Oliver v. Walmart Stores, East, L.P.

• Decision Date: 13 February 2017
• Docket Number: KNLCV166027223S
• Court: Connecticut Superior Court
• Parties: Cherylann Oliver v. Walmart Stores East, L.P. et al

Cherylann Oliver v. Walmart Stores East, L.P. et al

No. KNLCV166027223S

Superior Court of Connecticut, Judicial District of New London, New London

February 13, 2017

UNPUBLISHED OPINION

DEFENDANT WALMART'S MOTION TO STRIKE COUNTS 1, 2 AND 5 (Pleading #103)

Timothy D. Bates, J.

FACTS

The plaintiff, Cherylann Oliver, filed the five-count complaint in this action on June 20, 2016 against Walmart Stores East LP (hereinafter referred to as " Walmart") and Rebecca Sereno (hereinafter " Sereno"), a fellow employee and supervisor at Walmart in its Waterford Connecticut store. In the first count of the complaint, the plaintiff alleges discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act (" CFEPA") on the part of Walmart. In her second count, she claims negligent supervision against Walmart. Counts 3 and 4 charge Sereno with two counts of invasion of privacy; Sereno has not appeared in this matter, and the subject motion does not apply to the counts as addressed to her. Count 5 alleges that both Sereno and Walmart engaged in intentional infliction of emotional distress. Walmart has moved to strike counts 1 and 2 as well as well as count 5 as it applies to Walmart. In the complaint, the plaintiff alleges the following facts: On November 8, 2014, the plaintiff was working at Walmart when her supervisor, Sereno followed her into the restroom. Oliver alleged that Sereno slid a cell phone under the bathroom stall door and videotaped the plaintiff without the plaintiff's knowledge or consent. The plaintiff claims Sereno then posted the video of the plaintiff on Facebook with a vulgar caption. She claims the posting remained on the website for several hours. The following day, the plaintiff states she reported the incident to upper management at the defendant's Waterford store, and Sereno was instructed to remove the video from social media. Based on these allegations, Oliver claims Walmart was negligent by failing to properly educate, train, manage, supervise, and discipline Sereno. As a result of these actions, Oliver claims to have suffered and continues to suffer from severe and permanent emotional distress, humiliation, apprehension and a loss of earning capacity. Based on these claims, she requests compensatory and punitive damages, along with fees and costs.

On July 28, 2016, Walmart filed a motion to strike counts one, two, and five of the plaintiff's complaint because the plaintiff has failed to sufficiently allege facts to support causes of action sounding in discriminatory employment practices, negligent supervision, and intentional infliction of emotional distress under the doctrine of respondeat superior. The defendant's motion is supported by a memorandum of law. In response, the plaintiff filed a memorandum of law in opposition to the motion to strike on September 27, 2016. On October 18, 2016, Walmart filed a reply to the plaintiff's memorandum of law in opposition. The motion was argued at short calendar on October 24, 2016.

ANALYSIS

" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] 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 . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

COUNT I: DISCRIMINATORY EMPLOYMENT PRACTICES

In the memorandum of law in support of the motion to strike, Walmart argues that count one is legally insufficient to state a claim sounding in discriminatory employment practices as the plaintiff has failed to plead any facts showing that the plaintiff was targeted because of her gender or that there was a general hostility toward women at her place of employment. The defendant also argues that the plaintiff has failed to plead any facts demonstrating severe or pervasive harassment in the workplace. The plaintiff, on the other hand, contends that the facts alleged are sufficient to establish a claim of sexual harassment.

General Statutes § 46a-60(a)(8)--which is the statutory basis for Count 1--provides in relevant part: " It shall be a discriminatory practice in violation of this section [f]or an employer, by the employer or the employer's agent . . . to harass any employee, person seeking employment or member on the basis of sex . . . Sexual harassment shall, for the purposes of this section, be defined as . . . any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." " [T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015). The plaintiff is not required to show that the work environment was both severe and pervasive, but rather only that it was sufficiently severe or pervasive. (Emphasis added.) Pucino v. Verizon Communications, Inc., 618 F.3d 112, 119 (2d. Cir. 2010). " [I]ncidents of allegedly offensive conduct must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Cirino v. Jetro Holdings, LLC, Superior Court, judicial district of New Haven, Docket No. CV-13-6035102S (November 6, 2014, Fischer, J.) , citing Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001). When asserting a claim based on hostile work environment pursuant to § 46a-60(a)(8), " a plaintiff must demonstrate that [he or] she was subjected to the hostility because of [his or] her membership in a protected class." (Emphasis in original.) Cirino v. Jetro Holdings, LLC, supra, . Accordingly, a plaintiff, in alleging a legally sufficient hostile work environment claim, must allege that the conduct complained of was so frequent or severe that it affected the plaintiff's work conditions. Furthermore, it must be alleged that the harassing or abusive conduct occurred because of the plaintiff's sex. Id. In the present case, the allegations involve an isolated incident in which the plaintiff's supervisor videotaped her using the restroom and posted the video to a social media website. The allegations in the complaint do not assert that the conduct occurred because of the plaintiff's sex.

The allegations set forth in count one of the present case--while reprehensible--are similar to allegations that courts have found to be insufficient to support a hostile work environment claim. See Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998) (a hostile work environment claim did not arise from claims that a supervisor commented about an employee's buttocks, and the supervisor intentionally touched the employee's breasts with papers he was holding); Kearney v. City of Bridgeport Police Dept., United States District Court 573 F.Supp.2d 562 (D.Conn. 2008) (hostile work environment claim was not established where the defendant made one statement to the plaintiff, when the statement was an isolated incident, and the statement was not made based on the plaintiff's race or sex); see also Cirino v. Jetro Holdings, LLC, supra, Superior Court, Docket No. CV-13-6035102S, . Considered in the totality, the single incident alleged by the plaintiff is not sufficiently severe or pervasive to support a hostile work environment claim. Unlike in Pucino v. Verizon Communications, Inc., 618 F.3d 112, 117-18 (2d Cir. 2010), where the plaintiff's superiors " subjected women to disparately harsh working conditions, " here, the plaintiff has not alleged any conduct suggesting that the abusive incident was motivated by her gender or was part of a pattern of behavior. In fact, the allegations in the complaint lack any suggestion that the conduct claimed...