Opinion
No. CV05 400 65 24
August 10, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#446)
Before the court is the defendants' motion to strike both counts of the plaintiff's complaint.
On March 1, 2005, the plaintiff, Siriwat Singhaviroj, filed a two-count complaint against the defendants, town of Fairfield (Fairfield), the town of Fairfield board of education, Howard Zwikler, the business director and Margaret Mary Fitzgerald, assistant superintendent of human resources. This action arises out of the defendants' termination of the plaintiff's employment.
Count one alleges the defendants' hearing on the plaintiff's termination violated his due process rights, and failed to afford him equal protection in violation of Article first, § 20 and Article first, § 8 of the constitution of Connecticut and the fourteenth amendment of the United States constitution. Count two alleges that Fairfield and the town of Fairfield are responsible for the indemnification of its agents pursuant to General Statutes § 7-465.
On April 11, 2005, the defendants filed a motion to strike both counts of the complaint and a memorandum. On April 27, 2005, the plaintiff filed a memorandum of law in opposition.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[T]he court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) CT Page 11970 Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). "On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." (Citation omitted; internal quotation marks omitted.) In re Michael D., 58 Conn.App. 119, 122, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).
The defendants move to strike the two-count complaint on the grounds that the plaintiff does not allege that he had a property interest in continued employment permitting dismissal only for cause. They argue that the plaintiff has alleged no facts that he had a property interest in his job. They also argue that the plaintiff has not alleged facts that support a claim of equal protection. They assert that the plaintiff has only stated that he was deprived of his rights privileges and immunities under the laws of the United States. They maintain the equal protection clause was not violated because the plaintiff has not stated the essential allegation that others were treated differently.
The plaintiff counters that a specific allegation of property interest is not required to properly allege a due process claim. He argues that municipal employees have a property right to continued employment protected by the fourteenth amendment. He maintains that public employees with no property interest in continued employment may have a protected liberty interest in not being dismissed if the charges might seriously damage his standing and association in his community, or might impose a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities. He also argues that the defendants violated the equal protection clause by failing to properly and adequately investigate the accusations against him. He maintains that they failed to provide an impartial fact finder and decision maker. The plaintiff further maintains that he has properly alleged a cause of action for equal protection under the Connecticut constitution by alleging that his discharge from his job had no rational basis.
I COUNT ONE: DUE PROCESS AND EQUAL PROTECTION CT Page 11971
"Due process is inherently fact-bound because due process is flexible and calls for such procedural protections as the particular situation demands . . . The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum." (Internal quotation marks omitted.) CHRO v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 391, 870 A.2d 457 (2005). A claim for due process protection "must possess a property or liberty interest that is somehow jeopardized by governmental action, necessitating a pre- or post-deprivation hearing as a safeguard . . . [P]roperty interests are more than abstract needs, desires or unilateral expectations of benefits or privileges. Rather, a person must have a legitimate claim of entitlement to a benefit or privilege to have a property interest in that benefit . . . Property interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 436-37, 673 A.2d 514 (1996). "Generally speaking, courts have recognized a property interest if, by statute, rule or contract, express or implied, the employee can only be fired for cause . . ." (Internal quotation marks omitted.) Bartlett v. Krause, 209 Conn. 352, 367, 551 A.2d 710 (1988). "The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except for cause . . . A person has an entitlement in a benefit or privilege if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . that he may invoke at a hearing." (Citation omitted; emphasis added; internal quotation marks omitted.) Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 294, 554 A.2d 1065 (1989). "[T]he Due Process Clause of the Fourteenth Amendment, [however], is not a guarantee against incorrect or ill-advised personnel decisions." (Internal quotation marks omitted.) Hunt v. Prior, supra, 236 Conn. 436.
If an employee does have a property interest in continued employment, because of a statute, rule or contract, due process "requires some kind of a hearing prior to the discharge . . ." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). "[T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id., 545. "[T]he pretermination hearing . . . need not be elaborate . . . [T]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings . . . In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action." (Internal quotation marks omitted.) Dortenzio v. Freedom of Information Commission, 48 Conn.App. 424, 432-33, 710 A.2d 801 (1998).
For example, a "tenured public employee . . . is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." (Internal quotation marks omitted.) Bartlett v. Krause, supra, 209 Conn. 373.
In the present case, the plaintiff has failed to allege sufficient facts that would support his claim that he was denied due process. In his complaint, the plaintiff has made only conclusory statements that he is a municipal employee entitled to due process. He has alleged no facts to support that he had a property interest in his job. He has also failed to provide facts to show he was more than an at-will employee entitled to dismissal only for cause. "In the absence of a collective bargaining agreement or other express understanding regarding the duration of employment, therefore, ordinary employment relationships are viewed as contracts for an indefinite period and are therefore terminable at will by either the employer or the employee for any reason or for no reason." (Internal quotation marks omitted.) Kelley v. United States Shoe Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 93 042492 (November 5, 1993, Rush, J.).
Even if the plaintiff had alleged facts that demonstrate that he had a property interest in his employment, the defendants did give the plaintiff a pretermination hearing. When the plaintiff was notified that he should resign or he would be terminated, he wrote to the defendants and informed them that he was not given fair notice and an adequate opportunity to respond to the allegations against him. In response the defendants sent him a letter stating that his termination was under consideration and that a hearing was to be held to address his pending termination. The hearing was held and the plaintiff was terminated. Although the hearing might not have been as elaborate as the plaintiff expected, he was given a pretermination hearing prior to termination. The plaintiff has not pleaded sufficient facts to support a cause of action based on a violation of due process.
The plaintiff also alleges that the defendants violated equal protection. "[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." (Internal quotation marks omitted.) Kelo v. New London, 268 Conn. 1, 107, 843 A.2d 500 (2004), aff'd, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). "The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike . . . A violation of equal protection by selective [treatment] arises if (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." (Citations omitted; internal quotation marks omitted.) Alexander v. Commissioner of Administrative Services, 86 Conn.App. 677, 684, 862 A.2d 851 (2004). An equal protection violation can be claimed by someone who comprises a class of one, "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. To prevail on a class of one equal-protection claim, plaintiff must show, not only irrational and wholly arbitrary acts, but also intentional disparate treatment . . . A governmental decision should be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the different treatment." (Citations omitted; emphasis added; internal quotation marks omitted.) McKiernan v. Amento, Superior Court, judicial district of New Haven, Docket No. CV 01 0453718 (October 2, 2003, Gilardi, J.).
Here, the plaintiff has failed to allege facts that would give rise to an equal protection claim. There are no facts pleaded that suggest that he was treated differently than others that are in a similar situation, or that his termination was based on impermissible considerations. The plaintiff has failed to allege sufficient facts that show that the defendants were "irrational and wholly arbitrary" or that their decision to fire him was intentionally disparate. Therefore, as the first count does not sufficiently plead an equal protection nor, a due process claim, the defendant's motion to strike the first count of the plaintiff's complaint is granted.
II COUNT TWO: GENERAL STATUTES § 7-465
In the second count of the complaint the plaintiff brings the action against Fairfield pursuant to General Statute § 7-465. "A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). If the first count of the complaint fails, then the second count against the municipality must also fail as an indemnification duty can only arise if an underlying debt exists. Therefore, the defendants' motion to strike count two of the plaintiff's complaint is granted.
Statutes § 7-465 provides in relevant part: "Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ."
For the foregoing reasons, the defendants' motion to strike both counts of the plaintiff's complaint is granted.
SKOLNICK, J.