Katarzyna Drozdowski v. LLC (2013)

MEMORANDUM OF DECISION re MOTION TO STRIKE ¹

Nature of the Proceeding

This is an action in which plaintiff asserts numerous causes of actions against defendants, all having a genesis in an assault by a fellow employee (nonparty) that took place at the worksite.   According to her complaint, a few days after the assault, plaintiff told her employer that she intended to pursue her legal rights with respect to that assault, whereupon she was fired.   Smile Sensations, LLC was plaintiff's corporate employer, and defendant Wolpo is alleged to have been the owner, principal, etc. of that entity.

Plaintiff's causes of action, as set forth in her amended complaint, include a violation of General Statutes § 31–290a (first count);  negligent infliction of emotional distress (second count);  intentional infliction of emotional distress (third count);  negligent supervision (of her fellow employee) (fourth count);  negligent retention (of her fellow employee) (fifth count);  and wrongful termination (sixth count).

Defendants have moved to strike almost all of the claims asserted against one or both of them.   In particular, the principal, defendant Wolpo, moves to strike so much of the first count as is directed to him;  both defendants move to strike the second through sixth counts.   To put it differently, the only claim not being challenged is the statutory claim against the corporate employer.

Both parties have filed multiple pleadings/memoranda—defendant has filed pleadings 109.00, 110.00, 113.00 and 114.00;  plaintiff's responsive pleadings are 116.00 and 138.00.

Standard of Review

“A motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [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 ․” Kumah v. Brown, 307 Conn. 620, 626 (2013) (internal quotation marks, omitted;  ellipses as in cited case).

“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commissioner, 182 Conn. 138, 140, 438 A.2d 27 (1980).

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  (Internal quotation marks omitted.)

Procedural Threshold Issue

Before addressing the merits of the parties' conflicting positions, there is a threshold issue that is somewhat procedural in nature (relating to the first count).   Plaintiff contends that with respect to a single count directed to two defendants, one of the defendants cannot move to strike that count as directed to him but rather that only an entire count as applicable to all named defendants within that count is amenable to being stricken.   Defendant relies on Webster v. Pequot Mystic Hotel, 2002 WL 173154 (Conn.Super.2002) [31 Conn. L. Rptr. 217], in turn citing and relying upon Rowe v. Godou, 209 Conn. 273, 279 (1988).   According to plaintiff, the proper procedure would have been for defendants to have filed a request to revise asking that the first count be separated into separate counts, with each defendant the subject of an individual count, as a precondition to defendant Wolpo seeking to strike the separated claim against him.

The court disagrees;  while it may be appropriate or desirable in some situations to seek such a separation of causes of action for the sake of clarity, the court is unaware of any appellate authority for a mandate of general applicability that a motion to strike can only be granted as to all defendants in a single count.  (Note that by way of analogy, a similar argument would seem to be applicable to motions for summary judgment, especially if a motion for summary judgment raised the issue of the legal sufficiency of a claim against a particular defendant;  see, Larobina v. McDonald, 274 Conn. 394, 404–05 (2005).)

The court believes that the trial court analysis cited by plaintiff may be due to an overly-broad reading of Rowe. Rowe arose in the context of extensive case law addressing the proper means of pursuing a claim of municipal indemnification under statutes such as General Statutes §§ 7–465 and 7–308.   Under those statutes, precedents clearly established that separate counts were required, one initially establishing the employee's negligence/liability, with the subsequent count asserting the municipality's indemnification liability under the appropriate statute.   See, e.g. Wu v. Fairfield, 204 Conn. 435, 438 (1987) (separate counts required in municipal indemnification action);  Martyn v. Donlin, 148 Conn. 27, 32 (1961) (same).   Conversely, a failure to assert a proper claim against the municipality, in the presumptive second count, would not impact the potential liability of the employee under the first count.   See, e.g. Fraser v. Henninger, 173 Conn. 52, 61 (1977).   In other words, Rowe arose in an area of law where there was a pre-existing “requirement” of separate counts as to each of two defendants, in turn (at least in part) because of the conditional/derivative nature of municipal liability for the actions of the employee.   It was against that backdrop that the Rowe court made the comments relied upon by plaintiff and plaintiff's authorities.

Additionally, the language relied upon probably is dictum insofar as the court already had concluded that the Appellate Court had erred in determining that, as a matter of law, plaintiffs' complaint was based on statutory indemnification, rather than some other theory, 209 Conn. 275–79.   Only then did the court go on to discuss a possible means of clarifying a “confusing” complaint.

To analyze the point even further, it must be recognized that in Rowe, both defendants had moved to strike the one-count complaint, eliciting the discussions identified above.   Therefore, the decision could not have been directed to the general proposition that it was impermissible for less than all defendants to move to strike a single count directed to them.

Here, in distinction, an effort has been made to identify which defendant is attacking the sufficiency of each count.   Indeed, it is worth quoting footnote 9 in Rowe (209 Conn. 279) at length:

“We are aware that the trial court file reveals that the defendants made a request to revise in 1984 and that the request was objected to by the plaintiff and denied by the trial court.   Despite the denial of the motion to revise, the city still had the opportunity to move to strike the allegations of the complaint insofar as they purported to state a cause of action against it.”   (Emphasis added.)

Thus, the Supreme Court explicitly recognized the ability of one of two defendants to attack the sufficiency of a cause of action alleged in a single count.

In the absence of any generally-applicable appellate authority to the contrary, the court rejects plaintiff's contention that a necessary prerequisite to the court's review of the legal sufficiency of any count is that the all defendants named in the count must be moving to strike it.   The court will not exalt form over substance in such a manner.  (See, also, Practice Book § 1–8.)

First Count—statutory liability—defendant Wolpo only

The first count alleges a cause of action under § 31–290a, which creates a statutory cause of action against an employer who takes adverse action against an employee because the employee has asserted rights under the Workers' Compensation Act (“Act”).   Plaintiff has directed her claim against both the corporate entity as well as defendant Wolpo as the owner, officer, principal, etc. of Smile Sensations, LLC. Defendant Wolpo claims that the statute is inapplicable to him as he is not the employer but rather the entity is the actual employer.   Plaintiff relies on the general proposition that a corporate official who acts in a tortious manner can be held liable for the tort as much as the employer.   The issue is whether the general proposition in tort law applies to a statutory cause of action such as this, particularly one in which there is a statutory definition of employer for purposes of workers' compensation matters.

A decision in this regard is something of a double-edged sword.   If a principal of an LLC is to be treated as an employer, then plaintiff is correct in including that principal, individually, under this statutory claim.   The necessary corollary of such a determination, however, is that the individual defendant then would be entitled to invoke the heightened level of protection—essentially, an almost total immunity—afforded to employers as compared to the more modest level of immunity afforded to fellow employees.   Thus, while § 31–293a allows for liability of a fellow employee for conduct constituting “willful or malicious” misconduct (or arising from operation of a motor vehicle), the Suarez ² rule requires proof of the equivalent of an intent to injure in order to impose liability on an employer for an on-the-job injury sustained by an employee.³

The parties have not provided the court with any binding authority as to the issue of whether an owner of an LLC is an employer for purposes of workers' compensation liability and immunity.   A few trial court decisions have been cited and provided, but other than efforts to distinguish unfavorable results, neither party has identified any compelling argument one way or the other.

Preliminarily, the court notes that the Workers' Compensation Commission appears to have addressed the issue at least in part.   Pursuant to Form 75, an individually-owned LLC is treated as the equivalent of a sole proprietorship whereby there is a presumption that the individual is an employer but has the right to elect to be treated also as an employee, as authorized by § 31–275(9)(A)(ii).   Note that in Hoyt v. Second Taxing District, 183 Conn. 508, 509 (1981), the court reiterated that in a situation where a defendant can be characterized both as employer and as a fellow employee, characterization as employer takes precedence over simultaneous characterization as a fellow employee, i.e. exclusivity under § 31–284 controls.

The court notes that the Act frequently has been identified as remedial in nature (e.g. Bode v. Connecticut Mason Contractors, 130 Conn.App. 672, 689 (2011)) and therefore to be applied liberally in favor of the injured employee.   Treating an owner as the equivalent of the employer—especially when that owner is the person acting on behalf of the employer-entity in taking the allegedly retaliatory action—could only help to discourage the behavior sought to be proscribed by § 31–290a.

On the other hand, in a technical sense, the entity and not the owner of the entity is the employer (just as a shareholder in a corporation, even a majority shareholder, is not the employer of persons working for the corporation).   The fact that Form 75 only applies to a single-member LLC implies that there is or should be or could be a distinction between sole proprietorships and entities with multiple owners—and there is nothing that would allow the court to differentiate between those two scenarios, on the record presently available (the allegations of the complaint).   Defendant Wolpo relies on the language of the complaint itself—in his initial memorandum, he emphasizes that the complaint only identifies him as an owner and does not specifically identify him as an employer nor does it clearly imply such a relationship.

On balance, the court believes that treating defendant Wolpo as an employer of plaintiff is the more appropriate approach.   As previously noted, plaintiff's complaint characterizes the individual defendant as an owner, agent, officer and/or principal of the organization, and the person with apparent if not actual authority to make employment decisions (firing plaintiff).   Confirming this approach is a portion of the statutory definition (§ 31–275(10)):

“ ‘Employer’ means any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer ․” (Emphasis added.)

The emphasized language indicates that the term “employer” is not to be read literally/technically but rather is intended to encompass those authorized to act for the employer for purposes germane to the Act. As owner of the LLC, or as its principal, or however characterized, the individual defendant was acting for the employer with respect to making a decision as to plaintiff's employment status;  for purposes of that conduct/transaction, he was acting as the employer.   This is consistent with caselaw treating an insurer as the equivalent of an employer, for purposes of the exclusivity under the Act. See, e.g. Deoliveira v. Liberty Mutual, 273 Conn. 487 (2005) (§ 31–284 exclusivity applies to claims against insurance company handling claim).

Accordingly, the claim that the first count does state a legally sufficient claim against defendant Wolpo, and the motion to strike is denied in this respect.

Second Count—Negligent infliction of emotional distress

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.  [N]egligent infliction of emotional distress in the employment context arises only when it is based upon unreasonable conduct of the defendant in the termination process ․ An individual may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 771 (2012) (internal quotation marks and citations, omitted).

Implicit in this analysis is that the mere act of termination, inherently likely to be stressful, is not sufficient to support a cause of action.   (Otherwise, essentially every termination would be a potential candidate for litigation.)   It is only unreasonable conduct—making the process more stressful than it had to be—that might be a candidate for this cause of action.

In this case, there was little if any process.   Plaintiff told her employer that she intended to pursue her legal rights;  her employer told her that if she did, she would be fired;  plaintiff insisted that she would pursue her rights;  plaintiff was fired.   In essence, the question is whether an arguably improper motivation for termination, in and of itself, is sufficient to state a cause of action for negligent infliction of emotional distress.

Tracy v. New Milford Public Schools, 101 Conn.App. 560, 570–74 (2007), controls this situation.   A wrongful termination, without more, cannot be the basis for a legally-sufficient cause of action based on negligent infliction of emotional distress in an employment context.   That, however, is precisely what is present here—there is no suggestion that plaintiff was somehow targeted, over a period of time, for termination, nor that there was an unnecessarily embarrassing process utilized, nor any other unreasonable conduct likely to inflict emotional distress in the termination process.   Based on the alleged circumstances of the termination, the motion to strike the claim for negligent infliction of emotional distress must be granted.

Third Count—Intentional infliction of emotional distress

“In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (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 for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ 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!   Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 442–43 (2003) (internal quotation marks, citations, and footnote, omitted).

The egregious nature of the conduct required to state a cause of action for intentional infliction of emotional distress is a continuing theme of appellate cases.  DiTeresi v. Stamford Health System, Inc., 142 Conn.App. 72, 96–89 (2013).   The court finds nothing in plaintiff's complaint that approaches the level of outrageous conduct needed for this type of claim.   Accordingly, the third count is stricken.

Fourth and Fifth Counts–Negligent supervision/negligent retention

The fourth count alleges that the defendants failed to properly supervise plaintiff's coworker resulting in the eventual assault on plaintiff.   The fifth count is captioned as a claim of negligent retention, although the language seems to suggest something more akin to a failure to protect.   Defendants have moved to strike both of these claims based on exclusivity of remedies under the Workers' Compensation Act.

The court previously concluded that the individual defendant, whom plaintiff treated as an employer for purposes of the first count, was the equivalent of an employer for purposes of the Act. The court will not depart from that treatment for purposes of this analysis.

Section 31–284 provides an employer with almost total immunity from any claim for personal injuries sustained by an employee in the course and scope of employment.   An intentional infliction of injury (or the equivalent) is the only exception, as articulated in Suarez, briefly discussed earlier.   There is nothing in the complaint, however, that approaches much less reaches the level of intent required to hold an employer liable for injuries sustained by an employee in the course and scope of employment.   Whether characterized as a failure to supervise, improper retention, failure to protect, or otherwise, these are all claims of negligence leading to the physical injury sustained by the plaintiff in the assault by her coworker.   That is insufficient to meet the Suarez standard.  (There are no allegations that would seem to meet the lesser but still significant threshold for fellow employee liability under § 31–293a, i.e. wilful or malicious conduct.)

The court disagrees with plaintiff's procedural contention that workers' compensation exclusivity can only be raised by special defense.   That is a correct statement of the law with respect to joinder of issues for purposes of trial, but not for purposes of a motion to strike.   Just as governmental immunity must be alleged by way of special defense but can, in appropriate circumstances, also be raised by motion to strike, Faulkner v. Daddona, 142 Conn.App. 113, 120–21 (2013), so too can workers' compensation exclusivity be raised in either manner, depending on procedural context.   Of course, the complaint must set forth sufficient allegations to allow the motion to strike to be decided.

In the closely-related area of fellow employee immunity, the Supreme Court has stated:

Therefore, the fact that the plaintiff's complaint failed to allege facts that would have removed it from the operation of the fellow employee immunity rule merely reflects that the complaint failed to state a legally sufficient cause of action.   We have previously held that if a pleading ․ on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted, a motion to strike is required.  Gurliacci v. Mayer, 218 Conn. 531, 544 (1991).  (Internal quotation marks, omitted;  ellipses as in cited case.) 4

The court sees no reason why the same analysis would or should not be applicable to the more comprehensive protection available to an employer under § 31–284.

Plaintiff's complaint asserts sufficient facts to bring into focus the issue of employer immunity (workers' compensation exclusivity under § 31–284).   The complaint asserts:  both defendants could/should be characterized as acting as employer;  plaintiff was injured on the job by a fellow employee;  and plaintiff intends/intended to pursue remedies under the Act. The harm sustained by plaintiff from the alleged negligent supervision and retention is the same harm giving rise to her workers' compensation claim—injuries inflicted by her coworker, at their place of employment.   There are sufficient facts to facially invoke workers' compensation exclusivity under § 31–284.

Plaintiff's response to the motion to strike asserts that there are allegations of negligent supervision and retention, coupled with the procedural claim that the court has rejected i.e. that the issue of exclusivity cannot be raised by motion to strike.   Plaintiff does not suggest why exclusivity, once the issue is reached on the legal merits, is not or should not be a total bar under the facts and circumstances as alleged in the complaint.

The court therefore concludes that both the fourth and fifth counts are legally insufficient in that they are barred by § 31–284.   The motion to strike as to the fourth and fifth counts is granted.

Sixth Count—Wrongful termination

The complaint is silent as to the existence of any contract governing the employment relationship between plaintiffs and defendants.   There does not appear to be any dispute but that plaintiff was an at-will employee.   The parties seem to agree that, given plaintiff's status as an at-will employee, a common-law claim of wrongful termination is only actionable if the termination violates some strong public policy.

Defendants rely on Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643 (1985), for the proposition that if there is an available statutory remedy, a common-law action for wrongful termination is not available.   See, also, Campbell v. Plymouth, 74 Conn.App. 67, 72–77 (2002).   The court need not address that contention, because plaintiff's claim of wrongful termination has two components.   In part, as already articulated in the first count, there is a claim that she was terminated for her assertion of rights under the Act, which does have a statutory remedy (§ 31–290a), and therefore would seem to come within the scope of the Atkins decision.   However, plaintiff also is asserting that she was wrongfully terminated because of her insistence on pursuing legal avenues vis-á-vis her assailant—civil and/or criminal.   This latter aspect of her claim is not associated with any identified statutory remedy, such that even if Atkins were applicable, it would not be a bar to the sixth count.

The court has struggled with the question of whether or not, under the specific facts of this case (as alleged in the complaint, and in turn, as interpreted in the parties' submissions), plaintiff truly has articulated a sufficient claim of strong public policy to allow her wrongful termination claim to proceed.

Although plaintiff claims that the strong public policy in question is workplace safety, that is not what is revealed by a fair reading of her complaint.   She does not allege that she was terminated because she complained about inadequate safety in the workplace.   She does not allege that she was terminated because of complaints about the dangerous proclivities of her coworker.   She does not allege that she was terminated because she refused to continue to endure further threats to her safety in the workplace.   Cf. Parsons v. United Technologies Corp., 243 Conn. 66 (1997).   The court does not equate an expressed intention to pursue civil and criminal legal recourse against her assailant after an injury is sustained to concern about workplace safety.   See, e.g. Parsons, supra.

The court recognizes that as a civil litigant, plaintiff has a constitutional right to access to the courts, and as a victim of a crime has certain other constitutional rights.   The complaint states that she indicated to her employer that she wanted to assert and preserve such rights (without the constitutional references ⁵ ), leading to her termination.   On the other hand, her civil claim is somewhat undercut by the fact that she already is/would be entitled to compensation under the Workers' Compensation Act without even needing to go to court.   As to her concerns about the criminal process, they are moderated by the control asserted by the state over any prosecution, such that while she would have a right to provide input, final decisions as to disposition (including availability of diversionary programs) would be beyond her actual control.   See, also, State v. Gault, 304 Conn. 330 (2012), discussing limited rights of victim vis-á-vis those of the criminal defendant.

The constitutional provision concerning access to courts has something of an institutional flavor to it even though, ultimately, individuals are the ones who exercise that right.   The recent constitutional amendment recognizing and creating certain rights of victims of crimes, however, is very much person-oriented;  its relatively recent ratification is a reflection of a strong public policy with respect to victims' rights.   Summarily firing an individual for assertion of both of these rights, without even waiting to see if there would be any adverse impact on the operation of the business, would seem to be sufficiently offensive to the strong public policy reflected in these constitutional provisions as to allow this claim to proceed.   Compare, Hellanbrand v. National Waste Associates, LLC, 2008 Ct.Sup. 1564, 44 Conn. L. Rptr. 849 (HDD CV 07–5010727) (Hale, J.T.R.) (alleged violation of constitutional right to privacy as basis for wrongful termination action).

Accordingly, the motion to strike as to the sixth count is denied.

Summary of rulings

The motion to strike is granted as to the second, third, fourth, and fifth counts.   The motion is denied as to the first and sixth counts.

POVODATOR, J.

FOOTNOTES

FN1. The court is treating pleadings # 109.00 and # 113.00 as a composite motion..  FN1. The court is treating pleadings # 109.00 and # 113.00 as a composite motion.

FN2. Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (1994)..  FN2. Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (1994).

FN3. Defendants do not appear to recognize that they have argued both sides of this point.   In the context of the first count, defendants are arguing that the individual defendant is not an employer and therefore cannot be liable.   However, in their supplemental memorandum of law (114.00) defendants treat both the individual and the entity as employers for purposes of invoking the greater protection (workers' compensation exclusivity) afforded to an employer..  FN3. Defendants do not appear to recognize that they have argued both sides of this point.   In the context of the first count, defendants are arguing that the individual defendant is not an employer and therefore cannot be liable.   However, in their supplemental memorandum of law (114.00) defendants treat both the individual and the entity as employers for purposes of invoking the greater protection (workers' compensation exclusivity) afforded to an employer.

FN4. Gurliacci involved the fellow employee immunity set forth in § 7–465.   That statute governs fellow employee immunity for municipal workers, in a manner parallel to that for nongovernmental workers under § 31–293a.  (The case actually involved a short-lived difference between the two statutes i.e. the ability to sue a fellow employee in connection with injuries sustained as a result of operation of a motor vehicle.).  FN4. Gurliacci involved the fellow employee immunity set forth in § 7–465.   That statute governs fellow employee immunity for municipal workers, in a manner parallel to that for nongovernmental workers under § 31–293a.  (The case actually involved a short-lived difference between the two statutes i.e. the ability to sue a fellow employee in connection with injuries sustained as a result of operation of a motor vehicle.)

FN5. In cases such as Parsons, 243 Connecticut 77, the court seems to require that plaintiff invoke the detailed basis for her claim (“whether the plaintiff has ․ alleged that his discharge violated any explicit statutory or constitutional provision ․”).  Although plaintiff does not identify the specific provisions, there are explicit constitutional provisions implicated by allegations that she was terminated because of her insistence on asserting her rights as a civil litigant and as a victim of a crime, i.e. Article First, § 10 guarantees access to the courts, and Article XXIX of the Amendments, amending Article XVII of the Amendments, guarantees certain rights to victims of crimes..  FN5. In cases such as Parsons, 243 Connecticut 77, the court seems to require that plaintiff invoke the detailed basis for her claim (“whether the plaintiff has ․ alleged that his discharge violated any explicit statutory or constitutional provision ․”).  Although plaintiff does not identify the specific provisions, there are explicit constitutional provisions implicated by allegations that she was terminated because of her insistence on asserting her rights as a civil litigant and as a victim of a crime, i.e. Article First, § 10 guarantees access to the courts, and Article XXIX of the Amendments, amending Article XVII of the Amendments, guarantees certain rights to victims of crimes.

Povodator, Kenneth B., J.