Karagozian v. USV Optical, Inc.
Karagozian v. USV Optical, Inc.
Opinion
*859 The plaintiff, Ohan Karagozian, appeals from the judgment rendered by the trial court subsequent to its granting of the motion to strike the complaint filed by the defendant, USV Optical, Inc. The substance of the plaintiff's claim on appeal is that the court improperly concluded that he had failed to state a claim for constructive discharge. 1 We disagree and affirm the judgment of the trial court.
The record discloses the following procedural history. The plaintiff commenced the present action on September 12, 2016. The operative complaint for purposes *860 of the present appeal is the corrected revised *503 complaint (complaint) filed on December 19, 2016.
The complaint alleged, in relevant part, that the plaintiff is an optician licensed in Connecticut and that the defendant owns and operates optical departments in JCPenney stores. Between June and October, 2014, the defendant employed the plaintiff as a licensed optician manager in the JCPenney store in Trumbull (store). From approximately June 28 through October 17, 2104, the defendant, acting through its supervisory personnel, required the plaintiff, as part of his duties, to provide optometric assistant services to the doctor of optometry in the store. The complaint further alleged that the duties the plaintiff was required to perform violated the public policies of the state, 2 which prohibit employees under the control of unlicensed third parties from performing services for licensed optometrists, 3 and prohibit *861 licensed opticians from performing the duties of an optometric assistant and providing services for optometrists by whom they are not employed. 4 The complaint also alleged that the duties the plaintiff was required to perform violated General Statutes § 31-130 (i), 5 which *504 requires that the defendant or the store have a staffing permit allowing either of them to provide staffing services to a "doctor." On September 20 and October 3 and 16, 2014, and on other dates, the plaintiff requested of the defendant's supervisory personnel that he not be required to perform the duties assigned to him. The defendant refused to excuse the plaintiff as he requested. As a result, the complaint alleged that the plaintiff was compelled to resign from his position and to suffer the attendant loss of income. Lastly, the complaint alleged that the defendant constructively discharged the plaintiff in violation of the public policy of the state. *862 The defendant filed a motion to strike the complaint on the grounds that (1) there is no private right of action for the claim alleged and (2) the complaint failed to allege a claim of constructive discharge. In its memorandum of law in support of its motion to strike, the defendant addressed each of the bases for the plaintiff's claimed violations of public policy and explained why none of them created a private right of action. The defendant argued that the only factual basis for the plaintiff's claim is the allegation that the defendant created an intolerable work environment by requiring him to provide optometric assistance services to the store doctor of optometry from the day his employment commenced. The defendant argued that it defies logic to claim that from the very first day of the plaintiff's employment the defendant intended to force him to resign.
The plaintiff opposed the motion to strike, arguing that "he was terminated because he declined to participate" in the duties he was required to perform and that such termination violated Connecticut public policy. He denied that the action was brought pursuant to § 31-130 (i) and the two administrative rulings; rather, he argued that the action sounds in the common-law exception to the at-will employment doctrine articulated in
Sheets
v.
Teddy's Frosted Foods, Inc.
,
*863
The defendant responded to the plaintiff's opposition by noting, in part, that the plaintiff failed to allege a claim for wrongful termination or wrongful discharge. Although the plaintiff asserted in his opposition to the motion to strike that "he was terminated because he declined to participate in ... activities and that such termination violated Connecticut public policy," the defendant correctly noted that the complaint specifically alleges that the "plaintiff was compelled to resign his position with the defendant." The defendant emphasized that it did not terminate the plaintiff's employment. The defendant also argued that the plaintiff misinterpreted the elements of a constructive discharge
*505
claim, noting that in
Brittell
v.
Dept. of Correction
,
The trial court heard oral argument on the defendant's motion to strike and issued a memorandum of decision on April 26, 2017, in which it granted the motion. The court relied on
Brittell
as the legal basis of its decision,
6
finding that the complaint insufficiently
*864
alleged both elements of constructive discharge. It bluntly stated that "[i]n no way" can the allegations fairly be construed to establish that the defendant
intentionally
created an intolerable workplace or that there was even an intolerable workplace that would compel a reasonable person to resign. The court concluded that although the complaint alleged constructive discharge in violation of public policy, the plaintiff had relied on cases dealing with wrongful termination of employment rather than constructive discharge. The plaintiff did not allege that he was wrongfully terminated in retaliation for refusing to participate in activities that violated the law. Cf.
Sheets
v.
Teddy's Frosted Foods, Inc.
, supra,
The plaintiff declined to replead and asked the court to render judgment in favor of the defendant. Following the entry of judgment, the plaintiff appealed. On appeal, the plaintiff claims that "[i]f an employer orders an employee to engage in illegal activity, and the employee resigns rather than break the law, the employee has been constructively discharged in violation of public policy and has a cause of action pursuant to the doctrine of Sheets ...." 7 Although the plaintiff acknowledges *506 *865 that Sheets is a wrongful termination case and that Faulkner is a wrongful retaliatory discharge case, he argues that in those cases, as in the present case, the employees were required to engage in illegal activity. He argues that whether an employer discharges an employee directly under the Sheets doctrine or constructively discharges the employee, the effect on the employee is the same and there cannot be any difference in the law's prohibition.
The defendant again contends in its appellate brief that the plaintiff failed to plead sufficient facts to support a claim for constructive discharge, noting that a plaintiff must allege that instead of firing an employee directly, the employer intentionally created "an intolerable work atmosphere that forces an employee to quit involuntarily." (Internal quotation marks omitted.)
Brittell
v.
Dept. of Correction
, supra,
We briefly review the applicable legal principles and our standard of review. "The purpose of a motion to
*866
strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted.... [S]ee Practice Book § 10-39. A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court.... We take the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.)
Vazquez
v.
Buhl
,
"The constructive discharge concept originated in the labor-law field in the [1930s]; the National Labor Relations Board ... developed the doctrine to address situations in which employers
*507
coerced employees to resign, often by creating intolerable working conditions, in retaliation for employees' engagement in collective activities.... Over the next two decades, Courts of Appeals sustained the [National Labor Relations Board's] constructive discharge rulings." (Citations omitted.)
Pennsylvania State Police
v.
Suders
,
In Connecticut, "[c]onstructive discharge of an employee occurs when an employer, rather than directly discharging an individual,
intentionally
creates an intolerable work atmosphere that forces an
*867
employee to quit involuntarily.... Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign....
Brittell
v.
Dept. of Correction
, [supra,
On the basis of our plenary review of the allegations in the complaint, we conclude that the trial court properly determined that the plaintiff failed to state a claim for constructive discharge. There is no allegation in the complaint that reasonably can be construed to claim
*868
that the defendant
intended
to create conditions so intolerable that a reasonable person would be compelled to resign. See
Brittell
v.
Dept. of Correction
, supra,
The plaintiff in
Sheets
was employed as the quality control director and operations manager of Teddy's Frosted Foods, Inc., a producer of frozen food products.
Sheets
v.
Teddy's Frosted Foods, Inc.
, supra,
In
Faulkner
, our Supreme Court noted that in
Sheets
it stated that, "an employee should not be put to an election whether to risk criminal sanction or to jeopardize his continued employment." (Internal quotation marks omitted.)
Faulkner
v.
United Technologies Corp.
, supra,
For the foregoing reasons, we conclude that the trial court properly granted the defendant's motion to strike. The plaintiff failed to allege that the defendant intended to create an intolerable work atmosphere that would compel a reasonable person to resign involuntarily. 15
*873 The judgment is affirmed.
In this opinion the other judges concurred.
In his appellate brief, the plaintiff presented the following issue: "If an employee is ordered by his employer to engage in illegal activities and refuses to do so, and thereafter the employer on multiple occasions refuses to excuse [the employee] from the requirement of engaging in the said illegal activities, whereupon the employee resigns rather than violate the law, does the employer's conduct constitute constructive termination of employment in violation of public policy?"
The defendant contends that the issue presented by the plaintiff is a hypothetical one. We review the claim on the basis of the judgment from which the plaintiff has appealed and the underlying procedural facts.
The complaint alleged that the defendant required the plaintiff to perform the following duties: obtain and record a patient's preliminary case history; maintain records; schedule appointments, perform bookkeeping, correspondence and filing; prepare patients for vision examinations; assist in tests for near and far acuity, depth perception, macula integrity, color perception, and visual field, utilizing ocular testing apparatus; instruct patients in care and use of glasses and contact lenses; work with patients in vision therapy; assist patients in frame selection; adjust and repair glasses; modify contact lenses; maintain an inventory of materials and cleaning instruments; assist in fabrication of glasses and contact lenses; test and measure patients' acuity, peripheral vision, depth perception, focus, ocular movement and color as requested by the doctor; measure intraocular pressure of eyes using glaucoma test ; measure axial length of eye, using ultrasound equipment; examine eyes for abnormalities of cornea and anterior or posterior chambers using slit lamp ; apply drops to anesthetize, dilate or medicate eyes; instruct patients in eye care and use of glasses or contact lenses; adjust and repair glasses using screwdrivers and pliers; and take money from patients and record only those payments that are made with credit card and check on the store cash register inside the optical store while keeping tendered cash receipts from patients in an envelope under the cash drawer.
The complaint alleged that the public policy is articulated in a declaratory ruling issued by the Connecticut Board of Examiners for Optometrists on May 1, 2002, titled In re Petition of Lawrence Lefland, O.D. , which was attached to the complaint as an exhibit. The plaintiff was not a party to the declaratory ruling, which concerns optometrists. The plaintiff alleged that he is a licensed optician.
The complaint alleged that the public policy is articulated in a cease and desist consent order issued jointly by the Connecticut Board of Examiners for Optometrists and the Connecticut Board of Examiners for Opticians in February, 2006, in regard to petition number 2003-0321-003-003. The cease and desist order was attached to the complaint as an exhibit. The plaintiff was not a party to the cease and desist order.
The complaint alleged that the relevant public policy is set forth in General Statutes § 31-130 (i), which provides: "No person shall engage in the business of procuring or offering to procure employees for persons seeking the services of employees or supplying employees to render services where a fee or other valuable thing is exacted, charged or received from the employer for procuring or assisting to procure or supplying such employees unless he registers with the Labor Commissioner. Application for such registration or for the annual renewal of such registration shall be on forms furnished by the commissioner and shall be accompanied by a fee of one hundred fifty dollars."
"[T]he policy behind General Statutes §§ 31-129 to 31-131c is to protect individual applicants (prospective employees) from unscrupulous employment agencies."
Monaco
v.
Turbomotive, Inc.
,
In
Brittell
, our Supreme Court was presented with a claim of sexual harassment in violation of General Statutes §§ 46a-60 (a) (1) and (8) and 46a-70.
Brittell
v.
Dept. of Correction
, supra,
The issue before our Supreme Court in
Sheets
was "whether to recognize an exception to the traditional rules governing employment at will so as to permit a cause of action for wrongful discharge where the discharge contravenes a clear mandate of public policy."
Sheets
v.
Teddy's Frosted Foods, Inc.
, supra,
"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." (Internal quotation marks omitted.)
Thibodeau
v.
Design Group One Architects, LLC
,
In
Petrosino
v.
Bell Atlantic
,
The plaintiff claims that this is an issue of first impression. He did not, however, raise this claim in the trial court when he opposed the defendant's motion to strike. The trial court, therefore, did not have an opportunity to address it.
Whidbee
concerned claims of a hostile work environment and constructive discharge brought pursuant to
A fuller reading of
Pennsylvania State Police
, a hostile work environment case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., discloses the following analysis. "The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, we reiterate ... the offending behavior must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.... A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e.g.,
Breeding
v.
Arthur Gallagher & Co.
,
Pennsylvania State Police
concerned "an employer's liability for one subset of Title VII constructive discharge claims: constructive discharge resulting from sexual harassment, or hostile work environment, attributable to a supervisor." (Internal quotation marks omitted.)
Pennsylvania State Police
v.
Suders
, supra,
We need not determine whether the duties the plaintiff was assigned violated public policy. But see footnotes 3, 4 and 5 of this opinion.
In
Faulkner
, the defendant, United Technologies Corporation, claimed that the plaintiff could not state a cause of action pursuant to
Sheets
because his complaint was not grounded in a state law or public policy. See
Faulkner
v.
United Technologies Corp.
, supra,
The Commission on Human Rights and Opportunities (commission) submitted an amicus curiae brief. In its brief, the commission asserted that it is responsible for investigating complaints that invoke the constructive discharge theory and has an interest in decisions that may affect its decision-making responsibilities. With respect to the present appeal, the commission claims that the decision of the trial court is unclear and subject to different interpretations. It, therefore, asks this court to address whether an employer's intent to create an intolerable work atmosphere is a necessary element of a constructive discharge claim. It argues that our Supreme Court attempted to resolve the role of an employer's intent in
Brittell
v.
Dept. of Correction
, supra,
The commission recognizes the plaintiff's argument that "a more sensible reading of
Brittell
would conclude that it is the intent to create the work atmosphere in question that matters, rather than an intent that such atmosphere should force an employee to resign." It acknowledges, however, that the most recent constructive discharge decision of this court is
Horvath
v.
Hartford
, supra,
We decline the commission's request. As an intermediate court of appeal, we are "unable to overrule, reevaluate, or reexamine controlling precedent of our Supreme Court." (Internal quotation marks omitted.)
State
v.
Brantley
,
Reference
- Full Case Name
- Ohan KARAGOZIAN v. USV OPTICAL, INC.
- Cited By
- 2 cases
- Status
- Published