Opinion
FBTCV166057274S
10-05-2016
Madeline Montague v. Accelent, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Edward T. Krumeich, J.
In this action Plaintiff alleges she was terminated from her employment by Defendant Accelent, Inc. three days after she informed her boss John Boehmer (" Boehmer") that she was pregnant. The complaint alleges three causes of action: (1) pregnancy discrimination in violation of the Connecticut Fair Employment Practices Act (" CFEPA"), (2) intentional infliction of emotional distress, and (3) breach of the covenant of good faith and fair dealing.
Defendant has moved to strike all three counts for failure to state a cause of action. For the reasons stated below, the motion to strike is denied.
The Standards for Deciding a Motion to Strike
" 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). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] 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, [the court notes] that [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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
1. The Complaint States A Claim for Pregnancy Discrimination
The complaint states detailed factual allegations surrounding plaintiff's termination by defendant. The most salient facts alleged construct the following timeline:
1. On June 24, 2015, plaintiff accepted defendant's offer of employment and signed her employment contract in reliance on Boehmer's commitment that she would have maternity leave benefits (Cplt. ¶ 13);
2. On August 17, 2015, plaintiff started work for defendant ( id. , ¶ 13);
3. On February 1, 2016, Boehmer sent plaintiff " a positive email" to which he attached his " plans/goals" for her in 2016, which included new responsibilities and opportunities for growth (id., ¶ 18);
4. On Friday February 5, 2016, plaintiff told Boehmer she was pregnant (id., ¶ 20);
5. On Monday February 8, 2016, Boehmer informed plaintiff defendant was eliminating her position and would terminate her if she did not accept a demotion and reduction in salary; he gave her two days to make her choice (id., ¶ 21);
6. On Wednesday February 10, 2016, Boehmer met with plaintiff again, offered a revised severance package and agreed to give her two more days to decide between termination or demotion ( id., ¶ 22);
7. On Friday February 12, 2016, Boehmer met with plaintiff again and pressed for a decision; she told him she could not choose " between two options that were both bad for her family" (id., ¶ 27);
8. On Saturday February 13, 2016, plaintiff and Boehmer had a telephone conversation; after pressing plaintiff to decide between termination and demotion plaintiff told him she did not want either choice but wanted to keep her present job; in response Boehmer informed plaintiff she was terminated ( id., ¶ 31); and
9. On Sunday February 14, 2016, plaintiff's access to email and other online tools at defendant was blocked.
The CFEPA provides in pertinent part:
" It shall be a discriminatory practice in violation of this section . . . for an employer, by the employer or the employer's agent: (A) to terminate a woman's employment because of her pregnancy . . ." Conn. Gen. Stat. § 46a-60(a)(1).
In Jones v. Gem Chevrolet, 166 F.Supp.2d 647, 649-50 (D.Conn. 2001) (Burns, J.), the District Court applied the McDonnell Douglas test for showing a prima facie case of pregnancy discrimination in violation of CFEPA. The Connecticut Supreme Court stated the standard for a prima facie case of discrimination under the CFEPA in Jacobs v. General Electric Co., 275 Conn. 395, 400-01, 880 A.2d 151 (2005): " First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) [s]he is in the protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . ."
Defendant argues that plaintiff cannot satisfy the fourth element. The Court disagrees.
A reasonable jury could conclude from the above allegations that three days after she informed Boehmer of her pregnancy plaintiff suffered adverse employment consequences by reason of her pregnancy and that eight days after disclosing her pregnancy she was fired for failing to accept demotion or a severance package on termination. See Hall v. Family Care Home Visiting Nurse and Home Care Agency, LLC, 696 F.Supp.2d 190, 198-99 (D.Conn. 2010) (Hall, J.). In Hall the District Court denied a motion for summary judgment based on an inference of discrimination from the short period of time between notice of pregnancy and discharge: " [t]here is evidence in the record from which a reasonable jury could conclude that Hall's termination occurred under circumstances giving rise to an inference of discrimination. Hall was fired just three days after she revealed her pregnancy . . ." Id.
The professed restructuring and elimination of her position would not preclude a jury from concluding plaintiff's discharge was because of her pregnancy under the circumstances alleged. See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998); Quaratino v. Tiffany & Co., 71 F.3d 58, 64-65 (2d Cir. 1995).
Defendant argues that plaintiff cannot show pregnancy discrimination because she was hired after informing defendant that maternity leave was important to her, which disclosed an intention to become pregnant at some point in the future, and the same actor, Boehmer, both hired and fired plaintiff within eight months, which negates the inference of discriminatory intent, according to defendant.
Defendant relies on the " same actor" defense recognized by federal courts in cases based on age discrimination. See Jackson v. Post University, Inc., 836 F.Supp.2d 65, 87 (D.Conn. 2011) (Haight, J.). Courts have cautioned that the " same actor" inference is plausible, not necessary, and a court should not apply it to decide dispositive motions or as a " substitute for fact-intensive inquiry into the circumstances of the case at hand, " particularly where there is evidence of pretext or changes in circumstances between the hiring and firing. Id. at 92 (citation omitted). See also Collins v. Connecticut Job Corps, 684 F.Supp.2d 232, 250-51 (D.Conn. 2010).
In Frederick v. Gladview Health Care Center, Inc., 2014 WL 1876955 *7 (CT.Sup.Ct. 2014), Judge Devlin discussed the " same actor" defense in denying a motion for summary judgment in an age discrimination case under CFEPA:
" [T]he so-called 'same actor inference' may arise in cases where the same individual both hired and fired the plaintiff . . . [W]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially so when the firing has occurred only a short time after the hiring." . . . Given that Knutsen and Silberstein both hired and fired the plaintiff, the defendant argues that it is impossible to infer discriminatory animus. Moreover, according to the defendant, the plaintiff's relatively brief, one-year period of employment strengthens the same actor inference. While the logic behind the same actor inference is sound, the ultimate determination of whether it applies (and with what force) " involves the weighing of all the circumstances and the drawing of conclusions regarding motive and intent, it is a determination for the finder of fact and should not be decided by the court as a matter of law based on one isolated factor." Id. The calculus becomes even more hazy when, as here, there are multiple people involved in the hiring and firing. Id. Quite plainly, the argument is not a proper ground for summary adjudication. Id. (Citations omitted.)
Unlike an age discrimination case, which is the usual situation where the " same actor" defense applies because the employee's age at hiring and firing within a relatively short time period falls within the same protected group, see Feingold v. New York, 366 F.3d 138, 155 n.15 (2d Cir. 2004), in a case of pregnancy discrimination there may well be a marked difference in plaintiff's circumstances in a relatively short period of time.
Here, there was a major change in plaintiff's circumstances after she was hired by defendant: she became pregnant. Compare, Tremalio v. Demand Shoes, LLC, 2013 WL 5445258 * (D.Conn. 2013) (Bryant, J.) (plaintiff's major heart attack was a major change in personal circumstances after hiring which negates " same actor" defense). Plaintiff was not pregnant when she was hired, but was pregnant when she was discharged. A reasonable jury could infer discriminatory motivation for Boehmer's ultimatum that she choose termination or demotion three days after plaintiff told him she was pregnant. Boehmer's alleged conduct could be found even more reprehensible given his earlier commitment that defendant would provide maternity leave, a promise made six months before when she was not pregnant.
The motion to strike the pregnancy discrimination claim is denied.
2. The Complaint States A Claim for Intentional Infliction of Emotional Defense
The Second Count alleges a claim for intentional infliction of emotional distress.
In Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003), the Supreme Court reiterated the elements of a claim for intentional infliction of emotional distress:
We recently reviewed the elements of a cause of action for intentional infliction of emotional distress in Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000). '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 . . . Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).' (Internal quotation marks omitted.) Appleton v. Board of Education, supra, at 210, 757 A.2d 1059.
The Carroll Court emphasized the alleged conduct must be extreme and outrageous:
Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . 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 the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Id. at 442-3.
" It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so '. . . Only if reasonable people could differ should the question be left for the jury.'" Campbell v. Town of Plymouth, 74 Conn.App. 67, 811 A.2d 243 (2002).
" The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Campbell, 74 Conn.App. at 78 quoting Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997).
Plaintiff has alleged more than mere firing; she has alleged that Boehmer, her supervisor and the very man who promised her a maternity leave benefit when she was hired and quit her former job in August, summarily discharged her when he learned she was pregnant in February, only six months later, and falsely claimed a restructuring of her position only seven days after giving her goals and plans for 2016 as a pretext for her discriminatory termination. A reasonable jury could find such conduct to be outrageous and extreme. See e.g., Craig v. Yale University School of Medicine, 838 F.Supp.2d 4, 2011 WL 6748515 * (D.Conn 2011) (Arterton, J.).
In Craig Judge Arterton noted that an extreme abuse of power may tip the balance in favor of upholding such claim:
Plaintiff also points to his subordinate relationship to the individual defendants as a recognized factor that could raise otherwise insufficient conduct to the level of extreme and outrageous. Indeed, the Restatement of Torts specifically identifies extreme abuse of power or authority as actionable conduct. See also Sangan v. Yale University, No. 3:06CV587 (PCD), 2006 WL 2682240, *6 (D.Conn. Sept. 15, 2006) (" behavior which otherwise fails to constitute extreme and outrageous conduct may yet rise to that intolerable level, and thus be actionable as IIED, when it 'arise[s] from an abuse by the actor of a position . . . which gives him actual or apparent authority over the other or power to affect his interests'). [WL] **6-7.
Reasonable minds could differ as to whether the conduct alleged could be considered extreme or outrageous, but it clearly could be construed as an abuse of power by Boehmer, plaintiff's supervisor, who either ignored the maternity leave promised to plaintiff, never intended to honor the promise or committed a bad faith breach of contract that he covered up by a pretextural restructuring of plaintiff's position, all motivated by discriminatory intent in violation of the public policy of our state that protects pregnant women from employment discrimination. Compare Savage v. Andoh, WL 1914630 **3-4 (CTSup.Ct. 2008) (Bellis, J.) [45 Conn.L.Rptr. 493, ] (motion to strike denied where supervisor's derogatory comments allegedly made with discriminatory motive in violation of public policy).
The allegations in Count Two satisfy all elements of the claim. The motion to strike the intentional infliction of emotional distress claim is denied.
3. The Complaint States a Claim for Breach of Good Faith and Fair Dealing
Defendant argues the Third Count must be stricken because 1.) CFEPA provides an exclusive statutory remedy for such conduct and 2.) plaintiff has failed to state a claim for breach of good faith and fair dealing. The Court rejects both contentions.
There is a split among the Superior Court opinions as to whether CFEPA provides the exclusive remedy for conduct included within the Act's remedies that would preempt common-law claims. See Leichter v. Lebanon Board of Education, 917 F.Supp.2d 177, 193-95 (D.Conn. 2013) (Bryant, J.) and Hancock v. Stop and Shop Companies, Inc., 1998 WL 951019 *4 (CTSup.Ct. 1998) (collecting cases).
The analysis by the courts that have found CFEPA to be the exclusive remedy for employment discrimination claims begins with the Supreme Court's seminal decision in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-72, 479 A.2d 781 (1984), in which the Supreme Court ruled that there is a duty of good faith and fair dealing implied into all employment contracts, but an at-will employee may only sue for wrongful discharge " where the reason for his discharge involves impropriety . . . derived from some important violation of public policy." However, where there is a violation of public policy and available statutory remedies these cases hold, the statutory remedies preempt the common-law claims applying the reasoning of the Appellate Court in Campbell v. Plymouth, 74 Conn.App. at 72-75 (breach of good faith and fair dealing), and the Supreme Court in Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 157-58, 745 A.2d 178 (2000) (wrongful discharge), which held that the whistle-blower statute, C.G.S. § 31-51m, preempted common-law claims. The courts apply the same reasoning to preempt good faith and fair dealing claims where there are available remedies under the CFEPA. See e.g., Powell v. Greenwald Industries, Inc., 2010 WL 2383784 **3-4 (CTSup.Ct. 2010) (Cosgrove, J.) [49 Conn.L.Rptr. 762, ]; Leichter, 917 F.Supp.2d at 194-95.
At least one Court has noted that § 31-51m expressly provides it is the exclusive remedy and " there is no Connecticut authority that holds a statute without explicit exclusionary language precludes the pleading of alternative statutory remedies." Spiotti v. Wolcott, 2013 WL 3802422 *11 n.5 (CTSuper.Ct. 2013).
Two factors distinguish the instant case from the preemption cases. Plaintiff does not allege she is an employee-at-will; she alleges she signed an employment contract. (Cplt. ¶ 13.) Plaintiff alleges that before she signed the contract Boehmer " verbally committed" to provide her a maternity leave benefit. (Cplt. ¶ 13.) Under these circumstances plaintiff has alleged a valid claim for breach of good faith and fair dealing implied into her employment contract based on her " reasonable expectation" that she could keep her job after she became pregnant and make use of the maternity leave benefit. Compare, Magnan, 193 Conn. at 566. This claim is rooted in contract, not statute, unlike the good faith and fair dealing claim in Powell, which the court noted relied " exclusively on the public policy embodied in the CFEPA as the basis for this claim . . .", 2010 WL 2383784 *5 or the claim in Leichter, 917 F.Supp.2d at 195, in which the court observed plaintiff, who was not employed at will, chose to assert a claim " predicated on the violation of public policy embodied by a statute . . ."
Even if plaintiff had alleged she was employed at will her claim is based on being deprived of the maternity leave benefit she negotiated as part of her employment contract, not exclusively on the public policy embodied in the CFEPA.
The Supreme Court recently permitted a good faith and fair dealing claim to survive a motion to strike, even though a wrongful termination claim for an at-will employee was stricken in Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 404-10, 142 A.3d 227 (2016).
The Geysen Court set out the well-settled elements of a good faith and fair dealing claim:
" [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." . . . (" [s]tated otherwise, the claim [that the covenant has been breached] must be tied to an alleged breach of a specific contract term, often one that allows for discretion on the part of the party alleged to have violated the duty").
" To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith in general implies . . . actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose" . . . " [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . . (a party who evades the spirit of the contract . . . may be liable for breach of the implied covenant of good faith and fair dealing . . .)" . . . " [W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered . . ." 322 Conn. at 404-10 (citations omitted; emphasis added).
The Supreme Court in Geysen reached the issue left unanswered in Magnan, whether the covenant of good faith and fair dealing applied to " a discharge that was motivated by an intent to deprive an employee of clearly defined compensation related to past service, " and held: " although an employer may terminate the employee at will . . . The employer may not act in bad faith to prevent paying the employee commissions he reasonably expected to receive for services rendered under the contract." 322 Conn. at 402-03.
The Court stressed that the gravamen of the claim is the employer's interference with plaintiff's reasonable expectation to receive a contractual benefit:
To be clear, an employer does not act in bad faith solely by refusing to pay commissions on sales invoiced after an employee's termination if that obligation is an express contract term . . . An employer's action or inaction that attempts to avoid the spirit of the bargain or which evinces a dishonest purpose, however, would violate the implied covenant of good faith and fair dealing as it relates to the contractual provision for payment of commissions . . . (finding that plaintiff stated cause of action for breach of implied covenant of good faith and fair dealing under Connecticut law because plaintiff could not have reasonably expected that defendant would actively interfere with plaintiff's ability to earn commissions under agreement . . . especially in light of fact that sales commissions were only form of compensation) . . . 322 Conn. at 403-04 (citations omitted; emphasis added).
The Supreme Court distinguished a claim for breach of good faith and fair dealing and a wrongful discharge claim, noting that in the former " termination is incidental or a means to accomplish the breach of the implied covenant of good faith and fair dealing." 322 Conn. at 404 n.13.
That a claim for wrongful discharge based on a public policy violation and a claim for breach of covenant of good faith and fair dealing based on the fulfilment of the parties' reasonable expectations from contract are different claims according to the Supreme Court in Geysen, 322 Conn. at 404-05, undercuts the preemption argument at least where the complaint alleges more than wrongful discharge.
A breach of the implied covenant of good faith and fair dealing contract claim . . . is different than a wrongful termination claim because the former focuses on the fulfillment of the parties' reasonable expectations rather than on a violation of public policy . . . [W]hile an at-will employee may not be able to recover for his termination per se . . . the contract for payment of commissions creates rights distinct from the employment relation, and . . . obligations derived from the covenant of good faith implicit in the commission contract may survive the termination of the employment relationship. Implied contractual obligations may coexist with express provisions which seemingly negate them where common expectations or the relationship of the parties as structured by the contract so dictate . . . A covenant of good faith should not be implied as a modification of an employer's right to terminate an at-will employee because even a whimsical termination does not deprive the employee of benefits expected in return for the employee's performance. This is so because performance and the distribution of benefits occur simultaneously, and neither party is left high and dry by the termination.
'Where, however, a covenant of good faith is necessary to enable one party to receive the benefits promised for performance, it is implied by the law as necessary to effectuate the intent of the parties . . . [A contract] cannot be read to enable the defendant to terminate an employee for the purpose of avoiding the payment of commissions which are otherwise owed. Such an interpretation would make the performance by one party the cause of the other party's [nonperformance].' 322 Conn. at 404-06 (citations omitted; emphasis added).
The damages recoverable due to violation of the covenant of good faith and fair dealing would " focus on damages suffered due to the violation of the plaintiff's reasonable expectations regarding" the benefit of which plaintiff was deprived by reason of the employer's bad faith conduct. Geysen, 322 Conn. at 406-07.
A reasonable jury could find that Boehmer acted in bad faith to deprive plaintiff of the maternity leave benefit she negotiated as part of her benefits when she accepted employment. (Cplt ¶ 13.) A maternity leave benefit is of no value if an employee is discharged three days after she announces she was pregnant. (Cplt. ¶ ¶ 20-21.) The obvious purpose of a maternity leave benefit is to permit an employee to retain her employment despite her pregnancy and the birth of her child. The jury could also find that the threatened demotion and reduction in pay was intended to force plaintiff to quit before she went on maternity leave or to decrease the cost to the employer of such benefit, also in bad faith. The jury could also find Boehmer deceived plaintiff into believing she had a maternity leave benefit that turned out to be illusory when she informed her employer she intended to work while pregnant and to return to her job after she had the baby. (Cplt ¶ 20.)
The motion to strike the claim for breach of good faith and fair dealing is denied.