Opinion
No. CV04-4001928-S
September 24, 2008
MEMORANDUM OF DECISION
I.
In the second count this case the plaintiff has brought an action for intentional infliction of emotional distress against her employer. The defendant has two arguments. First it argues that this state law claim is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). It also argues that in any event the plaintiff has not proven the elements of this state law claim.
A.
Preemption under the Labor Management Relations Act (LMRA) can be a difficult question. The parties have cited several federal cases including Federal Supreme Court cases. A brief but useful discussion is also contained in 48 Am.Jur.2d, "Labor and Labor Relations," § 530, pp. 379-82. That article says that:
"A state law claim is preempted by § 301 of the LMRA only if such claim is substantially dependent on the interpretation of a collective-bargaining agreement, in which case preemption is required in order to ensure that the issues raised are decided in accordance with precepts of federal labor policy. To determine whether a state law claim is preempted by § 301 of the LMRA, a court must first look to the elements of the state law claim to ascertain whether proof of the state law claim requires interpretation of a collective-bargaining agreement, and whether the right claimed by plaintiff is created by the collective-bargaining agreement or by state law. Even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the state law claim is independent of the agreement and not subject to preemption under the LMRA." For purposes of the LMRA preemption standard, purely factual questions about an employee's conduct or an employer's conduct and motives do not require a court to interpret any term of a collective-bargaining agreement. Moreover, in a labor case in which liability is governed by independent state law, the mere need to look to a collective-bargaining agreement for a damage computation is no reason to hold the state law claim defeated by § 301 of the LMRA. Also, preemption is appropriate only when the provisions of a collective-bargaining agreement must be interpreted; mere reference to the agreement is not sufficient, and state law claims related to interpretations of a collective-bargaining agreement only tangentially or in a general way are not preempted.
This interpretation would appear to follow from the very language of Section 301 which says
suits for violation of contracts between an employer and between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties . . .
Citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 220 (1984) and Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 413 (1987). The court in Barbieri v. UTC, 255 Conn. 708 (2001) said that
under § 301 of the (LMRA), federal labor law displaces state law in cases that are substantially dependent upon an analysis of the terms of a labor contract or require an interpretation of such an agreement for their resolution . . .
But as noted in Allis-Chalmers Corp., the court said "Not every dispute . . . tangentially involving a provision of a collective bargaining agreement, is preempted by § 301," 471 U.S. at page 211. See generally Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 et seq. (1994). Or to put it more exactly the court in Livadas v. Bradshaw, 512 U.S. 107, 124 (1994) said that
when the meaning of contract terms is not the subject of dispute, the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.
As regards state law tort claims specifically, in language instructive for these claims, the court in footnote 3 of Electrical Workers v. Hechler, 481 U.S. 851, 859 (1986) said: . . .
when a state law claim is substantially dependent on analysis of a collective bargaining agreement, a plaintiff may not evade the preemptive force of § 301 of the LMRA by casting the suit as a state law claim, (but quoting from Allis-Chalmers the court went on to say "In extending the preemptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." This concept will be discussed more fully in the next section.
Moving from the general to the specific issue here, the court will rely on the foregoing cases in deciding whether the plaintiff's intentional infliction of emotional distress claim under state law is preempted under § 301.
The defendant has cited several cases that conclude that intentional infliction of emotional distress claims under state law are preempted. In the court's opinion one case gives an excellent explanation why many federal courts have concluded that preemption was appropriate and its discussion is particularly illuminating because it intertwines its analysis with reference to Section 46 of the Restatement (2d) Torts which sets forth this tort. Our court has adopted the requirements of that section in defining Connecticut's tort of intentional infliction of emotional distress Petyan v. Ellis, 200 Conn. 243, 253 (1986). The court will quote from a case it believes it is instructive on the preemption problem before it. The case is Weatherholt v. Meyer Inc., 922 F.Sup. (E.D.Mich., 1996) and the court will quote from pages 1232-33 of the decision. There the court says:
The Sixth Circuit has held that claims for intentional infliction of emotional distress are "preempted when the alleged outrageous conduct was governed by CBA (Collective Bargaining Agreement) provisions" (the court cites cases from several circuits then goes on the say: "These cases have based their analysis on section 46 of the Restatement (Second) Torts, which provides that a defendant does not act outrageously where (it) has done no more than `insist upon (its) legal rights in a permissible way even though it is well aware that such was certain to cause emotional distress.' Restatement (2d) of Torts comment g (1965). Michigan law incorporates this notion of a privilege and requires a plaintiff to prove that a defendant's conduct was `extreme and outrageous.'
The court then went on to refer to Miller v. ATT, 850 F.2d 544, 550-51 (CA 9, 1988) and relying on its language and keeping Section 46 of the Restatement in mind said that . . .
the measure of socially tolerable behavior in any given situation ultimately depends upon the relationship between a particular plaintiff and defendant. Because the relationship between the plaintiff and defendants in Miller was defined by the collective bargaining agreement, the questions of reasonableness raised by the plaintiff's emotional distress claim could be resolved only by consideration of the terms of that agreement. Accordingly (the intentional infliction of emotional distress) claim was preempted under section 301.
Id., page 1233.
The court reached the same result in Weatherholt, id.
But what is the reason for the preemption of a state law claim "if evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract," Allis-Chalmers Corp. v. Lueck, 471 U.S. at page 212. Baker v. Farmers Elect. Co-Op, Inc., 34 F.3d 274, 279 (CA 5, 1994) repeats the rubric of the Am.Jur. Article and says:
The purpose behind section 301 preemption is to ensure that issues raised in actions covered by section 301 are decided in accordance with the precepts of federal labor policy.
Therefore:
questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of the agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort, Allis-Chalmers.
As defendant notes there are several cases that apply the result reached by the foregoing analysis — preemption of intentional infliction of emotional distress claims if evaluation is inextricably bound up with interpretation of the collective bargaining agreement, Douglas v. American Information Technologies Corp., 877 F.2d 565, 571-73 (CA 7, 1989); Kellman v. Yale-New Haven Hospital, 64 F.Sup.2d 35, 36 (D.Conn. 1999); Flibotte v. Pennsylvania Truck Lines Inc., 131 F.3d 21 (CA 1, 1997); Anderson v. Coca Cola Bottling Co., 772 F.Sup. 77, 82 (D.Conn. 1991); Harris v. Alumax Mill Products Inc., 897 F.2d 400, 403 (CA 9, 1990); Johnson v. Anheuser Busch Inc., 876 F.2d 620, 624 (CA 8, 1989).
B.
But it should be noted that several federal circuits and cases within those circuits have reached different results when applying the Allis-Chalmers standards to state claims of intentional infliction of emotional distress, Johnson v. Beatrice Foods Co., 921 F.2d 1015, 1021 (CA 10, 1990). Also in Caterpillar Inc. v. Williams, 482 U.S. 386, 396, N.10 (1980) the court said, quoting in part Allis-Chalmers "`not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301 or other provisions of federal labor law' . . . Claims bearing no relationship to a collective bargaining agreement beyond the fact that they are asserted by an individual covered by such an agreement are simply not preempted by § 301," see Cramer v. Consolidated Freightways Inc., 255 F.3d 683, 690 (CA 9, 2001). In Meyer v. Schnucks Market Inc., 163 F.3d 1048 (CA 1998) the Eighth Circuit also observed that there is no LMRA preemption
merely because (the plaintiff's) compliant alleged facts that could have formed the basis for a grievance under the CBA . . . There is no preemption unless the state law claim itself is based on, or dependent on an analysis of the relevant CBA," id., page 1050. The court noted, for example, several Eighth Circuit cases have held that "state law retaliatory discharge claims are not preempted by the LMRA because they turn on purely factual questions about the employer's conduct and motives rather than on the scope of the employer's contractual authority to discharge employees.
Id. page 1051.
The court said
We think the narrower approach to LMRA preemption which asks only whether the claim itself is necessarily grounded in rights established by a CBA is more faithful to the Supreme Court's holding in Caterpillar Inc. v. Williams, supra 482 U.S. at page 389.
C.
The court will try to apply some of the foregoing general principles to the § 301 preemption claim. The first step is to analyze the allegations of the complaint.
In the second count the plaintiff makes a claim of intentional infliction of emotional distress as to this claim.
To do this it is first necessary to examine the plaintiff's complaint and the nature of the proof she offered at trial. The plaintiff has been employed by the defendant at its Health Plan. Paragraph 2 of the complaint makes the following allegation:
2. In connection with the performance of her duties at the Yale Health Plan Pharmacy the plaintiff became aware of significant discrepancies in pharmacy records creating a strong suspicion that Tracy Leary, the manager of the pharmacy, may have been engaging in illegal activities respecting narcotic drugs.
Paragraph 3 then states at her union's urging she reported the foregoing to Nancy Creel, the Health Plan's Director of Human Relations. Paragraph 4 then sets forth the gist of both her claims in this suit.
4. The plaintiff thereafter experienced a pattern of retaliation by Ms. Creel, Chris Kielt, the Deputy Director of the Yale Health Plan, and by Judith Madeux, another official of the Yale Health Plan, which included personal insults, adverse evaluations, and other penalties.
The next several paragraphs continue the allegations of retaliation. Paragraph 9 states during April 7, 2002 "the plaintiff was subjected by the defendant's agents to a pattern of disparate punishments and disciplines."
The rest of the paragraphs bearing on this claim catalogue a series of events constituting harassment; she was not allowed to have responsibility for operating so-called Pyxis machines, she was subjected to insulting behavior in front of the staff by Tracy Leary, she was the only person whose phone calls were being screened, her job responsibilities had been drastically reduced, no one was assigned to relieve her, there was an attempt to frame her for a drug violation, she was denied overtime benefits, she was issued verbal warnings and was summoned to a disciplinary meeting, she was forced to use up her sick time when the retaliation became unendurable contrary to the directive of the defendant's Equal Opportunity Officer.
Throughout the complaint the plaintiff refers to these activities as retaliatory. Paragraph 24 describes all this as a "pattern of harassment and punitive retaliation." (par. 24.)
Although it is a difficult case, the court concludes that § 301 preemption is not warranted. In the court's opinion at least the allegations made do not require the court to interpret the collective bargaining agreement. A pattern of retaliatory activity is being alleged and the motivation of the employer's agents is what is at issue. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407 (1987) the court discussed whether a state based retaliatory discharge claim should be preempted under § 301. The worker claimed he was fired for pursuing a Workers' Compensation claim and under the state theory had to prove he was threatened with discharge or discharged and the employer's motive was to deter him from exercising rights under Workers' Compensation. The court said:
Each of these purely factual questions pertains to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements requires a court to interpret any term of a collective bargaining agreement.
Id. at pp. 409-10 the court said . . .
even if dispute resolution pursuant to the collective bargaining agreement, on the one hand, and state law on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 preemption purposes.
Ellis v. Lloyd, 838 F.Sup. 704, 709 (E.D.N.Y., 1993) succinctly described Lingle as an instance where § 301 preemption for a tort claim did not apply saying that case involved a situation involved a "claim for retaliatory discharge which turned on the motivations of the employer irrespective of collective bargaining agreement."
Commenting on Fox v. Parker Hannifin Corp., 914 F.2d 795 (CA 6, 1990) the court in Baker v. Farmers Elec. Co-Op Inc., 34 F.3d 274, 281-82 (CA 5, 1994) approved a quote from the earlier case to the effect that:
Although state law claims for intentional infliction of emotional distress strictly based on a defendant's exercise of CBA rights do not escape the preemptive force of section 301, such claims premised upon abusive behavior above and beyond the routine exercise of CBA rights are not preempted.
That's exactly what is alleged here and what was sought to be proved at trial. The claim here is that the actions taken by the employer were not routine exercise of rights it had under the contract but motivated by a desire to retaliate against the plaintiff for actions she took outside a collective bargaining context. To quote from another federal case in another context:
It is irrelevant to the preemption question whether or not the employer can defend by showing it had the right under the collective bargaining agreement to do what it did . . . The plaintiff's claim stands separate from this defense.
CT Page 15477 O'Shea v. Detroit News, 887 F.2d 683, 687 (CA 6, 1989).
Or to look at the problem from another perspective, there is a state interest in ensuring that irregularities do not occur in hospitals charged with the responsibility of dispensing narcotic substances. Such activities are monitored by a state agency which conducts investigations of improprieties in this area and, according to testimony in this case, is the same state agency that licenses hospitals to carry on such functions. A state agency charged with policing narcotic distribution has a strong interest in receiving information from employees and employers that suggest problems in this area. Internal chain of command rules in the collective bargaining agreement cannot authorize retaliatory action against workers who make reports to the state agency directly. To paraphrase O'Shea v. Detroit News, 887 F.2d 683, 687 (CA 6,1989) the question of whether the plaintiff was retaliated against "was separate from any possible defense the employer might have under the contract" or any interpretation given to it. The collective bargaining agreement, in light of the strong state interests involved, could not lawfully authorize such retaliatory behavior, cf Krashna v. Oliver Realty, Inc., 895 F2d 111, 115 (CA3, 1990).
The court finds that § 301 preemption should not apply to the claim of intentional infliction of emotional distress. But two things must be borne in mind. The mere fact that § 301 preemption is not appropriate does not mean the court has or must conclude the state tort is viable. This is true in two senses. If the plaintiff has not proven the requisite retaliation motive then, in effect, § 301 preemption would be an operative consideration and secondly even if elements of retaliation are proven that does not ipso facto mean the state tort claim of intentional infliction of emotional distress can be established.
B.
The court will now try to discuss the viability of the intentional infliction of emotional distress claim in light of state law and LMRA preemption considerations that must still be kept in mind.
Our state has recognized the tort of intentional inflict of emotional distress. Petyan v. Ellis, 200 Conn. 243, 253 (1986). Its reference to Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 62 (1984) and its discussion at pp. 253-54 indicates that the Restatement (Second) Torts § 46 requirements for the tort have been adopted by our court. One of the necessary elements of the tort is that the alleged conduct of the defendant must be the "extreme and outrageous." Id., p. 253. In footnote 5 on page 254, the court quotes from Prosser Keeton, Torts (5th ed.) § 12, page 60:
The rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Emphasis added by court.)
The Restatement at § 46, page 73 states:
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 (sic) resentment against the actor and lead him to exclaim "Outrageous." The liability clearly does not extend to mere insults, indignities, threats, petty oppressions or other trivialities.
The problem with the test set forth in the Restatement is that it is somewhat subjective. One commentator critical of the Restatement test has said that:
The term "outrageous" is neither value free or exacting. It does not objectively describe an act or series of acts rather it represents an evaluation of behavior. The concept thus fails to provide guidance either to those whose conduct it purports to regulate, or to those who evaluate that conduct . . . courts may have no particular wisdom with respect to what is socially intolerable . . . courts cannot simply take refuge in their view of public sentiment when they face issues of outrageousness. First, there may be no community sentiment with respect to a vast number of issues and whatever sentiment there is may be deeply divided with respect to other issues. It would indeed be surprising to learn that the business "community" shared the same views as the "consumer" community with respect to collection practices or that employers and employees agreed about the employer's freedom of action to terminate an "at will" employee. Second, there are situations in which it literally does not matter what dominant community sentiment may be — courts are not polling agencies, they are expositors of social policy.
The court will now try to discuss specific case applications of these general principles.
Some general principles have been established that are recognized by the courts although in other areas jurisdictions take widely different approaches, some courts hold that it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to establish the tort of intentional infliction of emotional distress. Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (CA 3, 1988), Clark v. Township of Falls, 890 F.2d 611, 623 (CA 3, 1989), other courts appear to take a more liberal view, see Rinehimmer v. Luzerne County Community College, 539 A.2d 1298, 1305 (Pa. 1988) and other courts seem to hold that a person's status as an employee affords him or her greater protection from insult and outrage than if she or he were a stranger to employer defendants, see discussion at Blong v. Snyder, 361 N.W.2d 312, 316 (Ia., 1984), cf. Also Solitari v. Smith, 812 F.Sup. 1280, 1284-87, 1296 (D.NH, 1993) interpreting New Hampshire law and holding that deliberate long-term harassment enough to establish outrageous conduct — plaintiff was given written warnings and required to keep time records not required of anyone else, but see Whitehead v. A M Intern, Inc., 880 F.Sup. 1280, 1285, 1290 (ND.Ill. 1994), which takes a different and more conservative approach, cf. Also Douhan Bigfork School District No. 38, 805 P.2d 1354, 1362-66 (Mont., 1991), Cox v. Keystone Carbon Co., 801 F.Sup. 390, 394-97 (CA 3, 1988).
Other cases in the employment area are: Carnemolla v. Walsh, 75 Conn.App. 319, 331 (2003); Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 577 (2002); Campbell v. Plymouth, 74 Conn.App. 67, 78 (2002); Dollard v. Board of Education, 63 Conn.App. 550, 552 (2001); Appleton v. Board of Education, 254 Conn. 205, 211 (2000). These cases do arise in the employment context and involve claims of false accusations and humiliating treatment where the courts held the tort was not established. There were no allegations, however, of physically intimidating behavior coupled with vulgar treatment in a setting which would have had to have been humiliating.
It is a matter of degree, but after noting the Appleton case which held that condescending remarks about a teacher's ability to read could not be defined as extreme and outrageous, the court in Knight v. Southeastern Council, 2001 Ct.Sup. 1337 (New London, 2001, Hurley, J.), refused to grant a motion to strike. The court noted that "Plaintiffs have, however, been successful in establishing claims for intentional infliction of emotional distress where they have alleged that they were forced to suffer public ridicule." The court in Campbell v. Plymouth, 74 Conn.App. 67 (2002), while noting that the mere act of wrongfully firing an employee "does not transgress the bounds of socially acceptable behavior," citing Parsons v. U.T.C., 243 Conn. 66, 83 (1997), referred to Knight as reflecting that courts have not stricken complaints alleging an element of public ridicule, 74 Conn. at page 79.
In the employment context, the courts appear to agree that mere insults or verbal taunts do not rise to the level of extreme and outrageous conduct even when they include obnoxious activity like threats, insults or taunts McNeal v. City of Easton, 598 A.2d 638, 641 (Pa. 1991) (plaintiff target of harassment and ridicule by co-workers) cf. Miller v. Equitable Life Assurance Soc., 537 N.E.2d 887, 889 (Ill. 1089). Not even the more despicable activity of racial or ethnic slurs have been found to be outrageous for purposes of this tort at least when they have not been made in the presence of the plaintiff but in a more cowardly fashion behind his or her back, Bouie v. Autozone, 959 F.2d 875, 877 (CA 10, 1992).
As noted in the Restatement, something more than mere verbal taunts are required. Thus in Brown v. Town of Allenstown, 648 F.Sup. 831, 839 (D.N.H., 1986) a judge refused to overturn a verdict in favor of a former part-time police officer under this tort where the jury could find a fellow officer intentionally harassed her by following her while she was on duty and placing her under surveillance to such an extent that it impeded her performance and forced her to resign. In Dickerson v. Nichols, 409 N.W.2d 741 (Mich. 1987) an action for intentional infliction of emotional distress was successfully brought by one employee against a fellow employee. The verdict in the plaintiff's favor was upheld on appeal. The court noted that the defendant repeatedly told co-employees that the plaintiff was a management stool pigeon but also claimed he was having an illicit relationship with another worker. Other employees questioned the plaintiff about these matters, friends no longer trusted him. After the plaintiff resigned his position as union steward the defendant called the plaintiff at home harassing his wife and children calling him a sneak and a liar and suggesting to his wife that he was stopping at a female co-worker's house for coffee "as usual" before coming home.
Similarly the cases distinguish between situations where a person merely accuses another of fraudulent or dishonest activity as opposed to actively encouraging or trying to bring about a false prosecution. In CT Page 15481 People v. Guthrie, 404 S.E.2d 442, 443 (Ga., 1991), the court held outrageous and extreme conduct had not been shown where the defendant supervisor made false accusations of dishonesty and lack of integrity against an employee which the supervisor honestly but mistakenly believed to be true. In Petyan v. Ellis, supra, at 200 Conn. 254, the court upheld the trial court's conclusion that the jury had erred in finding outrageous conduct where the defendant merely made allegations of fraud and lying against the plaintiff to the employment security division of the state labor department, id., page 245.
On the other hand a court had no difficulty in finding the requisite outrageous and extreme conduct had been established by the evidence and refused to reverse the trial court's failure to overturn a plaintiff's verdict where the jury could have found that a supervisor had planted checks on the plaintiff in order to implicate her in a theft, Dean v. Ford Motor Credit Co., 885 F.2d 300, 306-07 (CA 5, 1989). In Norman v. General Motors Corp., 628 F.Sup. 702, 204 (D.Nev. 1986) the jury could have reasonably found that the defendant employer "set up an employee of twelve years to attempt to implicate him on drug charges," id., p. 704 — that really is outrageous.
In evaluating this tort in the employment context, another factor should be noted. Apart from evaluating specific types of activity and examining particular factual circumstances the courts have concerned themselves with broader questions and policy considerations when deciding whether certain alleged conduct is extreme and outrageous. Thus Prosser notes the social context in which the alleged activity occurred is an important factor for the courts. One court has said: "The outrageous and extreme nature of the conduct to be examined should not be considered in a sterile setting detached from the milieu in which it took place," Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986).
C.
The court will now discuss the specific allegations of this case in light of the general principles just discussed. It will first present the allegations made in the complaint and the evidence the plaintiff relies on.
As noted, the complaint and the evidence indicates that the plaintiff's claims of harassment and mistreatment began after she complained about discrepancies in pharmacy records which in her mind and after discussions with a pharmacist employed in the Health Plan created a suspicion that her manager, Ms. Leary, "had been engaged in illegal activities regarding drugs." A prescription for narcotics was in the wrong bin, it was several weeks old and had not been picked up. A day or two later, although the time frame is not exact, the prescription was missing. The computer indicated it had been picked up three weeks before this event. That could not be true since the plaintiff said she saw it the previous day. When inquired of, Ms. Leary said the prescription had been picked up the day before. Connelly took it upon herself to call the patient who said he had had a stroke and had not picked up the prescription.
Administrators at the Health Plan, Creel and Madeux, spoke to her about the incident along with a Katherine Matzkin. She was told that if there was any other information she wanted to share, she was to contact Madeux, which she did the next day. Madeux was described as starting out "pretty nice." Nancy Creel, at apparently the plaintiff's request, did not do any questioning. The plaintiff had complaints about the way Creel had spoken to her the day before the just-mentioned meeting conducted by Madeux. Creel said she should be careful about accusing people of things and Creel said she should speak to Leary about this who after all was still her boss.
Connelly then contacted the State's Drug Control Unit. She e-mailed a synopsis of what happened and was interviewed by two agents. She apparently first contacted the Unit in the beginning of March 2002.
From that point on Connelly says her trouble began, she retained counsel and testified to a variety of incidents which she described as harassment which got steadily worse — "little incidents that never happened before." The court will mention them and discuss each separately at a later point. Leary told her there was a new policy that everyone needed to wear a lab coat, she never got an e-mail to that effect before going to work. She said they started telling her she was late when she was not late; she was told she could not bring her purse to work and she was the only one not given a place to put her purse and she did not want to accept management's offer to leave it in a back storeroom since there was no locked area. She was called in for meetings about some of these matters — this never happened before.
She complained to her union and Chris Kielt who was Deputy Director of the Health Plan about the treatment she was receiving. She filed many grievances about this alleged ongoing harassment; at one point in her testimony she said she had filed over forty grievances. She also sent numerous ongoing e-mails about the treatment she was receiving to various people at the administrative level.
Other incidents after the February 2002 missing prescription matter were mentioned. Leary told her on several occasions she had made a mistake in the prescriptions. In May or June 2002, Leary said a patient had been given the wrong prescription. Leary "in front of the whole staff" said she was not to fill prescriptions in the way she had been doing it — she felt the method she was told to use was dangerous and could lead to mistakes. She told Leary's supervisor, Ms. Gayman were filling prescriptions the way she used to, but she was singled out.
She was also treated unfairly and differently about her ability to receive calls on the job — other staff members regularly got personal calls. She complained to Gayman and Kielt "almost every day" concerning this and other matters where she said she was treated differently from other employees. Kielt said he would look into it but he never did anything to straighten the situation out.
She was also extremely upset about a reduction of her job responsibilities. Donna Gayman told her in May 2002 she would no longer be responsible for Pyxis duties — they were machines in which patients' prescriptions were placed. She was not given an explanation as to why this job duty was taken away from her. She was also assigned to register duty for weeks in a row — when she asked for an explanation, Leary was rude.
Another negative job experience was that Leary denied her the right to earn overtime and unfairly passed over her when it came to assigning her overtime. She had seniority and that is how overtime was to be offered. With shades of LMRA preemption haunting the discussion, Connelly was told the contract did not require assignment by seniority — alphabetical order was appropriate but even as to that, Leary did not follow alphabetical order when it came to her.
In June 2003 her work hours were changed; her hours now included nights and weekends. Prior to that, this ten-year plus employee had a work schedule of eight to forty thirty with no weekends. The explanation given was the administration had to be fair to everyone.
It was also brought out on direct that sometime in May of 2002 Ms. Connelly said a bottle of Oxycontin was left at her work station. She feared she was being set-up this Class II narcotic cannot be left on the counter, it had to be locked up.
In June 2002 Connelly also complained to Donna Gayman about the fact that she was told she could not leave the work area except on breaks. Other people were able to come and go and "they were never accountable."
The direct also emphasized that Leary was always yelling at her and putting her down sometimes in front of other staff. On one occasion she and another technician came in a few minutes late and Leary "slammed her hands on the counter" and said this was not acceptable. In another e-mail sent to Donna Gayman, Connelly related how Leary embarrassed her in front of everyone and told her the way she was filling (as to prescriptions) was incorrect.
She was also subjected to disciplinary hearings and privately conducted warnings about her conduct.
The foregoing represents Connelly's allegations in her direct testimony concerning an ongoing pattern of harassment after the February 2002 incident involving the missing prescription.
D.
The evidence beyond the direct, however, is not as favorable to the plaintiff as the foregoing rendition. This is true on both scores central to this case, LMRA preemption and whether the tort of intentional infliction of emotional distress can be proven.
As to the recurring LMRA preemption problem, the court has indicated that it believes the LMRA preemption doctrine, in light of federal case law, can be avoided in a situation where retaliatory measures are taken against a worker for, in effect, taking steps to inform state enforcement agencies of drug control problems.
One problem is that much of the retaliatory allegations center on Tracy Leary, the pharmacy manager from 2000 to 2003 and thus the manager at the time of the February 2, 2002 incident concerning the missing drugs. But none of the administration witnesses, including the people who conducted the internal investigation for the Health Plan said they told Leary that Connelly had speculated Leary herself was involved with taking the prescription. Leary herself testified that she did not learn of Connelly's accusation until after suit was filed in 2004 and she learned this from talking to the university's lawyer two weeks before trial.
Judith Madeux was Associate Director for Clinical Services in February and March 2002 and Nancy Creel was Assistant Director for Administration at that time. Madeux and Creel were assigned to do the investigation into Ms. Connelly's February 2002 complaint about the missing prescription. They conducted an investigation and eventually contacted State Drug Enforcement authorities as did Connelly. No evidence has been presented that the Madeux-Creel investigation was not conducted thoroughly and they had every incentive to keep information they culled from staff, including Connelly, was kept confidential. Common sense dictates this is the only way that a thorough investigation can be conducted. It would be counter productive to have leaked information to Leary about possible accusations against her and would cast suspicions on the integrity of the Healthy Plan's self-policing — not a good posture to take with state drug control agencies since it is difficult to run a Health Plan that does not have the right to issue prescriptions.
But the plaintiff's complaint need not be read narrowly and neither must her evidence be so read. Broadly read the complaint can be taken to allege retaliation for Connelly's mere act reporting of this incident to state drug enforcement and the claims of retaliation would thus also point to the actions of Creel, Madeux, Chris Kielt who was Deputy Director of Operations for the health plan from 1997 to 2003, Donna Gayman who was Director of the Pharmacy in 2002 and 2003, and even Leary who in one way or another have to be presumed to have known a drug investigation was going on at the instigation of Connelly. Connelly herself indicated all of these people retaliated against her and the defense itself in its examination of these witnesses at times sought to bring out evidence of their sometimes positive interactions with the plaintiff thus trying to refute a retaliation claim.
This is the point where, at least for the court, the analysis becomes difficult. The issue of retaliation cannot be neatly separated from whether the conduct directed toward Connelly was outrageous under Restatement 46 definitions; neither can these two factors be placed in separate compartments from the issue of whether the actions taken toward Connelly were intentional which would also factor in on whether they could also be considered outrageous. All of these factors have a bearing on whether Connelly was caused severe emotional distress because of all this. Underlying this analysis the issue of LMRA preemption must rear its head in the sense that if the actions of the administration at the Health Plan were not motivated by retaliation for reporting the February 2002 incident why would their propriety not involve an examination and application of the Collective Bargaining Agreement which requires fair treatment of employees as regards discipline, Article V1(a) and states that the University shall not apply the agreement's provisions in a discriminatory manner, Article V(4) — all under Article V's title "Fair Treatment of Staff Members." Also see Article XII "Overtime" which provides generally that overtime shall be awarded "evenly," also see Article XXXVIII "University Rights" which set out scope of employer's right to manage job performance and work including work methods. Absent proof of retaliatory activity LMRA preemption would seem to apply.
The plaintiff takes the position that her problems began after the February 2002 events both as to her treatment in general and the discriminatory application of policies.
Is this true or in any event did an intentional infliction of emotional distress result?
E.
The court will try to discuss the various areas where the plaintiff claims that she was subjected to intentional infliction of emotional harm as that concept has been defined in our case law which as noted relies on the Restatement Section 46 definition in Volume 1 of the Restatement of Torts.
Tardiness
The basic claim of the plaintiff as to all these matters is that complaints and warnings about various aspects of her behavior including tardiness in showing up for work arose after the February 2002 missing prescription report and as a result of her involvement in that matter.
Ms. Connelly began working at the Yale Health Plan in October 1990.
As early as February 5, 1998 there appears to be a tardiness problem at least from management's perspective. An employee performance evaluation of that date states "noted improvements in tardiness from last year." Both the 1997 and 1998 evaluations only say she was "usually present and on time. Few unscheduled absences or tardiness." A series of notes made by Leary referred to a tardiness problem and her conversations with Connelly about the problem. They are dated November 15, 2000, January 10, 2001 and January 22d, November 2d and 3d of the same year. On January 31, 2001 a "memorandum" was filed by Leary referring to a January 31, 2001 meeting where tardiness was discussed and Leary said immediate and sustained improvement was necessary." A July 20, 2001 evaluation said Connelly had to work on coming in on time. Connelly wrote a comment to the effect that the evaluation was not objective but apart from tardiness and another issue that will be discussed later, in general the evaluation presents a glowing assessment of the plaintiff's work ethic, creativity and ability to relate to customers which is the whole point of a Health Plan. Leary concludes "Kathy is a great asset to our pharmacy team. She always does her job well." Interestingly in May of 1992 a letter from the then Director of Pharmacy, and Gayman to Connelly refers to a counseling session and a letter Connelly wrote afterward in which she said of the session she believed she was being intimidated and harassed and was being singled out. Gayman and the Director denied this and reiterated under the topic of "Tardiness" that Connelly and other employees are "expected to report to work on time."
After the February 2002 incident Leary noted continuing patterns of tardiness. The entries were, at least to the court, clearly mistaken as to a few dates; Connelly was on vacation at one point when she was accused of tardiness. But Connelly admitted that on some occasions she was tardy and it is difficult to say that the pre-or post-February 2002 tardiness complaints were evidence of outrageous conduct intended to cause her severe emotional distress and there was no specific proof that all, most, or even many of the times when she was accused of tardiness were incorrect beyond the declaration by her that she was not and the dates on which she was alleged to be tardy were not proven at meetings with the administration. She had been given a list of the dates of alleged tardiness although it is true that she could not at the end of the trial get access to her time sheets. But given the lateness of the inquiry it is difficult to characterize this as a part of a plan to prevent her from advancing her claim. The trial went on from January 30th to June 26th and discovery processes were available.
Perhaps even more to the point a letter from Leary dated August 23, 2002 after a critical memo of June 21, 2002, both sent to Connelly, noted an "improvement in reporting on time" and an improvement in notifying the employer that she was running late. Why would this even be stated if the parties involved did not recognize this was a problem to be worked on?
It should also be noted that Ms. Madeux testified that she also cautioned other employees when they were tardy. This was not controverted. Furthermore there was no evidence that Connelly's pay was docked or she lost any benefits for tardiness.
All of this does not establish or even provide evidence of an intent to inflict severe emotional distress, display outrageous conduct or in the workplace context allow the establishment of a claim of severe emotional distress even leaving the obvious LMRA preemption problem because of pre-February 2002 tardiness issues which can be viewed as barring a retaliation claim.
Telephone Usage
Tracy Leary testified that in January 2002, before the February 2002 incident, she had a meeting with the staff, including Connelly, as to the need to cut down distractions in the pharmacy where employees would have to presumably interact with Health Plan members, fill prescriptions and distribute prescriptions. As part of the plan to do this the staff was told that they would have to make calls during breaks or at lunch. Only emergency calls would be accepted. No staff member objected to this policy at the time it was proposed. Ms. Leary testified a memo was issued to staff formally announcing the new policy and as a staff member Ms. Connelly would have received the memo. Donna Gayman, the Pharmacy Director, issued the memo on March 25, 2002. The court's understanding is that the plaintiff does not disagree with any of the foregoing including the need to institute such a policy. Her complaint is that the policy was unfairly administered in that she was singled out for its application. Ms. Leary denies this and says that she spoke to Connelly and other staff members when it came to her attention that the policy was being violated. Connelly herself offered no testimony of specific instances where she was singled out for application of this policy but the plaintiff did present the testimony of Barbara Brangi, the steward for the Local 34. She said she conducted an experiment to verify that the phone policy was being enforced only against the plaintiff. She called the pharmacy and asked to speak to Ms. Connelly. Tracy Leary answered the phone and said is this an emergency. She lied and said it was and interestingly enough the call was allowed to go through. Her experiment involved placing a call to another technician Julius Antrum and asking to speak to him. She then said: " they said (not Tracy Leary said) "hold on one second and they put him on the phone."
The problem with the plaintiff's position, at least as the court sees it, is that calls were not run through a single operator or taken by the administrators like Gayman or Leary who then decided whether or not to forward them. In the incident Brangi describes, another technician or staff member could have decided to buck the policy so Antrum could get the call. It is impossible under this circumstance to lay the blame on the administration if in fact Connelly was being treated differently from others as to the reception of calls even if, which is a large "if," this one incident referred to by Brangi can be said to establish that a settled practice of singling Connelly out for selective enforcement of the policy.
Overtime/Work Schedules
By 2002 Connelly had been employed for many years by the Health Plan and apparently had seniority. During that time she had a Monday to Friday work schedule; if she was to come in on Saturdays she would receive overtime. Her work schedule and the overtime policy was changed. Testimony on behalf of the defendant was that the Health Plan became fully staffed and there was a desire to cut down on overtime. Thus people like Connelly would be given schedules which required them to have a regular Saturday work day. Also some technicians had complained about overtime and the fact that they were not getting it if it was available. A new overtime allocation system was eventually instituted which was based on rotation. The net result of all this was that Connelly had to work on Saturdays and lost overtime in this respect. She also complained that when the changes were first introduced she was skipped over for any overtime that was available. She did concede at trial that as far as the regular work schedule was concerned she was treated the same as other technicians in that she would share the Saturday and late week day hours up until 6:30 p.m. Tracy Leary testified the schedule changes were not designed to inflict emotional distress on Connelly. The administration wanted less overtime, i.e., her superiors, and the five other technicians said they believed it was unfair that Connelly did not have to work on Saturdays and Connelly did not.
The schedule change took place in May 2003 and Donna Gayman also testified this was not done to retaliate against the plaintiff but was an attempt to "be fair to everyone." Other technicians according to Leary advocated this, as previously noted, and they had no reason to retaliate against Connelly.
As to the overtime situation as to which Ms. Connelly said she was being treated unfairly, she and two other technicians, Brown and Antrum filed a grievance on June 3, 2002 complaining about the allocation of overtime. Nancy Creel said they were told to settle it among themselves, they came up with an acceptable rotation and Creel, who was in the Human Resources Department did not hear of a complaint as to overtime from Connelly after that. However, Ms. Connelly did testify that she has been treated fairly as to overtime only since the end of 2003. The court has read the entire transcript twice and has referred back to it constantly but could find no indication that Ms. Connelly disputes Creel's testimony as to how the June 2002 grievance as to overtime was resolved. Nor can it explain from the evidence presented the discrepancy as to when the administration says it last received a complaint from Connelly as to overtime and her testimony that she had problems with its allocation until the end of 2003.
Under these circumstances it is hard to factor in these complaints about overtime allocation into the general retaliation claim. Also no detail was provided as to the circumstances under which Connelly was denied overtime or how often this happened.
Even if the court speculates that some discriminatory activity went on in this regard based on general statements by Mr. Connelly the court cannot conclude on the basis of what it has heard that what occurred reached the level of outrageous conduct was done intentionally to inflict emotional distress or was just a bureaucratic mix up.
Lab Coats
One heavily litigated matter in this case was the issue of the requirement that the technicians wear lab coats. Again the claim appears to be not that the general policy was oppressive or baseless but that it was selectively enforced against Ms. Connelly. The court found the testimony somewhat confusing.
Preliminary, also, there is a problem with the claim of retaliation for the February 2002 missing prescription report. The policy was formally promulgated in August of 2001 and an e-mail was sent to all employees regarding the policy including Connelly. In December of 2001 Leary spoke to Ms. Connelly about her failure to wear a lab coat in an area where she was supposed to have done so.
In any event, the main thrust of Connelly's claim is this regard is set forth by Connelly's union representative, Ms. Brangi. Ms. Brangi opined that Connelly was being singled out on the failure to wear lab coat issue relying on statements to this affect from Connelly. When she was "called in" about it "we'd" say other people were not wearing the coats and was told — by whom it is unclear — "we're not discussing them, we're discussing Kathy."
Ms. Connelly's testimony is confusing, perhaps only to the court, but she seems to indicate notification about wearing lab coats only went to her but the August 1, 2001 email appears directed at all staff although Connelly said it was published to all staff only after she complained. Presumably the court is supposed to deduce that the complaining occurred after February 2002, but all of this does not jibe with the August 1, 2001 e-mail. In any event her complaint was listened to even if her rendition of this notice issue is in fact correct.
Beyond this the lab coat issue does not appear to be a subject of constant harassment. Connelly herself said sometimes people followed the policy, sometimes they did not. Brangi said that when she went to the pharmacy area no one, including Ms. Connelly, was wearing a lab coat.
What we seem to have here is a manager unwilling or unable to enforce employer policy on a consistent basis and when it is enforced against Connelly, because of that it is seen as an oppressive act. But Connelly herself testified that she did not know whether others were asked to wear their lab coats. Thus she could not testify as to the lab coat issue whether she was treated "differently" on this matter when specifically asked.
In any event given some of the dates involved in relation to the February 2002 missing prescription report the court has difficulty avoiding the LMRA preemption argument in light also of contract provisions previously mentioned. Also leaving aside that the court cannot view this lab coat claim as evincing outrageous conduct inflicted with an intent to cause severe emotional distress.
Location of Purse, Personal Belongings CT Page 15491
In December 2000 a memo was sent to the entire staff that personal belongings were to be kept outside the pharmacy. Ms. Brangi testified Connelly told her after February 2002, that she was told to keep her personal belongings in a locker in the basement and she was the only staff member told to do this.In fact a policy was promulgated formally on April 1, 2002 advising and sent to all staff saying personal belongings in the coat locker area in back of the pharmacy or in a locker on the service floor which apparently is a euphemism for basement. Leary said she enforced this policy against all the staff not just Connelly who disagrees with this characterization. Interestingly, however, a little over a week after the April 1st notification an advisory was sent to all the staff again saying "Just a reminder" — personal belongings are to be kept outside the pharmacy area if you need a locker let me (Donna Gayman) know. There was certainly an intent to enforce the policy as to all staff, why send the second e-mail out if Connelly was the only target.
In fact as Gayman testified there was an important reason for this rule; the pharmacy dealt with narcotics and the policy was meant to ensure employees did not sneak narcotic drugs out of the pharmacy area. Connelly expressed no disagreement with the policy goal and if it wanted to avoid the possibility of further investigation by state authorities and possible sanctions it had every reason to enforce the policy against all staff — especially after the February 2002 incident which Connelly herself was instrumental in bringing to light.
The selective enforcement claim is difficult to accept. Leary's testimony was not contradicted by specific instances or testimony establishing disparate treatment by reference to dates and individuals, the defendant had every reason to police all employees regarding compliance with this policy. Also although Connelly e-mailed Kielt to say she did not want to keep her belongings in the backroom because of thefts now she is perfectly happy to do so. The reference to now may be a reference to the departure of Leary as manager but that cannot support a claim of past outrageous conduct in somehow forcing her to put her belongings in a particular location when in fact that location apparently does not present any real problems. In fact even before Leary left, in 2002, she was able to leave her purse in the backroom and not told that she had to put it in the basement as she said at her deposition.
Other Matters
There are several other complaints which were mentioned at trial, Ms. Connelly took offense at being asked to work at the register servicing customers. This is, however, a task technicians do perform. In one instance she sent an e-mail to Gayman complaining that she had to work at the register while another employee was told to return prescriptions to stock. She never complained to Leary about this although she was informed over 2002 and 2003 to keep within the chain of command and first go to her immediate supervisor. The pharmacy was a busy place and people were needed at the register. Ms. Connelly allegedly refused to do this work. Under the circumstances these facts do not indicate outrageous conduct or an intent to inflict emotional distress.
The same can be said about the fact that a bottle of narcotics was left at her work station. There is no evidence to indicate how the narcotics came to be there or that it was part of a "set up" in retaliation for February 2002. Connelly was not disciplined in any way for this incident.
Finally there was the issue of overrides as regards filling prescriptions which can lead to errors. Connelly was counseled and admonished about this several times even before February 2002 and denied any overrides or errors. In any event Leary indicated at a later point that there was great improvement in this area in a memo issued June 21, 2002. An employer in this type of operation has a real interest and obligation to address such a matter. There was no evidence presented that its actions were malevolent, intentionally calculated to cause emotional distress or not the result of simple mistake all of which would take it out of the ambit of a tort for intentional infliction of emotional distress.
Also the claims by Connelly that Leary exhibited temper tantrums and embarrassed her in front of other staff are more in the nature of petty insults and do not amount in number or degree to outrageous conduct demanded by this tort.
F.
Applying the case law it has earlier cited to the various accusations raised by the plaintiff under the foregoing headings the court cannot find the tort of intentional infliction of emotional distress has been proven.
The retaliation claim for the reasons stated by the court does not pass muster and a review of the exhibits documenting pre-February 2002 employer-employee interfaces indicates concerns in some of the same areas now being advanced as the basis for a retaliation claim made now.
To turn from the general to the specific a pattern of harassing activity over a long-term basis which might be the basis of this tort in an employment situation is also belied by the fact that post-February 2002 when Connelly reported the missing prescription, people in administrative positions did not uniformly act in a hostile manner.
The court has already noted the July 2002 employee evaluation by Tracy Leary which in many areas extolled Ms. Connelly for excellent performance of her job duties. On June 11, 2002 Chris Kielt the Deputy Director sent Connelly a warm letter praising her work efforts and informing her that she received nominations from peers and colleagues for employee of the year. A man named Peter Steere was brought into the pharmacy as a consultant to help Connelly with her retaliation claim. Connelly at trial claimed he tried to inflict emotional distress on her but Steere recommended she apply for a promotion to the position of Senior Pharmacy Technician. Chris Kielt was also one of the individuals who Connelly said inflicted emotional distress on her but he in fact provided her with an "alternative resource within the university." He suggested she contact Fran Holloway in Human Resources for assistance. Connelly did take advantage of this resource.
Connelly received regular raises and benefits after February 2002. She was suspended for a two-day period but after a grievance was filed concerning the discipline in question it was reduced to a verbal warning and the University also agreed to pay her for the two days.
She herself admits that upon her complaint areas of concern and selective enforcement issues were satisfactorily resolved. No excuse for petty harassment, if that were to have been established, but weakening any predilection the court might have to find this tort was established because the very nature of the employment relationship allowed such a finding for what might be otherwise considered minor oppressions occurring over a long period.
II.
In her post-trial brief the plaintiff does not address the claim made under Section 31-51m of the General Statutes in the first count. The court agrees with the defendant that this action is barred because not bought within 90 days of conduct she identifies as retaliatory. The case was filed August 30, 2004, so that only conduct from June 1, 2004 is relevant under subsection (c). None of the conduct alleged as retaliatory occurred after this date according to the evidence. The court would refer to its discussion of the areas raised by the plaintiff, tardiness, overtime, etc. Also more to the point Leary left Yale in December 2003. As plaintiff's counsel himself noted, all of the rules and procedures instituted by Leary which formed the basis of much of the retaliatory action claim disappeared when she left the job.
Also subsection c provides relief only in the form of reinstatement, payment of back wages and re-establishment of lost benefits if a violation of the statute has been proven. Connelly was not terminated and suffered no loss of wages or benefits. A claim was made that she lost overtime but not only was this resolved to her satisfaction by the end of 2003, there was no proof offered as to what that claim might amount to in this case prior to that date. A prevailing party is limited to such recovery by the statute. The court will not go into a lengthy analysis of "discipline" under subsection (c) with analogies to federal case law and their interpretation of "adverse employment action." If that were found to have been proven there has been no proof of any damages authorized under subsection (c) even if the 90-day limitation period can be overcome.
In any event the court enters judgment for the defendant in this matter.