Wayne Jacques et al. v. Knights of Columbus et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 108

Pursuant to Practice Book § 10–39 et seq., the defendants move this court to strike counts two, three, eleven and twelve of the plaintiff's Revised Complaint dated May 28, 2013 for failing to state legally sufficient causes of action against the defendants, Knights of Columbus Council 37 and Columbia Club, Inc. As to Counts Two and Three, the defendants assert that Connecticut General Statutes § 46a–84 does not give rise to a private cause of action.   As to Counts Eleven and Twelve, the defendants assert that the conduct claimed is not extreme and outrageous and thus not legally sufficient.

The plaintiff opposes the motion to strike and filed a memorandum in opposition.   The court heard oral argument on the matter on October 15, 2013.

ANALYSIS

“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).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

I. Private Right of Enforcement Under Connecticut General Statutes § 46a–64 (Counts Two and Three)

In Counts Two and Three, the plaintiff's complaint asserts that the defendant's members, Knights of Columbus Council 36 and Columbia, Inc., discriminated against them in a place of public accommodation based upon the race of the plaintiff, Williams, and the biracial relationship that the plaintiff, Jacques, had with Williams.

Connecticut General Statutes § 46a–64(c) describes the enforcement mechanism for violations of Section 46a–64:  “Any person who violates any provision of this section shall be fined not less than twenty-five dollars or more than one hundred dollars or imprisoned not more than thirty days, or both.”  Section 46a–64 contains no mention of any private right of action anywhere in its text.

“[T]here exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute.   In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute.”   See Provencher v. Town of Enfield, 284 Conn. 772, 777–78 (2007) (Connecticut General Statutes § 22–331(a), which concerns the appointment of municipal animal control officers, does not expressly mention a private right of action and thus does not confer a private right of action).   To overcome the presumption against private enforcement, plaintiffs cite to Corcoran v. German Soc. Soc'y Frohsinn, Inc., in which the Connecticut Appellate Court reversed judgment in favor of the defendant and against an individual who had alleged gender discrimination by a public accommodation in violation of Section 46a–64 on the ground that the lower court applied an improper legal standard for public accommodation but did not explicitly address whether Section 46a–64 conferred a private right of action.  99 Conn.App. 839, 840 (2007).   The plaintiffs argues that Corcoran demonstrates the Connecticut Appellate Court's implicit recognition that Section 46a–64 provides a private right of enforcement.   The defendants counter that the court in Corcoran was not presented with and therefore did not consider the argument that Section 46a–64 does not provide for a private right of action.

Although Corcoran adjudicated a private suit under Section 46a–64, the Connecticut Appellate Court has not specifically addressed the private enforcement issue, and each Connecticut Superior Court case addressing the issue has concluded that Section 46a–64 does not provide a private right of action.   See Smith v. New Horizon Computer, 47 Conn. L. Rptr. 311 (Conn.Super.Ct.2009) (Section 46a–64 “was meant only to be enforced through fines or imprisonment, ․ Connecticut's public accommodation statute does not provide for either an express or implied, private cause of action under § 46a–64(a)(1) and (2)”);  Batiste v. Soundview Med. Assocs., LLC, No. CV065001278, WL 1105247, at 5 (Conn.Super.Ct. March 25, 2009) (Section 46a–64 “has been found to be penal in nature on several occasions and not to afford a private right of action”);  McPhail v. City of Milford, No. 054506S, 1999 WL 126796, at 3 (Conn.Super.Ct. Feb. 25, 1999) (General Statutes §§ 46a–64(a)(1) and 46a–64(a)(2) “have been found to be penal in nature and not to afford a private cause of action”);  Wright v. City of Hartford, No. CV 970570863S, 1998 WL 83670, at 3 (Conn.Super.Ct. Feb. 13, 1998) (“There is no statutory authorization to bring private actions based on a violation of [Section 46a–64]”).

The court finds the reasoning in the aforementioned Superior Court cases and others persuasive on the issue.   While the plaintiffs have exhausted their administrative remedies by filing a complaint alleging discriminatory practices with the Connecticut Commission on Human Rights and Opportunities (CHRO) which released jurisdiction, they are unable to state a claim under § 46a–64.   The legislature has in many instances provided express language creating a private cause of action.   See Brewer v. Wilcox Trucking, Inc., Superior Court, judicial district of Hartford at New Britain, No. 479546 (September 26, 1997) (Stengel, J.).   The statutes plaintiffs allege herein do not contain any such express terms.   Given the persuasiveness of these Superior Court opinions and because the plain language of § 46a–64(a)(1) and (2) indicates that the statute was meant only to be enforced through fines or imprisonment, the defendant's motion to strike Counts Two and Three is granted, as Connecticut's public accommodation statute does not provide for either an express, or implied, private cause of action under § 46a–64(a)(1) and (2).

II. Intentional Infliction of Emotional Distress (Counts Eleven and Twelve)

In order to state a legally sufficient claim for intentional infliction of emotional distress, the plaintiff must allege facts sufficient to establish the four separate elements of that tort.   See Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).  “[F]or the plaintiff to prevail in a case for liability under the 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 a 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 exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.   Whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy these elements is a question, in the first instance, for the court.   Only where reasonable minds can differ does it become an issue for the jury.  Bell v. Board of Education, 55 Conn.App. 400, 409, 739 A.2d, 321 (1999).  “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!’   1 Restatement (second), Torts § 46, comment (d), p. 73 (1965).”  (Internal quotation marks omitted.)   Racial discrimination may obviously give rise to a claim of intentional infliction of emotional distress.   See, e.g. State v. Local 387 of Council 4 AFSCME, AFL–CIO, Superior Court, judicial district of Hartford, New Britain at Hartford, Docket No. 579805 (February 19, 1999, Levine, J.), aff'd., 252 Conn. 467 (2000).

The use of racial epithets can support a claim for intentional infliction of emotional distress.   Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. 050418 (June 29, 1999, Corradino, J.), Nwachukwu v. State Department of Labor, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. 573575 (March 4, 1998, Hennessey, J.).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)   Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).  “The court must construe the facts in the complaint most favorably to the plaintiff.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Id. Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The defendants argue that the court should strike Counts Eleven and Twelve because the plaintiffs have failed to plead sufficient facts to show conduct that was “extreme and outrageous.”  “There is no bright line rule to determine what constitutes extreme and outrageous conduct ․ The court looks to the specific facts and circumstances of each case in making its decision.   However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility ․” Savage v. Andoh, Superior Court, judicial district of New Haven, Docket No. CV 07 5015657 (April 11, 2008, Bellis, J.) [45 Conn. L. Rptr. 493].

The plaintiffs have alleged that on February 28, 2010, “racially derogatory comments about the African–American plaintiff Williams, and about the fact that the plaintiffs were in a biracial relationship” were made, and that thereafter, on December 3, 2010, “members of the defendants” informed the plaintiffs that they “were not wanted at, and no longer welcome at the defendants, and must immediately leave the premises.”

Viewing the plaintiff's claims in the light most favorable to sustaining its legal sufficiency, it can reasonably be concluded that claim describes conduct that was extreme and outrageous.   Put another way, reasonable minds could certainly find that the alleged conduct was extreme and outrageous.

Therefore, the defendants' motion to strike Counts Eleven and twelve, which claims to the contrary, must be denied.

Vitale, J.

Vitale, Elpedio N., J.