Juleen Moreno v. ABM (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The issue presented is whether the court should grant the motion for summary judgment filed by the defendant on the grounds that (1) the plaintiff's common law claim for constructive discharge is precluded due to the availability of statutory remedies, (2) the plaintiff cannot prove the elements of a constructive discharge claim, and (3) the plaintiff cannot show that there is a genuine issue of material fact regarding whether the defendant's conduct violated public policy.   For the reasons contained herein, the defendant's motion for summary judgment is denied.

DISCUSSON

On May 7, 2012, the plaintiff, Juleen E. Moreno, filed a one-count complaint alleging the following facts.   Moreno was employed as a security guard at the Bridgeport railroad station by the defendant, ABM Security Services, Inc. (ABM).  Sheldon T. Jones was also employed as a security guard by ABM at the same train station.

The plaintiff avers on August 7, 2011, Jones “intentionally and maliciously assaulted [Moreno] with a motor vehicle and attempted to kill her.”  (Compl.1.) Jones, the complaint goes on, was arrested and charged with assault, breach of peace, reckless endangerment and reckless driving.   Moreno suffered injuries from the assault and a protective order was subsequently issued by the Superior Court.

Moreno informed ABM of the aforementioned facts.   She also requested that Jones either be removed from his employment or that Jones or she be reassigned to avoid further contact between them at work.   ABM refused Moreno's request and ordered her to work directly with Jones on a daily basis.   As a result, Moreno “was forced by [ABM] to resign from her employment against her will.”   (Compl.2.)

ABM answered the complaint and filed ten special defenses.   Thereafter, on February 14, 2013, ABM filed the present motion for summary judgment, along with supporting documents.¹  On March 20, 2013, Moreno filed an opposition memorandum and supporting documents.²  ABM filed a reply on April 10, 2013, and the matter was heard at the short calendar on April 15, 2013.

“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).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

I.

ABM moves for summary judgment on the ground that Moreno cannot demonstrate the existence of any genuine issues of material fact.   Initially, ABM claims that Moreno's common-law cause of action is precluded because she has statutory remedies available to her.

Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), “created a non-statutory cause of action for an employee dismissed in violation of a statutory provision which itself did not provide a remedy ․” Snyder v. J.M. Ney Co., United States District Court, Docket No. H85653JAC (D.Conn. March 25, 1987).   The existence of an adequate statutory remedy precludes a common-law remedy for wrongful discharge.  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000).   The statutory remedy need not “be equivalent to a potential common-law cause of action for wrongful termination in order for the common-law cause of action to be precluded.”  Id., 164–65.

ABM argues that General Statutes § 31–50 provides Moreno with a statutory remedy that bars her common-law claim.   ABM relies primarily on a Superior Court case, Perez v. Bridgeport Hospital, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 126009423 (August 3, 2012, Matasavage, J.) [54 Conn. L. Rptr. 417], in which the court granted a defendant's motion to strike the plaintiff's common-law wrongful discharge claim, holding that § 31–50 provided an adequate remedy for the alleged violations of statute and public policy.

When applied to the present matter, it does not appear that § 31–50 provides an adequate statutory remedy for a violation of § 31–49.  Section 31–50, which provides that the commissioner, not an employee, may enforce § 31–49, does not provide an adequate statutory remedy for the plaintiff in the present matter.   Section 31–49 does not outline an administrative procedure or private right of action that would entitle the plaintiff to seek redress for the claim she has presented and ABM has not brought to this court's attention a statutory provision that adequately addresses Moreno's claim.³  Accordingly, the court is not persuaded by ABM's reliance on Perez.

II.

Next, ABM claims that Moreno cannot prove the elements of a constructive discharge claim.   Moreno disagrees, arguing that the evidence she has presented precludes summary judgment.

Generally, wrongful termination claims involve the direct discharge of an employee.   A claim of constructive discharge, however, alleges that an employer deliberately made an employee's working conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign.  Sophia v. Danbury, 116 Conn.App. 68, 75 n.10, 974 A.2d 804 (2009).  “Through the use of constructive discharge, the law recognizes that an employee's voluntary resignation may be, in reality, a dismissal by the employer ․” (Internal quotation marks omitted.)  Id.

ABM argues that the evidence presented reveals no genuine issue of material fact as to Moreno's claimed constructive discharge.   ABM contends that “[I]t is undisputed that [ABM] did not intentionally create an intolerable work environment since [p]laintiff submitted her resignation letter on the same day that she claims to have provided [d]efendant with a copy of the [p]rotective [o]rder and acknowledges that she actually never returned to work following the alleged incident.”  (Def.'s Mot. Summ. J. 12.)   ABM cites Moreno's deposition testimony, arguing that it “cannot be held liable for creating intolerable work conditions when the undisputed evidence shows that nothing in the [p]rotective [o]rder precluded [p]laintiff from working with [Jones];  they worked different shifts;  [p]laintiff submitted her resignation letter indicating that she was leaving in order to attend school;  [p]laintiff was unable to return to work at the time because she was on crutches;  [p]laintiff moved to Baltimore before she was off crutches;  and [p]laintiff was offered her job back once she was off crutches, to her same shift—a shift that [Jones] did not work.”  (Def.'s Mot. Summ. J. 15.)

When viewed in a light most favorable to Moreno, the evidence in the summary judgment record creates a genuine issue of material fact as to whether Moreno was constructively discharged.   The fact that the protective order did not preclude Moreno from working with Jones is irrelevant to whether placing an alleged victim of domestic violence in proximity with an alleged perpetrator of such violence creates an intolerable work environment.   Furthermore, according to Moreno's deposition, she and Jones would work shifts together “every couple weeks,” and they would see one another every day at shift change.  (Ex. B at 12.)   Whether Moreno submitted a resignation letter indicating that she was leaving ABM in order to attend school is not dispositive of her claim of constructive discharge, particularly in light of the statement in her deposition that she did not fully explain the reasons for her resignation to her supervisor because she “didn't want [her supervisor] to know exactly where or why I was leaving,” because of her supervisor's friendly relationship with Jones.  (Ex. B at 16.)

Moreover, according to Moreno's deposition, she informed her supervisor of the restraining order, told her that Jones had hit her with a car, and said that Jones was making threats.  (Ex. B at 17.)   Finally, although Moreno's deposition testimony indicates that she would not have been able to return to work until she was off crutches and she was not off crutches until she resigned from ABM and left Connecticut for Baltimore, Maryland, a genuine issue of material fact as to whether she was constructively discharged remains.   Moreno's deposition provides that in response to her request for a transfer, her supervisor responded:  “How do you f-ing expect me to transfer you on such short notice.” ⁴  (Ex. B at 16.)   Moreover, even if she were allowed to return to her same shift with ABM once she was off crutches, as noted above, Moreno's shift assignment involved seeing Jones during shift changes and working with Jones “every couple weeks.”  (Ex. B at 12.)

Additionally, a constructive discharge claim requires consideration of an employer's intent.   See Brittell v. Department of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998) (“[c]onstructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily” [internal quotation marks omitted] ).  “[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).

III.

Finally, ABM claims that Moreno cannot present evidence that creates a genuine issue of material fact as to whether ABM's alleged conduct violated the public policy embodied in General Statutes §§ 31–49 and 31–370.   Moreno argues, in response, that ABM's conduct after she requested a transfer violated the policy embodied in § 31–49.

In Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), our Supreme Court determined that a plaintiff's allegations that he perceived a work assignment that would have required that he live in a military base in Bahrain during Operation Desert Shield to be unreasonably dangerous were sufficient to state a cause of action.   The court noted that “[b]oth §§ 31–49 and 31–370 reflect a broad legislative concern for the physical welfare and safety of Connecticut employees.”  Parsons v. United Technologies Corp., supra, 243 Conn. 80.   In reaching its conclusion, the Parsons court stated that, under the circumstances, which included a vast military buildup in the region, “common sense and human experience dictate” that the assignment would pose a threat to that plaintiff's safety and welfare.  Id., 85.   The court noted, however, that whether the plaintiff has proved the employer violated a public policy is judged by an objective standard.  Id., 86.

Here, the police report provided in the summary judgment record includes a statement from an arresting officer that he had probable cause to “believe that a domestic violence crime was committed.”  (Ex. 1 at 6.) The report also provides that Moreno had been dragged by a vehicle operated by Jones after she and Jones were engaged in a verbal altercation.  (Ex. 1.) Jones was arrested as a result of this incident, charged with assault and reckless endangerment, and a Superior Court issued a protective order for Moreno's benefit.  (Ex. 1;  Ex. A.) As noted above, an issue of fact exists as to whether ABM intended to require Moreno and Jones to work in proximity to one another.

From an objective standpoint, one could perceive how a work arrangement requiring an alleged victim of domestic violence to work with the alleged perpetrator of such violence would impose a substantial threat to the victim's safety and welfare.  “The statute underlying the cause of action recognized in Parsons requires employers to provide employees with ‘fit and competent persons as ․ colaborers.’  [General Statutes] § 31–49.   The danger posed to an employee by an unstable co-worker may be sufficiently serious in exceptional cases to satisfy the objective standard established in Parsons.”   Ferrer v. T.L. Cannon Management Corp., United States District Court, Docket No. 3:08CV1040RNC (D.Conn. March 6, 2009).   Accordingly, a genuine issue of material fact exists as to whether ABM's alleged conduct violated the public policy embodied by §§ 31–49 and 31–370 requiring an employer to provide a safe workplace.

CONCLUSION

For the foregoing reasons, the defendant ABM's Motion for Summary Judgment is denied.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. In support of its motion, ABM files:  (1) a copy of the protective order, dated August 8, 2011 (Exhibit A);  (2) Excerpts from Moreno's deposition transcript (Exhibit B);  and (3) Moreno's resignation letter (Exhibit D)..  FN1. In support of its motion, ABM files:  (1) a copy of the protective order, dated August 8, 2011 (Exhibit A);  (2) Excerpts from Moreno's deposition transcript (Exhibit B);  and (3) Moreno's resignation letter (Exhibit D).

FN2. In support of its opposition to the motion for summary judgment, Moreno files:  (1) investigative documents, including a police accident report, dated August 7, 2011, incident/investigation report and reporting officer narrative (Exhibit 1);  (2) excerpts from Moreno's deposition transcript (Exhibit 2);  and (3) a document from Milford Hospital, labeled “Return to Work–School,” dated August 8, 2011 (Exhibit 3)..  FN2. In support of its opposition to the motion for summary judgment, Moreno files:  (1) investigative documents, including a police accident report, dated August 7, 2011, incident/investigation report and reporting officer narrative (Exhibit 1);  (2) excerpts from Moreno's deposition transcript (Exhibit 2);  and (3) a document from Milford Hospital, labeled “Return to Work–School,” dated August 8, 2011 (Exhibit 3).

FN3. Although not cited by ABM, General Statutes § 31–40t, provides a more sound basis for its argument that a statutory remedy exists to address workplace hazards.   However, it is not apparent and ABM has not argued that the alleged facts underlying this case constitute a “hazardous condition,” under that statute, as defined in § 31–40t(a)(4)..  FN3. Although not cited by ABM, General Statutes § 31–40t, provides a more sound basis for its argument that a statutory remedy exists to address workplace hazards.   However, it is not apparent and ABM has not argued that the alleged facts underlying this case constitute a “hazardous condition,” under that statute, as defined in § 31–40t(a)(4).

FN4. Moreno's deposition also provides:  “[Moreno]:  I said, ‘I have a restraining order, and I'm going to school as far south as possible.   Please transfer me.’   She just said, ‘No way, it's not going to happen.   You are going to have to wait.   There's no openings anywhere.’  “ (Ex. B at 16.)The deposition also provides:  “Q:  Did [your supervisor] ever explicitly say to you, ‘Yes, you can come back to ABM as long as you work that same shift, as long as you continue working with [Jones]?“[Moreno] She didn't say with [Jones].   She said, ‘When you come on (sic) crutches, you can work your same schedule.’ “As noted above, the evidence presented, when viewed most favorably to Moreno, indicates that her schedule, absent a shift change or reassignment, involved her and Jones seeing one another at daily shift changes and working together every few weeks..  FN4. Moreno's deposition also provides:  “[Moreno]:  I said, ‘I have a restraining order, and I'm going to school as far south as possible.   Please transfer me.’   She just said, ‘No way, it's not going to happen.   You are going to have to wait.   There's no openings anywhere.’  “ (Ex. B at 16.)The deposition also provides:  “Q:  Did [your supervisor] ever explicitly say to you, ‘Yes, you can come back to ABM as long as you work that same shift, as long as you continue working with [Jones]?“[Moreno] She didn't say with [Jones].   She said, ‘When you come on (sic) crutches, you can work your same schedule.’ “As noted above, the evidence presented, when viewed most favorably to Moreno, indicates that her schedule, absent a shift change or reassignment, involved her and Jones seeing one another at daily shift changes and working together every few weeks.

Nazzaro, John J., J.