Opinion
MMXCV126007682S.
11-08-2012
Miranda VARLEY v. REGIONAL SCHOOL DISTRICT NUMBER 4 et al.
UNPUBLISHED OPINION
LISA KELLY MORGAN, Judge.
This action arises from the termination of the plaintiff's, Miranda Varley, employment. The plaintiff alleges that she was employed by the defendant First Student, Inc. (First Student) as a school bus driver, that First Student contracted with the defendant Regional School District Number 4 (District 4) to provide student busing and transportation services to the schools within its district, and that as a result of statements she made to First Student and others regarding a bullying incident on the school bus, the defendants First Student and District 4 rendered her working conditions so difficult and intolerable that she resigned her employment on April 21, 2012.
The complaint contains five counts, three of which are directed to District 4. District 4 moves to strike all three counts asserted against it: (1) count one alleging violation of General Statutes § 31-51q; (2) count three alleging tortious interference with a contractual relationship; and (3) count four alleging wrongful/constructive discharge.
The other two counts of the complaint, counts two and five, are against First Student only and allege violation of General Statutes § 31-51q and wrongful discharge/constructive discharge. On August 28, 2012, the plaintiff and the defendants First Student and First Student Management, LLC (a defendant in name only as no counts are alleged against First Student Management, LLC) stipulated to the entry of a judgment of dismissal with prejudice with respect to the claims asserted by the plaintiff against First Student.
It is well established that " a party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike ." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). " 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). " [F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007); Hollister v. Thomas, 110 Conn.App. 692, 698, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). " It 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).
I
In count one of her complaint, the plaintiff alleges that District 4 wrongfully disciplined her in violation of § 31-51q. District 4 argues that this claim should be stricken for three reasons: (1) District 4 was not the plaintiff's " employer" under § 31-51q; (2) the plaintiff failed to allege a necessary element of a § 31-51q claim, i.e., that the exercise of her constitutional rights did not substantially or materially interfere with her bona fide job performance or the working relationship between her employer and her; and (3) § 31-51q does not apply to the facts alleged in this case because the plaintiff's statements are not constitutionally protected speech under the statute.
Section 31-51q provides: " Any employer, including the state and any instrumentality or political subdivision thereof who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
" Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern." (Citation omitted.) Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). In order to plead a legally sufficient cause of action under § 31-51q, the plaintiff must allege: (1) that he was exercising rights protected by the first amendment to the United States constitution or §§ 3, 4 or 14 of article first of the Connecticut constitution; (2) that his employer disciplined or discharged him on account of the exercise of such rights; and (3) that the exercise of his constitutional rights did not substantially or materially interfere with his bona fide job performance or the working relationship between his employer and him. General Statutes § 31-51q. A motion to strike is properly granted if a plaintiff fails to allege facts that satisfy these elements. See Cotto v. United Technologies, Corp., 251 Conn. 1, 738 A.2d 623 (1999) (§ 31-51q claim properly stricken where complaint did not allege facts sufficient to demonstrate an infringement of the plaintiff's constitutional rights within the confines of the statute).
The second ground asserted by District 4 in support of its motion to strike is dispositive. District 4 contends that the plaintiff failed to allege the third element of a properly plead § 31-51q claim, i.e., that the exercise of her constitutional rights did not substantially or materially interfere with her bona fide job performance or the working relationship between her employer and her. A review of the complaint reveals that the plaintiff has not pled this required element. While the plaintiff does not fully concede this point, she responds that she has filed a motion for leave to amend her complaint to allege this element and will thereby cure this deficiency. This court agrees with the majority position in the Superior Court decisions on the point that when a motion to strike is pending, the party whose pleading is being attacked may not file an amended complaint to cure the defects raised by the motion to dismiss. See Haj v. Your Chauffeur Limousine Service, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 11 6010832 (February 6, 2012, Jennings, J.) (53 Conn. L. Rptr. 375, 375-76); Dilettante Enterprises v. Metro Realty Group, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 91 0445207 (February 27, 1992, Sheldon, J.) (6 Conn. L. Rptr. 137, 138). Consequently, the motion to strike count one is granted for the reason that the plaintiff has failed to plead a necessary element of a § 31-51q claim.
Because the court has stricken count one, it is not necessary for the court to decide the defendant's remaining arguments as to the legal insufficiency of count one.
II
In count three of her complaint, the plaintiff alleges that District 4 tortiously interfered with her contractual relationship with First Student. District 4 argues that this claim should be stricken because the plaintiff failed to allege any facts that demonstrate that District 4 maliciously interfered with the plaintiff's employment relationship.
" A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). The fourth element " may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously ... [A]n action for intentional interference with business relations ... requires the plaintiff to plead and prove at least some improper motive or improper means ... The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but ‘ intentional interference without justification.’ ... In other words, the employee bears the burden of alleging and proving ‘ lack of justification’ on the part of the actor." Daley v. Aetna Life and Casualty Co., supra, 249 Conn. at 805-06.
In the present case, District 4 contends that the plaintiff has not alleged facts demonstrating that District 4 was guilty of fraud, misrepresentation, intimidation or molestation or that it acted maliciously. District 4 also argues that the plaintiff's conclusory allegation that District 4's actions were " unreasonable and tortious" does not sufficiently allege the requisite conduct necessary for a claim of tortious interference. The plaintiff counters that she has alleged sufficient facts from which the court can reasonably infer that District 4's actions were undertaken to threaten and intimidate the plaintiff and were otherwise completely unwarranted. The court finds this count legally insufficient. Count three contains no factual allegations from which the court can reasonably infer that District 4 was guilty of fraud, misrepresentation, intimidation or molestation or that it acted with malice. Moreover, the plaintiff's allegation that District 4's actions were " unreasonable and tortious" is a mere conclusion of law, devoid of any specific facts which might otherwise support a claim for tortious interference with contractual relations. Accordingly, the motion to strike count three of the complaint is granted.
III
In count four of her complaint, the plaintiff alleges against District 4 a common-law cause of action for wrongful constructive discharge. District 4 argues that this claim should be stricken for four reasons: (1) the statutory claim alleged in count one under § 31-51q is the plaintiff's exclusive remedy for wrongful termination when premised, as here, on the exercise of first amendment rights; (2) District 4 is not the plaintiff's employer; (3) the plaintiff was not actually discharged and actual discharge is an essential element of a wrongful discharge claim; and (4) the plaintiff has failed to allege facts sufficient to support a claim of wrongful constructive discharge against District 4.
" As a general rule, an employer is free to terminate an at-will employee's employment with impunity ... In Sheets [ v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) ], our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges ‘ a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.’ ... That exception, however, is to be construed narrowly." (Citations omitted; emphasis in original.) Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003).
" In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: ‘ A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without a remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.’ " (Emphasis in original.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000).
Accordingly, when a statutory remedy exists to address a particular public policy concern, the plaintiff is precluded from bringing a common-law wrongful discharge action based upon a violation of that public policy. Burnham v. Karl & Gelb, P.C., supra, 252 Conn. at 162 (" Section 31-51m(c) provides a statutory remedy for employees who are harmed by employer conduct in violation of § 31-51m(b) ... The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31-51(b)"). This prohibition applies even where the plaintiff cannot avail herself of the statutory remedy. Id., at 161-62 (plaintiff unable to bring wrongful termination claim because of available statutory remedy, even though statute was not viable in her case as she had not complained to a public body); Campbell v. Plymouth, 74 Conn.App. 67, 76, 811 A.2d 243 (2002) (common-law claim for wrongful discharge is barred where a statutory remedy has been made available to address the particular public policy concerns, even where the remedy becomes unavailable due to the running of a limitation period); King v. The Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV 10 6015682 (June 20, 2011, Lager, J.) (where plaintiff has an available remedy under § 31-51q, even if that claim was stricken because it was insufficiently pleaded, she cannot bring a common-law claim for wrongful discharge).
In the present case, the plaintiff has asserted a claim for violation of § 31-51q and a common-law claim for wrongful termination in violation of public policy based upon the same essential set of facts. In both counts one and four, the plaintiff alleges that she was discharged for exercising her constitutional rights to speak publicly about bullying in and around schools. Count four (alleging wrongful discharge in violation of public policy) incorporates by reference all of the facts and allegations in count one (alleging violation of § 31-51q). Thus, the plaintiff's § 31-51q claim in count one provides the remedy for the alleged improper conduct in count four and allows for the vindication of the public policy the plaintiff alleges was violated by her discharge. The availability of a statutory remedy under § 31-51q, even if that claim was insufficiently pleaded as discussed in section I, precludes the plaintiff's common-law claim for wrongful discharge. Accordingly, the motion to strike count four is granted for the reason that the plaintiff has an available remedy under § 31-51q to address the particular public policy concerns raised in count four of her complaint.
Because the court has stricken count four, it is not necessary for the court to decide the defendant's remaining arguments as to the legal insufficiency of count four.
IV
For the foregoing reasons, the defendant's motion to strike counts one, three and four is granted.