Opinion
No. CV 09 5013896 S
September 21, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#108)
Before the court is the motion to strike (#108) filed by the defendants, DVA Healthcare of Norwich, LLC (DVA) and Mary Ryan. In the motion, the defendants attack all seven counts of the second amended complaint (#107), filed on April 14, 2010, by the plaintiff, Lisa Friday-Houser. The seven issues before the court are whether the facts alleged in each count are legally sufficient to state a cause of action for (1) employment discrimination under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq., against Ryan, (2) breach of the duty of good faith and fair dealing, (3) negligent hiring, supervision or retention, (4) negligent infliction of emotional distress, (5) intentional interference with a business relationship, (6) negligent misrepresentation, and (7) wrongful termination, respectively.
For reasons stated below the motion to strike is granted as to counts two, three, five and six and denied as to counts one, four and seven.
I BACKGROUND
The pertinent facts, as alleged in the second amended complaint, are as follows: The plaintiff was hired by the William Backus Hospital (hospital) on June 16, 1987, as a food service worker. In June 1998, the hospital transferred her to the hemodialysis department to work as a medical technician. Thereafter, in September 1999, the plaintiff's job title was changed to "Patient Care Tech-Gambro/Hemodialysis."
In November 1999, the hospital entered into a service agreement with DVA, a company that primarily provided medical services to dialysis patients. In 2007, DVA advertised the availability of several job openings, including one entitled "Patient Care Technician-Chronic." The plaintiff applied for and was hired for said position. On April 16, 2007, the plaintiff and DVA entered into a signed written understanding of duties and expectations.
The plaintiff worked under the supervision of Ryan, Administrative Director for DVA. The plaintiff, pursuant to the understanding of duties and expectations, was required to follow all policies and procedures of DVA as well as those of the hospital, which were incorporated as policies and procedures of DVA. The defendants set the plaintiff's working hours, provided her with training and instruction and integrated her into their business operation.
At all times during which the plaintiff was working for the defendants, she performed her duties in a way that met their legitimate expectations. The plaintiff was subject to annual performance reviews, which involved forms printed on DVA letterhead directing that a "supervisor" evaluate the "employee" and that the "employee" and "evaluator" sign the form. Ryan performed the evaluations as directed by these forms, reviewing the plaintiff's accomplishments and setting her goals. The plaintiff received favorable performance reviews during her tenure with DVA.
Sometime in April 2007, the plaintiff learned that she was pregnant with twins. She informed Ryan of this development. Ryan reacted by stating to the plaintiff "what are you going to do" and "better you than me." In May 2007, the plaintiff had a miscarriage, losing one of the fetuses. The due date for the birth of her remaining child was December 5, 2007.
The plaintiff went into premature labor and, as a result, took emergency leave beginning October 1, 2007. She gave birth to her son prematurely on October 15, 2007. As directed by DVA policy, the plaintiff applied for family and medical leave by filling out forms for DVA employees through the hospital. The plaintiff was approved for sixteen weeks of leave, beginning October 1, 2007, and ending January 20, 2008. During the plaintiff's leave, she discussed her returning to work upon the expiration of her leave with Ryan and other DVA employees including Alicia Monge, the plaintiff's immediate supervisor. The plaintiff remained in regular contact with these employees while she was on leave.
The plaintiff does not mention specifically that she and Ryan discussed her return to work, although the plaintiff mentions Ryan by name many times in the rest of the complaint when describing Ryan's actions. Instead the plaintiff alleges: " Defendants and agents, employees, servants or representatives of defendant DVA Healthcare of Norwich, LLC were in regular communication with plaintiff and discussed with plaintiff her returning to work after her leave for her pregnancy." (Emphasis added.) (Second Amended Complaint, count one, ¶ 24.) Given that the court must read the complaint in the light most favorable to the plaintiff, the court reads the term "Defendants" as referring to both DVA and Ryan and interprets paragraph twenty-four as alleging that the plaintiff specifically discussed with Ryan her return to work upon the expiration of her leave.
Starting from the time the defendants learned of the plaintiff's pregnancy in April 2007, they engaged in a course of abusive and harassing conduct that discriminated against the plaintiff on the basis of her pregnancy. Ryan began to make comments to other employees that were less than favorable with respect to the plaintiff's job performance. She wrote emails to other employees stating that the plaintiff's attendance and performance were "inconsistent" and that there were "several warnings and discussions" about this alleged problem. She sent e-mails indicating that the plaintiff was not returning after her leave was complete. She discussed with other employees whether a patient care technician can be terminated if he or she, like the plaintiff, does not have a patient care technician certification (PCT certification). She sent e-mails to other employees soliciting a means to terminate the plaintiff's employment.
On January 17, 2008, at which time the plaintiff was ready, willing and able to return to work immediately upon the expiration of her leave three days later, the plaintiff's immediate supervisor told her that she no longer had a job with DVA and that she should speak with Ryan. Ryan explained to the plaintiff that she was terminated because she did not pass the PCT certification exam. The plaintiff knew, however, that she had been employed with DVA for ten years without having passed the exam and that there were other employees who had not passed the exam but were allowed to continue working. Ryan also told the plaintiff that she was terminated because her contract with DVA had expired, even though her contract was not set to expire until January 2009. Ryan also told the plaintiff that she was terminated because she was approved for only twelve weeks of family and medical leave, not sixteen, and had not returned upon the expiration of that leave. As a result of the defendants' actions, the plaintiff has suffered emotional distress, medical bills and lost wages. The plaintiff seeks damages, reinstatement, attorneys fees under General Statutes § 46a-104 and exemplary damages.
The defendants filed the present motion to strike on April 26, 2010, along with a memorandum of law (#109). Thereafter, on June 5, 2010, the plaintiff filed an objection (#111) accompanied by a memorandum of law (#112). The court heard oral argument on the motion on June 28, 2010.
II DISCUSSION A Standard of Review
Under Practice Book § 10-39, "[w]henever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In determining whether to grant the motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "A motion to strike [however] . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).B Analysis 1 Count One — Employment Discrimination in Violation of CFEPA
The defendants move to strike count one insofar as it alleges a claim against Ryan. They contend that, because Ryan was not an "employer" as contemplated by General Statutes § 46a-60(a)(1) and (7), she cannot be personally liable under CFEPA. They argue that there is no individual liability under CFEPA for supervisory employees of an employer. Moreover, they argue that the plaintiff has alleged she was an employee of the hospital and not of Ryan in any personal capacity. The plaintiff concedes that Ryan cannot be held personally liable under CFEPA. She argues, however, that count one applies to DVA only and not to Ryan. She then concludes that the court should deny the motion to strike count one as to DVA.
Significantly, the defendants do not challenge the legal sufficiency of count one as against DVA. Since "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike"; Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001); the court will assume that the plaintiff has stated a legally sufficient claim against DVA in count one. Accordingly, count one is legally sufficient, regardless of whether there is a legally sufficient claim against Ryan.
"A motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant." (Internal quotation marks omitted.) Hodgate v. Ferraro, Superior Court, judicial district of New London, CV 05 4001779 (November 10, 2005, Gordon, J.). "When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise . . ." (Internal quotation marks omitted.) Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. 556799 (January 9, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 217).
Through a request to revise, the plaintiff could have been made to separate her claim against Ryan, if she had intended to bring one, from her claim against DVA, after which the defendants could have properly moved to strike the claim against Ryan. Compare id. (denying motion to strike count alleging wrongful termination against both employer and supervisor, despite supervisor's potential nonliability, because count alleged a legally sufficient claim against employer). In this instance, the defendants neglected to effect the separation of the plaintiff's claims through a request to revise. Therefore, because count one states a legally sufficient claim, the motion to strike is denied as to count one.
2 Count Two — Breach of the Duty of Good Faith and Fair Dealing
The defendants contend that count two should be stricken because the plaintiff has neither alleged the existence of an express employment contract nor sufficient facts to establish that an employment contract was created by conduct of the parties. They argue that there was no meeting of the minds between the parties and no agreement that the plaintiff would not be terminated but for just cause.
The plaintiff responds with the argument that whether an employment contract exists is an issue of fact based on the totality of the circumstances. She points out that she alleged that she signed an understanding of duties and expectations, that she was trained by the defendants and integrated into their operation, and that, based on these allegations, there was a meeting of the minds to enter into an employment contract.
"Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity." Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). Parties to an employment relationship may, by contract, however, avoid the at-will rule and make an employee terminable only for good cause. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). In order to establish the existence of an employment contract, the plaintiff must prove that the defendants "had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [s]he could not be terminated without just cause." (Internal quotation marks omitted.) Id.
"The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 665, 778 A.2d 237 (2001).
Although an employment contract forbidding termination but for good cause is unnecessary in order for a duty of good faith and fair dealing to arise in the employment context; see Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984); count two is expressly predicated on the existence of such an employment contract. The plaintiff cannot establish the existence of this contract merely by asserting that it existed; she must allege facts establishing, among other things, that the defendants intended to refrain from terminating her but for good cause. See Avitabile v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5012806 (June 4, 2010, Adams, J.) ("[T]o survive a motion to strike, the allegations [of breach of an employment contract] must include . . . specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims [he] had with the defendant." (Internal quotation marks omitted.)).
The Connecticut Supreme Court has held that, in the at-will employment context, a claim for breach of the duty of good faith and fair dealing requires that the claimant prove that the conduct complained of amounted to an "important violation of public policy." (Internal quotation marks omitted.) Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 572. The Court also implied that this is essentially the same cause of action as wrongful termination, except using a contract theory rather than a tort theory. The court notes that, in count seven, the plaintiff advances a wrongful termination claim.
The plaintiff alleges that, when she was hired, she "entered to a signed written understanding of employment duties and expectations . . ." (Second Amended Complaint, count one, ¶ 12.) She does not allege that such document provided that she would not be terminated but for good cause. The plaintiff also alleges that all employees of DVA were required to follow the policies of both DVA and the hospital; however, she does not allege that these policies allowed termination only for good cause. The plaintiff alleges nothing indicating that Ryan or any other agent of DVA promised her that she would only be terminated for good cause. Therefore, the plaintiff has failed to allege the existence of the employment contract upon which her claim of the breach of good faith and fair dealing is predicated. Accordingly, count two fails to state a cause of action and the motion to strike is granted as to count two.
3 Count Three — Negligent Hiring/Retention/Supervision
The defendants argue that the plaintiff has failed to allege any facts that would allow the conclusion that it was foreseeable to DVA that Ryan would engage in the alleged wrongful acts that allegedly caused injury to the plaintiff. They contend that none of the facts alleged establishes that DVA had any knowledge or reason to know that Ryan had a propensity to behave in the harmful manner alleged or that such behavior, if it occurred, was anything more than an isolated incident.
The plaintiff argues that DVA should have known that Ryan's conduct would cause her harm. As evidence of this knowledge or reason to know, the plaintiff reiterates the allegations found in paragraph twenty-nine of count three describing the various ways in which Ryan engaged in discriminatory conduct against the plaintiff. She argues that these actions put DVA on notice that Ryan's conduct would cause harm to the plaintiff.
Negligent hiring, negligent retention and negligent supervision are three similar causes of action, each of which imposes liability on an employer for the foreseeable tortious acts of an employee. See Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.). "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability." (Internal quotation marks omitted.) Id. "Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct." (Internal quotation marks omitted.) Id. Put in terms of the issue before the court, the plaintiff must allege that it was foreseeable to DVA that Ryan would engage in the alleged discriminatory conduct. The standard is not, as the plaintiff contends, whether it was foreseeable to DVA that the alleged discriminatory acts committed by Ryan would result in the literal harm suffered by the plaintiff, i.e., emotional distress, financial losses, pain and suffering.
A good example of facts establishing the foreseeability element of a negligent hiring claim is found in illustration three of 2 Restatement (Third), Agency § 7.05, p. 179 (2006), which provides: "P, who owns a furniture store, employs A to deliver furniture to retail customers. A's duties include entering customers' homes to situate items they have purchased. Having entered T's home to deliver a sofa, A assaults T. Prior to employing A, P conducted no check of A's background. Had P done so, P would have discovered criminal convictions for assault. Had P known of A's criminal history, P would not have employed A to make deliveries. P is subject to liability to T." (Emphasis added.)
The plaintiff has alleged nothing that would establish that DVA was aware or should have been aware that Ryan had a propensity for engaging in discriminatory conduct. The plaintiff's citation of the alleged acts themselves does not show that DVA knew or should have known before the fact of a risk that Ryan would commit those same acts. Therefore, count three fails to state a cause of action and the motion to strike is granted as to that count.
4 Count Four — Negligent Infliction of Emotional Distress
The defendants argue that count four is legally insufficient because the plaintiff has failed to allege that Ryan engaged in unreasonable conduct when she terminated her. They assert that a claim for negligent infliction of emotional distress in the context of an employer-employee relationship requires that the wrongful conduct involve an unreasonable risk of emotional distress that may result in bodily harm or illness. They contend that Ryan's act of merely telling the plaintiff that she was terminated is not unreasonable conduct as a matter of law.
The plaintiff argues that Ryan's conduct was so extreme and outrageous as to go beyond all possible bounds of decency. Therefore, the plaintiff concludes, Ryan can be held liable for negligent infliction of emotional distress.
"[A] termination may give rise to a claim for negligent infliction of emotional distress if the conduct under review involved an unreasonable risk of . . . emotional distress . . . that . . . might result in illness or bodily harm . . . Implicit in this conclusion is a recognition that emotional distress that might result in illness or bodily harm is a foreseeable consequence of particularly egregious conduct involving a termination, which would, in turn, give rise to a duty to avoid such conduct." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754-55, 792 A.2d 752 (2002).
"[T]he mere termination of employment [however] even where it is wrongful, is . . . not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Id., 750. In other words, the plaintiff must allege "that the actual termination was . . . done in an inconsiderate, humiliating, or embarrassing manner;" (internal quotation marks omitted) Skierkowski v. Creative Graphics Services, Inc., Superior Court, judicial district of New Britain, Docket No. CV 94 0463242 (May 5, 1995, Handy, J.); or that "the manner of the plaintiff's termination from employment was different . . . from the usual termination of employment or that it was done in [a] way that would cause . . . more than the normal upset that would result from any termination of employment." (Internal quotation marks omitted.) Edwards v. Edwards Wines, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5008054 (January 15, 2009, Martin, J.) ( 47 Conn. L. Rptr. 79). While the conduct complained of must have occurred during the termination process, the reasonableness of such conduct will be determined in light of the circumstances surrounding the termination, including events occurring prior to the termination process. Dichello v. Marlin Firearms Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5002796 (January 22, 2007, Zoarski, J.T.R.) ( 42 Conn. L. Rptr. 706); accord Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 63-65, 72-73, 867 A.2d 876 (2005) (holding that pregnant employee stated claim for negligent infliction of emotional distress where she alleged that she was told to perform work she reasonably considered hazardous to her health or leave job site, that she chose to leave rather than endanger her safety and that she was subsequently terminated), cert. denied, 273 Conn. 936, 875 A.2d 543 (2005).
This case is similar to Pyne v. CO-EX Corp., Superior Court, judicial district of New Haven, Docket No. CV 07 5008703 (September 17, 2007, Jones, J.), in which the employee-plaintiff was granted two leaves of absence by the employer-defendant due to emotional problems requiring professional attention. During the second permitted leave of absence, which had been set to end on a date certain, the employer terminated the employee via letter, without first making any effort to help her preserve her employment until her return and without warning her that her job was in jeopardy. Id. Moreover, the employer was not "truthful and reasonable with her in its termination letter." Id. The court found that the facts alleged by the employee stated a cause of action for negligent infliction of emotional distress. See id.
As in Pyne, the plaintiff here alleges that she was permitted to take a leave of absence with a specified return date. During the leave of absence, the plaintiff alleges that she discussed returning to work with employees of DVA, including Ryan. Ryan, like the employer in Pyne, allegedly failed to warn the plaintiff that her job was in jeopardy or to make an effort to preserve the plaintiff's employment until her return. In fact, even though Ryan allegedly discussed with the plaintiff her return to work, she was also alleged to have been actively seeking a means to terminate the plaintiff's employment. The plaintiff alleges further that Ryan, like the employer in Pyne, was less than truthful with the plaintiff in telling the plaintiff of her termination. Specifically, Ryan allegedly gave her a litany of reasons for her termination that the plaintiff alleges she knew were at least of doubtful validity if not patently false, including: (1) failing to pass an exam, although, allegedly, she had been doing the same job for ten years without being required to pass the exam and passage of such exam was not required of other employees doing the same work; (2) the expiration of her contract, although the contract allegedly had approximately one year left on it; and (3) failing to return to work after the expiration of twelve weeks, even though the plaintiff alleges that she had been given sixteen weeks of leave.
It could be concluded from the alleged facts that Ryan should have known that her conduct, involving deception and transparent dishonesty, would cause the plaintiff emotional distress above and beyond that present in a standard termination of employment. At a minimum, such conduct amounts to an inconsiderate means of termination. Therefore, the facts state a cause of action for negligent infliction of emotional distress and the motion to strike is denied as to count four.
5 Count Five — Intentional Interference with a Business Relationship
The defendants argue simply that the plaintiff has failed to allege that there was an intentional interference with her business relationship with the hospital or that such interference, if it existed, was the result of a tortious act. By contrast, the plaintiff contends that she alleges, in paragraphs thirty-nine and forty of count five, the existence of a business relationship between herself and the hospital and that Ryan's acts relating to her termination were tortious and interfered with such relationship.
Connecticut "has long recognized a cause of action for tortious interference with . . . business relations . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the [defendant], knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss." (Citation omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).
A party cannot intentionally interfere with a business relationship unless such party is a stranger to the relationship with which it is alleged to have interfered. 44B Am.Jur.2d 309, Interference § 7 (2007); cf. Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21 (1998) ("[I]t is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties." (Emphasis in original.)), cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).
Under the allegations of count five, the plaintiff's only business relationship with the hospital was through her employment with DVA, which had a contractual relationship with the hospital. The plaintiff alleges that she worked directly for the hospital prior to applying for and being hired for the position advertised by DVA. She does not allege, however, that she had an independent working relationship with the hospital at the time she was terminated. The allegations show that, at such time, she was working at the hospital in her capacity as a DVA employee. Because DVA was not a stranger to the relationship between the plaintiff and the hospital, it cannot be said to have intentionally interfered with such relationship. See Benefit Support, Inc. v. Hall County, 281 Ga.App. 825, 831, 637 S.E.2d 763 (2006) ("Where the defendant is the entity the third party hires to administer, operate, or promote the event that forms the basis for the business relationship between the plaintiff and the third party, the defendant is no stranger to that relationship and cannot be held liable for interfering therewith."), cert. denied, Case No. S07C0306 (Ga. February 26, 2007).
Similarly, in order for count five to state a claim against Ryan, the plaintiff must allege, among other things, that Ryan was a stranger to the relationship. It has been held that "[a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., supra, 49 Conn.App. 168; see also 44B Am.Jur.2d 310, Interference, § 8 (2007). Applying this principle to the present situation, Ryan could not be held liable for interference if she was acting within the scope of her authority as an agent of DVA, because that would in effect impermissibly hold DVA liable for interfering with a relationship to which it is not a stranger. If Ryan were acting outside of the scope of her authority, however, she would be deemed a stranger to the relationship and could be held liable. See id. ("[The agent] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain").
The plaintiff has failed to allege any facts from which the court could conclude that Ryan acted outside of the scope of her authority in terminating the plaintiff's employment. There are no allegations of the nature and extent of her authority to terminate employees. Therefore, count five does not state a cause of action for intentional interference with a business relationship against Ryan. Accordingly, the motion to strike is granted as to count five.
6 Count Six — Negligent Misrepresentation
The defendants argue that count six should be stricken because the plaintiff has failed to allege that either defendant made any misrepresentation of material fact to her. They further argue that, even if they made any such misrepresentation, there are no allegations establishing that the plaintiff relied on any such misrepresentation or that such misrepresentation was made with the intent to induce reliance.
The plaintiff argues that the defendants represented to her that she was an employee of DVA, when in actuality she was an employee of the hospital. She also argues that she relied on this misrepresentation and that such reliance resulted in her termination.
To state a claim for negligent misrepresentation, the plaintiff must allege that (1) the defendant made a misrepresentation of fact, (2) the defendant knew or should have known the representation was false, (3) the plaintiff reasonably relied upon the misrepresentation, and (4) the plaintiff suffered pecuniary harm as a result. See Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005).
Based on the allegations, read in the light most favorable to the plaintiff, the plaintiff did not reasonably rely on any representation that she was an employee of DVA. The plaintiff alleges that she was terminated as a result of her pregnancy, or her use of family and medical leave time, or both. There is no indication that, if she had understood that she was not an employee of DVA, but rather the hospital itself, she would not have gotten pregnant or taken family and medical leave time. Therefore, count six fails to state a cause of action and the motion to strike is granted as to such count.
7 Count Seven — Wrongful Termination
The defendants contend that count seven is legally insufficient because the plaintiff did not plead the nature of the public policy that she claims the defendants violated in terminating her. The plaintiff responds that the facts alleged establish that her termination, which was in response to her pregnancy and her use of family and medical leave, violated the public policy in favor of protecting children and promoting a parent's ability to care for his or her children. She points out that such public policy is enshrined in CFEPA. Thus, the plaintiff concludes, count seven establishes that her termination was wrongful.
In Connecticut, where employment is at-will, an employer may not terminate an employee for a reason founded on "impropriety derived from some important violation of public policy." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 698, 802 A.2d 731 (2002). A sufficient public policy violation may be found where the termination involves the violation of "any explicit statutory or constitutional provision . . . or . . . any judicially conceived notion of public policy." (Internal quotation marks omitted.) Id., 699. The class of public policy violations that are actionable is a narrow one, however; the public policy violated must be "important and clearly articulated;" Id., 700-01. "[T]he employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 853, 863 A.2d 735 (2005). Contrary to the defendants' assertion, the plaintiff need not explicitly cite a particular public policy; it is sufficient that the facts alleged amount to the violation of an important, clearly defined public policy. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Moreover, whether the public policy implicated is sufficient to sustain a wrongful termination claim is a question of law. Id.
Reading the allegations of count seven in the light most favorable to the plaintiff, it could be concluded that the plaintiff was terminated was because she was pregnant and that such termination violated the public policy against pregnancy discrimination found in CFEPA, specifically General Statutes § 46a-60. The Supreme Court has implicitly held that the anti-discrimination policy of CFEPA is an important, clearly defined public policy, but only when applied to employers of three or more persons. See Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 706, 709; accord Cyr v. Mountain Grove Cemetery Assn., Superior Court, judicial district of Fairfield, Docket No. CV 03 0401575 (July 18, 2003, Wolven, J.) ("[T]he policy underlining the Connecticut Fair Employment Practices Act could support the plaintiff's common law claim [for wrongful termination]"). The plaintiff has alleged that DVA employed more than fifteen employees. Therefore, DVA may be liable for violating the public policy against pregnancy discrimination enshrined in CFEPA. Accordingly, count seven is not deficient on the ground that the plaintiff has failed to plead the violation of an important, clearly defined public policy. The motion to strike, as to count seven, is denied.
The Supreme Court held in Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 706-10, that the legislature's exclusion of employers of fewer than three persons from the provisions of CFEPA; see General Statutes § 46a-51(10); reflected a contrary public policy shielding small employers from having to defend discrimination claims and thus concluded that the public policy of CFEPA cannot sustain a wrongful termination claim against an employer excluded from its provisions. Presumably, if the public policy of CFEPA were categorically insufficient, the Court would not have felt it necessary to determine whether the number of employees working for an employer was relevant to the legal sufficiency of a wrongful termination claim based on such public policy.
III CONCLUSION
For the above reasons, the motion to strike is granted as to counts two, three, five and six and denied as to counts one, four and seven.
It is so ordered.