Opinion
No. CV 06 5000378 S
May 16, 2007
MEMORANDUM OF DECISION RE MOTION #107 MOTION TO STRIKE
Facts
For times pertinent hereto, the defendant Household International, Incorporated was a Delaware Corporation that was authorized to do business in the State of Connecticut. The defendant HSBC is the successor corporation to Household International. The defendant Robert Kuhn was employed by Household and its successor corporation.
The defendant Household recruited the plaintiff Crosby for employment with Household and its successor corporation and was given increasing authority until her final position as District Sales Manager.
On or about June 10, 2004, after work and on their own time, Crosby and some of her co-workers went to the Tuxedo Bar in Danbury Connecticut. The bar was conducting a "Best Body Contest" and Crosby entered the contest. The individuals who accompanied her to the bar, including the defendant Kuhn did not object to the plaintiff's participation in the event. The plaintiff alleges that the defendant Kuhn later made false and defamatory statements about her to third persons and to the corporate defendants about her behavior during the event. The plaintiff further alleges that on several subsequent occasions, the defendant Kuhn made comments concerning her behavior that were of a sexual harassing nature. These comments took place at and off of the site of the workplace.
On July 29, 2004, the corporate defendants terminated Crosby claiming that she had violated their Positive Workplace Environment policy. The plaintiff alleges that her participation in the contest did not violate the defendants' workplace policy and that similarly situated males who engaged in conduct that blatantly violated said policy were not terminated or otherwise disciplined by the defendants.
The plaintiff's complaint specifically alleges (1) a violation of General Statutes § 46a-60(a)(1); (2) negligent misrepresentation; (3) intentional infliction of emotional distress; (4) negligent investigation into the plaintiff's conduct by the corporate defendants; (5) negligent infliction of emotional distress; (6) violation of the Connecticut wage and hour laws; (7) breach of contract; (8) negligent misrepresentation as to the plaintiff's entitlement to a bonus; (9) intentional misrepresentation as to the plaintiff's entitlement to a bonus; (10) theft by conversion against the corporate defendants; (11) promissory estoppel against Household International; (12) breach of an implied covenant of good faith and fair dealing against the corporate defendants as a result of failing to pay a performance bonus; (13) tortious interference with a contract against Kuhn; (14-16) three counts of defamation against all defendants; and (17) a wrongful dissemination of personnel file information under General Statutes § 31-128f.
On February 21, 2006, the defendants filed the original motion to strike with a supporting memorandum regarding counts two through five and counts nine through seventeen.
On April 27, 2006, the plaintiff filed a memorandum in opposition to the motion to strike.
On August 9, 2006, the defendants filed an amended motion to strike and supporting memorandum. The plaintiff has objected to said pleading in her sur-reply memorandum.
Legal Standards
Before reaching the substance of the defendants' motion to strike, the court will address the plaintiff's objection to the amended motion to strike.
In her original memorandum in opposition to the original motion to strike, the plaintiff argued that the defendants' original motion to strike was defective because it failed to identify the specific grounds by which the defendant alleged the plaintiff's complaint was deficient. The defendants' amended motion to strike addressed this procedural defect and the plaintiff has objected to the defendants' amended motion. The plaintiff argues that the amended motion comes after an extended amount of time (approximately fifteen weeks), which prejudiced the plaintiff by delaying the resolution of the overall matter.
Practice Book § 10-41 states, in relevant part, that a "motion to strike raising any of the claims of legal insufficiency enumerated in the [Practice Book] shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."
The law regarding the admission of amendments "is well settled. While [the] courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255, 905 A.2d 1165 (2006).
The defendants' amended motion to strike includes the required language regarding specific deficiencies to the plaintiff's complaint. The plaintiff argues that she is prejudiced by the delay to the proceedings caused by the lapse of time between the filing of her opposition memorandum on April 27, 2006, and the filing of the defendants' amended motion to strike on August 9, 2006. The plaintiff has not explained or offered any proof that persuades this court that she was prejudiced by the delay. As a result, her objection to the defendants' amended motion to strike is overruled, and the court will consider the substance of the amended motion to strike in place of the original motion to strike.
"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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "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.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
Discussion
The defendant argues that Counts Two and Eight of the plaintiff's complaint are deficient in that they fail to allege all of the elements of negligent misrepresentation. Specifically, the defendants contend that the representations alleged by the plaintiff are not false and that the plaintiff has not alleged justifiable reliance on either statement. The alleged misrepresentations in counts two and eight are in regards to the corporate defendants' positive workplace environment policy and their bonus policy, respectively.
The plaintiff argues that her complaint alleges that the corporate defendants made false representations concerning the policies in such a way that the plaintiff was justified in believing that her participation in the beauty contest would not result in her termination and that her decision to work hard to receive the bonus would result in the receipt of that bonus.
The Connecticut Supreme Court "has long recognized liability for negligent misrepresentation. [The Court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts [1979]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73, 873 A.2d 929 (2005).
In the present case, the plaintiff has alleged that the performance bonus policy at issue was false, but she does not state what representations were made to her by the corporate defendants. She has not alleged that the positive workplace environment policy was false at all. In fact, she alleges that it is "unclear and/or ambiguous." Her argument that the representation was false because she was terminated and did not receive the bonus is legally insufficient and the motion to strike is granted as to this count.
As to Count Three
Count Three alleges intentional infliction of emotional distress and is not an issue in the motion to strike.
As to Count Four
The plaintiff alleges in Count Four of her complaint that the corporate defendants negligently investigated whether the plaintiff's conduct during the beauty contest violated the positive workplace environment policy. The defendants argue that negligent investigation is not a recognized cause of action in Connecticut in situations involving at-will employees. The plaintiff contends that the defendants have not indicated any part of the plaintiff's complaint that suggests that she is an at-will employee and also that a duty to conduct a proper investigation arose from the corporate defendants' voluntary decision to conduct an investigation.
"Connecticut law provides that an employment contract is presumed to be terminable at will." Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn.App. 85, 94, 654 A.2d 1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995); Berte v. Haddam Hills Academy, Inc., Superior court, complex litigation docket at Middlesex, Docket No. X04 CV 02 0097138 (December 16, 2005, Beach, J.) ( 40 Conn. L. Rptr. 565). An employer may terminate an at-will employee with or without good cause and, therefore, owes no duty to investigate with care charges against such an employee. See Guarco v. Hartford Gynecological Center, Superior Court, judicial district of Tolland, Docket No. CV 98 68084 (October 10, 2000, Sferrazza, J.) [ 28 Conn. L. Rptr. 352] citing Morris v. Hartford Courant Co., supra, 200 Conn. 680; Daley v. Aetna Life Casualty Ins. Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0533693 (August 3, 1994, Sheldon, J.), aff'd, 249 Conn. 766, 734 A.2d 112 (1999) (holding that "an employer has the absolute right to run his business as he sees fit").
In the present case, the plaintiff has made no allegations that her employment with Household International was anything other than at will. Thus, her employers were free to terminate her at their own discretion, with or without an investigation.
The plaintiff cites Rood v. Canteen Corp., Superior Court, judicial district of Rockville, Docket No. CV 95 0058263 (September 19, 1996, Potter, J.) [ 17 Conn. L. Rptr. 609], for the proposition that an at-will employer may have a duty to investigate before terminating an employee in certain situations. However, that case is distinguishable from the present one, in that the plaintiff in Rood alleged that the defendants had failed to abide by their employee handbook, which allegedly included a requirement that an employee was entitled to a hearing and the right to an appeal before termination. Id. In the present case, the plaintiff has made no allegation that the defendants agreed to abide by any kind of an employee handbook which might have granted her a hearing or an investigation. She states that an investigation occurred to determine whether she had violated the defendants' positive workplace environment policy, but she does not allege that the policy imposed a duty to investigate upon the defendants. In fact, she alleges the opposite, that is, that the defendants voluntarily decided to undergo the investigation.
The plaintiff also cites Shackles v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. CV 03 565313 (December 1, 2003, Hurley, J.T.R.), to establish the existence of a common-law cause of action in tort for the discharge of an at-will employee. That case is also distinguishable from the facts of the present case. In Shackles, the court determined that a tort action might exist "if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." Id. The plaintiff in the present case has made no such policy argument.
The motion to strike Count Four is granted.
As to Counts Five, Six and Seven
These counts are not at issue in the motion to strike.
As to Count Eight
Count Eight is addressed above.
As to Count Nine
Count Nine of the complaint sounds in the tort of intentional misrepresentation. The plaintiff specifically claims that the defendants gave her false information concerning her eligibility for a performance bonus and that as a result, she worked for the company "in an extraordinary manner in order to meet the criteria for receipt of the bonus and/or maximize its amount." The defendants argue that the plaintiff has failed to identify any allegedly false statements. The plaintiff responded, stating that her allegation that the corporate defendants "intentionally disseminated . . . false information concerning her eligibility and/or entitlement to her performance bonus" was sufficient to fulfill the pleading requirements for a cause of action for intentional misrepresentation.
"A cause of action for intentional misrepresentation is essentially a claim of fraud." Martinez v. Zovich, 87 Conn.App. 766, 778, 867 A.2d 149, cert. denied, 274 Conn. 908, 879 A.2d 1202 (2005). "The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 709, 905 A.2d 1236 (2006). In the present case, the plaintiff has alleged that the corporate defendants "intentionally disseminated to Crosby false information concerning her eligibility and/or entitlement to her performance bonus." The plaintiff fails to allege with specificity what information was represented to her. Although the defendants assert that the facts alleged by the plaintiff concerning this issue are insufficient, upon completing its review, this court finds that while the allegations lack specificity, the claim is not legally insufficient. This type of issue is more appropriately addressed by the filing of a Request to Revise.
In light of the forgoing, the defendants' motion to strike Count Nine of the complaint is denied.
As to Count Ten
In Count Ten, the plaintiff claims that by not paying her a bonus the corporate defendants committed statutory theft by conversion under § 52-564 of the Connecticut General Statutes. The defendants argue that this is essentially a claim for breach of contract, which was pleaded in another count. They further argue that the plaintiff cannot bring her contract action as a tort claim for conversion. They contend that to show statutory theft, the plaintiff must allege an element of intent, which she has not done so in her complaint. The plaintiff contends that Connecticut law permits her to argue legal theories in the alternative, which should permit her to bring both a contract and a tort claim in the same case based on the same underlying allegations.
General Statutes § 52-564 provides that "[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third party, he wrongfully takes, obtains or [withholds] such property from an owner. Conversion can be distinguished from statutory theft as established by § 53a-119 C.G.S. in two ways. First, statutory theft requires the intent to deprive another of his property; Second conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).
In the present case, the plaintiff has not alleged facts sufficient to support a claim for statutory theft under § 52-564 C.G.S. Specifically, she has not alleged that the corporate defendants intentionally deprived her of her property. The plaintiff contends that the element of intent was alleged by implication when she pleaded that the corporate defendants "wrongly withheld property; "However, this argument is not persuasive. While the court is required to take as admitted all facts that are necessarily implied from the allegations, the requisite intent is not necessarily implied in the facts alleged by the plaintiff. See Asylum Hill Problem Solving Revitalization Assn. v. King, supra, 277 Conn. 246. That property might have been wrongfully withheld does not require the defendants to have intentionally withheld said property. Such a wrongful withholding could possibly have been accidental or even entirely unknowing.
For the foregoing reasons the defendant's motion to strike Count Ten is granted.
As to Count Eleven
The defendants have moved to strike count eleven, which alleges that the defendants should be estopped from denying that they owe the plaintiff an unpaid performance bonus. The defendants again argue that this is an attempt to raise a breach of contract claim as a tort claim, and that a cause of action for promissory estoppel cannot be pursued where there is a contract covering the same subject matter. Moreover, they contend that even if the court were to consider the substance of a promissory estoppel claim, the plaintiff's claim should be stricken because she did not allege that a clear or definite promise was made in regards to her receiving a bonus.
"Promissory estoppel is asserted when there is an absence of consideration to support a contract . . . [The court has] permitted a jury to consider in the alternative claims for breach of contract and for promissory estoppel when there is an issue of whether the agreement may be too indefinite to allow for contract formation." Glazer v. Dress Barn, Inc., supra 274 Conn. 88-89. However, "promissory estoppel is not a proper cause of action when . . . there is a valid contract governing the same subject." Hackett v. Marquardt Roche/Meditz Hackett, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 99 0166881 (September 17, 2002, Schuman, J.).
In the present case, the plaintiff has alleged breach of contract and promissory estoppel in separate counts regarding the corporate defendants' failure to pay her a bonus. Only the breach of contract claim alleges the existence of a contract in regards to the bonus. The defendants have moved only to strike the count for promissory estoppel so the court need not address the allegations made in the breach of contract count as to the existence of a contract. Thus, in the absence of a finding that there is a valid contract governing the same subject matter, it is proper to consider the substance of the promissory estoppel claim.
"A fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003). "The prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Emphasis in original; internal quotation marks omitted.) Saye v. Howe, 92 Conn.App. 638, 648, 886 A.2d 1239 (2005). Additionally, "the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future." (Internal quotation marks omitted.) Id. "The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire, or opinion." (Internal quotation marks omitted.) Id. Whether a given representation rises to that level is a question of fact to be determined in light of the circumstances under which the representation was made. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995).
The plaintiff's allegations fall short of the requirements to maintain an action for promissory estoppel. She has alleged that the corporate defendants "made promissory representations to [her] that if she met certain performance criteria that she would receive a performance bonus." The plaintiff does not specifically allege what the representations were or what the criteria was for earning the bonus. She claims that she was employed with the corporate defendants for nearly ten years, and that she continued her employment in reliance upon these representations, even though she was under no obligation to stay at that job. To make a statement that she has devoted a substantial portion of her life to a company based on a promise of a performance bonus, the plaintiff would have to plead with significantly more clarity and detail as to the nature of that promise.
The motion to strike Count Eleven is granted.
As to Count Twelve
Count twelve alleges a breach of an implied covenant of good faith and fair dealing, and also concerns the plaintiff's allegations that the corporate defendants failed to pay her a performance bonus. The defendants claim that the plaintiff failed to allege that the defendants acted in bad faith in not paying her a bonus and also that she failed to allege sufficient damages. The plaintiff states that an allegation of bad faith is not required, and that even if it is, such a claim can be implied from her allegation of a breach of the implied covenant of good faith and fair dealing. She further argues that she sufficiently pleaded damages.
To recover for breach of the duty of good faith and fair dealing, the plaintiff [must] " allege and prove that the defendant[s] engaged in conduct design[ed] to mislead or to deceive . . . or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . ." (Emphasis in original; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 544-45, 792 A.2d 132 (2002).
"Bad faith in general implies . . . A neglect or refusal to fulfill some duty or some 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." MacMillan v. Higgins, 76 Conn.App. 261, 270, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).
The plaintiff's claim for breach of the implied covenant of good faith and fair dealing is insufficient. The mere allegation that the corporate defendants breached the implied covenant of good faith and fair dealing by failing to pay the plaintiff a bonus is not adequate to meet the requirement that the defendants acted in bad faith.
The motion to strike Count Twelve is granted.
As to Count Thirteen
As to Count Thirteen, alleging tortious interference with the plaintiff's employment contract, the defendants argue that the facts alleged by the plaintiff do not rise to the level required to sustain a claim for tortious interference. The plaintiff contends that the allegations in her complaint properly fulfill all of the requirements for this claim.
"[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." (Internal quotation marks omitted.) Lawton v. Weiner, 91 Conn.App. 698, 706, 882 A.2d 151 (2005). It is "clear that not every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Citations omitted; internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). "In the terminology of the Restatement [(Second) of Torts], the test is whether the actor's behavior is improper." (Internal quotation marks omitted.) Id., 261. "The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999) (quoting 4 Restatement (Second), Torts § 766, comment (s) (1979)).
The plaintiff has alleged that she had a business relationship with the corporate defendants and that Kuhn "tortiously interfered with Crosby's contract and/or business expectancy." She alleges that Kuhn conveyed false information regarding her conduct to the corporate defendants out of animosity towards her. The plaintiff claims that Kuhn's actions caused her to be terminated and that she suffered economic and noneconomic damages as a result. She claims that Kuhn was acting in his own interest and not for the legitimate interests of the corporate defendants. At this stage of the pleadings such allegations are sufficient to support a claim for tortious interference, and the motion to strike Count Thirteen is therefore denied.
As to Counts Fourteen Fifteen and Sixteen
The defendants next argue that counts Fourteen, Fifteen, and Sixteen fail to sufficiently allege claims for defamation and that instead, they essentially allege defamation by compelled self-publication. Alternatively, the defendants contend that even if the claims are judged to be regular claims for defamation, they should be stricken because they do not allege the time or place at which the statements were allegedly made. The plaintiff argues that the claims are sufficiently detailed to survive a motion to strike.
Compelled self-publication is a doctrine that extends the scope of a defendant's liability for defamation. See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 223, 837 A.2d 759 (2004). The doctrine applies in situations in which a defamed former employee publishes the defamatory statement to a prospective employer. Id., 216. The reasoning for extending a defendant's liability in this way is because it is reasonably foreseeable that a prospective employer would ask why the former employee left his or her former job, and that a prospective employee would answer such a question honestly. Id., 218. This doctrine is not recognized in Connecticut, mostly because it would have "a chilling effect on communication in the workplace" and would "discourage plaintiffs from mitigating damages by providing them with too much control over the cause of action." Id., 219, 222-23. As the plaintiff is not alleging that she was forced to tell her subsequent employers about the allegedly defamatory statements, this doctrine is inapplicable here.
"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 850, 863 A.2d 735 (2004). "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 person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2005). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 217.
When claiming defamation, "[c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made." Forgione v. Bette, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001099 (June 2, 2005, Gallagher, J.). "A complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom." Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003). See also 2500 SS Limited Partnership v. White, Superior Court, judicial district of Fairfield, Docket No. CV 95 0328934 (August 19, 1996, Levin, J.) ( 17 Conn. L. Rptr. 449) (granting a motion for nonsuit, stating that "[a]lthough the complaint alleges the substance of the allegedly defamatory remarks . . . the complaint fails to specifically allege when, where and to whom each remark was allegedly made").
In the present case, the plaintiff alleges in count fourteen that Kuhn "orally told Will Mello that Crosby had unclipped her bra and exposed her chest to the entire bar at Tuxedo's while being on a stage at the bar." In count fifteen, the plaintiff alleges that Kuhn "orally told one or more employees of the corporate defendants that Crosby, while customers were present in a branch office, changed her clothing in that branch office of Household into fish-net stockings and an extremely revealing top, and then proceeded to lean over the manager's desk such that everyone in the branch could see everything." In count sixteen, the plaintiff alleges that Kuhn "orally told one or more employees of the corporate defendants that Crosby followed him to a pool hall, where he was playing in a league, and proceeded to talk about the `hot body she used to have,' despite him trying to stop her."
The plaintiff alleges in all three counts sounding in defamation that the corporate defendants repeated these statements by placing them in their personnel file where it was seen and will continue to be seen by third parties. The plaintiff does not name any of these third parties, nor does she indicate when they had been made aware of the statements.
The plaintiff also claims, in all three defamation counts, that Kuhn's statements were later heard by her subordinates at a subsequent place of business. She states that this interfered with her working relationship at the new employer, which ultimately forced her to resign. At no point does the plaintiff allege who made or heard such republications of these statements nor does she allege when, where, or how such a republication occurred.
These allegations fall short of the level of specificity required to maintain a cause of action for defamation. Thus the defendants' motion to strike the plaintiff's complaint, as to counts Fourteen, Fifteen, and Sixteen is granted.
As to Count Seventeen
In count Seventeen, the plaintiff alleges that the corporate defendants violated General Statutes § 31-128f. Specifically, she claims that, without her authorization, the corporate defendants communicated information within her personnel file to one or more third parties. The defendants argue that there is no private cause of action under that statute. The plaintiff contends that she is alleging that the defendants are negligent per se in their violation of the Connecticut Personnel File Act, as she is within the class of persons protected by that act. The defendants counter this argument by claiming that the plaintiff has not identified any harm as a result of the alleged violation of the Personnel File Act or that such harm would be of the type that the statute was intended to prevent. The plaintiff also argues that the violation of § 31-128f gives rise to a cause of action for invasion of privacy by false light.
General Statutes § 31-128f provides, in relevant part, that "[n]o individually identifiable information contained in the personnel file . . . of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee . . ."
Recent case law establishes that there is no private cause of action under § 31-128f. Siena v. Aetna, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 0832550 (August 29, 2006, Wagner, J.T.R.); Gorra v. Seacorp, Inc., Superior Court, judicial district of New London, Docket No. 550384 (August 13, 2002, Hurley, J.T.R.); Duncan v. Junior Achievement, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 96 0335878 (January 27, 2000, Skolnick, J.).
The plaintiff has argued that at least one court recognized that a private cause of action for wrongful discharge can exist when an employee is fired for exercising rights under the Personnel File Act. In Campbell v. Windham Community Memorial Hosp., Inc., 389 F.Sup.2d 370, 381 (D.Conn. 2005), the court permitted a cause of action alleging a violation of public policy because it found that the plaintiff properly alleged that her required resignation was connected to her written response to her job evaluation, in violation of § 31-128e. That case is distinguishable from the present one. In Campbell, the plaintiff was not claiming a private cause of action under § 31-128e, but a cause of action for violating public policy regarding employee evaluations. Id., 380. In the present case, the plaintiff is directly claiming a cause of action for alleged violations of § 31-128f. This court agrees with the recent superior court decisions finding that there is no private cause of action under § 31-128f.
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 860-61 n. 16, 905 A.2d 70 (2006).
It is well settled that, under "general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action . . . [I]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent . . ." (Citations omitted, internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 375-76, 665 A.2d 1341 (1995).
The plaintiff argues that it was "intended that [§ ]31-128f would protect employees and former employees from having personnel file related information disseminated to third parties without their consent." The plaintiff has not alleged with any degree of specificity who released her personnel files without her consent, nor has she alleged who received those files, or even when such a transfer occurred. The plaintiff has not sufficiently alleged a claim for negligence per se.
There are four categories of invasion of privacy: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonable places the other in a false light before the public." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 128, 448 A.2d 1317 (1982). In order to establish invasion of privacy by false light, the plaintiff "is required to show that (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Honon v. Dumyan, 52 Conn.App. 123, 132-33, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).
The plaintiff claims that the corporate defendants invaded her legitimate expectation of privacy in the contents of her employment information at by "communicating to one or more third parties . . . information contained within Crosby's personnel file, including information concerning the alleged reason for Crosby's termination from employment." The plaintiff does not allege that the defendants knew of or acted recklessly in regards to the potential false light in which she would be placed as a result of the alleged disclosures. Also, she does not state when this violation of her privacy occurred, nor does she state who disclosed or received this information. Thus, the allegations are insufficient, and the court may not go on to decide whether the false light in which the plaintiff claims to have been placed should be considered highly offensive for purposes of this claim. All three of the plaintiff's arguments fail to establish a cause of action, therefore the defendants' motion to strike as to Count Seventeen is granted.
CT Page 7109
Conclusion
For the aforementioned reasons the court denies the motion to strike as to counts Nine and Thirteen and grants the motion as to counts Two, Four, Eight, Ten, Eleven, Twelve, Fourteen, Fifteen, Sixteen, and Seventeen.