DocketNumber: No. CV98 033 11 18 S
Citation Numbers: 2001 Conn. Super. Ct. 3889
Judges: ADAMS, JUDGE.
Filed Date: 3/20/2001
Status: Non-Precedential
Modified Date: 7/5/2016
Gur alleges that, during the course of her employment, she was sexually harassed by being subjected to a hostile work environment. She further alleges that despite complaining to the defendants about the hostile work environment, they took to steps to alleviate the harassment. As a result, on October 16, 1996, the plaintiff filed a complaint, pursuant to General Statutes §
On December 31, 1996, Nemeth/Martin filed suit against Gur alleging that she had violated the terms of a non-compete provision contained in her written employment contract with Nemeth/Martin and violated the provisions of the Uniform Trade Secrets Act, General Statutes §
On January 15, 1997, while the action in the Superior Court was still pending, Gur filed a second complaint against Nemeth/Martin with the CHRO alleging that Nemeth/Martin retaliated against her for complaining about the alleged harassment and for filing the previous complaint with the CHRO. Pursuant to General Statutes §
Subsequently, on September 21, 1998, the plaintiff filed a five count revised complaint against the defendants alleging the following causes of action: sexual harassment (count one); sex discrimination in violation of General Statutes §§
The defendants now move for summary judgment on each count of the plaintiff's revised complaint. As to counts one, two and three, the defendants move for summary judgment on the ground that the court lacks subject matter jurisdiction because the plaintiff has failed to exhaust her administrative remedies. As to count four, the defendants move for summary judgment on the ground that the plaintiff's claim for intentional infliction of emotional distress is legally and factually insufficient. As to count five, the defendants move for summary judgment on the ground that the plaintiff's claim is barred by the doctrines of res judicata and collateral estoppel. The plaintiff has filed an objection to the defendants' motion, and the matter was heard by the court on November 20, 2000.
"The failure to exhaust administrative remedies implicates the subject matter jurisdiction of the court." Johnson v. Dept. of Public Health,
The defendants argue that because the plaintiff brought this action as an administrative appeal pursuant to General Statutes §
Although in her revised complaint the plaintiff cites §
In Cannata v. Department of Environmental Protection,
In applying the exhaustion doctrine to an employment discrimination case, the Supreme Court has stated that "the CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO. It is the CHRO that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes §
The defendants argue that the plaintiff may not bring an independent action against them because she has not exhausted her available administrative remedies. Specifically, the defendants argue that the plaintiff has not obtained a release to sue from the CHRO pursuant to General Statutes §
Section
The plaintiff's reliance on §
Equally without merit is the plaintiff's argument that even if she had not obtained a release, this would not be fatal to her claim because a release is not a jurisdictional prerequisite to suit. The plaintiff cites no case nor can the court find any that supports the plaintiff's contention. In fact, the established law in Connecticut is that under the CFEPA a complainant must obtain a release to sue before bringing a private action in the Superior Court unless her action fits within one of the narrow exceptions to the exhaustion doctrine. See Fritz v.Guida-Fenton Opthalmology Associates, Superior Court, judicial district CT Page 3894 of New Haven at New Haven, Docket No. 398021 (September 18, 1997,Silbert, J.) (
The plaintiff also argues that because she is seeking compensatory damages for emotional distress, punitive damages and attorney's fees, she is excepted from exhausting the administrative remedies available to her prior to bringing a private action to the Superior Court. Specifically, the plaintiff argues that because the CHRO is not authorized to award the type of remedies she is seeking, it cannot provide her with an adequate remedy, and therefore, exhausting her administrative remedies would be futile.
"The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review." (Citations omitted; internal quotation marks omitted.) Fish Unlimited v.Northeast Utilities Service Co.,
"The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. . . . [The courts] have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed." (Citations omitted; internal quotation marks omitted.) Id., 13.
The plaintiff is correct insofar as she contends that the CHRO does not have authority to award damages for emotional distress or to award punitive damages and attorney's fees. See Bridgeport Hospital v.Commission on Human Rights Opportunities,
This court is aware of several thoughtful decisions which hold that a plaintiff seeking compensation for emotional distress, punitive damages and attorney's fees in connection with discrimination claims has exhausted administrative remedies, to the extent required by the exhaustion doctrine, when those claims have been brought to CHRO and denied before filing suit in Superior Court. See, e.g., Denning v.Admarket International, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 343964,
This court respectfully disagrees with the holdings of Denning andFritz. Although requiring a plaintiff to at least move through the CHRO administrative system before declaring that administrative remedies have been exhausted, these cases seem to ignore the statutory framework for discrimination claims and have the, perhaps unintended, effect of making the CHRO process culminating in the right of appeal pursuant to §
The CFEPA requires a complainant to commence an administrative proceeding. However, on at least two occasions, that statute permits a complainant to request a release from CHRO to allow initiation of a lawsuit in Superior Court: if CHRO denies the claim ministerially at the outset (§
CT Page 3896
This analysis hardly results in unfairness to claimants. Thus, in Gur's case, she had the right to request a release to pursue her case in court because the CHRO evaluation of her claims extended far longer than 210 days. She did not make such a request. Furthermore, her claims of discrimination received a thorough evaluation and review. Gur alleged nine specific incidents in support of her claim of sexual harassment by being subjected to a hostile work environment and alleged she was retaliated against as a result of her complaints. CHRO investigated each of these incidents, interviewed numerous witnesses, and carefully applied the pertinent law. The investigation was summarized in an eleven, single-spaced, page report which concluded there was no reasonable cause to conclude that Gur had been discriminated against.
"It is not the plaintiff's preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be adequate, need not comport with the plaintiff's opinion of what a perfect remedy would be. (Citations omitted; internal quotation marks omitted.) Hunt v. Prior,
For the above reasons, the court holds to exhaust her administrative remedies, Gur was obligated to seek judicial review pursuant to §
In opposition, the plaintiff argues that the defendants' motion for summary judgment should be denied because "[t]here remain disputed issues of fact regarding the severity of the defendants' behavior, and the defendants are not entitled to judgment as a matter of law." (Plaintiff's Memorandum, p. 22.) Specifically, the plaintiff argues that as reasonable minds could differ as to whether the defendants' conduct was extreme or outrageous, her claim must be submitted to the jury.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor 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." (Internal quotation marks omitted.)Appleton v. Board of Education,
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society. . . . Liability 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!' . . . Conduct on the part of the CT Page 3898 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." (Citations omitted; internal quotation marks omitted.) Id., 210-11.
"A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." Craddock v.Church Community Supported Living Assn., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 592711 (November 13, 2000, Hennessey, J.).
In her revised complaint, the plaintiff alleges that she suffered emotional distress as a result of the defendants' extreme and outrageous conduct with respect to the following: (1) The use of double entendres, word play and jokes, conversations, gestures and teasing in a sexual context; (2) The use of the internet to view pornography during work hours and within open view of all workers; (3) On June 5, 1995, a graphic verbal reference was made to a homosexual act and a woman's sexual act; and (4) On October 8, 1996, a sexually explicit word was used in the plaintiff's presence. (Revised Complaint, ¶ 8.) The specifics of these allegations were flushed out in the "Finding of No Reasonable Cause and Summary" issued by the CHRO, which the plaintiff submitted in support of her objection to the defendants' motion. (Plaintiff's Exhibit 3.) The defendants state that they accept these factual allegation as true. (Defendants' Memorandum, p. 18.) The plaintiff also asserts that "[s]ubstantial testimonial evidence shows that the defendants . . . engaged in intentional extreme and outrageous behavior in an attempt to induce the plaintiff to leave her employment at Nemeth/Martin."7 (Plaintiff's Memorandum, p. 22.)
Viewing the facts in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor, the defendants' conduct is not "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." Appleton v. Board ofEducation, supra,
"[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata. . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co.,
"Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." (Internal quotation marks omitted.)Virgo v. Lyons,
"[U]nder the doctrine of res judicata . . . a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim [or any claim based on the same operative facts that] might have been made . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding. . . ." (Brackets in original; emphasis omitted; internal quotation marks omitted.) LindenCondominium Assn., Inc. v. McKenna,
"Collateral estoppel . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Linden CondominiumAssn., Inc. v. McKenna, supra,
Connecticut courts "have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a `transaction,' and what groupings constitute a `series,' are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. . . . In applying the transactional test, [the court] compares the complaint in the second action with the pleadings and the judgment in the earlier action. . . ." (Brackets in original; internal quotation marks omitted.) Norse Systems, Inc. v.CT Page 3901Tingley Systems, Inc.,
In the prior action, Gur's counterclaim was based on a series of incidents alleged to have occurred on November 25, 1996. According to the counterclaim, she obtained an order to provide three consultants to a company. In order to find consultants, she contacted Contractors' Exchange, a broker, to refer to her qualified consultants. The principals of Contractors' Exchange, Mark and Myra Kirschenbaum, then advised Gur that John Martin of Nemeth/Martin had contacted them and pressured them not to do business with her. Martin also allegedly told the Kirschenbaums that Gur was in violation of her non-compete agreement with Nemeth/Martin, and had engaged in unethical business practices. Because of this pressure by Martin, Contractors' Exchange declined to do business with the plaintiff and as a result, she was unable to fill the order she had received. The plaintiff complained, inter alia, that Nemeth/Martin had tortiously interfered with her business/contractual relationship, defamed her character, and violated the Connecticut Unfair Trade Practices Act. Nemeth-Martin Personal Consulting, Inc. v. Gur, supra, Superior Court, Docket No. 326382.
The court entered judgment for Nemeth/Martin on all of the plaintiff's counterclaims, stating: "The Court can easily dispose of the issues asserted in the Defendant's (Gur) Counterclaim. The Defendant has offered no credible evidence of any type to support the allegations that have been made in the Defendant's Counterclaim nor has the defendant offered any credible argument or proposed findings of fact in her trial brief that would support any of the claims asserted in her Counterclaim." Id.
In the present action, the plaintiff claims in count five of her revised complaint that the defendants "tortiously interfered with her contractual/business relations or expectancy." The allegations in count five are virtually identical to the allegations in the plaintiff's counterclaim in the prior action with Nemeth/Martin. In count five, the plaintiff alleges that on November 25, 1996, the defendants: (1) interfered with her business by maliciously intimidating private contractors not to do business with her; (2) slandered and falsely accused her of breach of contract; (3) intentionally defamed her and her business' character; and (4) threatened Myra and Mark Kirschenbaum of Contractors' Exchange that if they continued to do business with the plaintiff, Nemeth/Martin would withdraw its business from them. (Revised Complaint, Count 5, ¶¶ 1-4.)
After comparing count five of the revised complaint in the present action with the pleadings and the judgment in the prior action, the court concludes that the plaintiff is advancing the very same claims in count five that were decided against her in the prior action with CT Page 3902 Nemeth/Martin. Because the plaintiff had an adequate opportunity to litigate these claims in conjunction with her prior action, the plaintiff is barred from relitigating them in the present action. This is true despite the fact that neither John Martin nor Pat Nemeth were parties to the counterclaim in the first lawsuit.
Res judicata protects not only parties to the original action, but those in privity with them. Joe's Pizza, Inc. v. Aetna Life CasualtyCo.,
"The Restatement (Second) of Judgments, § 59, sets forth the general rule that a judgment in an action involving a party who is an officer, director, stockholder, or member of a non-stock corporation [does not] have preclusive effects on the corporation itself. This rule of general applicability, however, is subject to an exception for corporations that are closely held: If the corporation is closely held, in that one or a few persons hold substantially the entire ownership in it, the judgment in an action by . . . the holder of ownership in it is conclusive upon the [corporation] as to issues determined therein . . . except when relitigation of the issue is justified in order to protect the interest of another owner or a creditor of the corporation." (Internal quotation marks omitted.) Id., 869.
"When the corporation is closely held . . . interests of the corporation's management and stockholders and the corporation itself generally fully coincide. . . . For the purpose of affording opportunity for a day in court on issues contested in litigation . . . there is no good reason why a closely held corporation and its owners should be ordinarily regarded as legally distinct. On the contrary, it may be presumed that [the interests of the shareholders and the closely held corporation itself] coincide and that one opportunity to litigate issues that concern them in common should sufficiently protect both." (Brackets in original; internal quotation marks omitted.) Joe's Pizza, Inc. v.Aetna Life Casualty Co., supra,
CT Page 3903
It is undisputed that Pat Nemeth and John Martin were the sole owners and shareholders of Nemeth/Martin and that they exercised complete control over the management and operation of the corporation. (Revised Complaint, Count 1.) In effect, therefore, the enterprise was a proprietorship or partnership conducted in corporate form. See 2 Restatement, supra. In such circumstances, the commonality of interest between Pat Nemeth and John Martin and Nemeth/Martin is sufficient to give rise to a presumption that Pat Nemeth and John Martin are in privity with Nemeth/Martin. The plaintiff has presented nothing to rebut this presumption. Therefore, the court concludes that the decision rendered inNemeth-Martin Personnel Consulting, Inc. v. Gur, supra, Superior Court, Docket No. 326382, is binding not only with respect to Nemeth/Martin, but to Pat Nemeth and John Martin, as well.
Accordingly, the defendants' motion for summary judgment as to count five is granted on the ground that the plaintiff's claims against the defendants are barred by the doctrine of res judicata. Because the court's conclusion with respect to the res judicata is dispositive, it is unnecessary for the court to consider the additional bases advanced by the defendants in support of their motion for summary judgment as to this count.
Adams, J.