Opinion
CV126011707.
11-26-2012
Scott STURMAN v. GROTON BOARD OF EDUCATION.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
On December 21, 2011, the plaintiff, Scott Sturman, filed a five-count complaint against the defendant, the Groton Board of Education, alleging discrimination on the basis of sexual orientation, discrimination on the basis of sex, sexual harassment, retaliation and conversion. In counts two and five, which are at issue in the present motion, the plaintiff alleges the following facts. After exhausting his administrative remedies before the commission on human rights and opportunities, the plaintiff commenced the present litigation. In August 2008, the plaintiff started working for the defendant at the Robert E. Fitch School as part of the " New Beginnings Alternative (NBA) program." The plaintiff is a homosexual male. Throughout his time with the defendant, the plaintiff was subjected to numerous offensive remarks, comments and drawings by a fellow teacher, a school police officer and a supervisor. The comments and drawings were made in front of other teachers, staff members and students. Such comments included the following: Paul Pattavina, NBA's supervisor, telling Judith Viadella, NBA's social worker, that the plaintiff was " too flaming" or " too flamboyant"; at a department meeting, Mat Orcutt, a fellow teacher, told the plaintiff: " You are so overdramatic, you are being a bitch just like a woman." Following the plaintiff's December 2009 meeting with Pattavina and Viadella regarding the plaintiff not being a " team player, " Pattavina summarized the meeting by focusing on the plaintiff's interpersonal performance and Pattavina stated: " Your apparent proneness towards using sarcasm and humor (that is often not understood by others) must change." Pattavina made repeated comments regarding how he and others cannot understand the plaintiff's sense of humor, which " stems from their divergent social views and pervasive stereotypes on gender and sexuality." On January 26, 2010, the plaintiff received a letter regarding the possibility that his contract would not be renewed for the following academic year, and on March 26, 2010, the plaintiff received a " letter of non-renewal" for the next academic year. Based on the plaintiff's failure to fit into traditionally accepted gender roles and standards of what is considered to be masculine behavior, the plaintiff was held to a higher standard than similarly situated employees and the decision was made not to renew his contract. The plaintiff suffered various damages as a result of the defendant's conduct.
The plaintiff further alleges that he had possessions in his classroom at the time of his non-renewal. When the plaintiff inquired about the possessions, he was informed that the defendant had thrown them away. The defendant converted the plaintiff's possession to its own use and discarded them. The plaintiff suffered a loss equal to the value of the discarded possessions.
On May 15, 2012, the defendant filed a motion to strike counts two and five, accompanied by a memorandum of law in support. The defendant moved to strike count two on the ground that it fails to state a claim upon which relief can be granted because the plaintiff " has not set forth allegations that support a cause of action for discrimination on the basis of sex." The defendant moved to strike count five on the ground that the defendant is entitled to governmental immunity pursuant to General Statutes § 52-557n. The plaintiff filed his memorandum of law in opposition on July 13, 2012, and the defendant filed a reply on July 25, 2012. The court heard argument on the motion at short calendar on July 30, 2012.
DISCUSSION
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).
With respect to count two, the defendant argues that the plaintiff's claim for discrimination based on sex should be stricken because the allegations in the complaint relate to the plaintiff's sexual orientation rather than gender stereotypes regarding the plaintiff's masculinity. The plaintiff counters that he has alleged sufficient facts to support his claim for discrimination on the basis of sex because he has alleged facts that support " a conclusion that his termination of employment was motivated by his failure to live up to gender-based stereotypes and norms of behavior ." The plaintiff argues that his sexuality does not preclude him from bringing a claim for discrimination based on sex. In its reply, the defendant argues that a plaintiff may sustain claims for discrimination based on sexual orientation and discrimination based on sex under the Connecticut antidiscrimination statutes, but the plaintiff in the present case has not done so because the plaintiff's allegations specifically reference harassment based on his sexuality.
General Statutes § 46a-60(a)(1) provides in relevant part: " It shall be a discriminatory practice in violation of this section: For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need ... to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's ... sex ..." " Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012); see also Brittell v. Department of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998) (legislative intent to make Connecticut statute prohibiting discrimination based on sex coextensive with federal statute).
" [I]n enacting Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) ], Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ... As a result, [s]ex stereotyping [by an employer] based on a person's gender non-conforming behavior is impermissible discrimination ... That is, individual employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII ... Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir.2005)." (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Hartford, 138 Conn.App. 141, 163, 50 A.3d 917 (2012).
" There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not." Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d Cir.2009). In Prowel v. Wise Business Forms, Inc., supra, at 579 F.3d 286, the plaintiff, Brian Prowel, alleged that the defendant, Wise Business Forms, Inc. (Wise), harassed and retaliated against him because of his sex. Id. In support of his opposition to summary judgment, the plaintiff proffered the following evidence: the plaintiff " has a high voice and walks in an effeminate manner. In contrast with the typical male at Wise, Prowel testified that he: did not curse and was very well-groomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot ‘ the way a woman would sit.’ Prowel also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with ‘ pizzazz.’ Prowel's effeminate traits did not go unnoticed by his co-workers, who commented: ‘ Did you see what Rosebud was wearing?’; ‘ Did you see Rosebud sitting there with his legs crossed, filing his nails?’; and ‘ Look at the way he walks.’ Finally, a co-worker deposited a feathered, pink tiara at Prowel's work station." Id., at 291-92. The United States Court of Appeals for the Third Circuit determined that the aforementioned facts " constitute sufficient evidence of gender stereotyping harassment— namely, Prowel was harassed because he did not conform to Wise's vision of how a man should look, speak, and act— rather than harassment based solely on his sexual orientation. Id., at 292. In acknowledging that the record also contained evidence of harassment motivated by Prowel's sexual orientation, the court continued: " Thus, it is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes." Id.
In Simonton v. Runyon, 232 F.3d 33, 34 (2d Cir.2000), the complaint of the plaintiff, Dwayne Simonton, alleging he suffered harassment based on his sexual orientation was dismissed for failing to state a claim because Title VII does not prohibit discrimination based on sexual orientation. Id. On appeal, one of the arguments offered by Simonton was that the harassment based on sexual stereotypes is cognizable as discrimination based on sex; the United States Court of Appeals for the Second Circuit, however, found the argument not sufficiently pleaded. Id., at 37. The court noted that " [t]he [United States Supreme] Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex. This theory would not bootstrap protection for sexual orientation into Title VII because not all homosexual males are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But, under this theory, relief would be available for discrimination based upon sexual stereotypes." Id., at 38. The court found that it did " not have sufficient allegations before [it] to decide Simonton's claims based on stereotyping because [it] had no basis in the record to surmise that Simonton behaved in a stereotypically feminine manner and that the harassment he endured was, in fact, based on his non-conformity with gender norms instead of his sexual orientation." Id. (noting also that the argument was not raised below, therefore, deferring merits of such stereotyping argument until properly raised).
In the present case, the plaintiff is arguing that he suffered harassment for his failure to conform to gender norms, and the plaintiff argues that such harassment occurred regardless of his sexual orientation. Reading the allegations of the complaint broadly and realistically, the allegations that the plaintiff was referred to as " too flamboyant, " or the comment directed at him: " You are so overdramatic, you are being a bitch just like a woman, " may be read as referring to the plaintiff's failure to conform with stereotypically masculine characteristics. The plaintiff has alleged that Pattavina treated the plaintiff differently, held him to a higher standard than similarly situated employees and was motivated to make the non-renewal decision based on the plaintiff's " failure to fit into traditionally accepted gender roles." In support of this allegation, the plaintiff specifically alleges comments made by Pattavina such as the plaintiff was " too flaming" or " too flamboyant." Accepting these allegations as admitted, the plaintiff has stated a legally sufficient claim for discrimination based on sex rather than simply re-alleging his claim for discrimination based on sexual orientation, which is alleged in count one. Accordingly, the defendant's motion to strike count two is denied.
With respect to count five, the defendant argues that the plaintiff's claim for conversion should be stricken because the defendant is entitled to governmental immunity. The plaintiff counters that he has sufficiently alleged facts to support the identifiable person, imminent harm exception to the defendant's claimed immunity.
As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because " governmental immunity must be raised as a special defense in the defendant's pleadings ... Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ..." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). " [T]here are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. at 116 n. 4. Accordingly, the court will address this argument on the present motion to strike.
" The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n." (Internal quotation marks omitted.) Avoletta v. Torrington, 133 Conn.App. 215, 221, 34 A.3d 445 (2012). General Statutes § 52-557n(a)(2)(B) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." In the present case, both the plaintiff and the defendant agree that the defendant's conduct was discretionary in nature. Therefore, the defendant is entitled to governmental immunity pursuant to § 52-557n, unless an exception to governmental immunity is applicable.
The plaintiff argues that he was an identifiable person subject to imminent harm when the defendant discarded his possessions, and therefore such exception should apply here. In its reply, the defendant argues that the alleged harm was not imminent and that the exception only applies to physical harm.
" [T]he common-law identifiable person, imminent harm exception applies to the discretionary act immunity provided to municipalities by § 52-557n(a)(2)(B) ..." Grady v. Somers, 294 Conn. 324, 328, 984 A.2d 684 (2009). The identifiable person, imminent harm " exception applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ... We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ... If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) Id., at 350, 984 A.2d 684. " [T]he core requirements of the ‘ imminent harm’ exception are analyzed conjunctively ... Demonstration of less than all of these criteria is insufficient." Doe v. Petersen, 279 Conn. 607, 620, 903 A.2d 191 (2006).
In regard to the harm alleged, there is a split of authority regarding whether the harm must be physical in nature. See, e.g., Doe v. Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 06 5002257 (March 23, 2007, Prestley, J.) (" split of authority over whether physical harm must be alleged in order to prove that the harm alleged was imminent"). Many Superior Court cases find that a physical harm must be alleged. See, e.g., Green v. Hochman, Superior Court, judicial district of Fairfield, Docket No. CV 08 4024068, 2011 WL 1734628 (April 8, 2011, Dooley, J.) (" Expanding the notion of ‘ harm’ to include such [economic] type of injury would substantially broaden an otherwise narrowly tailored exception.").
Nevertheless, as noted by the plaintiff, the trial court denied a defendant's motion for summary judgment where the harm alleged was psychological injuries. Estate of Gadway v. Norwich, Superior Court, judicial district of New London, Docket No. CV 05 4003307, 2008 WL 5220566 (November 14, 2008, Martin, J.). In Estate of Gadway v. Norwich, supra, Superior Court, Docket No. CV 05 4003307, the plaintiff's decedent as a passenger was involved in a single vehicle accident that resulted in his death at approximately 11 p.m. Id. Throughout the night and early morning following the accident, the decedent's family contacted the Norwich police department but was unable to obtain information related to the decedent; then, a police officer came to the decedent's home and informed his family that he was believed to be missing; subsequently, police officers returned to the decedent's home and informed his family that he had been pronounced dead at the scene the previous night. Id. As a result of the defendant's conduct, the family suffered emotional distress resulting in physical and mental illness. Id. Based on the evidence presented in support of these allegations, the court found that genuine issues of material fact existed " as to whether the investigation and death notification at issue posed imminent harm." Id.
In the present case, the plaintiff alleges that he suffered solely financial harm as a result of the defendant discarding his classroom possessions. Although the court recognized a limited expansion of the identifiable person, imminent harm exception to encompass psychological harm based upon the troubling set of facts in Estate of Gadway v. Norwich, supra, Superior Court, Docket No. CV 05 4003307, the court is not persuaded that a further expansion to encompass pecuniary or economic harm is warranted here. Given the narrow scope of the exception and its limited recognition in Connecticut courts; see Grady v. Somers, supra, 294 Conn. at 350, 984 A.2d 684; the allegations of financial loss here are not sufficient to support a claim for the identifiable person, imminent harm exception to governmental immunity. Accordingly, the defendant's motion to strike count five is granted.
CONCLUSION
Based on the foregoing reasons, the defendant's motion to strike is denied as to count two and granted as to count five.