Opinion
No. CV-05-04008159
January 29, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#120)
FACTS
The following facts and procedural history are taken from the court's opinion granting the defendant's motion to dismiss the first count of the plaintiff's complaint for lack of subject matter jurisdiction. Falcon v. Council 4, AFSCME, Superior Court, judicial district of New Haven, Docket No. CV 05 4008159S (July 15, 2008, Cosgrove, J.). "The plaintiff was hired by the State Judicial Department as an investigator with the Bureau of Support Enforcement in 1996. He was terminated from his employment in July of 1997. As a result of his termination the plaintiff initially filed a lawsuit against the defendant, Council 4 AFSCME, AFL-CIO, in the Federal District Court. The matter was pending in the Federal District Court until February 9, 2004 at which time it was dismissed without prejudice for lack of subject matter jurisdiction. Thereafter, on March 22, 2005, the plaintiff refiled his action in the Connecticut Superior Court . . .
"The plaintiff's complaint consists of six-counts. The first count asserts that the defendant union and officers or agents breached their duty of fair representation. [The] [s]econd count sounds in negligence, the third count sounds in conversion, the fourth count sounds in theft, the fifth count sounds in negligent infliction of emotional distress and the sixth count sounds in intentional infliction of emotional distress. The defendant filed an answer and special defenses to the six counts on May 23, 2006 . . .
"At the time the plaintiff was notified of the termination of his employment he was a member of or covered by the representation of the defendant unions. The plaintiff alleges that the unions did not provide him with representation at a pre-disciplinary hearing held on July 15, 1997. On July 17, 1997 the plaintiff was terminated from his employment effective July 18, 1997. The plaintiff claims that he demanded that the unions file grievances, appeals and requests for arbitration and any other remedy available to him as a union member. The plaintiff claims that the defendant unions did nothing even though he alleges he was told they would do something. Subsequently the plaintiff learned that the defendant unions had filed a grievance on his behalf, The plaintiff alleges the conduct, more fully described in the first count of the complaint, was `arbitrary, discriminatory or in bad faith and constitute a breach of the duty of fair representation.' The plaintiff claims he has suffered `severe financial loss, loss of employment opportunities, derogation to his personal and professional reputation, emotional and mental distress, upset, anxiety, inconvenience and other harm . . .'"
"Affidavits filed by the defendant with the Motion to Dismiss document proceedings before the [State Board of Labor Relations, ("SBLR")] with regard to the plaintiff's termination. The plaintiff's complaint to the SBLR was filed on April 26, 1999; the Agent assigned to investigate the breach of the duty of fair representation complaint made his report on September 6, 2000; the Agent determined there was no basis for the plaintiff's complaints against the union; the complainant (the plaintiff in this case) was notified of his right to appeal the Agent's recommendation of dismissal to the SBLR on September 8, 2000; the complainant/plaintiff did not exercise his right to appeal; and the file was closed on November 27, 2000." Falcon v. Council 4, AFSCME, supra, Superior Court, Docket No. CV 05 4008159S.
The court (Cosgrove, J.) granted the defendant's motion to dismiss count one on July 15, 2008, on the ground that the plaintiff failed to exhaust his administrative remedies. The defendant moved for summary judgment on counts two through six on June 27, 2008. The plaintiff filed a memorandum in opposition on September 29, 2008, and the defendant filed a reply to the plaintiff's memorandum in opposition on October 20, 2008. The only evidence provided either in support or in opposition to the motion is a transcript of a deposition of the plaintiff from July 11, 2007, and an affidavit from Cynthia Egan, the president of the defendant Local 749 at all times relevant to this matter. Additional facts will be set forth as necessary.
DISCUSSION
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).
"[T]he 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).
"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 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." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).
Count Two: Negligence
The plaintiff incorporates the first thirty-four of the thirty-six allegations in count one and rebrands them as a cause of action in negligence in paragraph thirty-five of count two. The plaintiff's negligence claim bears no substantive difference from his claim in count one for breach of the duty of fair representation, and the plaintiff has not identified another cognizable duty on which to base a claim for common law negligence. Viewing the evidence in the light most favorable to the nonmoving party, the plaintiff has failed to allege facts sufficient to maintain a general common law claim of negligence against the defendant, and it is clear to the court that the defect could not be cured by repleading. Larobina v. McDonald, supra, 274 Conn. 394, 401-02.
The duty of fair representation may be derived from federal law as a "judicially implied duty that arises from [National Labor Relations Act § 159(a)'s] grant to a union of exclusive power to represent all employees in a particular bargaining unit;" Cahoon v. IBEW Local 261, 175 F.Sup.2d 220, 225 (D.Conn. 2001); or from Connecticut state law pursuant to General Statutes §§ 5-271(d), 5-272(b) and 7-468(d). The plaintiff does not identify the legal basis for his first count, instead alleging generally in paragraph thirty-five of count one that "[t]he actions of the union defendants . . . constitute a breach of the duty of fair representation." As the federal district court previously dismissed the plaintiff's complaint for lack of subject matter jurisdiction, and the court (Cosgrove, J.) previously assessed count one pursuant to Connecticut statutory law, this court will also treat the plaintiff's claim as arising out of Connecticut statutory law.
General Statutes §§ 5-271 and 5-272 mirror General Statutes §§ 7-468(d) and 7-470(b)(3), which "codif[ied] the existing duty of fair representation, as it had been recognized and defined in Connecticut case law up to 1993." Falcon v. Council 4, AFSCME, Superior Court, judicial district of New Haven, Docket No. CV 05 4008159S (July 15, 2008, Cosgrove, J.), citing Long Ridge Paid Driver's Association v. Romaniello, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0163992S (August 6, 2002, Sheldon, J.) (32 Conn. L. Rptr. 675). As Judge Sheldon concluded after reviewing the legislative history of the statutes, "no part of existing law was to be excluded from [the] scope" of the codification of the duty of fair representation, and "the new legislation was specifically intended to require all persons bringing claims for breach of the duty of fair representation to file their claims initially with the [State Labor Relations Board]." Long Ridge Paid Driver's Association v. Romaniello, supra, 32 Conn. L. Rptr. 678. Accordingly, any claim for breach of the duty of fair representation must therefore be brought pursuant to, and within the statutory framework of, the Connecticut statutes and not common law negligence. Because the plaintiff has failed to allege any legally acknowledged duties owed him by the defendant beyond that of the duty of fair representation as alleged in count one, count two sounding in common law negligence is redundant and an impermissible attempt to circumvent the procedural, and jurisdictional, hurdles imposed by General Statutes §§ 5-271 and 5-272. The court therefore grants the defendant's motion for summary judgment on count two.
Count Three: Conversion
"The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm," (Citations omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
"Conversions may be grouped into two general classes: (1) those where the possession is originally wrongful; and (2) those where it is rightful and subsequently becomes wrongful. Under the first class, wrongful use and the unauthorized dominion constitute the conversion; therefore no demand for the return of the personal property is required. Under the second class, since the possession is rightful and there is no act of conversion, there can be no conversion until the possessor refuses to deliver up the property upon demand." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 331 n. 30, 852 A.2d 703 (2004). "The defendant ordinarily is not required to do more than permit the plaintiff to come and get the chattel." Restatement (Second), Torts § 237, comment (g) (2008).
The plaintiff bases his claim for conversion on the defendant's alleged failure to return certain documents or copies of documents that the plaintiff provided to the defendant in 1998 in anticipation of the defendant grieving the plaintiff's termination. Complaint, ¶¶ 24, 34. Although the plaintiff retained copies of most, if not all, of the documents he submitted to the union, and the documents themselves had no intrinsic value, the plaintiff claims that the unreturned documents could have been used to provide a defense at a subsequent trial for criminal possession of a firearm.
The defendant argues that the plaintiff has failed to allege that the documents "were utilized in a manner inconsistent with the rights of the plaintiff, to his harm" or that "the Union, without authorization, assumed and exercised ownership of the property, to the exclusion of the owner's rights." The defendant provides the affidavit of Cynthia Egan, President of Local 749, attesting that, upon the plaintiff's request, she mailed the documents to the plaintiff at his last known address on March 22, 1999, and that the package was returned to her as unclaimed. The same affidavit also states that the union returned any information it possessed when the plaintiff requested the documents via discovery. In response, the plaintiff argues that he has "demonstrated that the defendants deprived the plaintiff of his documentation for an indefinite period of time" and that the defendant's return of some documents after the plaintiff's discovery requests fails to cure the earlier failure to return the documents.
The plaintiff initially gave the documents to the defendant, therefore the defendant's initial possession of the documents was both authorized and rightful. Label Systems Corp. v. Aghamohammadi, supra, 270 Conn. 331. Only after the plaintiff requested the return of the documents could a claim for conversion arise. Id. The defendant, however, has provided evidence that it attempted to return the plaintiff's documents both upon his initial request in 1999 and again pursuant to his discovery request in relation to the present litigation. Affidavit of Cynthia Egan, Defendant's Reply Brief, Exhibit C. This uncontradicted evidence demonstrates that the defendant did not intend to wrongfully detain the plaintiff's documents, and that it has never refused to relinquish the documents. As the defendant never refused to return the documents, and in fact attempted or did actually return the documents upon the plaintiff's requests, the plaintiff's claim for conversion must fail. The court therefore grants the defendant's motion for summary judgment on count three.
Count Four: Theft
Count four also derives from the plaintiff's allegation that the defendant wrongfully retained the documents he submitted in anticipation of the defendant grieving the plaintiff's termination. "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 person, he wrongfully takes, obtains or [withholds] such property from an owner . . . 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., supra, 279 Conn. 771.
"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, "[i]t is not enough . . . for the opposing party merely to assert the existence of such a disputed issue . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Lefebvre v. Zarka, 106 Conn.App. 30, 38, CT Page 2498 940 A.2d 911 (2008).
The plaintiff has not provided any evidence to support his assertion that the defendant intentionally deprived him of his documents. Conversely, the defendant has provided an affidavit from its president attesting that it attempted to return the documents to the plaintiff in 1999 in response to his request, and that it has also complied with the plaintiff's discovery requests for the documents. Defendant's Reply Brief, Exhibit C. This affidavit, and the photocopy of the returned envelope attached to it, provide sufficient evidence to refute the plaintiff's unsupported assertions that the defendant intentionally withheld his documents. A claim of theft requires evidence of an intent to deprive, and the plaintiff is unable to demonstrate this intent based on the evidence before the court. The court therefore grants the defendant's motion for summary judgment on count four.
Count Five: Negligent Infliction of Emotional Distress
A cause of action for negligent infliction of emotional distress requires the plaintiff to prove that: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). "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." (Internal quotation marks omitted.) Id., 446.
In support of his allegation of negligent infliction of emotional distress, the plaintiff cites extensively to, and relies almost exclusively upon, the opinion in Lucas v. Milford Police Union, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 0068796 (February 13, 2001, Arnold, J.) (29 Conn. L. Rptr. 233). In Lucas, the plaintiff employee alleged that the defendant union had falsely and maliciously accused the plaintiff of theft for purposes of undermining her employment at a time when the union was under a duty to represent her in an internal investigation. The court, in denying the defendant union's motion to dismiss for failure to exhaust administrative remedies, held that the court had subject matter jurisdiction to hear the plaintiff's claim for negligent infliction of emotional distress under the facts of the case.
The Lucas decision is inapplicable to the facts of this matter. First, this is a motion for summary judgment and the court's subject matter jurisdiction on this count has not been questioned. Second, the plaintiff in this case accuses the union of theft, as opposed to the other way around. As the Lucas court itself concluded, "the factual allegations, wherein the defendant is the plaintiff's accuser, are significantly different from a situation where a union does not effectively represent a member in the member's dealings with the employer." Lucas v. Milford Police Union, supra, 29 Conn. L. Rptr. 235.
The plaintiff's claim in this count does not allege any facts above and beyond those alleged in support of the plaintiff's core claim of breach of the duty of fair representation. Again, the plaintiff incorporates paragraphs one though thirty-four of count one and rebrands the count as one for negligent infliction of emotional distress. While emotional distress may be a component of damages in a claim for the breach of the duty of fair representation, it does not stand alone as a tort when the plaintiff has failed to allege any facts that remove it from the penumbra of the breach of fair representation claim. See Zarella v. Local 1303-26, Superior Court, judicial district of New Britain, Docket No. CV 01 0508213S (May 1, 2003, Dunnell, J.). The plaintiff has failed to allege any additional conduct that the defendant should have realized would involve an unreasonable risk of causing emotional distress likely to result in illness or bodily harm. The court therefore grants the defendant's motion for summary judgment on count five.
Count Six: Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
The plaintiff has failed to allege conduct by the defendant that would support a claim for intentional infliction of emotional distress. As described earlier with regards to count four claiming theft, the plaintiff has failed to provide evidence to support his claim that the defendant intentionally withheld his documents, while the defendant provided an affidavit from its president attesting to its attempts to return the plaintiff's documents. Given the facts before the court, the plaintiff's unsupported allegations do not provide the basis for a claim of intentional infliction of emotional distress. Furthermore, the few controlling Connecticut appellate cases that the plaintiff cites in his memorandum in opposition concern instances of dramatically more egregious behavior than has been alleged in this case. See, e.g., Berry v. Loiseau, 223 Conn. 786, 614 A.2d 414 (1992) (affirming intentional infliction of emotional distress judgment in favor of plaintiff employee subjected to physical abuse, assault and battery, and false imprisonment by defendant employer). Viewing the allegations in the light most favorable to the plaintiff, the plaintiff has failed to provide evidence of the defendant's intent to harm him, and has also failed to allege behaviors that a reasonable fact finder could find to be "extreme and outrageous." The court therefore grants the defendant's motion for summary judgment on count six.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment on counts two, three, four, five and six.