Opinion
No. CV 06 5003343 S
December 14, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This cause of action arises out of the plaintiff's termination from her employment as the acting Executive Director of the defendant, Housing Authority of the City of Bridgeport. Named defendants also include individual commissioners of the Housing Authority. The Complaint alleges in counts one through four, wrongful discharge based upon age discrimination, gender discrimination, retaliation for engaging in protected activity and aiding and abetting the discriminatory discharge. Count five alleges false representations. The defendants filed a motion to strike counts one through four on the basis that the complaint fails to adequately plead a sufficient factual basis for any of the purported claims. For the reasons set forth below, the motion to strike is GRANTED as to all four of these counts.
Standard of Review
The standard for reviewing a motion to strike is well-established. The role of the trial court in ruling on a motion to strike is test the legal sufficiency of a pleading. RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action. (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).
The court is limited "to a consideration of the facts alleged in the complaint. A speaking motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996).
For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc., supra, at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992). Connecticut is a fact pleading state. Practice Book § 10-1 provides that "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved." A plaintiff is required to allege specific facts to support her claims. See, Reichenbach v. Kraska Enterprises, LLC, 105 Conn.App. 461, 470 (2008); SNET Information Services, Inc. v. A Premier Limousine Services, Inc., Dkt. No. CV 075015163, Judicial District of New Haven, (August 8, 2003) (Cosgrove, J.).
Discussion
In count one, the plaintiff sets forth 9 paragraphs of factual allegations, to be discussed in further detail below. In paragraph 10, she alleges age discrimination in the decision to terminate her employment in violation of Conn. Gen. Stat. § 46a-60(a)(1). In count two, based upon the same 9 paragraphs of factual allegations, she alleges gender discrimination in the decision to terminate her employment in violation of Conn. Gen. Stat. § 46a-60(a)(1). In count three, based upon the same 9 paragraphs of factual allegations, she alleges a wrongful retaliatory discharge, in violation of Conn. Gen. Stat. § 46a-60(a)(4). In count 4, based upon the same 9 paragraphs of factual allegations, she alleges that the defendants aided and abetted each other in their discriminatory conduct, in violation of Conn. Gen. Stat. § 46a-60(a)(5).
Because they are not lengthy and because they are the focus of the court's inquiry the factual allegations are set forth in their entirety.
1. The Defendant, Housing Authority of the City of Bridgeport, owns, operates, administers and maintains public housing facilities in the City of Bridgeport.
2. At all times hereinafter mentioned the Defendants Rosa J. Correa, Deborah Simms, Cathleen A. Simpson, Kathleen Vila and Wayne J. Haschak were commissioners of the Housing Authority of the City of Bridgeport.
3 The Plaintiff was employed by the Housing Authority of the City of Bridgeport since approximately August 1, 1983.
4. On or about May 30, 2003, the Defendant, Housing Authority of the City of Bridgeport offered certain employees, including the Plaintiff who completed a certain length of employment, an incentive buyout plan.
5. On or about August 27, 2003 the Plaintiff expressed her interest in the employee incentive buy-out plan. The Defendant, Housing Authority of the City of Bridgeport, through its agents, servants and/or employees including the above named individual Defendants commissioners represented to the Plaintiff that she could participate in the employee incentive buy-out plan but requested that she continue her employment beyond any eligibility date for the buyout plan and further represented to the Plaintiff and assured the Plaintiff that she would be eligible for the buyout benefits.
6. On or about January 4, 2004, the Defendant, Housing Authority of the City of Bridgeport, appointed the Plaintiff as acting Executive Director. As acting Executive Director the Plaintiff was responsible for the total administration of the Housing Authority operations, including personnel supervision and including participation o (sic) Union negotiations and contract negotiations.
7. On or about August 20, 2004, the Plaintiff signed on behalf of the Defendant, Housing Authority of the City of Bridgeport, an agreement with a labor union representing certain employees of the Defendant, Housing Authority of the City of Bridgeport, signing and entering into this recognition was within the scope of the Plaintiff's duties as acting Executive Director of the Housing Authority of the City of Bridgeport.
8. On or about September 7, 2004, the above named Defendants, commissioners of the Defendant, Housing Authority of the City of Bridgeport, held a special meeting to discuss the Plaintiff's employment action in signing an agreement with a labor union. During the special meeting the Defendant Housing Authority of the City of Bridgeport, terminated the Plaintiff from employment. In addition, on or about December 2004 and thereafter the above named Defendants, commissioners of the Defendant, Housing Authority of the City of Bridgeport, also denied the Plaintiff benefits under the employee incentive buy-out plan, contrary to previous representations and agreement by and between the Defendant Housing Authority of the City of Bridgeport and the Plaintiff.
9. The Plaintiff was treated differently than other employees of the Defendant, Housing Authority of the City of Bridgeport. Other employees in a similar situation who accepted the employee incentive buy-out plan were paid benefits under the buy-out plan. The Plaintiff was denied the same treatment in that the Defendants refused to pay her benefits under the buy-out plan although it was previously agreed that if she could continue to work she would be eligible for benefits under the buy-out plan.
Counts One and Two (Age and Gender Discrimination)
In deciding this motion to strike, the court must determine whether the allegations of the complaint, if proven, would make out a prima facie case of discrimination. "In order to establish a prima facie case, the complainant must prove that: (1) he was in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination." Hebrew Home and Hospital v. Brewer, 92 Conn.App. 762, 769 (2005), citing, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also, Craine v. Trinity College, 259 Conn. 625 (2002); United Technologies v. CHRO, 72 Conn.App. 212, 225-26, cert. denied, 262 Conn. 920 (2002). The burden of proof for establishing a prima facie case of employment discrimination is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The parties brief, at some length, the framework under which discrimination claims are tried. Specifically, they note that once a prima facie case is made, the burden of production then shifts to the defendant to identify a non-discriminatory and legitimate motive for its actions, at which point the burden shifts back to the plaintiff to prove a discriminatory intent. Jacobs v. General Electric Co., 275 Conn. 395, 400, 880 A.2d 151 (2005). While the defendant has a burden of production once a prima facie case is made, the burden of persuasion rests with the claimant throughout. Hebrew Home and Hospital v. Brewer, 92 Conn.App. 762 (2005). However, the claimant can rely upon the same evidence relied upon in his prima facie case to establish the discriminatory intent if the defendant has met its burden of production. The plaintiff has no further burden of production under those circumstances. Chambers v. TRM Copy Centers Corp., supra, 43 F.3d at 38. Thus, for purposes of a motion to strike, the only question is whether the complaint adequately alleges facts which, if proven, would establish a prima facie case of discrimination.
Here, the defendants claim that the complaint fails in two respects to allege discrimination. They claim that the plaintiff fails to aver that she was qualified for the position from which she was discharged and that there are no facts alleged from which a discriminatory intent might be inferred.
The allegations are sufficient with respect to her qualifications for the position. She alleges that she was employed since 1983; that she was asked to remain on the job rather than leave pursuant to the incentive buyout plan; and that thereafter, she was appointed acting Executive Director by the Defendants. These are sufficient facts from which a reasonable inference could be drawn as to her qualification for the position.
The second claim however, has merit. Reviewing the entirety of the factual allegations, the court can find no allegation from which a discriminatory intent, either because of the plaintiff's age or gender, might be inferred. The plaintiff relies heavily upon the allegations in Paragraph 10. However, these paragraphs contain only the legal conclusion that the conduct outlined in paragraphs one through nine, were motivated by a discriminatory intent and also contain the statute upon which the cause of action is based. These legal conclusions do not rise to the level of adequate fact pleading and cannot help the plaintiff survive a motion to strike an otherwise inadequately pled cause of action. Cavallo v. Derby Savings Bank, 188 Conn. 281 (1992) (Allegations of "fraud, mistake, accident and improper management" were "mere legal conclusions" which were unsupported by the facts alleged.)
Paragraph 10 in Count One states: "The Defendants' above described actions including the discharge of the Plaintiff were discriminatory and retaliatory actions due to the Plaintiff's age (date of birth: 6/11/43) in violation of Connecticut General Statute Section 46a-60(a)(1)."
"The most typical method used by plaintiffs to establish the fourth prong of a prima facie case is to introduce evidence that the defendant later considered, hired, granted tenure to, or promoted comparably qualified individuals not in a protected class of individuals." Craine v. Trinity College, supra., 259 Conn. at 639, citing, Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (plaintiff's replacement by someone outside protected class satisfied fourth element of prima facie case); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (replacement of sixty-plus-year-old plaintiff by thirty-one-year-old permitted inference of age discrimination); Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 135-36 (2d Cir. 2000) (plaintiff's replacement by two employees eighteen and twenty-five years younger permitted inference of age discrimination); Norville v. Staten Island University, Page 640 Hospital, 196 F.3d 89, 96 (2d Cir. 1999) (plaintiff's age discrimination claim based on employer's decision to fill position with younger candidate).
There is a vast array of circumstances which could be alleged to establish a permissible inference of discriminatory intent: if the employer continued, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position. See, e.g., Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.), cert. denied, 474 U.S. 829 (1985); or perhaps an employer criticized the employee in ethnically degrading terms, see, e.g., Lopez v. S.B. Thomas, 831 F.2d at 1189; or the employer made invidious comments about the employee's protected group, see, e.g., Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d 171, 182 (2d Cir. 1992); or the more favorable treatment of employees not in the protected group, see, e.g., Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993).
Each of these cases were cited in the Chambers decision.
While the Court in Chambers was reviewing a trial court's summary judgment determination, the Court noted that the complaint included an allegation that "after [the defendant] discharged [the plaintiff] it retained non-black employees who had been trained by [the plaintiff] and whose job performance was less satisfactory than [the plaintiff's]. Similarly, in Hebrew Home and Hospital Inc. v. Brewer, 92 Conn.App. 762 (2005), the Appellate Court found probable cause to institute a discrimination claim where there was evidence that the employer had stated it was time to look to the "younger generation" to do the plaintiff's work. With respect to the gender discrimination claim, evidence that the employer allegedly stated that the plaintiff wanted to leave work "to go have sexual relations with his wife" was sufficient to permit the inference of discriminatory intent. Id. at 771-72.
These cases illustrate the nature of the varied circumstances which, if alleged and proven, would permit an inference of discriminatory intent. The evidence on which the plaintiff relies need not be alleged in the complaint, but the facts which she intends to prove to support the legal theory asserted must be. Practice Book § 10-1; Covallo v. Derby Savings Bank, supra.
A review of the facts in the complaint simply do not, even if proven, permit an inference of discriminatory intent. The plaintiff reliance on paragraph nine is misplaced. While the plaintiff alleges she was "treated differently" from other employees who, like her, had accepted the buyout plan, there is no allegation that these employees were outside the protected class thus permitting an inference of discriminatory intent. Moreover, this allegation of "different treatment" relates only to the determination by the defendants not to pay the benefits under the incentive buyout plan. It does not allege any "different treatment" in connection with the defendants' determination to discharge the plaintiff.
The plaintiff, in her opposition, states that the complaint alleges that the reason provided by the defendant for the termination was false and that the defendant did not have a legitimate reason for discharging the Plaintiff. Plaintiff's Memorandum, pp. 11-12. These facts, she argues, would support the necessary inference. However, the complaint does not actually contain these allegations. The complaint does not, in the first instance, identify the reasons stated for the termination action. Nor does it allege that the reasons provided (whatever they may have been) were false or pretextual. Nor does the complaint allege that the defendant did not have a legitimate reason for the discharge. Even an expansive reading of the allegations do not permit the inferences the plaintiff would encourage the court to make in assessing the sufficiency of the complaint.
The motion to strike, as to counts one and two, is granted.
Count Three — Retaliatory Discharge
"A prima facie case of retaliation can be established by showing that (1) the plaintiff was engaged in an activity protected by law, (2) the defendant was aware the plaintiff was engaged in a protected activity, (3) the plaintiff suffered an adverse employment action, and (4) a causal connection existed between the protected activity and the adverse action." Christy v. Ken's Beverage, Inc., 660 F.Sup.2d 267, 276 (D.Conn. 2009); Krahm v. Town of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, CV 04 4000006 (October 1, 2009, Doherty, J.).
The plaintiff relies upon the same nine paragraphs recited above in support of her retaliatory discharge claim. Nowhere in those paragraphs does the plaintiff allege that she was engaged in a protected activity. Nor does she allege in paragraphs one through nine that the defendants were aware of her engaging in protected activity. Paragraph 10 of the third count states: "The Defendant's above described actions including the discharge of the Plaintiff were retaliatory due to the Plaintiff's opposition to the Defendant's discriminatory practices in violation of Connecticut General Statute Section 46a-60(a)(4) in that the Plaintiff opposed the Defendant's discriminatory practices as described in Counts One and Two by alleging she was treated differently based on her age and sex."
As was the case with Paragraph 10 of counts one and two, Paragraph 10 of count three is, in large measure, a legal conclusion and cannot be relied upon as a factual allegation. The question is whether "in that the Plaintiff opposed the Defendant's discriminatory practices as described in Counts One and Two by alleging she was treated differently based on her age and sex" is sufficient. In this case, it is not. As already determined, counts one and two do not describe discriminatory practices by the defendant. Thus, the plaintiff, by opposing the conduct alleged in those counts, cannot be considered to be engaging in a "protected activity." Further, while she states that she "alleged she was treated differently based on her age and sex," the complaint is silent as to whom she made these allegations. Thus, there is no allegation that the defendants were aware of her alleged "protected activity." Nor are there facts from which one could infer that the defendants were aware of her alleged "protected activity."
The motion to strike as to count three is granted.
Count Four — Aiding and Abetting
Count Four relies entirely on the adequacy of allegations of discrimination and retaliation brought in counts one, two and three. Insofar as those causes of action are not adequately pled, the motion to strike count four is granted as well.