Derborah Carmichael v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

BACKGROUND:

In her amended complaint, the plaintiff, Deborah Carmichael, has brought an action against her employer, the defendant, West Haven Medical Group, LLC, concerning her termination.   The alleged factual basis of the plaintiff's complaint is as follows:

At some previous time, the plaintiff, an at-will employee, had been disciplined [“written ․ up”] by a manager, who later was caused to remove the “write up” from the plaintiff's “file.”   The plaintiff was told by the defendant's managing doctor that, in the future, the plaintiff could address direct any further problems or issues with a supervisor other than this manager.

On March 17, 2010, the aforesaid manager told the plaintiff that she had previously been paid for time she had not worked.   The manager further told the plaintiff that she would receive a deduction in her next paycheck for the overpayment.   The plaintiff disputed this with the manager and they agreed to speak the following day.

On March 18, 2010, the plaintiff and the manager continued their discussion at which time the plaintiff asked the manager for “the number to payroll and the Human Resource department.”   The plaintiff alleges that the manager became upset and grabbed the plaintiff by her right arm and pulled the plaintiff into her office, causing physical injury.   The manager told the plaintiff to go home but the plaintiff had no time off available and instead returned to her duties.   The following day, the plaintiff was terminated.

In her amended complaint, the plaintiff alleges in four counts, claims of wrongful termination, retaliatory discharge, battery and negligent supervision against her employer, the defendant.   The defendant has filed a motion to strike (105.00) all four counts of the amended complaint, to which the plaintiff has filed an objection (107.00).   The parties were heard at oral argument on November 21, 2011.

LEGAL STANDARD:

“Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “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).   “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).  “A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).

“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.)  Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

ANALYSIS:

I. Wrongful termination and retaliatory discharge

In Count One of the amended complaint, entitled “Wrongful Discharge,” the plaintiff asserts that she was terminated for questioning why she would receive a deduction from her paycheck.   She claims that her discharge was retaliatory, wrongful, malicious, abusive and in violation of “the law with respect to the doctrine of law relating to arbitrary and malicious discharge in violation of public policy in that the defendant was in violation of Conn. General Statutes § 31–71e ․” Casting the plaintiff's allegation in the most favorable light, it appears that the plaintiff is alleging that the defendant violated General Statutes § 31–71e ¹ and that she was discharged for questioning the defendant's conduct, a violation of public policy.   The plaintiff has not alleged that the amount taken from her paycheck was for time that she actually worked or that she was entitled to it.

In Count Two of the amended complaint, entitled “Retaliatory Discharge,” the plaintiff makes no additional allegations.   She merely incorporates the same allegations of Count One by reference.   Because the two counts are exactly the same, but with different titles, they are considered to be one and the same cause of action.

The defendant asserts that the plaintiff has no common-law cause of action for wrongful or retaliatory termination because she has an exclusive statutory remedy and no violation of public policy is pleaded by the plaintiff.   The plaintiff asserts that she is entitled to bring common-law claims of wrongful or retaliatory termination because she was discharged for questioning the defendant's conduct in violating General Statutes § 31–71e, a violation of public policy.

“In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), [the Connecticut Supreme Court] recognized that it is a general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will ․ In Sheets, however, this court recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.”  (Emphasis in original;  citations omitted;  internal quotation marks omitted.)  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158–59, 745 A.2d 178 (2000).

“In interpreting this exception, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one ․ We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation ․ 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, citations omitted;  internal quotation marks omitted.)  Id., 159–60.

The plaintiff's assertion that she has sufficiently alleged causes of action of wrongful discharge or retaliation because of violation of an important public interest fails for three reasons.   First, the plaintiff has insufficiently pleaded a violation of General Statutes § 31–71e, as she fails to assert any facts which would constitute such a violation.  General Statutes § 31–71a(3) defines wages in relevant part as “compensation for labor or services rendered by an employee.”   Although the plaintiff alleges that the defendant violated § 31–71e by not following the process outlined for withholding or diverting wages, the plaintiff does not allege in her amended complaint that she earned the money deducted from her paycheck, or any other facts which would put the defendant in violation of that statute.   In fact, in ¶ 5 of all counts of the amended complaint, the plaintiff alleges she had been “paid for time she did not work.”

Second, even if the plaintiff had sufficiently alleged a cause of action of wrongful or retaliatory discharge, she has a statutory remedy, General Statutes § 31–69b.²  This remedy precludes her common-law cause of action absent an assertion invoking an impropriety derived from some important violation of public policy.  Burnham v. Karl & Gelb, P.C., 158–59.

Third, the plaintiff has failed to allege in the complaint the important public policy which was violated by the defendant.   The defendant argues that protection of unearned money is not an important public policy.   In response, the plaintiff states that she is not claiming that the protection of unearned money is an important public policy.   Rather, the plaintiff argues that her “inability to [communicate] with a superior about her superior when a problem arises and not be retaliated against for doing so, is an important public policy.”

“In Morris v. Hartford Courant Co., ․ [the Connecticut Supreme Court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception.   In evaluating claims, [w]e look to see whether the plaintiff has ․ alleged that his discharge violated any explicit statutory or constitutional provision ․ or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.”  (Citation omitted;  internal quotation marks omitted.)  Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 698–99, 802 A.2d 731 (2002).  “[W]e have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy.”   Id., 701.

The plaintiff does not allege in her complaint that her termination violated an important public policy regarding communication with her superiors but rather makes this argument in her objection to the defendant's motion to strike.   The plaintiff has cited no authority supporting her argument that her discharge violated a specific statute or a judicially conceived notion of public policy in this respect.   Not only is her claim that she was not permitted to speak to a superior without retaliation not a violation of public policy, it is not alleged or supported in the facts recited in the complaint.   Under the public policy exception, the “defendant's reason for discharging the plaintiff must contravene public policy.”  Battista v. United Illuminating Co., 10 Conn.App. 486, 498, 523 A.2d 1356 (1987).   The plaintiff has failed to make such allegation here.

Under Burnham, supra, 252 Conn. 158–59, the plaintiff must show that her termination was in violation of public policy and that the plaintiff did not have a viable statutory remedy available.   In this case, the plaintiff has failed to allege either necessary element.   In the absence of such showing, the motion to strike Count One and Count Two is granted.

II. Battery

In Count Three of the amended complaint, the plaintiff alleges that the manager committed a battery upon her by grabbing her right arm and dragging her into an office.   Although this incident allegedly occurred on the day prior to her termination, the plaintiff does not allege that she made a claim under the Workers' Compensation Act, General Statutes § 31–275 et seq.   The defendant asserts that the plaintiff's claimed injury is exclusively covered by the Act pursuant to General Statutes § 31–284(a) ³ and the plaintiff may not assert a common-law tort claim for battery.   The plaintiff asserts that the battery was intentional and, as such, is an exception to the Act's exclusivity.

“If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate.   It is inappropriate where the actor is merely a foreman or supervisor.”  Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979), supra, 219.

“[T]his court considered whether an employer could be subject to common-law tort liability for a battery that a supervisory employee committed upon a coemployee.   This court noted that, as a general rule, ‘[a]n intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the [Workers' Compensation Act].’ Id., 218.   In Jett, however, the court carved out an exception to the rule:  ‘If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility, for the actor's conduct is appropriate.’  Id., 219.   Accordingly, the court concluded that ‘[i]f the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort;  if the assailant is only another employee who cannot be so identified, then the strict liability remedies provided by the [act] are exclusive and cannot be supplemented with common-law damages.’   “ Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 273–74, 698 A.2d 838 (1995).

In Count Three, the plaintiff alleges that her manager “was angry [and] acted with the intent to cause an offensive contact by pulling the plaintiff's right arm in order to make her go into the office.   This offensive contact with the plaintiff was the direct cause of her injury.”   The plaintiff argues that this pleading is sufficient to maintain her common-law battery claim.   She relies on language from Mingachos v. CBS, Inc., 196 Conn. 91, 100, 491 A.2d 368 (1985), in support of its argument that the manager's action in grabbing the plaintiff's arm was “ ‘willful, wanton and malicious' in part, because they were fueled by her built up hostility toward the plaintiff.”

In Mingachos, the court examined an employer's violation of a workplace safety standard in order to determine if the plaintiff's intentional tort action was barred by the exclusivity of remedies doctrine.   The court reasoned:  “To bypass the exclusivity of the [Workers' Compensation Act], the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted ․ A wilful and malicious injury is one inflicted intentionally without just cause or excuse.   It does not necessarily involve the ill will or malevolence shown in express malice.   Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved.   Not only the action producing the injury but the resulting injury must be intentional.   A wilful or malicious injury is one caused by design.   Wilfulness and malice alike import intent ․ [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.   The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.”  (Internal citations omitted.)  Id. at 102.

In Suarez, supra, 242 Conn. 280, the court expanded upon Mingachos.   The court reasoned:  “Therefore, to escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory.   Under the former, the actor must have intended both the act itself and the injurious consequences of the act.   Under the latter, the actor must have intended the act and have known that the injury was substantially certain to occur from the act.”  Id.

The plaintiff's Count Three is deficient for several reasons.   She has not pleaded that the manager acted with the intent to injure the plaintiff's arm.   Rather, the plaintiff alleges that the manager acted “with the intent to cause an offensive contact.”   The plaintiff's complaint is devoid of any allegations that the defendant, not its manager, acted with the intent to injure the plaintiff.   The plaintiff has not alleged that the manager was the defendant's alter ego or that the defendant directed the manager ⁴ to injure the plaintiff's arm as required under Jett. As pleaded, the plaintiff's battery claim is barred by the application of the Workers' Compensation Act, and any remedy arising out of the alleged conduct falls exclusively within the provisions of the Workers' Compensation Act. The motion to strike Count Three is granted.

III. Negligent supervision

Count Four of the plaintiff's amended complaint alleges that the defendant was negligent in properly supervising the manager, “an employee whom the defendant knew had caused harm to the plaintiff in the past and should have known that future interactions could cause additional harm/retaliation ․” It is unclear from this whether the plaintiff is claiming that the defendant should have foreseen that the manager would cause bodily harm to the plaintiff, that the manager would engage in retaliation, or both.

The defendant moves to strike this count for failure to allege facts sufficient to sustain a negligent supervision claim.   The defendant argues that the plaintiff has not alleged that the defendant knew or reasonably should have known that the manager would engage in tortuous conduct, i.e., foreseeability.

The plaintiff counters that the removal of the manager's prior write-up of the plaintiff and the fact that the plaintiff was granted permission to report to a different supervisor indicates that the defendant was aware of the potential for retaliation by the manager.   The plaintiff argues that therefore the plaintiff's firing “was a foreseeable harm or at [a] minimum foreseeability could reasonably be inferred.”

“Under Connecticut law, an employer may be held liable for the negligent supervision of employees.”  Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004).  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010).

“The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm.   Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?   This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur.   It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence.”  Seguro v. Cummiskey, supra, 82 Conn.App. 194.

“In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury.”  (Internal quotation marks omitted.)   Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5009309 (February 22, 2011, Jennings, J.T.R.).

In her objection to the defendant's motion to strike, the plaintiff argues that Meade v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 05 4016155 (September 7, 2006, Skolnick, J.T.R.), is analogous to the present case.   In Meade, the plaintiff was terminated after repeatedly expressing concerns to the department co-chair that she feared her immediate supervisor would engage in retaliatory discharge, despite assurances to the contrary.   The plaintiff's subsequent civil action contained a claim of negligent supervision of the supervisor.   The defendants moved to strike the negligent supervision count on the ground that the plaintiff's allegations did not satisfy the foreseeability element of negligent supervision.   In denying the defendants' motion to strike, the court reasoned that the plaintiff had sufficiently pleaded foreseeability by alleging that she had expressed her concerns about retaliatory discharge to the department co-chair.  Id.

In Count Four of the amended complaint, there is no factual basis for foreseeability of tortious behavior.   Even as to retaliatory discharge, the plaintiff's pleading is inadequate.   Judge Skolnick's reasoning in Meade does not support the plaintiff's allegations here.   In Meade, the plaintiff alleged a pattern of events giving rise to her fear of retaliatory discharge and was assured repeatedly that she would not be terminated.   In the present case, the plaintiff merely alleges that the manager had previously disciplined the plaintiff, had to negate that discipline and that the managing doctor gave the plaintiff the authority to speak with another supervising authority about any future problems or issues.   This does not adequately state a sufficient factual basis to satisfy the foreseeability element.

Although the plaintiff alleges that the defendant “should have known that future interactions [with the manager] could cause additional harm/retaliation,” the plaintiff has not alleged sufficient facts to support this allegation.  “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, supra, 262 Conn. 498.

In the absence of a sufficiently pleaded cause of action of negligent supervision, the motion to strike Count Four is granted.

ORDER:

The defendant's motion to strike (105.00) is granted.   The objection to same (107.00) is overruled.

Robert E. Young, J.

FOOTNOTES

FN1. General Statutes § 31–71e states,No employer may withhold or divert any portion of an employee's wages unless (1) the employer is required or empowered to do so by state or federal law, or (2) the employer has written authorization from the employee for deductions on a form approved by the commissioner, or (3) the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer's wage record book, or (4) the deductions are for contributions attributable to automatic enrollment, as defined in Section 31–71j, in a retirement plan described in Section 401(k), 403(b), 408, 408A or 457 of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, established by the employer..  FN1. General Statutes § 31–71e states,No employer may withhold or divert any portion of an employee's wages unless (1) the employer is required or empowered to do so by state or federal law, or (2) the employer has written authorization from the employee for deductions on a form approved by the commissioner, or (3) the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer's wage record book, or (4) the deductions are for contributions attributable to automatic enrollment, as defined in Section 31–71j, in a retirement plan described in Section 401(k), 403(b), 408, 408A or 457 of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, established by the employer.

FN2. General Statutes § 31–69b states in relevant part,An employer shall not discharge, discipline, penalize or in any manner discriminate against any employee because the employee has filed a claim or instituted or caused to be instituted any investigation or proceeding under part III of chapter 557 or this chapter 2 ․ or because of the exercise by such employee on behalf of himself or others of any right afforded by part III of chapter 557 or this chapter.Section 31–69b(b), which describes the statutory remedy available, provides in relevant part:Any employee who believes that he has been discharged, disciplined, penalized or otherwise discriminated against by any person in violation of this section may file a complaint with the Labor Commissioner alleging violation of the provisions of subsection (a) of this section.   Upon receipt of any such complaint, the commissioner shall hold a hearing.   After the hearing, the commissioner shall send each party a written copy of his decision.   The commissioner may award the employee all appropriate relief including rehiring or reinstatement to his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discharged, disciplined, penalized or discriminated against..  FN2. General Statutes § 31–69b states in relevant part,An employer shall not discharge, discipline, penalize or in any manner discriminate against any employee because the employee has filed a claim or instituted or caused to be instituted any investigation or proceeding under part III of chapter 557 or this chapter 2 ․ or because of the exercise by such employee on behalf of himself or others of any right afforded by part III of chapter 557 or this chapter.Section 31–69b(b), which describes the statutory remedy available, provides in relevant part:Any employee who believes that he has been discharged, disciplined, penalized or otherwise discriminated against by any person in violation of this section may file a complaint with the Labor Commissioner alleging violation of the provisions of subsection (a) of this section.   Upon receipt of any such complaint, the commissioner shall hold a hearing.   After the hearing, the commissioner shall send each party a written copy of his decision.   The commissioner may award the employee all appropriate relief including rehiring or reinstatement to his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discharged, disciplined, penalized or discriminated against.

FN3. General Statutes Section 31–284(a) provides in relevant part:An employer who complies with the requirements of subsection (b) 3 of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter..  FN3. General Statutes Section 31–284(a) provides in relevant part:An employer who complies with the requirements of subsection (b) 3 of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter.

FN4. The plaintiff alternately refers to this person as a manager and a supervisor..  FN4. The plaintiff alternately refers to this person as a manager and a supervisor.

Young, Robert E., J.