299 F.Supp.2d 29 (2004) | Cited 4 times | D. Connecticut | January 12, 2004

Memorandum Decision

Plaintiff, ANN MARIE IOSA, has filed a multi-count complaint againsther former employer Defendant, GENTIVA HEALTH SERVICES, INC., assertingvarious claims arising out of the termination of her employment byDefendant. Defendant now moves this Court to dismiss [Doc. # 7] countstwo, three, and four of Plaintiff's complaint for failure to state aclaim upon which relief may be granted. Rule 12(b)(6), Fed.R.Civ.P. Asdiscussed below, Defendant's motion to dismiss will be granted.

Motion to Dismiss Standard

The function of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is toassess the legal sufficiency of the complaint. Ryder Energy Distrib.Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). Thus, "[t]he issue is not whether a plaintiff will ultimatelyprevail but whether the claimant is entitled to offer evidence to supportthe claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A motion to dismiss should not be granted for failure toPage 2state a claim unless is appears beyond doubt, even when the complaint isliberally construed, that the plaintiff can prove no set of facts thatwould entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46(1957); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2dCir. 1997). In ruling on a motion to dismiss, the Court is limited to thefacts set forth in the complaint, any documents attached thereto orincorporated by reference, and matters of which the Court may takejudicial notice. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085,1088, 1092 (2d Cir. 1995); Kramer v. Time Warner Inc., 937 F.2d 767, 773(2d Cir. 1991). Accordingly, the facts set forth below are taken directlyfrom Plaintiff's complaint.

Plaintiff's Allegations

In March 2002, Plaintiff was hired as an account representative forDefendant's Connecticut territory. (Compl. at ¶ 3.) During heremployment, her performance met or exceeded the minimum requirements ofthe job. (Id. at ¶ 4.) From the time of her hire until January 2003,Defendant consistently praised her performance and never disciplinedher. (Id. at ¶¶ 5-6.)

In mid-January, Plaintiff complained to her supervisor, Josie McQuay,about Defendant's failure to properly reimburse her for work-relatedexpenses. When Plaintiff was unable to resolve this problem throughMcQuay, she contacted Defendant's human resources department. (Id. at¶ 7.) This angered McQuay, whoPage 3accused Plaintiff of "going over [her] head." (Id. at ¶ 8.)

About the same time, Plaintiff requested that McQuay provide her with alist of physicians approved by Defendant's worker's compensation carrierbecause Plaintiff needed treatment for a work-related injury, the detailsof which are not revealed in the complaint. (Id. at ¶ 9.) Plaintiffhad to request this information several times before McQuay responded.(Id.) As a result of this work-related injury, Plaintiff was placed onlight duty by her treating physician for a period of three weeks. (Id. at¶ 10.)

On January 31, 2003, McQuay placed Plaintiff on a "performanceimprovement plan." In a memorandum, which is not attached to thecomplaint, McQuay stated that there were "serious concerns" aboutPlaintiff's performance and "further alleged that Plaintiff had falsifiedexpense reports." (Id. at ¶ 11.) Plaintiff asserts that theseallegations were false and were known by McQuay to be false and were madefor the purpose of harming Plaintiff's reputation. (Id. at ¶¶ 12, 13.)Copies of this memorandum were placed in Plaintiff's personnel fileand/or disseminated to other employees of Defendant. (Id. at ¶ 14.)

On March 6, 2003, McQuay spent the day with Plaintiff, accompanying heron her sales calls. At lunch, McQuay attempted to discipline Plaintiff ata public place within earshot of others. (Id. at ¶ 15.) Plaintifftold McQuay that she wasPage 4offended and humiliated by this treatment and left the restaurant.(Id. at ¶ 16.) Following this incident, Defendant terminatedPlaintiff allegedly because of the performance improvement plan and therestaurant incident, in which McQuay accused Plaintiff of behavinginappropriately. (Id. at ¶ 17.)

In the first count, Plaintiff alleges that the exercise of her rightsunder the worker's compensation statute was a factor in Defendant'sdecisions to place her on a performance improvement plan, disciplineher, and terminate her employment, in violation of the anti-retaliationprovisions of the Worker's Compensation Act, Conn. Gen. Stat. §31-290a. (Id. at ¶ 19.) In the second count, Plaintiff claims thather termination was in retaliation for her internal complaint that shehad not been properly reimbursed for employment-related expenses, whichbreached a covenant of good faith and fair dealing implied in heremployment contract. (Id. at ¶¶ 23-24.) Plaintiff asserts in countthree that her termination was contrary to clearly established publicpolicy. (Id. at ¶ 26.) Finally, in count four, Plaintiff contends thatDefendant's conduct constituted defamation per quod and/or defamation perse. (Id. at ¶ 28.)


Although Defendant vigorously contests the factual predicate forPlaintiff's claim of worker's compensation retaliation, it concedes thePlaintiff has adequately alleged a violation ofPage 5Conn. Gen. Stat. § 31-290a so as to withstand a motion to dismiss.However, as to the remaining counts, Defendant argues that theavailability of a remedy for retaliation under the worker's compensationstatute precludes Plaintiff, as a matter of law, from recasting her claimas one for wrongful discharge, whether in tort or contract. Moreover,even if Plaintiff did not have this statutory remedy available to her,Defendant asserts that her factual claims cannot support a wrongfuldischarge action given her status as at-will employee. Lastly, Defendantmaintains that Plaintiff has failed to set forth the necessary elementsof a cause of action for defamation.

I. Whether the Availability of a Statutory Remedy for RetaliationPrecludes a Common-Law Claim for Wrongful Discharge

Initially, Defendant argues that Plaintiff's wrongful discharge claimsin counts two and three must be dismissed because Plaintiff has availableto her an adequate remedy under the worker's compensation statute forretaliation. This Court has dismissed other wrongful discharge claimsbought under the auspices of Sheets v. Teddy's Frosted Foods, Inc.,179 Conn. 471, 474 (1980), because the plaintiff had other statutoryremedies available. See Dallaire v. Litchfield County Ass'n for RetardedCitizens, Inc., No. 3:00CV01144(GLG), 2001 WL 237213 (D. Conn. Feb. 12,2001); Carvalho v. International Bridge & Iron Co., No.3:99CV605(PCD), 2000 WL 306456, at **6, 7 (D. Conn. Feb. 25, 2000);Venterina v. Cummings & Lockwood, 117 F. Supp.2d 114,Page 6118-19 (D. Conn. 1999).

In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 648,501 A.2d 1223, 1226 (1985), the Connecticut Court of Appeals held: A finding that certain conduct contravenes public policy in not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.See also Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 160-63 (2000);Carvalho, 2000 WL 306456, at *6 (citing cases where a wrongful dischargeclaim has been dismissed because the plaintiff had an adequate statutoryremedy); Contois v. Carmen Anthony Restaurant Group, LLC, No.CV000160287, 2001 WL 195396, at *2 (Conn. Super. Ct. Feb. 2, 2001).Generally, however, those cases have involved claims where the onlypublic policy allegedly violated was embodied in the very statute underwhich another claim had been raised or could have been raised.

In this case, in addition to alleging retaliation under the worker'scompensation statute, Plaintiff has asserted that Defendant's terminationof her employment violated the "important public policy" that "anemployee be permitted to complain to her employer regarding theemployer's failure to properly compensatePage 7or reimburse the employee for services performed or expenses incurred inpursuit of said services, without fear of retaliation." (Compl. at ¶22.) Although Plaintiff has asserted a statutory claim under Conn. Gen.Stat. § 31-290a, that claim does not embrace all of the public policyarguments raised in her wrongful discharge counts. See Kennedy v.Coca-Cola Bottling Co., 170 F. Supp.2d 294, 300-01 (D. Conn. 2001).Accordingly, Defendant's motion to dismiss is denied on this ground.1

II. Whether Counts Two and Three Should Be Dismissed for Failureto State a Claim Upon Which Relief May Be Granted

Plaintiff, an employee at will,2 has asserted two claims forwrongful discharge — i.e., that her termination breached an impliedcovenant of good faith and fair dealing, and that herPage 8termination violated an important public policy. Defendant arguesthat both of these claims must be dismissed because Plaintiff has failedto allege facts that would support a claim for wrongful discharge undereither theory.

The traditional rule in Connecticut governing employment at willcontracts of permanent employment, or employment for an indefinite term,is that such contract are terminable at the will of either party withoutregard to cause. Coelho v. Posi-Seal Internat'l, Inc., 208 Conn. 106,117-18 (1988). In a very recent decision by the Connecticut SupremeCourt, Cweklinsky v. Mobil Chemical Co., No. 16846, 2003 WL 23019184(Conn. S.Ct. Jan. 6, 2004), the Court reiterated its adherence to the"well established doctrine of employment at will."

In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. . . . Consequently, in the absence of an employment contract, or an illegal discriminatory motive, an employer has the right to terminate an employee at any time without liability.Id. (quoting Thibodeau, 260 Conn. at 697-98) (internal citations andquotation marks omitted).

Although the Connecticut Supreme Court has recognized an exception tothe at-will employment doctrine where the reason for the employee'stermination violated an important public policy,Page 9see Sheets v. Teddy's Frosted Foods, 179 Conn. at 476, the Court hasrepeatedly emphasized the narrowness of the exception.

In interpreting this exception, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . .Burnham, 252 Conn. at 159 (internal citations and quotation marksomitted); see also Thibodeau, 260 Conn. at 701 (noting that the Court hasrejected claims of wrongful discharge that have not been predicated uponan employer's violation of "an important and clearly articulated publicpolicy"). Therefore, an employee who claims that his or her terminationviolated public policy bears a heavy burden or proving of violation of"an important public policy." Cimochowski v. Hartford Public Schools,261 Conn. 287, 306 (2002) (original emphasis); see also Morris v.Hartford Courant Co., 200 Conn. 676, 679 & n.2 (1986).

In count two Plaintiff alleges that Defendant breached an impliedcovenant of good faith and fair dealing when it terminated her. TheConnecticut Supreme Court has recognized that every contract carries withit an implied covenant of good faith and fair dealing requiring thatneither party do anything that will injure the right of the other toreceive the benefits of the agreement. Habetz v. Condon, 224 Conn. 231,238 (1992). "The implied covenant of good faith and fair dealing operatesto `fulfill the reasonable expectations of the contracting partiesPage 10as they presumably intended.'" Rose v. James River Paper Co.,2 F. Supp.2d 245, 255 (D. Conn. 1998) (quoting Magnan v. AnacondaIndustries, Inc., 193 Conn. 558, 567 (1984)).

An employee can bring a cause of action for breach of an impliedcovenant of good faith and fair dealing in an employment contract even ifthe employment is at-will. Magnan, 193 Conn. at 568-72. To establish sucha claim when the employment is at-will, an employee must establish thathis or her termination was for a demonstrably improper reason, theimpropriety of which is derived from a violation of some important publicpolicy. Rose, 2 F. Supp.2d at 254. Thus, in cases such as this, where thebreach of implied covenant claim is based on the same public policyviolation as the wrongful discharge tort claim, the courts have treatedthe two claims as contemporaneous and co-extensive and, thus, haveconsidered them together. See Jarrett v. Community Renewal Team, Inc.,No. CV020816341S, 2003 WL 1962835, at *1 (Conn. Super. Ct. Apr. 3,2003); Contois, 2001 WL 195396, at *3. The decisive issue with respect toboth counts is whether the allegations of the complaint are sufficient tosupport a claim that the plaintiff's discharge was in violation of animportant and clearly articulated public policy. See Thibodeau, 260Conn. at 701.

In this case, the public policy allegedly implicated is the right of anemployee to complain to an employer about improperPage 11reimbursement of work-related expenses without fear of retaliation.3"In evaluating [such] claims, [we] look to see whether the plaintiff has. . . alleged that his [or her] discharge violated any explicit statutoryor constitutional provision . . . or whether he [or she] alleged that his[or her] dismissal contravened any judicially conceived notion of publicpolicy." Thibodeau, 260 Conn. at 698-99.

___ Here, Plaintiff has not alleged a violation of any explicitstatutory or constitutional provision. Therefore, the sufficiency ofPlaintiff's second and third counts depends on whether Plaintiff hasalleged that her termination contravened any judicially conceived notionof public policy. Plaintiff has not pointed to any judicial precedentthat recognizes the right of an employee to complain about improperexpense reimbursements, and we find no precedent that would warranttreating this alleged "right" as sufficiently important to carve outanother exception to the employment at-will doctrine. The ConnecticutSupreme Court has cautioned that "courts should not lightly intervene toimpair the exercise of managerial discretion or to fomentPage 12unwarranted litigation." Parsons v. United Technologies Corp.,243 Conn. 66, 79 (1997).

Indeed, in cases far more compelling than this one, the Connecticutcourts have refused to expand the "public policy exception" to theemployment at-will doctrine. See, e.g., Thibodeau, 260 Conn. at 694(holding that a common-law claim for wrongful discharge will not lieagainst employers with less than three employees, thus not covered byConnecticut's Fair Employment Practices Act, Conn. Gen. Stat. §46a-60, who discharge their employees on the basis of pregnancy); Daleyv. Aetna Life & Casualty Co., 249 Conn. 766 (1999) (refusing toextend the public policy embodied in the state and federal Family andMedical Leave Acts to require an employer to accommodate a parent'swork-at-home requests and, thus, dismissing plaintiff's wrongfuldischarge claim based on a violation of this alleged public policy);Burnham, 252 Conn. at 160 (refusing to extend the protections of thestate whistleblower statute, Conn. Gen. Stat. § 31-51m, to anemployee who was terminated for reporting defendants' unsafe dentalpractices to a dental association, because the dental association was nota "public body" under § 31-51m(b) and, therefore, dismissingplaintiff's wrongful discharge claim based on this public policy); Morrisv. Hartford Courant, 200 Conn. 680 (holding that a false but negligentlymade accusation of criminal conduct as a basis for dismissal was not aPage 13"demonstrably improper reason" when the employer was not statutorilyobligated to investigate the veracity of the allegation); Jarrett, 2003WL 1962835 (refusing to extend the public policies of the state Familyand Medical Leave Act to cover a discharge that was not a prohibited actenumerated under Conn. Gen. Stat. § 31-51pp, nor a violation of theleave policy under Conn. Gen. Stat. § 31-5111).

Therefore, because we find that Plaintiff has failed to allege that hertermination violated a public policy that is sufficiently important tocarve out an exception to the employment at-will doctrine, we grantDefendant's motion to dismiss counts two and three for failure to state aclaim.

III. Whether Plaintiff Has Set Forth a Claim for Defamation

___ Plaintiff's fourth count asserts a claim for defamation arising outof McQuay's memorandum regarding the performance improvement plan, whichstated that there were "serious concerns" about Plaintiff's performanceand that Plaintiff had falsified expense reports. Plaintiff alleges thatMcQuay knew the statements were false, that she made the statements forthe purpose of harming Plaintiff's reputation, and that copies of thememorandum were placed in Plaintiff's personnel file and/or disseminatedto other employees. (Compl. at ¶¶ 11-14.) She also alleges that McQuayattempted to discipline her in a public restaurant in the presence ofother customers, which made herPage 14feel humiliated and offended. (Id. at ¶¶ 15-16.)

Although Plaintiff has not attached a copy of the McQuay memorandum toher complaint, Defendant has provided it as an attachment to its motionto dismiss. Although normally we are limited to the allegations of thecomplaint and documents attached thereto in ruling on a motion todismiss, we may consider the memorandum in this instance because it formsthe basis for Plaintiff's defamation claim. "[W]hen a plaintiff choosesnot to attach to the complaint or incorporate by reference a [document]upon which [she] solely relies and which is integral to the complaint,"the Court may nevertheless take the document into consideration indeciding the defendant's motion to dismiss, without converting theproceeding to one for summary judgment. International Audiotext Network,Inc. v. American Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995);Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).

The memorandum on which Plaintiff relies is a garden-varietyperformance memorandum from a supervisor to an employee with copies toother management personnel. The memorandum states: Pursuant to our Team Meeting on December 18, 2002 and previous discussions with you, there are serious concerns regarding your performance as it relates to call reporting and lack of timeliness with you assignments. These concerns about your performance reflect in your role as an Account Executive with Gentiva Health Services.The memorandum then details the problems with Plaintiff'sPage 15untimely and incomplete reports, or reports that were never received.

With respect to Plaintiff's expense reports, the memorandum states

I have had to correct several of your mistakes on your expense reports regarding your mileage and your overall total when adding up your sub-total line to your grand total line. On one occasion you submitted a mileage total of 362 miles to Waterbury CT. As I reviewed prior miles submitted to Waterbury CT. — you submitted 73 miles on prior reports. When I asked you about this error — you said "Oh change it" [.] On another expense report, you submitted expenses for an additional $200.00 in expenses that were not incurred. When I asked you about this, your reply was "oh it must have been an oversight"[.]The memorandum then discusses the specifics of the 30-day performanceimprovement plan and the need for Plaintiff to improve her performanceand address McQuay's concerns.

Under Connecticut law, a defamatory statement is defined as acommunication that tends to "harm the reputation of another as to lowerhim in the estimation of the community or to deter third persons fromassociating or dealing with him. . . ." QSP, Inc. v. Aetna Casualty& Surety Co., 256 Conn. 343, 356 (2001) (quoting 3 Restatement(Second) Torts § 559 at 156 (1977)) (internal quotation marksomitted). To establish a prima facie case of defamation, a plaintiff mustdemonstrate that: (1) thePage 16defendant published a defamatory statement; (2) the defamatory statementidentified the plaintiff to a third person; (3) the defamatory statementwas published to a third person; and (4) the plaintiff's reputationsuffered injury as a result of the statement. Id.; W. Prosser & W.Keeton, Torts § 113 at 802 (5th ed. 1984); see also Torosyan v.Boehrinqer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27 (1995)(holding that in order to state a claim for defamation, a plaintiff mustallege that the defendant published false statements that harmed theplaintiff and that the defendant was not privileged to do so).

The memorandum from McQuay to Plaintiff is not defamatory. Thestatement that there were "serious concerns" about Plaintiff sperformance is an opinion by McQuay about the adequacy of Plaintiff'swork. "A statement can be defined as factual if it relates to an event orstate of affairs that existed in the past or present and is capable ofbeing known. . . . An opinion, on the other hand, is a personal commentabout another's conduct, qualifications or character that has some basisin fact." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107,111 (1982) (internal citations and quotation marks omitted). Clearly,this was an expression of McQuay's opinion about Plaintiff'sperformance. Expressions of opinion cannot as a matter of law bedefamatory. See Perruccio v. Arseneault, 7 Conn. App. 389, 394 (1986);Torok v. Proof, No. CV 90 0113204,Page 171993 WL 28878, at *2 (Conn. Super. Ct. Feb. 1, 1993). Moreover, even ifthis statement by McQuay could be considered a statement of fact,Plaintiff cannot prove that this statement was untrue for the memorandumitself supports the statement that there were concerns.

With respect to Plaintiff's allegation that McQuay accused her offalsifying her expense reports, the memorandum itself negates this claim.In the memorandum McQuay never accused Plaintiff of falsifying expensereports. Instead, McQuay merely set forth errors that Plaintiff had madein her expense reports, which, with Plaintiff's acquiescence, werecorrected. There can be no claim of defamation in the absence of a falsestatement of fact.

Last, to the extent that Plaintiff relies on McQuay's attempteddiscipline of Plaintiff in a public place in the presence of othercustomers to support her claim for defamation, Plaintiff has failed toidentify any specific defamatory statements made by McQuay and hasfurther failed to allege that her reputation was damaged in any way bythe attempted discipline. See Johnson v. Chesebrough-Pond's USA Co.,918 F. Supp. 543, 551 (D. Conn.), aff'd, 104 F.3d 355 (2d Cir. 1996).These allegations do not support a claim for defamation.

Accordingly, Plaintiff's defamation claim set forth in the fourth countis dismissed.Page 18


For the reasons set forth above, Defendant's Motion to Dismiss CountsTwo, Three, and Four [Doc. # 7] is GRANTED.


1. The Court notes that Plaintiff has incorporated into counts two andthree all of the preceding paragraphs of her complaint. To the extentthat she seeks to rely on the public policy of prohibiting employers fromretaliating against employees who exercise their rights under theworker's compensation statutes, those wrongful discharge claims would bebarred because Plaintiff has an adequate statutory remedy under Conn.Gen. Stat. § 31-290a. See Menard v. People's Bank, No. CV970544627S,1998 WL 177536, at *2 (Conn. Super. Ct. Apr. 6, 1998).

2. "In Connecticut, an employer and employee have an at-willemployment relationship in the absence of a contract to the contrary."Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697 (2002)(internal citations and quotation marks omitted). Although Plaintiff doesnot characterize her employment as "at-will," no contract to the contraryhas been alleged, and Plaintiff has not disputed Defendant's assertionthat she was an at-will employee.

3. Although Plaintiff has alleged a broader public policy involving anemployee's right to complain about improper compensation, Plaintiff hasnot alleged that she ever made such complaints or that her compensationwas in any way improper or incorrect. Her only allegation is that shecomplained "about the Defendant's failure to properly reimburse her forwork-related expenses that she had incurred." (Compl. at ¶ 7.)Page 1

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