Robert Ranciato v. Apostles of Sacred Heart et al. (2012)

MEMORANDUM OF DECISION

FACTS

On November 24, 2009, the plaintiff, Robert Ranciato, filed a complaint against the defendants, The Apostles of the Sacred Heart of Jesus, Inc. (Sacred Heart) and Sister Emmanuel Shoaf (Sister Emmanuel) (collectively, the defendants), for injuries arising out of termination of employment.   By way of the first count of the revised complaint, filed on September 9, 2010, the plaintiff alleges, in relevant part, the following.   Sacred Heart is a voluntary association of religious nuns in Hamden.   The plaintiff, a sixty-one-year-old Caucasian male of Italian–American origin, was employed as a landscaper by Sacred Heart from August 5, 1994 until January 28, 2008, when he was terminated by Sister Emmanuel.   The plaintiff suffered from diabetes, Reynaud's Syndrome and a chronic back condition, all of which he had made Sacred Heart and Sister Emmanuel aware of during his employment.   Age, a chronic medical condition and race are protected classes under General Statutes § 46a–60.   Sacred Heart and Sister Emmanuel embraced discriminatory practices in violation of § 46a–60 and, as a result thereof, the plaintiff was subjected to discrimination.

On March 15, 2012, the defendants filed a motion for summary judgment and accompanying memorandum of law on the grounds that the plaintiff fails to state a prima facie case for discrimination under § 46a–60 and that discovery reveals that the plaintiff does not allege facts by which to support a claim for discrimination under § 46a–60.¹  In support of their motion, the defendants submit the following evidence:  (A) Plaintiff's answers as to the defendant's requests for admissions dated February 23, 2012;  (B) a questionnaire titled “Activities of Daily Living”;  (C) a Social Security Administration disability report form;  (D) a Social Security Administration work history report;  and (D) a Connecticut department of labor notice to employer of hearing and unemployment compensation claim.   The plaintiff filed an objection to the defendants' motion for summary judgment on March 23, 2012 and a memorandum of law in support on April 12, 2012.   In support of its objection to the defendants' motion for summary judgment, the plaintiff offers the following evidence:  (A) a Social Security Administration notice of award;  and (B) the affidavit of one Joseph Cappucci, an employee of Sacred Heart.   Oral argument was heard on the motion at short calendar on April 16, 2012.

DISCUSSION

As a preliminary matter, this court notes that both parties' briefs are so inartfully drafted that it was difficult for this court to decipher what legal arguments were being put forth.   However, after careful review of the defendant's motion and plaintiff's opposition this court has determined that the motion for summary judgment and objection thereto appear to address the legal sufficiency of count one of the plaintiff's complaint.   The court will therefore interpret the defendants' motion for summary judgment as being grounded on an argument that the plaintiff may never cure his pleadings to create a legally sufficient cause of action under § 46a–60 and, therefore, should not be allowed to replead count one.  “[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   Accordingly, “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”   Id.;  accord Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 832, 14 A.3d 982 (2011).

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)   Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2d 777 (2006).   “Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).   “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).   The court may consider not only the facts presented by the affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

A. Subject matter jurisdiction over Sister Emmanuel pursuant to § 46a–60

In their memorandum in support of their motion for summary judgment, the defendants argue that § 46a–60(a)(1) does not impose liability on individual employees and thus the claim against Sister Emmanuel, an employee according to the defendants, must be dismissed as a matter of law.   This argument is in essence a challenge to the court's subject matter jurisdiction over the claim against Sister Emmanuel, which would have been more appropriately challenged in a motion to dismiss.   Regardless of the vehicle for this challenge or the party who raises it, “the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised ․ by the court sua sponte, at any time.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).

“[A] subject matter jurisdictional defect may not be waived ․ [or jurisdiction] conferred by the parties, explicitly or implicitly ․ [T]he question of subject matter jurisdiction ․ once raised, either by a party or by the court itself ․ must be answered before the court may decide the case.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”   (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).

A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter ․” Practice Book § 10–31(a).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however CT Page 278–C raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss ․ it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).   “[P]leadings should be read broadly and realistically, rather than narrowly and technically ․ That does not mean, however, that the trial court is obligated to read into pleadings factual allegations that simply are not there ․” (Citation omitted;  internal quotation marks omitted.)  Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004).  “In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”  Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).   Accordingly, this court will first address whether it has jurisdiction over the plaintiff's claim against the defendant Sister Emmanuel prior to considering the merits of the defendants' motion for summary judgment.

General Statutes § 46a–60, the Connecticut Fair Employment Practices Act (CFEPA) sets forth the jurisdictional requirements for bringing an employment discrimination claim.  General Statutes § 46a–60(a)(1), provides in relevant part that “[i]t shall be a discriminatory practice in violation of this section ․ [f]or 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 ․”

In Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), our Supreme Court, pursuant to a certification from the United States District Court for the District of Connecticut, addressed whether § 46a–60(a)(1) imposed civil liability against individual municipal employees and/or their supervisors.   The Supreme Court held that § 46a–60(a)(1) did not impose liability on individual employees or supervisors;  id., 744;  noting that “when the legislature has intended for the provisions of the Fair Employment Practices Act to apply to persons other than employers, it has made its intention clear.   For example, in § 46a–60(a)(4), (5) and (6), by contrast to § 46a–60(a)(1), the legislature specifically referred to persons as well as to employers.”  Id., 737–38.   In addition, the Supreme Court noted that “[t]he weight of federal authority further bolsters our conclusion that individuals who are not employers may not be held liable under § 46a–60(a)(1)”;  id., 738;  and recognized the reasoning of other jurisdictions that “[a]n employer subjected to well-founded claims of employment discrimination as a result of an employee's intentional acts of discrimination is not likely to look favorably upon the offending employee.   To the contrary, the employer, to protect its own interests and to avoid further liability, almost certainly will impose some form of discipline upon the offending employee.   That discipline may include a free pass to the unemployment line, a result that would seem particularly likely if the employee engages in repeated acts of intentional discrimination against fellow employees.”  (Internal quotation marks omitted.)  Id., 744.

In contrast, other subsections of CFEPA include language that allows for individual liability.   See, e.g., Balog v. Shelton Restaurant, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 04 0084313 (August 2, 2004, Lager, J.) [37 Conn. L. Rptr. 659] (holding that “subsection (a)(5) [of § 46a–60] makes it clear that the person upon whom liability can be imposed does not have to be either an employer or an employee.   Thus ․ [this subsection is] not controlled by Perodeau.”).  For instance, § 46a–60(a)(6) provides in relevant part that:  “It shall be a discriminatory practice in violation of this section ․ [for any person, employer, employment agency or labor organization ․ to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race ․ age ․ learning disability or physical disability, including, but not limited to, blindness.”   In addition, §§ 46a–60(a)(4) and (a)(5) prohibit any person from retaliating against an employee for opposing a discriminatory employment practice and make it illegal for any person to aid a discriminatory employment act, respectively.   Consequently, when determining whether a defendant is liable under CFEPA, it is necessary to determine precisely which subsections are applicable to the allegations raised in the complaint.

In the present case, although the defendants ground their argument on language from § 46a–60(a)(1), the plaintiff cites § 46a–60 in count one without specifying upon which subsection he brings his claim.   Nonetheless, construing the allegations in count one in the light most favorable to the plaintiff, it appears that they are based exclusively on discrimination in the form of employment termination based on age, physical disability and race, such that § 46a–60(a)(1) is the only applicable subsection.   Pursuant to Perodeau v. Hartford;  supra, 259 Conn. 729;  only employers may be liable under § 46a–60(a)(1).   Count one contains no allegation that the plaintiff was employed by Sister Emmanuel nor that Sister Emmanuel is an employer.   Although, as previously noted, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged;  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214;  “the plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n.12. Despite the defendants' challenge of the validity of the claim against Sister Emmanuel, the plaintiff has not presented any evidence that Sister Emmanuel is an employer rather than an employee;  the plaintiff merely argues that the defendants have not submitted any evidence that Sister Emmanuel is not an employer.   Therefore, the plaintiff has failed to provide evidence that Sister Emmanuel is an employer pursuant to § 46a–60(a)(1) and, thus, there is no evidence upon which this court may rely to assert its subject matter jurisdiction over the action against Sister Emmanuel in count one.   In addition, because jurisdiction may not be “conferred by the parties, explicitly or implicitly;” Batte–Holmgren v. Commissioner of Public Health, supra, 281 Conn. 283;  the fact that Sister Emmanuel moves for summary judgment is inconsequential to the determination of this court's subject matter jurisdiction over the claim against her.   Accordingly, the claims against Sister Emmanuel in count one are dismissed for lack of subject matter jurisdiction.²

B. Discriminatory practices prohibited under § 46a–60

The present action arises out of alleged discrimination based on physical disability, age, and race prohibited under § 46a–60(a)(1).   The court addresses the present motion for summary judgment with regards to each of the aforementioned protected classes individually.

i. Disability discrimination claim

With regards to disability discrimination claims, “CFEPA has ․ been interpreted to require an employer to reasonably accommodate disabled employees.”  Hill v. Pfizer, Inc., 266 F.Sup.2d 352, 364 (D.Conn.2003).   In particular, “[i]n order to survive a motion for summary judgment on a reasonable accommodation [or disability discrimination] claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it ․ If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business.”  (Citations omitted;  internal quotation marks omitted.)  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415–16, 944 A.2d 925, 940 (2008).

In the present case, it appears that the essence of the defendant Sacred Heart's argument is that the plaintiff cannot establish his prima facie case of disability discrimination because the plaintiff cannot satisfy the second element under Curry.   In support of its argument, the defendant Sacred Heart submits evidence to establish that the plaintiff was certainly “completely physically disabled” when he was terminated on January 28, 2008 and, therefore, that the plaintiff was not able to perform the essential functions of the job with or without reasonable accommodation.   Specifically, the crux of the defendant's evidentiary support is that the plaintiff filed a claim for social security disability benefits in which the plaintiff alleged that he was disabled while still working for the defendants and that he became unable to work on January 1, 2008.   In response, the plaintiff counters that a determination of total and permanent disability was not made by the Social Security Administration until after a five-month waiting period in June 2008, well after the plaintiff was terminated.³

Viewed in the light most favorable to the plaintiff, the evidence before this court suggests that there remains a genuine issue of material fact as to whether the plaintiff was “able to perform the essential functions of the job with or without a reasonable accommodation”;  Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415–16;  at the time he was terminated.   Because this court may make “inferences which could be reasonably and logically drawn from [the affidavits and exhibits]”;  United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 381., the court recognizes that, given the Social Security Administration's need for a mandatory waiting period to confirm disability, whether the plaintiff was completely disabled on January 1, 2008 was uncertain at the time of his application for benefits.   Consequently, that the plaintiff felt the need to apply for disability benefits prior to his termination is not determinative of whether the plaintiff was actually completely disabled such that he would not have been able to perform the essential functions of the job with or without reasonable accommodation from Sacred Heart.   Therefore a genuine issue of fact remains as to whether the plaintiff satisfies the second element of Curry.   Accordingly, the defendant Sacred Heart is not entitled to summary judgment on this issue.

ii. Age and race discrimination claims

The defendant Sacred Heart also seeks judgment with regards to the allegations of discrimination based on age and race in count one.  “There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.”  (Internal quotation marks omitted.)   Estrada v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 06 5002313 (November 19, 2010, Tobin, J.).  “[S]ome courts have found that the language of Practice Book § 17–57 authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim ․ Nonetheless, the majority rule ․ is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore will not allow entry of judgment on that claim.” ⁴  (Citation omitted;  internal quotation marks omitted.)   Embry v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 07 5014615 (October 18, 2011, Domnarski, J.).   All of the allegations in count one of the plaintiff's complaint assert a single claim of employment discrimination based on age, race and disability.   This claim is a single claim of employment discrimination and final judgment cannot be entered on any part of the allegations which would allow those portions to be severed from the rest of the discrimination claim.   This court sides with the majority of the Superior Court decisions and will not enter judgment against individual allegations in count one.   Because, for the reasons previously stated, summary judgment is inappropriate as to the claim for disability discrimination, this court therefore does not consider the defendant Sacred Heart's motion for summary judgment with regards to the other allegations in count one.

CONCLUSION

For the foregoing reasons, the claim against the defendant Sister Emmanuel Shoaf in count one is dismissed for lack of subject matter jurisdiction and the defendant's motion for summary judgment is denied in its entirety.

Wilson, J.

FOOTNOTES

FN1. Based on the grounds of the defendant's motion for summary judgment, which target the plaintiff's claim for discrimination, it is apparent that the defendant seeks judgment only for count one of the complaint.   This court, therefore, considers whether to grant summary judgment solely for count one..  FN1. Based on the grounds of the defendant's motion for summary judgment, which target the plaintiff's claim for discrimination, it is apparent that the defendant seeks judgment only for count one of the complaint.   This court, therefore, considers whether to grant summary judgment solely for count one.

FN2. Because this court lacks subject matter jurisdiction over Sister Emmanuel, the court hereinafter treats the present motion for summary judgment as being presented solely by the defendant Sacred Heart..  FN2. Because this court lacks subject matter jurisdiction over Sister Emmanuel, the court hereinafter treats the present motion for summary judgment as being presented solely by the defendant Sacred Heart.

FN3. Throughout his memorandum, the plaintiff cites to deposition transcripts, which were not submitted to the court “[C]learly references to deposition testimony in a memorandum, without submission of any transcript at all, is improper.   Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997);  see Practice Book § 17–46.”  (Internal quotation marks omitted.)   Doherty v. City of Ansonia, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98 0063624S (October 30, 2001, Moran, J.);   see also Loda v. Seymour, Superior Court, judicial district of Ansonia–Milford, Docket No. CV00 0072044S (December 10, 2002, Moran, J.).   Therefore, this court does not consider the plaintiff's references to deposition transcripts in deciding this motion..  FN3. Throughout his memorandum, the plaintiff cites to deposition transcripts, which were not submitted to the court “[C]learly references to deposition testimony in a memorandum, without submission of any transcript at all, is improper.   Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997);  see Practice Book § 17–46.”  (Internal quotation marks omitted.)   Doherty v. City of Ansonia, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98 0063624S (October 30, 2001, Moran, J.);   see also Loda v. Seymour, Superior Court, judicial district of Ansonia–Milford, Docket No. CV00 0072044S (December 10, 2002, Moran, J.).   Therefore, this court does not consider the plaintiff's references to deposition transcripts in deciding this motion.

FN4. Practice Book § 17–51 provides:  if it appears that the defense applies to only part of the claim, that any part is admitted the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted on such terms as may be just;  and the action may be severed and proceeded with respect to the remainder of the claim..  FN4. Practice Book § 17–51 provides:  if it appears that the defense applies to only part of the claim, that any part is admitted the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted on such terms as may be just;  and the action may be severed and proceeded with respect to the remainder of the claim.

Wilson, Robin L., J.