Opinion
LLICV176014797
01-11-2018
Michelle DASILVA v. Tom WEIK et al.
UNPUBLISHED OPINION
OPINION
John W. Pickard, Judge Trial Referee
The plaintiff, Michelle DaSilva, has filed a three-count complaint against the defendants, Tom Weik (" Weik") and the Town of Morris (" Town"). On November 27, 2017 the court took the papers on a motion to strike (# 102) the second and third counts. The plaintiff, Michelle DaSilva, has filed an objection (# 103).
Facts
The plaintiff alleges that she was the full-time tax assessor for Morris from July 2004 to March 2016. She alleges that during the fall 2015 campaign for first selectman she openly opposed the election of Weik and supported his opponent. She alleges that she was an outspoken member of her municipal union and served as union steward, and that Weik was opposed to municipal unions in the Town. Finally, she alleges that following his election as first selectman Weik harassed, humiliated, and suspended her, and then terminated her employment. In the second count, the plaintiff alleges that her termination by the Town was in violation of General Statutes § 31-51q. In the third count, the plaintiff asserts that Weik intentionally inflicted emotional distress upon her. Allegations of Weik’s behavior include the following. On the evening of January 5, 2016 the plaintiff caught Weik spying on her in the dark through the window outside her office. When the plaintiff confronted Weik through the window he ran away. The plaintiff filed a complaint with her union which filed a grievance. After the complaint was filed, Weik came into her office when no one else was there and leaned over the plaintiff’s desk and demanded that the plaintiff withdraw the grievance. On March 2, 2016, Weik placed the plaintiff on administrative leave and called two state police troopers to walk the plaintiff out of the town Hall during regular business hours and then publicized this event by notifying the local newspaper.
Each count will be considered in turn.
Second Count
In the second count against Morris, the plaintiff alleges that her job as tax assessor was terminated on account of the exercise of her rights guaranteed by the United States Constitution and the Connecticut Constitution in violation of General Statutes § 31-51q. The Town has two grounds to strike this count. The first ground is that the plaintiff has failed to allege that the exercise of her protected speech did not substantially or materially interfere with her bona fide job performance or the working relationship with her employer as set forth in § 31-51q. Morris cites substantial Superior Court authority for the proposition that: " In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [he] was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that [he] was fired ‘on account of’ [his] exercise of such rights; and (3) that [his] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [his] bona fide job performance or with [his] working relationship with [his] employer." Daley v. Aetna Life & Casualty, Superior Court, judicial district of Hartford New Britain, at Hartford, Docket No. 94 0533693 (August 3, 1994, Sheldon, J.). That case cites Vince v. Worrell, Superior Court, judicial district of Hartford, Docket No. 86 0319386 (July 14, 1992, Schaller, J.). There are several other Superior Court decisions cited in the briefs which all hold the same way.
General Statutes sec. 31-51q provides, in relevant part, " any employer, including the state ... or any 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 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 ..."
The plaintiff relies on the sole Superior Court decision which places the burden on the defendant to raise as a special defense the claim that the plaintiff’s exercise of her constitutionally protected rights substantially or materially interfered with her bona fide job performance or working relationship with her employer. Matthews v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. 11 6019959 (May 31, 2013, Peck, J.) . In that case, Judge Peck finds that the cases cited by the defendant are all based on a holding in Judge Sheldon’s Daley v. Aetna case cited above, and that Daley relies on the Vince v. Worrell cited above which did not contain a " substantive judicial analysis on the issue of which party bears the burden of proof on this element, and thus the cases the defendant cites are not persuasive." Judge Peck then examines the language of § 31-51q, particularly the language " 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 ..." Judge Peck frames the issue as: " The question is whether that clause is an element that must be pleaded by the plaintiff or a limitation that should be raised as a defense by the defendant." Judge Peck finds that clauses introduced by " provided" are " provisos or exceptions" and that based upon principles of construction: " [T]his court finds that ‘provided’ creates a proviso that limits the application of § 31-51q, and that the defendant bears the burden of raising the facts triggering the proviso as a special defense."
Although none of the other courts who have considered this issue have delved as deeply as Judge Peck, others have considered the issue and have arrived at a different conclusion. For example, in Sierra v. State of Connecticut, Superior Court, judicial district of Hartford, Docket No. 000803588 (June 4, 2001, Beach, J.) , Judge Beach specifically discussed the exact language which was the subject of Judge Peck’s decision. " Although a plausible argument can be made that the use of the language " provided that" suggests that the matter should be raised in defense, the language is also consistent with the need to prove the matter as an element of the cause of action. Contrary to the suggestion that the elements of the cause of action have only been stated in dictum, the court in Sherman v. Sedgwick James, supra [Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 326150 (February 10, 1997, Melville, J.)], based its decision granting the motion to strike the count based on § 31-51q of the General Statutes partly because the lack of interference with the employment relationship was not alleged. The complaint in this case does not contain an allegation that the exercise of the protected speech did not substantially or materially interfere with her job performance or with her working relationship with her employer. The allegation that the speech did not impair the ability of the comptroller’s office to fulfill its duties varies from the required pleading. The motion to strike is therefore granted, with the understanding that the remedy of pleading over is presumably available."
In the absence of appellate authority, the court will follow the majority line of cases- including those cited above written by Judge Schaller, Judge Sheldon and Judge Beach- all of which hold that the plaintiff must plead that the exercise of her protected speech did not substantially or materially interfere with her bona fide job performance or the working relationship with her employer. For this reason, the motion to strike is granted.
The second ground for the motion to strike the second count is that the plaintiff has failed to plead sufficient facts to demonstrate that the statements made by the plaintiff address a matter of public concern. This argument must be considered because it will undoubtedly be raised again once the plaintiff pleads over. This second ground must be rejected because the plaintiff alleged that she spoke out in support of Weik’s opponent during the political campaign in opposition to Weik. Political speech of this sort has been held to be protected by § 31-51q. " [S]peech that addresses a matter of public concern involves statements that can fairly be considered as relating to any matter of political, social or other concern to the community." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 778-79 (1999). The allegations concerning the plaintiff’s positions taken during the recent election must be considered political. Therefore, the second reason for the motion to strike is rejected.
Third Count
The third count is based on the tort of intentional infliction of emotional distress. Weik moves to strike the third count on the ground that the facts alleges do not state a cause of action.
" In order for the plaintiff to prevail in a case for liability under ... [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). " [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
A fair reading of the allegations of the third count reveal that they do not rise to the level necessary to plead a viable cause of action for intentional infliction of emotional distress. There are no allegations of physical contact, physical restraint or explicit threats of physical harm arising out of Weik’s appearance in the plaintiff’s office at night and standing over her desk. While it may have been unnerving, it cannot be said to be " atrocious, and utterly intolerable in a civilized community." The same could be said of the incident where the defendant watched her through the window in the plaintiff’s office. It is bizarre, but not to the degree that a reasonable factfinder could find it " exceeds all bounds usually tolerated by decent society." Being escorted from the workplace by state troopers must have been humiliating but not outrageous. " Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feeling is insufficient to form the basis for an action based upon intentional infliction of emotional distress." Little v. Yale, 92 Conn.App. 232, 240 (2005), cert. denied, 276 Conn. 936 (2006).
For these reasons, the motion to strike the third count is granted.