Katherine Cassidy v. University of Connecticut Health Center (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE # 107

On April 14, 2010, after obtaining a release of jurisdiction from the Commission on Human Rights and Opportunities (CHRO), the plaintiff, Katherine Cassidy, a registered nurse, commenced this action by service of process on the defendants, her employer, the University of Connecticut Health Center (UCONN Health Center),¹ and her supervisor, Pat Morris.   The plaintiff's four-count amended complaint, filed May 19, 2010, alleges the following relevant facts.   The plaintiff, who identifies herself as Caucasian, was working as a per diem nurse at a Connecticut Department of Correction's facility that was operated by UCONN Health Center.   Morris, whom the plaintiff identifies as African American, treated the plaintiff with disrespect and gave shift, overtime and cell block preferences to employees of color.   In March 2007, the plaintiff received a card at her home from an inmate.   After reporting this incident, the plaintiff was placed on a “keep separate status away from this inmate for her safety.”   In November 2007, the same inmate told staff members that he intended to kill the plaintiff by pouring acid on her.   The plaintiff was not immediately notified of this incident, and an investigation was not conducted.

On December 21, 2007, Morris designated the plaintiff to work as a nursing supervisor, despite the fact that she had never been trained for this position.   On this day, Morris also ordered the plaintiff to report to work at “C Block,” which was the area where the threatening inmate was housed.   The plaintiff complained to Morris about her lack of qualifications and fear for her safety, but Morris refused to change her work designation.   Upon reporting to C Block, the plaintiff told a deputy warden that she feared for her safety.   Only after she complained to the deputy warden did Morris reassign the plaintiff to an alternate block.   On December 23, 2007, the plaintiff formally complained to UConn Health Center's administrators, and, five days later, she was told that she could no longer work at the facility.   On December 30, 2007, the plaintiff filed a complaint with UCONN's equal employment specialist.   In January 2008, the plaintiff was told that the conduct she complained about did not amount to discrimination and that no investigation would be forthcoming.   Four months after the plaintiff filed a CHRO complaint, she was told that she could return to work, but that UCONN Health Center would not provide her with a safe work environment.

In the amended complaint, in counts one, two and four respectively, that plaintiff alleges claims against UConn Health Center for employment discrimination of the basis of race in violation of General Statutes §§ 46a–60(a)(1), unlawful retaliation in violation of § 46a–60(a)(4) and unlawful retaliation in violation of General Statutes § 31–51q.   In count three, she alleges a claim against Morris for intentional infliction of emotional distress.   On June 16, 2010, the defendants filed a motion to strike counts two, three and four on the grounds that the plaintiff's allegations are legally insufficient.   The plaintiff filed an objection on February 28, 2011, and the matter was heard at short calendar on June 13, 2011.

DISCUSSION

“The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 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).  “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 Two:  Retaliation Under General Statutes § 46a–60(a)(4)

The defendants argue that count two is legally insufficient because the plaintiff fails to allege facts necessary to support a claim of retaliation under § 46a–60(a)(4), which 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 has opposed any discriminatory practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83 or 46a–84 ․” Under this statute, “[t]o establish a prima facie case of retaliation, a plaintiff must show four elements:  (1) that he participated in a protected activity;  (2) that the defendant knew of the protected activity;  (3) an adverse employment action against him;  and (4) a causal connection between the protected activity and the adverse employment action.”  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784, 788 (2009).   The defendants apparently contend that the plaintiff's allegations are insufficient to meet any of these elements.

The plaintiff alleges that she engaged in protected activity and that the defendant was aware of this protected activity when, on December 23, 2007, she filed a “formal complaint to [administrators] regarding the no contact with the inmate and the actions of Pat Morris.”   See Chylinski v. Bank of America, N.A., 630 F.Sup.2d 218 (D.Conn.2009) (employee stated claim for retaliation by alleging he made specific complaints of sexual harassment to his supervisor).   Furthermore, the plaintiff alleges that, only five days later, “as a result of this complaint, on December 28, 2007, [she] was told that [she] could no longer work at the facility.”   This is sufficient to allege that an adverse employment action was taken against her, as it may be inferred that she preferred to continue working at the facility and because such an action could well dissuade a reasonable worker from filing a complaint of discrimination;  see Burlington Northern & Santa Fe R. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).   Moreover, the allegation that the action occurred within a short time after she made her complaint is sufficient to infer a causal connection between the two events.   See Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn.App. 539 (causal connection can be established indirectly by showing protected activity followed closely in time by adverse action).   Accordingly, the complaint is legally sufficient to establish a claim for retaliation and the motion to strike is denied as to count two.

II

Count Three:  Intentional Infliction of Emotional Distress

The defendants move to strike count three on the ground that the complaint is legally insufficient to satisfy the second element of a claim for intentional infliction of emotional distress.  “In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (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.)   Carrol v. Allstate Ins. Co., 262 Conn. 433, 442–43, 815 A.2d 119 (2003).

As to the second element, “[l]iability 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!  ․ 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.)  Id., 443.

“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.”  (Internal quotation marks omitted.)  Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68 (2003).  “[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action.   The court looks to the specific facts and circumstances of each case in making its decisions.”  (Internal quotation marks omitted.)   Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.).

“In the workplace context, the threshold [for extreme and outrageous conduct] is even higher:  ‘[I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.’  Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002).”   Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.).  “Nevertheless, it has also been held that [t]he extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests ․ Such position or relation may be that of an employer or supervisor at work ․” (Citations omitted;  internal quotation marks omitted.)  Id. In addition, the “extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.   The conduct may become heartless, flagrant, and outrageous when the act or proceeds in the face of such knowledge, where it would not be so if he did not know.”  (Internal quotation marks omitted.)   Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991) (allegations that employer taunted employee, a known alcoholic, about his alcoholism and recovery sufficient to survive a motion to strike intentional infliction claim).

The defendants argue that the plaintiff's allegations do not “remotely plead a cause of action for emotional distress,” presumably because the plaintiff has failed to sufficiently allege extreme or outrageous conduct.   In support of their argument, the defendants rely on Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), where, in ruling on the defendant's motion for summary judgment, the court found that following conduct by the defendant was not extreme and outrageous.  “The plaintiff complains that [the defendant] made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read;  telephoned the plaintiff's daughter, representing that the plaintiff had been acting differently and should take a few days off from work;  and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car.   The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign.”  Id., 211.   The court explained:  “These occurrences may very well have been distressing and hurtful to the plaintiff.   They do not, however, constitute extreme and outrageous conduct ․” Id.

In response, the plaintiff argues that Morris' conduct of placing the plaintiff, who was her subordinate, in close proximity to an inmate who had recently threatened to kill the plaintiff constitutes extreme and outrageous conduct, especially where Morris knew of the threats and the plaintiff's fear for her safety.   These allegations are sufficient to satisfy the requirement that the plaintiff's claim be premised on extreme or outrageous conduct by the defendant, particularly since Morris had actual authority over the plaintiff, see Wilk v. Abbott Terrace Health Center, Inc., supra, Superior Court, Docket No. CV 06 5001328;  and she was aware of the plaintiff's mental state, i.e., her fear of the threatening inmate.   See Mellaly v. Eastman Kodak Co., supra, 42 Conn.Sup. 20.   Accordingly, the motion to strike is denied as to count three.

III

Count Four:  Protected Speech Under General Statutes § 31–51q

The defendants move to strike count four on the ground that the complaint is legally insufficient to meet the first element of a claim under § 31–51q, which 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).

As to the first element, the defendants argue that the protection of § 31–51q extends only to speech that addresses a matter of a public concern, not personal complaints about discrimination.   Relying on the United States Supreme Court's recent decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), in which the court held that statements that a public employee makes pursuant to the employee's official duties are not protected by the first amendment to the United States constitution, the defendants argue that the plaintiff's alleged complaints do not amount to an actionable § 31–51q retaliation claim.   In response, the plaintiff contends that complaints about civil rights violations, endangering state employees by having them work in areas where they could be exposed to physical harm, and manipulating shifts so that certain races receive a financial gain are matters of public concern.

“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).   The statute “safeguard [s] statements made by an employee that address a matter of public concern, but provide[s] 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.”  Daley v. Aetna Life & Casualty Co., supra, 777.

The allegations of the complaint, even when read in the light most favorable to the plaintiff, are not legally sufficient to establish a claim § 31–51q.   The plaintiff fails to allege that she spoke out on a matter of public concern.   As a matter of law, a complaint about personal discriminatory treatment is not a matter of public concern.   See Trusz v. UBS Realty Investors, LLC, United States District Court, Docket No. 3:09 CV 268 (D.Conn. March 30, 2010) (holding that plaintiff's disability discrimination complaint reflected only his personal interest and did not implicate matter of public concern sufficient to come within § 31–51q).   See also Lowe v. AmeriGas, Inc., 52 F.Sup.2d 349 (D.Conn.1999) (complaints about racial discrimination against him related to person matter, not matter of public concern sufficient to come within § 31–51q), aff'd, 208 F.3d 203 (2d Cir.2000).   Moreover, to the extent that statements complaining about endangering state employees by assigning them to work in areas where they could be exposed to physical harm and manipulating shifts so that certain races receive financial gain are matters of public concern, the plaintiff fails to adequately allege that she spoke out on these types of issues.   Accordingly, the motion to strike is granted as to count four.

To summarize, the motion to strike is denied as to counts two and three and granted as to count four.

Domnarski, J.

FOOTNOTES

FN1. Although the parties refer to this defendant as the University of Connecticut Health Center Correctional Managed Healthcare, on the summons, and, accordingly, in the court's database, this defendant is listed as the University of Connecticut Health Center..  FN1. Although the parties refer to this defendant as the University of Connecticut Health Center Correctional Managed Healthcare, on the summons, and, accordingly, in the court's database, this defendant is listed as the University of Connecticut Health Center.

Domnarski, Edward S., J.