Opinion
No. CV-09-5030563S
January 5, 2010
MEMORANDUM OF DECISION
This lawsuit, in three counts, was brought by the plaintiff, Alfred Astorino (Astorino) against Thomas Scarpati (Scarpati), in his individual capacity, and the Town of Madison (town) resulting from events which occurred when Scarpati served as the Selectman of the town. The first count alleges the tort of wrongful constructive discharge against the town only; the second count alleges intentional infliction of emotional distress and the third count alleges negligent infliction of emotional distress, against both the town and Scarpati. On September 25, 2009, the defendants filed a Motion to Strike (#101) all counts of the complaint asserting that the first and second counts were legally insufficient and the third count was barred by the statute of limitations. On October 13, 2009, Astorino filed his opposition to the motion (#102) in which he conceded that the third count should be stricken but maintained that the first and second counts are legally sufficient.
No. 102 appeared on the November 9, 2009 short calendar marked "take papers."
"The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions . . . On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. Practice Book § 10-39(a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
Astorino alleges common facts for both counts one and two, as follows: Astorino, a licensed building official, was hired as the Building Official for the town on October 1, 1990 (¶¶ 4, 5). He was "solely responsible for inspecting construction in the town" from that date until November 6, 2006 (¶ 5). His duties included "accepting permits, charging fees [pursuant to the town's fee schedule] and monitoring all construction" (¶ 6). From 1990 to 2006, there was "a substantial increase in both commercial and residential construction" in the town (¶ 8). Astorino "made repeated requests to . . . Scarpati to increase his staff in order to meet the escalating number of permit applications and related inspections of construction," which were refused (¶¶ 9, 10). Before 2003, Astorino had three part-time inspectors he could call to assist him but due to budget cuts for the Building Department in 2003 his part-time assistance was reduced to one person (¶¶ 10, 11, 12).
Meanwhile, in 2003, Scarpati had modified the fee schedule for building permits, increasing them by 50%, an act which was challenged in 2005 by a number of local builders who filed a class action lawsuit against the town (¶¶ 11, 14). As of 2006, Astorino "sometimes asked Robert Kuchta . . . an Inland Wetlands officer, to assist him in performing preliminary inspections of construction activity" because there were often hundreds of inspections per week to conduct (¶ 13). This practice came to light in September 2006 as a result of discovery conducted in the class action lawsuit and "was publicized in the local news media" (¶ 15), although both Scarpeti and the town engineer "were aware that Kuchta worked with [Astorino] as needed, under his supervision." (¶ 16.) Scarpati suspended Astorino and Kuchta on or about September 22, 2006 and asked the Madison Police Department to investigate the matter (¶ 17); in late September, the Chief of Police advised "Scarpati that there was no criminal activity to investigate." (¶ 18.) Thereafter, Scarpati told Astorino that: "local and state police were conducting an investigation," "there was a substantial likelihood that he . . . could be arrested," he would be terminated if criminally charged and would lose his pension and family health insurance coverage (¶¶ 19, 20, 21). Scarpati told Astorino to retire and Astorino was offered a financial package by Scarpati and the town "conditioned on his silence" concerning the building permits and inspections (¶¶ 22, 23*, 24). From September to November 2006, Scarpati spoke to news reporters about Astorino and the investigation that was being conducted (¶ 23*). On November 6, 2006, Astorino "rejected the financial package" he had been offered and retired (¶ 24). He alleges that circumstances "forced [him] to terminate his employment involuntarily in order to ensure that he would not lose health insurance for his family." (¶ 27.) On February 14, 2007, he was charged with several misdemeanors that were dismissed, on May 14, 2008, "by the Court pursuant to a motion to dismiss the charges filed by the plaintiff." (¶¶ 25, 26.)
The defendants' memorandum, at p. 2, states Kuchta "was not a licensed building official," but that is not a pleaded fact and must be disregarded.
The format 23* indicates that the complaint contains two paragraphs numbered 23.
I.
In count one, Astorino alleges a wrongful constructive discharge. "`Wrongful constructive discharge' is a form of wrongful discharge . . . It logically follows that a claim for wrongful constructive discharge is actionable only where a claim for express discharge would be actionable in the same circumstances. Whether express or constructive, `[a] cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy.' Carnemolla v. Walsh, 75 Conn.App. 319, 323, n. 5, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003)." Sophia v. Danbury, 116 Conn.App. 68, 75 n. 10, 974 A.2d 804 (2009). To establish a wrongful constructive discharge, a plaintiff must plead and prove both the constructive discharge and causation, "that is, that the discharge occurred for a reason violating public policy." Id., 74-75. The defendants have moved to strike the first count on the ground that it insufficiently pleads both these elements.
A constructive discharge "occurs when an employer, rather than directly discharging an individually, intentionally creates an intolerable work atmosphere that forces an 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." (Emphasis in original, quotation marks omitted, citations omitted.) Brittell v. Department of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998). "The effect of adverse conditions is cumulative." Chertkova v. Connecticut General Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996).
"The most common constructive discharge case involves veiled or direct threats that failure to resign will result in discharge." Doria v. Cramer Rosenthal McGlynn, Inc., 942 F.Sup. 937, 947 (S.D.N.Y. 1996). Indeed, "threats of termination alone are sometimes sufficient to show constructive discharge." Grey v. Norwalk Board of Education, 304 F.Sup.2d 314, 324 (D.Conn. 2004) (threats of termination along with other conduct alleged supported inference of constructive discharge), as is evidence that employer deliberately sought to induce an employee to leave. Id. "A constructive discharge may be inferred when an employer threatens an employee with termination [or] suggests that she resign or retire . . ." Riedinger v. D'Amicantino, 974 F.Sup. 322, 330 (S.D.N.Y. 1997).
In the first count, Antorino alleges a series of events which, when viewed in the light most favorable to sustaining the legal sufficiency of his complaint, support an inference of constructive discharge. Specifically, he alleges that beginning in 2003, although construction permit fees were increased, his budget was cut requiring him to reduce his part-time inspection staff from three to one and that Scarpati refused his requests for additional personnel to conduct inspections at a time when his work had escalated. By 2006, he alleges, given the reduced staff it was not feasible to perform hundreds of inspections per week so he sometimes asked Kuchta to assist in performing preliminary inspections and Scarpati and the town engineer were aware that Kuchta worked with Astorino under his supervision. Nonetheless, when this practice became publicly known in September 2006, Scarpati suspended Astorino and, although he had been advised by the police chief that there was no criminal activity to investigate, Scarpati told Astorino that an investigation was being conducted, that it was likely he could be arrested and that if he were criminally charged he would be terminated, losing his pension and family health insurance coverage. Finally, Astorino alleges that Scarpati told him to retire.
Facts sufficient to allege a constructive discharge, however, are not sufficient on their own to state a cause of action for wrongful constructive discharge. Sufficient facts to support causation, directly or inferentially, must be alleged. Generally, an "at will employment" can be terminated by either party at any time and for any or no reason. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 562-63, 479 A.2d 781 (1984); Fisher v. Jackson, 142 Conn. 734, 118 A.2d 316 (1955). There is a narrow exception to the employment at will doctrine which permits a former employee to bring a common law tort action for wrongful discharge, Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980), in which he is required to plead and prove that the employment terminated "for a reason violating public policy." Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). As the Sheets court clearly stated, however, it must be "a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Emphasis in original.) Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 475.
In order to sufficiently state a cause of action for wrongful constructive discharge, Astorino had to plead that he was dismissed for a reason that violated an important public policy. In the absence of any express allegation in the complaint that Astorino's "discharge violated any explicit statutory or constitutional provision," the court must examine the facts alleged to determine whether his discharge "contravened any judicially conceived notion of public policy." Morris v. Hartford Courant Co., supra, 200 Conn. 680.
"Given the inherent vagueness of the concept of public policy," id., the Connecticut Supreme Court has only rarely concluded that an employee's termination violated an important "judicial conceived" public policy. In both Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 471, and Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997), the court determined that terminating an employee for refusing to do something illegal or for reporting illegality is an actionable violation of the public policy expressed in the underlying statutes or regulations that prohibited the conduct. Similarly, in Antinerella v. Rioux, 229 Conn. 479, 493, 642 A.2d 699 (1994), the court concluded that the termination of a process server in order to perpetuate a statutorily prohibited fee splitting arrangement was actionable and presented "claims that genuinely involve the mandates of public policy directly derived from state statutes." In Parsons v. United Technologies Corp., 243 Conn. 66, 80, 700 A.2d 655 (1997), the court considered certain specific statutes concerning work place safety when it held that the public policy of Connecticut reflects "broad legislative concern for the physical welfare and safety of Connecticut employees [and] gives . . . employee a cause of action for wrongful discharge . . . if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties."
On the other hand, in Daley v. Aetna Life Casualty Co., 249 Conn. 766, 797-804, 734 A.2d 112 (1999), the court refused to recognize employer accommodation of an employee's request for a flexible work schedule for child care purposes as a sufficiently important public policy notwithstanding the plaintiff's reliance on state and federal employment and child welfare statutes. And in Morris v. Hartford Courant Co., supra, 200 Conn. 678, where the plaintiff alleged only that the defendant falsely charged him with misappropriating company funds and wrongfully discharged him because it failed to properly investigate the matter, the court concluded that these allegations did not implicate an important violation of public policy, holding that "a false but negligently made accusation of criminal conduct as a basis for dismissal is not a demonstrably improper reason for dismissal and is not derived from some important violation of public policy." (Internal quotation marks omitted, emphasis omitted, citation omitted.) Id. at 680.
Astorino's allegations closely resemble those in Morris. Viewed in the light most favorable to him, the complaint appears to allege that Scarpati used Astorino as a scapegoat in an attempt to deflect attention from his own conduct and that this left Astorino with a Hobson's choice to either retire in the face of the on-going investigation in order to retain his health insurance benefits or risk termination if criminally charged as a result of the on-going investigation. While Scarpati's conduct in pursing the investigation of Astorino and discussing the investigation with the media may have been the unpleasant impetus for Astorino's decision to terminate his employment, judged objectively, Fenner v. Hartford Courant Co., 77 Conn.App. 185, 197, 822 A.2d 982 (2003), it does not rise to the level of a demonstrably improper reason derived from the violation of an important public policy that is required for an actionable claim of wrongful constructive discharge. Accordingly, count one is stricken.
II.
In count two, Astorino has claimed intentional infliction of emotional distress. This tort consists of four elements: "It must be shown: (1) that the actor 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.' (Citations omitted, internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). The defendants have moved to strike this count on the ground that the complaint fails to allege sufficient facts to support the second element.
"Liability [for intentional infliction of emotional distress] 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 hut to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965)." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). Liability requires "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 254, n. 5, 510 A.2d 1337 (1986) quoting W. Prosser W. Keeton, Torts (5th ed. 1984) § 12, p. 60.
"[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 behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). The court must assess the allegations of count two in light of these requirements.
Count two incorporates the allegations of the first count and additionally alleges that "Scarpati blamed the plaintiff for illegal conduct of which he was innocent and of which the defendants knew he was innocent, solely for the purpose of absolving themselves of any responsibility for charging excessive fees to residents and builders, while failing to provide adequate town inspection purposes to Town residents." (¶ 29.) For the purpose of ruling on the motion, the court will assume that, as alleged in paragraph 30, Scarpati's conduct was intentional.
The court has compared Scarpati's alleged behavior with behavior that our appellate courts have concluded did not rise to the level of extreme and outrageous conduct and concludes that it, too, is insufficient. For example, in Carrol v. Allstate Insurance Co., supra, 262 Conn. 438-44, the plaintiff introduced evidence at trial that the defendant's investigation of a fire at the plaintiff's home was "neither thorough nor neutral," id., 440, and that the defendant's investigator reached the false conclusion that the fire was arson impulsively and with a possible racially-based motivation. An inference could have been drawn from the evidence that the investigator tended "to find arson as the cause of suspicious fires and to ignore facts counter to the conclusion of arson, so that the defendant would continue to employ [him] frequently." Id., 441. There was also evidence that the defendant made numerous requests for information from the plaintiff, including multiple interviews and visits to his house, which "bordered on harassment." Id. The Supreme Court concluded that these facts were insufficient to support a finding of extreme and outrageous conduct. In Appleton v. Board of Education, supra, 254 Conn. 211, although the principal of the plaintiff's school ridiculed her in front of colleagues and made disparaging remarks about the plaintiff's behavior to her daughter, the police escorted the plaintiff from her school to her car and the plaintiff was "subjected to two psychiatric examinations at the request of the board [of education]," the Supreme Court concluded that the occurrences were merely "distressing and hurtful" but not "extreme and outrageous conduct within the meaning of the precedents . . ."
In Carnemolla v. Walsh, 75 Conn.App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the Appellate Court found that the following facts did not constitute extreme and outrageous conduct as a matter of law: "The plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling funds and requested that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotional upset." In Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006), the court concluded that the plaintiff's claim that the defendants undertook an investigation based on incorrect allegations made against her by its treasurer, to which she had no opportunity to respond, did not rise to level of extreme and outrageous conduct. In Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568-69, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007), in affirming the trial court's decision to strike a claim of intentional infliction of emotional distress, the court found that the trial court properly rejected a conclusory allegation that the defendant's fabricated disciplinary action against the plaintiff and that the plaintiff's specific allegation that he was subjected to three disciplinary actions although no investigations were conducted was insufficient to support a finding of extreme and outrageous conduct, even when viewed in the light most favorable to sustaining the sufficiency of the complaint.
Although it can be reasonably inferred from Astorino's allegations that Scarpati used him as a scapegoat in an effort to deflect attention away from Scarpati's own conduct, a reasonable fact finder could not conclude that this behavior can be distinguished from falsely accusing someone of embezzlement or impulsively, and with an improper racial motive, determining that a homeowner has committed arson or subjecting an employee to ungrounded uninvestigated disciplinary actions. Moreover, unlike the facts in Celotto v. Brady, Superior Court, Judicial District of New Haven, Docket No. 065003279 (May 14, 2008, Bellis, J.), upon which Astorino relies, in this case Astorino alleges that the police investigation resulted in misdemeanor charges that were filed against him in February 2007 (¶ 25) and, while he alleges those charges were subsequently dismissed in May 2008 (¶ 26), he does not explain the basis for the dismissal. Thus, a reasonable fact finder could conclude that evidence was uncovered during the course of the investigation into Astorino's conduct by the local and state police which was sufficient to support a finding of probable cause of criminal conduct on Astorino's part. Accordingly, the court concludes, as a matter of law, that the facts alleged cannot support a claim for intentional infliction of emotional distress because the conduct cannot be found to be extreme and outrageous and count two must be stricken.
In distinguishing Celotto's case from Tracy v. New Milford Public Schools, supra, 101 Conn.App. 560, Judge Bellis denied the defendant's motion for summary judgment because the plaintiff provided "a substantial evidentiary record, including evidence that the defendants were aware, or should have been aware, of additional incidents where money was lost or stolen while out of the plaintiff's control, both prior to and during the plaintiff's employment but took no disciplinary action with regard to those incidents . . . that other employees had access to the lost money but were not scrutinized or judged in the same manner as the plaintiff. It is undisputed that the police determined that there was `no probable cause to make an arrest or evidence which would support an arrest' on the basis of the final lost-money incident prior to the plaintiff's termination, and that the police investigation was halted within a month after the plaintiff was discharged and the defendant Dr. Brady informed the police that the thefts had stopped." (Emphasis supplied.)
III.
Based on the foregoing, count one and count two are stricken for the reasons stated above. Count three is stricken by consent.