Christopher Rodrigue v. LLC (2012)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE # 107

On April 1, 2011, the plaintiff, Christopher Rodrigue, initiated this action by service of process upon the defendant, Triumph Actuation Systems—Connecticut, LLC. The complaint stems from an employment relationship between the parties.   The plaintiff alleges violations of General Statutes § 46a–60(a)(1) (counts one and two), violation of § 46a–60(a)(4) (count three), negligent infliction of emotional distress (count four), and intentional infliction of emotional distress (count five).   On July 29, 2011, the defendant filed a motion to strike all of the counts on the ground that the plaintiff's claims are legally insufficient.

The plaintiff alleges the following facts.   He suffers from “profound to severe” hearing loss, which requires him to wear visible hearing aids.   That on or about April 26, 2006, he was hired by the defendant as a machinist.   At all times relevant, the defendant has been aware of the plaintiff's hearing loss condition.   From the date of hire to the present, the plaintiff has been subject to “severe and pervasive harassment and retaliation” by the defendant's employees because of his physical disability.   Examples of this behavior include:  placing other employees' instruments on his bench to make it seem that the plaintiff has taken other employees' tools;  putting a metal file in the plaintiff's coffee thermos;  regularly hiding the plaintiff's time card;  looking at the plaintiff while inspecting another machine, so as to suggest that the plaintiff sabotaged the machine;  hiding tools from the plaintiff;  taking paperwork from the plaintiff's file;  filling the plaintiff's work shirt sleeves with coleslaw and macaroni salad;  banging on the side of the plaintiff's machine while his head is inside;  slamming benches with steel pipes and “trash talking” loudly behind the plaintiff in order to distract him;  creating a cold temperature around the plaintiff's machine, which affects the quality and safety of the machine;  and walking by the plaintiff and making gestures to their ears.

The plaintiff alleges that, as a result of observation, and based on the plaintiff's repeated complaints, the defendant is aware of the harassment and has failed to take sufficient corrective measures to cease the harassment.   As a result of his complaints, the plaintiff has been subject to more frequent harassment.   He further alleges that he has suffered permanent physical and emotional harm and seeks compensatory and punitive damages, attorneys fees and court costs.

Prior to commencing this action, the plaintiff filed a complaint with the commission on human rights and opportunities (CHRO).   He asserts that, on January 3, 2011, the CHRO released jurisdiction of the matter.

STANDARD OF REVIEW

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009).

DISCUSSION

-I-Counts One & Two

General Statutes § 46a–60(a)(1) states:  “(a) 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 race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.”

Here, the plaintiff has alleged that he was subject to “severe and pervasive harassment” based on a physical disability.   Claims alleging such facts are reviewed under the standard for a hostile work environment.¹  “[Connecticut courts] review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.”  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).   In doing so, the court finds that, “[a]s the Second Circuit recognized in Kassner v.2d Ave. Delicatessen, Inc., [496 F.3d 229, 240 (2d Cir.2007) ] in order to prevail under the standard [for hostile work environment], a plaintiff must establish two elements.   First, for a work environment to be sufficiently hostile so as to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment ․ The determination of hostility depends on whether a reasonable person would find the work environment to be hostile and whether plaintiffs subjectively perceived it to be so ․”In evaluating a hostile work environment claim, a court should consider the frequency of the discriminatory conduct;  its severity;  whether it is physically threatening or humiliating, or a mere offensive utterance;  and whether it unreasonably interferes with an employee's work performance ․ Generally, isolated incidents of harassment do not give rise to a hostile work environment claim;  instead, the incidents must be sufficiently continuous and concerted in order to be deemed persuasive ․ Simple teasing, offhand comments, and isolated incidents ․ will not amount to discriminatory changes in the terms and conditions of employment sufficient to meet the threshold of severity or pervasiveness ․”Second, to successfully raise a hostile work environment claim, a plaintiff must show that a specific basis exists for imputing the conduct that created the hostile environment to the employer ․ [E]mployer liability for a hostile environment created by coworkers, or by a low-level supervisor who does not rely on his supervisory authority in carrying out the harassment, attaches only when the employer has either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”  (Internal quotation marks omitted.)  Martinsky v. Bridgeport, Docket No. 3:09–cv–759 (D.Conn. September 2, 2011).  “[B]oth state and federal courts construe the phrase ‘terms, conditions or privileges of employment’ to impose liability on an employer for failing to prevent employees from creating a hostile work environment based on an individual's membership in a protected class.   This broad construction is particularly warranted in light of the remedial purposes of General Statutes § 46a–60(a)(1).”   Patino v. Birken Manufacturing Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4016120 (May 15, 2009, Prescott, J.) (47 Conn. L. Rptr. 879, 883).

In the present case, the plaintiff claims that, based on a physical disability, he was subject to repeated harassment, ranging from teasing to behavior that placed him in physical danger.   He alleges, inter alia, that coworkers took actions including making gestures to their ears, putting a metal file in his coffee thermos and distracting him while he operated machinery.   Taking the facts in the light most favorable to sustaining their sufficiency, the frequency and alleged dangerousness of the harassment is sufficient to satisfy the first element of the hostile work environment test.   A reasonable person could find this work environment to be hostile and the plaintiff alleges that he subjectively found it to be so.   As to the second element, the plaintiff alleges that, despite his repeated complaints, his employer failed to take adequate measures to prevent the creation of a hostile work environment.   Because liability may be imposed on an employer for failure to prevent its employees from creating a hostile work environment, the plaintiff has sufficiently pleaded this element.   Therefore, the plaintiff alleges a legally sufficient claim for hostile work environment and the motion to strike is denied as to counts one and two.

-II-

Count Three

General Statutes § 46a–60(a)(4) states:  “(a) 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 employment 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.”

“The four criteria a plaintiff in a retaliation case must prove are:  (1) that the employee was engaged in a protected activity by opposing a practice made unlawful by [CFEPA];  (2) that the employer was aware of the activity;  (3) that the employee suffered adverse employment action;  and (4) that there was a causal connection between the protected activity and the adverse action.”   Krahm v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 04 400006 (December 8, 2008, Doherty, J.), citing, Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996).

The issue in the present case is whether the plaintiff alleged that he suffered an adverse employment action as a result of his complaints.   “[A]dverse employment action [is defined] as a materially adverse change in the terms and conditions of employment ․” (Internal quotation marks omitted.)   Martin v. Westport, 108 Conn.App. 710, 718–19, 950 A.2d 19 (2008), quoting, Sanders v. New York City Human Resources Administration, 361 F.3d 749, 755 (2d Cir.2004).   As previously noted, “both state and federal courts construe the phrase the phrase ‘terms, conditions or privileges of employment’ to impose liability on an employer for failing to prevent employees from creating a hostile work environment based on an individual's membership in a protected class.”  Patino v. Birken Manufacturing Co., supra, 47 Conn. L. Rptr. 883.

In the present case, the plaintiff alleges that following his complaints to the employer, those employees he complained about grew angry and retaliated by “not only continuing the harassment but by escalating the frequency of the harassment following such complaints by the plaintiff.”   The alleged retaliatory conduct is the same as the initial harassment.   Therefore, the plaintiff has failed to allege a change in the terms and conditions of his employment based on retaliation for his complaints.   Thus, the plaintiff has failed to plead a legally sufficient cause of action for retaliation and the motion to strike is granted as to count three.

-III-

Count Four

Our Supreme Court has held that a claim for negligent infliction of emotional distress may not be maintained for, “conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Perodeau v. Hartford, 259 Conn. 729, 762–63, 792 A.2d 752 (2002).   In the present case, the plaintiff has not alleged that he was terminated.   As a result, the plaintiff has not stated a legally sufficient claim for negligent infliction of emotional distress.   Therefore, the motion to strike is granted as to count four.

-IV-

Count Five

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (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 ․ 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!’  ․”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 ․ [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 fact finder could find to be extreme or outrageous.”  (Citations omitted;  internal quotation marks omitted.)  Cassotto v. Aeschliman, 130 Conn.App. 230, 234–35, 22 A.3d 697 (2011).

Here, the plaintiff alleges frequent harassment including placing a metal file in his coffee mug and distracting him while operating a potentially dangerous machine.   The court cannot say that, as a matter of law, these allegations could not rise to the level of “outrageous.”   For that reason, the claims are legally sufficient to support a cause of action for intentional infliction of emotional distress and the motion to strike as to count five is denied.

For the foregoing reasons the motion to strike is denied as to counts one, two and five.   The motion to strike is granted as to counts three and four.

Domnarski, J.

FOOTNOTES

FN1. The pleading in this case is analogous to that in Kassner v.2d Ave. Delicatessen, Inc., 496 F.3d 229, 240 (2d Cir.2007) in which the court stated:  “Although the complaint does not explicitly allege discrimination based on a hostile work environment, the complaint alleges ‘continued harassment’ of [the plaintiff] and alleges facts from which we may infer pleading of hostile work environment claims ․.  FN1. The pleading in this case is analogous to that in Kassner v.2d Ave. Delicatessen, Inc., 496 F.3d 229, 240 (2d Cir.2007) in which the court stated:  “Although the complaint does not explicitly allege discrimination based on a hostile work environment, the complaint alleges ‘continued harassment’ of [the plaintiff] and alleges facts from which we may infer pleading of hostile work environment claims ․

Domnarski, Edward S., J.