Opinion
No. CV 05 401 18 17S.
December 11, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES
This is a four-count complaint by the plaintiff against the State Department of Public Safety. The first count is brought pursuant to Section 46a-60(a)(1) of the General Statutes, the second count pursuant to § 46a-60(a)(4), the third count pursuant to § 31-290a. The fourth count is a common-law claim for wrongful discharge. Each count rests on a lengthy factual series of 33 paragraphs in the first count which preface each of the other counts. The plaintiff has filed a motion to strike special defenses filed against the four counts. The court will first discuss the complaint's allegations.
The factual allegations state Mr. Torres was hired by the defendant in 1988 and was employed by it until January 29, 2004. He is Hispanic, and during his employment, worked in a variety of capacities. Mr. Torres was injured in 1991 and filed a workers' compensation claim; he was out of work eleven months, returning in July 1992. From that date to November 17, 1999, the defendant "accommodated Mr. Torres' medical restrictions" by assigning him to supervise a prison detail at a Meriden location which operated weekdays from 8:00 a.m. to 3:00 p.m. While working on this assignment, he performed various functions.
In 1996, Mr. Torres was placed under a new supervisor and from October 1996 though September 1999, the new supervisor, Mr. Groski, lowered the plaintiff's performance ratings. In November 1999, Mr. Groski and another "agent" of the defendant, Major Griffin, assigned Mr. Torres to work "they knew or should have known" did not accommodate Mr. Torres's medical restrictions — moving 35 cement blocks over a seven-hour period. This November 17th work aggravated Mr. Torres's preexisting neck injury, according to the complaint. On November 22, 1999, Mr. Groski again removed Mr. Torres from the prison detail to paint two rooms; Mr. Torres told Mr. Groski he could not paint the rooms due to his medical condition. On that date Majors Griffin and Sgt. Pagioni told Mr. Torres if he could not paint the rooms, he should take medical leave.
In January 2001, the complaint alleges Mr. Torres underwent cervical fusion surgery for the 1991 injury which was re-injured in November 1999. His physician released Mr. Torres to work with medical restrictions but the defendant refused to have him work the prison detail job or an alternative accommodation necessitated by his medical condition, thus not allowing him to return to work.
In April 2003, Mr. Torres's physician concluded he had reached maximum medical improvement and stated he should be assigned a 12% permanent partial disability of the cervical spine.
The complaint goes on to allege that the defendant's attorney contacted the plaintiff's workers' compensation counsel on April 29, 2003 and stated supervising inmates was no longer a single permanent job and workers are rotated through this position. However, the complaint then says the prison detail job is still available and is not in fact rotated. Mr. Torres received workers' compensation disability benefits until August 14, 2003. In December the defendant informed Mr. Torres he would be terminated from state service in January 2004 and he was on January 29th.
Based on the aforesaid actions of the defendant, Mr. Torres timely filed a complaint of discrimination with the Connecticut Commission on Human Rights and Opportunities ("CHRO"). The plaintiff exhausted his administrative remedies and, on May 11, 2005, the CHRO issued a Release of Jurisdiction. The complaint goes on to allege:
27. At all relevant times Mr. Torres had a chronic impairment and/or infirmity as a result of the work-related injury he sustained in 1991 and re-injured in 1999, as defined by Conn. Gen. Statute § 46a-51(15), and was able to perform the essential functions of his position with the reasonable accommodation of working with, and supervising, the prison detail.
28. At all relevant times Mr. Torres had a chronic impairment and/or infirmity as a result of the work-related injury he sustained in 1991 and reinjured in 1999, as defined by C.G.S. § 46a-51(15), and was able to perform the essential functions of his position with the reasonable accommodation of working with, and supervising, the prison detail.
29. At all relevant times the defendant regarded Mr. Torres as having a chronic impairment.
30. Despite Mr. Torres being released to return to work in September 2002, the defendant refused to reinstitute a long-standing accommodation for Mr. Torres' chronic impairment, or offer any alternative accommodation, to allow him to return to work.
31. The defendant has failed to undertake any good faith efforts, in consultation with Mr. Torres, to identify and make a reasonable accommodation for Mr. Torres' chronic impairment.
32. Upon information and belief, the defendant discriminated against Mr. Torres because he is Puerto Rican.
33. Mr. Torres' chronic impairment, and/or the defendant's perception that he had a chronic impairment, race, and national origin were substantive factors which led the defendant to terminate his employment on January 29, 2004.
Each count then relies on the foregoing allegations in concluding paragraphs: first count — the defendant's actions were willful and intentional directly resulting from the defendant's discrimination based on disability, race, and national origin in violation of § 46a-60(a)(1); second count — violation of § 46a-60(a)(4) because the defendant retaliated against Mr. Torres when it terminated him after protected activity of advising his supervisor, Mr. Groski that he was unable to perform certain work without reasonable accommodations; third count — § 31-290a violated because Mr. Torres was terminated for filing a workers' compensation claim.
The fourth count incorporates the paragraph of counts two and three alleging the defendant's actions were in retaliation for Mr. Torres engaging in protected activity regarding his request for accommodation for his medical condition and for filing workers' compensation claim, thus providing the basis for a wrongful discharge claim.
II A (1)
The special defenses which are the subject of this motion really duplicate each other as to the first two counts. The court will first discuss the special defenses aimed at these two counts.
(1) As to the first count, six special defenses are made:
" First Special Defense: The court lacks subject matter jurisdiction over any claim of discrimination prior to December 2, 2002."
Beneath this special defense there is a paragraph entitled "Facts." Here it notes the State can only be sued with its consent; § 46a-51(b) in effect permits the State to be sued under § 46a-60a. But then it goes on to say that § 46a-82e provides that "any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination." The "Facts" discussion goes on to say: "The plaintiff filed his complaint with CHRO on May 30, 2003. One hundred and eighty days prior to May 30, 2003 is December 2, 2002. Therefore the court lacks subject jurisdiction (sic) over any claim of discrimination prior to December 2, 2002 under the doctrine of sovereign immunity.
Second Special Defense: Any claims of discrimination prior to December 2, 2002 are barred by the doctrine of sovereign immunity.
Third Special Defense: The plaintiff's claim fails to state a claim upon which relief can be granted for any claim of discrimination prior to December 2, 2002.
Fourth Special Defense: The plaintiff has failed to exhaust his administrative remedies as to any claim of discrimination that occurred prior to December 2, 2002.
Fifth Special Defense: The plaintiff has failed to comply with the procedural prerequisite for suit on any claim of discrimination prior to December 2, 2002.
Each one of these last three special defenses has a "Fact" section which repeats the comment made in the Fact section under the First Special Defense referred to above.
There is a sixth special defense which the court will discuss separately; it is made as to each count.
(2) The special defenses as to the second count mirrors those made to the first count and likewise rely on the same one hundred and eighty day argument under § 46a-82e to support each claim of the special defense.
(2)
The problem with these so-called special defenses is that they are not appropriate special defenses under P.B. § 10-50 and they would not have been acceptable under common-law practice. Thus they are subject to a motion to strike under present practice as not being legally sufficient under P.B. § 10-39(5) as they would have been subject to a demurrer. Practice Book § 10-50 says that "no facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements, but show notwithstanding that the plaintiff has no cause of action must be specially alleged." (Emphasis added.) In Pawlinski v. Allstate Insurance Company, 165 Conn. 1, 6 (1973), the court said: "If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the `new matter' must be affirmatively pleaded as a special defense," of Coughlin v. Anderson, 270 Conn. 487, 502 (2004).
Here the special defenses explicitly say that they apply to claims of discrimination or retaliation made prior to December 2, 2002 and do not go to defeat the entire cause of action in each of the two counts. The defendant conceded as much in oral argument.
Therefore, procedurally speaking, the special defenses are not properly pled and must be stricken because none of them as framed, "destroys" the cause of action set forth in the respective counts.
(3)
Does this mean that the State cannot defend itself against claims in the first two counts that it perceives are not authorized procedurally by the statutory schemes involved, or that the court would somehow have jurisdiction to entertain claims made in each count not statutorily authorized, or could find a waiver of sovereign immunity as to a claim or the portion of a claim where the State did not explicitly make a waiver? Of course not. The answer to the State's concerns in making a record as to these concerns is provided, at least in the court's opinion, in a series of cases: State v. CHRO, 211 Conn. 464, 472-73 (1989); Veeder Root Co. v. CHRO, 165 Conn. 318, 334 (1973); see also CT Page 22764 Board of Education v. CHRO, 177 Conn. 75 (1979). The continuing violation doctrine applicable to these discrimination and retaliation cases bars dismissal of the cause of action but does permit a "limitation on the remedy," 211 Conn. at p. 472, sought in each of the counts.
Such a position is an accommodation between the rights of a plaintiff and the legitimate interests of the State.
As a matter of form, it could even perhaps be said that the State could raise its arguments as to limitations of remedy by its general denial that the plaintiff is not entitled to relief under the statutes relied upon by the plaintiff in the first three counts.
In any event, the special defenses are procedurally inadequate so the court cannot proceed to write what would be an advisory opinion on the substantive arguments made by each side as to the validity of the positions advanced in the special defenses — the special defense are not viable in any event.
Furthermore the court, by granting this motion, has not in any way decided against the State on the merits of its arguments which would go toward limiting the ambit of remedy available to the plaintiff.
The situation may be at least somewhat analogous to that presented in Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795 (1994). There the court seemed to acknowledge that raising policy limitations by an insurer would not be appropriate under traditional concepts of the special defense. But the court exercised its supervisory authority to require such defenses to be raised, in the future, by special defense, id., page 806. The point is that "in the future" is the relevant language. In other words, in the case before it, the Supreme Court said the trial court appropriately applied the policy limitations absent a formal procedural mechanism to do so. The court noted that given the factual and procedural context of the case, surprise or prejudice could not be raised — the defendant there had fully apprised the court and the plaintiff of "its intention to seek a reduction of any verdict," id., page 805. The same is true here.
By raising its arguments, albeit through the improper procedural mechanism of a special defense under P.B. § 10-50, the defendant has certainly voiced its jurisdictional, and sovereign immunity. Objections to any claim arising prior to December 2, 2002 and the court at trial can make the appropriate ruling which might or might not thereby limit the ambit of the claim and the remedy sought depending on the appropriateness of applying some continuing violation analysis.
With the foregoing qualifications on the scope of its ruling, however, the court is constrained to strike the special defenses discussed directed at the first two counts.
III
The third count under § 31-290 of the Workers' Compensation Act incorporates the first 33 paragraphs of the first count then says the defendant "terminated Mr. Torres in retaliation for filing a Workers' Compensation Claim, par. 34; the defendant's actions violate Conn. Gen. Stat. § 311-290a."
The special defense which is the subject of this motion reads as follows:
First Special Defense
The applicable statutes of limitations bars any claim of discrimination based on filing a workers' compensation claim prior to December 2, 2002.
The "Facts" section immediately under the special defense notes that under § 31-290a claims must be brought within three years from the date of the act complained of. The cause of action was filed May 24, 2005, "therefore any claims for discrimination for filing a workers' compensation claim prior to May 24, 2002 are time barred."
As noted by the plaintiff our court has held a § 31-290a violation is a statutorily-created tort deriving from the action for wrongful discharge, Ford v. Blue Cross Blue Shield of Connecticut, 216 Conn. 40 (1990). Thus it has been held that the three-year statute of limitations applies (§ 52-577). That statute provides that "no action founded upon a tort shall be brought but within three years from the date of the act of omission complained of." The "act or omission" cannot only be the discrimination itself in a discharge case. The discrimination must be coupled with the discharge to make out a wrongful discharge claim.
Insofar as the third count makes a claim for wrongful discharge under § 31-290a, the claim did not accrue until Mr. Torres was actually fired with the plaintiff of course having to prove he was fired because he filed a workers' compensation claim prior to the May 24, 2002 date. Insofar as the third count raises claims of discrimination as a result of the workers' compensation claim the special defense suffers from the same problems as noted in counts one and two. Discriminatory acts occurring after May 24, 2002 as a result of the claim would make the count viable since the special defense does not "destroy" the cause of action.
Interestingly Mr. Torres received workers' compensation disability benefits until August 14, 2003 according to paragraph 24 of the complaint and he was fired in January 2004.
The special defense to count three is stricken.
IV
The court will now discuss the special defenses raised against the plaintiff's fourth count. In that count the plaintiff incorporates the previous factual allegations made in the first 33 paragraphs of the first count and incorporates the allegation in the second and third counts that the defendant's actions were willful and intentional in paragraph 34. It then says in paragraph 36 Mr. Torres was terminated "on January 29, 2004 to retaliate against him when he engaged in protected activity of opposing discriminatory behavior and/or filing a workers' compensation claim when he suffered a work related injury." Paragraph 37 asserts the right to various types of economic relief and paragraph 38 appears to make a common-law claim for wrongful discharge.
The special defenses at which the motion to strike is directed are as follows:
First Special Defense: The court lacks subject matter jurisdiction over the plaintiff's claim of wrongful discharge.
Second Special Defense: The plaintiff's claim of wrongful discharge is barred by the doctrine of sovereign immunity.
A "fact" section is applied to both these special defenses. Therein it says the state cannot be sued without its consent and wrongful discharge is a common-law claim to which the state has not consented to be sued. Therefore sovereign immunity deprives the court of subject matter jurisdiction over this claim.
The Third special defense states: "The plaintiff's claim of wrongful discharge fails to state a claim upon which relief can be granted.
The "facts" section to this special defense repeats the sovereign immunity argument then says when he was terminated Mr. Torres was a union member not an at-will employee and he had filed a grievance upon his termination. Because of this it is asserted that Mr. Torres cannot file a claim for wrongful discharge.
The same technical defects to the special defenses to the first two counts are not present.
The court will not strike the special defenses to the Fourth Count. The third special defense states that this wrongful discharge count fails to state a claim upon which relief can be granted and references the "fact" section following the first special defense where it is stated that "wrongful discharge is a common law claim to which the State of Connecticut has not consented to be sued." If that is true then the claim would be barred by sovereign immunity and the court would have no jurisdiction over the claim. In making this defense the defendant is not alleging facts inconsistent with the plaintiff's fourth-count allegations but per P.B. § 10-50 is saying "notwithstanding" (this) the plaintiff has no cause of action . . ."
It is true that the fourth count, giving it every favorable inference, incorporates by reference the public policies set forth in § 46a-60(a)(1) and § 46a-60(a)(4) and as the plaintiff notes our court "has recognized a tort claim for wrongful discharge, specifically with reference to an employee's right to "file a workmens' compensation claim," Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 476 (1980). The point is that Sheets itself recognized the action it was sanctioning was a tort and said at page 477: "The issue then becomes the familiar common law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not," (emphasis by this court). Thus the mere fact that this count references state statutes does not make it anything other than a common-law action.
Even if a wrongful discharge action such as this is based on a statutory scheme and is thus to be considered some kind of statutory tort, cf. Ford v. Blue Cross Blue Shield, 216 Conn. 40, 52-53 (1990), it is still a tort action having its roots in common-law theory and the state has not consented to this type of action against it.
The state did consent to suits filed under § 46a-60(a)(1) and (4) and a remedy for discriminatory discharge is provided for in those statutes, but these sections are embedded in a statutory scheme to broadly deal with discriminatory practices, see § 46a-82 et seq., and sets out various procedural rules and requirements for advancing discrimination claims. The state has not consented to a statutory tort action being filed against itself apart from whether in cases like Sheets and Ford such actions are allowed against private parties.
Also accepting the viability of a wrongful discharge action against the state under these circumstances would, in effect, permit duplicitous causes of action — one under chapter 814c of the general statutes and another by way of some statutory-common-law wrongful discharge theory based on the very chapter 814c statutes (§§ 46a-60a(1) and (4)) aimed at providing relief against discrimination.
In any event the court will not strike the first three special defenses to count four, but as noted, will strike the fourth special defense.
V
Finally, the court will discuss a sixth special defense addressed to each of the first two counts, and a fourth special defense directed to the fourth count. Each one of these special defenses reads as follows: "The defendants reserve the right to assert additional defenses as they become known through discover." We are a fact-pleading state and special defense must inform a party of the position being taken by its opponent. If facts are discovered which suggest the right to add a special defense not now alleged, then the proper procedure is to make a motion to amend the answer and special defenses. These special defenses are stricken in all counts. The whole point of special defenses is to give notice to the other side, if they do not do that they are irrelevant and immaterial.
The special defenses to the first and second counts are stricken. The special defense to the third count is stricken. The first, second, and third special defenses to the fourth count are not stricken but the fourth special defense to that count is stricken.