Rosie Armstrong–Grice v. Community Health Services, Inc. et al. (2011)

MEMORANDUM OF DECISION

On July 16, 2010, the plaintiff, Rosie Armstrong–Grice, filed a three-count complaint against the defendants, Community Health Services, Inc. (CHS) and Michael Sherman, alleging a violation of General Statutes § 31–51q (count one);  breach of contract (count two);  and tortious interference with a business expectancy (count three).   In her complaint, the plaintiff alleges the following relevant facts.   The plaintiff was employed as a senior executive assistant/lead advocacy coordinator at CHS, a non-profit federally qualified health care center that annually receives over ten million dollars in state and federal funds and at least one million dollars in grants from private foundations.   The plaintiff reported directly to Sherman, CHS's chief executive officer.

From February through March 2009, CHS's board of directors received anonymous emails accusing Sherman of mismanaging funds.   Between January and September of that same year, three members of the board questioned the plaintiff regarding whether she had any information about possible wrongdoing by Sherman.   The plaintiff was aware of instances of Sherman's misconduct.   On more than one occasion, he instructed her that all CHS information was confidential and that she would be fired if she leaked any information particularly to board members.   In addition, Sherman often asked the plaintiff to create records to conceal his improper conduct.   For example, Sherman asked the plaintiff to schedule business conferences in cities that he wished to visit so that he could take personal trips at CHS's expense.   He also asked the plaintiff to write a false letter to auditors.

On September 2, 2009, the plaintiff was informed for the first time that her performance was inadequate.   This allegation was false;  prior to this date, the plaintiff had not had any verbal or written discipline regarding performance problems.   Sherman placed the plaintiff on a written ninety-day probation and mentioned that she was responsible for the February and March 2009 anonymous emails that implicated him.   On September 14, 2009, the plaintiff was terminated for a breach of confidentiality.   This was merely pretext to retaliate against the plaintiff for speaking out regarding matters of public concern about Sherman's improper use of government funds.

Prior to the plaintiff's termination, on May 5, 2009, Sherman verbally promised the plaintiff that she would receive additional benefits in the form of extra vacation time and added compensation, effective November 8, 2009, if she assumed additional job responsibilities.   The plaintiff agreed and performed the additional duties, however, CHS breached its promise when it terminated her on September 14, 2009.

After her termination, the plaintiff sought to mitigate her damages by seeking employment at the Young Men's Christian Association (YMCA).   She successfully completed a third interview and the YMCA inquired as to when she could begin employment.   The YMCA told her that she would be asked to sign a contract of employment but that, as the last step in the hiring process, they needed to call her references, including Sherman.   Soon thereafter, the YMCA informed the plaintiff that it was not interested in employing her as a result of its communication with Sherman.   The plaintiff alleges that Sherman knew that the plaintiff had a prospective business relationship with the YMCA when it contacted him for reference and that he tortiously interfered with this relationship.   On October 6, 2010, the defendants filed a motion to strike all three counts of the complaint and submitted a memorandum in support.   On October 25, 2010, the plaintiff filed an objection and a memorandum in support.

DISCUSSION

When ruling on a motion to strike, “[w]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

I

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

The defendants move to strike count one on the grounds that the plaintiff has failed to allege that she exercised her freedom of speech on a matter of public concern and that her speech did not substantially interfere with her bona fide job performance or with her working relationship with CHS. 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).

First, “[s]ection 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).  “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.”  Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777.

As a threshold matter, the defendant contends that count one is devoid of any factual allegations that the plaintiff exercised her freedom of speech.   The defendant conveniently ignores that the plaintiff alleges in paragraphs thirteen and fourteen of her complaint that the board of directors received “anonymous” emails “regarding alleged mismanagement of CHS funds by Sherman.”   In paragraph twenty-two, the plaintiff also alleges that she was terminated for “speaking out ․ about improper use of government funds by Sherman.”   It is submitted that it can be inferred from these paragraphs that the anonymous emails were actually sent from the plaintiff.   Therefore, the plaintiff has alleged that she exercised her freedom of speech;  whether this speech is constitutionally protected under § 31–51q depends on whether the misuse of CHS funds addresses a matter of public concern.

The Supreme Court has held that “[a]n example of an issue of public concern is one involving the expenditure of public funds ․” Cotto v. United Technologies Corp., 48 Conn.App. 618, 631, 711 A.2d 1180, aff'd 251 Conn. 1, 738 A.2d 623 (1998).   In addition, the judges of the Superior Court have held that an issue involving government funds is a matter of public concern, particularly where fraud is involved.   See Colonna v. Baran Institute of Technology, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 4042637 (January 26, 2011, Peck, J.) (statements related to efforts to defraud the state and local government involve 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 an employer's potential tax evasion implicates public policy”);  Sobczak v. Meriden Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 419547 (October 6, 2000, Levin, J.) (the inflation of a public employee's overtime hours is a matter of public concern).   The plaintiff in the present case has alleged that each year CHS receives money from the state and federal governments.   She has also alleged that she was terminated for speaking out about the improper use of government funds.   Therefore, as pleaded and as can be reasonably inferred, the subject matter of the plaintiff's statements is a matter of public concern because it relates, inter alia, to the defendants' attempts to defraud the state and federal governments by misusing funds.

Second, the plaintiff has sufficiently plead that she was terminated for speaking out about the improper use of government funds.   Third, with respect to the final element, “[t]he language of § 31–51q is consistent ․ with the need to allege that the free speech in question did not interfere with the job performance or employment relationship of the speaker.  [F]ailure to plead even one such essential element in a challenged count requires the striking of that count for failure to state a claim upon which relief can be granted.”   (Internal quotation marks omitted.)   Lehman v. Connecticut Legal Rights Project, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018378 (July 14, 2006, Wagner, J. T.R.).   See also Marrero v. Mega Communications, Superior Court, judicial district of Hartford, Docket No. CV 00 080388 (July 16, 2003, Wagner, J.T.R.);   Sierra v. State, Superior Court, judicial district of Hartford, Docket No. CV 00 0830588 (June 14, 2001, Beach, J.) (29 Conn. L. Rptr. 734, 737).   In the present case, the plaintiff has failed to allege that her speech did not substantially or materially interfere with her bona fide job performance or with her working relationship.   Because the plaintiff has failed to allege the third element necessary for a claim under § 31–51q, the motion to strike count one is granted.

II

COUNT TWO:  BREACH OF ORAL CONTRACT

The defendants move to strike count two on the ground that the plaintiff has failed to allege that the parties undertook a contractual commitment to terminate the plaintiff's employment only for just cause.  “As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.”  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987).   The parties to an employment agreement, however, may modify the default rule of employment at will by agreeing, “either by words or action or conduct, to undertake [some] form of actual contract commitment ․ under which [an employee cannot] be terminated without just cause.”  (Internal quotation marks omitted.)  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).  “Good cause or ‘[j]ust cause’ substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, by forbidding the employer to act arbitrary or capriciously.”  (Citations omitted;  internal quotation marks omitted.)   Slifkin v. Condec Corp., 13 Conn.App. 538, 549, 538 A.2d 231 (1988).

“To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ If the minds of the parties have not truly met, no enforceable contract exists.”  (Internal quotation marks omitted.)  Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).  “A contractual promise cannot be created by plucking phrases out of context;  there must be a meeting of the minds between the parties.”   Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989).  “[T]o survive a motion to strike, the allegations [of breach of an employment contract] must include ․ specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims [she] had with the defendant[s].”  (Internal quotation marks omitted.)   Avitable v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 09 5013806 (June 4, 2010, Adams, J.).

For example, in Avitable v. 1 Burr Road Operating Co. II, LLC, the Superior Court held that “[t]here are no facts alleged ․ indicating that the defendants undertook a contractual commitment only to terminate the plaintiff's employment for just cause” where “the plaintiff has only alleged that the defendants offered the plaintiff paid employment and health insurance.”  Id. Similarly, in the present case, the plaintiff alleges that she entered into an express oral contract with the defendants whereby she assumed additional duties in exchange for additional vacation time and compensation.   The defendants allegedly breached this contract when it terminated her employment on September 14, 2009.   The plaintiff has not alleged that there was an agreement whereby she would be terminated only for just cause.   In the absence of sufficient factual allegations from which it can be inferred that the defendants agreed, either by words or action or conduct, to undertake some form of a contractual commitment to the plaintiff under which she could not be terminated without just cause, the plaintiff has failed to state a claim for breach of an oral contract.   Accordingly, the motion to strike count two is granted.

III

COUNT THREE:  TORTIOUS INTERFERENCE WITH A BUSINESS EXPECTANCY

The defendants move to strike count three on the ground that the plaintiff has failed to allege the requisite elements of a claim for tortious interference with a business expectancy.   The elements of this cause of action are well settled.  “A successful action for tortious interference with business expectancies requires the satisfaction of three elements:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Internal quotation marks omitted.)   IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn.App. 262, 272, 969 A.2d 807 (2009).   Regarding the second element, “[a] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself ․ Accordingly, the plaintiff must plead and prove at least some improper motive or improper means ․ [F]or a plaintiff successfully to prosecute such an action it must prove that ․ the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ In the context of a tortious interference claim, the term malice is meant not in the sense of ill will, but intentional interference without justification.”  (Citations omitted;  internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).  “Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort.”  (Internal quotation marks omitted.)   Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).   Accordingly, “[o]ne could avoid liability under this tort by not acting maliciously or in bad faith.”  Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 342 n.31, 627 A.2d 909 (1993).

In the present case, Sherman contends that the plaintiff has failed to allege that Sherman intentionally interfered with a business relationship, since the YMCA sought out his opinion, and has failed to allege that Sherman was guilty of fraud, misrepresentation, intimidation or acted maliciously.   The plaintiff counters that she has alleged the requisite elements of a claim for tortious interference, by way of factual allegations contained in counts one and three.

The court is limited to the factual allegations contained in count three because the plaintiff has failed to incorporate any allegations contained in count one.   See, e.g., Smith v. Brown, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 91 288536 (August 28, 1992, Lewis, J.) (granting a motion to strike the a counterclaim where the defendants failed to incorporate necessary facts).   Count three contains no factual allegations from which it can be inferred that the defendant intentionally interfered with a business relationship.   While it can be inferred from the plaintiff's allegations that the defendant gave her a poor recommendation, it cannot be inferred that this was the result of some improper motive or that the defendant is guilty of fraud, misrepresentation, intimidation or molestation.   Because the plaintiff's mere conclusions of law are legally insufficient to allege the requisite tortious conduct necessary for a claim of tortious interference, the motion to strike count three is granted.

CONCLUSION

For the reasons stated above, the motion to strike counts one, two and three of the plaintiff's complaint is hereby GRANTED.

Domnarski, J.

Domnarski, Edward S., J.