Opinion
NNHCV166062513S
11-23-2016
Allison Brie Fennelly v. Town of Cheshire
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#104)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Allison Brie Fennelly, commenced this discrimination action on May 23, 2016, by service of writ, summons and complaint against the town of Cheshire. The complaint was returned to court on May 25, 2016. On August 5, 2016, the defendant filed a request to revise, and in response, the plaintiff filed a revised complaint on August 19, 2016, which is the operative complaint. In the revised complaint the plaintiff alleges the following facts. The plaintiff was a resident of Cheshire and has a psychiatric diagnosis for which she receives public benefits. On several occasions between 2010 and 2014, the plaintiff complained to the Cheshire police that her home had been burglarized. She had evidence of burglaries and a reasonable and rational basis for suggesting the identity of the likely perpetrator. Most recently she went to the police department approximately eighteen months ago in March 2015, to review records of those prior reports of burglaries and complained to the police about their alleged lack of response. The sergeant allegedly refused to address her concerns due to a perception of psychiatric disability.
The legal basis for the plaintiff's claims against the town are contained in paragraph 9 in which she alleges that the defendant discriminated against her in the provision of public services, upon the basis of her mental and psychiatric disability and/or her perceived mental and psychiatric disability in violation of Connecticut General Statutes § § 46a-60(a)(4), 46a-64 and 46a-71. The plaintiff alleges that she filed a timely complaint regarding the alleged discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO) on May 18, 2015, and probable merit was found after investigation. On February 25, 2016, the CHRO issued the plaintiff a release of jurisdiction authorizing her to bring this action.
The only relevant subsection of 46a-64 to the facts as alleged, is subsection (a).
On September 16, 2016, the defendant filed a motion to strike the plaintiff's complaint on grounds that the complaint fails to state a claim upon which relief can be granted because § 46a-60(a)(4) applies to the employer-employee relationship and the plaintiff is a private citizen; there is no private right of action under § 46a-64(a); § 46a-71 only applies to state agencies; and police investigatory decisions are protected from civil claims by governmental immunity pursuant to § 52-557n.
The plaintiff filed an objection and claims that " while some of the defendant's arguments appear to have merit, the defendant clearly is mistaken in claiming that General Statutes Section 46a-60(a)(4) 'only applies to the employer-employee relationship . . .' In fact, by its express terms, Section 46a-60(a)(4) makes it an actionable tort for 'any person to . . . discriminate against any person because such person has opposed any discriminatory employment practice . . . Although the statute protects those who oppose discriminatory employment practices, it is not limited to the employment setting, as the defendant claims." Pl. Obj. Oral argument on the motion was heard at short calendar on October 31, 2016.
DISCUSSION
A
Motion to Strike Standard
" 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). " [The court takes] the facts to be those alleged in the complaint that has been stricken and [it] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
B
Analysis
First, the plaintiff failed to brief the defendant's claims that the plaintiff has failed to plead a cognizable cause of action under § § 46a-64(a) and 46a-71, because there is no private right of action under § 46a-64 and § 46a-71 only applies to state agencies. Since the plaintiff failed to brief these issues, the court will consider plaintiff's claims under these statutory provisions abandoned. " It is well settled that [the court is] not required to review claims that are inadequately briefed . . . [The Appellate Court] consistently [has] held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . [F]or [a trial court] judiciously and efficiently to consider claims . . . raised . . . the parties must clearly and fully set forth their arguments in their briefs . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [Claims] which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by [the trial] court. (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603-04, 10 A.3d 59 (2010); see Cooke v. Cooke, 99 Conn.App. 347, 353, 913 A.2d 480 (2007)." (Citations omitted; internal quotation marks omitted.) Nowacki v. Nowacki, 129 Conn.App. 157, 163-64, 20 A.3d 702 (2011). In the present case, the plaintiff did not brief these claims at all, and therefore the court will considered these claims abandoned. Thus, to the extent the revised complaint is alleging a cause of action pursuant § § 46a-64(a) and 46a-71, said claims are stricken.
With respect to the plaintiff's claim of discrimination pursuant to § 46a-60(a)(4), the defendant argues that the plaintiff's revised complaint is legally insufficient because the statute only applies to the employer-employee relationship and the plaintiff is a private citizen. The plaintiff contends that she has sufficiently pled a discrimination claim under this statute because the statute applies to " any person" and is not limited to the employer-employee relationship or the employment setting.
Connecticut General Statutes § 46a-60(a)(4) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . for any person . . . to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84." In the present case, the plaintiff alleges that, the Cheshire police ignored her complaints about burglaries that were taking place at her home, and refused to properly investigate them because " the defendant's law enforcement officers perceived the plaintiff as being psychiatrically disabled." Pl. Comp. p. 1-2. The plaintiff alleges that the defendant " discriminated against [her] in the provision of public services, upon the basis of her mental and psychiatric disability and/or her perceived mental and psychiatric disability." Id. She further alleges that " it is the policy and practice of the Cheshire Police Department, an agency of the Town of Cheshire, to discriminate against persons, like the plaintiff, who are perceived to be suffering from psychiatric disabilities and thereby failing to afford them equal treatment and legal protections comparable to the treatment and protections they afford to persons they do not consider to be mentally ill." Id.
This court initially was not convinced, as the defendant argues, that a violation of § 46a-60(a)(4) is limited solely to the employment setting or an employer/employee relationship, because of the language " any person" contained in the statute. However, upon further research this court found that both Connecticut trial court decisions, and federal court decisions have held that individual liability under this statute may be imposed only upon supervisory employees or other employees.
In Ahmad v. Yellow Cab Co. of New London and Groton, Inc., 49 F.Supp.3d 178 (D.Conn. September 26, 2014), the plaintiffs, father and son, Naveed Ahmad and Mansoor Ahmad brought an action in federal court against " Yellow Cab Company of New London and Groton, Inc. ('Yellow Cab'), Connecticut Department of Transportation ('CTDOT') and Veolia Transportation Services, Inc. ('Veolia'). With respect to Yellow Cab, Mansoor Ahmad [brought] claims for disability discrimination in violation of the Connecticut Fair Employment Practices Act ('CFEPA'), Conn. Gen. Stat. § § 46a-60 et seq. (Count One), and the Americans with Disabilities Act of 1990 ('ADA'), 42 U.S.C. § § 12111 et seq. (Count Seven). Naveed Ahmad [brought] claims against Yellow Cab for retaliation in violation of CFEPA (Count Two) and the ADA (Count Eight)." Id., 179.
Naveed Ahmad is the father of Monsoor Ahmad. Both " leased their taxicabs from Yellow Cab . . . [and] held certificates issued by CTDOT which permitted them to work at Bradley International Airport in Windsor Locks, Connecticut. Each plaintiff signed an Automobile Lease Agreement with Yellow Cab.
" On June 10, 2011, the plaintiffs were in the taxicab line at Bradley Airport. A dispatcher employed by CTDOT and Veolia assigned a passenger with a service dog to Mansoor Ahmad. Mansoor Ahmad explained to the dispatcher that he had a dog phobia that prevented him from taking the assigned passenger, and he refused to transport the passenger. The dispatcher ordered Mansoor Ahmad to take his taxicab to the back of the line and summoned the police. The passenger was assigned to the next taxicab in line. The plaintiffs were arrested; Naveed Ahmad was charged with Interfering with Police, Refusal of Accommodation of Service Dog, and Misuse of 911 System; Mansoor Abmad was charged with Interfering with Police and Refusal of Accommodation of Service Dog.
" The plaintiffs' certificates were revoked by CTDOT. Yellow Cab reclaimed the plaintiffs' leased taxicabs . . . Mansoor Ahmad claimed that Yellow Cab discriminated against him because of his disability and terminated his employment. Naveed Ahmad . . . objected to the actions taken against his son and explained to Yellow Cab that his son suffered from a dog phobia. He [claimed] that his employment was terminated by Yellow Cab in retaliation for voicing his objection to Yellow Cab's treatment of Mansoor Ahmad." Id., 181.
Yellow Cab moved for summary judgment as to all counts against it. More specifically, Yellow Cab argued that the plaintiffs were independent contractors and not employees of Yellow Cab. The court found that there was " no genuine issue as to the fact that Yellow Cab did not control the means and manner of the plaintiffs' work performance" and therefore the plaintiffs were independent contractors not employees. The court therefore granted summary judgment as to the ADA claims.
With respect to the plaintiff's CFEPA claims pursuant to § 46a-60(a)(4) and (5), the plaintiff's argued that their CFEPA claims survive even without an employment relationship with Yellow Cab because the scope of General Statutes § § 46a-60(a)(4) and (a)(5) encompasses " any person" not just employers. The court granted the defendant's motion for summary judgment as to the CFEPA claims stating: " While the Connecticut Supreme Court has recognized that § § 46a-60(a)(4) and (a)(5) 'apply to persons other than employers, ' Perodeau v. City of Hartford, 259 Conn. 729, 737-38, 792 A.2d 752 (2002), Connecticut federal and state courts have held only that supervisory employees or other employees may be held individually liable under § § 46a-60(a)(4) and (a)(5). See, e.g., Spiotti v. Town of Wolcott, No. 3:04-cv-01442(CFD), KAVITA2008 WL 596175, at *1 n.1 (D.Conn. Feb. 20, 2008) (recognizing individual liability remains possible for supervisory employees under § 46a-60(a)(5)); Miner v. Town of Cheshire, 126 F.Supp.2d 184, 203 (D.Conn.2000) (" [R]ecovery against a supervisory employee may be cognizable under the retaliation provision contained in section 46a-60(a)(4) and under the aiding and abetting provision contained in section 46a-60(a)(5)."); Dombrowski v. Envirotest System, No. CV 980412518, 1999 WL 643394, at *2 [25 Conn.L.Rptr. 272, ] (Conn.Super.Ct. Aug. 10, 1999) (holding that a cause of action under § 46a-60(a)(4) against an individual is permissible because '[c]onstruing the remedial provision of the CFEPA to allow supervisory employees to be held individually liable is the only way we can . . . ensur[e] that each and every citizen of this state is treated equally'); Kavy v. New Britain Bd of Ed., No. CV 990492921S, 1999 WL 619587, at *6 (Conn.Super.Ct. Aug. 3, 1999) (holding that a cause of action under § 46a-60(a)(5) against individual employees is permissible). Here, the plaintiffs have not claimed that Yellow Cab is a supervisory employee nor alleged that it is another employee, nor can they plausibly do so. Moreover, the plaintiffs have not cited to any authority for the proposition that a person who does not fall into one of these categories can be held liable under either § 46a-60(a)(4) or § 46a-60(a)(5)." Ahmad v. Yellow Cab Co. of New London and Groton, supra, 49 F.Supp.3d 187.
Likewise, the plaintiff in the present case has not alleged that the town of Cheshire was a supervisory employee or that it was another employee, nor can she plausibly do so based upon the alleged facts stated in the complaint. Moreover, the plaintiff has not cited to any authority for the proposition that a person who does not fall into one of these categories can be held liable under § 46a-60(a)(4). The plaintiff was not employed by the town; rather she alleges that she was a private citizen and that the town refused to address her concerns because of its perception that she was suffering from a psychiatric disability. Even assuming arguendo that the town is covered by § 46a-60(a)(4) the plaintiff has not alleged that the town refused to credit her complaints and refused to properly investigate them because she opposed a discriminatory employment practice or filed a complaint. Accordingly, the plaintiff has failed to sufficiently allege a claim of retaliation under § 46a-60(a)(4). In light of the court's ruling on the application of § 46a-60(a)(4), it need not address the defendant's claim of governmental immunity.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike the plaintiff's complaint is granted in its entirety.