a protected employment practice.   Specifically, she claims that she opposed her supervisors' discriminatory conduct by complaining to the school's management-level employees.   The plaintiff alleges that she complained about the four comments detailed above in Section IV; ⁹  however, the plaintiff has not alleged that she engaged in a protected activity taken to protest or oppose statutorily prohibited discrimination by the defendant.

“The basis of a retaliation claim is that the plaintiff suffered an adverse employment action as a result of protesting a discriminatory policy.   The plaintiff, therefore, is required to allege facts that show a causal relationship between the adverse employment action and the plaintiff's protests of a discriminatory policy, not just that the plaintiff disagreed with the policies of the defendant and that disagreement resulted in an adverse employment action.”  (Emphasis in original.)   Poach v. Doctor's Associates, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 40233906 (September 22, 2008, Zoarski, J.).   Further, “in the context of an ongoing employment relationship ․ individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal;  decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation;  similar decisions based on the employer's business needs and desires, independent of the employee's performance;  and disciplinary or investigatory action arising from actual or alleged employee misconduct ․ [S]uch individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like.”  (Emphasis added.)  Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2003).

In the present case, the plaintiff has not alleged that she was terminated from her employment as a result of her protesting a discriminatory policy.   Rather, she has alleged that she was personally offended by comments made by her supervisors.   Complaints about such comments do not constitute “protected activity” that support a retaliation claim.   See Keith v. Connecticut Housing Finance Authority, supra, Superior Court, Docket No. CV 05 4010160.   The plaintiff has failed to allege facts that would satisfy the first element of a claim of retaliation pursuant to § 46a-60(a)(4).   Accordingly, facts provable in the plaintiff's amended complaint do not support a cause of action for retaliation in violation of General Statutes § 46a-60(a)(4).

CONCLUSION

Accordingly, for all the foregoing reasons, the motion to strike count one is denied and the motion to strike counts two through six is granted.

Peck, J.

FOOTNOTES

FN1. A stock purchase and subsequent merger resulted in ownership of Baran Institute of Technology, Inc. by NN Acquisition, LLC and Lincoln Technical Institute, Inc. and change of the school's name to Lincoln Technical Institute, Inc. Baran Institute of Technology, Inc., Lincoln Technical Institute, Inc. and NN Acquisition, LLC are referred to collectively as “the defendants.”   The events alleged in the plaintiff's complaint took place before the merger.   Accordingly, Baran Institute of Technology, Inc., is referred to as “the defendant school.”.  FN1. A stock purchase and subsequent merger resulted in ownership of Baran Institute of Technology, Inc. by NN Acquisition, LLC and Lincoln Technical Institute, Inc. and change of the school's name to Lincoln Technical Institute, Inc. Baran Institute of Technology, Inc., Lincoln Technical Institute, Inc. and NN Acquisition, LLC are referred to collectively as “the defendants.”   The events alleged in the plaintiff's complaint took place before the merger.   Accordingly, Baran Institute of Technology, Inc., is referred to as “the defendant school.”

FN2. The plaintiff argues that the defendants are liable for the actions of her supervisors under the doctrine of respondeat superior..  FN2. The plaintiff argues that the defendants are liable for the actions of her supervisors under the doctrine of respondeat superior.

FN3. In their motion to strike (# 135), the defendants argue that the court should strike all counts of the plaintiff's amended complaint for the following reasons:  count one is legally insufficient because the plaintiff's speech did not involve a matter of public concern;  counts two and three fail to articulate any explicit public policy violated by the defendants;  count four fails to allege any extreme and outrageous conduct on the defendants' part that would support a finding of intentional infliction of emotional distress;  and counts five and six do not state cause-s of action under General Statutes § 46-60.In the memorandum in support of her objection to the defendants' motion to strike (# 137), the plaintiff objected to the defendants' motion to strike (# 135), claiming that it was technically deficient as to the fifth and sixth counts because the defendants failed to state in the motion the grounds upon which they claim those counts are legally insufficient.   Thereafter, on September 13, 2010, the defendants filed an amended motion to strike (# 139) in which they argue that the court should strike counts five and six for the following reasons:  count five does not allege any conduct by the defendants that amounts to discrimination under General Statutes § 46a-60(a) and as to count six, the amended complaint fails to allege that the defendants took any adverse action against the plaintiff..  FN3. In their motion to strike (# 135), the defendants argue that the court should strike all counts of the plaintiff's amended complaint for the following reasons:  count one is legally insufficient because the plaintiff's speech did not involve a matter of public concern;  counts two and three fail to articulate any explicit public policy violated by the defendants;  count four fails to allege any extreme and outrageous conduct on the defendants' part that would support a finding of intentional infliction of emotional distress;  and counts five and six do not state cause-s of action under General Statutes § 46-60.In the memorandum in support of her objection to the defendants' motion to strike (# 137), the plaintiff objected to the defendants' motion to strike (# 135), claiming that it was technically deficient as to the fifth and sixth counts because the defendants failed to state in the motion the grounds upon which they claim those counts are legally insufficient.   Thereafter, on September 13, 2010, the defendants filed an amended motion to strike (# 139) in which they argue that the court should strike counts five and six for the following reasons:  count five does not allege any conduct by the defendants that amounts to discrimination under General Statutes § 46a-60(a) and as to count six, the amended complaint fails to allege that the defendants took any adverse action against the plaintiff.

FN4. The subject matter of the plaintiff's statements also involve a matter of concern to the community because it relates to the welfare of individuals and employers that may be harmed by the defendants' release of unqualified workers into the work force to perform auto body and auto mechanical work.   Specifically, work performed in a poor quality manner may be harmful to consumers, both financially and in terms of personal safety, and to employers, both financially and in terms of potential liability.   See DiMartino v. Richens, supra, 263 Conn. 639, 667-69 (statements regarding safety affecting the general public are matters of public concern).However, as to the statements about her supervisors' inappropriate comments and conduct in meetings, discussed in more detail in Section III, the subject matter of those statements is not a matter of public concern, rather, it is personal in nature.   See Lowe v. AmeriGas Inc., 52 F.Sup.2d 349, 359 (D.Conn.1999), aff'd, 208 F.3d 203 (2d Cir.2000) (employee's statements regarding racial remarks by other employees and employee attitudes not considered matters of public concern)..  FN4. The subject matter of the plaintiff's statements also involve a matter of concern to the community because it relates to the welfare of individuals and employers that may be harmed by the defendants' release of unqualified workers into the work force to perform auto body and auto mechanical work.   Specifically, work performed in a poor quality manner may be harmful to consumers, both financially and in terms of personal safety, and to employers, both financially and in terms of potential liability.   See DiMartino v. Richens, supra, 263 Conn. 639, 667-69 (statements regarding safety affecting the general public are matters of public concern).However, as to the statements about her supervisors' inappropriate comments and conduct in meetings, discussed in more detail in Section III, the subject matter of those statements is not a matter of public concern, rather, it is personal in nature.   See Lowe v. AmeriGas Inc., 52 F.Sup.2d 349, 359 (D.Conn.1999), aff'd, 208 F.3d 203 (2d Cir.2000) (employee's statements regarding racial remarks by other employees and employee attitudes not considered matters of public concern).

FN5. Count two of the plaintiff's amended complaint lists a number of public policies allegedly violated by the defendants.   Those allegations which do rise to the level of alleging a violation of a specific statute, constitutional provision or judicially recognized public policy, as is required to state a common-law claim for wrongful termination in violation of public policy;  see Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 844, 888 A.2d 104 (2006);  are identical to those alleged in count one in support of the plaintiff's § 31-51q claim..  FN5. Count two of the plaintiff's amended complaint lists a number of public policies allegedly violated by the defendants.   Those allegations which do rise to the level of alleging a violation of a specific statute, constitutional provision or judicially recognized public policy, as is required to state a common-law claim for wrongful termination in violation of public policy;  see Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 844, 888 A.2d 104 (2006);  are identical to those alleged in count one in support of the plaintiff's § 31-51q claim.

FN6. Connecticut courts “look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”  (Internal quotation marks omitted.)  Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002)..  FN6. Connecticut courts “look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”  (Internal quotation marks omitted.)  Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002).

FN7. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination.   The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination.   In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination.   A plaintiff may establish a prima facie case of discrimination through inference by presenting facts that are sufficient to remove the most likely bona fide reasons for an employment action.   From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for legitimate reasons.   See Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 224-25, 676 A.2d 844 (1996).In paragraph fifty-one of her amended complaint, the plaintiff alleges that the defendant terminated her for a list of reasons, not one of which is that the plaintiff is a woman..  FN7. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination.   The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination.   In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination.   A plaintiff may establish a prima facie case of discrimination through inference by presenting facts that are sufficient to remove the most likely bona fide reasons for an employment action.   From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for legitimate reasons.   See Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 224-25, 676 A.2d 844 (1996).In paragraph fifty-one of her amended complaint, the plaintiff alleges that the defendant terminated her for a list of reasons, not one of which is that the plaintiff is a woman.

FN8. This decision was released by the United States Supreme Court by way of a slip opinion on January 24, 2011 and is subject to formal revision before publication in the preliminary print of the United States Reports..  FN8. This decision was released by the United States Supreme Court by way of a slip opinion on January 24, 2011 and is subject to formal revision before publication in the preliminary print of the United States Reports.

FN9. Two of the comments contained racial content, one of the comments contained sexual content and one of the comments contained both racial and sexual content..  FN9. Two of the comments contained racial content, one of the comments contained sexual content and one of the comments contained both racial and sexual content.

Peck, A. Susan, J.