Opinion
HHBCV136021020S
08-09-2018
Keishla M. GONZALEZ fka Keishla Santiago v. CELEBRATION FOODS, LLC et al.
UNPUBLISHED OPINION
OPINION
Morgan, J.
The plaintiff Keishla M. Gonzalez f/k/a Keishla Santiago (plaintiff) brings this action against her former employers, Celebration Foods, LLC, CF Foods, LLC and Rich Products Corporation (defendants) alleging the following claims: violation of General Statutes § 31-290a (First Count) and negligent infliction of emotional distress (Second Count). The court, Young, J., previously granted summary judgment as to the Third Count which alleged intentional infliction of emotional distress.
The court’s memorandum of decision granting summary judgment as to the third count, but denying summary judgment as to the first and second counts, was issued on March 22, 2017 and is docketed at Entry No. 171.00. (Summary Judgment Decision.)
The defendants have filed a motion in limine seeking to preclude any evidence regarding the defendants’ allegedly inappropriate light duty assignments to the plaintiff upon her return to work on October 11 and 12, 2011, including any evidence that (1) the defendants allegedly failed to provide her with suitable light duty work assignments; (2) the light duty work she was assigned aggravated her pre-existing work-related injuries and/or caused new injuries to her wrists and arms; and (3) the light duty assignments caused the plaintiff emotional distress. The plaintiff objects to the motion on the grounds that evidence related to the defendants’ treatment of her on October 11 and 12 is highly relevant to her retaliation/discrimination and damages claims and that such evidence should not be precluded at trial. The court heard argument on the matter on June 18, 2018. For the following reasons, the defendants’ motion in limine is denied in part and granted in part.
A. Background
The plaintiff was hired by the defendants as a cake decorator on September 8, 2009. After three days on the job, she injured her right hand, forearm and wrist. Over the next two years while still employed by the defendants as a cake decorator, the plaintiff suffered multiple work-related injuries for which she received workers’ compensation benefits. Some of those injuries required the plaintiff to undergo surgery, including surgery on her right wrist which was performed on July 18, 2011. On September 29, 2011, the defendants received notice that the plaintiff filed a workers’ compensation claim for a repetitive trauma to her right and left wrists, elbows and upper extremities, and to her neck.
After several follow-up visits with her wrist surgeon, the plaintiff was ultimately cleared for light duty work with certain restrictions. She returned to work on October 11, 2011, where she was given light duty assignments. The plaintiff worked for two days, October 11 and 12, doing paperwork, sorting gloves and cleaning bathroom doors and baseboards. On the third day, October 13, the plaintiff asked to leave work early to seek medical attention for pain she was experiencing in her hands as a result of scrubbing baseboards the day before. The plaintiff was told by her employer that if she left work early it would count as an unexcused absence and she would then exceed the number of allowed absences under the defendants’ attendance policy. The plaintiff nevertheless left her shift early. The defendants thereafter terminated her employment on the stated reasons that the plaintiff refused light duty work and that she had exceeded the maximum number of absences from work per company policy.
The plaintiff alleges that the defendants discriminated against her in retaliation for having filed workers’ compensation claims by intentionally assigning her light duty work on October 11 and 12 that exceeded her medical restrictions and then terminating her employment under false pretexts after the injurious work aggravated her pre-existing work-related injuries and permanently disabled her. She further alleges that the defendant’s conduct caused her to suffer emotional distress. The plaintiff seeks money damages for loss of income, physical pain and suffering, permanent physical injuries, severe emotional distress and a significant decrease in the quality of her life.
B. Motion in Limine Standard
Connecticut Practice Book § 15-3 provides in relevant part that "[t]he judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence." "The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial ..." (Internal quotation marks omitted.) State v. Lo Sacco, 26 Conn.App. 439, 444, 602 A.2d 589 (1992).
The Connecticut Code of Evidence provides that " ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." Conn. Code Evid. § 4-1. "Evidence that is not relevant is inadmissible." Conn. Code Evid. § 4-2.
Section 4-3 of the Connecticut Code of Evidence provides that "[r]elevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Conn. Code Evid. § 4-3. A court has "wide discretion to exclude relevant evidence" to prevent unfair prejudice, confusion, or delay. Considine v. Waterbury, 279 Conn. 830, 868 n.19, 905 A.2d 70 (2006).
C. Retaliation/Discrimination Claim- Count One
The defendants first claim that to the extent that the plaintiff plans to offer evidence at trial relating to the suitability of her light duty assignments on October 11 and 12, such evidence should be precluded because such claims fall within the purview of General Statutes § 31-313 of the Workers’ Compensation Act, and thus, are within the exclusive jurisdiction of the workers’ compensation commissioner. The plaintiff counters that the exclusivity provisions of § 31-313 do not apply in this case because her claim is not that the defendants failed to make light duty work available to her- a claim admittedly within the exclusive jurisdiction of the workers’ compensation commissioner- but rather that her employer discriminated against her by engaging in a systematic plan to terminate her in retaliation for filing a workers’ compensation claim.
General Statutes § 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to this chapter. (b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court ... 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 he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge ... or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section." Thus, § 31-290a allows an individual who alleges discrimination because she filed a workers’ compensation claim the right to pursue her claim with either the Superior Court or the Workers’ Compensation Commission.
On the other hand, General Statutes § 31-313 provides an employee an administrative remedy and places disputes over the availability of light duty within the exclusive jurisdiction of the workers’ compensation commissioner. Section § 31-313 provides in relevant part: "(a)(1) Where an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available ... (2) The commissioner shall conduct a hearing upon the request of an employee who claims his employer has not transferred him to such available suitable work (b) The commissioner shall conduct a hearing upon the request of an employee claiming to be unable to perform his customary or most recent work because of physical incapacity resulting from an injury or disease ... (c) Whenever the commissioner finds that an employer has failed to comply with the transfer requirements of subdivision (1) of subsection (a) of this section, or has failed to comply with any transfer order issued by him pursuant to this section, he may assess a civil penalty of not more than five hundred dollars against the employer."
The interplay between § 31-290a and § 31-313 in relation to the plaintiff’s claims was addressed by the court in the Summary Judgment Decision. In rejecting the defendants’ argument that the court did not have subject matter jurisdiction over the plaintiff’s retaliation claim because claims regarding the suitability of light duty work are only properly brought under § 31-313, the court held: "If the issue were solely that the defendants failed to provide appropriately suitable work to the plaintiff, then § 31-313 would be applicable and this court would not have jurisdiction. However, the plaintiff’s claim in the first count is not solely that the defendants failed to provide suitable work, but that the work provided caused the plaintiff injury. The allegation of inappropriate work assignment is only one component of a claim of retaliation pursuant to § 31-290a. The factual issue is not just the availability of suitable work but the conduct and motivation of the defendants leading to the plaintiff’s decision to leave her shift early in violation of the defendants’ attendance policy, thus leading to her termination. Subsection (a) of § 31-290a provides a choice of forum, including the Superior Court. The plaintiff has elected to pursue her claim in the Superior Court. This court has subject matter jurisdiction over the retaliation claim." (Footnote omitted.) Summary Judgment Decision, pp. 8-9.
In the memorandum of law supporting their motion in limine, the defendants argue that Judge Young previously held in the Summary Judgment Decision that the court does not have jurisdiction over any claims relating to the suitability of plaintiff’s light duty assignments on October 11 and 12. The court disagrees with the defendants’ characterization of Judge Young’s holding. As quoted above, Judge Young recognized that the plaintiff’s claims in this case are not about compelling an employer to provide light duty work (and thus within the exclusive jurisdiction of the workers’ compensation commissioner) but, rather, her claims are for discrimination or retaliation for exercising rights under the Workers’ Compensation Act through the type of light duty work provided, i.e., light duty work that exceeded her medical restrictions with the ultimate goal being her termination.
The case of Longolucco v. Norwich, United States District Court, Docket No. 3:10CV0938 (WWE) (D.Conn. January 12, 2012) is closely on point with this case. In Longolucco, the defendants filed a motion in limine, similar to that filed by the defendants in the present case, seeking to preclude the plaintiff from offering evidence regarding a failure to provide the plaintiff with reasonable accommodations or failure to abide by his medical restrictions. The defendants argued this evidence was irrelevant to the plaintiff’s § 31-290a claim. Id. The court denied the motion, concluding that the evidence the plaintiff sought to introduce was relevant to his prima facie case of discrimination as well as his burden of persuading the jury that the employer’s motive was discriminatory, writing: "In this case, plaintiff seeks to introduce documentation of his requests for accommodations and the defendants’ alleged failure to abide by his medical restrictions. Such evidence is relevant to plaintiff’s prima facie case of discrimination. Plaintiff has the burden of presenting sufficient evidence to find: (1) that plaintiff engaged in protected activity; (2) that defendant employer was aware of this activity; (3) that defendant employer took adverse action against plaintiff; and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action ... The evidence that defendants seek to preclude is relevant to the first, second and fourth elements. In addition, defendants’ failure to provide plaintiff with reasonable accommodations or failure to abide by his medical restrictions is relevant to plaintiff’s ultimate burden of persuading the factfinder that he was a victim of retaliatory discrimination, i.e., that the employer’s motive was discriminatory." (Citation omitted.) Id. See also Clouston v. On Target Locating Services, United States District Court, Docket No. 3:01CV2404 (DJS) (D.Conn. August 19, 2005) ("[a]lthough the ability to compel the employer to provide light duty rests with the Workers’ Compensation Commission ... [plaintiff] can bring this [§ 31-290a] claim because he is not alleging a failure to provide light duty but rather demotion in retaliation for asserting this right" [citation omitted] ).
This court concludes, consistent with Judge Young’s Summary Judgment Decision and the other authorities cited above, that the plaintiff’s claims regarding her light duty assignments on October 11 and 12 do not fall within the exclusive purview of the workers’ compensation commissioner under § 31-313, but rather, are properly asserted within the context of the plaintiff’s § 31-290a claim. Consequently, evidence of the plaintiff’s light duty assignments on October 11 and 12 is relevant to her retaliation/discrimination claim. The court finds further that the probative value of such evidence is not outweighed by the danger of unfair prejudice, surprise or juror confusion at trial.
The defendants’ second claim is that evidence regarding any alleged worsening of the plaintiff’s preexisting work injuries, new physical injuries or related emotional distress caused by the defendants’ alleged failure to provide the plaintiff with suitable light duty assignments on October 11 or 12 should be precluded because such claims are barred by the exclusivity provisions of § 31-284 of the Workers’ Compensation Act. The plaintiff counters that § 31-284 does not bar her physical injury and emotional distress claims because her claims are governed by § 31-290a, which allows her to seek recovery for any damages caused by the defendants’ discrimination or discharge, including compensation for all physical injuries and related emotional distress caused by the defendants’ wrongful conduct.
General Statutes § 31-284(a) provides in relevant part: "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury ... sustained in the course of employment are abolished other than rights and claims given by this chapter ..." (Emphasis added.) As noted above, § 31-290a allows a plaintiff to bring a civil action in the Superior Court "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 he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge." (Emphasis added.)
The court disagrees with the defendants’ position that the exclusivity provisions of § 31-284 bar the plaintiff from seeking damages for physical injuries and related emotional distress when pursuing a retaliation/discrimination claim under § 31-290a. In Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 62, 578 A.2d 1054 (1990), our Supreme Court recognized that "[s]ection 31-290a has never been considered a part of the overall workers’ compensation benefit package. It is self-evidently a separate and distinct remedy intended to protect and buttress the rights of workers’ compensation claimants." In Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 487, 628 A.2d 946 (1993), the court also described § 31-290a as "a remedial statute that was intended to guarantee the rights afforded to injured employees under our workers’ compensation laws. Section 31-290a provides broad remedies to an employee improperly discharged for filing for workers’ compensation benefits, including reinstatement, back wages, compensatory damages, attorneys fees, costs and punitive damages. The creation of the substantive right to bring an action for unjust dismissal, and the inclusion of these broad remedies, indicate that the legislature intended that employees should be able to enforce judicially their right to workers’ compensation benefits by subjecting employers to the significant liability that can be imposed only in an action brought pursuant to § 31-290a."
The plain language of § 31-284, abolishing rights and claims between an employer and employee arising out of and in the course of employment "other than rights and claims given by this chapter ," together with the remedial nature of § 31-290a and our Supreme Court’s recognition of the separate and distinct remedies provided to employees by § 31-284 and § 31-290a, contradict the defendants’ restricted view that the remedies afforded under § 31-284 supplant, preclude or trump the remedies afforded under § 31-290a. These same factors lead the court to conclude that the exclusivity provisions of § 31-284 do not bar the plaintiff from seeking damages for physical injuries and related emotional distress in connection with her § 31-290a claim.
The court also rejects the defendants’ claim that the plaintiff cannot seek damages in this case for any alleged aggravation to or worsening of her preexisting work injuries, new physical injuries or related emotional distress. Section 31-290a expressly allows a plaintiff to bring a civil action for reinstatement, back wages and benefits and "any other damages" caused by an employers’ discrimination or discharge. The phrase "any other damages" was examined by the court in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 62. In Ford, the defendant claimed that § 31-290a did not provide for the recovery of emotional distress damages or other types of consequential damages. The court flatly rejected this argument, stating: "We need not tarry long on this issue, because the clear language of the statute is dispositive." Id. Finding the phrase "any other damages" clear and unambiguous, the court held that according to the plain language of § 31-290a, the trial court properly submitted the plaintiff’s claim for emotional distress damages to the jury. Id., 63. See also, Cruz v. Montane, 294 Conn. 357, 369, 984 A.2d 705 (2009) (holding that "for purposes of § 31-293(a) [of the Workers’ Compensation Act], the term ‘any damages’ means damages of whatever kind or sort, without limitation"); Oakes v. New England Dairies, Inc., 219 Conn. 1, 9-10, 591 A.2d 1261 (1991) (holding that plaintiff could recover damages for emotional distress under § 31-290a without proving the distinct tort of intentional infliction of emotional distress).
The foregoing cases illustrate that the phrase "any other damages" as used in § 31-290a should be interpreted broadly and in accordance with its plain meaning. Thus, the court concludes that the phrase means damages of any kind, whether physical, mental or emotional, caused by an employer who discharges or discriminates against an employee because the employee filed a claim for workers’ compensation benefits or otherwise exercised her rights under the Workers’ Compensation Act. Consequently, evidence supporting the plaintiff’s damages claim of aggravation to or worsening of preexisting work injuries, new physical injuries or related emotional distress is relevant to her retaliation/discrimination claim. The court finds further that the probative value of such evidence is not outweighed by the danger of unfair prejudice, surprise or juror confusion at trial.
Finally, the defendants argue in their reply memorandum that the light duty work assigned to the plaintiff on October 11 and 12 does not, as a matter of law, constitute "adverse action against the plaintiff," an essential element of a § 31-290a claim. The plaintiff counters that the improper light duty assignments, coupled with her ultimate termination, constitutes an adverse employment action as that phrase has been interpreted by our courts. The court is not persuaded that the October 11 and 12 work assignments do not constitute "adverse action against the plaintiff" as a matter of law such that evidence regarding the light duty assignments and any injuries arising therefrom should be precluded at trial.
Having found, supra, that evidence regarding the plaintiff’s light duty assignments on October 11 and 12 and any damages allegedly arising therefrom is relevant to plaintiff’s § 31-290a claim and that the probative value of such evidence is not outweighed by the danger of unfair prejudice, surprise or juror confusion at trial, the court will not address the remaining arguments advanced by the plaintiff in opposition to the defendants’ motion in limine.
D. Negligent Infliction of Emotional Distress Claim- Count Two
Turning to the plaintiff’s negligent infliction of emotional distress claim, the defendants argue that the plaintiff should be precluded from introducing evidence of her treatment by the defendants on October 11 and 12, including the suitability of her work assignments, whether the assignments aggravated or caused any new physical injuries, or related psychiatric injuries, how she felt performing those assignments, or whether she suffered any emotional distress as a result of those assignments. The plaintiff did not respond to this argument. The issue, however, was addressed by the court in the Summary Judgment Decision, p. 15:
‘[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process.’ (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). Our Supreme Court, in Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), clarified that an individual ‘may not be found liable for 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. [T]he language of Perodeau itself is restrictive. The holding is phrased narrowly: the tort is maintainable only for conduct occurring in the termination of employment. Language such as conduct in the discharge process is not used; such language perhaps would contemplate a more expansive time frame. Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means ending, not the conduct which causes the ending.’ (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 772, 54 A.3d 221 (2012). Thus, the plaintiff’s allegations of the defendants in the days prior to her termination cannot be considered in support of her claim of negligent infliction of emotional distress. The facts upon which the plaintiff may rely are limited to the circumstances of her termination.
The court agrees with Judge Young’s conclusion and finds that evidence of the plaintiff’s treatment by the defendants on October 11 and 12 and any resulting injuries therefrom is not relevant to the plaintiff’s negligent infliction of emotional distress claim. Such evidence is therefore properly excluded, but only in connection with the independent tort claim asserted in the Second Count of the complaint.
E. Conclusion
For the above stated reasons, the defendants’ motion in limine seeking to preclude any evidence regarding the defendants’ allegedly inappropriate light duty assignments to the plaintiff upon her return to work on October 11 and 12, including any evidence regarding the suitability of her light duty work assignments, or that the light duty work aggravated her preexisting work-related injuries and/or caused new injuries to her wrists and arms, and caused her emotional distress is DENIED with respect to the plaintiff’s § 31-290a claim in the First Count of the complaint but GRANTED with respect to the plaintiff’s negligent infliction of emotional distress claim in the Second Count of the complaint.
Additionally, the court will not address the defendants’ argument that the plaintiff cannot avail herself of any claim that the intentional injury/substantial certainty tort exception applies here because the plaintiff confirmed during oral argument on the motion in limine that she does not intend to pursue such a claim in this case.