Opinion
No. CV 09 4008584S
February 11, 2010
MEMORANDUM OF DECISION
This memorandum will address the defendants' motion to strike (#114) one count of the plaintiff's complaint. The parties filed briefs and engaged in oral argument on January 11, 2010. For the reasons given below, the motion to strike must be granted.
FACTS
The plaintiff, Phyllis Nordby, has filed a five-count complaint against the defendants, Anesthesia Associates of Torrington, LLC (defendant LLC), and its individual members, doctors Mark Begleiter, Daniel Coelho, William Fortuner and Jeff Klein (defendant doctors), alleging violations of the Connecticut Fair Employment Practices Act (CFEPA), specifically, General Statutes § 46a-60(a)(1), (4) and (5), and intentional and negligent infliction of emotional distress. The plaintiff alleges the following facts. In count one for violation of General Statutes § 46a-60(a)(1), the defendants hired her and, after years of service, issued a letter falsely suggesting that she voluntarily abandoned employment when she was out of the office sick, despite her calling the defendant LLC to inform the office of her sick days. The letter was a pretext for discrimination, allowing the defendants to terminate the plaintiff and replace her with a younger, more affordable hire. The plaintiff was at all times an employee, as defined under CFEPA, and the defendants are an employer as that term is defined under CFEPA. The defendants' conduct, by and through their members, violated General Statutes § 46a-60(a)(1). The defendants' termination of the plaintiff because of her age amounts to illegal discrimination. She has suffered past and future economic harm as a result of the defendants' conduct.
The plaintiff alleges a violation of General Statutes § 46a-60(a)(4) in count two, a violation of General Statutes § 46a-60(a)(5) in count three, and claims intentional and negligent infliction of emotional distress in counts four and five, respectively.
On December 31, 2009, the defendants brought their motion to strike count one as to the individual defendants on the grounds that General Statutes § 46a-60(a)(1) does not impose liability on individual employees, but rather only on the defendant LLC. In the alternative, even if an individual may be held liable, the court should strike because multiple employers cannot be held liable under this section, pursuant to the statutory language.
Although the defendants moved to strike count three of the plaintiff's complaint for violation of General Statutes § 46a-60(a)(5), they submitted at oral argument that their motion to strike is now limited to count one.
DISCUSSION Motion to Strike Standard
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39.
"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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "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).
II Count One
General Statutes § 46a-60(a)(1) provides: "It shall be a discriminatory practice in violation of this section . . . For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including but not limited to, blindness."
"Employer" as defined in General Statutes § 46a-51(10) "includes the state and all political subdivisions thereof and means any person or employer with three or more persons in such person's or employer's employ." A "person" as defined in General Statutes § 46a-51(14) is "one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers and the state and all political subdivisions and agencies thereof."
As to count one, the defendants first argue that General Statutes § 46a-60(a)(1) does not impose liability on individual employees. The individual defendants, as members and owners of the limited liability company, are distinct from the defendant LLC, protected from personal liability by virtue of the business entity, and, therefore, not liable for the actions of the defendant LLC. As members of the defendant LLC, the defendant doctors are agents of the company, which was the plaintiff's only employer. Further, the plaintiff has alleged that the "`[d]efendants [collectively] are an employer,' not that each defendant is an employer." The plaintiffs counter that an individual doctor may be an employer as that term is defined under CFEPA. The defendant doctors are not simply agents, and the allegations in count one refer to specific acts of discrimination by each of the defendant doctors individually as well as in their capacity as members of the LLC. Therefore, they were acting as the plaintiff's employers.
The defendants rely on Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), to support their argument that General Statutes § 46a-60(a)(1) does not impose civil liability against individual employees. The plaintiff, however, argues that the case is inapplicable because it does not address whether a person who employs more than three individuals and that person's company can both be held liable. In Perodeau, the plaintiff named individual employees in his suit for violation of CFEPA. The court disagreed with the plaintiff's interpretation of General Statutes § 46a-60(a)(1) based on the definition of "employer" under the statute, that "the phrase `with three or more persons in his employ' in § 46a-51(10) modifies only the word `employer' and not the word `person.'" Id., 735. Essentially, the court concluded that a person must have three other persons in his employ in order to be considered an employer. The court looked at a number of federal cases, finding that "[t]he weight of federal authority further bolsters our conclusion that individuals who are not employers may not be held liable under § 46a-60(a)(1)." Id., 738.
In the present case, however, the plaintiff does not argue that the defendants are liable as individuals, but rather as employers separate from the defendant LLC. There appears to be no appellate authority addressing this question, but a number of Superior Courts have dealt with the issue.
In Roman v. Department of Corrections, Superior Court, judicial district of New Britain, Docket No. CV 05 5000278 (August 10, 2006, Shaban, J.) ( 42 Conn. L. Rptr. 35, 37), the court determined that CT Page 6543 Perodeau was applicable, and granted the motion to strike because "there is no allegation in the complaint that Douglas Bernier is an employer rather than an employee." (Emphasis added.)
The facts of Balog v. Shelton Restaurant, Superior Court, judicial district of Ansonia Milford at Derby, Docket No. CV 04 0084313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr. 659), cited by the plaintiff, closely resemble those of the present case. The plaintiffs in Balog brought three separate counts for violations of General Statutes § 46a-60(a)(1) against the LLC and two individuals who were not coemployees, Eric and Amy Sierra, alleging that they so controlled and dominated the business that it was their alter ego. The plaintiffs in Balog also alleged that each individual was their "effective employer." Id., 661. While the opinion does not explicitly say, it appears that the two may have been members of the LLC, not unlike the defendant doctors in the present case. In deciding whether to strike the counts against these two individuals for violation of General Statutes § 46a-60(a)(1), the court looked at the definitional sections of CFEPA and found that "[t]here may be circumstances where the factual allegations of a complaint can support the conclusion that an individual, who was not a coemployee, acted as an employer within the meaning of CFEPA sufficient to impose § 46a-60(a)(1) liability. Cf. Butler v. Skidmore v. Hartford Technical Institute, Inc., 243 Conn. 454, 462-63, 704 A.2d 222 (1997) (where the court concluded that even when there is a corporate employer an individual could be held personally liable as an employer pursuant to General Statutes § 31-72 which it interpreted to encompass "an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages . . ."); Petronella v. Venture Partners, Ltd., 60 Conn.App. 205, 758 A.2d 869 (2000) (applying Butler)." (Emphasis added.) Id., 662.
Another Superior Court's discussion of the meaning of "employer" under General Statutes § 31-51q and § 46a-60 is useful. In Maisano v. Congregation or Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden, J.) ( 47 Conn. L. Rptr. 152), the defendant moved to strike counts against the individual defendants on the grounds that the statutes applied only to employers. The court discussed the meaning of employer under General Statutes § 31-51q specifically, but its reasoning is helpful here. "The plaintiff does not really dispute that § 31-51q applies only to employers. Instead, the plaintiff argues that the individual defendants were acting as her `employer in concert' with the synagogue. In her memorandum of law in opposition to the defendants' motion to strike, the plaintiff does not provide any case citation defining `employer in concert' or any case citation where this supposed term of art has been used. From an examination of the complaint's allegations found in counts two, three and four, it appears that the plaintiff simply means that the individual defendants were acting as another employer, as opposed to a supervisory employee capacity or agent of the employer. Despite this argument, it is apparent that the complaint implicitly acknowledges the fact that each of the individual defendants either worked for the synagogue or were acting as the synagogue's agent. Specifically, count two of the complaint refers to defendant Liebnick as `President of the of the Synagogue,' count three calls defendant Wainhaus `the Synagogue's Rabbi,' and defendant Weinstein is termed the `Treasurer of the Synagogue' in count four. Implicit in these statements is the conclusion that these defendants all served the synagogue in an employee or agency capacity, while the synagogue was the plaintiff's only true employer. Moreover, there is no allegation that the plaintiff had any type of a traditional employer/employee with the individual defendants. Most notably, there is no contention that any of the individual defendants paid the plaintiff for her services or engaged in supervisory functions over the plaintiff. Indeed, it is only alleged that each of these individual defendants merely `acquiesced' to Kamlot's termination of the plaintiff, not that they actually had the power to do so themselves." (Emphasis added.) Id., 154.
In her complaint, the plaintiff alleges that "[t]he Defendants, Anesthesia Associates of Torrington, LLC (hereinafter Defendant, Anesthesia Associates) and its Individual Members, Doctors Jeff Begleiteir, Daniel Coelho, William Fortuner and Jeff Klein have a principal place of business at 540 Litchfield Street, Torrington, Connecticut . . . The Plaintiff was compensated by the Defendants . . . The Defendants are an employer as that term is defined in Connecticut General Statutes § 46a-51(10) . . . At all relevant times hereto, the Defendants employed more than three persons . . . The Defendants' conduct, by and through their members, in treating the Plaintiff in the manner unequal to other employees, discriminatorily denied the Plaintiff equal treatment on the basis of her age, in violation of § 46a-60(a)(1) . . . As a result of the Defendants' conduct, the Plaintiff has suffered and will continue to suffer past and future economic, physical and emotional harm." (Emphasis added.)
In the present case, the plaintiff alleges that the defendant LLC acted by and through its members, the defendant doctors. Essentially, she alleges that the doctors acted as agents, even though she does not use that term. Despite arguments in her memorandum to the contrary, she does not allege that the doctors are individual employers. She refers to the "defendants" as her "employer," which suggests that they collectively comprise the defendant LLC, which alone employed her. She also refers to the "defendants' conduct," not any individual conduct on the part of the defendant doctors. There are simply no allegations that any individual defendant doctor or doctors acted as an employer somehow separate from the LLC. According to the case law, because the defendants are not merely coemployees, but rather members/owners, it is possible that the defendant LLC is not the only true employer. However, while the court in Balog did not rule out the possibility that a claim against an individual employer or employers could stand simultaneously with a claim against an LLC employer, it ultimately granted the defendants' motion to strike the counts under General Statutes § 46a-60(a)(1) because the "[conclusory] allegations of the complaint are insufficient to state a cause of action against Eric Sierra and Amy Sierra as employers within the meaning of § 46a-60(a)(1) or (a)(8)." Balog v. Shelton Restaurant, supra, 37 Conn. L. Rptr. 662. Here, the plaintiff alleges even less than the plaintiffs did in Balog. Even if she did allege that the defendant doctors were her individual employers, the counts would be insufficient without more specific allegations as to what makes them individual employers.
The defendants next argue that even if an individual may be held liable under General Statutes § 46a-60(a)(1), the statutory language precludes the plaintiff from holding multiple employers liable under this section. Specifically, they look to the language in General Statutes § 46a-60(a)(1) of "an employer" in contrast to the language in General Statutes § 46a-60(a)(4) and (5) of " any person." In Balog, the court left open the possibility of successful counts against multiple individual employers. The complaint in that case contained separate counts against Eric Sierra and Amy Sierra as individual employers. Even so, it is unclear from the allegations here which of the four defendant doctors the plaintiff seeks to hold individually liable. And looking to Balog and Maisano as guides, the plaintiff must allege, for each doctor, not only that he is an individual employer, but what makes him an individual employer.
In addition, other courts have looked at what it means to be an "employer" in different statutory contexts. In Kavy v. New Britain Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 99 0492921 (August 10, 1999, Graham, J.), the court stated that "the defendant Rhinesmith, as the superintendent of the CSD, is not an employer under the [CFEPA] statute because he does not compensate the individuals whom he supervises." (Emphasis added.) In Petronella v. Venture Partners, Ltd., supra, 60 Conn.App. 209, the court stated that "`[w]hen placed in its statutory context, the term employer as used in § 31-72 encompasses an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages and therefore is the specific or exclusive cause of improperly failing to do so . . . The central question, therefore, is whether the [individual] defendants . . . were in control of the company to such an extent that they can be held liable for the payment of unpaid wages." (Citation omitted; emphasis added.)
The plaintiff's allegations are simply insufficient to state a claim for violation of General Statutes § 46a-60(a)(1) by the defendant doctors as individual employers. Therefore, the court must grant the defendants' motion to strike count one as to the individual defendants, keeping the claim against the defendant LLC intact.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike count one as to the individual defendants is granted.