Kilduff v. Cosential, Inc.

• Decision Date: 25 February 2003
• Docket Number: No. CIV. 3:02CV651 (PCD).,CIV. 3:02CV651 (PCD).
• Citation: 289 F.Supp.2d 12
• Court: U.S. District Court — District of Connecticut
• Parties: Jennifer KILDUFF, Plaintiff, v. COSENTIAL, INC., et al., Defendants.

289 F.Supp.2d 12

Jennifer KILDUFF, Plaintiff, v. COSENTIAL, INC., et al., Defendants.

No. CIV. 3:02CV651 (PCD).

United States District Court, D. Connecticut.

February 25, 2003.

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Byran T. Carmody, Maya & Associates, Fairfield, CT, for Plaintiff.

Christopher M. Hodgson, Durant, Nichols, Houston, Hodgson & Cortese-Costa PC, Bridgeport, CT, for Defendants.

RULINGS ON DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE

DORSEY, District Judge.

Defendants move to dismiss and to strike various counts. For the reasons set forth herein, defendants' motion to dismiss is granted in part and the motion to strike is denied.

I. BACKGROUND

In October, 2000, defendant Cosential, Inc. ("Cosential") hired plaintiff as executive assistant to a number of company officers including defendant Dan Cornish, Cosential's Chief Executive Officer. During her term of employment with Cosential, plaintiff was required to clean Cornish's office in which pornographic videotapes were stored. In January, 2001, Cosential hired defendant Dan Sorrentino as Chief Operations Officer. As plaintiff's supervisor, Sorrentino described her job responsibilities in terms of sexual acts and referred to plaintiff as "honey," "babe," "love" and "sweetheart," on certain occasions accompanying suggestive remarks with physical contact.

Plaintiff complained of the incidents to Ellen Louer, the office manager, who forwarded the complaints to Sara Wolter, human resources director. Although plaintiff was notified that Sorrentino would be directed to attend sensitivity training, the training was not completed. Over the next five months, Sorrentino intensified his conduct with plaintiff, making sexually suggestive remarks, commenting on an adult web site, describing sexual acts with his girlfriend, commenting that he would fire her if she cut her hair and referring to her as his wife. In July, 2001, plaintiff learned that Cosential was relocating to New York City and Sorrentino expressly requested that plaintiff continue her employment. On July 13, 2001, plaintiff resigned from her employment with Cosential because of the conduct.

Plaintiff complained of the conduct to the Connecticut Commission on Human Rights and opportunities ("CHRO") and the Equal Employment Opportunity Commission ("EEOC"). She was given a release of jurisdiction by the CHRO on March 28, 2002 and by the EEOC on April 1, 2002. She then filed the present complaint alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 78 Stat. 253, 42 U.S.C. § 2000e et seq. and the Connecticut Fair Employment Practices Act ("CFEPA"), CONN. GEN. STAT. § 46a-58 et. seq. (Counts One and Two, respectively, as to Cosential), retaliation in violation of CFEPA, CONN. GEN. STAT. § 46a-60(a)(4) (Count Three as to Sorrentino), incitement of discrimination on the basis of sex (Count Four as to Cornish) and aiding and abetting such discrimination (Counts Five, Six and Seven as to Cornish) in violation of CFEPA, CONN. GEN. STAT. § 46a-60(a)(5), negligent supervision of Sorrentino (Counts Eight and Nine as to Cosential and Cornish, respectively), negligent retention of Sorrentino (Counts Ten and Eleven as to Cornish and Cosential, respectively), constructive discharge (Count Twelve as to Cosential), assault (Count Thirteen as to Sorrentino and Cosential), battery (Count Fourteen, Fifteen and Sixteen as to Sorrentino and Cosential), intentional infliction of emotional distress (Count Seventeen as to Sorrentino and Cosential, Count Eighteen as to Cosential, Count Nineteen as to Cornish) and negligent infliction of emotional distress (Count Twenty as to Cosential, Count Twenty-One as to Sorrentino).

II. DISCUSSION

Defendants move to dismiss Counts Four, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty and Twenty-One for failure to state a claim.

A. Motion to Dismiss Standard

A motion to dismiss is properly granted when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.2001) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). A motion to dismiss must be decided on the facts as alleged in the complaint. Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001). All allegations in the complaint are assumed to be true and are considered in the light most favorable to the nonmovant. Manning v. Utilities Mut. Ins. Co., Inc., 254 F.3d 387, 390 n. 1 (2d Cir. 2001).

B. Violation of CFEPA as to Cornish (Count Four)

Defendants argue that plaintiff does not allege that Cornish incited another to commit a discriminatory act and as such cannot establish a CFEPA violation. Plaintiff responds that the Count fairly alleges that Cornish incited Sorrentino to create a hostile work environment.

CONN. GEN. STAT. § 46a-60(a)(5) provides that it is a discriminatory practice "to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so." Plaintiff specifically alleges that Cornish incited Sorrentino sexual misconduct by viewing pornographic material with him in his private office. "Incite" is defined as "to move to a course of action: stir up: spur on: urge on ... to bring into being: induce to exist or occur ... incite may indicate both an initiating, a calling into being or action, and also a degree of prompting, furthering, encouraging, or nurturing of activity ...." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1142 (1981). It is thus not enough that Cornish's peculiar behavior in his office presented Sorrentino with sexual ideas, but rather that it encouraged discriminatory conduct toward female employees, thus establishing a hostile work environment.

Although Cornish's workplace conduct did nothing to dissuade Sorrentino, it cannot be considered as inciting a hostile work environment. Plaintiff does not allege that she raised any objection to Cornish's behavior, that Cornish expressly directed or encouraged Sorrentino's treatment of her, or that Cornish viewed pornography in her presence, which activities may have been interpreted by Sorrentino as ambivalence or encouragement of inappropriate conduct. She alleges she found pornographic videotapes and DVDs and believed such were viewed with Sorrentino. There is thus no allegation that Cornish fostered or directed a climate hostile toward his female employees.

If plaintiff is in fact arguing that the viewing of pornography at one's place of employment in a private office psychologically motivated Sorrentino to create a hostile work environment, and Cornish should have been aware of such fact, plaintiff provides no authority whatsoever for the proposition. The relation of pornography to sexual misconduct is a fertile source of debate, compare Amatel v. Reno, 156 F.3d 192, 198-99 (D.C.Cir.1998), with id. at 208-09 (Wald, J., dissenting) (discussing contrary views on the psychological effects of pornography), and the issue is sufficiently debatable to preclude its resolution today absent compelling evidence to that effect. It suffices to say that there is no authority, factual or legal, supporting the proposition that Cornish's conduct as alleged incited Sorrentino's conduct. Count Four is therefore dismissed.

C. Constructive Discharge (Count Twelve)

Defendants argue that constructive discharge is not an independent cause of action in Connecticut absent an identified violation of public policy in such discharge. A constructive discharge is effectively the legal equivalent of a discharge, see Seery v. Yale-New Haven Hosp., 17 Conn.App. 532, 540, 554 A.2d 757 (1989), which is itself not actionable absent evidence of inappropriate conduct which effectuates the result. It is apparent, however, that plaintiff's claim is one of wrongful discharge as she alleges that "[s]aid discharge reflects Cosential's violation of public policies, including the public policy of having employers respect the employment rights of its employees." The invocation of a violation of public policy is the hallmark of a wrongful discharge claim, see Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) (sanctioning cause of action for wrongful discharge if reason for the discharge involves impropriety derived from some important violation of public policy), and will be reviewed as such.

Defendants argue that available statutory remedies preclude an action for wrongful discharge. Plaintiff responds that should her statutory claims fail, she will be without a remedy for the alleged violations. The question is not whether plaintiff would be without means of redress under the circumstances, but rather whether any plaintiff would be without remedy for the violation of public policy. See Leone v. Burns Int'l Sec. Servs., Civil No. B84-19(PCD), 1985 WL 8889 at *3 (D.Conn. Jan. 2, 1985). If the cause of action were case-specific, one could easily envision a callous disregard for procedural requirements such as exhaustion of claims through the EEOC or CHRO in light of a readily available, common law cause of action. If those claiming sex discrimination who are expressly excluded from statutory remedies may not avail themselves of a common law remedy, see Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 718, 802 A.2d 731 (2002) (identifying policy against discrimination but declining to establish cause of action for those whose employers are exempt by size from statutory prohibitions),¹ it would make little sense to create a cause of action for those whose claims fail either on the merits or for procedural noncompliance. "The body of our common law ... serves to supplement the corpus of statutory enactments." Id. at 717, 802...