1994 Conn. Super. Ct. 5536 | Conn. Super. Ct. | 1994
A. Paragraphs 11-13 of the First Count
The defendant moves to strike paragraphs eleven through thirteen of the first count on the ground of legal insufficiency. "A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]." (Citations omitted.) The Grove Corporation v. Tinity,
may not be addressed to separate paragraphs of the pleadings, for it is the total of a pleading [or count thereof] not the individual paragraphs, which must set up a cause of action or defense. A [motion to strike] will be sustained only when the pleading as a whole [or count thereof] fails to state a cause of action or defense; no separate paragraph thereof is by itself demurrable.
Ahan v. Olsen,
In paragraphs eleven through thirteen, the plaintiff alleges that following his termination he was not rehired by the defendant for an available position similar to his previous position, which allegedly was eliminated by the defendant. The defendant argues that paragraphs eleven through thirteen allege a separate cause of action for discriminatory failure to rehire, which, the defendant argues, is not covered under General Statutes §
General Statutes §
No employer who is subject to the provisions of this CT Page 5538 chapter shall discharge, or cause robe discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised his rights afforded to him pursuant to the provisions of this chapter.
In Chiaia v. Pepperidge Farm, Inc.,
[i]n order to establish a prima facie case under General Statutes
31-290a , the plaintiff bears the initial burden of demonstrating discrimination by a preponderance of the evidence. . . . The plaintiff must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employee because he or she had exercised his or her rights under the Workers' Compensation Act. . . . Without some proof of an improper motive, a plaintiff's case must fail.
(Citations omitted.)
The allegations that the defendant advertised for a similar position, after informing the defendant that his position had been eliminated, and failed to consider the plaintiff's application even though the plaintiff had previously been rated by the defendant as an excellent employee, if proven, would be relevant to the plaintiff's burden of showing that the defendant discharged the plaintiff with an improper motive, and could indicate that the initial discharge was pretextual. These paragraphs do not set forth a separate and distinct cause of action, but add to the retaliatory discharge cause of action set forth in the first count. Because these paragraphs do not set forth a separate and distinct cause of action, the defendant's motion to strike paragraphs eleven through thirteen of the first count are denied. See Jaramillo v. Adis,
B. Motion to Strike the Second Count
The defendant moves to strike the second count, which alleges a cause of action for breach of an implied covenant of CT Page 5539 good faith and fair dealing, on the ground that this count is legally insufficient because the plaintiff has alleged a statutory remedy, namely General Statutes §
"A cause of action in tort for wrongful discharge or in contract for the breach of the covenant of good faith and fair dealing exists where the discharge contravenes a clear mandate of public policy." (Internal quotation marks omitted.) Poulousv. Pfizer, Inc.,
[a] finding that certain conduct contravenes public policy is 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.
Atkins v. Bridgeport Hydraulic Company,
As noted by the supreme court, an action for retaliatory discharge pursuant to General Statutes §
/s/ Sylvester, J. SYLVESTER