Opinion
No. CV 08 5008054
January 15, 2009
MEMORANDUM OF DECISION
Facts
The plaintiff, Rachel Edwards, commenced this action by service of process on the defendants, Edwards Wines, LLC, d/b/a Jonathan Edwards Winery, and Robert Edwards, on July 18, 2008. In her five-count complaint, the plaintiff alleges the following facts. She and her husband, Jonathan Edwards, were employed at the Jonathan Edwards Winery (winery) in North Stonington, Connecticut. Robert Edwards owns the winery and is Jonathan Edwards' father. The plaintiff and Jonathan Edwards began working at the winery at its inception in January 2001. At that point, Robert Edwards told them that the winery "would be transferred to them at an undetermined point in the future" but did not put any agreement in writing. Complaint, ¶ 6. The plaintiff's responsibilities included "developing the winery's business logo or trademark, image, website, wine labels, brochures, along with direct responsibility for sales, marketing, bookkeeping, budgeting, event creation and coordination and supervision of [w]inery personnel." Complaint, ¶ 6. Meanwhile, Jonathan Edwards was frequently absent from the winery and at times was ill due to a substance abuse problem. Beginning in November 2005, the plaintiff assumed Jonathan Edwards' responsibilities as operations manager, although the winery's business plan established separate duties for the plaintiff and her husband.
In April 2006, and at some point between May and June 2007, the plaintiff asked Robert Edwards whether he was going to begin transferring ownership of the winery to her. Robert Edwards told her on both occasions that he intended to transfer the business to her. In August 2007, Robert Edwards told the plaintiff that he "regarded her as his child" and said that "he recognized her contributions and that she would end up having ownership of the business, alone, regardless of the fact that Jonathan Edwards was his son. He told her that as long as the business was succeeding, the business would be hers. He spoke of her owning a portion of the business as compensation from that point onward." Complaint, ¶ 24.
In October 2007, the plaintiff notified Robert Edwards that she was filing for a divorce from Jonathan Edwards. Subsequently, Robert Edwards presented the plaintiff with a new business plan that formally required her to assume Jonathan Edwards' duties as operations manager. Under her direction, the winery's sales had increased by 17 percent in 2007, which was 7 percent over the established goal. Although the winery's staff was paid a bonus for their success in 2007, the plaintiff did not receive a bonus that year. The plaintiff had received a bonus "approximately each year since the [w]inery's operation" began based on the winery's profitability, including a 2006 bonus of about $12,000. Complaint, ¶ 13.
Not only did the defendants fail to pay a bonus, but they instructed the winery's bookkeeper to reduce the plaintiff's salary effective December 1, 2007. Then, the defendants terminated the plaintiff without warning on January 30, 2008. Prior to her termination, the defendants promised to pay the plaintiff a severance package of one year's salary. Following termination, the defendants failed to pay any severance and demanded that the plaintiff move out of a house on the winery's property by June 2008.
Count one alleges that the defendants have failed to pay the plaintiff a bonus for 2007 and therefore the plaintiff is entitled to damages in the amount of double the unpaid wages, attorneys fees and costs pursuant to General Statutes §§ 31-71c and 31-72. Count two alleges that the defendants made negligent misrepresentations about the plaintiff's possible ownership of the winery and her right to a severance package. Count three alleges that the plaintiff had an implied contract with the defendants based on oral representations that she would have continued employment and an ownership interest in the winery. Count four alleges that the defendants breached the implied covenant of good faith and fair dealing by terminating her without cause despite the existence of an implied contract and failing to pay her a bonus for 2007. Count five alleges that the defendants' actions during the termination process constituted negligent infliction of emotional distress.
General Statutes § 31-71c provides in relevant part: "(b) Whenever an employer discharges an employee, the employer shall pay the employee's wages in full not later than the business day next succeeding the date of such discharge. (c) When work of any employee is suspended as a result of a labor dispute, or when an employee for any reason is laid off, the employer shall pay in full to such employee the wages earned by him not later than the next regular pay day, as designated under section 31-71b."
General Statutes § 31-72 provides in relevant part: "When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action . . . "
The defendants filed a request to revise the complaint on September 12, 2008, and the plaintiff filed an objection on September 25, 2008. The Superior Court sustained the objection on October 17, 2008.
The defendants filed a motion to strike the entire complaint and a memorandum of law in support of the motion on October 31, 2008. The plaintiff filed a memorandum of law in opposition to the motion to strike on November 19, 2008. The parties were heard at short calendar on December 8, 2008.
Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. v Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
I. Count One: Violation of General Statutes §§ 31-71c and 31-72
In their memorandum of law in support of the motion to strike, the defendants argue that (1) the plaintiff failed to allege that the defendants maintained a bonus plan for which she was eligible, (2) that the plaintiff failed to allege that the defendants agreed to pay her a bonus and (3) that a bonus is not a "wage" as defined by General Statutes § 31-71a(3). In her memorandum in opposition to the motion to strike, the plaintiff argues (1) that the complaint alleges that the plaintiff received a bonus each year since the winery began operating based on profitability, (2) that an agreement to pay a bonus is not required under wage enforcement laws and (3) that case law supports the proposition that a bonus is a "wage" pursuant to § 31-71a(3).
General Statutes § 31-71a provides in relevant part: "(3) `Wages' means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation . . ."
Viewed in the light most favorable to the plaintiff, the complaint alleges sufficient facts to demonstrate that the plaintiff was eligible for a bonus and the defendants had agreed to pay her a bonus. The defendants had paid the plaintiff an annual bonus based on the winery's profitability, which was paid out early in the following year. This bonus had been paid to the plaintiff "approximately" each year since the winery became operational and the plaintiff received a bonus for 2006 of $12,000, which represented 8 percent of a joint salary of $150,000. Under the plaintiff's direction, the winery's sales had increased by 17 percent in 2007, which was 7 percent over the established goal. Although the winery's staff was paid a bonus for their success in 2007, the plaintiff did not receive a bonus that year. These facts permit an inference that a bonus system existed at the winery, that the defendants had agreed to pay the plaintiff a bonus based on profitability and that the plaintiff could reasonably believe that she would receive a bonus as compensation for reaching sales goals.
Furthermore, a recent Appellate Court decision supports the plaintiff's argument that a bonus may be considered a "wage" pursuant to § 31-71a(3) where the bonus represents compensation for labor or services, Ziotas v. Reardon Law Firm, P.C., 111 Conn.App. 287, 313-14, 959 A.2d 1013 (2008). In that case, a former associate sued his law firm claiming that he was entitled to a bonus that the firm had withheld after the associate voluntarily left the firm. Id., 292. The associate, an employee at will, had a written employment contract stating that his annual compensation would be based on eight criteria, including, inter alia, business generation, productivity and profitability. Id., 291. From the signing of this contract in 1993 through 1997, the associate's base salary and bonuses increased annually and the bonus was paid each December. Id. The associate left the firm in October 1998, and the firm did not pay him a bonus in December 1998, for the ten months he had worked before leaving the firm. Id., 292. In seeking to recover the bonus, the associate claimed breach of contract and a violation of General Statutes § 31-72. Id. The Appellate Court reversed the trial court's determination that the plaintiff failed to state a cause of action for wrongful withholding of wages under § 31-72, holding that the statute "[does] not dictate the manner in which wages are calculated . . . Instead, courts are to focus on the agreement between the employer and employee . . . Given the remedial nature of this statute . . . the broad statutory definition and judicial interpretation of what constitutes wages, coupled with the allegations contained . . . in the complaint . . . the plaintiff pleaded a valid cause of action for the wrongful withholding of wages . . . [T]he bonus could have been classified as wages for purposes of § 31-71a(3)." (Citations omitted.) Id., 313-14.
The Ziotas court followed a Supreme Court decision, Mytych v. May Dept. Stores Co., 260 Conn. 152, 159, 793 A.2d 1068 (2002), which noted that although § 31-71a(3) "lists certain nonexclusive factors that may assist in the computation of an employee's wage, it fails to set forth a specific formula by which wages must be calculated or determined. Rather, it merely requires that wages be paid as compensation to an employee for services rendered. The determination of the proper amount to be tendered purposely is left vague by the reference to `or other basis of calculation' contained in § 31-71a(3)." After evaluating the legislative history of § 31-72 and related statutes, the court held that "these statutes do not provide substantive standards as to how wages are calculated. Their purpose is remedial; to prevent the employer from taking advantage of the legal agreement that exists between the employer and the employee." Id., 160-61. Accordingly, "[t]he wage agreement is not dictated by the statutes; instead, it is the integrity of that wage agreement that is protected by the statutory provisions." Id., 162.
A recent, but distinguishable, Supreme Court case discussed the issue of whether a bonus should be considered a wage pursuant to our statutes. In Weems v. Citigroup, Inc., 289 Conn. 769, 782 (2008), the Supreme Court held "that bonuses that are awarded solely on a discretionary basis, and are not linked solely to the ascertainable efforts of the particular employee, are not wages under § 31-71a (3)." In that case, the court interpreted § 31-71a(3) in light of a New York Court of Appeals' decision, Truelove v. Northeast Capital Advisory, Inc., 95 N.Y.2d 220, 738 N.E.2d 770, 715 N.Y.S.2d 366 (2000), which held that, under a similarly worded New York wage statute, a discretionary bonus was not a wage. Id., 780. The Truelove court concluded that "the wording of the statute, in expressly linking earnings to an employee's labor or services personally rendered, contemplates a more direct relationship between an employee's own performance and the compensation to which that employee is entitled. Discretionary additional remuneration, as a share in a reward to all employees for the success of the employer's entrepreneurship, falls outside the protection of the statute." (Internal quotation marks omitted.) Id., 780-81.
The Appellate Court's decision in Ziotas v. Reardon Law Firm, P.C., 111 Conn.App. 287, 313-14, 959 A.2d 1013 (2008), is distinguishable from Weems because the plaintiff in Ziotas claimed a bonus in compensation for labor or services personally rendered. By contrast, the plaintiffs in Weems sought discretionary bonuses under the wage statutes tied to "subjective factors such as diversity within a branch, and the profitability of the particular branches, which are factors not entirely predictable or within the control of the specific employee." Weems v. Citigroup, Inc., supra, 289 Conn. 782.
Similarly, the plaintiff in Edwards v. Edwards Winery, LLC, has alleged a wage agreement with the defendants that provided her with a bonus for increasing the winery's productivity and profitability. Because this wage agreement provides a bonus in exchange for services rendered, it is properly considered a wage under § 31-71a(3). Therefore, the defendants' motion to strike count one is denied because the plaintiff may properly pursue a claim pursuant to General Statutes §§ 31-71c and 31-72.
II. Count Two: Negligent Misrepresentation
In their memorandum of law in support of the motion to strike, the defendants argue that the plaintiff has failed to state a claim for negligent misrepresentation because the plaintiff has not alleged false representations knowingly made to induce the plaintiff's justifiable reliance and resulting in pecuniary harm. The plaintiff argues that the defendants have confused her claim for negligent misrepresentation with a promissory estoppel claim and that she has pleaded sufficient facts to state a claim for negligent misrepresentation.
"[The Supreme Court] has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 681, 940 A.2d 800 (2008).
By contrast, "[a] fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." D'Ulisee-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).
In D'Ulisse-Cupo, the Supreme Court distinguished the pleading requirements for negligent misrepresentation from promissory estoppel. Unlike a cause of action for promissory estoppel, "[for purposes of a cause of action for negligent misrepresentation . . . the plaintiff need not prove that the representations made by the defendants were promissory. It is sufficient to allege that the representations contained false information." Id., 218. Furthermore, the court held that the plaintiff does not need to plead the precise language of 3 Restatement (Second), Torts § 552 (1977), finding that "the case law in numerous jurisdictions suggests that courts liberally construe the pleadings in a way so as to sustain [a negligent misrepresentation] claim, particularly where the allegations in a complaint indicate, on their face, that an employer failed to exercise reasonable care in making representations to an employee on which the employee relied to his detriment." Id., 219-20.
In the present case, the plaintiff has sufficiently alleged the requirements for negligent misrepresentation concerning the ownership of the winery. The plaintiff alleges three instances when the defendant Robert Edwards made representations that he knew or should have known at the time were false concerning ownership of the winery and that he knew or should have known the plaintiff would rely upon in planning her future at the winery. The plaintiff alleges that she did justifiably rely on these representations by staying at the winery despite her feeling of insecurity at the job in the hope of obtaining an ownership interest in the winery and that she suffered a detriment as a result of her reliance when she was abruptly terminated on January 30, 2008.
The plaintiff also claims the defendants misrepresented the payment of a severance package upon her termination. It is unclear from the face of the complaint how she suffered a pecuniary loss from relying on this false representation: she apparently would have been terminated whether she accepted the severance or not.
The defendants' motion to strike count two is denied because the plaintiff has sufficiently pleaded the requirements for negligent misrepresentation in regards to the defendants' allegedly false representations about her ownership of the winery.
III. Count Three: Breach of Implied Contract
The defendants argue that the plaintiff has failed to allege a contract that would limit the defendants' right to terminate her at will because the defendants' alleged oral representations to the plaintiff were not sufficiently clear and definite to constitute an implied contract. The plaintiff argues that the defendants' alleged oral representations were sufficient to plead an action for an implied contract.
"[A]ll employer-employee relationships not governed by express contracts involve some type of implied `contract' of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working . . . To determine the contents of any particular implied contract of employment, the factual circumstances of the parties' relationship must be examined in light of legal rules governing unilateral contracts . . . [I]n order to find that an implied contract of employment incorporates specific representations orally made by the employer . . . the trier of fact is required to find the following subordinate facts. Initially, the trier of fact is required to find that the employer's oral representations . . . [were] an `offer' — i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those oral . . . statements . . . If the oral representations . . . constitute an `offer,' the trier of fact then is required to find that the employee accepted that offer." (Citations omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13-14, 662 A.2d 89 (1995).
"Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like. Thus, [a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will . . . [H]owever, the default rule of employment at will can be modified by the agreement of the parties . . . Accordingly, to prevail on the count of [her] complaint [that] alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which he could not be terminated without just cause." (Citations omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 14-15. "[T]he absence of a separate consideration does not inevitably invalidate a contract otherwise expressing an intention that employment not be terminable at will." Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 118-19, 544 A.2d 170 (1988).
The Supreme Court has found evidence of an implied contract that an employee could only be terminated for cause in various employment contexts. For example, in Coelho v. Posi-Seal International, Inc., supra, 208 Conn. 114, the court upheld a jury's finding that an employee had an implied agreement with the president of his company that as long as he performed his job properly, he would not be terminated because of interdepartmental conflicts. The employee testified that when he interviewed for the job, the president had assured him that his company was "the General Motors of the future. If you come to work with us, you'll never have to worry. Grow with us into the future. As long as you do your job, you'll . . . have a good future with us." Id., 110. Similarly, in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 16, the court upheld the trial court's finding that an implied contract existed based, in part, on oral representations that if the employee "did a good job, the [employer] would take care of him."
The complaint alleges that the following oral representations allegedly made by the defendants constituted an implied contract not to terminate except for cause. In January 2001, the defendant Robert Edwards told the plaintiff that the winery would be transferred to her in the future and that this agreement would not be put in writing. In April 2006, the defendant repeated his promise to transfer ownership. At some point between May and June 2007, the plaintiff expressed her concern to the defendant about her job security and the defendant assured her that he would begin transferring ownership to her. In August 2007, Robert Edwards told the plaintiff that "he recognized her contributions and that she would end up having ownership of the business . . . He told her that as long as the business was succeeding, the business would be hers." Complaint, ¶ 24.
These allegations are sufficient to bring a cause of action for breach of an implied contract. The defendants' promise to transfer ownership to her as long as the winery was successful constituted an offer to the plaintiff that she would not be terminated except for cause. Like the representations made in the Coelho and Torosyan, the defendants' promise was meant to assure the plaintiff that her job was secure — indeed, that she would own the business — and that the only reason she could be terminated would be if the business failed.
Therefore, the defendants' motion to strike count three is denied.
IV. Count Four: Breach of the Implied Covenant of Good Faith and Fair Dealing
The defendants argue that the plaintiff has failed to allege an employment agreement, implied or express, limiting the defendants' right to terminate her for cause only and that the plaintiff has not alleged that she was terminated in violation of an important public policy. The plaintiff argues an important public policy has been violated because the defendant allegedly terminated her to avoid paying her 2007 bonus, which violates the important public policy of enforcing the payment of wages pursuant to §§ 31-71c and 31-72.
As discussed in Part III of this opinion, the plaintiff has alleged sufficient facts to demonstrate the existence of an implied contract.
The Supreme Court has limited the application of the implied covenant of good faith and fair dealing in the at-will employment context to "the situation where the reason for [the employee's] discharge involves impropriety . . . derived from some important violation of public policy." (Internal quotation marks omitted.) Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984).
The plaintiff cites a decision by a judge of the Superior Court holding that the withholding of wages violates public policy, Cook v. Alexander, 40 Conn.Sup. 246, 249, 488 A.2d 1295 (1985). In Cook, the plaintiff alleged that he was discharged because his employer wanted to avoid paying him a substantial bonus and to prevent his thrift plan rights from vesting. Id., 247. The court held that the plaintiff could bring a claim for breach of good faith and fair dealing when the discharge is related to withholding wages, finding support in the Supreme Court's dicta from Magnan approving of Massachusetts cases holding that "a breach of good faith implies an overreaching upon the part of the employer by taking advantage of its superior bargaining power and depriving the employee of compensation that is clearly identifiable and is related to the employee's past service." (Internal quotation marks omitted.) Id., 249, citing Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 570-71. Other judges of the Superior Court have agreed that "the wage statutes . . . [express] a public policy against the withholding of wages earned." Leue v. Computer Sciences Corp., Superior Court, judicial district of Hartford, Docket No. CV 01 811784 (March 15, 2002, Wagner, J.) [ 31 Conn. L. Rptr. 528]. See also Okon v. Medical Marketing Group, Inc., Superior Court, judicial district of Fairfield, Docket No. 306032 (August 18, 1994, Pittman, J.) ( 12 Conn. L. Rptr. 228); Linkovich v. Heublein, Inc., Superior Court, judicial district of New Britain, Docket No. 441529 (February 18, 1992, Goldberg, J.) ( 6 Conn. L. Rptr. 121).
The plaintiff has alleged the defendant terminated her to avoid paying her 2007 bonus, which violates the important public policy of enforcing the payment of wages pursuant to §§ 31-71c and 31-72. The plaintiff's allegation is sufficient to bring a cause of action for a violation of the implied covenant of good faith and fair dealing.
Therefore, the defendants' motion to strike count four is denied.
V. Count Five: Negligent Infliction of Emotional Distress
The parties dispute whether the plaintiff has pleaded sufficient facts to state a cause of action for negligent infliction of emotional distress. "[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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, CT Page 1548 876 A.2d 522 (2005).
The defendants argue that the plaintiff has failed to plead that the defendants' conduct was "extreme and outrageous." This is the incorrect standard. The Appellate Court has noted that "a pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005). The Appellate Court did note, however, that "there may be a case in which the same behavior may fairly be seen as extreme and outrageous if intentional and only unreasonable if unintentional . . ." Id., 8 n. 1.
"[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 [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." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002). There must be evidence that "the manner of the plaintiff's termination from employment was different . . . from the usual termination of employment or that it was done in [a] way that would cause . . . more than the normal upset that would result from any termination of employment." Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 481, 714 A.2d 1261 (1998).
The plaintiff alleges that she was terminated without cause on January 30, 2008, after telling the defendants of her intention to divorce Jonathan Edwards in October 2007, that she was promised a severance during the termination that she never received and that she was told during the termination she must vacate the house she occupied on the winery's property by June 2008, where she lived with her two children. The plaintiff also alleges that Robert Edwards told the winery staff that she was terminated and moving out of the house because she was divorcing Jonathan Edwards, reflecting an amicable "parting of the ways" rather than an involuntary termination.
These allegations are sufficient to state a cause of action for negligent infliction of emotional distress. The Supreme Court held that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997). Here, the plaintiff alleges more than a mere termination in her claim for negligent infliction of emotional distress. She claims that the termination was "abrupt" and "without cause." While an employer is not required to give a waiting period before terminating an at-will employee; Parsons v. United Technologies Corp., supra, 243 Conn. 89; the plaintiff has pleaded sufficient facts to give rise to an implied employment contract that would limit her employer's right to terminate her except for cause. She alleges that she expected to continue working at the winery despite her pending divorce, and that the defendants actually increased her responsibilities after she told them her plans to obtain a divorce. She also anticipated owning the winery based on the defendants' representations. The defendants' abrupt termination of her employment unreasonably risked causing the plaintiff emotional distress, and the defendants should have realized that firing her without cause after promising her ownership of the winery could cause emotional distress. See Skierkowski v. Creative Graphics Services, Inc., Superior Court, judicial district of New Britain, Docket No. CV 94 0463242S (May 5, 1995, Handy, J.) (employee stated claim for negligent infliction of emotional distress where employer had made representations leading employee to believe he had job security and then unexpectedly terminated the employee).
The remaining allegations in count five, however, are insufficient to state a claim for negligent infliction of emotional distress in the context of an employment termination. Promising and later revoking a severance package does not fit within the definition of unreasonable conduct for negligent infliction of emotional distress because Connecticut limits this cause of action to conduct occurring during the termination process. A wrongful denial of a severance package after the termination would fall outside this definition. Furthermore, the fact that the defendants required the plaintiff and her family to vacate a house on the winery's property in the course of the termination does not amount to negligent infliction of emotional distress. There are no allegations in the complaint that the defendants conducted themselves in a particularly upsetting manner when they demanded that she leave the house by June 2008. See, e.g., Halley v. Village Park Realty, Superior Court, judicial district of New Haven, Docket No. CV 01 0451467 (December 31, 2001, Zoarski, J.T.R.) (landlord's conduct in entering tenant's apartment without tenant's consent, demanding that tenant vacate premises within twenty-four hours and threatening to have tenant arrested if tenant returned and changing the locks sufficient to support claim of negligent infliction of emotional distress). Here, the defendants offered the plaintiff four months to find a new apartment before she was required to leave the premises. Finally, the fact that the defendants told the winery's staff that the termination was actually a friendly "parting of the ways" is insufficient to state a claim for negligent infliction of emotional distress. If the defendants had publicly terminated the plaintiff in view of the winery's staff, then the plaintiff could state a claim. For example, in Gardner v. St. Paul Catholic High School, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 97 0143514 (November 15, 2001, Doherty, J.) [ 30 Conn. L. Rptr. 691], a judge of the Superior Court denied a motion for summary judgment on a negligent infliction of emotional distress claim where a superintendent fired a teacher while other teachers were waiting outside of his office and saw the teacher leave the office in tears. In this case, the complaint makes no allegation that the termination was public.
Therefore, the defendants' motion to strike count five is denied.
Conclusion
The defendants' motion to strike is denied.