Eddy Ramirez v. Costco Wholesale Corp. (2012)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 103)

FACTS

On July 27, 2011, the plaintiff, Eddy Ramirez, filed an amended two-count complaint against the defendant, Costco Wholesale Corporation, alleging breach of implied contract and defamation.¹  The plaintiff was formerly employed by the defendant and the complaint arises out of a workplace related incident, ensuing employee counseling notices and the plaintiff's application for a supervisor position.   The plaintiff was subsequently terminated.   On November 14, 2011, the defendant filed a motion to strike the plaintiff's two-count amended complaint on the ground that the complaint failed to state legally sufficient claims.   In support of its motion to strike, the defendant submitted a memorandum of law as well as an affidavit of Paul Galligan, one of the defendant's attorneys.²  On December 6, 2011, the plaintiff filed a memorandum in opposition to the defendant's motion to strike.³  On February 3, 2012, the defendant filed a reply.   This matter was heard at short calendar on February 21, 2012.

II

DISCUSSION

“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).  “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).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)  Id. 252.   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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

Count 1:  Breach of Implied Contract

In its motion to strike, the defendant argues that the plaintiff has not pleaded a claim for breach of implied contract because the plaintiff fails to identify the section of the employee agreement he claims constitutes an implied contract, the position he applied for and when he applied.   The defendant further argues that the complaint fails to allege there is a contract or breach to form a cause of action for breach of implied contract.   The plaintiff, in his objection, argues that there must be some type of contract of employment and that an employment manual can suffice as evidence of such a contract.   He further argues that his complaint properly identified provisions of the employee manual which may be construed as an implied contract, and the merits of his claim are not at issue at this stage, and that his pleadings are more complete than complaints that have been previously stricken by this court.   In its reply, the defendant asserts that the plaintiff fails to include factual allegations with regards to the formation of the contract or the defendant's breach of the contract.

“[A] properly pleaded claim for breach of an implied contract must plead sufficient facts that the defendant agreed, either by words, conduct or action, to be bound by some form of actual contractual commitment.”   Joyner v. Simkins Industries, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 04 4000605 (October 18, 2006, Zoarski, J.T.R.), aff'd 111 Conn.App. 93, 957 A.2d 882 (2008).  “[A]ll employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment.   There cannot be any serious dispute that there is a bargain of some kind;  otherwise, the employee would not be working ․ It is firmly established that statements in an employer's personnel manual may ․ under appropriate circumstances ․ give rise to an express or implied contract between employer and employee.”  (Citations omitted;  internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999) (citing to several Superior Court decisions where an implied contract was found in different forms).  “[T]he determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.”  (Internal quotation marks omitted.)  Id. 533.

“[I]n order to find that an implied contract of employment incorporates specific representations ․ contained in provisions in an employee manual, the trier of fact is required to find the following subordinate facts.   Initially, the trier of fact is required to find that the employer's ․ issuance of a handbook to the employee was an ‘offer’—i.e., that it was a promise to the employee, that if the employee worked for the company, his or her employment would thereafter be governed by those ․ written statements ․ If the ․ handbook constitute[s] an ‘offer,’ the trier of fact then is required to find that the employee accepted that offer.”  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13–14, 662 A.2d 89 (1995) (finding that defendant's oral and written statements made during the plaintiff's job interview as well as the initial employment manual constituted offers, which the plaintiff accepted when he took the position).  “A contractual promise cannot be created by plucking phrases out of context;  there must be a meeting of the minds between the parties ․ In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff.”  (Citation omitted;  internal quotation marks omitted.)  Burnham v. Karl and Gelb, P.C., 50 Conn.App. 385, 389, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).   “Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like.   Thus, as a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will ․ Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties.”  (Citation omitted;  internal quotation marks omitted.)  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 14–15.

Connecticut Superior Courts have repeatedly made determinations as to whether a complaint sufficiently pleaded a claim for breach of implied contract in an employment context.   See, e.g. Lopes v. Hubbell Incorporated, Superior Court, judicial district of Danbury at Danbury, Docket No. DBD CV 11 6007127 (March 23, 2012, Ozalis, J.) (declining to strike a claim for implied contract, when the plaintiff alleged that the defendant had established a policy that lay-offs would be based on seniority and terminations would be for just cause but that the plaintiff was terminated without cause and replaced by less senior employees);  Hartke v. Waterford, Superior Court, judicial district of New London at New London, Docket No. CV 10 6006318 (August 23, 2011, Cosgrove, J.) (denying a motion to strike the plaintiff's complaint alleging a breach of implied contract because the defendants failed to properly provide an appeal which appeared to be guaranteed under written statement made by defendant);  Meade v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 05 4016155 (September 7, 2006, Skolnick, J.T.R.) (denying motion to strike when plaintiff alleged facts that the defendant had repeatedly assured her she would not be terminated in retaliation for performing her duties);  Berte v. Haddam Hills Academy, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 02 0097138 (December 16, 2005, Beach, J.) [40 Conn. L. Rptr. 565] (finding that the representations made by the employer did not rise to the level of guaranteeing that the employee would not be fired without cause, but was just that there was a potential for growth, and granting the motion to strike);  Perry v. SBC/SNET, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 04 085367 (September 12, 2005, Moran, J.T.R.) (granting motion to strike because the plaintiff's allegations were not supported by facts demonstrating that the defendant made an actual contract commitment to the plaintiff under which he could not be terminated without just cause or the existence of an employee manual or policy manual nor the specific or direct representations the defendant made to the plaintiff as to his employment).

In the present case, the plaintiff has alleged that there was an implied contract created by the employment manual, however, he does not plead facts to show that the manual was an offer that the plaintiff accepted by choosing to take the job offer.   With regards to his employment, the plaintiff only alleges that he was employed at the defendant's Milford store between May 13, 2004 and August 11, 2009, and that he worked as a meat cutter in the meat department between 2006 and August 11, 2009.   The plaintiff identifies the portions of the employment manual that he alleges were violated by the defendant;  namely, language discussing job postings stating that “[w]here skill and ability are equal, length of continuous employment is the determining factor.”   The plaintiff also alleges that the defendant breached this agreement by actions in hiring and promotions and by issuing false employee counseling notices in order to promote the manager's friend above the plaintiff, who was more qualified and senior.

Even when viewing the allegations in the light most favorable to sustaining their legal sufficiency, the plaintiff's complaint fails to sufficiently allege the elements of a breach of an implied contract.   Unlike in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., where the plaintiff alleged that the employee manual was provided to him at the time of his interview and that it was part of his consideration when deciding whether or not to take the job, the plaintiff in the present case does not allege sufficient facts as to the formation of the implied contract or that the quoted employment manual is applicable to him.   Furthermore, the plaintiff's complaint does not allege that the defendant explicitly made promises or assurances like those alleged in Meade v. Yale University, supra, Docket No. CV 05 4016155.   In the present case, the plaintiff's complaint is more similar to the one in Perry v. SBC/SNET, supra, Docket No. CV 04085367, where the plaintiff failed to allege facts sufficient to show there was a meeting of the minds between the employee and employer.

While the plaintiff's complaint alleges there was an implied contractual agreement that the defendant breached, he has not sufficiently pleaded facts to show that the defendant included the employee manual as part of its offer to the plaintiff or that the parties had agreed that the manual applied to the plaintiff's employment.   The language quoted in the complaint could be taken from an employment manual that was not applicable to the plaintiff or is no longer in effect.   The plaintiff does not allege any facts providing context to show that the plaintiff could consider the manual a promise or that it is binding on the defendant.   Thus, the allegations are insufficient to form a cause of action for a breach of implied contract.   Accordingly, the motion to strike count one is granted.

Count 2:  Defamation

In its motion to strike, the defendant argues that the plaintiff has not satisfied the basic pleading requirements for a claim of defamation under Connecticut law.   The defendant argues that the plaintiff's allegation that the August 5, 2009 employee counseling notice was published to a third-party, but does not identify that third party.   The defendant also argues that the plaintiff failed to plead actual malice or malice in fact on the part of the defendant, so the plaintiff cannot overcome the defendant's qualified privilege to issue a disciplinary notice to an employee.   Finally, the defendant argues that the plaintiff does not allege that he demanded a retraction which is required by § 52–237 or special damages to establish a cause of action for defamation.   The defendant also argues that the plaintiff fails to allege sufficient facts to constitute an action of defamation per se.   In his objection, the plaintiff acknowledges that he failed to plead facts that showed that “the defamatory statement was made either with ‘actual malice or malice in fact’ “ and states that he intends to remedy that deficiency.   Additionally, he argues that defamation does not require that the plaintiff plead actual damages at the complaint stage but after the defendant has raised the special defense of qualified immunity.   The defendant, in its reply, further argues that the plaintiff failed to meet the pleading requirements for defamation by not identifying the third party to which the defamatory statement was published.   The defendant makes additional arguments about why the plaintiff failed to plead a cause of action for defamation per se, however, the plaintiff has already conceded the deficiency in his compliant with regard to defamation per se and has stated that he will submit revisions of those portions of the complaint.

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Internal quotation marks omitted.)   Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).  “[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed;  a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom.   A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.”  (Internal quotation marks omitted.)   Mikhael v. H.S. Eagle Road Associates, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 09 5008287 (October 20, 2010, Marano, J.);   see also Chertkova v. Connecticut General Life Insurance Co., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) (“[A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom ․” [Internal quotation marks omitted.] ).

The facts alleged by the plaintiff, admitted as true for the purposes of the motion to strike, are insufficient to plead a legal cause of action for defamation because the plaintiff does not identify to whom the defendant made the defamatory statement.   The complaint merely states that the “defendant published the defamatory charges to a third party.”   Furthermore, in his objection to the motion to strike, the plaintiff recognizes that his allegations of defamation per se are deficient and he has already represented that he will remedy that deficiency.   Accordingly, the motion to strike count two is granted.

III

CONCLUSION

For the foregoing reasons the motion to strike both counts of the plaintiff's complaint is granted.

Wilson, J.

FOOTNOTES

FN1. The substituted complaint was filed in the United States District Court of Connecticut on July 27, 2011.   The plaintiff filed his initial five-count complaint on May 31, 2011 and the defendant filed to have the case removed on May 26, 2011.   The case was removed on June 16, 2011.   However, after the defendant filed a motion to dismiss in the United States District Court, Judge Mark R. Kravitz filed an order stating that the plaintiff should file an amended complaint to address the defects in the complaint identified in the defendant's motion to dismiss.   The District Court's order is not filed with this court, but there is a summary in the index of the documents from the Federal District Court docket that was submitted as an administrative document before this court on December 29, 2011.   On September 29, 2011, Judge Kravitz filed another order indicating that the Federal District Court no longer had federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the complaint only raises state law claims.   Judge Kravitz's order instructed the plaintiff to file a stipulation in order to pursue the case in state court or to file a statement detailing the amount in controversy in the case in order to qualify for 28 U.S.C. § 1332 diversity jurisdiction.   The case was remanded from the Federal District Court on October 12, 2011, after the plaintiff filed a stipulation that he would not seek to recover an amount in excess of $74,999.99..  FN1. The substituted complaint was filed in the United States District Court of Connecticut on July 27, 2011.   The plaintiff filed his initial five-count complaint on May 31, 2011 and the defendant filed to have the case removed on May 26, 2011.   The case was removed on June 16, 2011.   However, after the defendant filed a motion to dismiss in the United States District Court, Judge Mark R. Kravitz filed an order stating that the plaintiff should file an amended complaint to address the defects in the complaint identified in the defendant's motion to dismiss.   The District Court's order is not filed with this court, but there is a summary in the index of the documents from the Federal District Court docket that was submitted as an administrative document before this court on December 29, 2011.   On September 29, 2011, Judge Kravitz filed another order indicating that the Federal District Court no longer had federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the complaint only raises state law claims.   Judge Kravitz's order instructed the plaintiff to file a stipulation in order to pursue the case in state court or to file a statement detailing the amount in controversy in the case in order to qualify for 28 U.S.C. § 1332 diversity jurisdiction.   The case was remanded from the Federal District Court on October 12, 2011, after the plaintiff filed a stipulation that he would not seek to recover an amount in excess of $74,999.99.

FN2. This court did not consider the affidavit submitted with the motion to strike.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008)..  FN2. This court did not consider the affidavit submitted with the motion to strike.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).

FN3. A copy of this document was also electronically filed by the plaintiff as document 131.00 on February 15, 2012..  FN3. A copy of this document was also electronically filed by the plaintiff as document 131.00 on February 15, 2012.

Wilson, Robin L., J.