Opinion
CV166027223
08-16-2017
Cherylann Oliver v. Walmart Stores East, LP et al
UNPUBLISHED OPINION
Filed August 17, 2017
MEMORANDUM OF DECISION RE DEFENDANT WALMART STORES EAST, LP MOTION TO STRIKE (#113)
Timothy D. Bates, J.
FACTS
On February 28, 2017, the plaintiff, Cherylann Oliver, filed a five-count amended complaint against two defendants, Walmart Stores East, LP, and Rebecca Sereno. In count one of the amended complaint, the plaintiff alleges the following facts. The plaintiff was an employee of the defendant's store where she was directly supervised by Sereno. On November 8, 2014, while the plaintiff was using the restroom at work, Sereno slid a cell phone camera under her closed and locked bathroom stall and videotaped the plaintiff without her knowledge or consent. The plaintiff alleges that Sereno's actions " were of a sexually demeaning nature, " " were of a sexual nature, " and her " prurient intent to photograph [the plaintiff] while she was using the bathroom, with her pants down and her vagina, labia, anus and buttocks fully exposed, was humiliating and sexually demeaning and hostile in nature." Sereno subsequently posted the video on social media accompanied with the caption " Look at Cherylann Oliver's Big Black Ass, " which the plaintiff alleges " [m]ore than one person, other than the [p]laintiff, saw . . . as there were several comments by other users of the website appended to the video posting." The plaintiff advised the defendant's store's upper management, who then directed Sereno to delete the video from social media. According to the plaintiff, the defendant " did not terminate [Sereno's] employment, nor reprimand her in any way." The plaintiff further alleges that the defendant " knew that [Sereno] was prone to engaging in highly inappropriate, humiliating, and hostile conduct in that [the defendant] was aware of an incident occurring approximately six months prior to the subject incident, wherein [Sereno] confronted and threatened another Walmart employee Josephine LNU at the Walmart store, in front of Walmart patrons, in a hostile and gular manner regarding the co-worker's sexual or romantic relationship."
Initially, the plaintiff filed a five-count complaint on June 20, 2016. On July 28, 2016, the defendant Walmart moved to strike counts one, two, and five of the plaintiff's complaint, which this court granted on February 14, 2017. Subsequently, the plaintiff filed the operative amended complaint pursuant to Practice Book § 10-44.
The present motion to strike is filed by, and therefore only involves, the defendant Walmart. Sereno is also non-appearing in this case. Accordingly, the defendant Walmart will be referred to herein as the defendant.
In counts one, two, and five, the plaintiff asserts causes of action for discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60 et seq., negligent supervision, and intentional infliction of emotional distress, respectively, against the defendant. In counts three and four, the plaintiff asserts causes of action for intrusion of seclusion and public disclosure of private facts, respectively, against Sereno.
On April 13, 2017, the defendant filed the present motion to strike counts one, two, and five of the plaintiff's amended complaint on the grounds that (1) as to count one, the allegations are insufficient to show that Sereno targeted the plaintiff on account of her gender or that the incident was sufficiently severe or pervasive as to create a hostile work environment; (2) as to count two, the allegations are insufficient to establish the element of duty with respect to a negligence claim; and (3) as to count five, the allegations are insufficient to establish liability under a respondeat superior theory, extreme and outrageous conduct on the part of the defendant, or the defendant's ratification of Sereno's conduct. The defendant also submitted a memorandum of law in support of its motion. On May 11, 2017, the plaintiff filed a motion for extension of time to respond to the defendant's motion, which this court subsequently granted. On June 9, 2017, the plaintiff filed an objection, and accompanying memorandum of law in opposition, to the defendant's motion to strike. Thereafter, the defendant filed a reply memorandum on July 5, 2017. The court heard oral argument at short calendar on July 10, 2017.
DISCUSSION
" [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). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).
COUNT I: DISCRIMINATORY EMPLOYMENT PRACTICES
In its memorandum of law in support of the motion to strike, the defendant argues that count one, asserting a cause of action for discriminatory employment practices, should be stricken because the allegations fail to show that (1) Sereno videotaped the plaintiff in the restroom on account of her gender, and (2) the videotaping incident was sufficiently severe or pervasive as to create an actionable hostile work environment. In response, the plaintiff contends that Sereno's actions were of a sexual nature intended to demean the plaintiff, and were also sufficiently severe in nature. As a result of Sereno's severe actions, the plaintiff argues that her work environment was altered and thus, gave rise to an actionable hostile work environment claim pursuant to § 46a-60(a)(8).
General Statutes § 46a-60(a)(8) 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, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex or gender identity or expression. 'Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or 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; emphasis added; internal quotation marks omitted.) Patino v. Birken Manufacturing Co., 304 Conn. 679, 699, 41 A.3d 1013 (2012). " As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive . . . Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness . . . But . . . even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." (Citations omitted; internal quotation marks omitted.) Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). To prevail on a claim of hostile work environment pursuant to § 46a-60(a)(8), " [a] plaintiff must also demonstrate that [he or] she was subjected to the hostility because of [his or] her membership in a protected class." (Emphasis in original; internal quotation marks omitted.) Cirino v. Jetro Holdings, LLC, Superior Court, judicial district of New Haven, Docket No. CV-13-6035102-S (November 6, 2014, Fischer, J.) [59 Conn.L.Rptr. 203, ].
In the present case, the plaintiff alleges that Sereno's actions in " [sliding] a cell phone camera under [the plaintiff's] closed and locked bathroom stall and [videotaping] the plaintiff without her knowledge or consent, " were " of a sexually demeaning nature, " were " of a sexual nature, " and that Sereno's " prurient intent to photograph [the plaintiff] while she was using the bathroom, with her pants down and her vagina, labia, anus and buttocks fully exposed, was humiliating and sexually demeaning and hostile in nature." The plaintiff also alleges that Sereno engaged in " highly inappropriate, humiliating, and hostile conduct" approximately six months prior to the subject incident when she " confronted and threatened" another female employee, at the workplace and in front of patrons, in a " hostile and vulgar manner regarding the co-worker's sexual or romantic relationship."
Based on the aforementioned allegations, the plaintiff has alleged additional facts sufficient to suggest that the conduct occurred because of the plaintiff's membership in a protected class, namely, her sex. The allegations of Sereno's previous public confrontation with another female co-worker regarding her sexual or romantic relationship, coupled with the subject incident of filming the female plaintiff while she was using the bathroom without her knowledge or consent, suggest a workplace permeated with discriminatory conduct toward women in particular. In addition, although this court previously stated that " the single subject incident alleged by the plaintiff was not sufficiently severe or pervasive to support a hostile work environment claim, " the additional allegations with respect to Sereno's previous inappropriate public confrontation suggest a hostile pattern of behavior adequate to satisfy the pervasive requirement for such a claim. In light of the principle that in assessing a motion to strike the court must construe the complaint in the manner most favorable to sustaining its legal sufficiency; Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013); the court finds the plaintiff has sufficiently alleged a claim sounding in discriminatory employment practices and accordingly, the court denies the defendant's motion to strike as to count one.
COUNT II: NEGLIGENT SUPERVISION
Next, the defendant argues that count two, asserting a cause of action for negligent supervision, should be stricken because the plaintiff fails to allege facts sufficient to establish the element of duty for a negligence claim. Specifically, the defendant maintains that the plaintiff's newly pleaded facts with respect to a previous incident involving Sereno are insufficient to establish that the incident giving rise to the present action was therefore reasonably foreseeable, such that the defendant owed a duty to the plaintiff to protect her from the alleged harm. In response, the plaintiff argues that a reasonable person could conclude that the defendant's knowledge of the previous incident satisfies the foreseeability requirement necessary to establish the duty element of a negligence claim.
" Under Connecticut law, an employer may be held liable for the negligent supervision of employees." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 207 n.12, 9 A.3d 347 (2010). To hold an employer liable for negligent supervision under Connecticut law, " [the] plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise. A defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct." Roberts v. Circuit-Wise, Inc., 142 F.Supp.2d 211, 214 (D.Conn. 2001). " 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-S, (April 8, 2008, Elgo, J.). " Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct." Knight v. Weise, Superior Court, judicial district of New London, Docket No. CV-09-5012638-S, (December 3, 2010, Martin, J.). " By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001340-S (November 21, 2012, Jennings, J.T.R.) [55 Conn.L.Rptr. 40, ].
In the present case, the plaintiff alleges that the defendant " knew that [Sereno] was prone to engaging in highly inappropriate, humiliating, and hostile conduct in that [the defendant] was aware of an incident occurring approximately six months prior to the subject incident, wherein [Sereno] confronted and threatened another Walmart employee Josephine LNU at the Walmart store, in front of Walmart patrons, in a hostile and vulgar manner regarding the co-worker's sexual or romantic relationship." The plaintiff further alleges that the defendant's store manager was " aware of the confrontation, failed to discipline [Sereno] for her actions against her fellow employee, and continued to employ [Sereno]." Construing the allegations in the light most favorable to the plaintiff, the court finds the plaintiff has sufficiently alleged, albeit somewhat thinly, that the defendant knew or had reason to know that Sereno had previously engaged in offensive behavior in the workplace or otherwise conducted herself in an objectionable manner when interacting with other employees and thus, it was reasonably foreseeable to the defendant that that harm of the general nature of that suffered was likely to result. Accordingly, the court denies the defendant's motion to strike as to count two.
COUNT V: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, the defendant argues that count five, asserting a cause of action for intentional infliction of emotional distress, should be stricken because the allegations are insufficient to show that (1) the defendant is liable under a respondeat superior theory; (2) the defendant ratified Sereno's actions; or (3) the defendant engaged in extreme or outrageous conduct. In response, the plaintiff maintains that the defendant " condoned, ratified, and fomented the hostile work environment, " and that the continued employment of Sereno " could lead a reasonable person to conclude that [the defendant] intended to inflict emotional distress upon [the plaintiff]."
" 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." (Internal quotation marks omitted.) Geiger v. Carey, 170 Conn.App. 459, 496-97, 154 A.3d 1093 (2017). " 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!" (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). Nonetheless, " [t]here is no bright line rule to determine what constitutes extreme and outrageous conduct . . . The court looks to the specific facts and circumstances of each case in making its decision." (Internal quotation marks omitted.) Green-Cubano v. Norwalk Acquisition I, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6023777-S, (June 23, 2015, Heller, J.).
In the present case, the plaintiff alleges that the defendant " knew prior to the humiliating and distressing events of November 8, 2014, that Sereno was prone to engaging in hostile behavior against her fellow employees with the intent to humiliate, degrade, and threaten. Nevertheless, [the defendant] continued to employ Sereno, thereby condoning and ratifying Sereno's actions towards [the plaintiff] on November 8, 2014." In addition, the plaintiff alleges that in response to the videotaping incident in the restroom that gave rise to the present action, the defendant " did not terminate [Sereno's] employment, nor reprimand her in any way, " and " has continued to allow [Sereno] to continue her supervisory role over [the plaintiff]." The plaintiff also alleges that as a result of Sereno's conduct, she has " suffered and continues to suffer from, including but not limited to, severe and permanent emotional distress, embarrassment, humiliation, apprehension, and a loss of earning capacity."
Although " [a]n employer's inaction in response to complaints of harassment by another employee alone is insufficient to establish extreme and outrageous conduct, " the incident at issue here is not merely a complaint in isolation about questionable conduct by a fellow employee. Dichello v. Marlin Firearms Co., Superior Court, judicial district of New Haven, Docket No. CV-06-500296-S, (January 22, 2007, Zoarski, J.T.R.). Rather, the defendant was allegedly made aware of a videotape taken by a supervisor inside of a restroom, located at the defendant's store and taken during the workday, that depicted an employee " using the bathroom, with her pants down and her vagina, labia, anus and buttocks fully exposed, " without her knowledge or consent. The defendant was also allegedly aware that the supervisor publically posted that video to social media with an offensive caption. Although the defendant did " direct [Sereno] to delete the posted video from social media, " the defendant has not, according to the complaint, taken any further action with respect to Sereno's employment status and instead, permitted Sereno to remain in her supervisory position over the plaintiff. Moreover, the defendant is also alleged to have known about, and similarly failed to take action with respect to, a previous incident involving that same supervisor where she engaged in offensive behavior while interacting with other employees in the workplace.
As the plaintiff's employer, the defendant had the power to remove Sereno from her supervisory position over the plaintiff or to otherwise adjust the working relationship between the two parties in response to the highly offensive conduct, but instead chose not to. The court holds that in the context of the specific facts and circumstances of the present case, the plaintiff has alleged sufficient facts such that a reasonable juror could find that the defendant's failure to take immediate action against Sereno for the incident giving rise to the present action, coupled with the defendant's knowledge of Sereno's previous objectionable conduct, was sufficiently extreme and outrageous as to support a claim for intentional infliction of emotional distress. See Sangan v. Yale University, United States District Court, Docket No. 3:06CV587 (PCD) (D.Conn. September 15, 2006), quoting 1 Restatement (Second), Torts § 46, comment (e) (1965) (" 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, or a relation with another, which gives him actual or apparent authority over the other or power to affect his interests'" [internal quotation marks omitted]); see also Champion v. Lipscomb, Superior Court, judicial district of Hartford, Docket No. CV-92-0512902-S, (April 23, 1993, Hammer, J.) (citing 1 Restatement [Second], Torts § 46, comment [e], in denying motion to strike intentional infliction of emotional distress claim where plaintiff alleged that defendant employer " after being informed of the tortious and possibly criminal conduct of one of its employees, failed to take any action against him, and thereby ratified [the tortfeasor's] conduct"); Montague v. Accelent, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-16-6057274-S (October 5, 2016, Krumeich, J.) (63 Conn.L.Rptr. 259, ) (" extreme abuse of power may tip the balance in favor of upholding [an intentional infliction of emotional distress] claim"). Accordingly, the court denies the defendant's motion to strike as to count five.
CONCLUSION
In light of the foregoing, the court denies the defendant's motion to strike as to counts one, two, and five.