Opinion
No. CV-0300195692-S
May 24, 2005
MEMORANDUM OF DECISION
The plaintiff, a licensed nurse practitioner, brought this action against her former employer, the defendant Honey Hill Care Center, alleging wrongful termination and negligent infliction of emotional distress. Specifically, in Count One, she alleges that she was terminated in violation of the so-called "whistle blower" statute, Conn. Gen. Stat. § 31-51m, for complaining to two state legislators about her employer's alleged violations of the Workers' Compensation Act. In Count Two, she alleges retaliatory discharge as a result of her claims for workers' compensation benefits and in Count Three, for the negligent infliction of emotional distress arising from her employer's conduct in connection with her efforts to seek workers' compensation benefits. By motions dated April 18, 2005 and April 27, 2005, the defendant seeks summary judgment as to all three counts. The case is scheduled for trial on June 28, 2005.
The complaint in this action also alleged, in counts four, five and six, additional causes of action. The defendant moved for summary judgment as to those counts as well. By pleading dated May 6, 2005, the plaintiff "withdrew" those counts. At the time of oral argument on May 9, 2005, the Court inquired of counsel whether he intended to file a withdrawal as to these counts or whether he objected to the Court granting summary judgment as to these counts. Counsel agreed that summary judgment could enter as to these counts.
For the reasons set forth below, the motion for summary judgment is granted.
Standard of Review
A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material fact which, under applicable principles of law, entitles him to judgment as a matter of law. PB § 17-49; Appleton v. Board of Education, 254 Conn. 205, 209 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Appleton, supra. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
Discussion
The plaintiff was hired as a nurse practitioner in March or April 1999. In June of that year, she injured herself in the performance of her duties. She made a claim for, and received workers' compensation benefits. During the next two plus years, she was either out of work or was permitted to work with restrictions. During this time period, depending on her ability to work, she received workers' compensation benefits. Eventually, in March 2002, her doctor cleared her to return to work on a full-time basis, which she did in early March 2002. However, on or about March 27, 2002, the plaintiff aggravated her pre-existing injury and was again unable to work.
At about this time, the defendant was in the process of becoming "self-insured" for purposes of workers' compensation coverage. It became self-insured as of April 1, 2002. Prior to this time, the Royal SunAlliance Insurance Corporation insured the defendant against workers' compensation claims. Indeed, Royal SunAlliance had paid the plaintiff's workers' compensation benefits as a result of the injury sustained in 1999 while at work.
Immediately following the March 27, 2002 injury, there was a period of approximately 8 weeks during which no workers' compensation benefits were paid. The defendant avers that this was as a result of the transition between being insured with Royal SunAlliance and becoming self-insured. The defendant indicates that it was unclear as to whether Royal SunAlliance was still the responsible insurer or whether the defendant would be responsible. Ultimately, this issue was resolved because the benefits were paid retroactively to cover the 8-week time period on or about June 3, 2002. Workers' compensation benefits were paid thereafter as well.
The plaintiff's complaint alleges that the defendant purposefully impeded her efforts to obtain these benefits. This alleged conduct is the basis of the plaintiff's third count alleging negligent infliction of emotional distress. Aside from the allegation in the complaint, the plaintiff has offered no evidence on this issue.
The plaintiff remained out of work until her termination effective October 5, 2002. She was unable to return to work as a result of the injury. In fact she has been unable to return to work to this day.
Notwithstanding that the plaintiff was receiving benefits by early June 2002, the plaintiff, in mid-June, met with State Representative Robert Duff, from Norwalk, and complained to him that the defendant had violated the Workers' Compensation Act by failing to maintain workers' compensation insurance and had been uncooperative with her in her efforts to obtain workers' compensation benefits. She had no further communication with Mr. Duff prior to her termination. Thereafter, on September 20, 2002, she met with State Representative Lawrence Cafero, of Norwalk and complained to him that the defendant had violated the Workers' Compensation Act by failing to maintain workers' compensation insurance and had been uncooperative with her in her efforts to obtain workers' compensation benefits. She had no further contact with Representative Cafero prior to her termination. Both Representative Duff and Representative Cafero told the plaintiff that they would investigate her claim, to include, with respect to Representative Cafero, contacting the defendant.
In support of these allegations, the plaintiff has provided her own affidavit and that of a friend, Joseph Bruno. The affidavits indicate that Messrs. Duff and Cafero told the plaintiff what they intended to do at that time. These statements are considered only insofar as they evidence the then state of mind of Messrs. Duff or Cafero. While this is probative of whether or not any such investigation ensued, it is not dispositive. CCE 8-3(4); State v. McDowell, 179 Conn. 121, 125 (1979); State v. Perelli, 125 Conn. 321, 325 (1939).
Approximately 6 months after the re-injury, by letter dated October 1, 2002, the plaintiff was terminated effective October 5, 2002. The defendant avers that it had not heard from the plaintiff as to her ability to work or her prognosis on a return to work; it needed to fill her position to meet its staffing needs at the nursing care facility; and determined to terminate her employment. On the other hand, the plaintiff alleges that her termination was retaliatory for her complaints to Representatives Cafero and Duff and that her termination was retaliatory for her claim for workers' compensation benefits.
Count One — Termination in violation of CGS § 31-51m
Conn. Gen. Stat. § 31-51m provides in pertinent part: "No employer shall discharge . . . any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . ."
Section 31-51m, . . . protects [an] employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation. Such whistle-blowing claims for retaliatory discharge typically invite analysis under the framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "In an action under §§ 31-51m(b), [the] plaintiff has the initial burden under McDonnell Douglas Corp of proving by a preponderance of the evidence a prima facie case of retaliatory discharge. See LaFond v. General Physics Services Corp., 50 F.3d 165, 172 (2d Cir. 1995) (holding that Connecticut courts would apply federal employment discrimination standards to a claim of retaliatory discharge under §§ 31-51m). This consists of three elements: (1) that [the plaintiff] engaged in a protected activity as defined by §§ 31-51m b); (2) that [the plaintiff] was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge." Ritz v. East Hartford, 110 F.Sup.2d 94, 98 (D.Conn. 2000); see also Beizer v. Dept of Labor, 56 Conn.App. 347, 355-56, 742 A.2d 821 (in retaliatory discharge actions, Connecticut courts look to federal courts to determine allocations of burdens of proof), cert. denied, 252 Conn. 937, 747 A.2d 1 (2000). Once the plaintiff has made a prima facie showing of a retaliatory discharge, the defendant is obligated to produce evidence that, if taken as true, would permit the conclusion that there was a nonretaliatory reason for the termination of employment. Ritz v. East Hartford, supra, 100. If the defendant provides a legitimate and nonretaliatory reason for the discharge, the plaintiff must offer some significantly probative evidence showing that the defendant's proffered reason is pretextual and that a retaliatory intention resulted in his discharge.
Arnone v. Enfield, 79 Conn.App. 501, 507 (2003) (some citations omitted).
At issue here is the third element of the plaintiff's case, that is, the causal connection between the protected activity and the discharge from employment.
The plaintiff has demonstrated an evidentiary foundation as to the first two elements; (1) that she alleged violations of state law to members of the State Legislature, and (2) subsequent to making those complaints, she was discharged.
On this issue, the defendant provided affidavit testimony from two employees of the defendant; Steve A. Brown, Senior Human Resources Manager for the defendant, and Betty Karkut, the defendant's Administrator. In his Affidavit Mr. Brown states: that he is the individual who sent the plaintiff the letter by which her employment was terminated; that prior to her termination no one had ever informed him that the plaintiff was concerned about the defendant's compliance with the Workers' Compensation Act insofar as it relates to insurance coverage; that the plaintiff's termination had "absolutely nothing" to do with the plaintiff's reporting "to anyone" the defendant's alleged violations of the Act; that the defendant was "unaware of any such reporting, if in fact, it did occur." Similarly, Betty Karkut avers: that she was unaware that the plaintiff had made complaints to Representatives Duff and Cafero and that the plaintiff's termination had nothing to do with the plaintiff reporting to anyone Honey Hill's alleged violation of the Workers' Compensation Act.
In an effort to rebut this evidence and demonstrate the required "evidentiary foundation," the plaintiff offers her own affidavit and that of Mr. Bruno in which they both state that Representative Cafero told them that he had spoken with Robert Osbourne, the defendant's Chief Executive Officer, about the plaintiff's complaints. Both affidavits further aver that Representative Duff told them that he had "spoken with people affiliated with the defendant," at some point "subsequent to [the] meeting of June 6, 2003."
The Court presumes that this date is a typographical error and that the affidavit intended to reference the meeting with Rep. Duff that occurred on June 16, 2002. There is no claim that a meeting was held in June 2003. Indeed, any such meeting would post-date the plaintiff's termination and not be the basis upon which a whistle blower complaint could be founded.
The Court is not permitted to consider the out of court statements of Representatives Cafero and Duff as they are hearsay, not subject to any exception, and therefore not admissible in evidence. Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997). Hearsay statements are insufficient to contradict facts offered by the moving party and if an affidavit contains inadmissible hearsay it will be disregarded. 2830 Whitney Avenue v. Heritage Canal Development, 33 Conn.App. 563, 568-69 (1994).
At oral argument on the instant motion, plaintiff argued that the statements of Reps. Duff and Cafero as contained in the affidavits of Mr. Bruno and his client are not hearsay, as they are not offered for the truth of the statements made. The critical question before this Court is whether there is evidence that the defendant knew about the complaints made. Indeed, the plaintiff relies upon the out of court statements by Messrs. Duff and Cafero to establish this very fact. (Plaintiff's Memorandum at pages 2-3.) Thus, it is the truth of those assertions that is being argued and they are hearsay. CCE 8-1.
Absent any admissible evidence on the issue of whether the defendant was aware of the plaintiff's complaint to Representatives Cafero and Duff the plaintiff has failed to provide an evidentiary foundation to show the existence of a genuine issue of material fact" as to this element of this claim. Accordingly, summary judgment as to Count One will enter in favor of the defendant.
The plaintiff indicated at oral argument that he was unable to secure affidavits from Messrs. Duff and Cafero. The Court is sympathetic and recognizes that these Representatives are currently in session. However, this matter has been pending for almost two years. In her deposition, her reply to interrogatories, and at oral argument on the instant motion, the plaintiff was utterly unable to give any indication as to what, if anything, Representative Duff or Representative Cafero did on her behalf. The Court cannot dive into the abyss of speculation, or rely upon inadmissible hearsay, in order to find a genuine issue of material fact.
Count Two — Retaliatory Discharge under CGS § 31-290a
Count Two alleges a retaliatory discharge for the making of a claim under the Workers' Compensation Act in violation of Conn. Gen. Stat. § 31-290a.
The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.)
Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54 (1990). Here, the plaintiff relies upon the following to make her prima facie case and avoid summary judgment: (1) the plaintiff filed for workers' compensation benefits; (2) the defendant failed to inquire as to her ability to return to work prior to her termination; (3) the defendant replaced the plaintiff with a new worker; (4) the termination was after the filing for workers' compensation benefits. From these facts, the plaintiff argues, the inference can and should be drawn that the termination was retaliatory in nature.
Notwithstanding the allegations in Count Three, the plaintiff offers no evidence of conduct by the defendant from which a fact finder might infer bad motive.
The level of proof sufficient to sustain the plaintiff's initial burden need not reach the level required to support a jury verdict in the plaintiff's favor. Craine v. Trinity College, 259 Conn. 625, 638 (2002). However, the evidence must "give rise to the inference of unlawful discrimination." Chernovitz v. Preston Trucking Co., 52 Conn.App. 570, 573 (1999). The evidence offered must present "facts sufficient to remove the most likely bona fide reasons for an employment action." Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 107 (1996).
The Court recognizes that summary judgment may be inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111 (1994). A question of intent raises an issue of material fact which generally should not be decided on a motion for summary judgment. Picataggio v. Romeo, 36 Conn.App. 791, 794 (1995). However, "the summary judgment rule would be rendered sterile, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 731 (1996). "Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to [employment termination] cases than to commercial or other areas of litigation." Id. And as noted in Reynolds, the Supreme Court has stated that even "with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact. Wadia Enterprises, Inc., v. Hirshfeld, 224 Conn. 240, 250 (1992).
The plaintiff offers only the chronology of events, that is, that her termination post-dated her receipt of workers' compensation benefits, in support of the inference that the defendant acted with an unlawful discriminatory intent. This is not enough to demonstrate the inference that her termination was for a discriminatory purpose. See, Kopacz v. Day Kimball Hospital of Windham City, 64 Conn.App. 263 (2001) (summary judgment properly granted in the absence of any basis upon which to infer discriminatory intent); Otero v. Bridgeport Housing Authority, 86 Conn.App. 103 (2004) (jury found no prima facie case established). Barrett v. Hebrew Home and Hospital, 73 Conn.App. 327 (2002) (jury found no prima facie case established). Indeed, this Court finds no basis upon which to distinguish Kopacz from the instant matter. There, the plaintiff argued that an inference of discriminatory intent could be made because the defendant:
1) knew that the plaintiff filed a workers' compensation claim, (2) knew that the plaintiff would be able to return to work within six to eight months of her second surgery, (3) decided to hire the per diem employee to replace the plaintiff when the per diem employee demanded full-time employment, even though the plaintiff was a senior member of the department with an exemplary employment record and (4) discharged the plaintiff because she had filed a claim for and was receiving workers' compensation benefits. The plaintiff claims that the record reveals that the defendant did not have a policy regarding absence control, that an administrative director at the plaintiff's department was under the impression that the defendant was holding the plaintiff's position open for her, and that the defendant knew the plaintiff was approved for surgery and offered contradictory explanations for the plaintiff's termination, thereby raising a reasonable inference of discrimination.
Despite these assertions, the Court held:
We conclude, on the basis of our review of the pleadings and affidavits, that the plaintiff offered no evidence that raises an inference of discrimination and, therefore, failed to present a genuine issue of material fact as to the real reason for her termination.
Here, the plaintiff offers even less by way of "evidence" of a discriminatory intent. Further, in contrast to the plaintiff's "evidence," the defendant offered evidence of its neutral non-discriminatory motivation, specifically, that the termination was motivated by a need to fill the staffing requirements of the facility. The plaintiff has offered no evidence that the defendant did not have this need or that its claim that it had this need was pretextual. See Kopacz, 64 Conn.App. at 270.
The plaintiff's reliance upon the fact that the defendant did not make inquiry as to her status before reaching its decision to terminate her is of no moment. First, the defendant had heard nothing from the plaintiff as to her status in over 4 months and there was no indication that she was able to return to work. Indeed, the plaintiff concedes, through her deposition and through her ongoing receipt of workers' compensation benefits, that she was, at that time, unable to return to work and has remained disabled since the date of her termination. It is well-settled that an employer is not required "to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury." Kopacz, 64 Conn.App. at 269. "Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time." Id., citing Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 366-67 (1991).
For the foregoing reasons, summary judgment will enter in favor of the defendant as to Count Two.
Count Three — Negligent Infliction of Emotional Distress
Under Connecticut law, a defendant may not be held liable for negligent infliction of emotional distress for conduct occurring as part of an ongoing employment relationship. Perodeau v. City of Hartford, 259 Conn. 729 (2002). In Perodeau, the Connecticut Supreme Court held that, for policy reasons, an individual employee "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context as distinguished from conduct occurring in the termination of employment." Id. at 744. The purpose for the holding was to avoid the "pervasive chilling effect" of subjecting employees to liability for work related conduct. The Court found that avoiding such an effect "outweigh[ed] the safety interest of employees in being protected from negligent infliction of emotional distress." The court also noted that, "in light of the inherently competitive and stressful nature of the workplace and the difficulties surrounding proof of emotional distress, extending the tort of negligent infliction of emotional distress to ongoing employment relationships would open the door to spurious claims." Id. at 758. Therefore, "after Perodeau, only conduct occurring in the process of termination can be a basis for recovery for negligent infliction of emotional distress in the employment context." Brunson v. Bayer Corp., 237 F.Sup.2d 192, 208 (D.Conn. 2002).
Although Perodeau concerned the liability of an individual defendant, the courts have repeatedly held that the reasoning applies equally to corporate defendants. See Brunson, 237 F.Sup. at 208 (citing cases).
Thus, if the conduct alleged was conduct arising out of the ongoing employment relationship, the action is barred. If the conduct is tied to the alleged wrongful termination, the action is not barred. Perodeau, 259 Conn. at 762-63. Here, the plaintiff conceded at oral argument as well as in her papers that the "plaintiff's negligent emotional distress claim is not based on the plaintiff's employment termination process . . ." (Def. Memorandum at page 5.) The question then is whether the claim arises within the ongoing employment context. The plaintiff argues that it does not, as she must, in order to avoid the holding of Perodeau and its progeny.
The complaint did not make clear the basis for this claim, that is, whether the conduct complained of arose out of her termination or some other context. Had it done so, this issue would properly have been raised by way of a motion to strike.
The plaintiff avers that the conduct complained of is conduct that occurred while she was not at work; was at home, injured and making efforts to secure her workers' compensation benefits. Plaintiff argues, in essence, that because the conduct did not occur at the work place the action falls outside the parameters of Perodeau. The Court disagrees. Perodeau is a policy based decision. It does not limit its holding to any particular set of facts. Indeed, it draws a concededly arbitrary line around an entire group of potential claims and determines that, for policy reasons, those claims will not be recognized. Id. at 758. The plaintiff's third count falls within that group. The only relationship that existed between the plaintiff and the defendant was that of employer/employee. The acts of the employer complained of by the plaintiff relate to an employment related issue, specifically, her ongoing efforts to arrange for workers' compensation benefits and the employer's involvement in that process.
The fact that the plaintiff was physically at home during the time period in question is not a distinction this Court believes would alter the analysis set forth in Perodeau so as to permit this claim.
As to Count Three, summary judgment will enter in favor of the defendant.
For the foregoing reasons, judgment is entered in favor of the defendant as to Counts One, Two, Three, Four, Five and Six of the Amended Complaint.
SO ORDERED.
Kari A. Dooley, Judge.