Opinion
No. CV 05 4009159 S
January 8, 2008
MEMORANDUM OF DECISION
Before this court are the defendants' motion for summary judgment and memorandum of law in support of said motion filed on February 27, 2007, as well as the plaintiff's memorandum of law in opposition, filed May 4, 2007. The defendants filed a reply on July 13, 2007, and this court heard argument on October 1, 2007. Having reviewed the briefs and supporting documentation of all parties, the court grants the motion for summary judgment on all five counts.
PROCEDURAL HISTORY
On March 3, 2005, the plaintiff, Jennifer Cassidy, filed a five-count complaint against the defendants, John Jacewicz and The Hartford Financial Services Group (The Hanford). Count one alleges that Jacewicz tortiously interfered with the plaintiff's employment relationship with The Hartford. In count two, the plaintiff alleges that Jacewicz defamed her by accusing her of fraud and of violating company policy. In count three, the plaintiff alleges intentional infliction of emotional distress by Jacewicz. In count four, the plaintiff alleges negligent infliction of emotional distress by Jacewicz. Finally, in count five, the plaintiff alleges breach of contract by The Hartford for terminating her employment without cause.
LEGAL STANDARD ON SUMMARY JUDGMENT
"[Summary judgment] shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
FACTUAL BACKGROUND
In light of its obligation to consider whether there is any genuine issue of material fact, the court notes from the outset that the issue of whether the plaintiff in fact engaged in fraudulent conduct is vigorously disputed. Given the causes of action asserted by the plaintiff, however, the court does not find that those disputed facts are material for purposes of summary judgment. Since the plaintiff's various causes of action focus on the allegedly tortious conduct of the defendants, Jacewicz and The Hartford, the court's recitation of the following facts implicating the conduct of the plaintiff, to the extent that some of it is disputed, is necessary solely to give context for the defendants' conduct.
The parties' undisputed evidence reveals that in February 2003, Jacewicz, an investigator for The Hanford, conducted an inquiry into the filing of suspicious expense reports and emails. This inquiry revealed that, over the course of several years, an employee of The Hartford named Bonnie Lins had stayed in the plaintiff's spare bedroom whenever she traveled to Connecticut on business. Typically, Lins would pay the plaintiff, who was also employed by The Hartford, $30 per night. At some point after May 2002, Lins expressed an interest in renting out the plaintiff's first floor apartment for herself-and/or out-of-state employees of the Hartford. Lins and the plaintiff agreed on a nightly rental rate of $94 per night. The plaintiff then proceeded to make plans to renovate the apartment and to discuss such plans with Lins.
Also undisputed is a series of emails between Lins and the plaintiff as well as an invoice designed by Lins, which she ultimately submitted to the Hartford for reimbursement for a four-night stay at the plaintiff's residence at the $94 per night rate. In a sworn statement dated February 11, 2003, however, Lins stated that she had not stayed at the plaintiff's apartment and in fact, continued to stay in the plaintiff's spare bedroom. Nevertheless, she submitted the invoices, received reimbursement and electronically transferred the sum of $376 to the plaintiff on February 3, 2003.
Also undisputed is the plaintiff's own assessment in her sworn statement that the series of workplace emails, which included the proposed invoices designed by Lins, sounded "terrible" and "looked very bad" for her and that she "could understand why there is such concern." In addition, the parties do not dispute that this series of emails and invoices contributed to Jacewicz's findings and investigative report and also contributed to the Hartford's decision to terminate the plaintiff. While she denied in her interview with Jacewicz that she and Lins had joint plans to renovate the apartment and denies understanding Lin's reference to "devis[ing] an invoice," the plaintiff does not dispute her receipt of the series of emails beginning November 25, 2002. In the November 25, 2002 email, Lins suggested that she stay at the plaintiff's home and "bill it out ($99) to begin our renovation project" and that they "could devise an invoice." In addition, the plaintiff does not dispute that in at least two of her emails sent seven weeks later, Lins attached the invoices for the plaintiff's review and approval. Specifically, in her email of January 13, 2003, Lins stated: "I wanted to put this in for two nights last week. Do you have any revisions, or suggestions for the invoice format? This was the only format I could find." In uncontradicted deposition testimony, the plaintiff said she understood from the attached invoice that Lins was seeking reimbursement of $188 for two nights, and that her response to Lins' request for approval was "this looks fine to me. Only thing is that I don't have a fax." In the subsequent revised invoice attached to an email dated January 17, 2003 entitled "Your new name," Lins had changed the heading of "rental unit" to "Ashley Suites" and, in that email, asked the plaintiff if it was okay that she was not adding sales tax. Again, in her uncontradicted deposition testimony, the plaintiff recalled that she had received the email and responded to Lins that it was okay.
Furthermore, the plaintiff does not dispute that Lins stayed only in the $30 per night room, rather than the $94 per night apartment that was not ready for occupancy during the relevant period of time. She concedes that she never had a business called "Ashley Suites." The plaintiff acknowledged receiving the email of January 23, 2005 entitled "all OK" wherein Lins reported that the "expense report went through no problem," and that she would be sending her a check for $396. In response, according to her deposition testimony and counteraffidavit dated May 3, 2007, she told Lins the apartment was not ready or rentable and thus the amount was incorrect. Nevertheless, and notwithstanding the different reasons given in her statement, her deposition testimony and her counteraffidavit for doing so, it is undisputed that the plaintiff accepted the $376 via electronic transfer on February 3, 2003 and did not return the excess to either Lins or to the Hartford prior to the investigation.
In her statement, the plaintiff reported that she was surprised to receive the electronic transfer of $376, believing that she would receive only $120 ($30/evening for the rented room) but didn't report this because she did not feel a need to. In her deposition, she reasserted her surprise at the amount and testified that she understood that the $376 was obtained from the Hartford in connection with Lins' stays at her property, but never gave the money back. Instead, she told Lins that she was not entitled to that amount. In her counteraffidavit, the plaintiff asserted that she had never seen this particular invoice prior to Lins' submission for reimbursement. Also in the affidavit, the plaintiff stated for the first time that Lins had been in the practice of paying for future stays, and that she assumed the excess was in payment for future lodging. While she again stated her surprise at the amount, she stated that she thought it would "even out in the future." While the court notes the extent to which the parties dispute the plaintiff's motivation for keeping $396, the court does not find that these facts are "material" facts in light of the legal issues before the court in this motion for summary judgment, as defined supra.
After an investigation by Jacewicz, which encompassed a review of the series of emails and invoices, as well as interviews with both the plaintiff and Lins, The Hartford terminated both employees. In her complaint and affidavit, the plaintiff states that, during her interview of February 11, 2003, Jacewicz treated her in a very hostile manner, raising his voice and threatening her. The affidavit further states that Jacewicz lied to the plaintiff, accused her of lying, and bullied her into signing a statement that was inaccurate. Moreover, until her termination on February 14, 2003, the plaintiff had believed that if she did her job well and remained loyal to The Hartford, she could only be terminated with cause and that any discipline administered had to be in keeping with The Hartford's progressive discipline policy. The Hartford's progressive discipline plan, however, contains language disclaiming any contract and stating that The Hartford reserves the right to terminate employment at will, with or without cause or advance notice.
DISCUSSION 1. Tortious Interference
Count one of the complaint alleges that Jacewicz tortiously interfered with the plaintiff's employment relationship with The Hartford. Jacewicz argues that the undisputed material facts show that Jacewicz did not act with an improper motive or means, did not act outside the scope of his authority, did not act for personal gain, and did not act with knowledge of the existence of any contract between the plaintiff and The Hartford. The plaintiff counters that the material facts are in dispute as to Jacewicz's conduct throughout his encounter with the plaintiff. The plaintiff argues that Jacewicz acted outside the scope of his authority by failing to follow procedures and by trying to get "another notch on his belt."
"The elements of tortious interference are the existence of a contractual or beneficial relationship, the [defendant's] knowledge of that relationship, the intent to interfere with it, and the consequent actual loss suffered by the plaintiff." (Internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn.App. 724, 752, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied, 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2.d 386 (1999). "[A]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . . [the agent, however,] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Internal quotation marks omitted.) Appleton v. Board of Education, 53 Conn.App. 252, 267, 730 A.2d 88 (1999), rev'd on other grounds, 254 Conn. 205, 757 A.2d 1059 (2000). Therefore, before any other analysis on this matter, it is essential to determine whether Jacewicz was an agent of The Hartford acting within the scope of his authority.
"In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer . . . Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment . . . [b]ut there are occasional cases [in which] a servant's digression from [or adherence to] duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003). "An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions." (Internal quotation marks omitted.) Id., 786.
The uncontested facts of this case show that Jacewicz was an investigator for The Hartford, that his duties included the investigation of suspected instances of fraud by employees and that, in interviewing the plaintiff, he was investigating a suspected instance of fraud. The plaintiff argues that certain procedural irregularities of the investigation were evidence of a sloppy investigation that brought Jacewicz's actions outside the scope of his employment. All of the conduct alleged by the plaintiff and detailed in the evidence of both parties, however, involved activities that fell within the purview of Jacewicz's core duties. Even assuming that the plaintiff's evidence is accurate and that Jacewicz conducted a sloppy investigation and failed to involve the plaintiff's human resources representative, Jacewicz was still engaged in the investigation of fraud, an activity which all parties agree was within his job description. A failure to adhere to company protocol may be a matter for The Hartford to address internally, but such variances from procedure are not enough to remove Jacewicz's actions from the scope of his employment.
Next, the plaintiff argues that Jacewicz was motivated by personal gain to find fraud in this case, assuming that The Hartford measures Jacewiez's performance by the number of instances of actual fraud he finds. This motive, argues the plaintiff, was sufficient to remove Jacewicz's actions from the scope of agency. The plaintiff has not provided any evidence to establish that this is how The Hartford evaluates Jacewicz's performance. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
The plaintiff has shown facts regarding what the established procedures are for an internal fraud investigation by The Hartford, and the plaintiff has shown facts regarding how Jacewicz conducted his investigation. The plaintiff has not, however, shown any fact establishing that Jacewicz's variances from procedure were his attempts to "[use] the corporate power improperly for personal gain." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 53 Conn.App. 267. Even assuming for the sake of argument that The Hartford provides Jacewicz with a favorable performance review based on the number of cases of fraud that he finds, Jacewicz is still acting at the behest of his employer. If The Hartford is providing the motivation for this activity, then this motivation cannot, in and of itself, remove the activity from the scope of employment.
As such this court finds that because Jacewicz was acting within the scope of his agency, the plaintiff cannot as a matter of law prevail in her claim of tortious interference with employment and thus grants summary judgment to the defendant as to count one.
2. Defamation
Count two of the plaintiff's complaint alleges that Jacewicz defamed the plaintiff by accusing her of fraud and of violating the company policy. Jacewicz moves for summary judgment on the ground that there was no unprivileged publication of the results of his investigation. In his memorandum of law supporting summary judgment, Jacewicz argues that he enjoys a qualified privilege with regard to communications within The Hartford. The plaintiff counters that qualified immunity requires a determination of whether the defendant acted with actual malice in making the defamatory statements. According to the plaintiff, whether a party acted with malice is a question of fact ill-suited for summary judgment.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007). "Although intracorporate communications once were considered by many courts not to constitute `publication' of a defamatory statement, that view has been almost entirely abandoned. . ." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27-28, 662 A.2d 89 (1995). "[P]ursuant to the doctrine of intracorporate communication . . . the element of publication may be satisfied where the statement about the [employee] ha[s] been communicated among the [employee's] supervisors and ha[s] been included in the [employee's] personnel file." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 544 n. 23, 733 A.2d 197 (1999).
Here, the plaintiff alleges that Jacewicz accused her of fraud and of violating the company policy. In her complaint, the plaintiff states that this constitutes defamation. In support of his motion for summary judgment, Jacewicz included an affidavit, which, among other things, states that he did, in fact, communicate the results of his investigation to authorized personnel at The Hartford. Therefore, since neither party disputes that Jacewicz published these statements to third persons, and that, as a result of these statements, the plaintiff lost her job, the issues before the court are whether the intracorporate communications privilege applies to this situation and, if it does apply, whether the privilege was abused.
"[C]ommunications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 29. "There are two facets to the defense of privilege. The occasion must be one of privilege, and the privilege must not be abused . . . [W]hether the privilege was abused . . . depends upon whether there was malice in fact . . . in uttering and broadcasting the alleged defamatory matter." (Internal quotation marks omitted.) Id., 28. "If a defendant shows entitlement to the privilege, it will be presumed that the communication, though defamatory, was made in good faith and without malice in fact . . . Thus, once an occasion of privilege is found, it is plaintiff's burden to rebut the presumption of good faith. This rebuttal is accomplished by showing malice in fact in uttering and broadcasting the alleged defamatory matter . . . The actual malice sufficient to destroy this immunity is shown where the defendant utters the statement with knowledge that it was false or with reckless disregard of the truth or falsity of the facts stated . . . The plaintiff is required to come forward with solid circumstantial evidence of malice to overcome summary judgment." (Internal quotation marks omitted.) Bickford v. Phoenix Life Ins., Superior Court, judicial district of Hartford, Docket No. CV 04 4001177 (May 3, 2007, Stengel, J.); see also Kelly v. Meriden, 120 F.Sup.2d 191, 198-99 (D.Conn. 2000).
"[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006). "Although the existence of malice is an issue that must be determined by the trier of fact, the plaintiff, to defeat summary judgment, [bears] the burden of presenting a factual predicate for [her] contention that the [defendant's] actions were taken with malice . . . In other words, the plaintiff [has] to be able to point to facts, which, when taken in a light most favorable to the plaintiff's position, could be found by a trier of fact to constitute malice." Chadha v. Shimelman, 75 Conn.App. 819, 831, 818 A.2d 789, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003).
In the case before this court, there is no dispute that Jacewicz communicated the findings of his investigation to the appropriate individuals within The Hartford and that his communications concerned the investigation into the plaintiff's involvement in efforts to defraud the company. As such, Jacewicz has established his burden of showing that the statements are protected by a qualified privilege since they are clearly communications "necessary to effectuate the interests of the employer in efficiently managing its business." Torosyan v. Boehringer Ingelheim Pharmaceuticals, supra, 234 Conn. 29.
Given that the defendant is entitled to a presumption that he acted with good faith, the plaintiff, to survive summary judgment, must meet her burden of establishing a factual predicate, either in her pleading or in the evidence presented, to support a finding that Jacewicz acted with malice. This she has failed to do.
The plaintiff relies upon the argument that Jacewicz's failure to follow procedures in conducting his investigation constitutes malice. See Cutrone v. Community Options, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172630 (November 24, 2003, Matasavage, J.) (denying summary judgment because defendant's investigation, which included witness statements collected only after plaintiff's termination and a failure to interview plaintiff supported malice issue). Even when looking at the facts in the light most favorable to the plaintiff, however, the improprieties in Jacewicz's investigation do not meet the requirement that his statements be made "with knowledge that [the statements were] false or with reckless disregard of the truth or falsity of the facts stated." Bickford v. Phoenix Life Ins., supra, Superior Court, Docket No. CV 04 4001177. The facts as presented show that the plaintiff felt browbeaten, betrayed and as though she was treated unfairly. The facts may also show that Jacewicz did not include a human resources representative in the investigation, that Jacewicz was not familiar with The Hartford's travel policy, and that at least one form used in the investigation considered the plaintiff a "subject" rather than a "subject/perpetrator" as it did for Lins. These facts, however, do not raise the specter of a deliberate or reckless reporting of false information. At worst, these facts could demonstrate that the investigation was, to use the plaintiff's words, sloppy and hasty.
As such, the court finds that Jacewicz's communications fall within the intracorporate communications privilege. Given the presumption that Jacewicz acted in good faith, the plaintiff has failed to establish a factual predicate that Jacewicz communicated the allegedly defamatory statement with either malice or reckless disregard for the truth. This court therefore finds that the plaintiff cannot prevail as a matter of law and grants summary judgment as to count two.
3. Intentional Infliction of Emotional Distress
The plaintiff's third count alleges that Jacewicz committed intentional infliction of emotional distress in the course of the interview three days before her termination. The plaintiff alleges that Jacewicz browbeat and bullied her, refused to let her tell her side of the story and repeatedly threatened her. Jacewicz argues in his memorandum of law that his conduct during the interview does not reach the threshold of extreme and outrageous, citing a number of Connecticut cases as examples of conduct falling short of extreme and outrageous. The plaintiff, in her memorandum of law opposing summary judgment, argues that the question of whether Jacewicz's conduct rises to the level of extreme and outrageous is one best left to the jury.
"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 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.) Id., 210-11. "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." (Citations omitted.) Id., 210. "Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . ." Spencer v. Homer D. Bronson Co., Superior Court, judicial district of Waterbury, Docket No. CV 04 0183416 (August 13, 2004, Alvord, J.).
In Appleton v. Board of Education, the plaintiff teacher claimed in her affidavit that one of the defendants "`made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read; `telephoned the plaintiff's daughter, representing that the plaintiff `had been acting differently' and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign." Appleton v. Board of Education, supra, 254 Conn. 211. The court determined that, while distressing to the plaintiff, these occurrences did not constitute extreme and outrageous conduct and, therefore, concluded that the defendants' conduct was insufficient to form the basis of an action for intentional infliction of emotional distress. Id., 212; see also Tracy v. New Milford Public Schools, 101 Conn.App. 560, 570, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007) (defendant's denying plaintiff a position, initiating disciplinary actions without proper investigation, defaming character of plaintiff and intimidating plaintiff were insufficient to form the basis for action based upon intentional infliction of emotional distress); Aquavia v. Board of Education, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 01 0075748 (July 22, 2003, Lager, J.) (conduct of plaintiff's supervisor, including moving plaintiff's office to remote location without informing him and openly criticizing him, where plaintiff developed severe depression for which he sought medical leave of absence and was terminated four months later, did "not rise to the requisite level of outrageousness to support a claim for intentional infliction of emotional distress").
In the case at bar, assuming all the facts presented in the evidence in the light most favorable to the plaintiff, Jacewicz, over the course of an hour and a half interview in his office, lied to the plaintiff, raised his voice to her, made accusations and "repeatedly threatened that he could tell if [she] was lying." Plaintiff's exhibit P. While Jacewicz's actions may have been "inappropriate, rude, poor mannered and possibly distressful to the plaintiff . . . [the conduct] does not amount to extreme and outrageous conduct." Langer v. Mail Delivery Courier Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4008535 (February 9, 2006, Hiller, J.). The plaintiff may have felt that Jacewicz's conduct was extreme and outrageous, but the standard for this tort is that the defendant's behavior must exceed "all bounds usually tolerated by decent society." Appleton v. Board of Education, supra, 254 Conn. 210. This requires judging the behavior against societal norms rather than using the plaintiff's subjective impressions. None of the evidence presented demonstrates that Jacewicz's behavior meets the high standard articulated in Appleton.
The court grants summary judgment for the defendant as to count three.
4. Negligent Infliction of Emotional Distress
Count four of the complaint alleges that Jacewicz's conduct during the interview on February 11, 2003, amounted to negligent infliction of emotional distress. In his memorandum in support of summary judgment, Jacewicz argues that, in an workplace setting, the tort of negligent infliction of emotional distress can only apply to the defendant's conduct during the termination process. Jacewicz contends that the conduct of which the plaintiff complains was not during the termination process. The plaintiff counters that the interview initiated the termination process, so therefore the tort can apply to Jacewicz's conduct during the interview.
In Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), the Supreme Court wrestled with and then definitively settled the issue of whether conduct in the course of employment, as opposed to during the termination of employment, may be considered in a cause of action for negligent infliction of emotional distress. Its holding could not be more clear: an "employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Id., 762-63. In drawing this bright line, the Court weighed heavily the public policy ramifications for recognizing a cause of action in ongoing employment relationships. Not only did the court observe that individuals should reasonably expect some level of emotional distress as a result of conduct in the workplace, it noted that the chilling effect of lawsuits on employees could detrimentally affect the workplace environment in a number of ways, such that, for example, employees may be inclined to "promote the interests of their employer less vigorously" or "refrain from reporting the improper or even illegal conduct of fellow employees." Id., 758.
In ongoing employment relationships, "individuals reasonably should expect to be subject to routine employment-related conduct, including . . . disciplinary or investigatory action arising from actual or alleged employee misconduct." Id., 757. As such, Jacewicz's interview of the plaintiff falls squarely within conduct recognized by the Supreme Court. While an investigatory interview may subject an individual to "some level of emotional distress, even significant emotional distress," it nevertheless cannot provide the basis for relief when such conduct occurs in the course of an employment relationship as opposed to termination. Id.
In the present case, the allegedly inappropriate conduct occurred during an investigation into the fraud rather than during the actual termination itself. The interview was on February 11, 2003, three days prior to the plaintiff's termination. The evidence from both parties shows that Jacewicz was not involved in the decision to terminate the plaintiff's employment. Plaintiff's exhibit N, p. 67, l. 10-20; defendants' exhibit P, paragraph 8. Jacewicz communicated the results of the interview to the appropriate corporate employees, who then made the decision to fire the plaintiff. While the interview may have produced evidence that led to the plaintiff's termination, none of the evidence tends to show that termination was part and parcel of the interview.
The plaintiff relies on Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005), for the proposition that the court should look at the entire circumstances surrounding her termination to determine if the claim is valid. See Dichello v. Marlin Firearms Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5002796 (January 22, 2007, Zoarski, J.T.R.) (42 Conn. L. Rptr. 706) (" Davis requires a court to consider the totality of the circumstances surrounding an employee's termination, rather than looking exclusively at the actual termination procedures"). In Davis, the plaintiff was presented with what the Court characterized as a "Hobson's Choice"; she could endanger her health and the health of her unborn child by accepting the new duties her employer had assigned, or she could refuse and be fired. Davis v. Manchester Health Care Center, Inc., supra, 88 Conn.App. 73. The court in Davis, however, was not confronted with the issue of whether the allegedly tortious conduct occurred in an ongoing employment relationship or during termination of her employment; that the conduct occurred in the process of her termination was evidently unchallenged. As such, the court is not persuaded that Davis provides any authority for blurring the otherwise bright line drawn by Perodeau.
In an elegant explication of the holding and reasoning in Perodeau, the court in Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district at Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) (33 Conn. L. Rptr. 206), confronted a similar argument by the plaintiff who claimed that it was impossible "to draw a bright line between conduct occurring in the course of the employment relationship and conduct occurring in the termination of employment." Id. Rejecting her attempt to characterize the termination process as extending throughout the course of the employment relationship, the court stated: "Termination means the ending, not the conduct which causes the ending. When one analyzes the policy reasons underlying Perodeau, one sees that conduct taking place within the employment relationship, even if wrongful and providing the basis for the claim of unlawful discharge, cannot provide the factual predicate for the emotional distress claim. If the actual termination is conducted wrongfully, then the action may lie. If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed." Id. See also Wilcox v. Yale University, Superior Court, judicial district of Waterbury, Docket No. CV 02 0174796 (August 24, 2005, Eveleigh, J.).
Similarly, the public policy reasons which so concerned the Perodeau court are present here. The plaintiff was the subject of an investigation conducted by Jacewicz, whose work required him to investigate allegations of fraud on behalf of the Hartford. Almost inevitably, employees subject to such investigations will experience emotional distress, even severe emotional distress. Nevertheless, the threat of lawsuits and the consequent impact on both investigators who must report on potential misconduct and on the workplace environment as a whole are the kinds societal costs which the Perodeau court deemed too high a price to pay in order to allow claims for negligent infliction of emotional distress in the context of ongoing employment. Perodeau v. Hartford, supra, 259 Conn. 762.
The court finds the plaintiff cannot prevail as a matter of law and grants summary judgment to the defendant as to count four.
5. Breach of Contract
The plaintiff's fifth count alleges a breach of contract by The Hartford. In its memorandum of law supporting summary judgment, The Hartford argues that there was no contract here and that, absent any sort of contract, the relationship between an employer and an employee is terminable at will by either party. The Hartford claims that it never agreed to undertake any form of contractual relationship with the plaintiff. The plaintiff counters that this case has a genuine issue of material fact as to whether a contract arose between the parties. Specifically, the plaintiff asserts that The Hartford's progressive discipline policy limited its ability to terminate the plaintiff's employment and that, during her employment at The Hartford, the plaintiff had been led to believe and relied upon the fact that The Hartford could only dismiss her for cause provided she performed her duties and remained loyal to The Hartford.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). "It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were." (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006). "All employer-employee relationships not governed by express contracts involve some type of implied `contract' of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn 532. "Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like. Thus, [a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 14.
Here, neither side argues that The Hartford and the plaintiff entered into an express employment contract dictating the terms and duration of her time with The Hartford. Rather, the plaintiff depends on the progressive discipline program, asserting that the program limited The Hartford's ability to terminate her employment without cause. Our Supreme Court has determined "that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 532. The court has noted, however, that, "[b]y eschewing language that could reasonably be construed as a basis for a contractual promise, or by including appropriate disclaimers of the intention to contract, employers can protect themselves against employee contract claims based on statements made in personnel manuals." Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199 n. 5, 520 A.2d 208 (1987), overruled on other grounds by Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993); see also, Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 535 (stating that disclaimers or avoiding contractual language can shield an employer from implied-in-fact contracts).
Both parties in this case submitted copies of this progressive discipline program, and both submissions are identical. Both copies of the progressive discipline program include the following language on the first page: "[These guidelines] do not, in any way, create or establish a contractual right or guarantee between any employee and The Hartford. Management, in consultation with HR and other units, as needed, retains the right in its sole discretion to determine the Company's response to any employment matter. For example, serious behavioral violations can result in immediate termination." Plaintiff's exhibit A; defendant's exhibit D. Furthermore, The Hartford's Human Resources Manual, submitted by the defendant and not contradicted by the plaintiff, contains the following language in its introduction: "This manual is not intended to constitute, nor does it constitute an express or implied contract of employment, in whole or in part. It does not guarantee employment for any specified period and does not limit the right of the Company to terminate employment at any time, for any reason . . . [T]he Company can terminate the employment of any employee at any time, with or without notice, and with or without cause, consistent with applicable law." Defendant's exhibit C. The plaintiff does not refute the existence of these disclaimers. In light of these disclaimers, it is clear that this progressive discipline program was not intended to limit The Hartford's ability to terminate the employment relationship.
In addition to relying on the progressive discipline program, the plaintiff also submitted her own affidavit, which states that she was led to believe that, provided she remained loyal to The Hartford and continued to perform her duties, she could only be fired for cause. Plaintiff's exhibit P, paragraph 47. This statement, however, is insufficient to create a genuine issue of material fact. A party's conclusory statements "in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996). The affidavit does not describe the situation in which the plaintiff was led to believe that she could only be fired for cause. The plaintiff's affidavit merely states her conclusion; she does not provide any factual basis underlying this conclusion that could create a genuine issue of fact.
Furthermore, the plaintiff's affidavit does not raise any issues of material fact regarding whether an employment contract existed. "A contract implied in fact, like an express contract, depends on actual agreement." Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 841-42, 888 A.2d 104 (2005). The disclaimers on The Hartford's documentation clearly negate the argument that "[The Hartford] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [the plaintiff] under which [she] could not be terminated without just cause. . ." (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 388, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000). The plaintiff's affidavit sufficiently states her subjective beliefs regarding her status with The Hartford, but it fails to state any objective facts regarding The Hartford that manifest an intention to enter into an employment contract.
Therefore, the court grants summary judgment in favor of the defendant as to count five.
CONCLUSION
Based on all of the above reasons, the court grants the defendants' motion for summary judgment as to all five counts because there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law.