Karagozian v. USV Optical, Inc.

• Decision Date: 08 January 2019
• Docket Number: AC 40907
• Citation: 201 A.3d 500,186 Conn.App. 857
• Court: Connecticut Court of Appeals
• Parties: Ohan KARAGOZIAN v. USV OPTICAL, INC.

186 Conn.App. 857

201 A.3d 500

Ohan KARAGOZIAN

v.USV OPTICAL, INC.

AC 40907

Appellate Court of Connecticut.

Argued October 11, 2018

Officially released January 8, 2019

John R. Williams, Whittier, for the appellant (plaintiff).

Robert M. Palumbos, pro hac vice, with whom was Elizabeth M. Lacombe, Whittier, for the appellee (defendant).

Scott Madeo and Brian Festa filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.

DiPentima, C.J., and Lavine and Moll, Js.

LAVINE, J.

The plaintiff, Ohan Karagozian, appeals from the judgment rendered by the trial court subsequent to its granting of the motion to strike the complaint filed by the defendant, USV Optical, Inc. The substance of the plaintiff's claim on appeal is that the court improperly concluded that he had failed to state a claim for constructive discharge.¹ We disagree and affirm the judgment of the trial court.

The record discloses the following procedural history. The plaintiff commenced the present action on September 12, 2016. The operative complaint for purposes of the present appeal is the corrected revised complaint (complaint) filed on December 19, 2016.

The complaint alleged, in relevant part, that the plaintiff is an optician licensed in Connecticut and that the defendant owns and operates optical departments in JCPenney stores. Between June and October, 2014, the defendant employed the plaintiff as a licensed optician manager in the JCPenney store in Trumbull (store). From approximately June 28 through October 17, 2104, the defendant, acting through its supervisory personnel, required the plaintiff, as part of his duties, to provide optometric assistant services to the doctor of optometry in the store. The complaint further alleged that the duties the plaintiff was required to perform violated the public policies of the state,² which prohibit employees under the control of unlicensed third parties from performing services for licensed optometrists,³ and prohibit licensed opticians from performing the duties of an optometric assistant and providing services for optometrists by whom they are not employed.⁴ The complaint also alleged that the duties the plaintiff was required to perform violated General Statutes § 31-130 (i),⁵ which requires that the defendant or the store have a staffing permit allowing either of them to provide staffing services to a "doctor." On September 20 and October 3 and 16, 2014, and on other dates, the plaintiff requested of the defendant's supervisory personnel that he not be required to perform the duties assigned to him. The defendant refused to excuse the plaintiff as he requested. As a result, the complaint alleged that the plaintiff was compelled to resign from his position and to suffer the attendant loss of income. Lastly, the complaint alleged that the defendant constructively discharged the plaintiff in violation of the public policy of the state.

The defendant filed a motion to strike the complaint on the grounds that (1) there is no private right of action for the claim alleged and (2) the complaint failed to allege a claim of constructive discharge. In its memorandum of law in support of its motion to strike, the defendant addressed each of the bases for the plaintiff's claimed violations of public policy and explained why none of them created a private right of action. The defendant argued that the only factual basis for the plaintiff's claim is the allegation that the defendant created an intolerable work environment by requiring him to provide optometric assistance services to the store doctor of optometry from the day his employment commenced. The defendant argued that it defies logic to claim that from the very first day of the plaintiff's employment the defendant intended to force him to resign.

The plaintiff opposed the motion to strike, arguing that "he was terminated because he declined to participate" in the duties he was required to perform and that such termination violated Connecticut public policy. He denied that the action was brought pursuant to § 31-130 (i) and the two administrative rulings; rather, he argued that the action sounds in the common-law exception to the at-will employment doctrine articulated in Sheets v. Teddy's Frosted Foods, Inc. , 179 Conn. 471, 427 A.2d 385 (1980). In Sheets , the employer discharged the employee in retaliation for the employee's objection to the employer's failure to comply with the requirements of Connecticut's Uniform Food, Drug and Cosmetic Act (act), General Statutes § 19-211 et seq. Id., at 473, 427 A.2d 385. Our Supreme Court concluded that that plaintiff had stated a cause of action under the common law for retaliatory wrongful discharge . Id., at 480, 427 A.2d 385. The plaintiff in the present case argued that Sheets "has since been applied to any termination in retaliation for refusing to violate laws or regulations or for insisting upon compliance therewith. See, e.g., Faulkner v. United Technologies Corp. 240 Conn. 576, 693 A.2d 293 (1997)."

The defendant responded to the plaintiff's opposition by noting, in part, that the plaintiff failed to allege a claim for wrongful termination or wrongful discharge. Although the plaintiff asserted in his opposition to the motion to strike that "he was terminated because he declined to participate in ... activities and that such termination violated Connecticut public policy," the defendant correctly noted that the complaint specifically alleges that the "plaintiff was compelled to resign his position with the defendant." The defendant emphasized that it did not terminate the plaintiff's employment. The defendant also argued that the plaintiff misinterpreted the elements of a constructive discharge claim, noting that in Brittell v. Dept. of Correction , 247 Conn. 148, 717 A.2d 1254 (1998), our Supreme Court stated that the "[c]onstuctive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." (Emphasis in original; internal quotation marks omitted.) Id., at 178, 717 A.2d 1254, quoting Chertkova v. Connecticut General Life Ins. Co. , 92 F.3d 81, 89 (2d Cir. 1996). It also pointed out that both Sheets and Faulkner were cases alleging wrongful termination of employment, not constructive discharge.

The trial court heard oral argument on the defendant's motion to strike and issued a memorandum of decision on April 26, 2017, in which it granted the motion. The court relied on Brittell as the legal basis of its decision,⁶ finding that the complaint insufficiently alleged both elements of constructive discharge. It bluntly stated that "[i]n no way" can the allegations fairly be construed to establish that the defendant intentionally created an intolerable workplace or that there was even an intolerable workplace that would compel a reasonable person to resign. The court concluded that although the complaint alleged constructive discharge in violation of public policy, the plaintiff had relied on cases dealing with wrongful termination of employment rather than constructive discharge. The plaintiff did not allege that he was wrongfully terminated in retaliation for refusing to participate in activities that violated the law. Cf. Sheets v. Teddy's Frosted Foods, Inc. , supra, 179 Conn. at 480, 427 A.2d 385. The court, therefore, granted the motion to strike.

The plaintiff declined to replead and asked the court to render judgment in favor of the defendant. Following the entry of judgment, the plaintiff appealed. On appeal, the plaintiff claims that "[i]f an employer orders an employee to engage in illegal activity, and the employee resigns rather than break the law, the employee has been constructively discharged in violation of public policy and has a cause of action pursuant to the doctrine of Sheets ...."⁷ Although the plaintiff acknowledges that Sheets is a wrongful termination case and that Faulkner is a wrongful retaliatory discharge case, he argues that in those cases, as in the present case, the employees were required to engage in illegal activity. He argues that whether an employer discharges an employee directly under the Sheets doctrine or constructively discharges the employee, the effect on the employee is the same and there cannot be any difference in the law's prohibition.

The defendant again contends in its appellate brief that the plaintiff failed to plead sufficient facts to support a claim for constructive discharge, noting that a plaintiff must allege that instead of firing an employee directly, the employer intentionally created "an intolerable work atmosphere that forces an employee to quit involuntarily." (Internal quotation marks omitted.) Brittell v. Dept. of Correction , supra, 247 Conn. at 178, 717 A.2d 1254. It argues that one cannot infer from the allegations of the complaint that the defendant intended to create an intolerable work atmosphere when it hired the plaintiff to provide optometric assistant services to the doctor of optometry in the store. The defendant states once again that it is illogical to conclude that it intended from the first day of the plaintiff's employment to force him to quit involuntarily.⁸ We agree with the defendant.

We briefly review the applicable legal principles and our standard of review. "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.... [S]ee Practice Book § 10-39. A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court.... We take the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... A motion to...