Debra Jadofsky v. Madonna Place, Inc. (2014)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE COMPLAINT (# 107)

The plaintiff, Debra Jadofsky, by her undated complaint filed June 14, 2013, sued the defendant, Madonna Place, Inc., in three counts.   Count one claims breach of contract.   Count two claims “violation of employment policies.”   Count three claims “bad faith.”   The defendant moved to strike all three counts on September 18, 2013.   The plaintiff filed an opposing memorandum on October 9, 2013.   The motion was argued by the movant's attorney on October 15, 2013.   Neither the plaintiff nor her attorney were present for oral argument.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true and the complaint is construed broadly and realistically).   Viewing the complaint in this light, the essential facts are as follows.

The plaintiff was employed full time by the defendant as an administrative assistant from February 2006 until January 2012.   She performed her duties capably and diligently throughout her employment.   In December of 2011,¹ the plaintiff was asked to sign an agreement “specifying measures to be undertaken by” her to address work performance issues cited by the defendant.   The plaintiff signed that agreement.   The agreement provided that the plaintiff would retain her position if she followed the terms of the agreement and the plaintiff did so.   In January of 2012, while the agreement was in effect, the defendant terminated the plaintiff's employment.   Count two adds one fact ² to those in count one:  agreements of the sort signed by the plaintiff were a standard employment policy of the defendant.³  Count three adds another fact:  the defendant induced the plaintiff to enter into the agreement ⁴ which the defendant did not intend to honor and did not honor.

DISCUSSION

The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint or count to state a claim upon which relief can be granted.   See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In determining the sufficiency of a pleading, all well-pleaded facts and all necessarily implied facts are taken as admitted.  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   In ruling on a motion to strike, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

Before discussing the individual counts, the court must address an important preliminary point.   Paragraph 3 of each count refers to the “agreement attached as exhibit 1.” There is no such exhibit.   Only the marshal's return is attached to the complaint on file with the court.  “Complaints routinely reference written agreements or other documentation in support of allegations but do not attach the referenced materials as exhibits.   If not attached, they simply are not part of the complaint and may not be considered for the purposes of a motion to strike.”   Southridge Capital Management, LLC v. Twin City Fire Ins. Co., Superior Court, judicial district of Middletown, Complex Litigation Docket, Docket No. X04–CV–02–1035275 (June 3, 2005, Quinn, J.) [39 Conn. L. Rptr. 635].   A motion to strike must be decided based only on the challenged pleading.  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Accordingly, although a “Performance Improvement Plan” is attached to the defendant's motion to strike, the court must disregard that document and assess the legal sufficiency of the complaint based solely on the plaintiff's factual averments.

As to count one, “[t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 436, 955 A.2d 565 (2008).   The complaint alleges that, in December of 2011, the plaintiff and the defendant signed an agreement that “made clear that the Plaintiff would retain her position if she followed the terms of the agreement” and that the plaintiff “complied with all terms of the agreement.”   The complaint alleges that, while the agreement was in effect, the defendant terminated the plaintiff's employment.   The defendant argues that the plaintiff has failed to plead damages.   Whatever the effects of this omission on the plaintiff's proof at trial may be, her loss of employment is legally sufficient.   See Cambridge Manor of Fairfield, LLC v. Myers, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–11–5029512–S (November 16, 2012, Sommer, J.) (fact of damages caused by breach, sufficient to support nominal award, is sufficient).   Taken as true, these allegations state a breach of contract claim and the defendant's motion to strike count one is denied.

As to the second count, the defendant's motion argues that “violation of employment policies” is not a legally cognizable claim under Connecticut law.   Our state's Supreme Court has recognized that “statements in an employer's personnel manual may ․ under appropriate circumstances ․ give rise to an express or implied contract between employer and employee.” ⁵  (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999).   The plaintiff's memorandum in opposition defends the legal sufficiency of count two by citing to Dolak v. Sullivan, 145 Conn. 497, 144 A.2d 312 (1958) and Tilbert v. Eagle Lock Co., 116 Conn. 357, 165 A. 205 (1933).   However, in both of those cases, the plaintiffs hitched their claims to specific language in a formal employment plan or policy from which the court could reasonably infer a contractual duty on the part of the employer.  Dolak v. Sullivan, supra, 145 Conn. 503–04 (employee retirement plan);  Tilbert v. Eagle Lock Co., supra, 116 Conn. 361–64 (employee death benefit policy).   The plaintiff here has alleged no stated policy or plan upon which to predicate such a claim.   The plaintiff's averment that the agreement alleged in count one was “a standard part of the employment policies of the employer” is insufficient to place the claim in the realm of the implied contractual duties contemplated by the courts in Dolak and Tilbert.  “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.”  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 14, 662 A.2d 89 (1995).   At best, count two is duplicative of count one.   The defendant's motion to strike count two is granted.

Finally, with regard to the third count, “[i]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  Rafalko v. University of New Haven, 129 Conn.App. 44, 51, 19 A.3d 215 (2010).  “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Citation omitted;  internal quotation marks omitted.)  Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).   Of course, not every breach of contract gives rise to a claim of bad faith, “refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive.”  Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993).

Here, the complaint re-alleges the facts in count one and adds that “[t]he Defendant acted in bad faith in terminating the Plaintiff as it induced her to enter into an agreement which it did not intend to honor and did not honor.”   While the beginning of that allegation is disregarded as a mere legal conclusion;  see Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011);  the remainder is a well pleaded fact which, when viewed in the light most favorable to finding legal sufficiency, suggests a “dishonest purpose or sinister motive” on the part of the defendant.   If true, the defendant's inducing the plaintiff to consummate a contract that the defendant never intended to honor—soliciting a promise which it never intended to reciprocate—elevates the claim beyond a simple breach.   The defendant's motion to strike count three is denied.

ORDER

For the foregoing reasons, the defendant's motion to strike is denied as to counts one and three and is granted as to count two.

Cole–Chu, J.

FOOTNOTES

FN1. Paragraph 3 of count one actually alleges that the plaintiff entered into the purported contract in December of 2012;  however paragraph 6 of the same count alleges that she was terminated in January of 2012.   Based on the other pleadings, the court will assume that the alleged date of contract formation was a typographical error and was intended to be December of 2011.   See Lay v. Stamford Emergency Medical Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–98–0356539–S (June 4, 2001, Skolnick J.) (footnote one) (errors which are not pertinent to the matter before the court may be ignored)..  FN1. Paragraph 3 of count one actually alleges that the plaintiff entered into the purported contract in December of 2012;  however paragraph 6 of the same count alleges that she was terminated in January of 2012.   Based on the other pleadings, the court will assume that the alleged date of contract formation was a typographical error and was intended to be December of 2011.   See Lay v. Stamford Emergency Medical Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–98–0356539–S (June 4, 2001, Skolnick J.) (footnote one) (errors which are not pertinent to the matter before the court may be ignored).

FN2. Paragraph 8 of count two also alleges that “[t]he termination of the Plaintiff was invalid and improper as it violated the policies of the employer on which the Plaintiff was entitled to rely.”   Paragraph 8 constitutes a conclusion of law, which is not admitted.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997)..  FN2. Paragraph 8 of count two also alleges that “[t]he termination of the Plaintiff was invalid and improper as it violated the policies of the employer on which the Plaintiff was entitled to rely.”   Paragraph 8 constitutes a conclusion of law, which is not admitted.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

FN3. Count two alleges this fact “[o]n information and belief.”   That qualifying phrase sometimes appears in affidavits as, essentially, a disclaimer of personal knowledge.   The court disregards that phrase as surplusage for two related reasons.   First, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   Second, if the court construed “on information and belief” as diluting the plaintiff's factual allegations in any substantial way, the complaint would be vulnerable to attack as failing to “contain a statement of the facts constituting the cause of action.”  General Statutes § 52–91..  FN3. Count two alleges this fact “[o]n information and belief.”   That qualifying phrase sometimes appears in affidavits as, essentially, a disclaimer of personal knowledge.   The court disregards that phrase as surplusage for two related reasons.   First, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   Second, if the court construed “on information and belief” as diluting the plaintiff's factual allegations in any substantial way, the complaint would be vulnerable to attack as failing to “contain a statement of the facts constituting the cause of action.”  General Statutes § 52–91.

FN4. The allegation in count three that the defendant acted in bad faith in terminating the plaintiff is a conclusion of law.   Count three alleges that the defendant “induced [the plaintiff] to enter into an agreement.”   Construing the complaint toward its sufficiency, the court assumes this allegation refers to the previously alleged agreement, not some different agreement..  FN4. The allegation in count three that the defendant acted in bad faith in terminating the plaintiff is a conclusion of law.   Count three alleges that the defendant “induced [the plaintiff] to enter into an agreement.”   Construing the complaint toward its sufficiency, the court assumes this allegation refers to the previously alleged agreement, not some different agreement.

FN5. The defendant's memorandum correctly states that the Supreme Court has recognized that employers can protect themselves from such implied contracts by either “(1) eschewing language that could reasonably be construed as a basis for a contractual promise;  and/or (2) including appropriate disclaimers of the intention to contract ․” (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).   The defendant cites to numerous disclaimers in its employee handbook;  however this handbook is evidence outside of the factual allegations made in the complaint and cannot be considered on a motion to strike.  Faulkner v. United Technologies Corp., supra, 240 Conn. 580 (“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint”).   Furthermore, the defendant's argument that count two should be stricken as duplicative of count one is an argument more properly raised in a request to revise.   Practice Book § 10–35(2)..  FN5. The defendant's memorandum correctly states that the Supreme Court has recognized that employers can protect themselves from such implied contracts by either “(1) eschewing language that could reasonably be construed as a basis for a contractual promise;  and/or (2) including appropriate disclaimers of the intention to contract ․” (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).   The defendant cites to numerous disclaimers in its employee handbook;  however this handbook is evidence outside of the factual allegations made in the complaint and cannot be considered on a motion to strike.  Faulkner v. United Technologies Corp., supra, 240 Conn. 580 (“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint”).   Furthermore, the defendant's argument that count two should be stricken as duplicative of count one is an argument more properly raised in a request to revise.   Practice Book § 10–35(2).

Cole–Chu, Leeland J., J.