Opinion
No. CV-08 5007061
June 16, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 109)
FACTS
On January 1, 2008, the plaintiff, Zushrya St. Lot, commenced this action by service of process on the defendant, Burlington Coat Factory. In her six-count complaint for (1) racial discrimination; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; (4) willful, reckless and wanton misconduct; (5) false imprisonment; and (6) negligence, the plaintiff seeks recovery for injuries sustained from an event that occurred within the defendant's retail store, located at 268-276 Bridge Approach, in New London, Connecticut (the store). In her complaint, the plaintiff alleges the following facts. On May 26, 2006, the plaintiff described as a black, Haitian woman, entered the store along with three companions, also described as black, Haitian women. The four women proceeded to the cash registers to pay for various items, including a pair of shoes held by the plaintiff.
While in line, the defendant's assistant store manager of operations, identified as "Robin," approached the plaintiff and asked her "[a]re those our shoes?" Robin then "asked if plaintiff planned to pay for the shoes on her feet." The plaintiff responded that the shoes on her feet were her own shoes, showed Robin the "wear markings on the shoes" and noted that "she had purchased the shoes at the New London store in the fall of 2005." Robin continued to insist that the plaintiff had switched the shoes she was wearing with a pair of new shoes from the store's shoe department, and then "had [the] plaintiff pass through the store loss prevention detector." The plaintiff did so without incident, yet Robin continued to treat the plaintiff "in a rude, coarse manner." The plaintiff then asked "if she was being treated poorly due to her race." Robin did not respond. As a result of these actions, the plaintiff alleges that she "endured a course of discrimination and harassment by the defendant, its agents, servants, or employees, which resulted in discriminatory treatment to [the] plaintiff, based on her race and national origin."
On June 25, 2008, the defendant filed a motion to strike counts one, three, four and five of the complaint on the ground that they fail to establish causes of action upon which relief can be granted. Furthermore, the defendant moves to strike the prayer for punitive damages on the ground that punitive damages are not cognizable as a matter of law against an employer when predicated on vicarious liability. The defendant also filed a memorandum of law in accordance with Practice Book § 10-42. The plaintiff filed a memorandum in opposition on August 28, 2008, and the defendant filed a reply memorandum on September 12, 2008. The court heard oral argument on April 27, 2009.
DISCUSSION
"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 a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Conversely, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 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). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). Finally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Initially, the court must determine which complaint is the operative complaint. The instant motion to strike was filed on June 25, 2008. The plaintiff filed a request to amend the complaint and an amended complaint on August 5, 2008, seeking to change certain allegations in count one. The defendant filed an extension of time on August 12, 2008 which was granted, followed by an objection to the request to amend on September 12, 2008. This matter has yet to be decided. As such, the operative complaint remains the original complaint, filed on January 29, 2008, and the court will make its rulings based on the allegations contained therein.
I RACIAL DISCRIMTNATION
In count one, the plaintiff argues that the defendant discriminated against her because of her race and color, and thus violated General Statutes §§ 46a-58 and 46a-60(a), as well as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000 and the Civil Rights Act of 1991. The defendant argues that § 46a-60 only applies to discriminatory employment practices, and that there are no allegations that the plaintiff was an employee of the defendant or that the plaintiff attempted to gain employment from the defendant. The defendant further argues that the plaintiff does not sufficiently allege a cause of action pursuant to § 46a-58 because she does not allege a discriminatory practice by the defendant, as the alleged discrimination was "based exclusively on plaintiff's own interpretations and assumptions." The plaintiff replies that § 46a-58(a) applies because the plaintiff has sufficiently alleged discriminatory conduct. In its reply memorandum, the defendant argues that § 46a-58 does not provide for a private cause of action, even pursuant to a release from the Connecticut Commission on Human Rights and Opportunities (CHRO), and that the only remedies under the statute are penal in nature.
It is noted that the amended complaint removes the reference to Title VII and the Civil Rights Act, and changes the reference to § 46a-60, the discriminatory employment practices statute, to § 46a-64, the discriminatory public accommodations practices statute. However, as the amended complaint is not the current operative complaint, these changes do not factor into the court's decision.
The plaintiff also makes an argument regarding § 46a-64. However, as violations of § 46a-64 are not discussed in the operative complaint, the court need not address this argument.
Section 46a-58 states in relevant part: "(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability . . . (d) Any person who violates any provision of this section shall be guilty of a class A misdemeanor . . . [or] a class D felony." Section 46a-60 states in relevant part: "(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent . . . to refuse to hire or employ or to bar or to discharge from employment any individual . . . because of the individual's race, color, religious creed, age, sex, marital status, national origin . . ."
Before a party can bring a private cause of action based on an underlying alleged act of discrimination, that party must first receive a release from the CHRO pursuant to General Statutes § 46a-100. The plaintiff alleges that she has received such a release. Yet, several Connecticut courts, both state and federal, have determined that, even pursuant to a release from the CHRO, there is no private cause of action pursuant to § 46a-58. "In recent years, on several occasions, courts of this state have held that § 46a-58 does not give rise to a private cause of action." Batiste v. Soundview Medical Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001278 (March 25, 2008, Gilardi, J.). In Batiste, the court explained that "[s]ection 46a-100 does allow the plaintiff to bring a private cause of action once he has obtained a release from the Connecticut Commission on Human Rights and Opportunities, but nowhere in that section does it specifically allow the plaintiff to bring a private cause of action under § 46a-58. The court interprets the statute to mean that, after obtaining his release, the plaintiff may bring a private cause of action but should base it on the underlying claims that the plaintiff has already alleged in this complaint." Id., see also Alungbe v. Board of Trustees of Connecticut State University, 283 F.Sup.2d 674 (D.Conn, 2003); Garcia v. St. Mary's Hospital, 46 F.Sup.2d 140 (D.Conn. 1999); McPhail v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. 054506 (February 25, 1999, Thompson, J.) ("The fact that the plaintiffs obtained a letter of release from the CHRO does not create a private cause of action for the plaintiffs" under § 46a-58); Wright v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97 0570863 (February 13, 1998, Devlin, J.) (noting that § 46a-58 is penal in nature and there is no statutory authority to bring a claim under the statute). This court agrees. As there is no private right of action, the plaintiff cannot establish a cause of action pursuant to § 46a-58.
General Statutes § 46a-100 states in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ."
Furthermore, as the defendant correctly points out, § 46a-60 governs discriminatory employment practices. The plaintiff has not alleged that she was an employee or prospective employee of the defendant. As such, the plaintiff has not sufficiently alleged employment discrimination, and, thus, has failed to plead a cause of action pursuant to § 46a-60. Accordingly, the motion to strike count one is granted.
For similar reasons, the plaintiff's Title VII claim is insufficient.
II INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant argues that the plaintiff fails to allege intentional infliction of emotional distress in count three because she has not pleaded facts establishing extreme and outrageous conduct under Connecticut law, as "[t]here are no allegations that `Robin' made any verbal discriminatory remarks toward the plaintiff" and that "`rude and coarse' behavior without any discriminatory remarks cannot be deemed as extreme and outrageous . . ." The plaintiff counters that the defendant's actions, when viewed in the totality of the circumstances, establish extreme and outrageous conduct by "depriv[ing] the plaintiff of her liberties and freedoms." In its reply memorandum, the defendant reiterates that the allegations in the complaint, even when viewed as a whole, are insufficient to establish extreme and outrageous conduct.
To allege intentional infliction of emotional distress, the plaintiff must plead four elements. "It must be shown: (1) that the [defendant] 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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort . . ." Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568-69, 922 A.2d 280 (2007).
"[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain an action. The court looks to the specific facts and circumstances of each case in making its decision . . . However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility." Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, supra, 101 Conn.App. 569. Traditionally, "[l]iability 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!" Little v. Yale, 92 Conn.App. 232, 239, 884 A.2d 427 (2005).
In the present case, the plaintiff's allegations in count three are identical to those argued in count one, except that she also alleges that the defendant's conduct was "intentional, extreme and outrageous" and that the defendant "should have known or knew that emotional distress was likely to result from its conduct." The plaintiff argues that the defendant's actions include "accusations of larceny solely based upon the plaintiff's race and color; unlawful imprisonment by the defendant of the plaintiff; forcibly requiring the plaintiff to walk through a loss prevention detector; humiliating the plaintiff in front of other consumers in the area in which she resided . . ." Yet, the plaintiff's complaint does not make these allegations. In the complaint, the plaintiff has solely alleged that the defendant's agent, Robin, (1) asked the plaintiff "[a]re those our shoes?;" (2) "continued to insist that plaintiff had switched the shoes she wore into the store with a pair from the shoe department"; (3) "had plaintiff pass through the store loss prevention detector"; and (4) treated the plaintiff "in a rude, coarse manner."
Intentional infliction of emotional distress claims "must be strictly policed to avoid turning ordinary life and its insults and ignorant behavior into an endless and uncontrollable pool for litigation." (Internal quotation marks omitted.) Brown v. Mulcahy, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001276 (July 24, 2007, Upson, J.) (43 Conn. L. Rptr. 835, 836). As such, these allegations are insufficient to establish a claim of outrageous and extreme conduct as defined by the courts. While the defendant's actions may be insulting and demeaning, it is well established that "conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." Little v. Yale, supra, 92 Conn.App. 239-40; see also Burr v. Howell, Superior Court, judicial district of New Haven, Docket No. CV 02 0464225 (June 25, 2003, Arnold, J.) (35 Conn. L. Rptr. 95) (noting that a single instance of a racial slur, "while distressing and hurtful, is less than extreme and outrageous in nature."). Accordingly, the plaintiff has failed to allege facts that support a finding of extreme or outrageous conduct, and, therefore, the defendant's motion to strike count three is granted.
CT Page 10124
III WILFUL, WANTON RECKLESS CONDUCT
The defendant argues that the plaintiff has failed to allege sufficient facts to state a cause of action for recklessness in count four because she has not established facts that "assert conduct that specifies the correct state or mind or consciousness to allege recklessness." The plaintiff counters that she has set forth sufficient facts that establish recklessness as "[i]t is unreasonable to make a customer pass through a loss prevention detector before he/she has completed their [sic] transactions at the cash register." The defendant responds that the plaintiff "merely inserted the word `reckless' in the fourth count of the complaint, which mirrors the exact facts contained within the negligence count," and, therefore, does not sufficiently allege recklessness."In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . ." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). "Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . ." The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. In sum, such conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).
"The mere use of the words `reckless' and `wanton' is insufficient to raise an actionable claim of reckless and wanton misconduct." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). "Simply using the word `reckless' or `recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958); see Drisdelle v. Hartford, 3 Conn.App. 343, 346, 488 A.2d 465 (1985).
In count four, the plaintiff repeats and realleges the allegations found in count one, adding only that "[t]he aforementioned conduct constitutes a wanton, willful and reckless violation of plaintiff's rights." The plaintiff argues that "[a]n assistant store manager should reasonably have known that the accusations coupled with having the plaintiff walk through the loss prevention detector could pose a danger in the form of being detrimental to the plaintiff's anxiety and/or reputation among other patrons." Yet, this argument is not alleged in the complaint and cannot be reasonably inferred from the allegations made therein. All that is alleged is that the plaintiff was asked if the shoes she was wearing were her own, and that the plaintiff walked through a "loss prevention detector" without incident, all while being treated in a "rude and coarse" manner.
Inquiries into the ownership of shoes, even "rude and coarse" ones, are not reckless.
Even viewed in the most positive light, the plaintiff has not set out allegations showing highly unreasonable conduct containing an extreme departure from ordinary care. Accordingly, the motion to strike count four is granted.
IV FALSE IMPRISONMENT
The defendant argues that the plaintiff fails to allege sufficient facts to state a cause of action for false imprisonment in count five because the plaintiff does not claim that her liberty was physically restrained, or that she was unable to leave the store. The plaintiff counters that false imprisonment does not need to be physical in nature, hut that "words alone are sufficient to constitute an impediment of liberty." In response, the defendant argues that the plaintiff's factual allegations, at most "only amount to a simple mental compulsion, which is insufficient to state a cause of action for false imprisonment."
False imprisonment is defined as "the intentional, unlawful restraint or confinement of a person's physical liberty through the exercise of force . . . express or implied." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992). Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability." Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). "A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it." Id. 268. Finally, "[t]o prevail on a claim of false imprisonment, the plaintiff must prove that the [unlawful] restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Internal quotation marks omitted.) Berry v. Loiseau, supra, 223 Conn. 820.
In the present case, the plaintiff specifically alleges that the defendant's agent, Robin, "approached the plaintiff," asked "`[a]re those our shoes?' and also asked if plaintiff planned to pay for the shoes on her feet." Then Robin "had plaintiff pass through the store loss prevention detector, which plaintiff did without incident." The plaintiff argues that these allegations establish a "verbal restraint upon the plaintiff's freedom of motion" because (1) Robin's accusations of shoplifting "created a confinement situation," (2) Robin "exercised her dominion over the Plaintiff as she remained by the Plaintiff until the Plaintiff walked through the loss prevention detector," and (3) Robin's "actions and mannerisms deprived the plaintiff of any ability to decide willingly if she felt free to stay or leave the store." These arguments are not supported by the facts alleged in the complaint. The plaintiff is attempting to bolster the allegations in her complaint through the arguments contained within her motion in opposition. Accordingly, these arguments will not be contemplated by the court.
Focusing solely upon the factual allegations put forth in the complaint, the court is not persuaded that the plaintiff's arguments are necessarily implied from the aforementioned allegations. In Caton v. Easter Seals Goodwill Rehabilitation Center, Inc., Superior Court, judicial district of New London, Docket No. CV 08 5007348 (April 17, 2009, Martin, J.), this court analyzed a similar false imprisonment allegation in a motion to strike. In that case, this court determined that, though the plaintiff did not specifically allege that her physical liberty was restrained, there were sufficient allegations to imply false imprisonment in that "the defendant's agent told [the plaintiff] that she had to go with him to the store and then forcibly removed [her] from the public parking area and compelled [her] to enter the store." (Internal quotation marks omitted.) Id. Similar language does not exist in the present matter. The plaintiff has not sufficiently alleged that her liberty was restrained, nor that she did not consent or acquiesce to passing through the "loss prevention detector" willingly. Thus, the plaintiff has not sufficiently alleged false imprisonment and the motion to strike count five of the complaint is granted.
V PRAYER FOR PUNITIVE DAMAGES
The defendant argues that the prayer for relief seeking punitive damages should be stricken as to all counts because "punitive damages are not cognizable as a matter of law against an employer when predicated on vicarious liability." The plaintiff counters that punitive damages can be awarded against an employer under the doctrine of vicarious liability in certain special situations. Presently, the plaintiff argues that punitive damages should be allowed because the defendant's agent was employed in a managerial capacity and was acting within the scope of her employment in furtherance of the employer's goals. In its reply memorandum, the defendant argues that the exception that the plaintiff relies upon is inapplicable because the plaintiff does not allege that the defendant was "somehow involved" in the underlying conduct, and that the defendant is "completely innocent of any alleged discriminatory tortuous conduct . . ."
"[A]t common law, there is no vicarious liability for punitive damages . . ." Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003). However, there is an exception to this general rule. The court in Stohlts v. Gilkinson, 87 Conn.App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005), noted that the common law rule makes it improper to award punitive damages against someone who is innocent and, therefore, only liable vicariously. Thus, the court adopted a rule from the Restatement (Second) of Torts, stating "[p]unitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act." (Internal quotation marks omitted.) Id. Thus, punitive damages may be applied to a vicariously liable employer, provided that the plaintiff can establish that the employer is not an innocent party. See Faggio v. Brown, Superior Court, complex litigation docket at Middlesex, Docket No, X04 CV 05 4003488 (June 12, 2007, Beach, J.) (43 Conn. L. Rptr. 643, 648-49).
In the present case, the plaintiff alleges in her complaint that the conduct of the store's assistant manager of operations was "conducted in an open, hostile manner, which was fully recognized, tolerated, acknowledged, condoned, approved, ratified and, in effect, encouraged by defendant, through itself, its agents, servants and employees . . ." While the defendant specifically argues that it did not "authorize, ratify or condone" the conduct underlying the present action, the court cannot address factual disputes at this point in the proceedings. Rather, the court must view the allegations in the pleadings in a light most favorable to the nonmoving party, and the moving party must admit all facts that are well pleaded. As the plaintiff has alleged in the complaint that the defendant recognized and approved its manager's conduct, the plaintiff has sufficiently alleged an exception to the common law rule against punitive damages for vicarious liability. Whether facts exist to support this exception is not a matter for a motion to strike.
VI CONCLUSION
For the foregoing reasons, the motion to strike counts one, three, four and five of the plaintiff's complaint is granted, while the motion to strike the prayer for punitive damages is denied.