Opinion
No. CV03-4007847S
January 31, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, #148 AND SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT, #155
FACTS
This action, in which the plaintiff seeks damages and other relief based on allegations of, inter alia, employment discrimination and defamation, has a long and complex procedural history. The plaintiff, Louis Daconto, commenced this action on January 9, 2003, by service of process on the defendants, the housing authority of the town of Trumbull (housing authority), Robert Ward, Rowena Paumi and Daniel Jocis. On February 24, 2003, the defendants filed a request to revise the complaint, and on July 9, 2003, apparently in response to the defendants' request, the plaintiff filed a "first amended complaint" setting forth ten counts.
Virginia Stefanko is named as an additional defendant. Stefanko has filed two separate motions for summary judgment, the first of which (#116) was granted by the court, Dewey, J., on May 18, 2005, and the second of which was argued at the same time as the present motion, and is addressed in a separate memorandum. In the present memorandum, the word defendants refers to the housing authority, Ward, Paumi and Jocis only.
The town of Trumbull also originally was named as a defendant. The town filed a motion for summary judgment (#162) on February 13, 2007. On June 29, 2007, the plaintiff filed a withdrawal of the action against the town. Accordingly, the town is no longer a party and its motion for summary judgment is moot.
The parties also occasionally have referred to Jeffrey Holt as a defendant. Nevertheless, Holt's name does not appear on the writ of summons form, the marshal's return does not reflect service of process on him, and there is no appearance on his behalf on file. Accordingly, Holt is not a party to this action.
On October 15, 2003, the defendants filed a motion to strike counts one, two, four, seven and ten of the first amended complaint. On January 30, 2004, the court, Doherty, J., denied the motion to strike as to counts one and two and granted the motion to strike as to counts four, seven and ten.
On December 20, 2004, the plaintiff filed a request for leave to amend the complaint, with the proposed eleven-count second amended complaint attached. On January 6, 2005, the defendants filed an objection to the request for leave to amend. On August 15, 2005, before the court had ruled on their objection, the defendants filed a motion for summary judgment (#148) on the remaining seven counts of the first amended complaint. The court, Arnold, J., overruled the defendants' objection to the plaintiff's request for leave to amend the complaint on September 26, 2005, and as a result, the second amended complaint became the operative complaint at that time. On December 28, 2005, the defendants filed a supplemental motion for summary judgment (#155) on all eleven counts of the second amended complaint. On March 26, 2007, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment. The court heard oral argument on the original motion for summary judgment and the supplemental motion on October 9, 2007.
Virginia Stefanko; see footnote 1 of this memorandum; filed a separate objection to the plaintiff's request for leave to amend the complaint on December 22, 2004. The court, Dewey, J., sustained her objection on January 25, 2005. Thus, the first amended complaint is the operative complaint against Stefanko at this time, while the second amended complaint is the operative complaint against all other defendants.
DISCUSSION
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Second Amended Complaint
In the second amended complaint, the plaintiff alleges the following facts, which are common to all eleven counts. Starting on or about December 27, 2000, the plaintiff was employed by the housing authority as a maintenance assistant. Around the time he was hired, the plaintiff was given a copy of the town of Trumbull's personnel policy. The policy stated in part that employees would not be discharged except for cause, that employees would be given at least two weeks' advance notice of termination, that all reports of sexual harassment would be investigated and appropriate action taken, and that any employee having a problem with or unclear about a policy or decision was encouraged to discuss the matter with a direct supervisor.
The plaintiff performed his job duties satisfactorily and was the only employee to receive a merit increase in pay in 2001. On August 10, 2001, the plaintiff heard that a meeting was to be held the following day. He asked Jeffrey Holt, the maintenance supervisor, the reason for the meeting and whether it was mandatory. Holt did not tell the plaintiff the purpose of the meeting, and told the plaintiff, "You can go if you want." The plaintiff attended the meeting on August 11, 2001. During the course of the meeting, Paumi and Virginia Stefanko, both of whom were members of the housing authority's board of directors, and Holt stated that the plaintiff had engaged in sexual relations with the housing authority's director of operations, Patricia Ryan, in exchange for more favorable work assignments. Although the plaintiff objected to these remarks, Paumi, Stefanko and Holt continued to make remarks indicating that the plaintiff and Ryan "are getting it on" and "they're lovers." Several other employees of the housing authority were also present at the meeting. In addition, the plaintiff and other employees were asked at the meeting to sign a statement indicating that they again had received a copy of the personnel policy.
Following the meeting, the plaintiff discussed what had occurred with Ryan and Joseph Murphy, both of whom were employees of the company retained by the housing authority to manage its premises. Ryan, Murphy and the plaintiff subsequently met with Trumbull first selectman Kenneth Halaby as well as other town officials including one Al Cimino. At that meeting, they discussed various issues relating to the health, safety and well-being of the housing authority's employees and residents, as well as prior sexual harassment directed against Ryan by Stefanko. At the meeting, Ryan and Murphy stated that they had reported their concerns to the state commission on human rights and opportunities (CHRO), and the plaintiff stated his intention to contact the CHRO as well. Following the meeting with Halaby, Cimino telephoned Stefanko and told her what had occurred.
During the days immediately preceding his termination, the plaintiff was subjected to harassing comments from the defendants, assigned menial tasks, forced to work outside in the hot sun and disciplined when he attempted to voice concerns regarding the safety of himself and residents, employees and visitors of the housing authority. On August 27, 2001, the plaintiff sent a letter to the CHRO regarding the August 11, 2001 meeting and what the plaintiff felt was a hostile work environment resulting from sexual harassment. Three days later, when the plaintiff voiced concerns to Holt regarding the lack of safety equipment for operating a "weed whacker," Holt screamed at the plaintiff, called him a "baby," told him to "go buy your Pampers," and then fired him. When Holt reported to Stefanko what had occurred, Stefanko stated that the plaintiff would be terminated for insubordination. After the plaintiff was terminated, Stefanko attempted on behalf of the housing authority to deprive him of unemployment benefits by stating that the plaintiff was terminated for willful misconduct. The housing authority's stated reasons for the plaintiff's termination were false and pretextual in that the plaintiff's termination was motivated by unlawful gender discrimination and was done in retaliation for his opposition to the defendants' conduct.
The housing authority continued to harass and retaliate against the plaintiff after his termination. In addition to unsuccessfully attempting to prevent the plaintiff's receipt of unemployment benefits, the housing authority failed to provide the plaintiff with statutorily required notice of his right to continued insurance coverage under COBRA, and refused without cause to accept the plaintiff's premium checks.
Governmental Immunity
The defendants argue that under the doctrine of governmental immunity, they are immune from liability on all of the plaintiff's claims. The plaintiff argues in response that a housing authority is not an agency of a municipality and its employees are not municipal employees, and that they therefore are not immune from liability.
There is no appellate authority specifically addressing the applicability of governmental immunity to municipal housing authorities and their employees. Nevertheless, the Supreme Court has stated that a housing authority is an independent entity and is not a municipal agency as a matter of law. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 184-86, 544 A.2d 1185 (1988). The Superior Court judges who have considered the issue have unanimously concluded that housing authorities and their employees generally are not protected by governmental immunity. See Turner v. New London Housing Authority, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 05 4003870 (January 17, 2006, Sferrazza, J.) ( 40 Conn. L. Rptr. 592); Majette v. New London Housing Authority, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 5000090 (November 3, 2005, Beach, J.) ( 40 Conn. L. Rptr. 195); Quinones v. New Britain Housing Authority, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 89 0370093 (October 26, 1992, Wagner, J.) ( 7 C.S.C.R. 1277) [ 7 Conn. L. Rptr. 507]. The defendants have not offered any evidence or argument that would support a deviation from that general rule in the present case. For the reasons set forth in those opinions, the court denies the defendants' motion for summary judgment on the basis of governmental immunity.
General Statutes §§ 7-101a and 7-465
The defendants also argue that all of the plaintiff's claims are barred by the notice and time limitation provisions of General Statutes §§ 7-101a and 7-465. Those statutes, by their own terms, apply to suits against municipal employees and officers. As stated in the previous section of this memorandum, housing authorities are not municipal agencies and their employees are not municipal employees. Furthermore, the notice and time limitation provisions of §§ 7-101a(d) and 7-465(a) apply to actions against municipalities for indemnification, and not to direct actions against individuals. Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985); Altfeter v. Naugatuck, 53 Conn.App. 791, 799-800, 732 A.2d 207 (1999). Thus, these statutes do not apply to the defendants in the present action. See Turner v. New London Housing Authority, supra, 40 Conn. L. Rptr. 592. Accordingly, the court denies the defendants' motion for summary judgment on the basis of those statutes. Because summary judgment cannot be granted on these general grounds, the court must next examine the defendants' specific grounds for each count of the complaint.
Count One: Employment Discrimination
In count one of the second amended complaint, the plaintiff claims that the defendants' alleged conduct set forth above constitutes unlawful gender discrimination, sexual harassment and retaliation in violation of General Statutes § 46a-60(a)(1), (4), (5) and (8). The defendants move for summary judgment on count one on the grounds that (1) the court, under the law of the case doctrine, should follow a previous order of the court, Dewey, J., granting a motion for summary judgment filed by Stefanko and (2) the plaintiff has failed to allege facts or to offer evidence to support a claim of gender discrimination or sexual harassment. In response, the plaintiff argues that the law of the case doctrine does not apply because the defendants now moving for summary judgment were not parties to Stefanko's earlier motion, and because the two motions involve different complaints with different allegations. The plaintiff further argues that the defendants, in their motion for summary judgment, have overlooked and failed to address the claim of retaliation set forth in the second amended complaint.
Subsection (a)(1) of § 46a-60 prohibits, inter alia, discrimination on the basis of sex. Subsection (a)(4) prohibits retaliation for opposing or complaining of employment discrimination. Subsection (a)(5) prohibits any person from aiding or abetting employment discrimination. Subsection (a)(8) prohibits sexual harassment.
The following additional procedural history is relevant to the defendants' motion as it relates to count one. On June 9, 2004, Stefanko, who is also a defendant in this action but is represented by different counsel than the defendants bringing the present motion, filed a motion for summary judgment on the first and fourth counts of the first amended complaint. On May 18, 2005, the court, Dewey, J., granted Stefanko's motion for summary judgment. Specifically, the court granted the motion as to count one because "the evidence presented cannot establish each of [the] elements" of a hostile work environment employment discrimination claim. Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV 03 0399811 (May 18, 2005, Dewey, J.). The court further stated: "In an attempt to overcome this defect, the plaintiff suggests that Ms. Stefanko `aided, abetted, incited or compelled others' to discriminate. He suggests some form of retaliation. The pleadings and evidence presented do not support this cause of action. The plaintiff failed to amend his complaint prior to the argument in this matter." (Emphasis added.)
This action was originally brought in the judicial district of Fairfield. It was later transferred to the judicial district of Ansonia-Milford at Derby and assigned a new docket number.
The principles governing the doctrine of law of the case are well established. "In essence [the law of the case doctrine] expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 249, 926 A.2d 656 (2007).
The law of the case doctrine is not applicable in the present situation. Specifically, the issue before Judge Dewey was whether Stefanko was entitled to summary judgment on count one of the first amended complaint. In the motion presently before the court, the issue is whether the other defendants are entitled to summary judgment on count one of the second amended complaint, which includes a number of allegations that were absent from the first amended complaint. Specifically, most of the allegations in the second amended complaint relating to the plaintiff's complaints to the Trumbull first selectman and the CHRO were not set forth in the first amended complaint. In addition, the second amended complaint sets forth additional allegations of the defendants' unfavorable treatment of the plaintiff in the days leading up to his termination. Finally, the second amended complaint makes more prominent use of the word "retaliation." Thus, although Judge Dewey determined that the first amended complaint did not support a claim of retaliation, the second amended complaint much more clearly sets forth such a claim. Cf. Mazza v. Connecticut Light Power Co., Superior Court, judicial district of Waterbury, Docket No. CV 96 0130546 (March 9, 2000, Hodgson, J.) [ 26 Conn. L. Rptr. 393] ("[w]hile a party runs afoul of the doctrine of the law of the case if he or she simply repeats the pleading that has previously been stricken, a reformulated pleading must be assessed ab initio to determine whether it states a cause of action"). Moreover, the law of the case doctrine generally applies where the prior decision related to a matter between the same parties in the same case. See Fournier v. Gomes, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 0068280 (January 29, 2001, Grogins, J.); Chertkova v. Connecticut Specialty, Orion Capital Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0486347 (April 14, 2000, Graham, J.); 21 C.J.S. 234, Courts, § 237 (2006). Here, the previous decision involved a motion for summary judgment between the plaintiff and a different defendant on a significantly different complaint.
On the merits of the motion for summary judgment, the defendants argue that the plaintiff has failed to allege facts or to offer evidence to support a claim of gender discrimination or sexual harassment. As stated above, however, count one also sets forth a claim of retaliation in violation of § 46a-60(a)(4). The defendants' motion for summary judgment and memorandum of law do not address the retaliation claim.
In the case of Rockwell v. Quintner, 96 Conn.App. 221, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006), Judge (now Chief Justice) Rogers clarified the respective burdens of the parties to a motion for summary judgment:
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a [genuine issue of] material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact . . .
An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.
(Citations omitted; internal quotation marks omitted.) Id., 228-30.
As an example of the operation of these principles, the Rockwell court stated: "In Fogarty v. Rashaw, 193 Conn. 442, 443, 476 A.2d 582 (1984), an action brought by a vehicular passenger to recover damages for personal injuries sustained in an automobile collision, the plaintiff alleged in his complaint that one of the defendants, the operator of the other vehicle, was negligent in five enumerated ways, including speeding. In support of their motion for summary judgment, the defendants submitted the affidavit of a witness, attesting to the negligent driving of the vehicle in which the plaintiff was riding and stating that the defendant operator was not speeding. The court rendered summary judgment in favor of the defendants, reasoning that the witness's uncontested affidavit remove[d] any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Rockwell v. Quintner, supra, 96 Conn.App. 231. "On appeal, however, our Supreme Court reversed the judgment because the affidavit relied on addressed only one of the five allegations of negligence raised in the complaint and contained no evidence refuting the remaining allegations . . . According to the court, because these factual issues, contested in the pleadings and not even referred to in the defendants' affidavits, remained unresolved, the court was clearly in error in granting the motion for summary judgment." (Internal quotation marks omitted.) Id. The Rockwell court similarly ruled that the trial court improperly granted a defendant's motion for summary judgment on statute of limitation grounds because the defendant's motion and supporting evidence failed to establish that all of the conduct alleged in the complaint was time barred. Id., 233-34.
Likewise, in the present case, the motion for summary judgment fails to address all of the conduct alleged in the complaint. The plaintiff has alleged that the defendants violated § 46a-60 in several ways, including retaliation. The defendants' motion nevertheless fails to address the retaliation claim. Accordingly, the court denies the defendants' motion for summary judgment as to count one.
Count Two: Breach of Contract
In count two, the plaintiff alleges that the words, actions and conduct of the housing authority, including those set forth in the personnel policy given to the plaintiff, amounted to an implied contract of employment providing that the plaintiff would be discharged only for cause and with two weeks' notice, that any reports of sexual harassment would be investigated and appropriate action taken and that there would be an open door policy whereby the plaintiff could discuss any concerns, including safety concerns, with his superiors. The plaintiff further alleges that the housing authority's conduct, as set forth above, constituted a breach of that contract, and a breach of the contract's implied covenant of good faith and fair dealing. The housing authority argues that it is entitled to summary judgment on count two because the personnel policy did not create an implied contract and because it promulgated, in addition to the personnel policy, standards of conduct which permitted it to discipline an employee for willful violation of work rules or for leaving a job assignment without a supervisor's authorization. The housing authority also appears to argue that there was no implied contract because it eschewed language that could reasonably be construed as a basis for a contractual promise.
The housing authority has not made this argument explicit. Nevertheless, it has quoted language from Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999), for the proposition that an employer may protect itself by eschewing language that reasonably could be construed as a basis for a contractual promise, and has underlined the word "eschewing" in the quotation.
"It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., CT Page 1589 249 Conn. 523, 532, 733 A.2d 197 (1999). Our Supreme Court "ha[s] stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (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.) Id., 535. An employer may be entitled to judgment as a matter of law where there are clear disclaimers of the intention to create a contract. See, e.g., Labbe v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 02 0397829 (March 10, 2006, Rodriguez, J.); Walsh v. Long, Superior Court, judicial district of Hartford, Docket No. CV 02 0815945 (October 21, 2005, Miller, J.). "In the absence of definitive contract language, however, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact." (Internal quotation marks omitted.) Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987).
In the present case, the parties are in agreement that there was a personnel policy stating that employees would not be discharged except for cause, and that notice of dismissal would be given at least two weeks in advance. Contrary to the housing authority's assertion, then, this is not a case where the employer has protected itself by eschewing language that could reasonably be construed as a basis for a contractual promise. Moreover, the housing authority does not claim that there was an express disclaimer of the intention to create a contractual promise. Instead, the housing authority points to "standards of conduct" which permitted it to discipline an employee for willful violation of work rules or for leaving a job assignment without a supervisor's authorization. The defendant states that "reading all these policies together, it cannot be said as a matter of law that the defendant [housing authority] has contracted away its right to discipline as it sees fit." This argument overlooks the well established standard for a motion for summary judgment, which requires the moving party to demonstrate that it is entitled to judgment as a matter of law. Thus, the issue is not whether the plaintiff has established as a matter of law that the housing authority contracted away its right to discipline as it sees fit; the issue is whether the housing authority has established as a matter of law that it did not contract away its right to terminate the plaintiff at will. See Zielinski v. Kotsoris, supra, 279 Conn. 318-19; Rockwell v. Quintner, supra, 96 Conn.App. 228-30. Even if the language in the personnel policy does not constitute definitive contract language in favor of the plaintiff, a question that the court need not decide at this time, it at least raises a fact issue as to the parties' intent. Finley v. Aetna Life Casualty Co., supra, 202 Conn. 199. Because the evidence does not demonstrate as a matter of law that the housing authority did not intend to create a contractual obligation to the plaintiff, the motion for summary judgment is denied as to count two.
Count Three: Defamation
In count three, the plaintiff alleges that the defendants' statements about him, including statements that he was engaging in sexual activity in order to improve his job assignments, were defamatory. The defendants argue that they are entitled to summary judgment on count three because the allegedly defamatory statements were true. Specifically, the defendants offer evidence demonstrating that both the plaintiff and Patricia Ryan have admitted that they were involved in a sexual relationship at some point in time.
The defendants have offered no evidence or argument addressing the allegation that the defendants made statements indicating that the plaintiff was engaging in sexual activity with Patricia Ryan in order to receive or in exchange for more favorable work assignments. Accordingly, as with count one, the defendants have failed to negate or even address the entire claim set forth by the plaintiff. See Rockwell v. Quintner, supra, 96 Conn.App. 229. The court denies the motion for summary judgment as to count three.
Count Four: Invasion of Privacy
In count four, the plaintiff alleges that the defendants "intentionally intruded upon [his] right to privacy and intruded upon his seclusion by unnecessarily publishing personal facts about his private life during the meeting on August 11, 2001." The defendants argue that they are entitled to summary judgment on count four because (1) the court, under the law of the case doctrine, should follow a previous order of the court, Doherty, J., granting the defendants' motion to strike the invasion of privacy claim from the first amended complaint and (2) the plaintiff has failed to allege that the defendants disseminated personal information about the plaintiff to the public at large.
Our Supreme Court has "observed that the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone. [W.] Prosser, Torts (4th Ed. 1971) § 117, p. 804. The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (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 unreasonably places the other in a false light before the public." (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).
In count four of the first amended complaint, the plaintiff alleged that the defendants "intentionally intruded upon [the plaintiff's] right to privacy by publishing false allegations" about him and "violated [the plaintiff's] right to privacy by placing his name in a false light." The first amended complaint did not include any language indicating that the defendants unreasonably intruded upon the plaintiff's seclusion. In granting the defendants' motion to strike that count, the court focused on case law dealing with claims of unreasonable publicity given to another's private life and publicity that unreasonably places another in a false light before the public, and concluded that the plaintiff's claim was legally insufficient because the plaintiff had failed to plead the element of publicity required to make either of those types of invasion of privacy claims. Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV 03 0399811 (January 30, 2004, Doherty, J.).
In the second amended complaint, by contrast, the plaintiff has attempted to set forth a claim of unreasonable intrusion upon the seclusion of another, which is a different tort than those set forth in the previous complaint. Foncello v. Amorossi, supra, 284 Conn. 234. Thus, Judge Doherty's previous ruling does not constitute the law of the case for purposes of the present motion for summary judgment because the legal issue presented by the present motion is not the same.
Because the defendants have not acknowledged that count four attempts to set forth a claim of unreasonable intrusion upon the seclusion of another, they have not addressed whether the count is legally sufficient to set forth such a claim. Accordingly, that issue is not before the court at this time, and the court need not address it.
The defendants further argue that the motion for summary judgment should be granted because the plaintiff has failed to allege that the defendants disseminated personal information about the plaintiff to the public at large. No such requirement exists for a claim of intrusion upon the seclusion of another. See, e.g., Fallstrom v. L.K. Comstock Co., Superior Court, judicial district of Waterbury, Docket No. CV 99 0152583 (January 22, 2001, Rogers, J.) [ 29 Conn. L. Rptr. 623]; Poulos v. Pfizer, Inc., Superior Court, judicial district of New London (June 24, 1992, Hurley, J.) [ 6 Conn. L. Rptr. 545]. Accordingly, the court denies the motion for summary judgment as to count four.
Count Five: Negligence CT Page 1592
In count five, the plaintiff alleges that the defendants "had long been aware, or should have been aware of, its problems including, but not limited to, inadequate or improper supervision and training of its Commissioners, employees, contractors and staff; misuse or abuse of authority by Stefanko and other [housing authority] Commissioners; and harassment and other improper conduct in the workplace." He further alleges that he has suffered economic and other damages as a result of the defendant's negligent hiring, training and supervision of the housing authority's commissioners, employees and staff. The defendants argue that they are entitled to summary judgment on count five because (1) it is duplicative of several other counts of the complaint and (2) "there is no allegation or support for a claim that the defendant knew or should have known that any of the [housing authority] employees/commissioners might sexually harass persons such as the plaintiff."
With regard to the first argument, even if the court assumes, arguendo, that count five is duplicative of other counts of the complaint, the defendants have offered no legal support for their claim that summary judgment is the appropriate remedy in the case of such duplication. On the contrary, there is substantial legal authority at the trial court level indicating that a request to revise is the proper procedural vehicle to eliminate duplicative counts from a complaint. See Pike v. Bugbee, Superior Court, judicial district of Hartford, Docket No. CV 06 5005721 (October 30, 2007, Bentivegna, J.), and cases cited therein. To be entitled to summary judgment, the defendants must show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Practice Book § 17-49. The fact that two counts may be substantially identical is irrelevant to that inquiry.
With regard to the second argument, it is noted that, contrary to the defendants' assertion, the plaintiff has specifically alleged that the defendants "had long been aware, or should have been aware of, [the housing authority's] problems including . . . misuse or abuse of authority by Stefanko and other [housing authority] Commissioners; and harassment and other improper conduct in the workplace."
It appears that the defendants are also arguing that count five is legally insufficient because the plaintiff has failed to allege specific facts to support the conclusion that the defendants knew or should have known of employees' propensity to engage in tortious misconduct. Our Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
In his memorandum of law in opposition to the motion for summary judgment, the plaintiff has cited extensively to documentary evidence that could support a conclusion that the defendants knew or had reason to know of certain employees' propensity to engage in the types of conduct the plaintiff complains of, which, as previously stated, includes not just sexual harassment, but also retaliation for complaining of alleged harassment. Accordingly, even if the court assumes, arguendo, that count five is legally insufficient, the defendants have failed to "establish that the defect could not be cured by repleading." Id., 401. The court denies the motion for summary judgment as to count five.
Count Six: Negligent Misrepresentation
In count six, the plaintiff alleges that the housing authority negligently misrepresented to him that he would be discharged only for cause and with two weeks' notice, that any reports of sexual harassment would be investigated and appropriate action taken and that there would be an open door policy whereby the plaintiff could discuss any concerns, including safety concerns, with his superiors. The housing authority argues that count six is repetitious of the breach of contract claim set forth in count two, and that its entitlement to summary judgment on count two therefore also entitles it to summary judgment on count six.
As set forth above, the housing authority is not entitled to summary judgment on count two. Accordingly, the court denies the motion for summary judgment as to count six.
Count Seven: Negligent Infliction of Emotional Distress
In count seven, the plaintiff alleges that the housing authority negligently inflicted emotional distress by, inter alia, verbally abusing, harassing and berating him in front of others. The housing authority argues that it is entitled to summary judgment on this count because (1) the court, Doherty, J., previously granted its motion to strike a similar claim from the first amended complaint and (2) the plaintiff has failed to allege sufficiently unreasonable or egregious conduct during the termination process to support a claim for negligent infliction of emotional distress.
Judge Doherty granted the motion to strike on count seven "for the reason that the plaintiff's claim is legally insufficient in that he has failed to allege that the emotional distress caused by the defendant's conduct exposed him to the risk of illness or bodily harm." Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV 03 0399811 (January 30, 2004, Doherty, J.). In the second amended complaint, the plaintiff specifically states that the "[d]efendant knew or should have know that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm" and that the "[d]efendant's conduct did in fact inflict severe emotional distress upon [the plaintiff], resulting in illness and bodily harm, thereby entitling him to damages." Accordingly, the plaintiff has cured the insufficiency that was the basis of Judge Doherty's order and the doctrine of the law of the case does not apply. See Mazza v. Connecticut Light Power Co., supra, Superior Court, Docket No. CV 96 0130546 [ 26 Conn. L. Rptr. 393].
The housing authority further argues that it is entitled to summary judgment on count seven because the plaintiff has failed to allege sufficiently unreasonable or egregious conduct during the termination process to support a claim for negligent infliction of emotional distress. The housing authority states that "the mere allegation that the plaintiff was subject to termination from employment in violation of a personnel policy, or without notice, or for false reason, cannot be viewed as . . . particularly egregious conduct" and that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) As with count five, because the housing authority's argument challenges the legal sufficiency of the complaint, the defendant must demonstrate that the complaint fails to set forth a cause of action and that the defect could not be cured by repleading. Larobina v. McDonald, supra, 274 Conn. 401-02.
"In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), [the Connecticut Supreme Court] for the first time recognized a cause of action for negligent infliction of emotional distress. [The court] continually ha[s] held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
Pursuant to Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), a plaintiff may not maintain a claim of "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." Id., 762-63. The Perodeau court reasoned that if such claims were permitted, "employees who fear lawsuits by fellow employees may be less competitive with each other, promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions . . . on the basis of fear of suit rather than business needs and desires." Id., 758. Accordingly, in determining whether the plaintiff has alleged a legally sufficient claim of negligent infliction of emotional distress in the present case, the court must ignore allegations of conduct occurring during the plaintiff's employment with the housing authority, and consider only allegations of conduct occurring during and after the termination process.
The plaintiff has alleged that on August 30, 2001, Holt screamed at him for expressing his safety concerns, called him a "baby," told him to "go buy your Pampers," and then fired him. He further alleges that after his termination, Stefanko attempted on behalf of the housing authority to deprive him of unemployment benefits by stating that he had been terminated for willful misconduct. The housing authority allegedly continued to harass and retaliate against the plaintiff after his termination by unsuccessfully attempting to prevent the plaintiff's receipt of unemployment benefits, failing to provide the plaintiff with statutorily required notice of his right to continued insurance coverage under COBRA, and refusing without cause to accept the plaintiff's premium checks. Thus, contrary to the housing authority's characterization of the plaintiff's allegations, he has done more than simply allege that he was terminated "in violation of a personnel policy, or without notice, or for false reason." He has alleged that he was terminated in an abusive manner, and that there was retaliatory conduct against him after his termination, including attempted interference with his right to unemployment compensation and health insurance. "The dispositive issue [is] whether the defendant's conduct . . . was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Id., 751. That determination is necessarily an issue of fact and is not properly resolved by way of a motion challenging the legally sufficiency of the complaint. See Noonan v. Miller Memorial Community Home, Inc., 50 Conn.Sup. 367, 371-72, 928 A.2d 626 (2007).
Accordingly, the court denies the motion for summary judgment as to count seven.
Count Eight: Violation of General Statutes § 31-51m
In count eight, the plaintiff sets forth a claim that the housing authority wrongfully terminated him in violation of General Statutes § 31-51m, the so-called "whistle-blower" statute. The housing authority argues that it is entitled to summary judgment on count eight because the plaintiff did not commence this action within the ninety-day limitation period set forth in § 31-51m(c). The plaintiff argues in response that his claim under § 31-51m is timely in that it was commenced within ninety days of the date of a final administrative determination of a complaint he filed with the CHRO.
Section 31-51m(c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee's recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court."
In Campbell v. Plymouth, 74 Conn.App. 67, 811 A.2d 243 (2002), the Appellate Court considered what type of administrative remedies fall within the scope of § 31-51m. The plaintiff in that case argued that his civil action brought under § 31-51m was timely because it was commenced within ninety days of the final administrative determination of his application for unemployment benefits. The court stated: "Unemployment compensation does not provide meaningful relief from a claim of wrongful discharge for `whistle-blowing' because it provides only partial wage compensation during periods of unemployment. The unemployment compensation commission cannot provide reinstatement or continuation of employee benefits." Id., 82. Because unemployment compensation could not provide the remedies afforded by § 31-51m(c), the court concluded that it was not the type of administrative remedy contemplated by the statute. Id.
In the present case, the plaintiff filed a complaint with the CHRO pursuant to General Statutes § 46a-82. He has submitted a copy of the letter he received from the CHRO releasing its jurisdiction over his complaint. The release letter is dated October 11, 2002, exactly ninety days prior to commencement of the present civil action. The present action is therefore timely if relief sought by way of an employment discrimination complaint filed with the CHRO is the type of administrative remedy contemplated by § 31-51m(c). In light of the analysis of the Appellate Court in Campbell v. Plymouth, the court must make that determination by examining the relief available pursuant to a discrimination complaint filed with the CHRO.
General Statutes § 46a-86(b), which governs the CHRO's determination of discrimination complaints, provides in relevant part that "[i]n addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay . . ." Thus, unlike the unemployment compensation examined in Campbell v. Plymouth, the remedies available to the plaintiff from the CHRO for employment discrimination included reinstatement of employment. Accordingly, the CHRO proceedings could have provided meaningful relief from a claim for wrongful discharge for "whistle-blowing" under § 31-51m. Because the plaintiff commenced this action within ninety days of the release of jurisdiction by the CHRO, it is not untimely. The court denies the motion for summary judgment as to count eight.
Count Nine: Violation of General Statutes § 31-51q
In count nine, the plaintiff alleges that he "exercised his constitutional right to free speech by expressing his concerns about the treatment of the employees and residents of [the housing authority], as well as the citizens of the Town of Trumbull, to Trumbull's First Selectman, Kenneth Halaby." He further alleges that he "agreed to and did provide information and assistance to others who were seeking to address matters of public concern regarding mismanagement of [the housing authority]." Finally, he alleges that he was disciplined or discharged as a result of his constitutional right to free speech in violation of General Statutes § 31-51q. The housing authority argues that it is entitled to summary judgment on count nine because the matters about which the plaintiff allegedly spoke and for which he allegedly was discharged were matters solely of personal concern and not of public concern. The plaintiff argues that he raised issues of public concern in his meeting with first selectman Halaby.
General Statutes § 31-51q provides in relevant part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge . . ."
"Section 31-51q protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution . . . Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." (Citations omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). "Speech that addresses a matter of public concern involves statements that can be fairly considered as relating to any matter of political, social, or other concern to the community . . ." (Internal quotation marks omitted.) Id., 779. "[A] statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question. The legislature made its intention in that respect clear by stating expressly, in § 31-51q, that the statute provides a cause of action only against discharge for expressions of opinion that do `not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer . . .' The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999).
Our Supreme Court has noted that whether statements involve a matter of public concern involves issues of fact and of law. Specifically, "whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 777. On the other hand, "whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Id.
The plaintiff, as previously stated, has alleged that he met with Halaby and that at the meeting, the plaintiff and others discussed various issues relating to the health, safety and well being of the housing authority's employees and residents, as well as prior sexual harassment by Stefanko. The plaintiff also alleges that he was disciplined and discharged in part because of the concerns expressed at that meeting. "The safety of the public is considered to be of public concern." Dept. of Children Families v. Freedom of Information Commission, 48 Conn.App. 467, 472 n. 5, 710 A.2d 1378, cert. denied, 245 Conn. 911, 718 A.2d 16 (1998); see also DiMartino v. Richens, 263 Conn. 639, 664-69, 822 A.2d 205 (2003).
The housing authority has offered no evidence to negate the plaintiff's allegation that he spoke with Halaby, the first selectman, about the safety of the housing authority's residents. Whether the plaintiff made statements relating to public safety is a question of fact for the jury to resolve in light of the statements' content, form and context. Daley v. Aetna Life Casualty Co., supra, 249 Conn. 777. The court denies the motion for summary judgment as to count nine.
Count Ten: Promissory Estoppel
In count ten, the plaintiff alleges that he relied to his detriment on the housing authority's representations as set forth in the personnel policy. The housing authority argues that it is entitled to summary judgment on count ten because the personnel policy did not set forth a definite promise. This argument is a variation on the housing authority's arguments relating to the breach of contract claim set forth in count two. As previously concluded with regard to count two, the evidence does not demonstrate as a matter of law that the housing authority did not intend to create a contractual obligation to the plaintiff. Accordingly, it is also not clear that the housing authority did not make a definite promise to the plaintiff which could form the basis of a promissory estoppel claim. For this reason, the court denies the motion for summary judgment as to count ten.
Count Eleven: Breach of Fiduciary Duty
In count eleven, the plaintiff alleges that the defendants owed him, as an employee of the housing authority, a fiduciary duty, which the defendants breached by their actions as set forth above. The defendants argue, inter alia, that they are entitled to summary judgment because this claim is barred by the three-year limitation period set forth in General Statutes § 52-577. The plaintiff has not responded to this argument.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"Breach of fiduciary duty is a tort action governed by the three year statute of limitations contained within General Statutes § 52-577." Ahern v. Kappalumakkel, 97 Conn.App. 189, 191 n. 3, 903 A.2d 266 (2006). The plaintiff, by his own allegation, admits that his employment terminated in August 2001. He raised his claim of breach of fiduciary duty for the first time in the second amended complaint, which was filed on December 20, 2004. Accordingly, the claim was brought more than three years from the alleged violation of the defendants' fiduciary duty. The court grants the motion for summary judgment on count eleven.
Because the defendants are clearly entitled to summary judgment on the basis of § 52-577, the court need not address the other arguments in favor of summary judgment on count eleven.
CONCLUSION
For the reasons set forth above, the court denies the defendants' motion for summary judgment as to counts one through ten, and grants the motion for summary judgment as to count eleven.