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Gambardella v. Apple Health Care1/18/2005
In this action for defamation, wrongful termination of employment and breach of the implied covenant of good faith and fair dealing, which was tried to the court, the plaintiff, Laurie Gambardella, appeals from the trial court's judgment, rendered following the granting of the motion to dismiss for failure to make out a prima facie case made by the defendants Apple Health Care, Inc. (Apple Health), Waterbury Extended Care Facility, Inc. (Waterbury facility), and John Sweeney, the administrator of the Waterbury facility. Specifically, the plaintiff claims that the court (1) applied an incorrect legal standard in granting the defendants' motion to dismiss under Practice Book ยง 15-8, (2) improperly found that the plaintiff failed to prove a prima facie case of defamation and, in doing so, improperly based its decision on the unpleaded special defense of truth and on the special defense of qualified privilege, (3) improperly found that the plaintiff failed to prove a prima facie case of wrongful termination of employment and (4) failed to draw an adverse inference based on the defendants' loss of, destruction of or refusal to produce the original writing containing the defamatory statement. We affirm in part and reverse in part.
The following evidence was submitted at trial. Between September, 1998, and May, 2000, the plaintiff was employed as an admissions coordinator by the Waterbury facility, a skilled nursing facility in Watertown that is owned and operated by Apple Health. In May, 2000, the plaintiff interviewed Eleanor O'Sullivan, who sought to admit her ninety-five year old aunt, Fannie Lauro, to the Waterbury facility. Lauro passed away three days after being admitted. O'Sullivan returned to the Waterbury facility to pick up some of Lauro's personal belongings. While in the room that Lauro had occupied, O'Sullivan told the plaintiff that because she had spent so much time with O'Sullivan preparing for Lauro's admission to the Waterbury facility, O'Sullivan wanted the plaintiff to have any of Lauro's items that she wanted. The plaintiff expressed an interest in a chair. The plaintiff testified that O'Sullivan then told her to offer to the staff whatever she did not want, and to offer the deceased's clothing to other residents. Three days later, the plaintiff's son and friend came to the facility at her request and removed two of Lauro's chairs from the facility. Sweeney, the plaintiff's supervisor, conducted an investigation. During the investigation, O'Sullivan faxed a letter to Sweeney that stated: "Dear Ms. Gambardella: This letter is to clarify our verbal instructions regarding the disposition of the property of Fannie Lauro in room 5 L. The property consisting of clothing, recliner chair, dresser, lamp table and small arm chair, is left for you to distribute to yourself, your fellow staff members, or patients, at your sole discretion." Sweeney terminated the plaintiff's employment for theft of facility property, a severe infraction which, under the employee handbook, warranted termination. Sweeney wrote a disciplinary action report that stated: "Summary of Incident(s.): Theft of facility property--As evidenced by furniture donated by a resident's family member being removed from facility during off hours to her home. These items were donated to other residents and therefore became the property of [the Waterbury facility]--Once removed became theft. . . . Consequences of Continued Behavior: Due to the severity of this offense it is viewed by the [Apple Health] Handbook as a severe infraction carrying the consequence of termination."
At the close of the plaintiff's case, the defendants moved to dismiss the case for failure to make out a prima facie case. Ruling from the bench, the co
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