Opinion
No. CV 02-0817587
November 23, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS AND MOTION TO STRIKE
This is an action brought by the plaintiff, Dolores Miller, a nurse employed by the State of Connecticut Department of Mental Retardation (DMR) at the Southbury Training School (training school) against the defendants, Peter H. O'Meara, in his official capacity as Commissioner of DMR; Fritz Gorst, Executive Director of the training school, individually; Thomas Harris, Director of Personnel at the training school, individually; Marianne Orazietti, a nursing consultant employed at the training school, individually; Kevin McDermott, a registered nurse employed by the DMR at the training school, individually; and DMR. On December 11, 2003, the plaintiff filed a five-count revised complaint against the defendants. In count one of the complaint, the plaintiff alleges a violation of Conn. Gen. Stat. § 31-51m against DMR and O'Meara; count two alleges a violation of Conn. Gen. Stat. 31-51q against DMR and O'Meara; count three alleges a violation of 42 U.S.C. § 1983 against Gorst, Harris, Orazietti and McDermott; count four alleges a violation of 42 U.S.C. § 1985 against Gorst, Harris, Orazietti and McDermott; and count five alleges defamation.
On February 4, 2004, the defendants filed a motion to strike and motion to dismiss for lack of subject matter jurisdiction all five counts of the plaintiff's complaint. The defendants' motion was supported by a memorandum of law. The plaintiff filed a memorandum in law in opposition to the defendants' motion on May 28, 2004, and waived the fifth count sounding in defamation. The defendants filed a supplemental brief on June 29, 2004, and another supplemental brief on June 30, 2004.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a CT Page 16300-ap matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . If it becomes apparent to the court that such jurisdiction is lacking, the approval must be dismissed." (Citation omitted; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The Practice Book does not support nor is there any "authority for [a] hybrid motion to dismiss and/or strike. [Nevertheless,] [t]he Supreme Court has approved the procedure of treating a motion to dismiss as a motion to strike where appropriate. McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991)." (Internal quotation marks omitted.) Henton v. State, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0274646 (December 16, 1993, Maiocco, J.).
I. Count One — Connecticut General Statutes § 31-51m
In count one, the plaintiff alleges that she was disciplined by the defendants for making several written complaints to the CT Page 16300-aq acting clinical director at the training school, McDermott, and the director of nursing services at the training school, Bonnie Derrivan, regarding the medical equipment at the training school, which was "missing parts and was inadequate for patient care" and "other deficiencies in the health care delivered" to the residents of the training school, and that this disciplinary action was a violation of Conn. Gen. Stat. § 31-51m. The defendants argue in their memorandum of law in support of their motion to strike that the plaintiff fails to allege exhaustion of administrative remedies and that the claim is untimely and therefore fails to state a claim for relief.
The court will not decide the Conn. Gen. Stat. § 31-51m claim at this time. The court will order reargument for several reasons. Most importantly, the Appellate Court decision in Egri v. Foisie, 83 Conn.App. 243 (2004), may raise questions about a motion to dismiss in this situation.
II Count Two — Connecticut General Statutes § 31-51q
In count two, the plaintiff alleges that her actions in reporting the inferior conditions at the training school "outside of nursing" resulted in the plaintiff being disciplined, which was a violation of her first amendment rights pursuant to Conn. Gen. Stat. § 31-51q. The defendants have moved to strike count two of the complaint on the ground that the plaintiff fails to state a cause of action because the speech referred to in the complaint is of a "personal employment situation" and not a matter of public concern.
"Conn. Gen. Stat. § 31-51q provides: `Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or sections 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer.'" (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 219-20 n. 10; see also Bracey v. Board of Education of Bridgeport, 368 F.3d 108, 116 (2d Cir. 2004).
"Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, CT Page 16300-ar in turn, protect statements that address a matter of public concern." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). "Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." Id., 778.
"See Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (extending constitutional protection to statements regarding pressure on public employees to work for political candidates not of their choice, but not to statements regarding internal office procedures); Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995) (declining to extend constitutional protection to statements critical of building maintenance operations); Schnabel v. Tyler, 230 Conn. 735, 756, 646 A.2d 152 (1994) (ruling that statements regarding police misconduct address matter of public concern)." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 778-79.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record . . . An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community." (Citation omitted; internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003); see also Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003); Daley v. Aetna Life Casualty Co., supra, 249 Conn. 784. Moreover, "[s]tatements about safety matters affecting the general public have been determined to be matters of public concern." Streater v. Maier, Superior Court, judicial district of New Haven, Docket No. CV 03 0473265 (June 16, 2004, Skolnick, J.); see also Daigneault v. Consolidated Controls, Superior Court, judicial district of Danbury, Docket No. CV 99 0334518 (June 11, 2002, Doherty, J.).
"In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that she was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that she was fired [or disciplined] on account of her exercise of such rights; and (3) that her exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with her bona fide job performance or with her working relationship with her employer." (Internal quotation marks omitted.) Streater v. Maier, supra, Superior Court, Docket No. CV 03 0473265; see also Sherman v. Sedgwick James of Connecticut, Inc., judicial district of Fairfield at Bridgeport, Docket No. CV 326150 (February 10, 1997, Melville, J.)
Section 31-51q also applies to employees who have been disciplined. D'Angelo v. McGoldrick, 239 Conn. 356, 357, 685 A.2d 319 (1996).
The plaintiff in the present case has alleged sufficient facts to sustain a cause of action under Conn. Gen. Stat. § 31-51q. The plaintiff complained that the inferior quality of care that the disabled residents were receiving at the training school was adversely affecting their health and safety. This court finds CT Page 16300-as that the quality of the care that the severely disabled residents of the training school receive is arguably a matter of social concern for the community and therefore a matter of public concern. The motion to strike count two is denied.
III. Count Three — 42 U.S.C. § 1983 — First Amendment Equal Protection Claim
In count three, the plaintiff alleges that the defendants, McDermott, Orazietti, Harris and Gorst, acting under color of state law, deprived the plaintiff of her rights secured under the Constitution in violation of 42 U.S.C. § 1983. The plaintiff alleges that she was disciplined for making a complaint about the inferior conditions of the training school, which was a "matter of public concern," and that this discipline violated her right to free speech. In addition, the plaintiff alleges that she was treated differently than other employees at the training school who were similarly situated, which violated her right to equal protection. The defendants move to strike count three on the following two grounds: (1) failure to state a first amendment retaliation claim because the plaintiff complained about a personal workplace dispute and not a matter of public concern; and (2) failure to state an equal protection claim because plaintiffs have not pleaded that she was intentionally treated differently from similarly situated persons without a rational basis or that malice was sufficiently alleged.
"Section 1983 of title 42 of the United States Code provides in relevant part: `Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .' A state, as an entity having immunity under the eleventh amendment to the United States constitution, is not a `person' within the meaning of § 1983 and thus is `not subject to suit under § 1983 in either federal court or state court.' . . . This rule also extends to state officers sued in their official capacities." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 310-11. "Liability under § 1983 requires that the defendants (1) engage in some action under color of state law, (2) in a manner depriving plaintiff of rights, privileges, CT Page 16300-at or immunities secured by the Constitution." Romer v. Morgenthau, 119 F.Sup.2d 346, 353 (S.D.N.Y. 2000).
The United States Supreme Court has "recognized successful equal protection claims brought by 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." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). "To prevail on a claim of selective enforcement, plaintiffs in this Circuit traditionally have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential 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.'" Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
The Court of Appeals for the Second Circuit has stated that Olech "does not establish a requirement that a plaintiff identify in her complaint actual instances where others have been treated differently for the purposes of equal protection." DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003) (allegations that the plaintiff received "a different standard of police protection than that typically afforded [other residents] . . . [are] sufficient, albeit barely, to meet the minimal level established by Olech for class of one equal protection claims at the pleading stage"); see also Harlen Associates v. Inc. Village of Mineola, supra, 273 F.3d 499; Giordano v. New York, 274 F.3d 740, 751 (2d Cir. 2001). Moreover, "the allegation of an impermissible motive and of animus is sufficient to establish an equal protection issue . . . [A] plaintiff is . . . required under Olech to allege intentional disparate treatment." (Citation omitted; internal quotation marks omitted.) DeMuria v. Hawkes, supra, 328 F.3d 707. The plaintiff in the present case has met the threshold requirements of pleading as set forth in both Olech and Harlen by alleging that she was intentionally treated differently than other similar situated employees without a rational basis. The plaintiff's first amendment retaliation claim is based on speech of a matter of public concern for the same reasons articulated by this court in regard to the § 31-51q claim. The defendant's motion to strike count three is denied. CT Page 16300-au
The court notes that the equal protection claim provides a tougher hurdle for plaintiff, and that where "two causes of action are combined in the same count, both will survive even though one might not otherwise state a cause of action if it had CT Page 16300-aw been pleaded in a separate count. The proper way to cure combining separate causes of action in one count is by a request to revise rather than a motion to strike." Associated Construction Co., Inc. v. Milford, Superior Court, judicial district of Milford, Docket No. CV 88 025081 (January 24, 1991, Fuller, J.) ( 3 Conn. L. Rptr. 710).
IV Count Four — 42 U.S.C. § 1985(3)
The plaintiff alleges in count four that the defendants, McDermott, Orazietti, Harris and Gorst acted in concert to commit violations of plaintiff's legal rights and conspired to deprive the plaintiff of equal protection of the laws in violation of 42 U.S.C. § 1985(3). The defendants move to strike count four because the plaintiff fails to allege class based invidiousness and the intracorporate doctrine bars a claim of conspiracy.
Section "42 U.S.C. § 1985 (3) . . . creates a federal cause of action for damages when `two or more persons . . . conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . [and] . . . do . . . any act in furtherance of the object of such conspiracy whereby another is injured . . . or deprived . . . of any right or privilege of a citizen of the United States.'" United States v. Nelson, 277 F.3d 164, 183 (2d Cir.), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002). "The elements of a claim under 1985 (3) are: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, . . .; (3) an act in furtherance of the conspiracy; (4) whereby a person is . . . deprived of any right of a citizen of the United States . . . The conspiracy must be motivated by racial animus." (Citations omitted; internal quotation marks omitted.) Brown v. Oneonta, 221 F.3d 329, 341 (2d Cir. 2000), cert. denied, 534 U.S. 816, 122 S.Ct 44, 151 L.Ed.2d 16 (2001).
In order to make a viable claim under § 1985(3), the plaintiff must allege, "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 89 L.Ed.2d 338 (1971). The Court of Appeals for the Second Circuit has stated that it could "discern no attempt by the Supreme Court in Griffin to draw a distinction between private conspiracies and conspiracies under color of state law for purposes of section 1985. Indeed, any such distinction would defeat the Court's direction that section 1985 (3) not become a general federal tort law." Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). Moreover, the Gagliardi Court rejected the CT Page 16300-av contention that racial or class-based animus need not be established in cases arising under color of state law. Id.
In Connecticut, "it is well settled that in order to make a viable claim under § 1985, the complaint must allege invidiously discriminatory, class-based animus and must allege facts showing this invidiousness. In the absence of any evidence of class-based animus, the action must fail." Fetterman v. University of Connecticut, 192 Conn. 539, 555, 473 A.2d 1176 (1984). The plaintiff has not alleged "racial" or "invidiously discriminatory, class-based animus" and therefore the court grants the defendants' motion to strike the fourth count. In light of the court's holding, it need not reach the issue of whether the intracorporate doctrine bars a claim of conspiracy.
BY THE COURT
Booth, J.