Priscilla Dickman v. Denise Conderino (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 131)

The defendant, Denise Conderino, has moved to dismiss the Revised Amended Complaint dated November 4, 2012, for lack of subject matter jurisdiction because the plaintiff's claims are barred by the statute of limitations and the defendant is entitled to sovereign immunity.   In her memorandum in support of her motion, the defendant adds an additional two grounds, that the plaintiff's emotional distress claim fails since her claim fails to establish the requisite showing that defendant's conduct was “extreme and outrageous” and that state employees do not have contractual employment rights, therefore count four is not applicable.

The court previously considered a motion to dismiss addressed to an earlier complaint in this matter.   There the defendant also alleged, although not in her motion but in her brief, that the action was barred by the statute of limitations and the plaintiff failed to allege a claim for emotional distress.   In ruling on the motion, the court, Schuman, J. stated that a statute of limitations defense does not implicate subject matter jurisdiction and cannot be adjudicated on a motion to dismiss.   This court agrees.   Our Supreme Court has held that the statute of limitations contained in General Statutes § 52–577 is procedural, not jurisdictional.  Orticelli v. Powers, 197 Conn. 9, 16 (1985).

Judge Schuman also noted that on a motion to dismiss the court cannot address the defendant's additional arguments that certain counts do not state a claim upon which relief can be granted.   Likewise this court agrees that the court cannot address the viability of the plaintiff's emotional distress claim on this motion to dismiss.   That argument is more appropriate for a motion to strike.  “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.”  (Citations and internal quotation marks omitted.)   Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).   Similarly, the argument that Count Four of the complaint should be dismissed because state employees do not have contractual employment rights does not raise a jurisdictional issue but one that should be raised by either a motion to strike or summary judgment.  Practice Book § 17–49 provides that summary judgment shall be granted when 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.  Rivers v. City of New Britain, 288 Conn. 1, 10 (2008).

Lastly, the defendant claims that she is immune from suit in her individual capacity pursuant to the statutory immunity provided under General Statutes § 4–165.   That statute states, in part, “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.   Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.”

In Martin v. Brady, 261 Conn. 372, 376–78 (2002), the Court stated:  “Because this case comes to us on a threshold [statutory] immunity issue, pursuant to a motion to dismiss ․ we do not pass on whether the complaint was legally sufficient to state a cause of action ․ In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts ․ with respect to personal immunity under § 4–165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously ․ The question before us, therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity ․ In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment.   In Antinerella v. Rioux, supra, 229 Conn. 499, we held that the high sheriff's discharge of the plaintiff, although pursuant to the authority granted to the high sheriff by then General Statutes (Rev. to 1991) § 6–45 ․ was actually wrongful conduct because it was conducted in furtherance of an illegal fee splitting scheme and, as such, was a misuse of the authority granted to him.   We explained therein that the defendant's misuse of his authority was personal to him and was not primarily employer rooted or reasonably incidental to the performance of employment duties ․ The defendant's alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest.   Rather, the defendant's alleged actions were motivated by purely personal considerations entirely extraneous to his employer's interest.   Furthermore, in Shay v. Rossi, 253 Conn. 134, 174, 749 A.2d 1147 (2000), we determined that the defendants, individuals employed by the state department of children and families, had acted beyond the scope of their employment when acting solely ․ to justify their own prior unjustified conduct, and not to carry out the government policy with which they were entrusted ․ The plaintiffs in Shay alleged that ‘the defendants' conclusion that neglect and abuse of the [plaintiffs'] children had been confirmed was without foundation, unreasonable, arbitrary, wilful, wanton, reckless and malicious, and designed to vindicate and legiti[mize] their handling of the [plaintiffs'] case which was, from the outset, unlawful, uncaring, and unnecessary.’  ․ We concluded that the defendants' improper and self-serving motives were provable under these allegations and that such conduct was beyond the ambit of the employment context and, accordingly, not protected by sovereign immunity ․” (Citations, footnote, and internal quotation marks omitted.)

Here the plaintiff alleges that the defendant, her co-worker, stated to managers, supervisors and human resource representatives, that the plaintiff was constantly utilizing her work computer for personal use, failing to perform her duties adequately, had put patient safety at risk, had an impairment to her judgment while at work in the laboratory, was not performing her duties as a medical technologist, and was committing workers' compensation fraud.   Arguably the reporting of these allegations, that a co-worker is not performing her job or performing such as to put patients at risk or committing workers' compensation fraud, to one's employer would appear to this court to be within the scope of the defendant's employment since such reporting would be designed to advance the interests of the state employer.   However the plaintiff also alleges that the defendant invaded her privacy by illegally accessing her email, notes, and personal documents;  and that she removed handwritten notes of a personal nature from the plaintiff's desk area and passed them out to various members of the management and human resource members of the UCHC. The plaintiff also alleges that the defendant recorded telephone messages being left for the plaintiff and took items of a personal nature out of her desk drawer and disseminated them.  “It is well established that [i]n ruling upon whether a complaint survives a motion to dismiss, 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.”  (Citation and internal quotation marks omitted.)  Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410–11 (1999).   A review of the allegations of the complaint leads this court to conclude, as did Judge Schuman, that construing the facts alleged in the light most favorable to the plaintiff, the circumstances are unclear as to whether such actions were authorized and within the scope of the defendant's employment, rendering her statutorily immune pursuant to General Statutes § 4–165.

Judge Gallagher's decision in Thomas v. Ocif, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV99–0166939S (Jul. 30, 2003), cited by the defendant, is distinguishable because there the decision was rendered in the context of a summary judgment motion pursuant to which affidavits had been submitted.   Although the plaintiff has submitted an affidavit here the defendant has not, and therefore the court must rely on the allegations of the complaint alone in rendering its decision.

Therefore, the defendant's motion to dismiss is denied.

Jane S. Scholl, J.

Scholl, Jane S., J.