WILSON J. TROMBLEY, JUDGE.
I. NATURE OF PROCEEDINGS
The plaintiff, a former employee of the defendant, commenced this action on July 27, 2004, alleging racial discrimination, retaliation, defamation, false light invasion of privacy and intentional infliction of emotional distress. The present state action was filed subsequent to an action filed in the Federal District Court in the district of Connecticut in January 2001 that was based on substantially similar claims, involving the same parties, which was terminated by a summary judgment entered by the Hon. Stephen R. Underhill, U.S. District Court judge, on September 15, 2003. That judgment was affirmed by the federal court of appeals for the Second Circuit on July 1, 2004. Negron v. Rexam, Inc., United States Court of Appeals, Docket No. 03-9253 (2d Cir. 2004).
In the present action, on July 29, 2005, the defendant filed a motion for summary judgment, claiming, as to all counts, that there is no genuine issue as to any material fact and in addition, as to the discrimination and retaliation counts, that such actions should be barred by the doctrine of collateral estoppel. The parties, in addressing said motion, have each submitted comprehensive briefs with numerous documentary exhibits attached thereto, all of which have been extensively reviewed by this court in arriving at its decision.
At the initial argument on the briefs, this court asked counsel whether the issues addressed by the defendant were properly raised by a motion to strike per Practice Book § 10-39, rather than the motion for summary judgment per Practice Book Sec. 17-44. Counsel subsequently stipulated that under the facts and circumstances presented by this case, the motion for summary judgment was the appropriate vehicle. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993); Larobina v. McDonald, 274 Conn. 394, 399-401, 876 A.2d 522 (2005).
In this regard, the court did not read the hundreds of minutely printed pages of deposition testimony submitted by the parties, however, the court did review those pages referred to in their respective briefs. The court read all other exhibits in their entirety and reviewed all cases cited by the parties, in CT Page 931 addition to several relevant cases discovered through the court's own research.
II. RELEVANT FACTS
The plaintiff alleges in his complaint that he is of Puerto Rican heritage and was employed by the defendant in the defendant's factory in Torrington, Connecticut, from December CT Page 899 1998 until April 2001, at which time the employer/employee relationship ended. For most of his employment, the plaintiff was a setup technician. The plaintiff further alleges that for the first two years of his employment, he received favorable evaluations and regular pay increases, yet was never promoted and received limited on the job training. During April 2000, however, he claims that he was harassed, due to his race, by a coworker and that he was retaliated against by the defendant's supervisory employees for his opposition to the coworker's racist actions.
A review of the plaintiff's job evaluation reports reveals that, although the plaintiff was deemed to get along well with his coworkers, there was concern expressed by management as to his ability to master his job responsibilities. Plaintiff's Exhibit B.
Specifically, the plaintiff alleges that one coworker, R.D., who had a history of related incidents at work, referred to the plaintiff as "nigger" in the presence of other coworkers and managers. The plaintiff further claims that despite his complaints to a shift supervisor about the actions of the coworker, no action was taken against the offending employee. The plaintiff also claims that said coworker paged him over the loudspeaker by referring to him as "Jeff Negro" and harassed him on the shop floor. Said coworker allegedly told the plaintiff that he should go to another factory, as they were hiring, "niggers like you." As a result of the coworker's conduct, the plaintiff went to his supervisors and requested a meeting with the director of human resources, only to be told that there was no need to take it to that level.
The plaintiff also alleges that within an hour of his complaints to said supervisors, he was asked by them to see pictures of the plaintiff and his dog taken on a recent fishing trip. Two of the supervisors posted one of the photos, which they enlarged and copied, in various locations in the factory, including the employee bulletin boards, the men's room, and the ladie's room. Under each of the posted photographs, the supervisors inserted sexually orientated comments, clearly implying that the plaintiff was engaged in acts of bestiality with his pet. Plaintiff's Exhibit H. The photos could have been, potentially, viewed by the two hundred people employed at the factory, however, they were removed within an hour of being posted. The plaintiff experienced "total humiliation" as a result of this incident. Plaintiff's Deposition, Plaintiff's Exhibit A, page 238.
The plaintiff further alleges that after lodging a formal complaint with the defendant, the defendant took no action for months, until the plaintiff was compelled to hire an attorney, CT Page 900 who then contacted the defendant, prompting an investigation by the director of human resources and an attorney from the defendant's North Carolina corporate offices. As a result of that investigation, one supervisor was demoted and another was terminated, however, the investigation resulted in no disciplinary action (other than a warning) against the alleged offending coworker. The plaintiff further alleges that said coworker continued his harassment via slamming doors and rude and obscene non-racial comments. Upon further complaints made by the plaintiff, the offending coworker was transferred to another shift, which paid a higher hourly wage.
The defendant explains that the formal investigation of all of the plaintiff's complaints was delayed, as the director of human relations was on medical leave during the summer of 2000 and made limited visits to the factory during that time.
As a result of the above-described occurrences, in November 2000, the plaintiff filed charges of discrimination with the Connecticut Commission on Human Rights and Opportunities. The plaintiff alleged that, in addition to the discriminatory conduct of the coworker, he was retaliated against by the defendant by being regularly called into a supervisor's office, where his job performance was criticized. He further alleges that he was transferred, with his consent, to another department, building maintenance, where his new supervisor, who was dating the sister of the terminated plant supervisor, threatened him on a regular basis. In April 2001, the plaintiff received a release of jurisdiction from said commission, that apparently paved the way for the federal suit. Soon thereafter, he was called into the human resource director's office, where he was berated as to his alleged poor job performance and told "you're all done," which he understood to mean that he was terminated by the defendant. The plaintiff never returned to the defendant's factory.
It is noteworthy that two days after his alleged termination, the director telephoned the plaintiff and questioned why he was not at work.
The plaintiff alleges that, as a result of the above-described occurrences, he suffered severe emotional distress, reduced intimacy with his spouse, high blood pressure and was compelled to seek psychiatric care.
III. PRIOR PROCEEDINGS
In January 2001, after the commission relinquished its jurisdiction, the plaintiff filed a complaint in the federal district court. Pursuant to 42 U.S.C. § 1981, the plaintiff alleged that he was the victim of racial discrimination by the defendant and that the defendant retaliated against him as a result of his exercise of activities protected by federal law, that is, as a result of his complaints as to the alleged CT Page 901 discrimination. In his initial complaint, the plaintiff also alleged defamation, false light invasion of privacy, and intentional and negligent infliction of emotional distress. In his second amended complaint, filed in December 2002, the plaintiff removed the negligent infliction count, but added allegations of discrimination and retaliation in violation of Connecticut's Fair Employment Practices Act, § 46a-58 et seq. Pursuant to 28 U.S.C. § 1367, the court assumed supplemental jurisdiction over the state statutory and common-law claims.
28 U.S.C. § 1367(a) provides, in relevant part: "[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution . . ."
On September 17, 2003, Judge Underhill, via a decision announced from the bench, granted the defendant's motion for summary judgment relative to the plaintiff's federal claims and declined to exercise jurisdiction over all of the plaintiff's state claims. As to the racial discrimination claim, the court stated:
In my view under the law, no reasonable jury could find in favor of the plaintiff on the hostile work environment claim under § 1981 . . . for the following reasons: First, the alleged racial harassment here was not so pervasive or consistent or even intense that a reasonable jury could find that there was a hostile work environment when, over a handful of times a single coworker addressed the plaintiff using a racial epithet, including over the loudspeaker . . . [T]hese handful of comments on a factory floor, although deplorable, simply do not rise to the level of a hostile work environment . . . Some of the complained of conduct is not racial at all . . . and . . . [does] not lead to any reasonable inference of racial motivation or racial harassment.
See Defendant's Exhibit #3, pages 27-28.
Although the court declined to issue any ruling on the state statutory and common-law claims, Judge Underhill later suggested that there may be " some res judicata effect" to his ruling.
28 U.S.C. § 1367(c) provides: "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has dismissed all claims over which it has original jurisdiction . . ."
(Emphasis added.) Id., 29-30.
As to the plaintiff's retaliation claim, Judge Underhill stated: CT Page 902
In my view, under the law, no reasonable jury could find in favor of the plaintiff on the . . . retaliation claim under § 1981 for the following reasons: [T]he retaliation claim fails primarily because
there has not been an adverse employment action taken in response to a complaint of racial harassment. The distribution of the photographs, although humiliating, did not change . . . the nature of plaintiff's work environment . . . I conclude that neither the posting of the photographs, nor the being called into his supervisor's office . . . is sufficient to constitute an adverse employment action that would support a retaliation claim.
(Emphasis in original.) Id., 27-29.
As noted, on July 1, 2004, the Second Circuit affirmed Judge Underhill's decision. Negron v. Rexam, Inc., United States Court of Appeals, Docket No. 03-9253 (2d Cir. 2004). Defendant's Exhibit #4. The court agreed with the lower court's findings relative to the failure of the plaintiff to prove the existence of a hostile work environment, an actionable retaliation and an adverse change in the terms and the conditions of his employment. Id.
IV. CLAIMS OF THE PARTIES A. The Defendant's Claims
The defendant asks this court to grant its motion for summary judgment as to all five of the counts set forth in the plaintiff's complaint. Specifically, as to the discrimination and retaliation counts, the defendant argues that each fails, as a matter of law, as the factual and legal issues raised therein were finally decided by the Federal District Court. The federal action, the defendant asserts, involved the same issues and the same parties and arose out of the same facts as the present action. To the extent, therefore, that Judge Underhill resolved, by an affirmed final judgment, the discrimination and retaliation issues, the defendant argues that the re-litigation of those issues in this court is barred by the doctrine of collateral estoppel. Moreover, as to the discrimination/retaliation counts, the defendant argues that, based upon the reasoning offered by Judge Underhill, there is no genuine issue as to any material CT Page 903 fact. The defendant asserts that no jury could reasonably find that the plaintiff was discriminated against due to his race or that the defendant operated a hostile work environment. The defendant argues that it is undisputed that it responded to the plaintiff's complaints of harassment by his fellow employee. The defendant further argues that it is undisputed that it committed no acts of actionable retaliation, either under federal or state law, as the plaintiff suffered no adverse employment action that was connected to his complaints, in that his terms and conditions of employment were not adversely affected.
As to the defamation and invasion of privacy counts, the defendant argues that the posting of the photos did not give rise to a cause of action for libel and cannot support a false light invasion of privacy cause of action because no one reasonably believed the implication of bestiality and that everyone, including the plaintiff, perceived the action as a joke or a spoof.
As to the allegation of intentional infliction of emotional distress, the defendant argues that no jury could reasonably find that the conduct of the supervisors, in copying, enlarging, editing and posting the offensive photograph in a factory setting was extreme or outrageous nor could a jury reasonably find that such conduct could cause severe emotional distress in he who was the subject of the photo. According to the defendant, shop employees should reasonably expect spoofs and parody, such as that which occurred here, to prevail in the workplace.
B. The Plaintiff's Response
The plaintiff asserts that, in a case such as this, in which motive, intent and subjective feelings are factual issues to be addressed and decided by a jury, summary judgment ought not to be granted. As to the defendant's collateral estoppel argument, the plaintiff denies that he was afforded an adequate opportunity to litigate his state claims of racial discrimination and retaliation in the federal action, as Judge Underhill exercised his discretion and declined to rule on any of the state statutory or common-law claims advanced by the plaintiff. The plaintiff argues that the restraint exercised by Judge Underhill affords this court the opportunity to apply Connecticut's legal and public policy considerations to the facts of this case and to decide whether this state's Fair Employment Practices Act was violated by the conduct of the defendant through its management CT Page 904 personnel.
The plaintiff asserts that it should be up to a jury to determine whether the facts would support the plaintiff's claim of discriminatory and retaliatory conduct under Connecticut law. As to the second count, the plaintiff argues that the inordinate delay of the defendant in its response to the plaintiff's complaints, his failure to receive any promotions, his reassignment, and his constructive discharge, all present issues of material fact that cannot and should not summarily be foreclosed. As to the first count, the plaintiff argues that the series of occurrences, from the coworker's racist remarks, and a lack of discipline resulting therefrom, to the humiliating bestiality implication, present material issues of fact as to whether the defendant permitted a hostile work environment to prevail and as to whether the defendant gave preferential treatment to its non-minority employees.
As to the defamation count, the plaintiff argues that the implication of bestiality, which constitutes libel per se, raises a genuine issue of material fact as to whether the photos and remarks inserted thereon were, under the facts and circumstances of this case, defamatory. As to the invasion of privacy count, the plaintiff argues that it is for the jury to determine whether the comments inserted by the defendant's supervisory employees on the plaintiff's fishing trip photo, that implicated the plaintiff's sex life, were highly offensive and, were, therefore, an actionable interference with his common-law right of privacy. Finally, the plaintiff argues that reasonable minds can differ as to whether the supervisors' bestiality joke rose to the level of extreme and outrageous conduct. Thus, the resolution of the facts should be left to the jury and should not be summarily dismissed by the court.
V. FEDERAL LAW A. Employment Discrimination
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2. As Justice O'Connor put it in a leading Supreme Court case, CT Page 905
When 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 Title VII is violated. This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in
Meritor [Meritor Savings Bank, FSB v. Vinson, 277 U.S. 57,
106 S.Ct. 2399,
91 L.Ed.2d 49 (1986).], mere utterance of an . . . epithet which engenders offensive feelings in a employee, does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
(Citations omitted; internal quotation marks omitted.) Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
When the federal courts are called upon to determine whether a work environment is racially or otherwise discriminatorily hostile, the Supreme Court has instructed the trial and appellate courts to consider several factors, 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." Id., 23. The court has indicated that an additional factor should be an employee's psychological well-being, but cautions that the trial courts should not consider psychological harm as a controlling factor. In Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed. 662 (1998), the court explained that Title VII was and is not meant to be a "general civility code" and that the above factors are purposed to filter out "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, CT Page 906 gender-related jokes and occasional teasing." Id. Conduct, in order to be actionable, "must be extreme to amount to a change in the terms and conditions of employment." Id.
In order to prove that a hostile employment environment prevails, a "plaintiff must demonstrate that a single incident was extraordinarily severe or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of his working environment." Diggs v. Town of Manchester, United States District Court, Docket No. 3:02CV1628(GLG) (D.Conn. February 13, 2004); see also Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). The hostile environment must not only be subjectively offensive, i.e., to the complaining party, but must be such as would be deemed hostile or abusive by a reasonable person. The plaintiff must be able to impute the conduct that created the hostile environment to the employer. Diggs v. Town of Manchester, supra, United States District Court, Docket No. 3:02CV1628. Thus, the Second Circuit has held that a coworker's harassment that creates a hostile environment can attach to the employer "only when the employer has, either provided no reasonable avenue for complaint or knew of the harassment, but did nothing about it." Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995). The Supreme Court has held that an employer may be held legally accountable for the discriminatory conduct of a supervisor, but only after the trial court considers the reasonableness of the employer's conduct and that of the plaintiff employee. Faragher v. Boca Raton, supra, 524 U.S. 786-810.
With the above precedent in mind, Judge Underhill applied the facts and circumstances of this case, in a light most favorable to the plaintiff, and found, as to the discrimination claim, that there was no genuine issue as to any material fact. Prior to announcing the decision to grant the defendant's motion for summary judgment, Judge Underhill stated "[i]t's a very high standard to show that conduct was so pervasive and harmful that it's a hostile work place." Defendant's Exhibit # 4, page 21. The court then found that the "handful" of racial comments directed to the plaintiff by R.D. did not constitute the type of hostile work environment contemplated by the Supreme Court and the Second Circuit. Moreover, the court pointed out that some of the comments had nothing to do with race.
B. Retaliation For Protected Activity CT Page 907
Title VII of the Civil Rights Act of 1964, in addition to prohibiting racial discrimination in employment, also prohibits the employer from engaging in any retaliatory conduct as a consequence of an employee's complaints concerning such discrimination. Thus, 42 U.S.C. § 2000e-3(a) makes it "an unlawful employment practice for an employer to discriminate against any of its employees . . . because he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge . . . or participated in any manner in any investigation, procedure, or hearing under this subchapter." Id.
There can be no dispute that the actions taken by the plaintiff in response to the racial comments made by his coworker were protected activities. Complaints to management over perceived racial slurs are protected by the Act. Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2000). "To allege a prima facie case of discriminatory retaliation under Title VII, a plaintiff must allege facts showing, inter alia, (1) that an employer took a adverse employment action against the plaintiff after becoming aware of [his] protected conduct, and (2) that a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." (Internal quotation marks omitted.) Murray v. New York University College of Dentistry, supra, 57 F.3d 251.
Adverse employment actions have been held to include, "denial of promotion . . . threats, reprimands, negative evaluations, harassment or otherwise offensive treatment." J. Hirsch, Labor and Employment in Connecticut (2nd Ed. 2005) § 4-4(g)(3), p. 4-83. The Supreme Court has held that, in order for an adverse action taken by a supervisor to constitute retaliatory conduct prohibited by the Act, the action must bear the "imprimatur of the enterprise." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in the official company records, and may be subject to review by higher level supervisors.
CT Page 908
Id.
"The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . harassment by coworkers." Torres v. Pisano, 116 F.3d 625, 636 (2d Cir. 1997). Once an employer becomes aware of a "racially combative atmosphere in the workplace, [it] has a duty to take reasonable steps to eliminate it" Snell v. Suffolk County, 782 F.2d 1094, 1104 (2nd Cir. 1986). An employer's action in this regard must be "reasonably calculated to prevent further harassment." Kuabe v. Boury Corp., 114 F.3d 407, 412 (3rd Cir. 1997). In order for a plaintiff to prove the requisite retaliatory action against his employer, the federal courts require that the employee engaged in activity protected by the Act suffer, "a materially adverse change in the terms and conditions of employment." Torres v. Pisano, supra, 116 F.3d 640.
There are no bright line rules for what type of action constitutes an adverse employment action. Courts typically look at whether the action had an adverse effect on a plaintiff's wages, benefits, or work hours; was more than an inconvenience or alteration of the plaintiff's job responsibilities and was the type of action that is reasonably likely to deter employees from engaging in protected speech. [C]hanges in assignment or work-related duties do not ordinarily constitute adverse employment actions if unaccompanied by a decrease in salary or work hour changes.
(Citations omitted; internal quotation marks omitted.) Barros v. Miller, United States District Court, Docket No. 3:03CV1613(AHN) (D.Conn. 2005).
With regard to the plaintiff's allegations that the defendant engaged in actionable retaliatory conduct, in response to the plaintiff's complaints of harassment by his coworker and by company supervisors, Judge Underhill, with the above precedent in mind, found that no adverse employment action was suffered by the plaintiff and that the distribution of the photo by the supervisors was not racially motivated. Defendant's Exhibit # 3, page 29. The Second Circuit, in affirming Judge Underhill's decision, found that none of the plaintiff's factual allegations supported a claim of the kind of employer retaliation contemplated by the Act, as interpreted by the federal courts. CT Page 909 Negron v. Rexam, Inc., supra, United States Court of Appeals, Docket No. 03-9253
It is noteworthy to mention at this juncture, that the plaintiff did not allege in the federal action (in his second amended complaint, dated December 11, 2002), either the threatening behavior of his new supervisor or, most significantly, his perceived termination by the director of human resources. That latter action, under the facts and circumstances alleged by the plaintifff, may very well have supported a factual finding that he was discharged from his employment, whether actual or constructive. A constructive discharge occurs when an employer indirectly precipitates an employee's termination, by making that employee's "working conditions so intolerable that the employee is forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2nd Cir. 1983). The issue of the plaintiff's employment termination, although it occurred eighteen months prior to the filing of the complaint upon which the decision of the district court was rendered, was never raised by the plaintiff before said court!
In paragraph twenty-two of his complaint before this court, however, the plaintiff alleges the threatening behavior of the most recent supervisor. Paragraph twenty-four includes the "you're all done" statement of the human resources director and the plaintiff's perception that he suffered the ultimate adverse employment action, i.e., termination.
VI. CONNECTICUT'S FAIR EMPLOYMENT PRACTICES ACT
General Statutes § 46a-60(a) provides, in pertinent part, as follows:
(a) It shall be a discriminatory practice in violation of this section:
(1) For an employer . . . to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color . . . national origin [or] ancestry . . .
(4) For any . . . employer, to discharge, expel or otherwise discriminate against any person because CT Page 910 such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84.
Id.
Thus, our legislature, like Congress, has enacted a statutory scheme purposed to prohibit and to redress racial discrimination in the workplace and retaliation by an employer against any employee who protests or takes any affirmative action to alleviate such discrimination. Our state courts, guided by our appellate courts, rely on the decisions of the federal courts in applying our anti-discrimination/retaliation statutes.
The cited statute also prohibits discrimination based on religious creed, age, sex, marital status, mental disability or retardation and blindness and is, therefore, more expansive than 42 U.S.C. § 2000e.
In defining the contours of an employer's duties under our state anti-discrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60. E.g.,
State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70,
559 A.2d 1120 (1989).
"Although the language of [Title VII of the Civil Rights Act of 1964, § 703(a)(1);
42 U.S.C. § 2000e-2(a)] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 . . . which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex . . . was to make the Connecticut statute coextensive with the federal [statute].
Brittell v. Department of Corrections, 247 Conn. 148, 164, 717 A.2d 1254 (1998).
In cases involving alleged discrimination, our courts have adopted the so-called "burden shifting" approach promulgated by the U.S. Supreme Court in the seminal case of McDonnell Douglass Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The plaintiff bears the initial burden of proving by CT Page 911 the preponderance of the evidence a prima facie case of discrimination. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [factfinder] . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.
(Internal quotation marks omitted.) Mele v. Hartford, 270 Conn. 751, 768, 855 A.2d 196 (2004).
"To make out a prima facie case of retaliation, an employee must show that the employee was engaged in protected activity; that the employer was aware of that activity; that the employee suffered adverse employment decisions; and that there was a causal connection between the protected activity and the adverse employment action." Lane v. Compass Group USA, United States District Court, Docket No. 3:02CV579(EBB) (D.Conn. 2005), citing Manoharan v. Columbia Univ. Coll. of Physicians and Surgeons, 842 F.2d 590, 593 (2nd Cir. 1998).
In determining whether a "hostile environment" permeates an employee's workplace, a finding necessary to establish a prima facie case of discrimination, our courts, as do federal courts, consider the employer's reaction to an employee's complaints.
To determine whether the remedial action was adequate, we must consider whether the action was reasonably calculated to prevent further harassment . . . Once an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think [it] can be charged with discriminating on the basis of race [or sex].
CT Page 912
(Citation omitted; internal quotation marks omitted.) Brittell v. Department of Corrections, supra, 247 Conn. 168.
The employer's investigation must be reasonably thorough, viewed in the context of the alleged discriminatory conduct. Id., 175. It is also appropriate for the court to consider what steps that the employer could have taken, but did not. Id., 174.
As discussed earlier herein relative to the federal cases, the employee must suffer an adverse employment action in order to establish a prima facie case of retaliatory conduct by the employer. Failure to promote and "micro-management" of an employee's job performance are "insufficient as a matter of law" to meet the employee's burden on this crucial issue. Russ v. Town of Watertown, United States District Court, Docket No. 3:04CV014(AWT) (D.Conn. 2005).
It is clear from the above analysis that whether a judge wears a federal robe or a state robe, the same factual considerations and legal precedent apply to the determination of the issues presented in racial discrimination/retaliation cases. Thus, but for the alleged threats to the plaintiff by his last supervisor and the "you're all done" comment by the director, a state judge would apply the same legal principles to the facts of this case that were applied by Judge Underhill in the granting of the defendant's motion for summary judgment, and would, predictably, reach the same conclusion. Whether the two allegations omitted from the plaintiff's federal action, but included in this state action, would yield a different outcome, will be hereinafter addressed.
In his brief, the plaintiff readily admits that Connecticut's anti-discrimination statutes are, at least, coextensive with the federal statutes and that our state courts rely on the decisions of the Second Circuit for guidance in interpreting the state statutes. The plaintiff, however, argues that the state statutes should be interpreted more liberally than the federal acts in order to effectuate the state legislative goal of eliminating discrimination in the workplace. This court's review of the federal cases clearly justifies the conclusion that the intent of Congress in enacting the Civil Rights Act of 1964, and its supporting and implementing legislation, was to eliminate all forms of discrimination, not only in the workplace, but CT Page 913 throughout all facets of society.
The federal versus state interpretation of anti-discrimination legislation was addressed by the Second Circuit in Benson v. United Tech. Corp., 337 F.3rd 271, 276 (2nd Cir. 2003):
[T]he Connecticut Supreme Court has also identified in its jurisprudence several relevant principles of statutory construction that are specific to the interpretation of the state's anti-discrimination statutes. First, it has indicated that it interprets remedial statutes "liberally in order to effectuate the legislature's intent."
Commission on Human Rights Opportunities v. Sullivan Associates, 250 Conn. 763, 782,
739 A.2d 238 (1999). Second, it has revealed a willingness to "review federal precedent concerning employment discrimination for guidance in enforcing [the state's] own anti-discrimination statutes,"
Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 103,
671 A.2d 349 (1996), but has cautioned that it is not bound by federal interpretation and that, under certain circumstances, federal law "defines the beginning and not the end of [Connecticut courts'] approach to the subject,"
State v. Commission on Human Rights Opportunities, 211 Conn. 464, 470,
559 A.2d 1120 (1989). Third, Connecticut's highest Court has also declared that, when comparing comparable state and federal statutes, it employs "the usual rule in statutory interpretation that the difference between the state and federal acts was purposeful and is meaningful."
Evening Sentinel v. National Org. For Women, 168 Conn. 26, 34-35 n. 5,
357 A.2d 498 (1975).
Id.
The plaintiff has not cited, nor has this court's research identified one Connecticut case, the holding of which was grounded on a more expansive view of racial discrimination in employment, than that which would be applied by a federal court. Racial discrimination in employment, as well as in society in general, is just as insidious and intolerable no matter which system of justice is prevailed upon to assess and redress the unlawful conduct. CT Page 914
VII. RES JUDICATA and COLLATERAL ESTOPPEL
As noted, the defendant argues that the doctrine of collateral estoppel should operate to prevent the plaintiff from seeking a trial in this court of the same issues that were finally decided by the federal courts. In the case of Daw v. Zoning Board of Appeals of Westport, 63 Conn.App. 176, 181-83, 772 A.2d 775, cert. den'd., 256 Conn. 931 (2001), the Appellate Court explained the doctrines of res judicata and collateral estoppel, their differences and their applications as follows:
Collateral estoppel, or issue preclusion, 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 . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . .
The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.
[R]es judicata should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.
(Citations omitted; internal quotation marks omitted.) (Emphasis in original.) Id. CT Page 915
"Collateral estoppel is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." Tuchman v. State, 89 Conn.App. 745, 762, n. 7, 878 A.2d 384, cert. den'd., 275 Conn. 920 (2005). In a recent statement of the governing principles on this issue, the Appellate Court, after referring to the two doctrines as "related ideas on a continuum," explained:
The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was
actually litigated and
necessarily determined in a prior action between the same parties upon a different claim. Like res judicata, collateral estoppel is based on the public policy that a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate.
(Citations omitted; internal quotation marks omitted.) (Emphasis in original.) Mount Vernon Fire Ins. Co. v. Morris, 90 Conn.App. 525, 534-35, 877 A.2d 910, cert. granted on other grounds, 276 Conn. 907 (2005).
In yet a more recent case in which the Appellate Court addressed the doctrine of collateral estoppel, Judge Dranginis instructed:
Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.
CT Page 916
Sydoriak v. Zoning Board of Appeals of Prospect, 90 Conn.App. 649, 655-56, 879 A.2d 494 (2005).
Connecticut courts have followed the principles set forth in the Restatement, which, inter alia, provides that an issue is "actually litigated" if properly raised in the pleadings or otherwise submitted for determination and is, in fact, determined. An issue is "necessarily determined" if, in the absence of its determination, a valid judgment could not have been rendered. 1 Restatement (Second) Judgments 27, comment (d) 1982; see also Jackson v. R.G. Whipple, Inc., supra, 225 Conn. 714-15. The plaintiff refers to the Restatement as authority in support of his position that this court should allow the first and second counts, i.e., discrimination and retaliation, to proceed toward a trial.
For the purposes of claim preclusion in this case, the central issue is not whether the operative facts underlying the Rytmans' state court action are effectively the same as those underlying their RICO action. See
Delahunty v. Massachusetts Mutual Life Ins. Co., supra,
236 Conn. 590 (applying transactional test for purposes of determining identity of underlying facts). There is little question on this score.
Rather, the central issue is whether, with respect to these operative facts, the Rytmans had an adequate opportunity to litigate all of their claims, RICO and otherwise, in the federal proceeding. We agree with the trial court that, in determining whether the Rytmans had such an opportunity, we should apply the test set forth in the Restatement (Second) of Judgments, § 25, comment (e). Under this test, "[w]hen the plaintiff brings an action on [a] claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction,
would clearly have declined to exercise it as a matter of discretion), CT Page 917 then a second action in a competent court presenting the omitted theory or ground should not be precluded." (Emphasis added.) 1 Restatement (Second),
supra, § 25, comment (e), p. 213. This test has been followed by numerous courts throughout the country.
(Emphasis in original.) Connecticut National Bank v. Rytman, 241 Conn. 24, 44, 694 A.2d 1246 (1997).
The plaintiff's argument, however, presupposes that two separate and distinct "theories" or issues were presented to Judge Underhill; one which was decided by that court, while the other was not decided as the court declined to hear it. The plaintiff's reliance on the Restatement in this regard is misplaced, as the federal district court had before it the same issues, based upon the same historical facts, as are before this court. In resolving the issues in the federal or state court, as previously herein discussed, the governing legal precedent that compelled Judge Underhill to grant the defendant's motion for summary judgment is the same legal precedent that governs this court's determination of a similar motion. Moreover, Judge Underhill anticipated the potential res judicata effect of that court's decision on the issues that the plaintiff presents to this court. In summary, the case before this court, but for the two incidents that occurred after the plaintiff was transferred to building maintenance, is based upon the same facts and presents the same issues that were actually litigated and necessarily determined by the federal district court. With regard to the discrimination and retaliation claims, the federal district court entered a valid and final judgment on issues that are identical to those raised by the plaintiff in this case. The doctrine of collateral estoppel precludes those issues, bars this court from considering them yet again, and compels this court to enter a summary judgment.
As noted, the plaintiff did not include in his federal complaint either the threats by his building maintenance supervisor or the "you're all done" comment by the director; he does, however, include both allegations in the complaint that is before this court. Clearly, the doctrine of collateral estoppel does not bar this court from considering those factual allegations, relative to, in particular, the issue of adverse employment action. Those allegations and the issue presented by them were not litigated or determined by Judge Underhill, because CT Page 918 the plaintiff, for reasons known only to himself and his attorneys, chose not to mention those two occurrences in his federal complaint, although they were known to the plaintiff and could have been included in Judge Underhill's consideration of the material facts that impacted that court's decision.
Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, "[u]nder the doctrine of res judicata, or claim preclusion, 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 . . .
(Citations omitted; internal quotation marks omitted.) (Emphasis in original.) Connecticut National Bank v. Rytman, supra, 241 Conn. 43-44.
Under the doctrine of res judicata, "a judgment is final, not only as to every matter, which was offered to sustain the claim, but also as to any other admissible matter, which might have been offered for that purpose." Morganti, Inc. v. Boehringer Ingelheims Pharmaceuticals, Inc., 20 Conn.App. 67, 72, 563 A.2d 1055 (1989). The plaintiff, having experienced the two occurrences some eighteen months before the filing of the second amended complaint in the federal action) might have and, in this court's view, should have, as part of the federal action, made the claim of adverse employment action based upon the aforementioned incidents. The plaintiff, therefore had an adequate opportunity to litigate this claim in the federal action and chose not to do so. The doctrine of res judicata serves as a bar to his doing so in this court and is a valid reason for the entry of a summary judgment.
A res judicata/collateral estoppel claim was considered by Judge Adams in McCall v. City of Danbury, Superior Court, judicial district of Danbury, Docket No. CV99 0334254 (January 11, 2001, Adams, J.), which is cited by the defendant in its CT Page 919 brief and attached thereto as Exhibit #11. Judge Adams took an approach substantially similar to that taken herein by this court. Id. In that case, McCall initially filed a complaint with the Connecticut Human Rights and Opportunities Commission, alleging that he was discriminated against, based on race and color, in that the city failed to hire him as a police officer. Id. He claimed that Danbury's hiring practices violated Title VII of the Civil Rights Act, 42 U.S.C. 2000e and General Statutes § 46a-60. Id. After the commission released jurisdiction, McCall filed an action in the federal district court, alleging the Title VII violation only. Id. In the federal action, Senior Judge Dorsey granted the city's motion to dismiss, or, in the alternative, for summary judgment, finding that there was no genuine issue of material fact, and that McCall was treated no differently than similarly situated white candidates.
In his subsequent state action, Judge Adams, after pointing out that, "the summary judgment process in federal courts is not unlike the procedure in Connecticut courts" granted the city's motion for summary judgment. Id. The court ruled that the doctrine of res judicata was, "an absolute bar," to the state action, as McCall had a fair opportunity to litigate the state issue in the federal action. Id. Judge Adams opined:
Compare Fed Rule of Civil Procedure 56 with Practice Book Sec. 17-49.
The fact that this claim was brought under General Statutes Sec. 46a-60 and the federal court claim under Title VII is of no moment. It is clear that the principles of res judicata and collateral estoppel apply to preclude relitigation in a state court that which has been, or
could have been, fully litigated in federal court.
Virgo v. Lyons, 209 Conn. 497, 501 (1998).
(Emphasis added.)
VII. SUMMARY JUDGMENT A. In General
As noted, the rules and court decisions relative to a motion for summary judgment are strikingly similar, if not identical, as to the manner in which said motion should be addressed in both the federal and state courts. In 1994, the Second Circuit instructed as follows: CT Page 920
Considering how often we must reverse a grant of summary judgment, the rules for when this provisional remedy may be used apparently need to be repeated. First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.
(Citations omitted.) Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2nd Cir., 1994).
In as to the manner in which Connecticut courts should address a motion for summary judgment, our Supreme Court has recently stated:
We first address the plaintiff's claim that a motion for summary judgment is an improper vehicle by which to test the legal sufficiency of a complaint.
fn4 Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him CT Page 921 to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46].
(Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000). Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
B. Summary Judgment: Discrimination/Retaliation Claims
In Gallo, the Second Circuit added a fifth factor that should be considered by the court in cases of alleged discrimination that have precipitated a motion for summary judgment:
Fifth, when deciding whether this drastic provisional remedy should be granted in a discrimination case, additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue. Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.
Gallo v. Prudential Residential Services, supra, 22 F.3d 1224.
A federal district court recently addressed the manner in which a summary judgment motion should be approached in a Title VII claim. The court, echoing the "burden shifting" approach stated:
The process for evaluating a Title VII claim at the summary judgment stage has been described recently as follows:
Even if the plaintiff succeeds in presenting a prima CT Page 922 facie case, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action. Upon the defendant's articulation of such a non-discriminatory reason for the employment action, the presumption of discrimination arising with the establishment of the prima facie case drops from the picture. For the case to continue, the plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action. In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.
Gupta v. City of Norwalk, 221 F.Sup.2d 282, 295 (2002).
The plaintiff argues that the summary judgment vehicle is ill-suited to dispose of a discrimination/retaliation case, as factual issues involving intent and feelings are implicated. Although this factor has been recognized by our Appellate Court, it also has been qualified:
While summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact.
(Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001). CT Page 923
Given the similar approaches to a summary judgment motion mandated by the federal Appellate Court and our appellate courts, this court is obligated to follow the same legal principles and factual considerations that resulted in Judge Underhill's decision to grant the defendant's motion dismissing the discrimination and retaliation counts. This court's consideration of the historical facts disclosed by each of the parties, however, is somewhat academic, in light of this court's ruling on the res judicata/collateral estoppel issue. Nevertheless, based on an examination of the pleadings and exhibits submitted by the parties, as to the first two counts of the plaintiff's complaint, this court finds that there was no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law.
This court agrees with the finding of the federal district court on both the discrimination and retaliation counts. Without repeating Judge Underhill's findings, suffice it to say that, reviewing the facts in a light most favorable to the plaintiff, the plaintiff cannot establish that the defendant operated a racially hostile work environment, nor can he establish that the defendant's reaction to the plaintiff's complaints of racial discrimination and harassment was actionable retaliatory conduct in that, but for the separation from employment issue, the plaintiff suffered no adverse employment action. There is, in this court's view, insufficient evidence that the defendant's workplace was permeated with such racial animosity so as to constitute the hostile environment referred to by Supreme Court in Harris and its progeny. The sporadic racial comments made by the plaintiff's coworker, although offensive, do not establish the racially hostile work environment alleged by the plaintiff. The photo incident was not motivated by race. Moreover, the plaintiff's complaints were, after a justifiable delay, fully and thoroughly investigated by a high level management team and resulted in appropriate and severe disciplinary action against the two supervisors and a stern warning to the offending coworker, as well as his ultimate transfer to another department. The plaintiff's transfer, with his consent, to the maintenance department, did not constitute a material change in the terms and conditions of his employment; thus, the plaintiff cannot, under all of the relevant facts, establish actionable retaliatory conduct by the defendant.
See affidavit of the director of human resources (Lenzer), dated June 21, 2005 and the attached exhibits A and B. Defendant's Exhibit #5.
This court, however will add a caveat to this finding, as CT Page 924 jurors could reasonably differ on whether or not the plaintiff's separation from his employment was, under all the circumstances, an adverse employment action. Thus, a material factual issue is presented by that occurrence, which, as noted, was not disclosed to Judge Underhill.
IX. DEFAMATION
As to the remaining three counts of the plaintiff's complaint, there is no res judicata/collateral estoppel issue, as none of the three remaining causes of action were considered by Judge Underhill and were specifically left to the state court to resolve in the event the plaintiff chose to pursue them in that venue. The relevant facts that support the remaining three counts involve the copying, enlarging and posting of the photos and the insertion of the bestiality comments.
In count three of his complaint, the plaintiff alleges that the conduct by the two supervisors in this regard constituted defamation under Connecticut law. Specifically, the plaintiff argues that the conduct amounted to libel per se, as it implied that the plaintiff was engaged in criminal activity because it implied that the plaintiff had sex with his dog. Arguing that the sole purpose of posting the photos with the inserted comments was to humiliate and ridicule the plaintiff for the amusement of the other employees, the plaintiff asserts that it should be left to a jury to decide whether, under all of the facts and circumstances, the defendant's conduct, through its management personnel, was defamatory. The defendant, in support of its motion for summary judgment, insists that the incident, although in poor taste, was a joke and could not possibly have been believed by the other employees. Notably, the defendant, in its brief, cites no Connecticut cases to support its position.
General Statutes § 53a-73a(a)(3) makes it a Class A misdemeanor to engage in sexual contact with an animal.
A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the CT Page 925 statement.
(Citations omitted, internal quotation marks omitted.) Gambardella v. Apple Healthcare, Inc., 86 Conn.App. 842, 848, 863 A.2d 735 (2004).
"Libel per se . . . is a libel [written statement], the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages." Id., 850. Libel that charges a crime clearly fits this category. "To fall within the category of libels that are actionable per se, because they charge crime, the libel must be one which charges a crime which involves moral turpitude . . ." (Emphasis added.) Id., 851.
It has been held that "moral turpitude involves an act of inherent baseness, vileness or depravity . . ." Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 845, 853; cert den'd 267 Conn. 901 (2005).
In this case, based on the relevant facts, viewed in a light most favorable to the plaintiff, a jury could reasonably find that all four of the factors required to establish a prima facie case of defamation are present. There is no question that the plaintiff was identified; he was in the photo. There is no question that the posting in the restrooms and on a bulletin board constituted publication. Reasonable persons, however, may differ as to whether the inserted statements were defamatory or as to what damages, if any, the plaintiff might have suffered. The latter two factors clearly present genuine issues of material facts and, therefore, do not support the entry of a summary judgment.
X. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Count five of the plaintiff's complaint alleges that the defendant engaged in conduct amounting to intentional infliction of emotional distress, and that, as a result of the humiliation he experienced, particularly, from the posting of the photo, he suffered a deterioration in his physical health, mental anguish and was compelled to undergo psychiatric care. The plaintiff argues that the determination of whether the facts support this cause of action under Connecticut law ought to be left to a jury, as reasonable minds could differ as to whether the bestiality implication was extreme and outrageous, or, as the defendant asserts, just a bad joke. The defendant, in support of its motion for summary judgment, citing Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002), argues that, in the workplace, particularly on a shop floor, employees should expect gossip, rivalries and personality conflicts to prevail. CT Page 926
Our Appellate Court has recently detailed the factors necessary to establish this cause of action, under Connecticut law:
In determining whether a plaintiff may maintain an action for intentional infliction of emotional distress, the plaintiff must establish four elements. 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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . 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 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.) Little v. Yale University, 92 Conn.App. 232, 239-40, 884 A.2d 427 (2005); see also Gagnon v. Housatonic Valley Tourism Comm., 92 Conn.App. 835 (2006).
In reviewing the facts in a light most favorable to the plaintiff, this court cannot conclude, as a matter of law, that the defendant should not have anticipated that the plaintiff would suffer emotional distress from the posting of the photo, CT Page 927 with the inserted comments. It should be left in jury to determine whether, under all the relevant circumstances, the conduct of the defendant, through its supervisors, was "outrageous" or simply a display of "bad manners." Summary judgment is not the appropriate vehicle to dispose of this count.
XI. FALSE LIGHT INVASION OF PRIVACY
In this action (count four) and in the federal action, the plaintiff specifically alleges invasion of privacy, by "false light." The plaintiff, however, does not confine the arguments in his brief to this last of the four categories of invasion of privacy recognized under Connecticut law. The plaintiff asserts that inappropriate comments about one's sex life have been held actionable by our courts, as evidenced by Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 066603 (February 4, 2000, Nadeau, J.) ( 26 Conn. L. Rptr. 368). The defendant argues that the posting of the editorialized photo was not and could not have been reasonably viewed by the other employees as factual assertions of the nature of the plaintiff's sex life and that the plaintiff admitted in his deposition that he didn't think anyone believed the allegations. Again, the defendant asserts that the offensive conduct was just a spoof in a shop environment.
In 1982, our Supreme Court, for the first time, recognized and established invasion of privacy as a cause of action in Connecticut. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). Referring to Prosser, Torts (4th Ed. 1971), 117, p. 802 and Restatement (Second), Torts, 652A, comment a, the court equated the right to privacy to "the right to be let alone." After acknowledging that three quarters of the states had, at that time, recognized a right of privacy, the court concluded that, in Connecticut, "privacy is a basic right entitled to legal protection." Id., 126. The court then pointed out that four distinct forms of invasion of one's privacy had been recognized, all of which were set forth in § 652A of the Restatement. The four categories are: "(1). Unreasonable intrusion upon the seclusion of another. (2). Appropriation of the other's name or likeness. (3). Unreasonable publicity given to the other's private life. (4). Publicity that unreasonably places the other in a false light before the public." (Emphasis added.) Id., 128. Paragraph forty-three of count four, entitled "false light invasion of privacy" states: "The written statements published by defendant alleging that plaintiff engaged in CT Page 928 bestiality placed plaintiff in a false light that is highly offensive to a reasonable person, thereby giving rise to a false light invasion of privacy." (Emphasis added.) Thus it is clear that the plaintiff is alleging that his cause of action is confined to the fourth category of actionable invasion of privacy. In Goodrich, the third count of the plaintiff's complaint asserted the claim of false light invasion of privacy. Our Supreme Court employed the applicable Restatement rule:
A number of state and federal courts have applied the Restatement rule that a false light invasion of privacy occurs if "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." 3 Restatement (Second), Torts 652E; see
Varnish v. Best Medium Publishing Co., supra;
Logan v. District of Columbia, 447 F.Sup. 1328, 1333 (D.D.C. 1978);
Dodrill v. Arkansas Democrat Co., 265 Ark. 628,
590 S.W.2d 840 (1979), cert. denied,
444 U.S. 1076,
100 S.Ct. 1024,
62 L.Ed.2d 759 (1980);
Harrison v. Washington Post Co., 391 A.2d 781, 784 (D.C.App. 1978);
McCormack v. Oklahoma Publishing Co., supra. This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, "or in other words, otherwise than as he is." 3 Restatement (Second), Torts 652E, comment b. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true;
id.; and (2) is such a "major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position."
Id., comment c.
Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131-32.
On the issue of the make up of "the public," before whom, the plaintiff would be placed, Judge Allander's recent decision is most instructive:
"In order to establish invasion of privacy by false CT Page 929 light, the plaintiff must show (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.)
Jonap v. Silver, 1 Conn.App. 550, 557-58 (1984) citing 3 Restatement (Second), Torts 652E; and
Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (1982). Liability for false light invasion of privacy is limited to situations in which the false information regarding the plaintiff is given publicity. 3 Restatement (Second), Torts 652E, comment a. "Publicity' . . . means that the matter is made public, by communicating it to the
public at large, or to so many persons that the matter must be regarded as substantially certain to become one of
public knowledge." 3 Restatement (Second), Torts 652D, comment a.
(Emphasis added.) Crist v. O'Keefe and Associates, Superior Court, complex litigation docket at Waterbury, Docket No. X06-CV01 0176326 (August 31, 2005, Alander, J.)
In the case before this court, the facts, viewed in a light most favorable to the plaintiff, would establish that the two supervisors posted copies of the photo, with the offensive comments thereon, on an employee bulletin board and in the rest rooms of a factory that employed two hundred persons. The photos were removed within an hour of their posting. Under those circumstances, the publication of the photos was neither directed at the public at large nor was it "substantially certain" to become the subject of public knowledge. A jury could reasonably find that the conduct was highly offensive and that the defendant, through its offending supervisors, knew that the plaintiff, as a result thereof, would be placed in a false light by the major misrepresentation of his character and activities. In this court's view, however, a jury could not reasonably find the "publicity" required by the Restatement and Connecticut law. Summary judgment is, therefore, an appropriate disposition of this count.
XII. ORDERS CT Page 930
Based upon the foregoing, the court will issue the following orders relative to the defendant's Motion For Summary Judgment (#103) filed July 29, 2005:
(1.) As to Count One (Discrimination), the defendant's motion is GRANTED on the grounds of res judicata and equitable estoppel, as there is no genuine issue as to any material fact.
(2.) As to Count Two (Retaliation), the defendant's motion is GRANTED on the grounds of res judicata and equitable estoppel, as there is no genuine issue as to any material fact.
(3.) As to Count Three (Defamation), the defendant's motion is DENIED, as there are genuine issues of material fact to be resolved.
(4.) As to Count Four (Invasion of Privacy by False Light), the defendant's motion is GRANTED, as, with regard to the" publicity," there is no genuine issue of material fact. In the alternative, the plaintiff has failed to state a cause upon which relief may be granted.
(5.) As to Count Five (Intentional Infliction of Emotional Distress), the defendant's motion is DENIED, as there are genuine issues of material fact to be resolved.