Perodeau v. Hartford, (SC 16468)

• Court: Supreme Court of Connecticut
• Writing for the Court: Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, JS.
• Citation: 792 A.2d 752,259 Conn. 729
• Parties: MICHAEL PERODEAU, SR. v. CITY OF HARTFORD ET AL.
• Docket Number: (SC 16468)
• Decision Date: 26 March 2002

259 Conn. 729
792 A.2d 752

MICHAEL PERODEAU, SR.
v.
CITY OF HARTFORD ET AL

(SC 16468)

Supreme Court of Connecticut.

Argued November 2, 2001.

Officially released March 26, 2002.

Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, JS.

259 Conn. 730

James S. Brewer, for the appellant (plaintiff)

Wesley W. Horton, with whom were Daniel J. Krisch and, on the brief, John P. Shea, Jr., assistant corporation counsel, and Trenton C. Haas, certified legal intern, for the appellees (defendants).

Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Michael Soltis and Susan Krell filed a brief for the Connecticut Business and Industry Association, Inc., as amicus curiae.

Philip A. Murphy, Jr., and Cynthia Watts Elder filed a brief for the commission on human rights and opportunities as amicus curiae.

Jonathan L. Gould and Barbara E. Gardner filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

Opinion

ZARELLA, J.

The principal issues in this case, which comes to us on certification from the United States District Court for the District of Connecticut pursuant

259 Conn. 731

to General Statutes § 51-199b (d),¹ are: (1) whether General Statutes § 46a-60 (a) (1)² imposes civil liability against individual municipal employees and/or their supervisors if their actions constitute a discriminatory practice as defined in the statute; and (2) whether an individual municipal employee may be found liable for negligent infliction of emotional distress arising out of conduct occurring in the context of a continuing employment relationship, as distinguished from conduct occurring in the context of the termination of employment. We answer both questions in the negative

The District Court's certification order reveals the following relevant facts and procedural history. The plaintiff, Michael Perodeau, Sr., is employed by the named defendant, the city of Hartford (city), in its police department. He is a single parent. The individual defendants, Joseph Croughwell, Robert Casati, Paul Cherniak and James Blanchette, were at all relevant times, respectively, the chief, the deputy chief, a sergeant and a lieutenant in the Hartford police department.

The plaintiff was hired by the Hartford police department as a police officer in 1979. In 1989, he was promoted to detective in the narcotics division. In 1992,

259 Conn. 732

he transferred from the narcotics division to the evidentiary services division where he worked until January, 1998, when the department transferred him to the north police services area as a burglary detective

The plaintiff claims that his transfer to the north police services area was in response to his alleged refusal to be available for callbacks.³ He contends that Cherniak, his direct supervisor, falsely and maliciously claimed that he refused nine callbacks from July, 1997, to December, 1997. The plaintiff also claims that it was a policy and custom of the evidentiary services division to accommodate officers when they could not cover a callback shift, that many officers in other divisions were allowed to limit their availability to work callback shifts when they had business or family demands, and that female and single mother officers in other divisions were not forced to take callbacks.

In June, 1998, the plaintiff filed a complaint with the commission on human rights and opportunities against the city, Casati and Cherniak, alleging age and sex discrimination. In the present case, the plaintiff claims that Blanchette subsequently retaliated against him for filing the complaint by verbally disparaging him in front of other officers and by falsely accusing him of smoking in a photography laboratory at the police department. The plaintiff also claims that all of the defendants condoned or acquiesced in his wrongful treatment, refused to protect him from harassment and unlawful discipline, and refused to ascertain the true facts and to punish wrongdoers.

On April 30, 1999, the plaintiff filed a complaint in the District Court alleging violations of 42 U.S.C. § 1983

259 Conn. 733

(Sup. 1999)⁴ by the individual defendants; violations of 42 U.S.C. § 2000e-2⁵ by the city; violations of 29 U.S.C. § 621 et seq.⁶ by all of the defendants; retaliation by all of the defendants; violations of General Statutes §§ 46a-58⁷ and 46a-60 by all of the defendants; negligent infliction of emotional distress by all of the defendants; and intentional infliction of emotional distress by all of the defendants. The defendants moved to dismiss the plaintiffs claim against the city pursuant to 42 U.S.C. § 1983; his claim against the individual defendants pursuant to

259 Conn. 734

29 U.S.C. § 621 et seq.; his claim against the individual defendants pursuant to § 46a-60; and his claims of negligent and intentional infliction of emotional distress as to all of the defendants. The District Court granted the motion to dismiss with respect to all claims except the claim against the individual defendants pursuant to § 46a-60 and the claim against the individual defendants for negligent infliction of emotional distress.⁸ With respect to those claims, the District Court recognized that this court has never considered whether § 46a-60 (a) (1) imposes liability on individual employees or whether individual employees may be held liable for negligent infliction of emotional distress for conduct arising in a continuing employment relationship. Accordingly, the District Court certified those questions to this court.

I

We first consider whether § 46a-60 (a) (1) imposes liability on individual employees.⁹ The plaintiff contends

259 Conn. 735

that, because the term "employer" in § 46a-60 is defined in General Statutes § 46a-51 (10)¹⁰ to encompass any "person," which is defined in General Statutes § 46a-51 (14)¹¹ to include an individual, an individual employee may be liable for violations of § 46a-60. This contention is contingent upon his claim that the phrase "with three or more persons in his employ" in § 46a-51 (10) modifies only the word "employer" and not the word "person." We disagree.

Whether § 46a-60 (a) (1) imposes liability on individual employees is a matter of statutory interpretation "over which this court's review is plenary.... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common

259 Conn. 736

law principles governing the same general subject matter." (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

We begin our analysis with a review of the relevant statutory provisions. Section 46a-60 (a) (1) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section ... [f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to blindness...." General Statutes § 46a-51 (10) provides that the term "`[e]mployer' includes the state and all political subdivisions thereof and means any person or employer with three or more persons in his employ...." General Statutes § 46a-51 (14) provides in relevant part that the term "`[p]erson' means one or more individuals...."

"In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language...." General Statutes § 1-1 (a). "To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." (Internal quotation marks omitted.) State v. Rivera, 250 Conn. 188, 200 n.12, 736 A.2d 790 (1999). The dictionary defines the word "employer" to mean "[o]ne who employs, esp. for wages or salary...." Webster's New International Dictionary (2d Ed.). It would defy common sense to conclude that the legislature intended in § 46a-51 (10) to change the common meaning of the word "employer" to include

259 Conn. 737

"persons" who do not employ anyone, while excluding "employers" who employ fewer than three employees. Indeed, the very fact that the legislature used the term "employer" within its definition of "employer" in § 46a-51 (10) indicates that it intended the word to have its common meaning, and that the definition was intended merely to narrow the class of "employers"—understood in its ordinary sense—to which the Fair Employment Practices Act, General Statutes § 46a-51 et seq., applies. Otherwise, the definition would be internally inconsistent.

We further note that the legislature recently amended § 46a-51 (10) by substituting the phrase "person's or employer's" for the word "his," so that, effective October 1, 2001, that section provides: "`Employer' includes the state and all political subdivisions thereof and means any person or employer with three or more persons in such person's or employer's employ...." (Emphasis added.) Public Acts 2001, No. 01-28, § 1. The legislative history is silent on the reason for this change, but we reasonably may assume that it was made to render the language of the statute gender neutral, and not to change the scope of the statute. In light of this fact, it appears that the legislature intended the term "his" in the prior version of the...