Katherine M. McKibben v. Odd Fellows Healthcare, Inc. (2015)

ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Citation omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Citations omitted;  internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Citations omitted;  internal quotation marks omitted.)  Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

RULING RE DEFENDANT'S MOTION TO STRIKE

This case is an action by the plaintiff, Katherine M. McKibben, seeking money damages against her former employer, the defendant Odd Fellows Healthcare, Inc., stemming from her termination from employment on November 6, 2009.  The operative Third Revised Complaint is in four counts:  Count One is for common-law wrongful termination in violation of public policy;  Count Two is for defamation (libel and slander);  Count Three is for breach of implied contract;  and Count Four is for violation of General Statutes §§ 31–51, 31–51m and 31–51q.  The defendant moves to strike all counts based on five grounds.  For the following reasons, the motion is granted as to Count One. It is denied as to Counts Two, Three and Four.

I

A motion to strike is used “[w]henever any party wishes to contest ․ the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defenses contained therein ․” Practice Book § 10–39(a)(5).  “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 omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “In

“[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Id., 252.  Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citation omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

II

The plaintiff is self-represented.  The essential, pertinent facts, drawn from the factual allegations in the operative Third Revised Complaint and from the undisputed litigation history, are as follows.  The plaintiff worked as a certified nursing assistant at the Fairview Nursing Home in Groton, CT, which is owned by the defendant, Odd Fellows, until her employment was terminated on November 6, 2009.  During her employment, the plaintiff worked with a certain other nursing assistant.  The plaintiff alleged that she witnessed that other nursing assistant abuse elderly residents.  The plaintiff delayed reporting the abuse to Fairview for two weeks.  Eventually, she spoke with the Director of Nursing on October 30, 2009.

On November 3, 2009, Fairview discharged the other nursing assistant because of the abuse, and suspended the plaintiff for four days for not reporting the abuse promptly.  Fairview reported the abuse to the state Department of Health.

Subsequently, the other nursing assistant reported that the plaintiff has been sexually harassing her.  After an investigation, and after a meeting held on November 6, 2009, the defendant terminated the plaintiff's employment for sexual harassment.

Since then, she has been unable to obtain employment at nursing homes because the defendant made statements to third parties falsely accusing the plaintiff of being an abuser.

Although such matters are not pled in the complaint, the defendant asserts, without dispute from the plaintiff, that the plaintiff filed a complaint concerning her termination with the state Commission on Human Rights and Opportunities.  That complaint was dismissed on January 22, 2013.  She filed a complaint concerning her termination with the federal Equal Employment Opportunity Commission.  That complaint was dismissed on August 22, 2013.  She filed an action in the United States District Court for the District of Connecticut concerning her termination.  On July 25, 2014, the District Court dismissed her claims under Title VII with prejudice, and dismissed her state law claims without prejudice to file them in another court.  Plaintiff was allowed until August 7, 2014, to amend her complaint.  The plaintiff filed an amended complaint on August 6, 2014, but the case was dismissed, again, on October 1, 2014.

The above titled action was commenced on November 25, 2014.

III

The issues are discussed seriatim:

A

First, the defendant moves to strike Counts One, Two and Four on the grounds that those claims are barred by the respective statutes of limitations.  The motion is denied on this ground.

Ordinarily, a statute of limitations defense must be specially pled.  Practice Book § 10–50.  Alfred Chiulli & Sons v. Hanover Ins. Co., 294 Conn. 689, 694, 987 A.2d 343 (2010).  The issue may be determined on a motion to strike if it is clear that all facts necessary to a determination of the issues are apparent on the record.  Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 172, 127 A.2d 814 (1956);  Abate v. Barkers of Waterbury, Inc., 27 Conn.Sup. 46, 48, 229 A.2d 366 (1967).  A motion to strike can be used to test the statute of limitations only when the complaint anticipated that defense.  Bombard v. Girard, 6 Conn.Cir.Ct. 596, 597, 281 A.2d 249 (1971);  Guaranty Bank & Trust Co. v. Kamisky, 33 Conn.Sup. 512, 514–15, 356 A.2d 909 (1976).  “The statute of limitations should not be passed upon by [a motion to strike] the complaint unless matters in avoidance of it have been voluntarily inserted in the complaint.”  (Citations omitted.)  National Broadcasting Co. v. Rose, 24 Conn. Sup 459, 460, 194 A.2d 448 (1963).  All the facts necessary to a determination of the issues are not apparent on the record, so the issue cannot be decided on a motion to strike in the instant case.  Moreover, the litigation history volunteered by the defendant suggests the plaintiff's complaint was timely under General Statutes § 52–592.  See Daoust v. McWilliams, 49 Conn.App. 715, 716 A.2d 922 (1998).  The defendant does not address that point.  Accordingly, the motion must be denied on this ground.

B

Second, the defendant argues that Count One of the plaintiff's complaint, purporting to allege a cause of action for common-law wrongful termination in violation of public policy—i.e., retaliation for reporting elder abuse—should be stricken for failure to allege all necessary elements of the cause of action.  The motion on this ground is granted.

In order to state a cause of action for common-law wrongful termination for violation of public policy, a plaintiff must allege facts showing, inter alia, (1) that the alleged conduct contravenes an important public policy;  and (2) that the plaintiff is “otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.”  (Emphasis in original;  citation omitted;  internal quotation marks omitted.)  Burnham v. Karl & Gelb, 252 Conn. 153, 159–60, 745 A.2d 178 (2000).  In the instant case, the defendant correctly observes that the plaintiff has failed to allege facts showing the absence of a remedy.  To the contrary, the plaintiff has alleged a variety of statutory remedies on which she may or may not be successful in Count Four. See also General Statutes § 17b–451(e).  Those remedies preclude her common-law claim.  Burnham v. Karl & Gelb, supra, 252 Conn. 162.  Therefore, the motion to strike Count One is granted.

C

Third, the defendant argues that the plaintiff's Count Two, for defamation, should be stricken because the statements made by the defendant's agents were protected by qualified privilege or were published by the plaintiff herself.  To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third party;  (3) the defamatory statement was published to a third party;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Citations omitted;  internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627, 969 A.2d 736 (2009).  The allegations in the plaintiff's complaint suffice to state a claim.  Defendant's arguments involve defenses, not elements of the plaintiff's cause of action, and they involve issues of fact.  Such factual questions are to be determined by the fact finder and, therefore, are not at issue when the trial court considers a motion to strike.  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).  Therefore, the motion to strike Count Two is denied.

D

Fourth, the defendant argues that the plaintiff's Count Three fails to sufficiently allege a cause of action for breach of implied contract.  The court does not agree.

As with a breach of express contract, the basic elements of a cause of action for breach of implied contract are “formation, performance, breach and damages.”  Bross v. Hillside Acres, Inc., 92 Conn.App. 733, 782, 887 A.2d 420 (2006);  Gianetti v. Gerardi, 52 Conn.Sup. 207, 213, 44 A.3d 911 (2010), aff'd, 133 Conn.App. 858, 58 A.3d 1211 (2012).  In the instant case, the plaintiff alleges that the defendant breached its implied contract with her by not following its own procedures in the employee handbook pertinent to the events.  In particular, she alleges that it failed to comply with procedures requiring sexual harassment complaints to be made within ten days of the incident, it failed to inform her of the allegations of sexual harassment against her or give her the opportunity to file a written response within the time frames set forth in the handbook.  A personnel manual can be the source of an enforceable promise in an appropriate case.  See Carbone v. Atlantic Richfield Co., 204 Conn. 460, 471, 528 A.2d 1137 (1987).  Thus, the plaintiff has alleged a cause of action.

The defendant argues that the handbook merely describes its procedures for investigating complaints, and does not contain language that is a contractual promise.  Those points involve defenses, not elements of the plaintiff's cause of action, and they involve issues of fact.  Such factual questions are to be determined by the fact finder and, therefore, are not at issue when the trial court considers a motion to strike.  Commissioner of Labor v. C.J.M. Services, Inc., supra.  Therefore, the motion to strike Count Three is denied.

E

Finally, the defendant argues that the allegations in plaintiff's Count Four, claiming violations General Statutes §§ 31–51, 31–51m and 31–51q, fail to state claims with legal sufficiency.¹

As to General Statutes § 31–51, the defendant argues that this statute, which prohibits employers from “blacklisting” employees from securing future employment, and which provides for fines for such unfair employment practices, does not give rise to any private right of action.  Therefore, this count should be stricken, it argues.  The court agrees.  There is no private right of action for a violation of General Statutes § 31–51.  Englander v. Huntington United Methodist Church, Superior Court, judicial district of Ansonia–Milford, Doc. No. CV 06–5002 174 (August 17, 2007, Robinson, J.).  Moreover, to the extent plaintiff alleges that she was “blackballed” (Count One, para. 10), the facts alleged show no such effort by the defendant.

General Statutes § 31–51m does provide for a private right of action for any employee who is discharged, disciplined or otherwise penalized because she “reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body.”  (Emphasis added.)  Defendant argues that the plaintiff's complaint fails to state a claim under this statute because it fails to allege that plaintiff reported the subject elder abuse to any public body;  rather, it was allegedly reported to Fairview Nursing Home, a private business.  The court agrees.  Plaintiff does not allege facts showing that she was discharged, disciplined or otherwise penalized by the defendant for reporting anything to a public body.  Therefore, the allegation is legally insufficient.  Burnham v. Karl & Gelb, supra, 252 Conn. 161.  She does allege that she called the state whistleblower hotline, a public agency, and explained everything that happened at the nursing home, but that occurred after she was terminated.  Count Four, para. 10.

General Statutes § 31–51q also provides for a private right of action for any employee subjected to discipline or discharge for exercising her federal or state free speech rights, subject to certain limitations.  Defendant argues that plaintiff does not allege “that she was [subjected to discipline or discharge] for the exercise of any constitution rights.”  The court does not agree.  The defendant alleged, inter alia, that she was terminated in retaliation for reporting elder abuse by a co-worker.  Count Four, para. 8. The court is compelled to read the complaint broadly and realistically, rather than narrowly and technically.  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  So reading the complaint, the court finds that the facts alleged that she was terminated for her speech.  The federal and state constitutions protect certain speech.  See U.S. Const., amend.  I;  Conn. Const., art.  I, §§ 3, 4 and 14.  Accordingly, the court finds that she did allege a violation of her constitutional rights.  Whether that speech qualifies for protection involves issues of fact.  Such factual questions are to be determined by the fact finder and, therefore, are not at issue when the trial court considers a motion to strike.  Commissioner of Labor v. C.J.M. Services, Inc., supra.

Having concluded that the defendant failed to prove all of its challenges to the legal sufficiency of all of the claims in Count Four, the motion to strike Count Four must be denied because “․ a motion to strike addressed to the entire count fails if it does not reach all of the causes pleaded.”  1 Stephenson's Connecticut Civil Procedure (3rd Ed., 1997) § 72(f), citing Wachtel v. Rosol, 159 Conn. 496, 499, 271 A.2d 84 (1970).  Therefore, the motion to strike Count Four is denied.

IV

For all of the foregoing reasons, the defendant's motion to strike is granted as to Count One. It is denied as to Counts Two, Three and Four.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Plaintiff, in her objection to the defendant's motion to strike, states that she is seeking remedies under General Statutes § 19a–532.  No such claim appears in her Third Revised Complaint and, therefore, that claim will not be considered..  FN1. Plaintiff, in her objection to the defendant's motion to strike, states that she is seeking remedies under General Statutes § 19a–532.  No such claim appears in her Third Revised Complaint and, therefore, that claim will not be considered.

Vacchelli, Robert F., J.