Opinion
FBTCV166057613
06-20-2017
Jason Mis v. Fairfield College Preparatory School et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
Michael P. Kamp, J.
The issue before the court is the defendants' motion to dismiss on the ground that the court lacks subject matter jurisdiction. For the reasons set forth below the motion is denied.
FACTS
The plaintiff, Jason Mis, filed the three-count revised complaint in this action on August 19, 2016, against the defendants, Fairfield College Preparatory School (the school) and Reverend Thomas M. Simisky, S.J., the president of the school. The plaintiff alleges the following facts.
In count one of his revised complaint, the plaintiff asserts a claim for breach of contract against the school. The plaintiff was employed as a teacher by the school, a private educational institution, from fall of 2007 until May of 2016. On March 16, 2016, the plaintiff hosted a fundraiser fashion show for the school at the Brooklawn Country Club, after which he took an unauthorized ride in one of the club's golf carts. An alumnus of the school who had attended the event drove the golf cart. The alumnus and the plaintiff abandoned the golf cart on the golf course without reporting its location to club agents. Following this incident, Reverend Simisky determined that the plaintiff had engaged in moral misconduct and the plaintiff was notified that his employment was to be terminated.
The plaintiff was employed pursuant to the school's handbook, which constituted an employment contract. Effective March 26, 2012, the plaintiff obtained tenure. Article III, Section C of the handbook provides that a tenured faculty member's contract may be terminated at any time for, inter alia, moral misconduct. Pursuant to the handbook, the president of the school must provide the faculty member with written notice prior to terminating the contract. The handbook also provides that upon receiving such notice, a faculty member may request a hearing before a committee; after the hearing, the committee shall provide the faculty member and the president with a written conclusion.
Upon learning that his employment was to be terminated, the plaintiff requested a hearing before a committee, pursuant to the handbook. The hearing officers determined that the termination of tenure was not supported, and that the plaintiff had not engaged in moral misconduct. Notwithstanding the hearing officers' determination, and in violation of the intent of the handbook's provisions, the school terminated the plaintiff's tenure and dismissed him from employment.
Count two of the revised complaint raises a claim for breach of the implied covenant of good faith and fair dealing against the school. In count two, the plaintiff incorporates the factual allegations of count one, and alleges that a covenant of good faith and fair dealing is implied in the contract of employment, which the school violated by recklessly and maliciously charging the plaintiff with moral misconduct, refusing to abide by the hearing officers' determination, and terminating the plaintiff.
In count three, which states a claim against Reverend Simisky for defamation, the plaintiff alleges that Reverend Simisky's charge of moral misconduct based upon the golf cart incident was made recklessly or with actual knowledge that it was false, and that it was published to the school's hearing board with the intent of harming the plaintiff's reputation. The plaintiff also alleges that Reverend Simisky published this charge to members of the school community, including trustees and faculty, after the hearing committee determined that the plaintiff's actions did not constitute moral misconduct. The plaintiff alleges that Reverend Simisky's assertion that the plaintiff engaged in moral misconduct indicated that the plaintiff had engaged in such reprehensible behavior that it compromised the morals or integrity of his students.
The defendants filed a motion to dismiss the plaintiff's revised complaint on September 19, 2016, and a memorandum of law in support of the motion on September 22, 2016. The defendants attached the following exhibits: affidavit of Reverend Simisky; the mission and vision statement of the school; the faculty handbook, 2013-2014; " Standards & Benchmarks for Jesuit Schools in the 21st Century"; the plaintiff's professional development report, 2012-13; and the plaintiff's professional development report, 2014-15. The plaintiff filed a memorandum of law in opposition on November 18, 2016. The defendants responded with an additional memorandum of law on December 19, 2016. The plaintiff then filed another memorandum of law accompanied by an affidavit of the plaintiff on January 26, 2017. The parties were heard at short calendar on February 27, 2017.
DISCUSSION
" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
The defendants argue that the court should dismiss the present action because the court lacks subject matter jurisdiction. Specifically, the defendants contend that addressing the issues in the plaintiff's revised complaint would violate the first amendment of the United States constitution pursuant to the ministerial exception, which is derived from the free exercise clause, as well as the excessive entanglement doctrine, which is derived from the establishment clause. With regard to the breach of contract claim, the defendants argue that resolution of the plaintiff's allegations would require the court to police a religious institution's compliance with its own policies and procedures, which is prohibited. The defendants also contend that a ruling on the merits of the first count would require the court to determine that the school must defer to a secular panel instead of an appointed religious leader. Count two, the defendants argue, refers to the school's understanding of what constitutes " moral misconduct, " which would require inquiry into the school's Jesuit values and beliefs. Similarly, the defendants argue that in anticipation of the defense of substantial truth, the court should dismiss count three, alleging defamation, because it will require the court to determine what constitutes " moral misconduct" in a Jesuit institution.
The first amendment to the United States constitution provides in relevant part: " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."
In response, the plaintiff argues that the defendants' affiliation with a religious institution does not provide a shield from the alleged breach of contract and tortious conduct. Moreover, the plaintiff asserts that the ministerial exception is not properly raised as a jurisdictional claim, and also that he is not a ministerial employee. With regard to the contractual claims, the plaintiff argues that the interpretation and enforcement of the grievance provision of his contract with the school will not require the court to engage with religious questions or governance. Furthermore, the plaintiff argues that the section of the handbook that refers to " moral misconduct" is almost identical to General Statutes § 10-151(d), and that as a result, what constitutes " moral misconduct" will not require an examination of religious doctrine.
General Statutes § 10-151(d) provides in relevant part: " The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency, incompetence or ineffectiveness . . .; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher . . .; or (6) other due and sufficient cause . . ." (Emphasis added.)
Generally, " [u]nder both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice." DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.App. 865, 880, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). " The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own." Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171, 184, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012).
The Ministerial Exception
The threshold issue is whether the ministerial exception implicates the subject matter jurisdiction of the court. " [T]he ministerial exception is judicial shorthand for two conclusions: the first is that the imposition of secular standards on a church's employment of its ministers will burden the free exercise of religion; the second, that the state's interest in eliminating employment discrimination is outweighed by a church's constitutional right of autonomy in its own domain." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 777, 23 A.3d 1192 (2011). Although the court in Dayner determined that the ministerial exception implicated subject matter jurisdiction; id., 769; the court acknowledged that the issue remained unsettled among federal courts. Id., 770 n.14.
After Dayner, the United States Supreme Court noted that " [a] conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is whether the allegations the plaintiff makes entitle him to relief, not whether the court has power to hear [the] case." (Citations omitted; internal quotation marks omitted.) Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., supra, 565 U.S. at 195 n.4.
Whether the Dayner court's determination that the ministerial exception is a jurisdictional bar remains in effect after Hosanna-Tabor remains uncertain; in a persuasive decision, the Superior Court determined that the ministerial exception did not implicate the court's subject matter jurisdiction in an action to recover lost wages. McKnight v. Old Ship of Zion Missionary Baptist Church, Superior Court, judicial district of Hartford, Docket No. CV-15-6061558-S (July 28, 2016, Elgo, J.) [62 Conn.L.Rptr. 742, ]. The court noted that Dayner interpreted the ministerial exception doctrine within the context of the federal constitution and federal and state authority, and that since Hosanna-Tabor, other state courts have revisited whether the doctrine implicates subject matter jurisdiction and have determined that it does not. Id. " Finally, " McKnight reasons, " this court is not persuaded that the court's declaration in Hosanna-Tabor that the ministerial exception is not a jurisdictional bar to a cause of action implicates only federal civil rules of procedure. In observing that the application of the exception determines 'whether the allegations the plaintiff makes entitle him to relief, not whether the court has power to hear [the] case, ' the Court characterizes the essence and substantive nature of the claim." Id.
In the present case, the defendants raise the ministerial exception in a motion to dismiss as one of two grounds depriving the court of subject matter jurisdiction. Hosanna-Tabor, however, indicates that the doctrine is appropriately raised as an affirmative defense. In the absence of binding authority indicating whether the determination in Dayner concerning the doctrine's impact on subject matter jurisdiction remains in effect, and in consideration of the persuasive analysis in McKnight, the court is not persuaded that the ministerial exception implicates subject matter jurisdiction.
This does not, however, end the inquiry in the present case, as the defendants argue that the plaintiff's claims are also barred by the excessive entanglement doctrine. Furthermore, even if the court were to determine both that the ministerial employee exception implicates subject matter jurisdiction and that the plaintiff was a ministerial employee, the court would still need to " consider whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 784.
" [A]n employee need not be ordained clergy to be subject to the ministerial exception, and as a general rule . . . is considered a minister if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . [T]he question of whether an employee's primary duties subject him to the ministerial exception generally presents an issue of fact requiring limited discovery and the trial court to conduct a trial type evidentiary hearing . . ." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, supra, 301 Conn. 779. Although both the plaintiff and the defendants in the present case have submitted evidence in support of their respective arguments concerning whether the plaintiff is a ministerial employee, the court has not conducted an evidentiary hearing. In view of the limited record before the court, the determination that the ministerial exception may be raised as an affirmative defense, and the resolution of the present motion on the grounds of entanglement and a religious institution's right to self-governance, the court will not presently determine whether the plaintiff is a ministerial employee.
Accordingly, the following sections address each count of the plaintiff's revised complaint in turn.
Count One: Breach of Contract
" [T]he First Amendment permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When ecclesiastical tribunals decide such disputes . . . the Constitution requires that civil courts accept their decisions as binding upon them." (Citation omitted; internal quotation marks omitted.) Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C, supra, 565 U.S. at 187. " Even those courts that have found justiciable other claims in connection with a ministerial employee's termination have held that the ministerial exception bars claims that a religious institution failed to follow its own procedures and bylaws in terminating a religious employee." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 786. Nevertheless, " [a] church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court." Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1359, 282 U.S. App.D.C. 314 (D.C. Cir. 1990) (citing Watson v. Jones, 80 U.S. (13 Wall.) 679, 714, 20 L.Ed. 666 (1871)); see also Petruska v. Gannon University, 462 F.3d 294, 310 (3d Cir. 2006), cert. denied, 550 U.S. 903, 127 S.Ct. 2098, 167 L.Ed.2d 813 (2007).
In Dayner v. Archdiocese of Hartford, supra, 301 Conn. 785, the court rejected the plaintiff's claims for breach of implied contract and the implied covenant of good faith under the ministerial exception. The court reasoned that " [t]he plaintiff claims that the [defendant's] own policies, procedures and practices with respect to performance evaluations . . . created an implied contract that bound the [defendant] . . . to provide the plaintiff with an opportunity to improve her job performance prior to terminating her employment or not renewing her contract. Although the plaintiff seeks only money damages, rather than reinstatement, her claim essentially asks the court to police the [defendant's] compliance with its own internal procedures." Id., 785-86. The court went on to distinguish two federal court decisions; Minker v. Baltimore Annual Conference of United Methodist Church, supra, 894 F.2d 1359, and Petruska v. Gannon University, supra, 462 F.3d 310; " because they concerned breaches of distinctly bargained-for contractual arrangements, and did not arise implicitly from the religious institutions' internal operating rules." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 789 n.25.
In the present case, the first count of the plaintiff's claim points to a specific provision in the handbook concerning a tenured teacher's right to request a hearing before a committee prior to termination. Unlike Dayner, the plaintiff's claim is not based on a right implied by the school's internal policies. Indeed, like Minker and Petruska, the plaintiff's claim arises from a contractual obligation. Although it is true that the handbook does not explicitly detail the impact of the hearing committee's decision, this issue would require the court to engage in contractual interpretation, rather than the policing of the school's internal policies. Moreover, because the school had the ability to voluntarily impose contractual burdens on itself with regard to the termination of tenured teachers, adjudication on the merits would not impermissibly lead to the court transferring the school's religious authority over its operation to a secular panel. Instead, the court would merely determine whether, in adopting this provision of the handbook, the school had structured the termination review process in such a manner as to give the committee such authority. Accordingly, as the first count would not require the court to intrude upon or usurp the authority of the school, it is not barred.
Count Two: Breach of Implied Covenant of Good Faith and Fair Dealing
" Courts have considered it constitutionally appropriate to resolve cases using neutral principles of law so long as they do not implicate or are not informed by religious doctrine or practice . . . [C]ontractual matters, including employment disputes, may be resolved by the secular judicial system in other than religious contexts. Thus, ordinary business contracts may be litigated civilly, as may employment disputes with secular employees." (Citations omitted.) Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 674, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010). " [T]he judicial enforcement of state employment contract law generally requires little intrusion into the functioning of religious institutions." Gargano v. Diocese of Rockville Centre, 80 F.3d 87, 90 (2d Cir. 1996).
In Gargano, a jury determined that " (i) the Diocese was Gargano's employer, (ii) the Teachers' Handbook constituted part of the employment contract existing between the Diocese and Gargano, and (iii) the Diocese breached those provisions of the Teachers' Handbook in which it promised to evaluate Gargano according to certain objective criteria." Gargano v. Diocese of Rockville Centre, supra, 80 F.3d 89. On appeal, the court determined that " the Diocese argues that the district court's finding that the Diocese breached its contract with Gargano required judicial assessment of religious dogma, in violation of the Establishment Clause's prohibition against the entanglement of government with religion . . . Religious groups, however, are generally not immune from all governmental regulation of their employment relationships, or from court enforcement of those laws." (Citation omitted.) Id., 90. The court in Gargano also determined that the mere invocation of a religious reason for the employer's conduct did not necessarily put the validity of a religious matter before the court. Id. (" Furthermore, the only reference to religion made by the Diocese is its conclusory allegation that Gargano was not hired at [the school] because she did not adequately prepare . . . children for the sacraments . . . [W]e believe that this allegation against Gargano did not put into issue the validity or truthfulness of Catholic religious teaching" [internal quotation marks omitted]).
Similarly, although a court may not exercise jurisdiction over a dispute concerning " the conformity of the members of a church to the standards or morals required of them"; Watson v. Jones, supra, 80 U.S. at 733; mere reference to a moral code does not compel an action's dismissal. See Herx v. Diocese of Fort Wayne-South Bend Inc., 48 F.Supp.3d 1168, 1179 (N.D. Ind.), cert. granted on other grounds, 772 F.3d 1085 (7th Cir. 2014) (non-ministerial teacher's action against religious school permitted because " [t]he triable issue is whether [plaintiff] was nonrenewed because of her sex, or because of a sincere belief about the morality of in vitro fertilization"); Dolter v. Wahlert High School, 483 F.Supp. 266, 270 (N.D. Iowa 1980) (teacher discharged for moral turpitude permitted to bring discrimination claim because " the court need not even concern itself in any way with the content of that [moral] code nor with the substance of Catholic teaching generally . . . The only issues the court need decide are whether those moral precepts . . . are applied equally to defendant's male and female teachers . . ." [emphasis omitted]).
" The First Amendment . . . does not prevent courts from deciding, secular civil disputes involving religious institutions when and for the reason that they require reference to religious matters . . . But it does where the party challenging the court's authority can [point] to a disputed religious issue which the jury or the district judge in [the] case [would be] asked to resolve." (Citations omitted; internal quotation marks omitted.) Kavanagh v. Zwilling, 997 F.Supp.2d 241, 254 (S.D.N.Y.), aff'd, 578 Fed.Appx. 24 (2d Cir. 2014); see also Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 357 (D.C. 2005) (" It is undeniable that 'Beth Din, ' " Din Torah, ' 'Orthodox rabbi, ' and 'Halacha' are religious terms that lend the case a certain surface feel of ecclesiastical content. When we look beneath the surface, however, we see an action to compel arbitration that turns not on ecclesiastical matters but on questions of contract interpretation that can be answered exclusively through the objective application of well-established, neutral principles of law").
Essentially, " the Establishment Clause, like the Free Exercise Clause, does not shield all employment decisions by religiously-affiliated institutions from review. Rather, this Court is barred from adjudicating an employment dispute between a religiously-affiliated institution and one of its employees only where resolution of the dispute will require the Court or a jury to choose between competing religious views or interpretations of church doctrine or dogma in order to resolve the dispute." Hartwig v. Albertus Magnus College, 93 F.Supp.2d 200, 215 (D.Conn. 2000) (permitting plaintiff's contractual claim, provided that plaintiff did not offer conflicting interpretations of canon law to prove his case); see also DeCorso v. Watchtower Bible & Tract Society of New York, Inc., supra, 78 Conn.App. 879-80 (rejecting plaintiff's tort claim because it would require court to " evaluate the proprieties of religious teachings. Furthermore, the plaintiff cites certain Jehovah's scriptures, which would require the court to evaluate whether the defendants counseled in accordance therewith").
In the present case, the plaintiff claims that the school breached the implied covenant of good faith and fair dealing by failing to adhere to the faculty handbook's provision concerning termination proceedings. Adjudication of the plaintiff's contractual claim would not require the court to determine anything other than whether his termination was not in keeping with the handbook, which is a matter of contractual interpretation guided by well-established and neutral principles of law. Importantly, the plaintiff does not allege that his termination was improper because his actions did not meet the definition of " moral misconduct." The plaintiff's allegation concerning the hearing committee's determination that the plaintiff had not engaged in moral misconduct does not function as a competing interpretation of religious doctrine; rather, the allegation concerning the committee's decision confronts the propriety of the plaintiff's removal on a procedural ground, asserting that the school was contractually bound to consider the committee's conclusion. As the present case does not require the court to choose between competing definitions of " moral misconduct" and may be determined with neutral principles of law, the second count is not barred.
Count Three: Defamation
" [T]he First Amendment does not categorically bar defamation claims brought against religious institutions . . . But where a court or jury would have to determine the truth of the defendants' statements . . . and, in doing so, would examine and weigh competing views of church doctrine, the result is entanglement in a matter of ecclesiastical concern that is barred by the First Amendment." (Citation omitted; internal quotation marks omitted.) Kavanagh v. Zwilling, supra, 997 F.Supp.2d 250. Yet, " [u]nder most circumstances, defamation is one of those common law claims that is not compelling enough to overcome [f]irst [a]mendment protection surrounding a church's choice of pastoral leader." (Internal quotation marks omitted.) Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 682.
A key factor to consider is whether the claim challenges the manner in which a religious actor's actions were carried out, rather than the reasons underlying those actions, as " the [first amendment] embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Accordingly, a defamation claim that focuses on challenging the conduct of a religious actor carrying out a decision may go forward. Compare Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 683-84 (" the gravamen of the dispute is the decision of the defendant, a religious organization, not to recommend the plaintiff for a position in the ministry. The defamation claim cannot be entertained in isolation from the dispute over fitness for the clergy . . ."), and Kavanagh v. Zwilling, supra, 997 F.Supp.2d 250 n.10 (rejecting defendants' argument that " adjudication of this case would impermissibly draw the Court into the propriety of [plaintiff's] removal from the priesthood . . . that argument is unpersuasive as [plaintiff] challenges only [defendants'] characterization of the church courts' opinions removing him from the priesthood, not the propriety of the removal in itself"); see also Duncan v. Peterson, 359 Ill.App.3d 1034, 1046, 835 N.E.2d 411, 296 Ill.Dec. 377, cert. denied, 217 Ill.2d 560, 844 N.E.2d 36, 300 Ill.Dec. 364 (2005) (" The harm alleged in the complaint resulted from the alleged conduct of defendants in placing [plaintiff] in a false light when revoking [plaintiff's] ordination. Even if the reasoning behind defendants' decision to revoke the ordination bestowed upon [plaintiff] by [the church] is not reviewable because it is 'steeped in matters of theological import, ' we may review defendants' conduct in carrying out the revocation" [internal quotation marks omitted]).
Nevertheless, entanglement concerns may bar a defamation claim that hinges upon the disputed interpretation of a religious term or matter. See Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 683-84 (rejecting defamation claim that would require court to resolve dispute over fitness for clergy); Kavanagh v. Zwilling, supra, 997 F.Supp.2d 253 (barring claim that " would require [ inter alia ] the Court or the jury to engage in an inquiry into what constitutes a 'delict' or 'offense' within the meaning of Catholic law"); see also Hartwig v. Albertus Magnus College, supra, 93 F.Supp.2d 218 (rejecting defamation claim that would " require a trier of fact to choose between two conflicting ecclesiastical definitions of the term 'priest' ").
In the present case, the plaintiff's defamation claim is not per se barred, but the court will not weigh competing views of church doctrine. At this early stage, based upon the plaintiff's allegations and arguments, the defamation claim may proceed to the extent that it alleges defamation based on Reverend Simisky's repeated statements concerning the plaintiff's moral misconduct notwithstanding the hearing committee's contradictory conclusion. The plaintiff's allegations do not dispute whether Reverend Simisky properly applied religious doctrine to reach his decision. Instead, the plaintiff alleges that Reverend Simisky's statements were indicative of reprehensible behavior on the part of the plaintiff, and it is impliedly alleged that Reverend Simisky did not clarify that his conclusion that the plaintiff had committed moral misconduct was not shared by the hearing committee. Although the court will not consider conflicting interpretations of what does or does not constitute moral misconduct, the claim for defamation is otherwise not barred.
" It is axiomatic, of course, that truth is an absolute defense to a defamation claim. But in certain circumstances even a technically true statement can be so constructed as to carry a false and defamatory meaning by implication or innuendo. Where a publication implies something false and defamatory by omitting or strategically juxtaposing key facts, the publication may be actionable even though all of the individual statements are literally true when considered in isolation. See Strada v. Conn. Newspapers, Inc., 193 Conn. 313, 322-23, 477 A.2d 1005 (1984) . . ." Martin v. Hearst Corp., 777 F.3d 546, 552 (2d Cir.), cert. denied, __ U.S. __, 136 S.Ct. 40, 193 L.Ed.2d 26 (2015).
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.