Opinion
No. 378256
December 15, 1998
NEMORANDUM OF DECISION
Caroline Dinegar and Natalie Ferringer (plaintiffs), tenured faculty members within the political science department of the University of New Haven, have filed a twelve count complaint against the university, its president, its provost, and its Arts and Sciences college dean (defendants). They allege injuries arising from the defendants' implementation of the "Merit Performance Review," a new methodology for reviewing faculty performance. The plaintiffs assert that imposition of the "Merit Performance Review" changed the categories used to evaluate faculty performance such that "what had been the `average' category was renamed `reasonably satisfactory,' with categories below . . . renamed `minimum satisfactory performance,' `not acceptable,' and `poor'." The plaintiffs assert that this methodology was used to evaluate them and other members of the Arts and Sciences faculty, but was not used to evaluate members of the larger university faculty community. The plaintiffs also claim that the defendants have refused to answer their questions as to how "merit" is judged. The plaintiffs' complaint sounds in breach of contract (counts 1-2); negligent infliction of emotional distress (counts 3-6); intentional infliction of emotional distress (counts 7-8); age discrimination in violation of General Statutes § 46a-60 (counts 9-10); and sex discrimination in violation of Title 46a of the General Statutes (counts 11-12). On October 15, 1997, the court (Silbert, J.) granted the defendants' motion for summary judgment, dismissing counts one, two, nine, ten, eleven and twelve.
Lawrence J. DeNardis, James Uebelacker, and Joseph Chepaitis are respectively, the university's president, provost, and Arts and Sciences college dean.
Thereafter, the defendants filed this motion for summary judgment as to counts three through eight, the remaining counts of the complaint. The defendants have also submitted an affidavit and deposition testimony in support of their motion.
The court has previously granted the defendants' motion to file this second motion for summary judgment.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law . . ." Thompson and Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374, 696 A.2d 326 (1997).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." Home Ins. Co. v. Aetna Life and Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue . . ." Id. "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and document." Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., supra, 202-03.
I
Negligent Infliction of Emotional Distress (Counts 3-6)
The defendants move for summary judgment on counts three through for the reason that the plaintiffs' claims for negligent infliction of emotional distress are legally and factually insufficient. The defendants argue that the plaintiffs' have failed to plead and prove unreasonable conduct on the part of the university, president, provost and dean in their experimental implementation of the performance review system: "[T]he [Plaintiffs'] claim is essentially that they did not like or understand the system and that the [Defendants'] conduct was negligent because it should have realized that a performance evaluation system would cause these Plaintiffs emotional distress."
"Ordinarily `[t]he office of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues. Practice Book § 3-84.'" Gunther v. Maryland Casualty Co., Superior Court, judicial district of Fairfield, Docket No. 310959, (January 25, 1996, Levin, J.) ( 16 CONN. L. RPTR. 113,). Even the legal sufficiently of a complaint may be challenged after the pleadings have been closed by filing a motion for summary judgment." See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971). "Although the Appellate Court in Burke v. Avitabile, 32 Conn. App. 765, 772, 772 n. 9, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993), discountenanced the filing of a motion for summary judgment to test the legal sufficiency of a complaint and characterized language in Boucher to the contrary as 'anomalous, ' a more recent appellate opinion, by a panel which included two of the three judges who issued Burke, has restated that a motion for summary judgment is a proper procedural vehicle to test the legal sufficiency of a complaint. See Drahan v. Board of Education, 42 Conn. App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). While a litigant should not be put out of court on a motion for summary judgment because of pleading deficiencies; Gunther v. Maryland Casualty Co., Superior Court, Judicial District of Fairfield, No. 310959 (January 25, 1996); Merrill Lynch Equity Access v. Cooper, Superior Court, Judicial District of Fairfield, No. 22898 (February 20, 1996); it would truly be `anomalous' to permit a litigant to [go to trial on or] recover on a cause of action which did not exist where that anomaly could be corrected by a pretrial motion." Crosby v. Bridgeport Radiology, Superior Court, judicial district of Fairfield, No. CV93 306998 (Feb. 21, 1997), footnote 3. In such circumstances, however, the motion for summary judgment is treated "as if it were properly presented as a motion to strike." (Footnote omitted.) Aetna Casualty Surety Co. v. Jones, supra, 220 Conn. 293.
Here, however, there appears to be no pleading deficiency; indeed the plaintiffs do not claim such a defect. The challenge here is to the substance of the plaintiffs' claims, as evidenced by the parties' resort to proof outside of the pleadings.
The plaintiffs argue in opposition that the defendants' actions were designed to create anguish in the plaintiffs and thus were in fact unreasonable within the meaning of the tort. They reason that because the plaintiffs were tenured faculty members who could not be fired, the defendants sought to make them unhappy enough to voluntarily resign. The plaintiffs find evidence of such design in the "initial exceptionally low ratings" the plaintiffs were given "concomitantly with overt pressure to retire or otherwise leave the university; [and in the] pattern of abusive conduct directed against them . . ."
"[A] plaintiff may recover for [negligent infliction of] emotional distress if `the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm.'" Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995), citing Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
In Barrett v. Danbury Hospital, supra, 232 Conn. 262, the Supreme Court affirmed the grant of the defendants' motion for summary judgment on a negligent infliction of emotional distress claim. The plaintiff husband sought emergency room care for abdominal pain and was placed on a stretcher that was saturated with the blood of a prior patient. The defendant doctor performed two rectal exams to determine the source of the blood and the plaintiff claimed that it was in the course or these exams that blood was introduced into his rectum. The plaintiff husband alleged that he suffered anxiety and fear that he might contract the AIDS virus or some other blood-borne disease.
In affirming the trial court, the Supreme Court concluded that the plaintiff husband's distress was unreasonable and thus, the defendants could not be liable for it: "the fear or distress experienced by the plaintiffs [must] be reasonable in light of the conduct of the defendants." Id., 261. The court found that the plaintiff husband's fear of contracting AIDS was unreasonable as he could not offer evidence in support of his allegation that blood had been introduced into his rectum via the exam; id., 254; he could not refute the doctor's affidavit that no blood had been introduced; id.; and he could not dispute the test results of the rectal exam which established that no blood had been introduced. CT Page 14330 Id. Because the plaintiff failed to show that he was placed in any risk," he plaintiff's fear was not reasonable as a matter of law . . ." Id., 262. As "the fear [was] 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." Id.
In Collins v. Gulf Oil Corp., 605 F. Sup. 1519, 1523 (D. Conn. 1985), the district court granted the defendants' motion for summary judgment because the plaintiff failed to state a claim for negligent infliction of emotional distress. The plaintiff alleged that he and his family suffered great emotional distress as a result of the defendants' (1) sponsoring his visa to relocate to Stamford, Conn. and later terminating his employment with the knowledge that it would result in revocation of his visa; and (2) in representing that his assignment would last for three years; and (3) in failing to comply with established performance evaluation procedures.
The court treated the defendants' motion to dismiss the count for negligent infliction of emotional distress as a motion for summary judgment because the defendants introduced facts outside the pleadings. Collins v. Gulf Oil Corp., supra, 605 F. Sup. 1520.
In holding that the degree of anxiety arising from the termination of employment was not sufficiently great to maintain a claim for negligent infliction of emotional distress, the court noted that the only physical problem to which the plaintiff testified was a digestive disorder (burping) which predated his working for the defendants. "Plaintiff has not disputed this fact nor introduced any evidence from which it can be inferred that defendants conduct was so egregious that it should have realized that it involved the unreasonable risk of causing emotional distress. Montinieri at 337, 398 A.2d 1180. In essence, plaintiff would have us hold that any time an employer does not comply with performance evaluation procedures and terminates an employee that it has negligently inflicted emotional distress. Such is not the law." Collins v. Gulf Oil Corp., supra, 605 F. Sup. 1523.
The court finds that there are no issues of material fact and the defendants are entitled to judgment as a matter of law as to the plaintiff Dinegar's claim for negligent infliction of emotional distress. In deposition submitted by the defendants, Dinegar describes her emotional distress as follows: "I think that the emotional distress is that I have no future as I planned it and as I worked for it, never hearing from the university to which I was attached that there was a problem." Dinegar Aff., p. 72. Dinegar goes on to explain that the psychological care which she receives is a follow up to terminal cancer care and not the result of treatment from the university. "I am not claiming emotional psychiatric distress as the result of anything that the University of New Haven has done to me or for me." Dinegar Aff., p. 72. Even "viewing the evidence in the light most favorable to the nonmoving [plaintiffs]"; Home Ins. Co. v. Aetna Life Casualty Co., supra, 235 Conn. 202; it does not appear to the court that Dinegar suffered emotional distress sufficient to make out the tort; rather, it appears that Dinegar is claiming that some aspect of her relationship with the university has been damaged. The nonmovant plaintiffs have not submitted evidence showing that there is an issue of fact as to whether Dinegar suffered emotional distress sufficient to make out a claim; thus, the defendants' motion for summary judgment on Dinegar's negligent infliction of emotional distress claim (counts three and five), is granted.
"[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . ." Home Ins. Co. v. Aetna Life Casualty Co., supra, 235 Conn. 202.
The court also finds that there are no issues of material fact and the defendants are entitled to judgment as a matter of law as to the plaintiff Ferringer's negligent infliction of emotional distress claim (counts four and six). In the deposition submitted by the deferdants, Ferringer describes her emotional distress as follows: "I suppose in my mind there is always, as it would be with any; faculty member, a concern that [the new ratings] could be used and, indeed, they could be used quite productively [for a tenure attack] . . .I think the inability to know what I can do . . . to better the condition that I have there, has been an unremitting source of frustration. I do believe that it has caused distress in the sense one does not sleep, one worries about these things. I feel an antagonism toward the institution . . .that I never used to. Yes, there's a real change in me." Ferringer Aff., pp. 46-7. While Ferringer has averred that she has suffered distress in that she does not sleep and worries, the court finds that said distress is unreasonable in light of the defendants' acts. By affidavit, dated May 12, 1997, the defendant university provost Uebelacker, averred (1) that the results of the new evaluation methodology "were never used as the basis for any decisions concerning the faculty, including wage adjustments or promotional opportunities"; (2) that since January 1993, all faculty raises have been either across the board or based on an equity plan; (3) that only the provost and dean were aware of faculty ratings under the new methodology; and (4) that the ratings were kept confidential. Uebelacker Aff., pp. 2-5. Ferringer, in opposing summary judgment, does not submit evidence showing that an issue of fact exists as to the Uebelacker averments, nor does she submit evidence showing that the evaluation methodology was used to attack her tenure or to condition her raises or promotional opportunities. Because "[her] fear [was] 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." Barrett v. Danbury Hospital, supra, 232 Conn. 262. The defendants' motion for summary judgment on counts four and six, containing Ferringer's negligent infliction of emotional distress claim, is granted.
Even the Ferringer deposition, which the defendants put forth, only succeeds in showing that Ferringer did not understand the evaluation methodology: "I do not know why the difference in the numbers [ranking her] except the statement [by defendant Chepaitis that the new ranking system would be administered as a] bell curve and the alteration that was generated there. I simply do not know what those numbers mean. (Ferringer Aff., p. 15-6).
II
Intentional Infliction of Emotional Distress (Counts 7-8)
The defendants also move for summary judgment on counts seven through eight for the reason that the plaintiffs' claims for intentional infliction of emotional distress are legally and factually insufficient. In support, the defendants argue that neither the allegations of the plaintiffs' complaint nor the facts adduced during discovery nor those provided by affidavit reveal conduct by the defendants which is sufficiently extreme or outrageous to constitute the tort of intentional infliction of emotional distress.
In opposition, the plaintiffs argue that the question of whether conduct is "`extreme and outrageous' within the meaning of the established law is a jury question and the court should not usurp the role of the jury . . ." In addition, the plaintiffs argue that conduct no more offensive than the conduct they allege has been found to be extreme and outrageous by both Connecticut courts and courts in sister jurisdictions.
"In order for [a] plaintiff to prevail in a case for liability under the intentional infliction of emotional distress [tort], 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 a 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." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). "Liability for intentional infliction of emotional distress requires `"conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind."' Petyan v. Ellis, supra, 254 n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed.) § 12, p. 60. Thus, `[i]t is the intent to cause injury that is the gravamen of the tort.' Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) . . ." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991). "`[A] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.' Knierim v. Izzo, 22 Ill.2d 73, 85, 174 N.E.2d 157 (1961)." Whelan v. Whelan Co., 41 Conn. Sup. 519, 522-23, 588 A.2d 251 (1991). Thus, "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." Id. The "extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge where it would not be so if he did not know." Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 20, 597 A.2d 846 (1991), citing 1 Restatement (Second), Torts. § 46, Comment (f).
In the following cases the courts found extreme and outrageous behavior. See Johnson v. Teamsters Local 559, 102 F.3d 21, (1st Cir. 1996) (reasoning that a jury could reasonably have found extreme and outrageous behavior where a union officer drove by an employee's home in a union-owned car several times a day for a period of some three weeks; where the union officer had knowledge that the employee had just resigned after working in a viciously hostile work environment in which he was subjected to daily threats, racial insults, sabotage of his work; and where the union officer could be inferred to have known of the extent of the abuse imposed and its psychological impact); Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 114-15 (3rd Cir. 1996) (extreme and outrageous behavior found in supervisor's use of a "predatory" tactic know as "root canal" as "it was made to be a very uncomfortable, pain-producing, anxiety-producing procedure that [involved] going deeper and deeper until [he] struck a nerve, which would either end up in the agent submitting, or reaching the point of anxiety where they just couldn't stand any job any longer"; such supervisory investigation included, for instance, review of plaintiff's work twice as often as any other employee, grilling said employee, asking if she knew who the heretic Joan of Arc was, presenting the employee with an unsigned letter of resignation almost every time she went into his office).
As a threshold matter, whether the conduct complained of is sufficiently extreme or outrageous is a determination for the court in the first instance. Parsons v. United Technologies Corporation, Sikorsky Aircraft Division, Superior court, judicial district of Fairfield, No. 280394 (March 1, 1996), affirmed in part, overruled on other grounds, 243 Conn. 66, 700 A.2d 655 (1997). The facts discussed supra in the court's evaluation of the plaintiffs' claim of negligent infliction of emotional distress claim are the same facts relied on by the plaintiffs for their claim of intentional infliction of emotional distress. These facts, however, even "construe[d] in a light most favorable to [the plaintiffs]"; RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 384; do not display the deliberate will to harm that is characteristic of outrageous behavior. See Subbe-Hirt v. Bacciagaluppi, supra, 94 F.3d 114-15 (predatory behavior found to be outrageous); Johnson v. Teamsters Local 559, supra, 102 F.3d 25 (prior knowledge of employee's particular weakness was part of the outrageous character of surveillance by supervisor).
The court does not agree with the plaintiffs' argument that other courts have found conduct which is no more egregious than the conduct alleged herein to be extreme and outrageous. In the following cases which the plaintiffs cite, the courts either affirmed on appeal, or denied the motions to strike claims for conduct more extreme and outrageous than the acts claims by plaintiffs. See Berry v. Loiseau, 223 Conn. 786, 793, 614 A.2d 414 (1992) (affirming jury verdict for plaintiff on intentional infliction of emotional distress claim where plaintiff was subjected to repeated physical abuse, including punching and choking over a period of three years); Toilette v. Peterson, 44 Conn. Sup. 490, 497-98, 692 A.2d 1322 (1995) (denying motion to strike intentional infliction of emotion distress claim where plaintiff was criticized and fired after filing grievance); Mellaly v. Eastman Kodak Co., supra; 42 Conn. Sup. 19-209 (denying motion to strike intentional infliction of emotional distress claim where supervisor harassed about free time, indiscriminately yelled at, and repeatedly threatened to fire plaintiff despite being aware of plaintiff's alcoholism disease and 11 years sobriety); Whelan v. Whelan, 41 Conn. Sup. 519, 523, 588 A.2d 251 (1991) (denying motion to strike claim for intentional infliction of emotional distress where husband told wife that he had AIDS); Johnson v. Martin, Superior court, judicial district of Hartford-New Britain at Hartford, Docket No. 055741, (June 11, 1996) (denying motion to strike intentional infliction of emotional distress claim where police officers joined together in signing card sent to incarcerated plaintiff, taunting essentially that he had been tried and convicted); Connecticut National Bank v. Montanari, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 517808, (January 26, 1994) (finding that bank's breach of agreement to accept arrearage payments might support a cause of action for intentional infliction of emotional distress).
In the following cases which the plaintiffs cite, the court denied summary judgment because there was either an issue of fact as to the defendant's intent to inflict emotional distress or a dispute about the facts themselves; thus, these cases are irrelevant to a determination of whether the facts which the plaintiffs allege are sufficiently extreme or outrageous. See Brown v. Ellis, 40 Conn. Sup. 165, 167, 484 A.2d 944 (1984) (denying summary judgment as issue of fact as to whether the defendant intended to inflict emotional distress in giving employee assignment in disregard of his fear of heights); Pantaleo v. Ravski, Superior Court, judicial district of New Haven, Docket No. 326931, (February 14, 1997, Silbert, J.) ( 19 CONN. L. RPTR. 28, 31) (denying motion for summary judgment on intentional infliction of emotional distress claim as the facts that would undergird legal determination of whether extreme or outrageous are not completely removed from dispute); Musacchio v. Cooperative Educational Services, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 137050, (November 8, 1995, D'Andrea, J.) (denying summary judgment where issue of fact whether termination of employee and accusing him of lying in the presence of another employee was extreme and outrageous); Bosco v. MacDonald, Superior Court, judicial district of Warterbury, Docket No. 094078, (January 31, 1995, West, J.) ( 13 CONN. L. RPTR. 312, 313) (finding question of fact whether defendant's causing private investigator to follow and photograph plaintiff even into lingerie dressing room constituted outrageous behavior); Lugo v. Rodriguez, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 258431, (January 13, 1992) (denying summary judgment as question of fact as to whether defendant intended to inflict emotional distress in failing to remove lis pendens within reasonable time).
The court declines to evaluate whether cases from other jurisdictions, which the plaintiffs cite and which are not binding on this court, find extreme and outrageous, behavior which is no more extreme and outrageous than the conduct which the plaintiffs allege.
The defendants' motion for summary judgment on counts three, four, five, six, seven and eight, containing the plaintiffs' claims is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court