Oliver v. Walmart Stores, East, L.P.

Full title: Cherylann Oliver v. Walmart Stores East, L.P. et al

Court: Superior Court of Connecticut

Date published: Feb 13, 2017

KNLCV166027223S (Conn. Super. Ct. Feb. 13, 2017)

Opinion

KNLCV166027223S

02-13-2017

Cherylann Oliver v. Walmart Stores East, L.P. et al

Timothy D. Bates, J.

UNPUBLISHED OPINION

DEFENDANT WALMART'S MOTION TO STRIKE COUNTS 1, 2 AND 5 (Pleading #103)

Timothy D. Bates, J.

FACTS

The plaintiff, Cherylann Oliver, filed the five-count complaint in this action on June 20, 2016 against Walmart Stores East, LP (hereinafter referred to as " Walmart") and Rebecca Sereno (hereinafter " Sereno"), a fellow employee and supervisor at Walmart in its Waterford, Connecticut store. In the first count of the complaint, the plaintiff alleges discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act (" CFEPA") on the part of Walmart. In her second count, she claims negligent supervision against Walmart. Counts 3 and 4 charge Sereno with two counts of invasion of privacy; Sereno has not appeared in this matter, and the subject motion does not apply to the counts as addressed to her. Count 5 alleges that both Sereno and Walmart engaged in intentional infliction of emotional distress. Walmart has moved to strike counts 1 and 2 as well as well as count 5 as it applies to Walmart. In the complaint, the plaintiff alleges the following facts: On November 8, 2014, the plaintiff was working at Walmart when her supervisor, Sereno, followed her into the restroom. Oliver alleged that Sereno slid a cell phone under the bathroom stall door and videotaped the plaintiff without the plaintiff's knowledge or consent. The plaintiff claims Sereno then posted the video of the plaintiff on Facebook with a vulgar caption. She claims the posting remained on the website for several hours. The following day, the plaintiff states she reported the incident to upper management at the defendant's Waterford store, and Sereno was instructed to remove the video from social media. Based on these allegations, Oliver claims Walmart was negligent by failing to properly educate, train, manage, supervise, and discipline Sereno. As a result of these actions, Oliver claims to have suffered and continues to suffer from severe and permanent emotional distress, humiliation, apprehension and a loss of earning capacity. Based on these claims, she requests compensatory and punitive damages, along with fees and costs.

On July 28, 2016, Walmart filed a motion to strike counts one, two, and five of the plaintiff's complaint because the plaintiff has failed to sufficiently allege facts to support causes of action sounding in discriminatory employment practices, negligent supervision, and intentional infliction of emotional distress under the doctrine of respondeat superior. The defendant's motion is supported by a memorandum of law. In response, the plaintiff filed a memorandum of law in opposition to the motion to strike on September 27, 2016. On October 18, 2016, Walmart filed a reply to the plaintiff's memorandum of law in opposition. The motion was argued at short calendar on October 24, 2016.

ANALYSIS

" [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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " 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). " 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).

COUNT I: DISCRIMINATORY EMPLOYMENT PRACTICES

In the memorandum of law in support of the motion to strike, Walmart argues that count one is legally insufficient to state a claim sounding in discriminatory employment practices as the plaintiff has failed to plead any facts showing that the plaintiff was targeted because of her gender or that there was a general hostility toward women at her place of employment. The defendant also argues that the plaintiff has failed to plead any facts demonstrating severe or pervasive harassment in the workplace. The plaintiff, on the other hand, contends that the facts alleged are sufficient to establish a claim of sexual harassment.

General Statutes § 46a-60(a)(8)--which is the statutory basis for Count 1--provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent . . . to harass any employee, person seeking employment or member on the basis of sex . . . Sexual harassment shall, for the purposes of this section, be defined as . . . any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." " [T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015). The plaintiff is not required to show that the work environment was both severe and pervasive, but rather only that it was sufficiently severe or pervasive. (Emphasis added.) Pucino v. Verizon Communications, Inc., 618 F.3d 112, 119 (2d. Cir. 2010). " [I]ncidents of allegedly offensive conduct must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Cirino v. Jetro Holdings, LLC, Superior Court, judicial district of New Haven, Docket No. CV-13-6035102S (November 6, 2014, Fischer, J.) [59 Conn.L.Rptr. 203, ], citing Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001). When asserting a claim based on hostile work environment pursuant to § 46a-60(a)(8), " a plaintiff must demonstrate that [he or] she was subjected to the hostility because of [his or] her membership in a protected class." (Emphasis in original.) Cirino v. Jetro Holdings, LLC, supra, . Accordingly, a plaintiff, in alleging a legally sufficient hostile work environment claim, must allege that the conduct complained of was so frequent or severe that it affected the plaintiff's work conditions. Furthermore, it must be alleged that the harassing or abusive conduct occurred because of the plaintiff's sex. Id. In the present case, the allegations involve an isolated incident in which the plaintiff's supervisor videotaped her using the restroom and posted the video to a social media website. The allegations in the complaint do not assert that the conduct occurred because of the plaintiff's sex.

The allegations set forth in count one of the present case--while reprehensible--are similar to allegations that courts have found to be insufficient to support a hostile work environment claim. See Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998) (a hostile work environment claim did not arise from claims that a supervisor commented about an employee's buttocks, and the supervisor intentionally touched the employee's breasts with papers he was holding); Kearney v. City of Bridgeport Police Dept., United States District Court, 573 F.Supp.2d 562 (D.Conn. 2008) (hostile work environment claim was not established where the defendant made one statement to the plaintiff, when the statement was an isolated incident, and the statement was not made based on the plaintiff's race or sex); see also Cirino v. Jetro Holdings, LLC, supra, Superior Court, Docket No. CV-13-6035102S, . Considered in the totality, the single incident alleged by the plaintiff is not sufficiently severe or pervasive to support a hostile work environment claim. Unlike in Pucino v. Verizon Communications, Inc., 618 F.3d 112, 117-18 (2d Cir. 2010), where the plaintiff's superiors " subjected women to disparately harsh working conditions, " here, the plaintiff has not alleged any conduct suggesting that the abusive incident was motivated by her gender or was part of a pattern of behavior. In fact, the allegations in the complaint lack any suggestion that the conduct claimed of was at all based on the plaintiff's sex or was part of a pattern of behavior. Moreover, the complaint does not allege any facts to suggest that the plaintiff's workplace was permeated with discriminatory conduct toward women. Accordingly, even if the allegations met the severe or pervasive requirement, the claim does not sufficiently allege that the conduct occurred because of the plaintiff's gender. Therefore, count one fails to state a claim upon which relief can be granted, and the defendant's motion to strike is granted as to count one.

COUNT II: NEGLIGENT SUPERVISION

Walmart next argues that count two of the plaintiff's complaint is legally insufficient to state a claim of negligent supervision because, under Connecticut law, an employee cannot maintain a claim against its employer for employee conduct resulting in emotional distress.¹ The defendant further argues that the plaintiff has failed to plead any facts demonstrating that Sereno's actions were foreseeable to Walmart, such that Walmart had a duty to protect plaintiff from the alleged harm. The plaintiff contends that the facts alleged are sufficient to establish a claim of negligent supervision.

1 The defendant argues that the plaintiff is prohibited from bringing a negligence claim against the defendant solely for alleged emotional injuries occasioned by conduct occurring in the context of an ongoing employment relationship, and not in connection with the termination of that relationship. In paragraph twenty-four of count two, the plaintiff alleges a claim of negligent supervision against the defendant and damages, consisting of emotional harm and loss of earning capacity. In Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), the court concluded that a municipal employee could not be liable for negligent infliction of emotional distress based on alleged conduct that occurred " within the context of a continuing employment relationship, as distinguished from actions or omissions occurring in the termination of employment." Unlike the plaintiff in Perodeau, the plaintiff in the present case has alleged causes of action sounding in negligent supervision and intentional infliction of emotional distress against the defendant. Accordingly, the plaintiff's claim is not barred by the holding in Perodeau .

Pursuant to Connecticut law, " an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). " Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability." Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811, (April 8, 2008, Elgo, J.). " The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002). " The matter of foreseeability is a question of proximate cause . . . and the question of proximate cause is ordinarily a question of fact for the trier . . . Conclusions of proximate cause are to be decided by the jury and not by the court . . . It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; international quotation marks omitted.) Gutierrez v. Thorne, 13 Conn.App. 493, 500-01, 537 A.2d 527 (1988).

Although there is no appellate authority addressing this specific issue, " superior courts have held that in a cause of action alleging negligent hiring, supervision, or retention of an employee, a defendant cannot be liable, unless the defendant had knowledge of an employee's propensity to engage in the type of conduct which caused harm to the plaintiff." Cisneros v. Team Stamford, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-12-6030923S (September 17, 2015, Radcliffe, J.) [60 Conn.L.Rptr. 928, ]; Kidder v. Lasaracina, Superior Court, judicial district of New Haven, Docket No. CV-10-6003902S, (September 5, 2012, Martin, J.); Taylor v. Webster Bank, N.A., Superior Court, judicial district of Litchfield, Docket No. CV-11-6005350S, (July 20, 2012, Danaher, J.).

In the present case, in paragraph twenty-two of count two, the plaintiff has alleged that the defendant " fail[ed] to properly educate, train, manage, supervise, and discipline their employee . . . [and] failed to follow their anti-harassment policy." Accordingly, the issue becomes whether an ordinary person in the position of the defendant would anticipate that the harm of the general nature was likely to result. See Gutierrez v. Thorne, supra, 13 Conn.App. 500. Count two of the plaintiff's complaint does not allege any facts pertaining to Sereno's propensity to engage in the type of conduct that caused harm to the plaintiff. Moreover, count two of the plaintiff's complaint does not contain any allegation that the defendant knew or had reason to know that Sereno had previously engaged in offensive behavior in the workplace, videotaped employees, or otherwise conducted herself in an objectionable manner when interacting with the plaintiff or other employees. Therefore, because the plaintiff's complaint does not include facts sufficient to support a finding of foreseeability, the defendant's motion to strike count two of the complaint is granted.

COUNT V: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Walmart argues that count five of the plaintiff's complaint is legally insufficient to state a claim of intentional infliction of emotional distress against Walmart under the doctrine of respondeat superior because the plaintiff has failed to plead any facts demonstrating that Walmart intentionally engaged in extreme or reckless conduct. Walmart further avers that the plaintiff has failed to plead any facts showing that Sereno was acting in the furtherance of the defendant's business at the time of the incident. The plaintiff counters that the facts alleged are sufficient to establish a claim of intentional infliction of emotional distress under the doctrine of respondeat superior.

A claim for negligent infliction of emotional distress must include the following elements: " (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." (Internal quotation marks omitted.) Marsala v. Yale-New Haven Hospital, Inc., 166 Conn.App. 432, 451, 142 A.3d 316 (2016). " All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2000).

In the present case, the plaintiff does not allege legally sufficient facts demonstrating that the defendant " intended to inflict emotional distress or . . . knew or should have known that emotional distress was the likely result." Marsala v. Yale-New Haven Hospital, Inc., supra, 166 Conn.App. 451. To the contrary, the complaint alleges that Sereno, rather than Walmart, subjected the plaintiff to extreme and outrageous conduct, intending to inflict severe distress. The complaint is completely devoid of any allegation that Walmart intended to inflict emotional distress or had reason to know that such conduct would occur. Accordingly, as the plaintiff has failed to allege sufficient facts to satisfy the first element of an intentional infliction of emotional distress claim against the defendant, the court need not discuss whether Sereno's conduct was extreme and outrageous. This is not to say that Sereno's conduct was not extreme or outrageous. However, because the allegations do not attribute Sereno's conduct to Walmart, the plaintiff has failed to sufficiently allege that Walmart intended or had reason to know of Sereno's conduct.

In the plaintiff's reply to Walmart's motion to strike, the plaintiff argues that the defendant is liable for intentional infliction of emotional distress under the doctrine of respondeat superior. " While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . the vital inquiry . . . is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . ." (Citations omitted; internal quotation marks omitted). A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 210, 579 A.2d 69 (1990). " For those risks that are within the sphere of control of the [employer], and that may be minimized or eliminated with reasonable practicality, the [employer] . . . may be held liable in tort . . ." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). If, however, the employee's actions are not authorized by the employer, the employer will not be liable for the employee's conduct. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 208, citing Wells v. Walker Bank & Trust Co., 590 P.2d 1261, 1264 (Utah 1979).

To establish whether Sereno's conduct may be imputed to Walmart, the plaintiff must attribute the alleged conduct of Sereno to Walmart in order for her intentional infliction of emotional distress claim to survive. There are, however, simply no allegations that Sereno's conduct was of the type Sereno was employed to perform or that Sereno was motivated, at least in part, by a purpose to serve Walmart's business. Although the complaint alleges that Sereno's conduct occurred in the workplace and during business hours, the mere allegation that the tortious conduct occurred during the workday is insufficient for a claim of respondeat superior. As the plaintiff fails to allege that Sereno was acting in the scope of the Walmart's business and that Sereno's conduct arose from her employment duties at the defendant store. Count five of the plaintiff's complaint is therefore legally insufficient to state a claim for intentional infliction of emotional distress under the doctrine of respondeat superior. Accordingly, Walmart's motion to strike count five as to it as a defendant is granted.

CONCLUSION

For the foregoing reasons, Walmart's motion to strike counts one, two, and five (as applied to Walmart) of the plaintiff's complaint are granted.