Opinion
No. CV04-0488908S
October 19, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
(1)
This case involves claims in three counts (1) a claimed violation of the Connecticut Fair Employment Practices Act by the defendant company (2) Breach of an Implied Contract by the defendant (3) a defamation claim against a company official, Dennis Cadden.
The court will briefly give the factual background to the case and will refer to other facts in the discussion of the merits of the motion as to each of the counts.
The plaintiff, Mr. Graham, was an employee of the defendant company for many years. In October 2002 the company announced a reorganization of its Information Technology Department. As a result Graham was to report to Frank Wang, Dennis Cadden, and John Omasta. Graham was not pleased with the reorganization because of prior problems he had with Mr. Omasta. On October 10, 2002 Dennis Cadden stated the plaintiff made several remarks of a generally threatening nature. Cadden reported this to company officials. Eventually the Human Resources Department through one of its officials, Ms. Russell, looked into the matter. Graham was suspended with pay and referred to a psychologist chosen by the company to do a psychological examination of Graham to determine his fitness to return to work in light of the remarks he allegedly made. Dr. Zacker concluded he was not fit to return to work and recommended Graham have sessions with an anger management specialist to try to ensure his fitness to return to the workplace. Representations were made to Graham about the investigation that would be conducted to determine if he made the threatening remarks, which he denied, and also regarding the prospects of his returning to work. At the time of these events the company had a printed workplace violence document and an employee manual; the manual stated none of the representations in it was intended to form a contract of permanent employment, the relationship was at-will according to the manual.
The plaintiff saw a treater who concluded he had no psychological problems and that he presented no danger in the workplace. Graham then did not comply with Dr. Zacker's recommended treatment protocol and he was terminated in March 2003.
(2)
The standards to be applied on a motion for summary judgment are well known. Such a motion should not be granted if there is a genuine issue of material fact because a litigant has a constitutional right to a jury trial. On the other hand if there is no genuine issue of material fact that would prevent the granting of the motion it should be granted to avoid the expense and burden of litigation trial of the particular claim would entail.
Defamation Count (1)
The defendant Cadden states that "in the Fourth Count plaintiff claims that Cadden's report of plaintiff's threatening remarks under BIPI's Workplace Violence Policy constitutes defamation." This claim fails argues the defendant because "Cadden's report concerning plaintiff's remarks is a non-defamatory statement of opinion." The defendant specifically refers to paragraphs 5 and 6 of the second revised complaint:
5. On or about October 10, 2003, defendant Cadden falsely and maliciously stated to one or more high ranking officials of BIPI that the plaintiff had threatened to bring a gun into the workplace and `go postal,' among other things.
6. Defendant Cadden thereby falsely and maliciously accused the plaintiff of a serious crime.
The defendant's position, at least to the court, is somewhat confusing in that it seems to go beyond a mere attack on the legal sufficiency of the claim as set forth in the foregoing paragraphs. Thus at page 32 of the brief it says:
Plaintiff's defamation claim is based on Cadden's report that Plaintiff threatened to `go postal.' (Amd. Compl., Fourth Count ¶ 5.) Plaintiff does not dispute that he made comments which, as a matter of opinion, could be understood to have violent connotations. Plaintiff admits to making the following comments to his coworkers regarding the reorganization and his transfer: `it's not over til it's over,' `it's not over yet;' and `it is a good thing that the guy in Maryland has the unlisted phone number,' referring to the sniper who at the time was `shooting people in gas stations and things like that.' (Pl. Dep., 51, 322.) That Cadden understood these remarks to make Plaintiff a risk for bringing a gun into the workplace or other workplace violence is a matter of pure opinion which cannot, as a matter of law, support liability for defamation. See Chesebrough-Pond's, 918 F.Sup. at 551-52. Accordingly, the Fourth Count should be dismissed.
In any event the defendant is correct in stating that in our state the fact/opinion test for defamation is operative. The court in Daley v. Aetna Life Casualty Co., 249 Conn. 766 (1999) said: "To be actionable (in defamation the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion. The court went on to quote from the trial court's jury instructions with apparent approval to the effect that . . ." a statement must be an expression of fact such as is he a thief . . . a statement cannot be an opinion such as I think he is a thief or a question such as is he a thief," id. pp. 795, 796. Section 566 of the Restatement (2d) Torts says that "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts." By way of recapitulation of this rule which our state follows the Restatement referred to four fact patterns at page 175, Volume 3 one of which is of relevance to this case
(1) If the defendant bases his (her) expression of a derogatory opinion of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual statement but not for the expression of opinion.
But the statement of fact/opinion rule does not support the defendant. What was reported to company higher ups by Cadden which forms the basis of the defamation claim — bringing a gun to work and "going postal" — were not "opinions" of Cadden regarding what he believed were representative of a threat presented by the plaintiff. The gravamen of Graham's complaint is that the report by Cadden attributed false quotations to the plaintiff which, as quotations, were defamatory. Connecticut cases accept the standard common-law definition of defamation as set forth in § 559 of Restatement (2d) Torts that "a communication is defamatory if it tends so as to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him," Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004); Q.S.P, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356 (2001). Prosser Keeton on the Law of Torts, 5th ed., § 111, page 773 say that: "Defamation is rather that which tends injure `reputation' in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him (or her)." In other words where a quotation is falsely attributed to a party, that party is defamed by the mere false attribution of the quotation if it is defamatory in the sense referred to above.
Although this particular aspect of defamation usually occurs in actions brought against news organizations, see Masson v. New Yorker Magazine Inc., 501 U.S. 496 (1990) the observations of Masson illustrate that an attribution of a false quotation defamatory in character can be as damaging as a defamatory factual statement. Thus at page 511 the court said:
In general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker's words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author's work. Quotations allow the reader to form his or her own conclusions and to assess the conclusions of the author, instead of relying entirely upon the author's characterization of her subject.
A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.
Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.
The observations are pertinent whether the defamatory quotation is offered by means of a publication to a reader or to a person who is meant to hear it.
The point is that the fact/opinion dichotomy of defamation law does not appear to be relevant to the inquiry now before the court. This is only underlined by the defendant's reliance on a case like Johnson v. Chesebrough-Pond's USA Co., 918 F.Sup. 543 (D.Conn., 1996). In Johnson the allegations of defamation were clearly opinions expressed by the company as to allegedly malicious and false job performance reviews and "negative statements" made by company agents made "to recruiters after (the plaintiff's) termination," id., p. 551. That is not what we have here; we do not have a statement of an opinion by Cadden as to Graham's potential for violence. We have a statement by Cadden, in effect, of a fact — that Graham made statements. And the statements, if believed by the hearer as coming from Graham, by their very nature would defame him.
(2)
In defense to the defamation claim the defendant also relies upon a qualified or conditional privilege. Judge Dupont in Miles v. Perry, 11 Conn.App. 584 (1987) at footnote 8 on page 594 summarizes the law in this area (internal cites to earlier case law omitted).
A qualified or conditional privilege arises out of an `occasion,' such as, when one acts in the bonafide discharge of a public or private duty . . . Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant. It is for the court to determine, as a matter of law, whether the defendant made the defamatory statements while acting on an occasion of privilege, as in the bona fide discharge of a public or private duty It is a question of fact for a court or a jury, however, to determine whether the defendant has abused a conditional privilege . . . A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith . . . Therefore, a conditional privilege may be recognized only where the statement is made in good faith, without malice, in an honest belief in the truth of the statement, and in discharge of a public or private duty . . .
See also discussion at § 157, pp. 422, et seq. Connecticut Law of Torts, Wright, Fitzgerald Ankerman.
The defendant cites Torosayan v. Boehringer Ingelheim Pharmaceuticals Inc., 234 Conn. 1 (1995) to support its position that the factual situation here was a proper occasion for Mr. Cadden to report to company managers or executives the information claimed to be defamatory. In Torosayan the court said: "We agree with the defendant that communications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business." The court cites Section 596 of the Restatement (2d) Torts to support its view which says
§ 596. Common Interest
An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing that common interest is entitled to know.
It would certainly seem true that statements of a fellow employee threatening or presenting the possibility of workplace violence should be communicated with management if the business is to be run with regard to the physical safety of other employees — a subset requirement of ensuring the efficient operation of any business. In effect a person in Cadden's situation would have a so-called "private duty" to inform management of threatening remarks by Graham.
The difficulty with the defendant's position, however, is not that the occasion does not present a situation justifying a conditional or qualified privilege. That is true as a matter of law. The problem here is that the privilege would have been abused if Cadden communicated to company officials what Graham claims is a false quotation, something Graham denies saying. As said by Judge Dupont a conditional privilege is recognized only if a statement is made "in good faith, without malice, in an honest belief in the truth of the statement . . ." supra, cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618 (1955), see Restatement (2d) Torts, § 500 which states the privilege is abused if the publisher "(a) knows the matter to be false or (b) acts in reckless disregard as to its truth or falsity." As Prosser says following his discussion of abuse of the privilege where malice is involved: "Finally there is no social advantage in the publication of a deliberate lie, the privilege is lost if the defendant does not believe what he says," § 115, page 834, Prosser and Keeton on Torts. See also Williams v. Bell Telephone Laboratories Inc., 693 A2d 234, 240 (1993) where the New Jersey Supreme Court said that: "The public policy underlying the qualified privilege recognizes the necessity that true information be given whenever reasonably required for `the protection of one's own interests, the interests of third persons or certain interests of the public' . . . The privilege is abused if (1) the publisher knows the statement is false or the publisher acts in reckless disregard of its truth or falsity . . ."
That is exactly the claim here. The plaintiff says Mr. Cadden defamed him by publishing what were purported to be statements by Graham that Graham threatened to bring a gun to work and "go postal" in light of a work place reorganization of which he disapproved. Mr. Cadden denies that he misquoted what Graham said or recklessly spread false quotations. In light of the foregoing discussion a material issue of fact is presented which the court cannot decide so it therefore denies the motion for summary judgment directed at this count.
BREACH OF CONTRACT (a)
In the third count of the complaint the plaintiff advances a breach of contract claim against Boehringer. The substance of the complaint is set forth in the 11th and 12th paragraphs.
11. Pursuant to the terms of its written and implied contracts with the plaintiff, the defendant BIPI agreed, in exchange for the plaintiff's services, to conduct a full, thorough, fair and impartial investigation of any and all allegations of misconduct brought against the plaintiff before taking any disciplinary action against him.
12. In violation of its aforesaid contractual obligations, defendant BIPI did not conduct a full, thorough, fair and impartial investigation of the false allegations brought against the plaintiff. Instead, on March 4, 2003, for failure to "demonstrate your ability to return to the workplace without posing a risk to yourself or others."
Despite the broad language of paragraph 11 the plaintiff, in his opposition to the motion for summary judgment as it is directed against the breach of contract claim, narrows the ambit of that claim and appears to recognize the employee handbook contains an express disavowal that anything in it constitutes a binding contract. At pages 13 and 14 of his brief the plaintiff says two high corporate officials promised after Cadden made accusations that Graham threatened violence in the workplace "that a `thorough investigation' would be conducted before any action was taken against him. Based upon those explicit promises, the plaintiff accepted his paid suspension and complied with corporate instructions to consult with mental health providers and refrain from communicating with other company employees." The brief goes on to say one of the corporate officials who made the foregoing promise admitted that "the investigation conducted was anything but thorough."
The plaintiff then defines the scope of his argument where at page 14 he says:
The company argues, however, that because its corporate employee handbook contains an express disavowal that anything in the handbook constitutes a contract, it has no contractual obligation to the plaintiff. The plaintiff's breach-of-contract claim, however, is not based upon the handbook. It is based, rather, upon entirely separate and explicit promises made for the purpose of obtaining the plaintiff's compliance with the employer's wish to put him out of the premises and keep him out of contact with other employees.
In light of the foregoing the court will try to set forth the principles which will govern its analysis. First it should be noted that as said in Torosyan v. Boehringer, 234 Conn. 1, 13 (1995) . . ."all employer-employee relationships not governed by express contracts involve some type of implied `contract' of employment . . . `otherwise the employee would not be working.'"
The court went on to say "Pursuant to the legal principles governing such contracts, in order to find that an implied contract of employment incorporates specific representations orally made by the employer or contained in the provisions in an employee manual, the trier of fact is required to find the following subordinate facts . . . that the employer's oral representations or issuance of a handbook to the employee was an `offer' . . . (and) . . . that the employee accepted that offer," id., pp. 13-14.
After employment commences the nature of the implied contract between the parties can of course be changed as is true in any other contractual relationship as long as the criteria of offer and acceptance are met. As the Torosyan court said at page 14:
Subsequent oral representations or the issuance of subsequent handbooks must be evaluated by the same criteria. To be incorporated into the implied contract of employment, any such representations or handbook must constitute an offer to modify the preexisting terms of employment by substituting a new implied contract for the old. Furthermore, the proposed modifications, like the original offers, must be accepted. See 1 Restatement (Second), Contracts § 45 and illustration 8 (1981); 2 Restatement (Second), Contracts § 279 (1981); see also 1 E. Farnsworth, Contracts (1990) § 3.24, p. 290.
Subsequent manuals or representations can thus modify the contractual relationship between parties even where the employee manual so modified contains language containing "appropriate disclaimers of the intention to contract," Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199 at fn. 5. All such limitations in employee manuals do is make clear that the common-law implied employment contract is operative which is at-will and incorporates general terms such as hours, wages, and general job responsibilities. But nothing in contract law bars the modification of such an implied contract.
Nothing in Lowe v. Amerigas Inc., 52 F.Sup.2d 349 (D.Conn. 1999), relied on by the defendant, supports a different view of our state's contract law and if it did our appellate courts' views on the subject would control. In Lowe the plaintiff had executed an acknowledgment that he was an at-will employee and had received a written policy that stated he could be "terminated without cause and without notice," id., page 356. The plaintiff tried to argue that in the job interview process an area manager represented he would not be discharged except for cause. Lowe did not involve a claim that an implied in fact contract had arisen subsequent to the commencement of employment. The Lowe court also noted the written policy he was issued said no company representative had authority to make an agreement negating the at-will status referred to in the policy. No such language is contained in the Employee Guide involved in this case it merely contains language eschewing contract foundation by the mere fact of issuing the guide.
The court will now try to apply some of these general principles to the case before it. It is no doubt true that the employee manual in existence at the time of the incidents in question explicitly indicates that nothing in its contents can "be considered in any way as creating any right, contract or guarantee of employment, of benefits or of working conditions between an employee and the company." Subsequent to the operative date of that employee guide or manual these incidents of alleged threatening behavior and remarks by Mr. Graham occurred and were reported to company officials.
The issue before the court then is did the words or actions of company officers to Graham after it was alleged he used threatening language create an implied contract. If so its creation would necessarily be subsequent to the Employee Guide language which the defendant relies upon for its position that as an at-will employee Graham could be fired for any reason or no reason at all.
There was a document issued by the Human Resources Department entitled: "Personnel Policies and Procedures: Subject: Workplace Violence." It was issued three years after the Employee Guide eschewing contract formation and does not refer to the guide. The plaintiff does not appear to claim and there is anything in the workplace violence guide creating a contractual commitment to conduct a thorough investigation before an employee accused of such violence is disciplined or terminated. Its language is rather geared to admonishing workers to report violent acts or threats so company investigators can look into any incident. In fact employees are told failure to report such conduct can lead to discipline or termination.
The record presented to the court is replete with indications that both sides in this matter had created an implied contract, the offer being that a thorough investigation would be made of the allegations and there would be no termination of employment if Graham was willing to engage in a process involving professional input about his "fitness for duty" which carried with it an obligation on his part to receive counseling such as anger management. Graham was informed by Ms. Russell, who was a manager at Human Resources, that she would indeed conduct such an investigation, he would be on leave and receive full pay while this process was going on and Graham in turn agreed to accept this change in employment status which included an extended leave of absence during which he could not return to company property and thus pursue a career at the company which appears to have been rewarding for both sides. Ms. Russell in an affidavit said given the allegations Mr. Graham "seemed to understand that (the company) needed to investigate the situation."
Thus a Dr. Zacker was retained by the company to conduct a "fitness for duty evaluation of Mr. Ed Graham." He is Board certified in clinical psychology. The doctor issued a report containing interesting language which basically said "given the assumption" Graham "committed the alleged acts and certain aspects of the psychological testing performed Graham should not return to work." Zacker presented recommendations which would allow Graham to return to work. Graham was to see a "specialist in anger management and conflict management." Management accepted the protocol set up by Dr. Zacker and in fact relied on Graham's alleged failure to comply with it as the reason for termination. Dr. Zacker used language in his report to the defendant company which seems to reflect an understanding of the process both sides were engaged in and which both were willing to engage in at the time the letter was written. He said . . ."both return to work and continued employment would be contingent upon the conflict management's judgment that Mr. Graham was engaged in a process that showed reasonable growth toward being able to appropriately respond to disturbing events and persons." This language does not have the ring of we can fire you for cause or no cause. Dr. Zacker was not a company official but he was given the task of making a fitness for duty evaluation of Graham and it is not farfetched to surmise that the scope of his mission and interaction with Graham was dictated to him by the defendant company.
More to the point is paragraph 20 of the July 16, 2003 Russell affidavit (Russell is a company official who along with another official, John Omasta, directly reflect company views). In that paragraph Russell said
On October 31, 2002, John Omasta and I met with Mr. Graham and informed him that we appreciated his compliance with the (Employment Assistance Program) process but that since EAP was not in a position to conclude whether or not he was able to return to work, we needed him to undergo a fitness for duty evaluation with Dr. Joseph Zacker.
Paragraph 23 is also suggestive of promissory offer by the company where Russell said to Graham he needed to work with an anger management specialist and: "After the first four sessions, and if the therapist and Dr. Zacker agreed, Mr. Graham would be able to return to work, as long as he complied with the protocol established by the therapist."
In paragraph 29 Ms. Russell continues the same theme On January 28, 2003 I wrote to Mr. Graham to remind him that his return to work was contingent upon the satisfactory completion of the (treatment) protocols to the satisfaction of Dr. Zacker.
Virginia Leo submitted an interesting affidavit. In response to the complaint Graham submitted to the commission on Human Rights on an allegation of discrimination. She was a registered nurse who worked in the company's Occupational Health Services Unit and was apparently coordinating requests by Human Resources for an evaluation by the Employee Assistance Program given the alleged threatening remarks made by Graham. That department would not make any evaluation so her department contacted Zacker. Leo and her director, Dr. Edward Berman, spoke to Dr. Zacker and they agreed Graham should have four visits with an anger management specialist. In paragraph 12 she goes on to say what is her and assumably her director Berman's understanding
After the four visits and if Dr. Zacker and the specialist (on anger management) considered it appropriate Mr. Graham would be allowed to return to work while continuing to meet with the anger management specialist.
A final March 4, 2003 letter was written by Ms. Russell to Mr. Graham. At one point she said:
Keep in mind, that given your skill set and our needs for this position, we would greatly have preferred to have been able to bring you back to work following your compliance with policy.
The court must determine whether the foregoing establishes that a jury question is presented as to whether an implied contract between the parties was created by the promise to do a thorough investigation and in effect continue Graham's employment if he complied with Dr. Zacker's treatment protocol. The court will now turn to contract treatises and case law to try to decide this question.
It is true as the defendant notes that an implied contract cannot be found where the proponent of the contractual relationship plucks phrases or particular actions out of the air. Restatement Second Contracts § 1 defines a contract as "a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Section 2 in turn says that "a promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." How do we ascertain contractual "intention?" The standard must be objective and certainty provides the standard. In other words "a promise must be sufficiently certain in its terms to enable the court to understand what the promisor undertakes," 1 Williston Contracts (3d ed) § 24, see Christensen v. BIC Corp., 18 Conn.App. 451, fn.2, page 458 (1989). Section 33 of the Restatement Second Contracts says at (2) "the terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and forgiving an appropriate remedy."
The quoted language of Ms. Russell, Ms. Leo and Dr. Zacker's observations concerning the task assigned to him seem to establish at this stage of the litigation that a promise or contract offer has been made.
In opposition to this view it could be said that under the terms of what was offered to Graham, Dr. Zacker must be satisfied that the plaintiff can return to work even if he were to have completed the treatment protocol. In other words it is not you complete the treatment and you get the job back. Williston in his 4th edition at § 1.2 at pp. 20-21 does say "an ostensible or apparent promise which makes performance entirely optional with the promisor is not a promise within the meaning of that term as used here because it is neither a clear manifestation of intention to act or refrain from acting, nor does it justify the putative promisee in understanding that the promisor has made a commitment. Such an apparent or ostensible promise is said to be `illusory.'" But as Section 2 comment e of the Restatement notes a conditional promise envisaging no duty until some event occurs (here Zacker's agreement) may still form the basis of a contract offer "even though the duty to perform depends on a state of mind of the promisor other than his own unfettered wish . . ." This is so because as Section 228 of the Restatement notes "(an) agreement will often use language such as `satisfaction' or `complete satisfaction' without making it clear that the test is merely one of honest satisfaction rather than of reasonable satisfaction. Under any interpretation the exercise of judgment must be in accordance with the duty of good faith and fair dealing (§ 205) and for this reason, the agreement is not illusory (§ 77)."
(b)
Of course even if there is an implied contract that does not mean the plaintiff can proceed with litigation if the summary judgment motion establishes there was no breach of contract. The defendant argues that even assuming the company was obligated to conduct a thorough investigation before discharging Graham "the evidence establishes that plaintiff's employment was terminated because of his refusal to comply with the protocol established) under the Policy for his return to work." The investigatory obligation and the company's requirement of a treatment protocol and the concomitant obligation to comply with such a protocol cannot be so easily compartmentalized. In other words discharge for failure to so comply with the treatment protocol can only be justified if a thorough investigation was conducted establishing the need for a treatment protocol in the first place. Having reviewed the deposition testimony of Ms. Russell the court concludes a genuine issue of material fact exists as to the thoroughness of the investigation.
As to Graham's failure to comply with the protocol established by Dr. Zacker, the comments of the District Court which dismissed Graham's federal statutory claim and remanded the state claims are telling the court agrees with Judge Krurtz. Commenting on the case the District Court judge said
From the record developed during discovery, it appears to the court that the fault lies with everyone involved — Boehringer, which might have conducted a more thorough investigation of the charges leveled against Mr. Graham; Mr. Graham, who could have been less stubborn and more willing to do what was needed to return to work; and two particularly headstrong psychologists, who, in the Court's view, allowed their own egos to get in the way of commonsense and good judgment, all to the detriment of those they were charged with serving — Boehringer and Mr. Graham.
The court cannot conclude there is no issue of material fact on the issue of whether Graham's failure to comply with the protocol had a good faith basis. But as noted even if this conclusion is incorrect the predicate for the operation of the protocol would have to depend on the fulfillment of the promise to conduct a thorough investigation. Indeed any "investigation" in this matter in a temporal sense concluded long before Graham's alleged failure to comply with the treatment protocol.
In any event the motion for summary judgment is denied as to the breach of contract claim.
CONNECTICUT FAIR EMPLOYMENT PRACTICES ACT (a)
The plaintiff has sued the defendant company in the first count for violation of the Connecticut Fair Employment Practices Act (CFEPA), in particular § 46a-60(a)(1) of the General Statutes. That statute says it shall be a discriminatory practice for an employer to discriminate against an employee in the conditions of employment or as regards its continuation because of a "present or past history of mental disability, mental retardation, learning disability or physical disability, including but not limited to blindness."
The defendant first argues that the statute does not apply to the plaintiff's claim of discrimination. It is true, and the plaintiff does not deny that his CFEPA claim is based on a theory of "perceived disability" — that is, he in fact was not disabled but the employer perceived him as such and as a result discriminated against him. The defendant cites federal case law in our circuit to the effect that discrimination on the basis of perceived disability does not provide a basis for a CFEPA claim. Beason v. United Technologies Corp., 337 F.3d 271 (Cad, 2003) is the leading case on this issue. There an employee was physically injured in the past and the employer denied him permission to return to work. The federal court referred to the definition of "physically disabled" in the definitional section of CFEPA where at § 46a-51(15) it says:
(15) `Physically disabled' refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.
The Beason court noted that the statute "defines ` physically disabled' only by using the word `had.'" The court goes on to say
Conspicuously absent from this definition is any mention of the perception of a physical disability. This absence stands in stark contrast to the definition of disability employed by the ADA. The federal statute provides that the term disability `means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.' 42 U.S.C. § 12102(2) (emphasis added); see also 29 U.S.C. § 705(20)(B) (similarly defining `individual with a disability' for the Rehabilitation Act). Because the specific language of CFEPA makes no mention of a cause of action for `perceived' or `regarded as' physical disability discrimination, we do not believe it was part of the Connecticut legislature's purpose that such a cause exist. (The ADA is the American With Disabilities Act, 42 U.S.C. § 42 U.S.C. §§ 12111- 17.)
There are problems with the position adopted by the federal courts in interpreting our act. Judge Axelrod in CHRO rel Tucker General Dynamics, (7 C.S.C.R. 62 1991) rejected the position that discrimination on the basis of a perceived disability could not form the basis of a CFEPA claim. He cited the reasoning of the court in Diary Equipment Co. v. Dept of Industry, 290 N.W.2d 330 (Sup.Ct.Wis., 1980) which was interpreting its Fair Employment Act in a case where the employee claimed he was discriminated against on the basis of a "handicap." The court quoted earlier cases to the effect that the Wisconsin Act is "focused on employment discrimination," id., page 335. The court significantly said "It would be both ironic and insidious if the legislative intent in providing the protection of the Fair Employment Act were afforded to persons who actually a handicap that makes `achievement unusually difficult' or limits their capacity to work, but the same protection is denied to those whom employers perceive as being handicapped." (Emphasis by court.) The court went on to note that the federal congress explicitly addressed the issue in its definition section by saying the Rehabilitation Act of 1973 applied to persons "regarded" as having an impairment. Wisconsin's act had no such definition but the court applied the foregoing reasoning to have its act cover discrimination based on perceived disability, id., pp. 335-36.
But general observations by the courts of other states need not be the only support for the position that a CFEPA action can be brought for discrimination based on a perceived disability. In Ann Howard's Apricots Restaurant Inc. v. CHRO, 237 Conn. 209 (1966) our court basically upheld a hearing officer's finding of liability and said during its discussion
In this case, the hearing officer concluded that Doe had established that the plaintiff, on the basis of its belief or perception that Doe had AIDS, had discriminated against Doe by failing to reinstate him following his leave of absence. Our legislature has clearly stated that discrimination based on a physical disability is prohibited. See General Statutes § 46a-60(a)(1). Id. p. 224.
Even if the foregoing analysis is incorrect there is another problem with the Beason analysis as applied to CFEPA at least where mental disability or impairment is involved. Beason involved a physical disability and as noted referred to subsection 15 of § 46a-51 of CFEPA for a definition of "physically disabled." Howell v. New Haven Bd. of Education, 309 F.Sup.2d 286 (D.Conn., 2004), referred to by the plaintiff, relied on Beason's observation that CFEPA "makes no mention of a cause of action for `perceived' or `regarded as' physical disability discrimination." Howell then granted summary judgment on a plaintiff-employee's claim that he was regarded as having a mental disability under CFEPA, id., pp. 289-90. Howell, at least in this court's opinion, failed to take into account that unlike Beason where a claim of discrimination based on a perceived physical disability was involved, the claim before it was `discrimination based on a perceived mental disability.' Just as § 46a-51(15) can be turned to in defining "physical disability," subsection (20) should have been examined to define mental disability. That subsection says
(20) `mental disability' refers to an individual who has a record of or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Associations's `Diagnostic and Statistical Manual of Mental Disorders.' (Emphasis by court.)
The foregoing should lay to rest any notion that at least where a claim of perceived mental disability forms the basis for alleged discriminatory employment practices CFEPA does not apply.
Finally the court would note that, at least in its opinion, our statute would be arguably inexplicable if it did not apply to "perceived" or "regarded as" mental disability. Section 46a-60 of CFEPA defines the discriminatory employment practices which are prohibited. It states there may be no discrimination based on a "present or past history of mental disability." Without even going to the definitional statute, § 46a-51, could it be said that an employer cannot engage in employment discrimination because of a "past" (as opposed to a present and ongoing) mental disability but there is no bar to discrimination based on "perceived" mental disability? Such a result would be incongruous with any rational legislative purpose. The legislature must be taken to have appreciated this therefore it defined "mental disability" the way it did in § 46a-51(20).
(b)
What are the tests to determine if discrimination has occurred in a particular case?
In Levy v. CHRO, 236 Conn. 96 (1996) basically said that where a plaintiff cannot prove direct evidence of discrimination "a plaintiff" may establish a prima facie case of discrimination through inference by "presenting facts (that are) sufficient to remove the most likely bona fide reasons for an employment action . . ." id., page 107. The court went on to say that "from a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons." It is in such a situation that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) model applies. In Levy the court went on to say
The plaintiff's burden of establishing a prima facie case is not onerous under this model . . . The plaintiff need prove only four elements by a preponderance of the evidence: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, the individual was rejected; and (4) that after the individual was rejected, the position remained open . . . Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.
Under the McDonnell Douglas-Burdine model, the burden of persuasion remains with the plaintiff . . . Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection . . . Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas-Burdine model does not shift the burden of persuasion to the defendant. Therefore, "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual. Id. 107-08. Also see Miko v. CHRO, 220 Conn. 192, 203 (1991); Ann Howards Apricots Restaurant v. CHRO, 237 Conn. 209, 224-26 (1996).
In Miko the court said that the Federal Supreme Court recognized that the prima facie set forth in McDonnell Douglas Corporation was not intended to be an `inflexible formulation' . . . Rather, the requirements of proof must be tailored to the particular facts of each case," 220 Conn. at p. 204, see McDonnell Douglas at footnote 13, 411 U.S. at page 802. The court in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 358 (1997) in this regard said that the "importance of McDonnell Douglas lies, not in its specification of the discrete elements of poof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion . . ." (also see Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 361 (1986) which quoted the just referred to language.) The court in Levy said: "Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes," 236 Conn. at page 103.
Here it is clear that the so-called McDonnell v. Douglas analysis must be applied seeing that there is no direct evidence "of actions or remarks of the employer that reflect a discriminatory attitude . . . or comments (that) demonstrate a discriminatory animus in the decisional process, Beshears v. Asbill, 930 F.2d 1348, 1354 (CA8, 1991) at least as to the perceived disability. ( Beshears quoted in Leavy at 136 Conn. page 109.)
(c) (i)
To determine whether a prima facie case has been shown the court will try to apply the foregoing to the specific facts on this case on the CFEPA claim. First it must be remembered as the previous cite to Beshears indicates and as McDonnell also does in its footnote 13, the McDonnell test for establishing a prima facie case is not a straight-jacket. Several federal cases have established a prerequisite for a prima facie case of discrimination in employment cases. In Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68 (CA2, 1999) the court following the general principles of McDonnell said in language that would apply to a CFEPA claim
To establish a prima facie case of discrimination under the ADA, plaintiff must show by a preponderance of the evidence that (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job with or without reasonable accommodation and (4) he suffered adverse employment action because of his disability.
See also Ryan v. Gral Rybicki, P.C., 135 F.3d 867, 869-70 (CA2, 1998).
McDonnell in other words was a racial discrimination case, the man was fired and he claimed that his discharge and refusal to rehire him were racially motivated and thus violated the Federal Civil Rights Act. Of course in the McDonnell context the plaintiff had to prove he was in the class that act was designed to protect — racial minorities. In employment discrimination cases, the very fact that someone is an employee as defined by the ADA or CFEPA makes that employee a recipient of any protections the act affords and thus the employee is in the protected class — i.e., the class of individuals which the statute seeks to protect from discrimination as opposed to the world at large — if in fact he or she was subjected to the type of discrimination prescribed by the act which cannot be visited on employees. In other words the employer in a case such as this is subject to CFEPA based on the allegations made.
(ii)
The next element of a prima facie case is given the allegations of this case, was the plaintiff perceived as disabled. This breaks down into a two-part discussion (1) was the employee perceived to be disabled (2) was the disability concerning which there was a perception something to which the act applies.
As to the first issue Second Circuit cases are helpful. In Hill v. Pfizer Inc., 266 F.Sup.2d 352 (D.Conn. 2003) summarizes that law in an observation which is relevant to proceedings under our act, CFEPA.
"In determining whether an individual may invoke the protection of the ADA when that individual proceeds under a `regarded as' theory, the Second Circuit has held that we must look to the state of mind of the employer . . ." "Under the `regarded as' prong of the ADA membership in the protected class becomes a question of intent' . . . The question of intent is `one rarely susceptible to resolution judgment stage.'"
Also see Ross v. Campbell Soup Co., 237 F.3d 701, 706 (CA6 2001); Francis v. City of Meriden, 129 F.3d 281, 284 (CA2, 1997).
It would seem clear that the company regarded Mr. Graham as having some type of mental problem or disability in the broad sense of the term. He was suspended from work and instructed to be seen by a Dr. Zacker for a psychological evaluation. Dr. Zacker is a Board Certified Psychologist and meets the requirements for Diplomate Status for the American College of Forensic Examiners. He did evaluate Mr. Graham and performed various psychological tests including a Rorschach Inkblot Test. Dr. Zacker's findings based on the assumption he made the threatening comments and his psychological evaluation "point to overcontrol and inhibition of normal and appropriate anger, denial of anger, and some disturbingly menacing thoughts" — in light of this Zacker in November 2002 felt it was inappropriate for Graham to return to work. He recommended a "protocol." Graham had to go to an anger management specialist, a psychotherapist. If the psychotherapist reported moderate to high risk of violence Zacker recommended termination of employment. The foregoing report was delivered to the company. The company in all subsequent contact with Mr. Graham operated on the basis of this report and especially the treatment protocol in determining Graham's employment status. Having done so this reflects the company perceived Graham as having a mental condition or disability — that was the whole basis of its action in demanding Graham comply with Dr. Zacker's treatment protocol and the offered basis for terminating him when the company determined Graham did not so comply.
The court should note that it agrees with the District Court that the investigation of whether in fact Graham made the subject remarks was not thorough, there seemed to be an assumption or strong tendency to accept what Cadden said simply because he was a director. Also the plaintiff has offered some evidence which might establish a motive on Mr. Cadden's part to defame Graham. The court does not to decide that matter on this question because there is no convincing reason to believe company officials or Ms. Russell in pursuing the investigation knew all along that Mr. Cadden was not telling the truth. Thus the traditional "perceived or regarded as" analysis can apply.
The second question is what is the disability in this case, the perception of which was the basis for discrimination under § 46a-60 of CFEPA. A cursory examination of Dr. Zacker's report to the company, his affidavit, and communications between company representative and Graham about what he allegedly said and the treatment protocol demanded of him indicate a "physical disability" (§ 46a-51(15)) is not involved. It can only be a mental disability under subsection (20). Section 46a-60(1) prescribes discrimination based on "present or past history of mental disability" (emphasis by court); thus this type of disability need not be "chronic" which is included as a requirement for "physical disability" under § 46a-51(20). And in fact the definition of "mental disability" in subsection (20) includes no reference to a chronic condition — how could it since in that subsection individuals are included who are "regarded as" having mental disabilities. The individual need not have the disability at all let alone be subject to a chronic variant of it to be protected against discrimination based upon perceived mental disability.
However, the subsection (20) definition of "mental disability" refers to a mental disorder "as defined in the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders." If the effect of what Dr. Zacker was saying about Graham's mental condition was to place it in one of the disorders defined in that reference work, then this would be sufficient in the court's opinion but neither side has offered any evidence in this motion regarding this subject. In other words it seems clear that the plaintiff was not perceived as having a "physical disability;" he could have been diagnosed with a mental disorder meeting the subsection (20) requirement but for all the court knows the mental condition referred to by Dr. Zacker might not fall within the subsection (20) definition of mental disorder. If so there would be no basis to conclude that the defendant had a perceived mental disability as defined by the act and the CFEPA claim must fail. Since the foregoing was not addressed by either party and is solely the result of the court's analysis the court is reluctant to make a dispositive ruling at this time on this factor.
(iii)
The third aspect of the prima facie test in a case of this type is whether the plaintiff can show that he could perform the essential functions of his job with or without reasonable accommodation. The March 4, 2003 letter of Ms. Russell to Mr. Graham regarding his imminent termination would seem to indicate the company accepted the fact Graham's "skills" and its "needs" meant the company would have preferred to have Mr. Graham returned to work. The letter takes the position that Graham "vacated" his position because of his failure to comply with Dr. Zacker's treatment schedule not as a result of his inability to do his job. The letter made clear that if the Zacker protocol was complied with "even now" re-employment would occur.
(iv)
As to the final requirement — was Graham terminated because of his perceived disability — the answer seems to be in the affirmative. He was terminated because of his failure to comply with Zacker's treatment protocol but that was only a prerequisite of continued employment because of the perceived disability.
Under the McDonnell test "the burden a plaintiff alleging he (she) was discriminated against by his (her) employer, carries to survive a summary judgment motion at the prima facie stage is a minimal one," Graham v. Long Island R.R., 230 F.3d 34, 38 (CA2, 2000); cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). With the reservations expressed about meeting the mental disability definition of § 46a-51(20) the court believes a prima facie case has been established regarding the presumption of discrimination.
(d)
The burden under the traditional McDonnell analysis now shifts to the employer of "producing an explanation to rebut the prima facie case — i.e., the burden of `producing evidence' that the adverse employment actions were taken `for a legitimate nondiscriminatory reason,'" St. Mary's Center, id. at page 507. But this is only a burden of production that is imposed on the employer because "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
It is also true, as noted, that because the burden of persuasion is not shifted to the defendant company once the plaintiff establishes a prima facie case, "the defendant need not persuade the court that it was actually motivated by the proferred reasons . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff," Levy at 236 Conn. page 108.
The defendant company here has raised a legitimate non-discriminatory reason for its actions. A company has an interest in trying to prevent workplace violence by employees. No lengthy citations to state or federal authority are necessary to support this view; it is common sensical in nature. The company issued an employee advisory on such violence in June of 2001 over a year before the alleged remarks of Mr. Graham and almost two years before his discharge from employment. If the facts reported to the company as to what the plaintiff said were true, the company's ensuing action of barring Graham from the workplace and requiring psychological testing were justified pending the results of that testing. Also the company would appear to be justified in taking into account the opinion of any mental health professional and treatment recommendations made in conjunction with the initial testing.
But it is also true that in a hypothetical trial situation the plaintiff here "has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextural" Levy, id. The plaintiff cites several cases which stand for the proposition which the court agrees with, that if the so-called legitimate non-discriminatory reasons for the company's actions are false then, in effect, this coupled with the prima facie case can establish discrimination, see St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). But the St. Mary's case makes clear that even rejection of a defendant's proferred reasons, does not compel a judgment for a plaintiff employee. Also as Slattery v. Swiss Reinsurance, 248 F.3d 87, (CA2, 2001) indicates a court must still examine whether the prima facie showing plus pretext satisfies the ultimate burden of persuasion placed on the plaintiff of proving discrimination. The court can still conclude after such an examination that summary judgment should be granted. As Slattery says the prima facie case plus the possibility of pretext does not remove from the plaintiff the burden of showing "he was treated adversely for discriminatory reasons," id., pp. 93-94.
That for the court is the problem with the plaintiff's position. The plaintiff arguing pretext claims a jury could so find based on "the overwhelming evidence that defendant Cadden was lying about the plaintiff and that the employer, through its designated (Human Resources) officer, intentionally and knowingly covered up the truth because of Cadden's high corporate position." The problem is that if all of this were true it would not establish discrimination on the basis of a perceived disability or that the adverse consequences suffered by Graham resulted from that discrimination. Again if the plaintiff's position were accepted the whole prerequisite for a referral to Dr. Zacker would be mendacious and even the doctor stated his conclusion about lack of Graham's fitness to return to work were based on his testing but also on the assumption that the remarks ascribed to Graham were made by him. These unfortunate company actions, if proven, would be based on improper motives but would not have anything to do with the discriminatory purpose regarding the plaintiff's mental health.
The court is constrained to grant the motion as it applies to the claim under our state's Fair Employment Practices Act.
The court therefore denies the motion for summary judgment as to the Breach of Contract and Defamation Count but grants it as to the claim under the Connecticut Fair Employment Practices Act.