Opinion
No. CV 05 4003860
February 21, 2006
MEMORANDUM OF DECISION RE INTER ALIA, WHETHER TO STRIKE COUNT ALLEGING SEXUAL DISCRIMINATION AS BASIS FOR INVASION OF PRIVACY CLAIM
FACTUAL BACKGROUND
On July 21, 2005, the plaintiff, Anne Marie Slowik, filed an eight-count complaint against the defendants, Morgan Stanley Co., Inc. (Morgan Stanley) and John Paul Morales. The plaintiff alleges the following facts in count one of the compliant. The plaintiff is a Connecticut resident and has received a release of jurisdiction from the Connecticut commission on human rights and opportunities. Morgan Stanley is a Delaware corporation licensed to do business in Connecticut and maintains an office at Mystic, Connecticut. Morales is a resident of Uncasville, Connecticut and was one of the plaintiff's co-workers at the Morgan Stanley's Mystic office.
In the complaint, the plaintiff names Morgan Stanley Co., Inc., as a defendant. The defendant alleges that it was improperly named and the correct name is Morgan Stanley DW, Inc.
The plaintiff was hired by Morgan Stanley in 1995 to work as a financial adviser in its Boston, Massachusetts' office.
The plaintiff alleges that Morgan Stanley considered gender and femininity when making its employment decisions. The plaintiff further alleges that throughout the course of her employment she was the victim of sexual harassment and discrimination. The plaintiff asserts that she filed numerous complaints as to discriminatory and offensive behavior, but no supervisor followed Morgan Stanley's stated policy of initiating investigations or taking action to prevent or address sexual harassment in the workplace.
The plaintiff alleges that in September 2003, she transferred from Morgan Stanley's Boston, Massachusetts' office to its Mystic, Connecticut office in an effort to escape discrimination and sexual harassment. The plaintiff asserts that the discrimination and sexual harassment continued at the Mystic office.
The plaintiff alleges that she was initially friendly with Morales, who was a broker in the Mystic office. The plaintiff further alleges that Morales brought sexual content into every one of his encounters with her. The plaintiff asserts that despite being asked to stop, Morales continued subjecting the plaintiff to offensive sexual comments and conduct. The plaintiff alleges that while she was at an inn with her colleagues, Morales made an offensive comment regarding her appearance and that she subsequently asked Morales to never again come into her office or speak to her.
The plaintiff alleges discrimination based on her gender and that she was subjected to a hostile work environment over several years and in each office location. The plaintiff alleges violation of "clearly established laws prohibiting sexual harassment in the workplace," and "violations of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(8)."
In count eight, the plaintiff repeats the allegations of the first count and further alleges that Morales' actions invaded her privacy by unreasonably intruding on her seclusion. Count eight incorporates a full twenty-two pages of the allegations of count one.
On April 22, 2005, Morales filed two motions to strike count eight of the plaintiff's complaint. In the first motion to strike (number 103), Morales moves to strike count eight on the grounds that the plaintiff's allegations are legally insufficient and that the plaintiff has failed to plead "highly offensive conduct." In the second motion to strike (number 105), Morales moves to strike count eight on the ground of improper joinder.
STANDARD
"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). 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Legal Sufficiency
The specific grounds for Morales' first motion to strike are somewhat unclear from the face of the motion. Nevertheless, in his memorandum of law in support of the motion, Morales focuses on the issue of whether his alleged conduct was highly offensive. Specifically, he argues that the plaintiff's complaint merely refers to "offensive" conduct and fails to allege that Morales' actions were "highly offensive." Morales also asserts that the plaintiff has not pleaded specific facts amounting to highly offensive conduct to support a claim of unreasonable intrusion upon the plaintiff's seclusion.
The first and third grounds merely state that facts alleged in count eight are legally insufficient to state a claim for invasion of privacy by unreasonable intrusion upon the seclusion as defined by the Restatement (Second) of Torts, but do not "distinctly specify the . . . reasons for each such claimed insufficiency" as required by Practice Book § 10-41. The sentence setting forth the second ground is incomplete, but mentions the requirement that the defendant's alleged conduct must be highly offensive.
The plaintiff counters that Connecticut case law supports the proposition that an intrusion, physical or otherwise, results in liability for invasion of privacy if the intrusion would be highly offensive to a reasonable person. The plaintiff asserts that failing to precede the word "offensive" with the word "highly" has been rejected as a basis to strike a claim of invasion of privacy.
"[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth in Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Citation omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982).
"One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person . . . Therefore, [i]n order for a complaint to withstand a motion to strike, the plaintiff must allege facts demonstrating an intrusion upon a privacy interest that is highly offensive to a reasonable person." (Citation omitted; internal quotation marks omitted.) Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474). Whether particular conduct would be highly offensive to a reasonable person is question of fact. Mashantucket Pequot Tribe v. State, Superior Court, judicial district of New London at Norwich, Docket No. 101113 (August 19, 1994, Hendel, J.); Rafferty v. Hartford Courant Co., 36 Conn.Sup. 239, 241, 416 A.2d 1215 (1980).
"[A]n allegation of physical contact is not necessary to successfully state a claim for invasion of privacy via an unreasonable intrusion upon the seclusion of another." Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 0066603 (February 4, 2000, Nadeau, J.) ( 26 Conn. L. Rptr. 368) (finding the plaintiff's allegations as to the defendant's comments sufficient to set forth a cause of action based upon invasion of privacy, thereby denying defendant's motion to strike).
In Bonanno v. Dan Perkins Chevrolet, supra, Superior Court, Docket No. CV 99 0066603, the court found that the plaintiffs' allegations as to the defendant's comments adequately set forth a cause of action for invasion of privacy. The court looked to Restatement comments and holdings from other states' courts and found that an intrusion, physical or otherwise, which is highly offensive to a reasonable person will support an invasion of privacy claim. The allegations at issue in Bonanno were that the defendant had made comments regarding the plaintiffs' sex life, appearance, and values. The court found these comments highly offensive and accordingly denied the defendant's motion to strike.
In the present case, the plaintiff alleges that while she was at an inn, accompanied by her colleagues, Morales stated: "Everyone in the office is wondering if your [hind quarter] and boobs are real? Yeah, all the guys in the office are wondering if those are yours or implants. We were talking about them; they're so big and firm." The plaintiff further alleges that Morales "would walk into [the] plaintiff's office and grab his crotch and tell [the] plaintiff how horny he was and how he wanted to have sex with his clients, Pam and Penny." The plaintiff additionally alleges that Morales would "stand in front of [the] plaintiff's office and rub his nipples." The plaintiff asserts that these actions invaded her privacy by unreasonably intruding upon her seclusion. Clearly, if the plaintiff proves Morales' alleged comments at trial, the trier could find the comments to be highly offensive to a reasonable person.
The defendant further argues that the plaintiff failed to plead facts to support the invasion of privacy claim because she referred to Morales' behavior as "offensive" instead of "highly offensive." "[U]nder modern rules of pleading, slight linguistic ambiguity should not be fatal to a cause of action . . . and . . . pleadings should be read broadly and realistically, rather than narrowly and technically . . . That does not mean, however, that the trial court is obligated to read into pleadings factual allegations that simply are not there or to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004).
The court also finds that the alleged failure to precede the word "offensive" with the word "highly" is the type of "linguistic ambiguity" that should not be fatal to a cause of action.
Joinder
In his second motion, Morales moves to strike count eight on the ground of improper joinder. Specifically, he moves on the ground that count eight does not arise from the same transaction or transactions as counts one through seven and there are no common aspects of law and fact.
The plaintiff counters that Connecticut's joinder statute is liberally construed. The plaintiff asserts that her allegations against Morales in count eight are identical to those in counts one through four, where she alleges sexual harassment, discrimination and retaliation. The plaintiff argues that her claim against Morales arises out of the same transactions and occurrences upon which her claims against the defendant are based.
"In any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, . . . (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action . . ." Practice Book § 10-21. Further, Practice Book § 10-22 provides in pertinent part: "Transactions connected with the same subject of action within the meaning of subdivision (7) of Section 10-21, may include any transactions which grew out of the subject matter in regard to which the controversy has arisen . . ."
Practice Book § 10-23 provides: "Where several torts are committed simultaneously against the plaintiff . . . they may be joined, within the meaning of subdivision (7) of [Practice Book §]10-21, as causes of action arising out of the same transaction, although they may belong to different classes of torts." "Such a statute is liberally construed." Goggins v. Fawcett, 145 Conn. 709, 710, 147 A.2d 187 (1958).
"Transaction is a word of flexible meaning . . . The transaction test is one of practicality and the trial court should consider the interests of judicial economy in applying the test." (Citation omitted; internal quotation marks omitted.) Frank v. Iacovino, Superior Court, judicial district of Danbury, Docket No. 322458 (March 6, 1996, Moraghan, J.).
"It is now an established principle in our law of civil procedure that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit." (Internal quotation marks omitted.) Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948). Moreover, there exists a "general policy of our law which favors as far as possible the litigation of related controversies in one action." (Internal quotation marks omitted.) Id.
"When deciding a motion to strike on the ground of misjoinder of parties, the court may properly consider the economical uses of judicial resources." Arnold v. Thermospas, Inc., 49 Conn.Sup. 103, 106, 863 A.2d 250 (2004). "Permissive joinder of closely related occurrences is . . . allowed in order to serve the commonsense purposes of judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action" (Internal quotation marks omitted.) Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0084313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr. 659).
In the present case, the plaintiff, in count eight, has incorporated twenty-two pages of the allegations of count one. Specifically, the plaintiff has alleged an identical pattern of discriminatory behavior and retaliatory actions by the defendants. The plaintiff alleges in count eight of her complaint that Morales invaded her privacy through his offensive conduct. The plaintiff further alleges that despite her complaints to Morales and the manager at Morgan Stanley's Mystic office, there were no changes in behavior at the office. The plaintiff asserts that in addition to Morales' offensive behavior, she encountered "other problems in Mystic because she was a woman, as well as because she complained about conduct and business practices that she perceived to be discriminatory, unfair and illegal."
The court finds that the plaintiff's allegations in each count arise from a common pattern of ongoing misconduct, and that count eight of the plaintiff's complaint is sufficiently related to the balance of the complaint to satisfy the rules of practice. Indeed, the factual allegations in count eight are essentially identical to those in count one. Furthermore, judicial economy will best be served by providing for the joinder of count eight with the remaining counts contained in the plaintiff's complaint. See Beveridge v. Bristol Spring Manufacturing Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0491953 (February 7, 2000, Graham, J.) (finding that "a time line of continued misconduct" by the defendants toward the plaintiff provides a basis for proper joinder).
CONCLUSION
In sum and based on the foregoing reasons and authorities, the Motions to Strike the Eighth Count (Motions Nos 103 and 105) are denied.