Opinion
CV156052525S
04-21-2016
Amy Benedict v. The Cheese Cake Factory
UNPUBLISHED OPINION
MEMORANDUM OF DECISION--MOTION TO STRIKE
William J. Wenzel, J.
This action comes before the court on the defendant's Motion to Strike the four counts of the complaint asserted by plaintiff. The allegations are that plaintiff was an at will employee of the defendant which operates as a restaurant serving food and beverages. Plaintiff's position was as a server. On one day in June of 2015, while working, plaintiff spilled some liquid on the soda machine. This caused another employee, plaintiff's floor supervisor, to begin berating plaintiff, leading to physical threats by the supervisor against plaintiff. Trying to avoid violence, plaintiff sought out the night manager and began to explain what happened. At that point, the floor supervisor attacked plaintiff causing her injuries.
The night manager broke up the fight and then interviewed plaintiff and other witnesses, took photos of her injuries and also retrieved video from the restaurant's surveillance system. Both plaintiff and the supervisor were sent home. The police were not called. About one week later, plaintiff was called in and fired. Plaintiff alleges in Count One that this discharge was wrongful because even though defendant knew plaintiff was the victim of the assault, she was terminated for reporting the harassment and being the victim.
In Count Two, plaintiff alleges a claim for negligence for failing to protect her from the assault and allowing an unsafe environment to exist where the supervisor felt empowered to threaten and assault the plaintiff.
In Count Three, plaintiff asserts a claim for intentional infliction of emotional distress on the basis that defendant intentionally ignored the fact that plaintiff was a victim of an assault and punished her for reporting this. In Count Four, plaintiff claims negligent infliction of emotional distress by defendant's failure to protect her from the assault and then punishing her as the victim by firing her.
Defendant's motion attacks the legal sufficiency of each of the four counts.
Standard of Review
" 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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). " 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). The court " construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." Connecticut Coalition, 295 Conn. at 252.
Discussion
The claim in Count One is for wrongful discharge under Connecticut's common law. Connecticut first recognized this cause of action in Sheets v. Teddy's Frosted Foods, Inc. 179 Conn. 471, 427 A.2d 385 (1980). In Sheets, the court " sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy." Id. at 475. In cases which have involved this right of action, the courts have struggled with exactly what policies might give rise to such actions. In Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 802 A.2d 731 (2002) the court stated, " [W]e [have] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception." Id., 260 Conn. at 698-99. The Connecticut Supreme Court continued on to explain the standard used to clarify the principle involved: " In evaluating claims, [w]e look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision or whether he alleged that his dismissal contravened any judicially conceived notion of public policy . . ." Id., 260 Conn. at 699.
Defendant begins its argument by correctly noting that plaintiff is not claiming that her discharge was in violation of any contract or by virtue of her status as a member of a protected class. Defendant also notes that this count expressly alleges that the plaintiff was an at-will employee.
In Thibodeau, the court repeated " our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one [and] courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation . . . Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy. Id., 260 Conn. at 701 (internal citations omitted).
Applying these principles to the instant count leads this court to conclude that Count One is legally insufficient. First, nowhere in this count is any public policy identified or alleged. No statute, be it state or federal, is referenced, no constitutional provision is mentioned and no public policy identified by the courts has been addressed. The best that can be said is that this count alleges the decision of the employer was wrong because defendant decided to " terminate . . . the plaintiff for reporting the harassment and for being the victim of an assault." Complaint, Count One, par. 23. Of course no one is in favor of a person being terminated because they are a " victim" or raising some problem with their employer. But the courts recognizing the tort of wrongful discharge have steadfastly refused to make it a catchall basis allowing suit whenever an employer has made a decision which is unpopular or allegedly incorrect.
During oral argument, plaintiff's counsel suggested that the public policy violated could be found in § 54-85b. Based on this claim, counsel for each side were asked to file supplemental briefs addressing this issue. While defendant filed such brief, the plaintiff has failed to do so. The court can only take this failure as an abandonment of this contention.
Sec. 54-85b. Employment protection for witnesses and victims of crime. Penalty. Action for damages and reinstatement. (a) An employer shall not deprive an employee of employment, penalize or threaten or otherwise coerce an employee with respect to employment, because (1) the employee obeys a legal subpoena to appear before any court of this state as a witness in any criminal proceeding, (2) the employee attends a court proceeding or participates in a police investigation related to a criminal case in which the employee is a crime victim, or attends or participates in a court proceeding related to a civil case in which the employee is a victim of family violence, as defined in section 46b-38a, (3) a restraining order has been issued on the employee's behalf pursuant to section 46b-15, (4) a protective order has been issued on the employee's behalf by a court of this state or by a court of another state, provided if issued by a court of another state, the protective order shall be registered in this state pursuant to section 46b-15a, or (5) the employee is a victim of family violence, as defined in section 46b-38a. For the purposes of this section, " crime victim" means an employee who suffers direct or threatened physical, emotional or financial harm as a result of a crime or an employee who is an immediate family member or guardian of (A) a person who suffers such harm and is a minor, physically disabled, as defined in section 46a-51, or incompetent, or (B) a homicide victim.
Even if plaintiff has not abandoned this claim, it must be noted that not only is no such violation alleged in the complaint, the allegations made do not even fit within the language of this statute. This statute addresses five specific instances where an employee is protected from discharge by their employer. The instances all involve participation in a criminal court proceeding or police investigation; where a court has issued a restraining or protective order for the benefit of the employee, and where the employee is a victim of family violence as defined by statute. Here, there is no allegation that the assault alleged was ever reported to the police or that plaintiff was ever involved in court proceedings or an investigation, covered by any court order or the assault alleged met the criteria for a family violence crime. In short, there are no allegations which would bring the plaintiff within the coverage of § 54-85b. If plaintiff's intent was to claim this statute identifies some broader public policy protecting victims of even unreported crimes, this court is reluctant to go beyond the specific scenarios selected by the legislature, given Thibodeau 's recognition that a public policy based on a statutory scheme is defined as much by what is not covered as by what is covered, 260 Conn. at 706-07.
If there were allegations in the complaint which fell within the express statutory remedy provided in § 54-85b(c), then, of course, " the existence of the statutory remedy precludes the plaintiff from bringing a common law wrongful discharge action." Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000). See also, Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985).
Accordingly, Count One fails to state a legally sufficient cause of action.
Count Two
Count Two asserts a claim for negligence on the basis that the defendant " failed to protect the safety and wellbeing of its employee [and] negligently allowed one of its supervisors to assault an employee.; ' Complaint, Count Two, par. 25. There are no other allegations as to what the defendant failed to do, how the defendant failed to act or how the defendant allowed the assault to take place.
Defendant first challenges the legal sufficiency of this count on the basis that this claim is barred by the exclusivity provision of Connecticut's Workers' Compensation Act., General Statutes § 31-284(a). This statute bars an employer's liability " for any damages on account of personal injury sustained by an employee arising out of [her] employment." Connecticut has consistently held that when an employee's injury is covered by the Workers' Compensation Act, " statutory compensation [under the act] is the sole remedy and recovery in common-law tort against the employer is barred." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985). In Perill, which involved far more detailed and systematic misconduct, the Connecticut Supreme Court held that where the assaults were alleged to have been committed by a fellow employee, during business hours and on the premises of the employer, such acts were covered by the act, absent an allegation that the assaults were " intentionally directed or authorized" by the employer. 196 Conn. at 532-33. Here, there are no such allegations. Defendant has also cited two cases where judges of the Superior Court have held this statute bars claims for negligence arising from the assault by one employee on another. DeMaria v Country Club of Fairfield, CV 02392621, 2003 WL 356700 (Conn.Super.Ct. 1/17/03), and Drozdowski v. Smile Sensations, LLC, CV 126014629, 2013 WL 3958244 (Conn.Super.Ct. 7/9/13) .
In fact, the Complaint alleges that Managers of the defendant, including the Night Manager, physically intervened to restrain the assailant " in order to protect" plaintiff. Complaint. Par. 17.
Plaintiff does not dispute this defense other than to claim it has no application where the employee committing the tort can be identified as the alter-ego of the employer. Here, the pleading fails to qualify for that exception. There is no allegation to this effect, expressly or by implication. In her opposition to this motion, plaintiff relies on the allegation in Count Two that the employee committing the assault was a " shift leader." (Complaint, par. 9.) Clearly this is not sufficient to assert a claim for alter ego. The attempt to transform a supervisor with some authority over a plaintiff into the alter ego or authorized agent for an employer was addressed quite clearly in Jett v. Dunlap, 179 Conn. 215, 218-19, 425 A.2d 1263 (1979) and emphatically rejected. For these reasons, the court holds Count Two is barred by the exclusivity provision, § 31-284.
Not only is there no claim the assailant was the alter ego of the defendant limited liability company, the complaint alleges the supervisor was relatively junior in authority. This count alleges this incident occurred in front of at least three " managers" (id., par. 15), including the night manager. The Complaint clearly indicates that the " shift leader" was reporting to at least the Night Manager, who had the authority to order both the assailant and plaintiff to go home. Id., Par. 19. The relevant decision to terminate the plaintiff's employment is alleged to have been made at an even higher level of authority. The Complaint alleges that the General Manager of the restaurant made the decision to remove plaintiff from the work schedule, order her to report in and meet and then terminate her employment. Id., Par's 21-22.
Count Three
Count Three alleges a claim for intentional infliction of emotional distress. The essential elements of this tort are as follows: " (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." Watts v. Chittenden, 301 Conn. 575, 586, 22 A.3d 1214 (2011) (quoting from, Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).) Count Three fails to assert or imply several of these essential elements.
The first element, that the defendant " intended to inflict emotional distress or . . . knew or should have known that emotional distress was the likely result, " is not to be found under even the most liberal and generous reading of the Complaint. The only time any form of the word " intentional" is used in this Count is in paragraph 29. That allegation is that defendant " intentionally ignored the fact that [plaintiff] was a victim of an assault." There is simply no allegation that defendant either intended to cause emotional distress or knew or should have known that emotional distress was the likely result.
The second element is that the conduct was extreme and outrageous. In evaluating a motion to strike claims of this nature, it is appropriate for the court to make an initial determination if the conduct alleged meets this level. Appleton v Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Claims by employees that the actions of their supervisors and employers are wrong, demeaning, insensitive and even insulting are not new. Connecticut has been careful to note that not every instance of " hurt feelings" qualifies for this tort. The tort is rightly reserved for only those claims which pass " all possible bounds of decency [as to be] utterly intolerable in a civilized community." Id., 254 Conn. at 210-11. Here, plaintiff alleges defendant not only reached the wrong conclusion but also disregarded the truth and plaintiff's status as a " victim." The count alleges, in essence, that the employer ignored correct information from the plaintiff (that she was the victim) and punished her for reporting something the employer did not want to hear (harassment by a co-employee). This does not strike this court as unusual and such unfairness may be happening in workplaces throughout the world each and every day. To characterize such an event as outrageous would invite the court to second guess every action of every employer whenever a party alleged they were extremely upset.
Plaintiff also alleges that the employer initially acted to protect her and stop the misconduct, heard her side of the story, reviewed video of the event and interviewed other witnesses.
While the court is interested in seeing every employer's power always exercised in the correct manner, it is not empowered to evaluate a claim of intentional infliction of emotional distress by that standard. The court here simply cannot find that the action of the defendant, even if all other essential elements had been expressly stated, approaches the standard of " outrageous." In making this determination, the court finds the thoughtful decision in Drozdowski v. Smile Sensations, LLC, cv-12 6014629, 2013 WL 3958244 (Conn.Super. 7/9/13) , to have been helpful in calibrating the appropriate standard to be utilized. Given these deficiencies, Count Three shall be stricken.
Count Four
Count Four asserts a claim for negligent infliction of emotional distress. A claim of negligent infliction of emotional distress requires a plaintiff to allege facts supporting the following elements: " (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
The court begins by noting that the plaintiff has simply not alleged any of these essential elements.
Looking first to the second element, the count must allege that " the plaintiff's distress was foreseeable." The substance of this count includes two distinct actions of the defendant as a basis for the claim. These appear in paragraph 34 of Count Four. First, plaintiff complains defendant " negligently failed to protect her." Second, plaintiff complains that defendant " ignored the fact that [plaintiff] was a victim . . . and punished her." On the first concern, the complaint fails allege that the assault in question was foreseeable. None of the allegations incorporated in this count present a factual basis (or even conclusory claim) that this assault was predictable or foreseeable. Indeed, the claim for negligence in Count Two includes the allegation that the assault occurred " suddenly and without warning." Complaint, par. 16. Absent an allegation that defendant could foresee the assault, the court does not see how any consequences of the assault could be foreseeable. Absent some factual basis for the claim of the emotional distress being foreseeable, this claim is fatally deficient.
On the second concern, the only punishment alleged in the complaint which resulted from the assault is termination of employment. " [N]egligent infliction of emotional distress in the employment context arises only where it is " based upon unreasonable conduct of the defendant in the termination process. The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress." Parsons v. United Technologies Corp., Sikorsky Aircraft Div., 243 Conn. 66, 88-89, 700 A.2d 655 (1997) (internal quotations and citations omitted). There is nothing alleged in the complaint which states or implies that the termination was handled in any way which was humiliating, cruel or inconsiderate.
As Count Four does not allege the essential elements of the tort of negligent infliction of emotional distress, it is insufficient and must be stricken.
In conclusion, the motion to strike is granted as to all four counts.
(b) Any employer who violates subdivision (1) of subsection (a) of this section shall be guilty of criminal contempt and shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both. (c) If an employer discharges, penalizes or threatens or otherwise coerces an employee in violation of subsection (a) of this section, the employee, not later than one hundred eighty days from the occurrence of such action, may bring a civil action for damages and for an order requiring the employee's reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorneys fee to be fixed by the court.