Opinion
No. CV04 0072318
November 23, 2004
MEMORANDUM OF DECISION
The defendants have filed a motion to strike the second, third and fourth counts of the plaintiff's complaint, on the grounds that: (1) the plaintiff has failed to state a claim in the second count because there is no individual liability under the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq., and that the defendant cannot aid and abet his own alleged discriminatory conduct under said act; (2) the plaintiff has failed to state a claim in the third and fourth counts alleging common law breach of contract and tortious interference with a contract because the plaintiff has an adequate statutory remedy to redress the alleged violations under § 46a-60 et seq.; (3) the plaintiff's third and fourth counts must fail because there are not sufficient facts pleaded to show the existence of a contractual relationship between the parties; and (4) the fourth count of the complaint should fail because, as a matter of law, a defendant cannot tortiously interfere with a contract to which, as an agent, he was a party.
FACTS
On March 3, 2004, the plaintiff, Michelle Rentz, instituted this action against the defendants, Cartwright Limited Partnership, doing business as Central Ford (limited partnership), and/or The Cartwright Corporation (corporation), and David R. Cartwright (Cartwright). The complaint, in count two, names the defendant, David R. Cartwright. In count three, the complaint names the defendants, the Cartwright Limited Partnership and/or the Cartwright Corp. In count four, the complaint names the defendant, David R. Cartwright.
The complaint, in count two, alleges that the defendant, Cartwright, as owner and president of the limited partnership and the corporation, violated General Statutes § 46a-60(a)(5) by subjecting the plaintiff to ongoing, unwanted and offensive sexual remarks, language, advances and retaliation, and created a hostile, intimidating and offensive work environment. In 1999, the defendants, the limited partnership and/or corporation, hired the plaintiff as an office manager and comptroller. Beginning in March of 1999, Cartwright allegedly began to subject the plaintiff to ongoing and unwanted offensive sexual remarks, innuendo, advances and retaliated against her objection and complaints about Cartwright's behavior. The plaintiff alleges that on several occasions in March of 1999, Cartwright questioned the plaintiff about her sexual relationships and made crude and obscene insults and commands at the plaintiff. The plaintiff further alleges that, in April of 2003, the unwelcome and offensive conduct escalated after the plaintiff came to the defense of a subordinate employee who was being subjected to harassing behavior by Cartwright. Allegedly, the plaintiff confronted Cartwright, among others, and requested that he stop his offensive conduct, but the conduct continued and escalated. It is alleged that on one occasion, Cartwright, in response to the plaintiff's complaints, retorted that, as owner of the limited partnership and/or corporation, he could behave as he wished and threatened that if the plaintiff was to quit her employment, Cartwright would prevent her from gaining subsequent employment. On May 16, 2003, the plaintiff alleges that she was constructively discharged from her employment. On June 25, 2003, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) alleging, among other things, Cartwright's sexual harassment and retaliation. On February 11, 2004, by plaintiff's request, CHRO released is jurisdiction over the complaint, and thereafter the plaintiff commenced the present.
In court three of complaint, it is alleged that the defendants, the limited partnership and/or the corporation, breached its employment agreement with the plaintiff by failing to apply its employment policies uniformly and equally, and by failing to properly respond to and address the plaintiff's complaints about Cartwright's offensive and unwelcome behavior. As a result of this breach, the plaintiff claims lost wages, benefits and vacation time. In addition, the plaintiff claims she suffered emotional distress, humiliation, embarrassment, harm to her reputation and loss of enjoyment of life.
In count four, the plaintiff alleges that, Cartwright, as owner and president of the limited partnership and/or corporation, was aware of the plaintiff's employment relationship with the limited partnership and/or the corporation, and intentionally sought to interfere with the employment relationship through his unwelcome and offensive conduct. The plaintiff further alleges that Cartwright's conduct was tortious and malicious and culminated in her constructive discharge.
LAW I. Count Two
The court begins its analysis with an examination of the defendants' claim that the plaintiff has failed to state a claim under General Statutes § 46a-60 et seq. The defendants argue in their supporting memorandum of law that there is no individual employee liability under § 46a-60(a)(1). The defendants further argue that § 46a-60(a)(5) and the various persuasive authorities, do not allow for a perpetrator to aid and abet in his own discriminatory conduct.A. Individual Employee Liability
In Perodeau. v. Hartford, 259 Conn. 729, 744, 792 A.2d 752 (2002), the court held that "§ 46a-60(a)(1) does not impose liability on individual employees." The court, in analyzing the content of § 46a-60(a)(1), found that the section referred specifically to "employers," and not just to "persons" that did not employ anyone. In Perodeau, the plaintiff sued his supervisors and alleged, inter alia, that they had individually violated § 46a-60 et seq. The court, in holding that there was no individual liability for employees, found particularly persuasive the reasoning of Reno v. Baird, 18 Cal. 4th 640, 957 P.2d 1333 (1998), a California Supreme Court case. The Connecticut court agreed with the California Supreme Court's observation that "it would be incongruous to exempt small employers from liability while imposing liability on individual nonemployers . . . [Furthermore, the rejection of the] 'chamber of horrors' argument that barring individual liability would open the floodgates of discrimination, would give supervisors a free pass to discriminate, would liberate supervisors to discriminate with impunity, and the like [is preferable, because] . . . an employer subjected to well-founded claims of employment discrimination as a result of an employee's intentional acts of discrimination is not likely to look favorably upon the offending employee. To the contrary, the employer, to protect its own interests and to avoid further liability, almost certainly will impose some form of discipline upon the offending employee. That discipline may include a free pass to the unemployment line, a result that would seem particularly likely if the employee engages in repeated acts of intentional discrimination against fellow employees." (Internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 743-44. Our supreme court, in finding the above reasoning persuasive, and by relying upon the facts before it, definitively concluded that § 46a-60(a)(1) does not impose liability on individual employees.
The court in Perodeau, however, did state that § 46a-60(a)(1) was in contrast to § 46a-60(a)(5). In § 46a-60(a)(5), the legislature made its intent clear to impose liability upon "persons" as well as "employers." Perodeau v. Hartford, supra, 259 Conn. 737-32. See also Balog v. Shelton Restaurant, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0024313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr. 659) (court holds that "subsection (a)(5) makes it clear that the person upon whom liability can be imposed does not have to be either an employer or an employee. Thus, [this subsection is] not controlled by Perodeau"). Accordingly, although Cartwright cannot be held individually liable under § 46a-60(a)(1), he could potentially be liable under § 46a-60(a)(5).
B. Aiding and Abetting Employer
Section 46a-60(a)(5) provides that it shall be a discriminatory practice, "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so . . ." The plaintiff has interpreted this to mean that a defendant can be held liable for aiding and abetting his employer's discriminatory practices. This court agrees that a defendant may be held individually liable under § 46a-60(a)(5) for aiding and abetting the discriminatory practices of his/her employer.
In construing the Fair Employment Practices Act, 46a-60 et seq., the Connecticut courts' "fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 735. "In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." (Citation omitted; internal quotation marks omitted.) Id., 736. See also, Public Act 03-154. " An act concerning statutory construction."
The defendants cite Bolick v. Alea Group Holdings, LTD, 278 F.Sup.2d 278, 282 (D.Conn. 2003) for the proposition that § 46a-60(a)(5) "aiding and abetting liability . . . requires that the individual assists another person in discriminatory conduct and a sole perpetrator cannot be held liable." Moreover, "to apply the aiding and abetting provision of [§ 46a-60 et seq.] against an employee who was the sole perpetrator of the alleged harassment would produce an illogical result." Id., 282. The illogical result to which the Bolick court refers is the potential for a confusing and strange circular application of the aiding and abetting principle in which the "person who has directly perpetrated the harassment only becomes liable through the employer whose liability in turn hinges on the conduct of the direct perpetrator." Bolick v. Alea Group Holdings, supra, 282. Although this is sound reasoning by the Bolick court, it, nevertheless, does not address directly the unique circumstances or allegations presented in the present case.
In order to more thoroughly review § 46a-60(a)(5) to determine whether, under its purview, the plaintiff has sufficiently alleged a cause of action in which Cartwright could be held personally liable for aiding and abetting the limited partnership and/or the corporation in their discriminatory conduct, it is necessary to determine what status each defendant held in the context of § 46a-60(a)(5).
The plaintiff has alleged that Cartwright, is the "president and owner" of the limited partnership and/or the corporation. It is further alleged that the limited partnership and the corporation are businesses organized and incorporated under Connecticut law and authorized to do business in Connecticut. It is a well-established principle of corporate law that the "employee and the corporation are different 'persons,' even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs." Cedric Kushner Promotions, LTD. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001); Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) (basic tenet of American corporate law is that corporation and its shareholders are distinct entities); 18 Am. Jur. 2d, Corporations § 44 (2004) (corporate owner/employee, who is natural person, is distinct from corporation).
General Statutes § 33-602(19), the definitions provision of the Connecticut Business Corporation Act, defines a "person," inter alia, as an individual and an entity. Section 33-602(11) includes corporate officers within the definition of "employee." Positions within a corporation "may be considered to be held by 'officers' and not be mere employees — such as president, vice president, or certain managers." 18B Am. Jur. 2d, Corporations § 1169 (2004). In § 46a-51(9) of the Connecticut Fair Employment Practices Act, "employee" is defined as "any person employed by an employer" excluding employment by an individual's parent, spouse or child. In § 46a-51(14), a "person" is defined as "one or more individuals, partnerships, associations, corporations, limited liability companies, [and] legal representatives . . ." In light of the plain language of the statute and the basic tenets of corporate law, this court finds that Cartwright, the limited partnership and the corporation are persons as defined by § 46a-51(14), and further, Cartwright is an employee of the limited partnership and/or the corporation as defined in § 33-602(11) and § 46a-51(9) because he is allegedly the president and a corporate officer of the limited partnership and/or the corporation. It can, therefore, be reasonably deduced that the limited partnership and/or the corporation is Cartwright's employer.
The issue of whether one can aid and abet his own wrongful or discriminatory conduct has not been decided by the Connecticut appellate courts. Bolick v. Alea Group Holdings, LTD., supra, 278 F.Sup.2d 281. In the present case, however, the plaintiff's allegation is not that the defendant aided and abetted his own conduct, but aided and abetted the discriminatory practices of the limited partnership and/or corporation. Working with the definitions set forth above, and reviewing the case law of Connecticut, the federal courts, as well as neighboring state jurisdictions, the court finds that the plaintiff has sufficiently alleged a cause of action against Cartwright, under 46a-60(a)(5), for aiding and abetting the discriminatory practices of his employer, the limited partnership and/or the corporation.
Two district of Connecticut federal cases have acknowledged that under 46a-60(a)(5) individual liability exists for "any person" aiding and abetting the discriminatory practices or conduct of the employer. Bolick v. Alea Group Holdings, LTD., supra, 278 F.Sup.2d 281; Jones v. GEM Chevrolet, 166 F.Sup.2d 647, 651 (D.Conn. 2001) (in denying a motion for summary judgment the court stated that if the employer was found liable for discriminatory practices, the jury could find the defendant liable for aiding and abetting that practice). In Brittell v. Department of Correction, 247 Conn. 148, 717 A.2d 1254 (1998), the court stated that an employer "will be held liable for harassment perpetrated by its employees if the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it." (Internal quotation marks omitted.) Id., 167. In the present case, the plaintiff has alleged that limited partnership and/or the corporation, her employer, violated, inter alia, § 46a-60(a)(1) for its acquiescence to Cartwright's ongoing harassing and discriminatory conduct. In Jones v. GEM Chevrolet, supra, 166 F.Sup.2d 647, 651, the court contemplated this exact scenario in which the jury, if the employer was to be found liable for discriminatory conduct, the fact finder could also find the sole perpetrator of the acts to be aiding and abetting the employer's discriminatory conduct. This federal court holding is therefore apposite and compelling.
The Massachusetts Appeals Court, in Beaupre v. Smith Associates, 50 Mass.App.Ct. 480, 738 N.E.2d 753 (2000), confronted the very similar facts as found in the present case, and faced with similar language in their anti-discrimination statutes, held that "the provisions of the chapter must be construed liberally for the accomplishment of its purposes — one of which was to discourage and. penalize discriminatory conduct, including sexual harassment, by individuals — and the explicitly declared policy of the Commonwealth that all person have the right to be free from sexual harassment . . . we have no hesitation in . . . [rejecting] the defendants' contention that [the defendant] cannot be held individually liable . . ., for his active sexual harassment of the plaintiff." Id., 492 "[And furthermore, the corporate employer] is a viable legal person separate and distinct from its shareholder, officers and employees, possessing virtually all of the legal attributes of a natural person . . . [I]t has the capacity to make employment contracts and to sue and be sued, . . . and to be held both civilly and criminally responsible (including as an aider and abettor) for actionable wrongs committed by its responsible officers . . . There is no legal or logical reason why [an individual] cannot be found liable for aiding and abetting [the corporation] . . . in both his separate acts of sexual harassment against [the plaintiff] (which [the corporation] is deemed vicariously to have authorized [the individual] to do) and in causing [the corporation] to sanction first [the plaintiff's] demotion, then her constructive discharge, and finally the revocation of her promised benefits. Such a result is entirely consistent with traditional principles of accessorial liability . . ." Id., 494-95.
Massachusetts General Laws, Mass. Gen. Laws ch. 151B, § 4(5), states that it shall be an unlawful practice: "For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so."
This language is virtually identical to the Connecticut's General Statutes § 46a-60(a)(5), which reads that, it shall be a discriminatory practice "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so."
For the foregoing reasons and analysis, this court finds that § 46a-60(a)(5), allows for an individual to be held liable for discriminatory conduct. Further, in light of the persuasive authority, Cartwright may be held liable under § 46a-60(a)(5) for aiding and abetting the discriminatory conduct of the limited partnership and/or the corporation. Therefore, the defendants' motion to strike count two is denied.
II. Count Three A. Breach of Implied Contract
The defendants move to strike count three of the complaint on the ground that the plaintiff has an adequate statutory remedy to address the alleged violations, and a breach of contract claim is not allowable where there is an adequate statutory remedy. The defendants move to strike count three on the additional ground that the plaintiff has not pleaded sufficient facts to support her claim of a breach of an implied contract because the facts alleged are insufficient to show the existence of a contractual relationship. The plaintiff, in her memorandum of law in opposition argues that an adequate statutory remedy is of no consequence to a claim for breach of implied contract. In addition, the plaintiff contends that she has alleged that an implied contract exists and, further, that the defendants have not applied their policies and procedures uniformly or equally, and this, in itself, is sufficient to survive a motion to strike.
In Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995), the court noted that "all employer-employee relationships not governed by express contracts involve some type of implied 'contract' of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working." (Internal quotation marks omitted.) Id., 13; see also Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999), "Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like. Thus, [a]s a general rule, contracts of permanent employment or for an indefinite term, are terminable at will." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 14. "[T]he rule that employment is at-will and terminable by either the employee or the employer with impunity" is generally followed by Connecticut courts. Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002).
However, "to determine the contents of any particular implied contract of employment, the factual circumstances of the parties' relationship must be examined in light of legal rules governing unilateral contracts . . . Pursuant to the legal principles governing such contracts, in order to find that an implied contract of employment incorporates specific representations orally made by the employer or contained in provisions in an employee manual, the trier of fact is required to find the following subordinate facts. Initially, the trier of fact is required to find that the employer's oral representations or issuance of a handbook to the employee was an 'offer' — i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those oral or written statements, or both . . . A contract implied in fact, like an express contract, depends on actual agreement. Accordingly, [the plaintiff must plead that the defendant] agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause . . . It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee . . . Absent a statutory warranty or definitive contract language [in the personnel manual], the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact, determining the intent of the parties is within the province of the jury." Russack-Baker v. Billings P. Learned Mission, Superior Court, judicial district of New London, CV 0566008 (February 9, 2004, Hurley, J.T.R.)
In Russack-Baker, the court found that the plaintiff (the employee) had pleaded sufficient facts to establish the existence of a personnel policy that required the defendant (the employer) and plaintiff to conduct themselves in a particular manner. The plaintiff alleged that the policy stated certain requirements to be fulfilled by the defendant and plaintiff before the defendant could terminate the plaintiff's employment. The plaintiff, in Russack-Baker, attached the personnel policy to the complaint as an exhibit and cited to specific language in the personnel policy that satisfied the court that there was sufficient facts alleged by the plaintiff "from which it could be found that the defendant made an offer to the plaintiff when he gave the plaintiff the personnel policy containing the operative language and that the plaintiff accepted this offer when he began his employment. The facts alleged by the plaintiff and those implied from them are sufficient to plead an implied agreement between the plaintiff and the defendant that the plaintiff would not be terminated except in accordance with the personnel policy." Russack-Baker v. Billings P. Learned Mission, supra, Superior Court, Docket No. CV 0566008. Accordingly, the court denied the defendant's motion to strike.
In Reznitsky v. Phoenix Systems Integration, LLC., Superior Court, judicial district of Fairfield, CV 02 0395725 (August 16, 2004, Dewey, J.), the plaintiff alleged, inter alia, that the defendant employer, breached a covenant of good faith and fair dealing because the defendant failed to implement disciplinary policies and rules in a fair and consistent manner. The plaintiff further alleged that, pursuant to the policies and rules, he had an implied contract with the defendant upon which he relied. The court held that "the plaintiff [did] not [allege] in his revised complaint that the employer agreed that his employment would not be terminated except in a specified manner. Similarly he has not alleged that the parties reached an agreement . . . The plaintiff's bare assertion that there was a policy manual is insufficient." Id. The plaintiff, "[h]aving failed to allege in his complaint the facts that would state a cause of action in either express or implied contract, . . . has simply failed to plead the causes of action that he now relies upon." Id.
In Sidiropoulos v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, CV 03 0401830 (January 9, 2004, Wolven, J.), the court held that Connecticut's "rules of practice require fact pleading. Practice Book § 10-1 . . . In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Under these procedural limitations, the court found that the plaintiff recited conclusory allegations, "that the defendant, through its words, action and conduct implied that he would only be terminated for just cause. The plaintiff fails to allege, however, factual circumstances, including actual words, actions or conduct by the defendant, to support such a legal conclusion." Id. "In order to survive a motion to strike . . . the plaintiff must allege that there was an actual contract commitment . . . evidenced by representations manifesting the [defendant's] present intent to undertake immediate contractual obligations to the plaintiff." Id. The court, therefore, granted defendant's motion to strike plaintiff's breach of implied contract claim.
Furthermore, in Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 523, the supreme court, faced with the issue of whether there was an implied contract derived from an employment manual, stated that "[i]t is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee . . . In this case, the manual does not contain express contract language that definitively states either that employees are at-will or that they may be terminated only for just cause. In absence of [such] language . . . the determination of what the parties intended to encompass in their contractual commitment is a question of the intention of the parties, and an inference of fact . . . Because it is an inference of fact, determining the intent of the parties is within the province of the jury: it is 'the raison d'etre of the jury system.'" Id., 532-33.
These cases firmly establish that in order for a claim of breach of implied contract to be properly pleaded, the plaintiff must plead sufficient facts that the defendant agreed, either by words, conduct or action, to be bound by some form of actual contractual commitment. Moreover, if a plaintiff is to allege that the policy or employment manual is to give rise to an implied contract, there must be more than just a naked allegation of "existing policies." Reznitsky v. Phoenix Systems Integration, LLC., supra, Superior Court, Docket No. CV 02 0395725.
In the present case, the plaintiff alleges in her complaint that she was employed pursuant to an implied contract, and that the defendants, the limited partnership and/or the corporation, breached the contract by "failing to apply its policies uniformly and equally," and, furthermore, the plaintiff alleges that the contract was breached by the defendants failing properly to respond to the plaintiff's complaints. The plaintiff's allegations are not enough to sustain a claim for a breach of implied contract. In her complaint, the plaintiff simply alleges a conclusion of law that an implied contract exists. The plaintiff has not set forth whether there is, in fact, an employment or policy manual that may contain language from which an implied contract could arise. There is simply a mere assertion that a policy exists.
The case of Jones v. H.N.S. Management Co, Inc., Superior Court, judicial district of New Haven, CV 02 0471419 (September 25, 2003, Licari, J.) ( 35 Conn. L. Rptr. 549), is instructive. In that case, the court, in reviewing a motion to strike a claim for a breach of the covenant of good faith and fair dealing, found that even though the plaintiff did not expressly allege that an "employee manual constituted an implied contract" between the plaintiff and the defendant, "such an allegation is necessarily implied from the facts as alleged." Id. In Jones, however, the facts alleged were that the defendants gave the plaintiff an employment manual that contained corrective action, procedures that allegedly created an implied contract, and that the defendants terminated the plaintiff's employment contrary to the expressly stated procedures in the manual. The facts alleged in Jones can be distinguished from the facts alleged in the present case. In the present case, it is not alleged that there is an employee manual or policy manual, nor any expressed language found in a policy that would imply a breach of any kind. There is only an assertion of a breach of contract and an allegation of a policy violation without any facts to support whether the language of the alleged policy created a manifestation of intent, by either party, to be bound by a contractual commitment. The plaintiff is required to allege actual words or actions to this effect. She has not. Therefore the motion to strike is granted as to count three.
III. Count Four A. Tortious Interference with a Contract
The defendants move to strike count four on the grounds that the defendant, Cartwright, cannot, as a matter of law, tortiously interfere with an alleged contract, to which as an agent, he was a party. In addition, the defendants maintain that the plaintiff has an adequate statutory remedy for a tortious interference claim.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff was caused by the defendants' tortious conduct . . . Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss . . . [T]he tort is not complete unless there has been actual damage suffered." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). "[I]n order to sustain a cause of action for tortious interference with a contractual [relationship], the plaintiff must plead . . . that the defendant acted with an improper motive . . . This element [may be] satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . Whether a defendant acted maliciously or not is a question of intent which is a question of fact." (Citations omitted; internal quotation marks omitted.) Resurrection Espinosa v. Connecticut College, Superior Court, judicial district of New London, Docket No. CV 522872 (June 27, 1994, Leuba, J.) However, "it is not essential to the cause of action that the tort has resulted in an actual breach of contract." Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 167-68, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). "The existence of a beneficial relationship is sufficient." Walsh v. Long, Superior Court, judicial district of Hartford, Docket No. CV 02 0815945 (November 26, 2002, Rittenband, J.T.R.); see also Bernardini v. Lombard, Superior Court, judicial district of Litchfield, Docket No. CV 01 0086276 (March 14, 2003, Frazzini, J.) ("a binding contractual relationship is not necessary to satisfy the first such element [of a tortious interference claim]. Instead, our law requires merely that plaintiff plead that a defendant has tortiously interfered with an existing or prospective business relationship.")
In the present case, the defendants argue that the plaintiff's tortious interference claim must fail as a matter of law because Cartwright, as an agent of the limited partnership and/or the corporation, cannot tortiously interfere with an alleged contract to which he is a party. It is true that "[a] different rule, however, applies where tortious interference is alleged against someone who is directly or indirectly a party to the contract . . . An officer or director of a corporation acting within the scope of his authority and on behalf of the corporation may not be held liable for interference with a contract of the corporation although there are circumstances under which personal liability may attach . . . In order to deprive a corporate employee of his immunity, the plaintiff must establish that he acted solely for his own benefit and benefit to the corporation played no role therein . . . Such a defendant is insulated from liability, even if his actions motivated in part by self-interest, provided he believed he was serving the corporate defendant . . ." (Citations omitted; internal quotation marks omitted.) Resurrection Espinosa v. Connecticut College, supra, Superior Court, Docket No. CV 0522872. However, an agent "could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., supra, 49 Conn.App. 168.
In Walsh v. Long, supra, Superior Court, Docket No. CV 02 0815945, the plaintiff brought, inter alia, a claim for tortious interference and pleaded the existence of a beneficial relationship. The court found that there was a "beneficial relationship to the plaintiff, namely, her employment and to the defendants, namely her employment. The fact that the plaintiff was employed by [the defendants], which was a beneficial relationship for [the defendant] and the plaintiff," had to be known by the third-party corporate agent who fired the plaintiff. Id. The court held that this beneficial relationship was sufficient to satisfy the first criterion necessary for a tortious interference claim. As to the requirement the conduct be tortious, the court found that the plaintiff's allegations of "improper" conduct was sufficient. The court also held that the plaintiff's termination by the agent was an intentional interference with the beneficial relationship. Finally, the court found that the plaintiff's complaint sufficiently pleaded loss suffered by the plaintiff alleging money damages and harm to her reputation. The court, therefore, found the plaintiff pleaded sufficient facts to sustain a cause of action that could withstand a motion to strike.
In the present case, the plaintiff alleges in count four of her complaint, by incorporation of paragraphs one through nineteen of count two, that she was employed by the limited partnership and/or the corporation, that Cartwright knew of her employment, and that Cartwright conducted tortious, malicious, "unwelcome and offensive" sexual behavior towards the plaintiff resulting in her constructive discharge, and thereby acting outside the scope of his duties and intentionally interfering with the plaintiff's and the limited partnership's and/or the corporation's employment relationship. Also, the plaintiff alleges, inter alia, that she suffered "emotional distress, humiliation, embarrassment, harm to her reputation and loss of enjoyment of life." Within the rationale set forth in Walsh v. Long, these alleged facts are sufficient to sustain a cause of action for tortious interference and withstand a motion to strike.
B. Adequate Statutory Remedy
The defendants further argue that the plaintiff has an adequate statutory remedy, and therefore should not be allowed to bring a tortious interference claim. The defendants do not cite to any authority that explicitly prohibits a tortious interference claim where a plaintiff also brings claims under 46a-60 et seq. The defendants cite authorities that disallow causes of action for wrongful discharge. See Burnham v. Karl Gelb, P.C., 252 Conn. 153, 145 A.2d 178 (2000) (in which the Supreme Court found that a plaintiff was precluded from bringing a common law wrongful discharge claim, where there was an existing statutory remedy for such a claim.); Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985) (finding cases that established a contract remedy for wrongful discharge, did so because employee was otherwise without remedy). See also Feathers v. Vivisection Investigation, Superior Court, judicial district of Litchfield, Docket No. CV 99 0080107 (August 31, 2000, Sheedy, J.) ("an employee discharged in violation of public policy may not bring a common law action in tort or contract when there is an adequate statutory remedy.") None of these cases, however, address a specific cause of action under tortious interference of contract or beneficial relationship.
The discussion of wrongful discharge in these cases, although analogous to the present case, are not so on point as to foreclose a tortious interference of contract or beneficial relationship claim. As previously discussed, a tortious interference claim is not necessarily based upon a breach of contract. An interference with a beneficial relationship, without more, is sufficient to sustain a cause of action. The Connecticut courts have stated that a wrongful discharge claim and a claim for a breach of implied covenant are not available where there are adequate statutory remedies. See, e.g., Hancock v, Stop Shop Companies, Superior Court, district of New Haven, Docket No. CR 97 04061 (December 29, 1998, Zoarski, J.T.R.) These claims are based upon tort or contract claims where a plaintiff is required to establish that her/his discharge was predicated on reasons in violation of public policy.
In the present case, the plaintiff's claim for tortious interference with a beneficial relationship does not necessarily require a breach of contract or a discharge from employment. It does, however, require, inter alia, that conduct be tortious, and plaintiff has adequately alleged such conduct. But, without precedent to the contrary, this court is not expressly restrained from entertaining a claim for tortious interference which is brought with a companion claim pursuant to § 46a-60. The basis for a wrongful discharge and a breach of implied or expressed contract are considerably different from tortious conduct, in that tortious interference of a beneficial relationship does not rely on an actual breach or actual discharge.
The defendants' motion to strike count four is denied.
CONCLUSION
Based upon the foregoing analysis, the defendants' motion to strike count two is denied. The defendants' motion to strike count three is granted. Finally, the defendants' motion to strike count four is denied.
Foley, J.