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DOCKET NO. CV-20-6104872-S : STATE OF CONNECTICUT
:
CUTRICE CALHOUN : SUPERIOR COURT
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: JUDICIAL DISTRICT OF NEW HAVEN
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V. : AT NEW HAVEN
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GOODWILL INDUSTRIES OF :
SOUTHERN NEW ENGLAND, INC. : JULY 26, 2021
MEMORANDUM OF DECISION
MOTION TO STRIKE (#108)
STATEMENT OF CASE AND PROCEDURAL HISTORY
On June 5, 2020, the plaintiff, Cutrice Calhoun, commenced this action by service of
process against the defendant, Goodwill Industries of Southern New England, Inc. In the
operative pleading, the plaintiff’s second revised complaint filed on October 16, 2020 (#106), the
plaintiff alleges the following relevant facts. The plaintiff, an African American and/or black
woman, was employed by the defendant as an assistant store manager from January 25, 2015 to
March 10, 2020. Even though the plaintiff holds two different master’s degrees (a master’s of
science in management and a master’s in business administration), the plaintiff was treated less
favorably than Caucasian/white employees who had less training, education and experience than
her. Specifically, during the time period from September 4, 2018 to March 10, 2019, the
defendant’s upper management, both of whom were white males, refused to promote the plaintiff
to the position of store manager. Instead, they advanced a white/Caucasian woman who was less
qualified. As justification for this action, the defendant’s management indicated that the plaintiff
was not the “right fit.” The plaintiff contends this explanation was a pre-text for the defendant’s
illegally discriminatory actions. Additionally, during this same timeframe, and over a period of
several months, the plaintiff was forced to work eight straight hours in a day without a lunch
1
break. As a result of this conduct on the part of the defendant, the plaintiff alleges that she was
“forced to resign and/or constructively discharge[d] due to discrimination on the basis of race,
color and hostile work environment.” The plaintiff further contends that she has experienced
severe emotional distress, including physical manifestations of this distress, because of the
defendant’s actions.
In her operative complaint, the plaintiff sets forth the following causes of action against
the defendant: (1) count one—discrimination on the basis of race and color in violation of
General Statutes § 46a-60 (b) (1) (CFEPA); 1 count two—discrimination on the basis of race and
color in violation of 42 U.S.C. § 2000e et seq. (Title VII);2 count three—intentional infliction of
emotional distress and count four—negligent infliction of emotional distress. The plaintiff’s
prayer for relief seeks damages and other relief the court deems equitable in order to remedy the
defendant’s allegedly wrongful conduct.
On November 16, 2020, the defendant filed a motion to strike all four counts of the
plaintiff’s operative complaint (#108) along with a memorandum of law in support of its motion
(#109). The plaintiff filed a memorandum of law in opposition to the defendant’s motion on
1
General Statutes § 46a-60 (b) (1) provides that it shall be a discriminatory practice “[f]or an
employer, by the employer or the employer’s agent, except in the case of a bona fide
occupational qualification or need, to refuse to hire or employ or to bar or to discharge from
employment any individual or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment because of the individual’s race, color, religious
creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or
past history of mental disability, intellectual disability, learning disability, physical disability,
including, but not limited to, blindness or status as a veteran . . . .”
2
Under Title VII: “It shall be an unlawful employment practice for an employer . . . (1) to fail or
refuse to hire or to discharge any individual, or otherwise 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 (a).
2
December 16, 2020 (#111). Thereafter, the defendant filed a reply memorandum on December
31, 2020 (#112).
DISCUSSION
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations
of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation
marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188
(2003). “The role of the trial court in ruling on a motion to strike is to examine the [complaint],
construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally
sufficient cause of action.” (Internal quotation marks omitted.) Coe v. Board of Education, 301
Conn. 112, 117, 19 A.3d 640 (2011). “If any facts provable under the express and implied
allegations in the plaintiff’s complaint support a cause of action . . . the complaint is not
vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1
(1991). Nevertheless, “[a] motion to strike admits all facts well pleaded; it does not admit legal
conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original;
internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588,
693 A.2d 293 (1997). “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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
I
COUNTS ONE AND TWO: DISCRIMINATON ON THE BASIS OF RACE AND COLOR
A. Failure to Promote
The defendant moves to strike counts one and two on three separate grounds. For the
purposes of clarity, the defendant’s three bases for striking counts one and two will be addressed
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separately. First, the defendant contends that counts one and two, which allege illegal
discrimination on the basis of race and color pursuant to CFEPA and Title VII, respectively, are
legally insufficient because the plaintiff fails to allege facts to support her failure to promote
theory of liability. The defendant argues that in order to withstand a motion to strike, the
plaintiff “must identify any position within the [statute of] limitations period for which she had
filed a formal application and was rejected.” According to the defendant, it is not enough for the
plaintiff merely to allege that she generally requested a promotion. The defendant contends it is
important for the plaintiff to identify a precise position that she applied for, and when such
application was submitted, because the defendant needs to be able to determine whether the
plaintiff has alleged actionable harm within the applicable statute of limitations period. In the
defendant’s view, the plaintiff has not met this pleading standard in counts one and two.
In response, the plaintiff argues that she alleges a legally sufficient failure to promote
claim in counts one and two. The plaintiff contends that she alleges all of the required elements
of such a cause of action because she alleges that she: (1) is a member of a protected class; (2)
requested to be promoted to the position of store manager on multiple occasions between
September, 2018 and March, 2019 and (3) was illegally rejected from a position for which her
employer continues to seek applicants. In its reply memorandum, the defendant argues that these
allegations are not enough to meet the pleading standards of a failure to promote claim because
the plaintiff must allege that she submitted a formal application for promotion, the dates of the
application and the precise name of the position for which she applied.
“To establish a prima facie case of a discriminatory failure to promote, a Title VII
plaintiff must ordinarily demonstrate that: (1) she is a member of a protected class; (2) she
applied and was qualified for a job for which the employer was seeking applicants; (3) she was
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rejected for the position; and (4) the position remained open and the employer continued to seek
applicants having the plaintiff’s qualifications.” (Emphasis omitted.) Aulicino v. New York City
Dept. of Homeless Services, 580 F.3d 73, 80 (2d Cir. 2009). Additionally, “the plaintiff . . . must
show circumstances that would be sufficient to permit a rational finder of fact to infer that the
defendant’s employment decision was more likely than not based in whole or in part on
discrimination.” (Internal quotation marks omitted.) Id. The legal requirements for an alleged
violation of CFEPA due to failure to promote are the same as those under federal law. Gilnite v.
West Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-
16-6066541-S (November 21, 2017, Shapiro, J.) (adopting the legal test from Aulicino for a
failure to promote claim under state law); see also Feliciano v. Autozone, Inc., 316 Conn. 65, 73,
111 A.3d 453 (2015) (stating that our Supreme Court “look[s] to federal law for guidance on
interpreting state employment discrimination law, and the analysis is the same under both.”).
“[T]he second element of a prima facie case cannot be established merely with evidence
that a plaintiff generally requested promotion consideration. A specific application is required to
ensure[ ] that, at the very least, the plaintiff employee alleges a particular adverse employment
action, an instance of alleged discrimination, by the employer. . . . Further, the requirement
ensures that the fact finder is not left to speculate as to the qualifications of the competing
candidates, the damages to be derived from the salary of unknown jobs, the availability of
alternative positions, the plaintiff’s willingness to serve in them (e.g., in other locales or on other
shifts), etc. The requirement also protects employers from the unfair burden of having to keep
track of all employees who have generally expressed an interest in promotion and [to] consider
each of them for any opening for which they are qualified but did not specifically apply. . . .
Certainly, the rule is not inflexible. The law recognizes that the facts of a particular case may
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sometimes make a specific application a quixotic requirement. . . . But the exception is narrow
and does not pertain simply because an employee asserts that an aura of discrimination in the
workplace somehow discouraged her from filing a formal application.” (Citations omitted;
emphasis omitted; internal quotation marks omitted.) Petrosino v. Bell Atlantic, 385 F.3d 210,
227 (2d Cir. 2004). Importantly, however, “[t]he plaintiff’s burden of establishing a prima facie
case is not onerous . . . . The plaintiff need only prove [the] four elements by a preponderance of
the evidence . . . . Once a plaintiff has established a prima facie case of discrimination, a
presumption of discrimination is created.” (Citations omitted; internal quotation marks omitted.)
Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 225, 676 A.2d 844 (1996).
For this reason, federal courts have determined that in order “[t]o survive a motion to dismiss
[under Fed. R. Civ. P. 12 (b) (6)] . . . [a] plaintiff need only allege facts that give plausible
support to a minimal inference of discriminatory motivation.” (Internal quotation marks
omitted.) Menaker v. Hofstra University, 935 F.3d 20, 30 (2019).3
In light of the relative paucity of Connecticut authority regarding failure to promote
claims, federal cases interpreting the pleading requirements for such causes of action are
instructive. For example, in Keaton v. Dept. of Rehabilitation Services, United States District
Court, Docket No. 3:16-CV-1810 (MPS) (D. Conn. 2018), the plaintiff, an African American
woman, alleged, inter alia, that she “requested consideration for a promotion to the position of
3
“Under the Federal Rules of Civil Procedure the legal sufficiency of a pleading can be
contested by filing a Rule 12 (b) (6) motion. Such a motion is the functional equivalent of a
motion to strike filed pursuant to Practice Book § 10–39.” Vazquez v. Buhl, Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-12-6012693-S (July 17, 2012, Tobin,
J.T.R.) (54 Conn. L. Rptr. 337, 339), aff’d, 150 Conn. App. 117, 90 A.3d 331 (2014). Therefore,
in the absence of controlling Connecticut state law authority, federal cases interpreting the
pleadings standards for setting forth a failure to promote claim are instructive and have
persuasive value for this court.
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[s]enior [v]ocational [r]ehabilitation [c]ounselor with [the defendant employer] by sending a
letter to her supervisor . . . . She also alleges that the position was post[ed] . . . and that . . . a
white woman, was promoted to the position on the same day [the plaintiff] received the letter
from [her supervisor]. . . notifying her that she did not receive the position.” (Citations omitted;
internal quotation marks omitted.) Id. The Federal District Court, Shea, J., found this allegation
sufficient to satisfy the second element of a failure to promote claim because it “sufficiently
pleads that [the plaintiff] applied to a vacant position for which [the defendant] was seeking
applicants and that [the defendant] filled the vacant position with a person outside of her
protected class.” Id.
Similarly, in Merhige-Murphy v. Vicon Industries, Inc., United States District Court,
Docket No. CV–07–1526 (SJF) (ARL) (E.D.N.Y. 2008), the plaintiff alleged that “[i]n March
2006 . . . [she] met separately with . . . [the defendant employer’s] human resources manager,
and . . . its CEO, to discuss a promotion to the position of marketing director. . . . During an
April 17, 2006 meeting with [a supervisor], [the] [p]laintiff was informed that her request for a
promotion was denied.” Id. When denying the employer’s motion to dismiss for failure to state
a claim upon which relief can be granted, the District Court, Feuerstein, J, stated that the
plaintiff “has properly alleged facts sufficient to give [the] [d]efendants fair notice of her claims
that she was denied a promotion she sought and was terminated on the basis of her gender,
including the dates of the events alleged and the persons allegedly involved.” Id.
In the present case, the plaintiff alleges that during the period between September 4,
2018, and March 10, 2019, she was “denied a promotion to [s]tore [m]anger” by the defendant’s
white upper management. The names of those individuals, as well as the white woman promoted
instead of the plaintiff, are specifically listed in the operative complaint. Although the plaintiff’s
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allegations may not exactly be a model of clarity, they are sufficient to give the defendant notice
of the precise time period at issue and the particular position that the plaintiff was seeking.
Given the persuasive authority provided in the Keaton and Merhige-Murphy cases, these
allegations are sufficient to set forth the second element of a failure to promote cause of action.
Furthermore, the plaintiff sufficiently alleges the remaining required elements of a failure to
promote claim because: (1) as an African American woman she is a member of a protected class;
(2) she alleges that another, less qualified white woman was promoted instead of her and (3) the
defendant’s management demonstrated discriminatory intent when they indicated the plaintiff
was not promoted because she was not the “right fit.” For these reasons, the motion to strike
counts one and two on the ground of failure to allege sufficient facts to set forth a race
discrimination claim based on a failure to promote theory is denied.4
B. Hostile Work Environment
Next, the defendant moves to strike counts one and two on the ground that the plaintiff
does not allege enough facts to prove that her workplace was sufficiently hostile to succeed on a
hostile work environment theory of liability. The defendant argues that the plaintiff fails to
4
One of the defendant’s primary justifications for arguing that the plaintiff must allege a specific
date as to each of her promotion applications is its belief that most of the plaintiff’s claims may
be barred by the statute of limitations. Although the defendant may ultimately be correct in this
regard, it is well established that under Connecticut’s rules of practice that “[i]n the absence of
an agreement that every relevant fact is before the court, a motion to strike is a procedurally
inadequate mechanism to assert the statute of limitations. Rather, a motion for summary
judgment, filed at the appropriate time, is preferable. Facts that are not alleged in a complaint
may be added to the procedural mix and facts in avoidance of the statutory time limitation of
action can be considered in a motion for summary judgment, whereas they cannot be considered
in a motion to strike.” (Internal quotation marks omitted.) Horner v. Hartford Roman Catholic
Diocesan Corp., Superior Court, complex litigation docket at Waterbury, Docket, No. X10-CV-
17-6034898-S (October 25, 2017, Lager, J.) (65 Conn. L. Rptr. 444), citing, Girard v. Weiss, 43
Conn. App. 397, 416, 682 A.2d 1078, 1087 (1996). Therefore, this argument will have to wait
until later motion practice in this case.
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allege any facts from which a reasonable fact finder could conclude that her workplace was
permeated with discrimination. Additionally, the defendant contends that the plaintiff does not
allege facts that could support a conclusion that the defendant was hostile toward her on account
of her race. In response, the plaintiff maintains that her hostile work environment claims are
legally sufficient because she alleges that she was forced to work eight straight hours without a
lunch break for a period of several months and she was not promoted to the store manager
position on account of her race. According to the plaintiff, “[t]he aforementioned treatment
suffered by the [p]laintiff undoubtedly rose to the level of ‘severe hostility’ that no human being
should be subjected to . . . .” By way of its reply memorandum, the defendant points out that the
plaintiff does not cite to any case law to support her position that failing to promote her or
forcing her to work eight consecutive hours a day would satisfy the pleading requirements of a
legally actionable hostile work environment based cause of action. Indeed, according to the
defendant, courts routinely reject hostile work environment claims with underlying facts that are
more severe than this case.
Pursuant to the federal courts’ interpretation of Title VII, “[a] hostile work environment
claim requires a plaintiff to show that his or her workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the terms and conditions of [his or] her
employment were thereby altered. . . . This test has objective and subjective elements: the
misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively perceive that environment to be
abusive. . . . The incidents typically must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive. . . . A single incident may qualify,
but to do so it must be extraordinarily severe. . . . Furthermore, the plaintiff must demonstrate
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that the conduct occurred because of his [or her] protected status . . . and also that a specific
basis exists for imputing the conduct that created the hostile environment to the employer . . . .”
(Citations omitted; internal quotation marks omitted.) Agosto v. New York City Dept. of
Education, 982 F.3d 86, 101-02 (2d Cir. 2020). With respect to state law, “hostile work
environment claims may be brought under § 46a–60 (a) (1) [CFEPA] pursuant to that provision’s
prohibition of discrimination in ‘terms, conditions or privileges of employment . . . .’” Patino v.
Birken Mfg. Co., 304 Conn. 679, 696, 41 A.3d 1013 (2012). “[T]o establish a hostile work
environment claim [under CFEPA], a plaintiff must produce evidence sufficient to show that 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 . . . . [I]n order to be actionable . . . a[n] . . . objectionable environment
must be both objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so. . . . Whether an
environment is objectively hostile is determined by looking at the record as a whole and at all the
circumstances, 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.” (Internal quotation marks omitted.)
Feliciano v. Autozone, Inc., supra, 316 Conn. 85. Due to the fact that the legal test for a hostile
work environment cause of action is virtually the same under Title VII and CFEPA, the claims
advanced by the plaintiff in counts one and two can be analyzed simultaneously. See Thompson
v. Dept. of Social Services, 176 Conn. App. 122, 131, 169 A.3d 256, cert. denied, 327 Conn. 962,
172 A.3d 800 (2017) (stating that “[a]lthough not bound by it, we review federal precedent
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concerning employment discrimination for guidance in enforcing our own antidiscrimination
statutes.”).
In the present case, the plaintiff alleges that she was wrongfully denied a promotion on
the basis of race and that she was frequently forced to work eight consecutive hours without a
lunch break. When deciding whether these allegations meet the high standard for alleging a
hostile work environment, other cases often provide useful guidance. For example, in Heyward
v. Judicial Dept., 178 Conn. App. 757, 176 A.3d 1234 (2017), the Appellate Court determined
that the trial court properly struck a race-based hostile work environment claim when “the
plaintiff alleged only two instances of racial remarks, with one of those remarks being made
toward a third person. . . . [and] the remainder of the plaintiff’s allegations concern[ed] routine
workplace matters, such as requests for time off, lunch breaks, performance evaluations and
favoritism.” (Citations omitted.) Id., 765-66. In the Appellate Court’s view, “[t]hese are not
unreasonable conditions to be subjected to in the employment context. . . . We therefore
conclude that the conduct alleged by the plaintiff is not sufficiently severe or pervasive to
establish a claim of hostile work environment . . . .” (Citation omitted.) Id., 766; see also Paul
v. Wyeth Pharmaceuticals, Inc., 326 Fed. Appx. 18 (2d Cir. 2009) (“single instance of a
superior’s use of a potentially racially-suggestive term” insufficient to maintain a hostile work
environment claim based on failure to promote).
Additionally, in Covington v. TGI Fridays, United States District Court, Docket No. CV
18-1113 (JFB) (AKT) (E.D.N.Y. 2019), the plaintiff, a server at the defendant restaurant,
alleged, inter alia, that he “worked over 11 sometimes 12 hours and [was] not given a break”
which lead to “[s]tarvation.” When ruling on the defendant employer’s Fed. R. Civ. P. 12 (b) (6)
motion to dismiss, the court stated “that [the] [p]laintiff’s [c]omplaint fails to plausibly state a
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claim for hostile work environment. Simply put, [the] [p]laintiff’s scant allegations fail to
adequately allege that [the] [p]laintiff’s working conditions were objectively severe or pervasive,
or that such an environment was the product of [the] [p]laintiff’s membership in a protected
class.”5 Id. Therefore, the federal District Court determined that the plaintiff could not maintain
his hostile work environment claim brought under Title VII.
In light of the above authorities, the plaintiff’s allegations are legally insufficient to state
a hostile work environment claim under both CFEPA and Title VII. The conduct alleged by the
plaintiff in this case is less severe than the behavior other courts have found failed to satisfy the
requisite level to maintain such a cause of action. Specifically, the plaintiff does not allege that
she ever was subjected to racial epithets or other inappropriate language. Rather, the plaintiff
simply alleges that she was passed over for a promotion and told she was not the “right fit” and
that this decision led her to quit her employment. Moreover, even though the plaintiff does
allege that she had to work long shifts without the benefit of a lunch break, courts have found
similar problems related to working conditions not to rise to the level of pervasive ridicule and
discriminatory intimidation needed to maintain a legally sufficient hostile work environment
cause of action. Therefore to the extent counts one and two allege a cause of action sounding in
hostile work environment, the claim is insufficiently pleaded.
Having made this determination, the issue then becomes whether the court can strike
portions of counts one and two. The allegations related to hostile work environment are
interspersed with the allegations regarding failure to promote. When previously faced with this
question, this court has noted that “most trial courts follow the rule that a single paragraph of a
5
This quoted language is found in the federal magistrate judge’s report and recommendation.
The magistrate judge’s report and recommendation was later adopted in its entirety by the federal
district court judge.
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pleading is subject to a motion to strike only when it attempts to set forth all of the essential
allegations of a cause of action or defense. . . Arguably under the present rules, a motion to
strike may properly lie with respect to an individual paragraph [or paragraphs] in a count. . . .
However, the weight of authority in the Superior Court is that the motion does not lie, except
possibly where the subject paragraph [or paragraphs] attempts to state a cause of action.”
(Internal quotation marks omitted.) Northeast Panel Co. v. Rizzo Corp., Superior Court, judicial
district of New Haven, Docket No. CV-15-6052574-S (March 1, 2016, Wilson, J.).
Nevertheless, our Supreme Court has opined that “[p]rior case law ought not to be read for the
proposition that clearly improper allegations upon which relief may not be granted as a matter of
law must remain in a complaint indefinitely, leading to confusion for the court, the parties and
the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to
strike has merit as to certain allegations of the complaint . . . the proper course for the court is to
strike those allegations only . . . . Under prior case law and earlier versions of the Practice Book,
it was generally improper to demur to a paragraph of a complaint unless the paragraph purported
to state a separate cause of action. . . . Since 1978, however, the Practice Book has not contained
such a constraint.” (Citation omitted; internal quotation marks omitted.) Coe v. Board of
Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011).
As a result of this court’s prior rulings on this issue and the guidance provided by the
Supreme Court, it is procedurally appropriate for this court to strike portions of a count that are
legally insufficient provided those sections of the count set forth separate causes of action. In the
present case, the plaintiff’s allegations in counts one and two regarding failure to promote and
hostile work environment are distinct causes of action and legal theories. See, e.g., King v. U.S.
Security Associates, Inc., United States District Court, Docket No. 11 Civ. 4457 (DAB) (MHD)
13
(S.D.N.Y. 2012) (stating that the court “interpret[s] plaintiff’s race discrimination allegations to
consist of two separate claims-a claim for failure to promote, or demotion, and a claim for
disparate treatment or hostile work environment based on alleged comments by plaintiff’s
supervisor.”). Therefore, to the extent counts one and two attempt to plead a cause of action for
hostile work environment, the allegations relating to that claim are stricken due to their legal
insufficiency.
C. Adverse Employment Action
Finally, the defendant moves to strike counts one and two on the ground that the
plaintiff’s resignation from her employment does not constitute an adverse employment action.
The defendant argues that resignation cannot form the basis of an adverse employment action
unless the employee was constructively discharged, and the defendant contends that the plaintiff
does not allege any facts that could demonstrate a constructive discharge. According to the
defendant, constructive discharge essentially is an aggravated form of a hostile work
environment, and the defendant believes the allegations found in counts one and two do not
reach this standard. In response, the plaintiff argues that the court should reject this ground as a
reason to strike counts one and two because she experienced a legally cognizable adverse
employment action. Specifically, the plaintiff initially contends that she was forced to resign,
and therefore, was constructively discharged, because of the defendant’s treatment of her. The
plaintiff also subsequently argues that she suffered an adverse employment action because she
was denied a promotion on account of her race.
Pursuant to CFEPA, “[i]n order to establish a prima facie case, the complainant must
prove that: (1) [s]he [was] in the protected class; (2) [s]he was qualified for the position; (3) [s]he
suffered an adverse employment action; and (4) that the adverse action occurred under
14
circumstances giving rise to an inference of discrimination.” (Internal quotation marks omitted.)
Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705-06, 900 A.2d 498 (2006).
Similarly, under Title VII, “a plaintiff establishes her prima facie case by showing (1)
participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an
adverse employment action; and (4) a causal connection between the protected activity and the
adverse employment action.” (Internal quotation marks omitted.) Lenzi v. Systemax, Inc., 944
F.3d 97, 112 (2d Cir. 2019). Accordingly, the defendant is indeed correct that the plaintiff must
allege an adverse employment action in order to bring a claim under both CFEPA and Title VII.
Nevertheless, as implicitly acknowledged in footnote six in its supporting memorandum,
the defendant’s argument with respect to this ground is predicated on the court granting its
motion to strike counts one and two because the plaintiff did not sufficiently allege a failure to
promote theory. As noted previously, the court rejects this argument and denies the motion to
strike on the failure to promote grounds. Therefore, the failure to promote allegations remain in
the operative complaint. “[A]n adverse employment action [has been defined] as a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.”
(Emphasis added; internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn. App.
774, 781, 89 A.3d 977 (2014). Accordingly, under CFEPA, “[a] failure to promote constitutes
an adverse employment action in satisfaction of the third element of her prima facie case.”
D’Amico v. Dept. of Children & Families, Superior Court, judicial district of Hartford, Docket
No. HHD-CV-13-6046656-S (July 6, 2016, Peck, J.T.R.). Additionally, with respect to Title
VII, “[a] failure to promote is an adverse employment action.” Guy v. MTA New York Transit,
407 F. Supp. 3d 183, 195 (E.D.N.Y. 2016), citing, National Rail Road Passenger Corp. v.
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Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). Because the plaintiff’s
allegations regarding the defendant’s wrongful failure to promote her are still contained in counts
one and two, and the failure to promote rises to the level of an adverse employment action, the
court concludes that this ground is an insufficient basis to strike counts one and two.
II
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Next, the defendant moves to strike count three, intentional infliction of emotional
distress, on the ground that the plaintiff does not allege that the defendant committed acts that
rise to the level of extreme and outrageous behavior. According to the defendant, there are no
allegations in the operative complaint that its employees engaged in activities that cannot be
tolerated in a civilized society, and that such conduct must be alleged in order to maintain an
actionable intentional infliction of emotional distress cause of action. In response, the plaintiff
argues that the allegations found in her complaint, specifically, that the defendant refused to
promote her because of her race and made her work eight straight hours without a lunch break,
were “highly prejudicial and thus extreme and outrageous conduct . . . .” The plaintiff states that
the defendant’s deliberate plan not to promote her to the store manager position on the basis of
race is conduct beyond ordinary hurt feelings and insults, and therefore, it is enough to maintain
a legally sufficient intentional infliction of emotional distress cause of action. In its reply
memorandum, the defendant argues no reasonable juror could conclude that the conduct alleged
against it rises to the level of extreme and outrageous behavior. Accordingly, the defendant
contends this count must be stricken.
“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction
of emotional distress], four elements must be established. It must be shown: (1) that the actor
16
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.” (Internal quotation marks omitted.) Appleton v.
Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). “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.) Carrol v. Allstate Ins. Co., 262
Conn. 433, 443, 815 A.2d 119 (2003).
“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.” (Citation omitted.) Appleton v. Board of
Education, supra, 254 Conn. 210. “[I]n assessing a claim for intentional infliction of emotional
distress, the court performs a gatekeeping function. In this capacity, the role of the court is to
determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact
finder could find to be extreme or outrageous. In exercising this responsibility, the court is not
fact finding, but rather it is making an assessment whether, as a matter of law, the alleged
17
behavior fits the criteria required to establish a claim premised on intentional infliction of
emotional distress.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism
District Commission, 92 Conn. App. 835, 847, 888 A.2d 104 (2006). “In the employment
context, [s]imple employer mistreatment, in and of itself, is insufficient to establish extreme and
outrageous conduct. . . . Employees often find the conditions of their employment to be
unpleasant and even unjustifiable, but there is a distinction between the ordinary indignities of
the workplace and truly atrocious conduct. In the workplace context, the threshold [for extreme
and outrageous conduct] is even higher: [I]t is clear that individuals in the workplace reasonably
should expect to experience some level of emotional distress, even significant emotional distress,
as a result of conduct in the workplace.” (Citations omitted; internal quotation marks omitted.)
Gonzalez v. LeCoq Cuisine Corp., Superior Court, judicial district of Fairfield, Docket No. CV-
13-6037490-S (March 21, 2016, Arnold, J.).
Specific examples from cases are often instructive in determining whether the conduct
alleged by a plaintiff satisfies the extreme and outrageous element of the tort of intentional
infliction of emotional distress. For example, in Tracy v. New Milford Public Schools, 101
Conn. App. 560, 922 A.2d 280 (2007), the Appellate Court determined that the trial court
properly struck an intentional infliction of emotional distress count when the plaintiff, a
custodian employed by the defendant school system, alleged that the defendants “conspired . . .
to harass him by carrying out a pattern of conduct, including the denial of a position, initiating
disciplinary actions without proper investigat
Preview
DOCKET NO. CV-20-6104872-S : STATE OF CONNECTICUT : CUTRICE CALHOUN : SUPERIOR COURT : : JUDICIAL DISTRICT OF NEW HAVEN : V. : AT NEW HAVEN : GOODWILL INDUSTRIES OF : SOUTHERN NEW ENGLAND, INC. : JULY 26, 2021 MEMORANDUM OF DECISION MOTION TO STRIKE (#108) STATEMENT OF CASE AND PROCEDURAL HISTORY On June 5, 2020, the plaintiff, Cutrice Calhoun, commenced this action by service of process against the defendant, Goodwill Industries of Southern New England, Inc. In the operative pleading, the plaintiff’s second revised complaint filed on October 16, 2020 (#106), the plaintiff alleges the following relevant facts. The plaintiff, an African American and/or black woman, was employed by the defendant as an assistant store manager from January 25, 2015 to March 10, 2020. Even though the plaintiff holds two different master’s degrees (a master’s of science in management and a master’s in business administration), the plaintiff was treated less favorably than Caucasian/white employees who had less training, education and experience than her. Specifically, during the time period from September 4, 2018 to March 10, 2019, the defendant’s upper management, both of whom were white males, refused to promote the plaintiff to the position of store manager. Instead, they advanced a white/Caucasian woman who was less qualified. As justification for this action, the defendant’s management indicated that the plaintiff was not the “right fit.” The plaintiff contends this explanation was a pre-text for the defendant’s illegally discriminatory actions. Additionally, during this same timeframe, and over a period of several months, the plaintiff was forced to work eight straight hours in a day without a lunch 1 break. As a result of this conduct on the part of the defendant, the plaintiff alleges that she was “forced to resign and/or constructively discharge[d] due to discrimination on the basis of race, color and hostile work environment.” The plaintiff further contends that she has experienced severe emotional distress, including physical manifestations of this distress, because of the defendant’s actions. In her operative complaint, the plaintiff sets forth the following causes of action against the defendant: (1) count one—discrimination on the basis of race and color in violation of General Statutes § 46a-60 (b) (1) (CFEPA); 1 count two—discrimination on the basis of race and color in violation of 42 U.S.C. § 2000e et seq. (Title VII);2 count three—intentional infliction of emotional distress and count four—negligent infliction of emotional distress. The plaintiff’s prayer for relief seeks damages and other relief the court deems equitable in order to remedy the defendant’s allegedly wrongful conduct. On November 16, 2020, the defendant filed a motion to strike all four counts of the plaintiff’s operative complaint (#108) along with a memorandum of law in support of its motion (#109). The plaintiff filed a memorandum of law in opposition to the defendant’s motion on 1 General Statutes § 46a-60 (b) (1) provides that it shall be a discriminatory practice “[f]or an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness or status as a veteran . . . .” 2 Under Title VII: “It shall be an unlawful employment practice for an employer . . . (1) to fail or refuse to hire or to discharge any individual, or otherwise 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 (a). 2 December 16, 2020 (#111). Thereafter, the defendant filed a reply memorandum on December 31, 2020 (#112). DISCUSSION “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). “If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, “[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). “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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). I COUNTS ONE AND TWO: DISCRIMINATON ON THE BASIS OF RACE AND COLOR A. Failure to Promote The defendant moves to strike counts one and two on three separate grounds. For the purposes of clarity, the defendant’s three bases for striking counts one and two will be addressed 3 separately. First, the defendant contends that counts one and two, which allege illegal discrimination on the basis of race and color pursuant to CFEPA and Title VII, respectively, are legally insufficient because the plaintiff fails to allege facts to support her failure to promote theory of liability. The defendant argues that in order to withstand a motion to strike, the plaintiff “must identify any position within the [statute of] limitations period for which she had filed a formal application and was rejected.” According to the defendant, it is not enough for the plaintiff merely to allege that she generally requested a promotion. The defendant contends it is important for the plaintiff to identify a precise position that she applied for, and when such application was submitted, because the defendant needs to be able to determine whether the plaintiff has alleged actionable harm within the applicable statute of limitations period. In the defendant’s view, the plaintiff has not met this pleading standard in counts one and two. In response, the plaintiff argues that she alleges a legally sufficient failure to promote claim in counts one and two. The plaintiff contends that she alleges all of the required elements of such a cause of action because she alleges that she: (1) is a member of a protected class; (2) requested to be promoted to the position of store manager on multiple occasions between September, 2018 and March, 2019 and (3) was illegally rejected from a position for which her employer continues to seek applicants. In its reply memorandum, the defendant argues that these allegations are not enough to meet the pleading standards of a failure to promote claim because the plaintiff must allege that she submitted a formal application for promotion, the dates of the application and the precise name of the position for which she applied. “To establish a prima facie case of a discriminatory failure to promote, a Title VII plaintiff must ordinarily demonstrate that: (1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was 4 rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff’s qualifications.” (Emphasis omitted.) Aulicino v. New York City Dept. of Homeless Services, 580 F.3d 73, 80 (2d Cir. 2009). Additionally, “the plaintiff . . . must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” (Internal quotation marks omitted.) Id. The legal requirements for an alleged violation of CFEPA due to failure to promote are the same as those under federal law. Gilnite v. West Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV- 16-6066541-S (November 21, 2017, Shapiro, J.) (adopting the legal test from Aulicino for a failure to promote claim under state law); see also Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015) (stating that our Supreme Court “look[s] to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”). “[T]he second element of a prima facie case cannot be established merely with evidence that a plaintiff generally requested promotion consideration. A specific application is required to ensure[ ] that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer. . . . Further, the requirement ensures that the fact finder is not left to speculate as to the qualifications of the competing candidates, the damages to be derived from the salary of unknown jobs, the availability of alternative positions, the plaintiff’s willingness to serve in them (e.g., in other locales or on other shifts), etc. The requirement also protects employers from the unfair burden of having to keep track of all employees who have generally expressed an interest in promotion and [to] consider each of them for any opening for which they are qualified but did not specifically apply. . . . Certainly, the rule is not inflexible. The law recognizes that the facts of a particular case may 5 sometimes make a specific application a quixotic requirement. . . . But the exception is narrow and does not pertain simply because an employee asserts that an aura of discrimination in the workplace somehow discouraged her from filing a formal application.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Petrosino v. Bell Atlantic, 385 F.3d 210, 227 (2d Cir. 2004). Importantly, however, “[t]he plaintiff’s burden of establishing a prima facie case is not onerous . . . . The plaintiff need only prove [the] four elements by a preponderance of the evidence . . . . Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.” (Citations omitted; internal quotation marks omitted.) Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 225, 676 A.2d 844 (1996). For this reason, federal courts have determined that in order “[t]o survive a motion to dismiss [under Fed. R. Civ. P. 12 (b) (6)] . . . [a] plaintiff need only allege facts that give plausible support to a minimal inference of discriminatory motivation.” (Internal quotation marks omitted.) Menaker v. Hofstra University, 935 F.3d 20, 30 (2019).3 In light of the relative paucity of Connecticut authority regarding failure to promote claims, federal cases interpreting the pleading requirements for such causes of action are instructive. For example, in Keaton v. Dept. of Rehabilitation Services, United States District Court, Docket No. 3:16-CV-1810 (MPS) (D. Conn. 2018), the plaintiff, an African American woman, alleged, inter alia, that she “requested consideration for a promotion to the position of 3 “Under the Federal Rules of Civil Procedure the legal sufficiency of a pleading can be contested by filing a Rule 12 (b) (6) motion. Such a motion is the functional equivalent of a motion to strike filed pursuant to Practice Book § 10–39.” Vazquez v. Buhl, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6012693-S (July 17, 2012, Tobin, J.T.R.) (54 Conn. L. Rptr. 337, 339), aff’d, 150 Conn. App. 117, 90 A.3d 331 (2014). Therefore, in the absence of controlling Connecticut state law authority, federal cases interpreting the pleadings standards for setting forth a failure to promote claim are instructive and have persuasive value for this court. 6 [s]enior [v]ocational [r]ehabilitation [c]ounselor with [the defendant employer] by sending a letter to her supervisor . . . . She also alleges that the position was post[ed] . . . and that . . . a white woman, was promoted to the position on the same day [the plaintiff] received the letter from [her supervisor]. . . notifying her that she did not receive the position.” (Citations omitted; internal quotation marks omitted.) Id. The Federal District Court, Shea, J., found this allegation sufficient to satisfy the second element of a failure to promote claim because it “sufficiently pleads that [the plaintiff] applied to a vacant position for which [the defendant] was seeking applicants and that [the defendant] filled the vacant position with a person outside of her protected class.” Id. Similarly, in Merhige-Murphy v. Vicon Industries, Inc., United States District Court, Docket No. CV–07–1526 (SJF) (ARL) (E.D.N.Y. 2008), the plaintiff alleged that “[i]n March 2006 . . . [she] met separately with . . . [the defendant employer’s] human resources manager, and . . . its CEO, to discuss a promotion to the position of marketing director. . . . During an April 17, 2006 meeting with [a supervisor], [the] [p]laintiff was informed that her request for a promotion was denied.” Id. When denying the employer’s motion to dismiss for failure to state a claim upon which relief can be granted, the District Court, Feuerstein, J, stated that the plaintiff “has properly alleged facts sufficient to give [the] [d]efendants fair notice of her claims that she was denied a promotion she sought and was terminated on the basis of her gender, including the dates of the events alleged and the persons allegedly involved.” Id. In the present case, the plaintiff alleges that during the period between September 4, 2018, and March 10, 2019, she was “denied a promotion to [s]tore [m]anger” by the defendant’s white upper management. The names of those individuals, as well as the white woman promoted instead of the plaintiff, are specifically listed in the operative complaint. Although the plaintiff’s 7 allegations may not exactly be a model of clarity, they are sufficient to give the defendant notice of the precise time period at issue and the particular position that the plaintiff was seeking. Given the persuasive authority provided in the Keaton and Merhige-Murphy cases, these allegations are sufficient to set forth the second element of a failure to promote cause of action. Furthermore, the plaintiff sufficiently alleges the remaining required elements of a failure to promote claim because: (1) as an African American woman she is a member of a protected class; (2) she alleges that another, less qualified white woman was promoted instead of her and (3) the defendant’s management demonstrated discriminatory intent when they indicated the plaintiff was not promoted because she was not the “right fit.” For these reasons, the motion to strike counts one and two on the ground of failure to allege sufficient facts to set forth a race discrimination claim based on a failure to promote theory is denied.4 B. Hostile Work Environment Next, the defendant moves to strike counts one and two on the ground that the plaintiff does not allege enough facts to prove that her workplace was sufficiently hostile to succeed on a hostile work environment theory of liability. The defendant argues that the plaintiff fails to 4 One of the defendant’s primary justifications for arguing that the plaintiff must allege a specific date as to each of her promotion applications is its belief that most of the plaintiff’s claims may be barred by the statute of limitations. Although the defendant may ultimately be correct in this regard, it is well established that under Connecticut’s rules of practice that “[i]n the absence of an agreement that every relevant fact is before the court, a motion to strike is a procedurally inadequate mechanism to assert the statute of limitations. Rather, a motion for summary judgment, filed at the appropriate time, is preferable. Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment, whereas they cannot be considered in a motion to strike.” (Internal quotation marks omitted.) Horner v. Hartford Roman Catholic Diocesan Corp., Superior Court, complex litigation docket at Waterbury, Docket, No. X10-CV- 17-6034898-S (October 25, 2017, Lager, J.) (65 Conn. L. Rptr. 444), citing, Girard v. Weiss, 43 Conn. App. 397, 416, 682 A.2d 1078, 1087 (1996). Therefore, this argument will have to wait until later motion practice in this case. 8 allege any facts from which a reasonable fact finder could conclude that her workplace was permeated with discrimination. Additionally, the defendant contends that the plaintiff does not allege facts that could support a conclusion that the defendant was hostile toward her on account of her race. In response, the plaintiff maintains that her hostile work environment claims are legally sufficient because she alleges that she was forced to work eight straight hours without a lunch break for a period of several months and she was not promoted to the store manager position on account of her race. According to the plaintiff, “[t]he aforementioned treatment suffered by the [p]laintiff undoubtedly rose to the level of ‘severe hostility’ that no human being should be subjected to . . . .” By way of its reply memorandum, the defendant points out that the plaintiff does not cite to any case law to support her position that failing to promote her or forcing her to work eight consecutive hours a day would satisfy the pleading requirements of a legally actionable hostile work environment based cause of action. Indeed, according to the defendant, courts routinely reject hostile work environment claims with underlying facts that are more severe than this case. Pursuant to the federal courts’ interpretation of Title VII, “[a] hostile work environment claim requires a plaintiff to show that his or her workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his or] her employment were thereby altered. . . . This test has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive. . . . The incidents typically must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. . . . A single incident may qualify, but to do so it must be extraordinarily severe. . . . Furthermore, the plaintiff must demonstrate 9 that the conduct occurred because of his [or her] protected status . . . and also that a specific basis exists for imputing the conduct that created the hostile environment to the employer . . . .” (Citations omitted; internal quotation marks omitted.) Agosto v. New York City Dept. of Education, 982 F.3d 86, 101-02 (2d Cir. 2020). With respect to state law, “hostile work environment claims may be brought under § 46a–60 (a) (1) [CFEPA] pursuant to that provision’s prohibition of discrimination in ‘terms, conditions or privileges of employment . . . .’” Patino v. Birken Mfg. Co., 304 Conn. 679, 696, 41 A.3d 1013 (2012). “[T]o establish a hostile work environment claim [under CFEPA], a plaintiff must produce evidence sufficient to show that 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 . . . . [I]n order to be actionable . . . a[n] . . . objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, 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.” (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 85. Due to the fact that the legal test for a hostile work environment cause of action is virtually the same under Title VII and CFEPA, the claims advanced by the plaintiff in counts one and two can be analyzed simultaneously. See Thompson v. Dept. of Social Services, 176 Conn. App. 122, 131, 169 A.3d 256, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017) (stating that “[a]lthough not bound by it, we review federal precedent 10 concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.”). In the present case, the plaintiff alleges that she was wrongfully denied a promotion on the basis of race and that she was frequently forced to work eight consecutive hours without a lunch break. When deciding whether these allegations meet the high standard for alleging a hostile work environment, other cases often provide useful guidance. For example, in Heyward v. Judicial Dept., 178 Conn. App. 757, 176 A.3d 1234 (2017), the Appellate Court determined that the trial court properly struck a race-based hostile work environment claim when “the plaintiff alleged only two instances of racial remarks, with one of those remarks being made toward a third person. . . . [and] the remainder of the plaintiff’s allegations concern[ed] routine workplace matters, such as requests for time off, lunch breaks, performance evaluations and favoritism.” (Citations omitted.) Id., 765-66. In the Appellate Court’s view, “[t]hese are not unreasonable conditions to be subjected to in the employment context. . . . We therefore conclude that the conduct alleged by the plaintiff is not sufficiently severe or pervasive to establish a claim of hostile work environment . . . .” (Citation omitted.) Id., 766; see also Paul v. Wyeth Pharmaceuticals, Inc., 326 Fed. Appx. 18 (2d Cir. 2009) (“single instance of a superior’s use of a potentially racially-suggestive term” insufficient to maintain a hostile work environment claim based on failure to promote). Additionally, in Covington v. TGI Fridays, United States District Court, Docket No. CV 18-1113 (JFB) (AKT) (E.D.N.Y. 2019), the plaintiff, a server at the defendant restaurant, alleged, inter alia, that he “worked over 11 sometimes 12 hours and [was] not given a break” which lead to “[s]tarvation.” When ruling on the defendant employer’s Fed. R. Civ. P. 12 (b) (6) motion to dismiss, the court stated “that [the] [p]laintiff’s [c]omplaint fails to plausibly state a 11 claim for hostile work environment. Simply put, [the] [p]laintiff’s scant allegations fail to adequately allege that [the] [p]laintiff’s working conditions were objectively severe or pervasive, or that such an environment was the product of [the] [p]laintiff’s membership in a protected class.”5 Id. Therefore, the federal District Court determined that the plaintiff could not maintain his hostile work environment claim brought under Title VII. In light of the above authorities, the plaintiff’s allegations are legally insufficient to state a hostile work environment claim under both CFEPA and Title VII. The conduct alleged by the plaintiff in this case is less severe than the behavior other courts have found failed to satisfy the requisite level to maintain such a cause of action. Specifically, the plaintiff does not allege that she ever was subjected to racial epithets or other inappropriate language. Rather, the plaintiff simply alleges that she was passed over for a promotion and told she was not the “right fit” and that this decision led her to quit her employment. Moreover, even though the plaintiff does allege that she had to work long shifts without the benefit of a lunch break, courts have found similar problems related to working conditions not to rise to the level of pervasive ridicule and discriminatory intimidation needed to maintain a legally sufficient hostile work environment cause of action. Therefore to the extent counts one and two allege a cause of action sounding in hostile work environment, the claim is insufficiently pleaded. Having made this determination, the issue then becomes whether the court can strike portions of counts one and two. The allegations related to hostile work environment are interspersed with the allegations regarding failure to promote. When previously faced with this question, this court has noted that “most trial courts follow the rule that a single paragraph of a 5 This quoted language is found in the federal magistrate judge’s report and recommendation. The magistrate judge’s report and recommendation was later adopted in its entirety by the federal district court judge. 12 pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense. . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph [or paragraphs] in a count. . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph [or paragraphs] attempts to state a cause of action.” (Internal quotation marks omitted.) Northeast Panel Co. v. Rizzo Corp., Superior Court, judicial district of New Haven, Docket No. CV-15-6052574-S (March 1, 2016, Wilson, J.). Nevertheless, our Supreme Court has opined that “[p]rior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only . . . . Under prior case law and earlier versions of the Practice Book, it was generally improper to demur to a paragraph of a complaint unless the paragraph purported to state a separate cause of action. . . . Since 1978, however, the Practice Book has not contained such a constraint.” (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011). As a result of this court’s prior rulings on this issue and the guidance provided by the Supreme Court, it is procedurally appropriate for this court to strike portions of a count that are legally insufficient provided those sections of the count set forth separate causes of action. In the present case, the plaintiff’s allegations in counts one and two regarding failure to promote and hostile work environment are distinct causes of action and legal theories. See, e.g., King v. U.S. Security Associates, Inc., United States District Court, Docket No. 11 Civ. 4457 (DAB) (MHD) 13 (S.D.N.Y. 2012) (stating that the court “interpret[s] plaintiff’s race discrimination allegations to consist of two separate claims-a claim for failure to promote, or demotion, and a claim for disparate treatment or hostile work environment based on alleged comments by plaintiff’s supervisor.”). Therefore, to the extent counts one and two attempt to plead a cause of action for hostile work environment, the allegations relating to that claim are stricken due to their legal insufficiency. C. Adverse Employment Action Finally, the defendant moves to strike counts one and two on the ground that the plaintiff’s resignation from her employment does not constitute an adverse employment action. The defendant argues that resignation cannot form the basis of an adverse employment action unless the employee was constructively discharged, and the defendant contends that the plaintiff does not allege any facts that could demonstrate a constructive discharge. According to the defendant, constructive discharge essentially is an aggravated form of a hostile work environment, and the defendant believes the allegations found in counts one and two do not reach this standard. In response, the plaintiff argues that the court should reject this ground as a reason to strike counts one and two because she experienced a legally cognizable adverse employment action. Specifically, the plaintiff initially contends that she was forced to resign, and therefore, was constructively discharged, because of the defendant’s treatment of her. The plaintiff also subsequently argues that she suffered an adverse employment action because she was denied a promotion on account of her race. Pursuant to CFEPA, “[i]n order to establish a prima facie case, the complainant must prove that: (1) [s]he [was] in the protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) that the adverse action occurred under 14 circumstances giving rise to an inference of discrimination.” (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705-06, 900 A.2d 498 (2006). Similarly, under Title VII, “a plaintiff establishes her prima facie case by showing (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” (Internal quotation marks omitted.) Lenzi v. Systemax, Inc., 944 F.3d 97, 112 (2d Cir. 2019). Accordingly, the defendant is indeed correct that the plaintiff must allege an adverse employment action in order to bring a claim under both CFEPA and Title VII. Nevertheless, as implicitly acknowledged in footnote six in its supporting memorandum, the defendant’s argument with respect to this ground is predicated on the court granting its motion to strike counts one and two because the plaintiff did not sufficiently allege a failure to promote theory. As noted previously, the court rejects this argument and denies the motion to strike on the failure to promote grounds. Therefore, the failure to promote allegations remain in the operative complaint. “[A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” (Emphasis added; internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn. App. 774, 781, 89 A.3d 977 (2014). Accordingly, under CFEPA, “[a] failure to promote constitutes an adverse employment action in satisfaction of the third element of her prima facie case.” D’Amico v. Dept. of Children & Families, Superior Court, judicial district of Hartford, Docket No. HHD-CV-13-6046656-S (July 6, 2016, Peck, J.T.R.). Additionally, with respect to Title VII, “[a] failure to promote is an adverse employment action.” Guy v. MTA New York Transit, 407 F. Supp. 3d 183, 195 (E.D.N.Y. 2016), citing, National Rail Road Passenger Corp. v. 15 Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). Because the plaintiff’s allegations regarding the defendant’s wrongful failure to promote her are still contained in counts one and two, and the failure to promote rises to the level of an adverse employment action, the court concludes that this ground is an insufficient basis to strike counts one and two. II INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Next, the defendant moves to strike count three, intentional infliction of emotional distress, on the ground that the plaintiff does not allege that the defendant committed acts that rise to the level of extreme and outrageous behavior. According to the defendant, there are no allegations in the operative complaint that its employees engaged in activities that cannot be tolerated in a civilized society, and that such conduct must be alleged in order to maintain an actionable intentional infliction of emotional distress cause of action. In response, the plaintiff argues that the allegations found in her complaint, specifically, that the defendant refused to promote her because of her race and made her work eight straight hours without a lunch break, were “highly prejudicial and thus extreme and outrageous conduct . . . .” The plaintiff states that the defendant’s deliberate plan not to promote her to the store manager position on the basis of race is conduct beyond ordinary hurt feelings and insults, and therefore, it is enough to maintain a legally sufficient intentional infliction of emotional distress cause of action. In its reply memorandum, the defendant argues no reasonable juror could conclude that the conduct alleged against it rises to the level of extreme and outrageous behavior. Accordingly, the defendant contends this count must be stricken. “In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor 16 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.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). “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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). “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.” (Citation omitted.) Appleton v. Board of Education, supra, 254 Conn. 210. “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged 17 behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 847, 888 A.2d 104 (2006). “In the employment context, [s]imple employer mistreatment, in and of itself, is insufficient to establish extreme and outrageous conduct. . . . Employees often find the conditions of their employment to be unpleasant and even unjustifiable, but there is a distinction between the ordinary indignities of the workplace and truly atrocious conduct. In the workplace context, the threshold [for extreme and outrageous conduct] is even higher: [I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.” (Citations omitted; internal quotation marks omitted.) Gonzalez v. LeCoq Cuisine Corp., Superior Court, judicial district of Fairfield, Docket No. CV- 13-6037490-S (March 21, 2016, Arnold, J.). Specific examples from cases are often instructive in determining whether the conduct alleged by a plaintiff satisfies the extreme and outrageous element of the tort of intentional infliction of emotional distress. For example, in Tracy v. New Milford Public Schools, 101 Conn. App. 560, 922 A.2d 280 (2007), the Appellate Court determined that the trial court properly struck an intentional infliction of emotional distress count when the plaintiff, a custodian employed by the defendant school system, alleged that the defendants “conspired . . . to harass him by carrying out a pattern of conduct, including the denial of a position, initiating disciplinary actions without proper investigat