Opinion
No. CV 06 5003279
May 14, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #131
FACTS
This action arose when the plaintiff Ann Celotto, was terminated from her position as a secretary at Amity Senior High School. Named as defendants are Dr. Edward Goldstone, the principal at Amity Senior High School, Dr. John Brady, the Superintendent, and Amity Regional School District Number 5 (collectively, "Amity"). The plaintiff served a three-count complaint upon the defendants on April 12, 2006, alleging in the first count intentional infliction of emotional distress, in the second count negligent infliction of emotional distress, and in the third count a violation of the Equal Protection Clause of the U.S. Constitution. On April 27, 2007, the defendants removed the action to the U.S. District Court of Connecticut pursuant to U.S.C. §§ 1331, 1343(3), 1441 and 1446, on the grounds that the controversy involved a federal question. On June 25, 2007, the district court issued its ruling on the defendants' motion for summary judgment on all counts. The court granted the defendants' motion with regard to the plaintiff's claim that her termination violated the Equal Protection Clause of the U.S. Constitution, and declined to exercise supplemental jurisdiction over the plaintiff's claims for intentional and negligent infliction of emotional distress. Celotto v. Brady, United States District Court, Docket No. 3-06CV650, 2007 U.S. Dist. LEXIS 46042 *12 2007 WL 1851170 (D.Conn. June 25, 2007). Upon the plaintiff's motion, the case was remanded to this court for the current proceedings. On January 3, 2008, the defendants filed the present motion for summary judgment as to the remaining counts, accompanied by a memorandum of law in support of their motion, as well as various exhibits. The plaintiff filed her brief in opposition on January 30, 2008, accompanied by supporting exhibits. The motion was argued at short calendar on February 4, 2008.
The following facts are taken from the district court's ruling on Amity's initial motion for summary judgment. As stated by the district court with reference to the same facts, "[for the purposes of the instant motion, the court accepts facts undisputed by the parties as true and resolves disputed facts in favor of the non-moving plaintiff, where there is evidence to support her allegations." Celotto v. Brady, United States District Court, Docket No. 3-06CV650, 2007 U.S. Dist. LEXIS 46042 *3, 2007 WL 1851170 (D.Conn. June 25, 2007).
In December 2002, Ann Celotto was hired by Amity to be a twelve-month secretary at Amity Regional Junior High School . . . In December 2003, Celotto was hired to be a ten-month secretary at Amity Senior High School, to which position she transferred on January 5, 2004 . . . Celotto received a separate stipend to handle the Student Activity Funds, which on a daily basis exceeded $20,000 and included accounts for teachers, alumnae, and student activity accounts . . .
On April 13, 2004, Celotto prepared a deposit for $441.30 by placing that amount in a green bank bag . . . She left the bag on top of her desk until the bank courier arrived . . . The bank later reported that $290 in cash was missing from the deposit . . . A police report determined that this money was stolen while the bank bag was on Celotto's desk, which she likely left unattended at some point before the courier arrived . . . Celotto was not disciplined for this incident . . .
Dr. John Brady was hired as Amity's Superintendent on October 18, 2004 . . . On October 26, 2004, Celotto received $423 as a deposit from the school store . . . Celotto placed the money in an envelope or green sealed bag and put it in her desk drawer, which she believed she locked before leaving at the end of the day . . . However, Celotto did leave her desk containing the deposit unattended at some point during that day . . . The next morning, Celotto saw that cash was missing from her desk drawer, although no signs of forced entry were found . . . Celotto was not disciplined for this incident . . .
On November 1, 2004, Amity purchased a safe for the school funds, which was subsequently placed in the office of the Assistant Principal, Robert Cole . . . [According to Celotto, the safe was not delivered to Cole's office until February 2005.] On December 14, 2004, Celotto received $180 as a cash deposit from the school store, for which she prepared a deposit and placed the money in her desk drawer, which she believes to have locked upon leaving the building for her lunch break . . . When she returned, Celotto noticed the cash was missing . . . Celotto was not disciplined for this incident . . .
On December 3, 2004 (but not reported until January 28, 2005), Celotto received $2,175 as a deposit in checks, for which she prepared a bank deposit slip . . . However, the checks were never deposited in the bank . . . Celotto claims that Hudson Bank personnel were responsible for this "mishap," pointing to a deposit slip and canceled check from a parent made out to Amity High School, as evidence that one of the checks in the $2,175 deposit was deposited . . .
On February 11, 2005, Dr. Brady met with Celotto to discuss her performance regarding the handling of the student activity fund . . . Dr. Goldstone and Lolly Dedman, Celotto's union representative, were also present at the meeting . . . On February 14, 2005, Dr. Brady followed up with a letter to Celotto advising her that she would be subject to further discipline, up to and including termination, if she did not improve her management and control of the student activity fund . . .
In April 2005, Don Bonomi, a high school Spanish teacher, submitted a signed statement in which he claimed that, on April 11, he had personally given Celotto a deposit of cash and checks in the amount of $1,750, as well as a check request for $1,120 . . . Bonomi received a check from Celotto on April 15, but the $1,750 was never deposited in the bank . . . Another Spanish teacher at the high school, Carol Miranda, reported that she saw Bonomi give Celotto the deposit . . .
At the end of the school day on or around May 5, 2005, Dr. Brady called Celotto into his office to tell her she was terminated . . . Dr. Goldstone and Celotto's union representative, Ms. Dedman, were also present at this meeting . . . Celotto walked to her desk crying, called her husband, and told Dr. Goldstone that he had not been honest and did not protect her . . . A security guard was summoned to the office by Assistant Principal Cole . . . Another secretary remarked that Celotto was upset . . . Celotto left the building, accompanied by Ms. Dedman . . . The next day, Celotto received a letter from Dr. Brady confirming her termination for failing to properly manage and control the student activity fund . . . Celotto subsequently grieved her termination before an arbitrator, who determined Amity had just cause to terminate her . . .
(Citations omitted.) Celotto v. Brady, United States District Court, Docket No. 3-06CV650, 2007 U.S. Dist. LEXIS 46042 *3-7, 2007 WL 1851170 (D.Conn. June 25, 2007).
DISCUSSION
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609 (2008).
I. Count One: Intentional Infliction of Emotional Distress
The defendants move for summary judgment on count one on the ground that the plaintiff "failed to state a claim for intentional infliction of emotional distress against either defendant because the alleged facts do not constitute extreme and outrageous conduct as a matter of law." The plaintiff argues that she has submitted evidence which construed in the light most favorable to her is sufficient to support her claim for intentional infliction of emotional distress.
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 . . . 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 . . .
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.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"[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 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." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
The decisive question before the court is whether, viewing the evidence in the light most favorable to the plaintiff, a reasonable finder of fact could interpret the defendants' conduct towards the plaintiff concerning the missing money to be extreme and outrageous behavior. The Connecticut Supreme Court has stated that "the mere termination of employment, even where it is wrongful, is . . . not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Emphasis added, internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997). In Parsons, the plaintiff notified the defendant that he refused to move to Bahrain as requested by the defendant, and two hours later the defendant terminated the plaintiff's employment and had him removed from the building under a security escort. The trial court granted a motion to strike a count of negligent infliction of emotional distress and the Supreme Court upheld the decision. The present case is clearly distinguishable. The allegations in this case go well beyond the mere termination of the plaintiff and include an alleged series of wrongful acts over a substantial period of time, only the final act of which was the plaintiff's termination.
The present case is also distinguishable from the recently decided case of Tracy v. New Milford Public Schools, supra, 101 Conn.App. 560. In Tracy, the plaintiff school custodian alleged "that [his supervisor] conspired with [the superintendent] to harass him by carrying out a pattern of conduct, including the denial of a position, initiating disciplinary actions without proper investigation, defamation of character and intimidation, and that their conduct was wilful, wanton and malicious." Id., 562. The Appellate Court upheld the trial court's granting of the motion to strike the plaintiff's intentional infliction of emotional distress claim, stating "we agree with the court that the allegations . . . do not reach the articulated standard and that the trial court's conclusion is consistent with the decisions of this court and our Supreme Court in cases of employment termination. See, e.g., Appleton v. Board of Education, 254 Conn. 205, 210-12, 757 A.2d 1059 (2000) (principal's making condescending comments in front of colleagues, questioning plaintiff's vision and ability to read, telephoning daughter to say plaintiff acting differently and asking police to escort plaintiff from school not intentional infliction of emotional distress); Petyan v. Ellis, [ 200 Conn. 243, 254, 510 A.2d 1337 (1986)] (stating reason for terminating employment, mainly for fraud and lying, on form for unemployment compensation not extreme and outrageous, as employer was exercising legal right)." Id., 570.
In this case, as distinguished from Tracy, the plaintiff has supported her allegations with 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. The plaintiff has provided evidence 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. The plaintiff has also provided evidence that the defendants were aware prior to her termination that the investigations and incidents had greatly stressed the plaintiff, that she felt she was being wrongfully singled out, that there were reasons to doubt the statements of key witnesses, and that a newly instituted protocol for handling money would resolve all of the problems.
According to the affidavit of Lolly Dedman, currently a secretary for the Amity School District, she had been responsible for accepting cash and checks for the Student Activity Fund from 1995 through 2003. During that time, which preceded the plaintiff's employment there, there were, according to Ms. Dedman, many incidents of missing funds in the school and in the administrative office, including a theft from her own locked safe. Additionally, although Ms. Dedman repeatedly voiced her concerns to the then principal, Arnold Frank, and even named a suspect, the police were never notified. Furthermore, the plaintiff, in her interrogatory responses and deposition testimony, attests to money stolen from Donna Salomon of the guidance department, with no disciplinary action taken against Ms. Salomon, money collected for a student organization and missing from a cabinet of a former secretary, and money missing from Dr. Goldstone's briefcase in September 2004, with no disciplinary action taken against him.
Here, the plaintiff has alleged, and supported with sufficient evidence for purposes of a motion for summary judgment, conspiratorial conduct that goes beyond the merely insulting or temporarily hurtful. As discussed earlier, the plaintiff has raised genuine issues of material fact with regard to the defendants' knowledge of other thefts at the school, including thefts prior to the plaintiff's hiring, their motive and intent in directing the police investigations towards the plaintiff and their motive and intent in ultimately terminating the plaintiff's employment.
Viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that the defendants intentionally targeted her as part of a conspiracy to cover up for their own shortcomings in managing the lost money and that the defendants' actions were extreme and outrageous. See White v. Thornton Oil Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0455245 (July 12, 2002, Booth, J.) ( 32 Conn. L. Rptr. 506) ("If the plaintiff can prove her conspiracy theory, the court has little difficulty in seeing the conduct complained of as exceeding all bounds usually tolerated by a decent society of a nature which is especially calculated to cause mental distress of a very serious kind"); White v. Thornton Oil Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0455245 (January 4, 2004, Arnold, J.) ( 36 Conn. L. Rptr. 279) (same); Wilk v. Abbott Terrace Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.) (Defendant supervisor's verbally abusive conduct towards plaintiff prior to and during plaintiff's termination sufficient to survive motion to strike claim of intentional infliction of emotional distress); Olivas v. De Vivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV 99 0335908 (February 28, 2001, Hiller, J.) (Motion to strike claim for intentional infliction of emotional distress denied where plaintiff alleged that defendants had accused him of theft and forgery prior to terminating his employment); Centi v. Lexington Health Care Center, Superior Court, judicial district of New Haven, Docket No. CV 96 0383535 (May 1, 1997, Licari, J.) (finding plaintiff's termination by defendant supervisor after he "changed her work assignments and set unrealistic goals for her, came to her house on Sunday, and gave her a pretextual reason for the termination" was sufficient to sustain claim of intentional infliction of emotional distress). Here, the plaintiff has raised, and has supported with adequate evidence, genuine issues of material fact that render this case improper for resolution as a matter of summary judgment as to the claim for intentional infliction of emotional distress.
II. Count Two: Negligent Infliction of Emotional Distress
The defendants move for summary judgment on count two on the grounds that the plaintiff failed to state a claim for negligent infliction of emotional distress "against [defendant] Goldstone because [he] did not terminate the plaintiff's employment," and "against either defendant because the alleged conduct was not unreasonable as a matter of law." The defendants also argue in their memorandum of law in support of their motion that the defendants are entitled to government immunity for their discretionary act of terminating the plaintiff's employment. The plaintiff argues that the defendant Brady had been notified in writing regarding the stress that the plaintiff was under as a result of the repeated investigations, that the termination served no functional purpose because the money handling procedure had been moved to a different administrative department, that the investigations had not produced evidence sufficient to warrant probable cause for an arrest, and that under these circumstances the termination amounted to conduct involving an unreasonable risk of causing emotional distress that might result in illness or bodily harm. The plaintiff also argues that defendant Goldstone's "haphazard approach to dealing with the lost [funds] . . . and his tacit acceptance of Brady's decision to penalize only the plaintiff for the losses, is sufficient to raise an issue of material fact" for joint civil liability under a theory of common design or conspiracy. The plaintiff does not address the defendants' argument that governmental immunity bars her claim.
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005), citing Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
"[I]n cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. The dispositive issue in each case [is] whether the defendant's conduct during the termination process was sufficiently wrongful that the `defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm.'" (Emphasis in original; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002). "[A]n individual municipal 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. This is because "in an ongoing employment relationship, employees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions such as demotions, promotions and transfers on the basis of fear of suit rather than business needs and desires. All of this conduct would contribute to a less vigorous and less productive workplace . . . [S]uch a pervasive chilling effect outweighs the safety interest of employees in being protected from negligent infliction of emotional distress. In cases involving a termination of employment, on the other hand, the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees." Id., 758. "[A]lthough the rule that we adopt in this case may allow some legitimate emotional injuries to go uncompensated, the social costs of allowing such claims would outweigh the social benefits." Id., 759.
"[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. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
In this case, viewing the evidence in the light most favorable to the plaintiff, it is possible that a jury could reasonably conclude that it was unreasonable for the defendants to terminate the plaintiff in the manner described when no actionable evidence existed that she had intentionally taken or lost money, after school procedures had been changed so that she was no longer handling money (and the problem would therefore ostensibly have ended), when the defendants were notified in writing of the plaintiff's distress due to the investigations directed at her, where other employees handled or had the opportunity to handle the lost money, and where material questions of credibility, authenticity and motive remain with regards to the evidence and witnesses involved in the termination process. The determination of what dates and actions constitute the termination process are "a peculiarly factual matter entrusted to the judgment of the jury" as is a determination of "whether the constellation of facts alleged by the plaintiff constitutes the type of conduct that is sufficiently wrongful that the defendants should have realized it would involve an unreasonable risk of causing the plaintiff emotional distress." Noonan v. Miller Memorial Community Home, Inc., 50 Conn.Sup. 367, 372, 928 A.2d 626 (2007). The claim for negligent infliction of emotional distress is not appropriately resolved as a matter of law because the defendants have not met their burden of proving the absence of genuine issues of material fact. Additionally, with regard to the defendants' second argument, the defendant Goldstone was the plaintiff's supervisor, was responsible for initiating several of the police investigations into the lost money, was the intermediary between the plaintiff and the defendant Brady, and was directly involved in the plaintiff's termination in that he wrote a warning letter to the plaintiff and was present at the meeting in which she was discharged. The plaintiff has submitted sufficient evidence to raise a genuine issue of material fact with regard to the defendant Goldstone's level of participation in her termination and a possible joint conspiracy as claimed by the plaintiff in her complaint.
The defendants, in their memorandum of law in support of their motion for summary judgment, also argue that they are "entitled to governmental immunity as to the plaintiff's negligent infliction of emotional distress claim because they were at all times engaged in public, discretionary acts." The plaintiff does not address the defendants' argument that governmental immunity bars her claims.
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that `[e]xcept as otherwise provided by law, a political sub-division of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'" Violano v. Fernandez, supra, 280 Conn. 320.
"The issue of governmental immunity is simply a question of the existence of a duty of care, and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law.' Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)." Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "When a municipal employee is sued, he or she may assert qualified immunity as a common-law defense. This defense is intended to protect the employee, not the municipality that otherwise is cloaked with its own immunity absent express statutory abrogation. While a benefit accrues to the municipality when the employee successfully establishes qualified immunity, by permitting the municipality to avoid liability for indemnification, the defense is intended to benefit the employee in the exercise of his or her governmental duties." Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003).
"There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 319-20.
"The imminent harm exception to discretionary act immunity applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. "[T]he criteria of `identifiable person' and `imminent harm' must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Doe v. Petersen, supra, 279 Conn. 620-21. "[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts." Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007). "The `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).
"Cases where plaintiffs allege `imminent harm' typically involve physical harm . . . The court will not expand the exception to allegations involving negligent misrepresentations in a breach of contract case. See Pane v. Danbury, Superior Court, judicial district of Fairfield at Bridgeport, [Docket] No. CV 97 347235S (Oct. 18, 2002, Rush, J.) ( 33 Conn. L. Rptr. 377) (refusal to extend exception to negligent infliction of emotional distress claim). Accordingly, the defendants are protected by governmental immunity from the plaintiff's claim for negligent misrepresentation." (Citations omitted.) Rosetti v. Middlefield, Superior Court, judicial district of New Haven, Docket No. CV 01-0452129 (May 11, 2004, Arnold, J.) (37 Conn. L. Rptr. 135-36); see Doe v. Bristol Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 06 5002257 (March 23, 2007, Prestley, J.) (granting defendant's motion to strike on grounds of government immunity for claim alleging negligent infliction of emotional distress arising out of alleged failure of school to prevent sexual harassment); Martin v. Westport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4002886 (January 17, 2007, Tobin, J.) (granting defendant town's motion for summary judgment on grounds of government immunity for claim alleging negligent infliction of emotional distress arising out of employment termination); Escobales v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351) (identifiable person/imminent harm exception does not apply where plaintiff has only claimed harm to property); D'Agostino v. Orange, Superior Court, judicial district of New Haven, Docket No. CV 05 4011875 (April 7, 2006, Thompson, J.) ( 41 Conn. L. Rptr. 270) (granting motion to strike on grounds of governmental immunity because "plaintiff has not alleged that he suffered physical harm as a result of the defendants' alleged negligent acts"); Vecchitto v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 05 5001311 (February 15, 2006, Licari, J.) ( 40 Conn. L. Rptr. 763) ("[t]his court is persuaded that the exception does not extend beyond situations which create a danger of personal injury . . . to the loss of personal property [alleged] here").
The plaintiff in Pane v. Danbury alleged negligent infliction of emotional distress by a city personnel director who allowed a reporter unrestricted access to the plaintiff's personnel file. The reporter subsequently published two highly critical stories on the plaintiff's job performance based on information in the file. The court granted summary judgment on the ground that the plaintiff had not suffered physical harm. The trial court's decision was affirmed by the Connecticut Supreme Court in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), although the plaintiff did not appeal the decision with respect to the negligent infliction of emotional distress count.
The defendants were engaged in a discretionary act when they decided to discharge the plaintiff. A decision to terminate employment requires substantial use of judgment, and is not "a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." While Connecticut appellate courts have not directly addressed the application of governmental immunity to allegations arising out of a school employee termination, some courts have addressed the issue in the context of police supervisory operations. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988) ("the great weight of authority [holds] that the operation of a police department is a discretionary governmental function"); Coletosh v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97 0573462 (April 13, 1999, Wagner, J.T.R.) ( 24 Conn. L. Rptr. 399) (citing cases for proposition that "[t]he acts or omissions alleged in the plaintiff's complaint — negligent failure to instruct, supervise, control and discipline Hartford police officers — appear to be discretionary or governmental acts as a matter of law"). The governmental duties of a high school principal and a school superintendent necessarily include the duty to terminate employment under a variety of circumstances that require the exercise of judgment. In this case, the plaintiff has not indicated any way in which the defendants' actions were ministerial, nor has she provided any evidence to support such a conclusion. In fact, the plaintiff has not addressed the defendant's argument that governmental immunity precludes her claim at all.
Furthermore, the discharge of an employee under the circumstances alleged does not fall within any of the enumerated exceptions to qualified immunity. The plaintiff is not alleging a statutory cause of action or statutory basis for the abrogation of governmental immunity, and the "malice" exception cannot apply to the claim of negligent infliction of emotional distress. Evon v. Andrews, supra, 211 Conn. 505 (exception to governmental immunity may apply "where the alleged acts involve malice, wantonness or intent to injure, rather than negligence"); Fleming v. Bridgeport, 284 Conn. 502, 535, 935 A.2d 126 (2007) ("A showing . . . [of] malice such that [municipal officials] are not entitled to qualified immunity is a heavy burden. Mere negligence is not enough."). The only exception that could arguably apply is the identifiable person/imminent harm exception, and this exception has been narrowly construed by Connecticut appellate courts and almost always involves imminent physical harm, even in cases where claims have been denied on grounds other than a lack of imminency. See Durrant v. Board of Education, supra, 284 Conn. 91 (exception did not apply to school where mother slipped and fell on water puddle at child's school); Doe v. Petersen, supra, 279 Conn. 607 (exception did not apply where plaintiff had been sexually assaulted by another municipal employee); Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005) (exception did not apply to school where parent was permanently disabled by fall off bleachers while attending child's football game); Evon v. Andrews, supra, 211 Conn. 501 (exception did not apply to city where plaintiff's decedents were killed in house fire); Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982) (exception did not apply to police officer where plaintiff's decedent was killed by drunk driver who had been stopped earlier by the officer); Bailey v. West Hartford, 100 Conn.App. 805, 921 A.2d 611 (2007) (exception did not apply to firefighters where plaintiff's decedent was killed in fire); Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003) (exception did not apply where student was sexually assaulted by other students at school); see also Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998) (exception applied to defendants where one child tripped and injured another child in an unsupervised school hallway during recess period); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) (exception applied to school superintendent where student slipped and fell on negligently maintained school grounds); Colon v. Board of Education, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (exception applied where student was struck in face by door swung open by teacher). While none of these appellate cases were decided on the basis of a physical/non-physical harm distinction, his notable that all of them involved allegations of physical harm. Furthermore, the Superior Court cases based on the reasoning of Pane v. Danbury, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0347235 (October 18, 2002, Rush, J.) ( 33 Conn. L. Rptr. 377), aff'd, Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), holding that evidence of physical harm is required to claim the exception, are highly persuasive and correlate with the most recent appellate court decisions.
The plaintiff alleges that the defendants caused "emotional distress so severe that physical illness could result" in her complaint, thus meeting the pleading burden for a claim of negligent infliction of emotional distress under Montinieri v. Southern New England Telephone, 175 Conn. 337, 398 A.2d 1180 (1978), but has not provided evidence of any physical harm of the type that Connecticut courts have recognized under the identifiable person/imminent harm exception. As a result, the plaintiff's claim does not fall within any of the exceptions to a municipal employee's qualified immunity. Therefore, governmental immunity bars the plaintiff's claims for negligent infliction of emotional distress arising out of her termination.
CONCLUSION
Accordingly, the defendant's motion for summary judgment is denied as to count one and granted as to count two.