Opinion
No. FST CV 05 5000253 S
March 2, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT DATED NOVEMBER 9, 2009 (#156.00)
The principal legal issue in the Defendants' Motion for Summary dated November 9, 2009 (#156.00) is whether there are separate standards for intentional infliction of emotional distress in employment disputes and employment terminations. No Connecticut court has discussed this issue.
The plaintiff was a Social Work Supervisor at the Stamford Office of the State of Connecticut Department of Children and Families (DCF). The plaintiff's original lawsuit dated September 13, 2005 alleged five separate counts of defamation that occurred "in the vicinity of 401 Shippan Avenue, Stamford, Connecticut". Each count named a separate co-worker as a party defendant. The name of the employer was not mentioned in the complaint nor was the nature of the jobs of any of the six parties. The original allegations of defamation have been withdrawn. The operative complaint is the two-count Second Substituted Complaint dated October 10, 2006 (#119.10) and it alleges in the First Count that the named eight defendants "did intentionally cause and inflict emotional distress" and in the Second Count "did maliciously cause and inflict emotional distress." DCF was identified as the employer but neither DCF or the State of Connecticut is a defendant. All the parties were DCF employees and the job descriptions of all the parties were alleged. The original five defendants were all case workers. The three defendants that were joined after this lawsuit commenced in September 2005 were the DCF Area Director, the DCF Program Supervisor and the DCF Principal Personnel Officer.
The plaintiff alleges that when she was a Social Work Supervisor and Union Steward, she was subject to retaliation for filing an institutional grievance against the Area Director and Program Supervisor. She further alleges that as a result of the retaliation, she suffered intentional infliction of emotional distress. The defendants' Motion for Summary Judgment alleges that "there is no issue of material fact demonstrating that the defendants' actions were extreme and outrageous." The only matter at issue is the second element of intentional infliction of emotional distress; was the conduct alleged extreme and outrageous?
Both parties treated the October 10, 2006 Second Substituted Complaint as alleging in both count claims for intentional infliction of emotional distress despite the fact that the Second Count uses "maliciously." Following the parties lead and their failure to brief a possible distinct cause of action of maliciously causing emotional distress, the court will treat both counts as alleging the same tort: intentional infliction of emotional distress.
The defendants offered over 250 pages of supporting material attached to their Memorandum of Law dated November 9, 2009 (#157.00). The court reviewed these documents before the January 11, 2010 argument on the Motion for Summary Judgment and noted a number of errors: incorrectly numbered documents, missing numbers, duplicate documents and incomplete documents. As a result the court's review of the moving papers was made difficult. An Index of Exhibits was attached to the beginning of the defendants' supporting material; Exhibit A through Exhibit P. The exhibits were not tabbed. A separate letter size page containing only the Exhibit letter was the method used to note the end of one exhibit and the beginning of the next exhibit. The court was able to locate Exhibits A through Exhibit G. After searching through each of the next approximately 175 pages, the court had great difficulty in locating the remaining Exhibits H through Exhibit P. Exhibit G is indexed as "Investigation Report." The first page following the page, "Exhibit G," verifies that fact since it is entitled "Labor Relations Administrative Investigation Report;" conducted by Cathleen Simpson, Principal Personnel Officer. The "Investigation Report" is numbered in consecutive order in each page in the lower right corner with a typed number. The last typed number is on the 32nd page. The very next page contains six words, a date and a number all in handwriting: "Complaint made by Yodna Vivanco-Small 9/2/04." The handwritten number 33 appears on the lower right of that page. The court cannot determine if Exhibit G "Investigation Report" ends at page 32 or continues on to include the pages with the handwritten numbers on the lower right corner. The last handwritten numbers on the lower right corner is 169. The next page is a "Performance Appraisal." It is not preceded by an Exhibit letter and that Performance Appraisal does not have a handwritten number in the lower right corner. The court notes that the Index of Exhibits attached to the defendants' Memorandum does refer to Exhibit O as "Performance Appraisal" but the date is different. A few pages later is a memo, no page of which contains an exhibit reference or a handwritten number in the lower right corner. This three page document is entitled "Subject: Memo of Expectations. Date: July 6, 2004." The court notes that Exhibit K purports to be a "Memo of Expectations, dated July 6, 2004." The court was able to later locate a page entitled "Exhibit K" that did have a three-page document that followed. No explanation was given for the submission of duplicate documents.
During the preparation of this Memorandum of Decision the court checked the Edison computer filing program. The oral argument on the Motion for Summary Judgment occurred on January 11, 2010 and this court entered an electronic order on January 11, 2010 that the court heard argument on the Motion for Summary Judgment and took the papers (#159.86). Apparently on the next date, January 12, 2010, the defendants filed a withdrawal of Exhibit G of its Memorandum of Law in Support of its Motion for Summary Judgment (#160.00). Neither party informed this court of the filing of this January 12, 2010 withdrawal nor provided this court with a courtesy copy. The court read the entirety of Exhibits A-F and H-P.
The court is not required to go through a voluminous amount of documents in order to determine what is relevant. That is counsel's job. This court is only reviewing those portions of the documents submitted that are mentioned by specific page and location in the Supporting Memorandum of Law. Due to the withdrawal of Exhibit G, no part of Exhibit G has been considered by the court. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 7-8, fn.6 (2009); Stuart v. Stuart, 112 Conn. 160, 184 (2009).
The court is applying the well known rules for the trial court's consideration of motions for summary judgment without reciting that authority in this Memorandum of Decision. Farrell v. Twenty-First Century Insurance Company, 118 Conn.App. 757, 759-60 (2010); Washington v. Blackmore, 119 Conn.App. 218, 220-21 (2010).
The general rules applicable to actions of intentional infliction of emotional distress are well known.
To state a claim for intentional infliction of emotional distress, a plaintiff must establish four elements: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).Guccione v. Paley, Superior Court, judicial district of Litchfield at Litchfield, Docket Number, LLI CV 05-4002943 S (June 14, 2006, Trombley, J.).
Courts have placed a very high burden on those claiming extreme and outrageous conduct. In DeLeon v. Little, 981 F.Sup. 728, 738 (D.Conn. 1997), the court stated that "[w]hile [d]efendant's alleged conduct may have been rude, inappropriate, or even criminal, it does not rise to the level of extreme and outrageous as required by the Connecticut common law."Crane v. Northwestern Connecticut Young Men's Christian Ass'n., Superior Court, judicial district of Litchfield at Litchfield, Docket No. LLI CV 04-4001019 S (May 25, 2005, Bozzuto, J.).
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so . . . Only if reasonable people could differ should the question be left for the jury.
Campbell v. Plymouth, 74 Conn.App. 67, 78 (2002).
Are there three different standards of intentional infliction of emotional distress claims related to the second element; "That the conduct was extreme and outrageous" in employment disputes, employment terminations and all others?
Some courts hold that 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[,] . . . other courts appear to take a more liberal view . . . 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 . . . Interestingly at comment e to § 46 the Restatement itself makes the following observation at page 74. The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position or relation with the other, which gives him (or her) actual or apparent authority over the other or power to affect his (her) interests." (Citations omitted; internal quotation marks omitted.) Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV 03-0472301S (January 11, 2005, Corradino, J.) ( 38 Conn. L. Rptr. 533, 539);
Guccione v. Paley, Superior Court, judicial district of Litchfield at Litchfield, Docket Number LLI CV05-4002943 5 (June 14, 2006, Trombley, J.).
Individuals reasonably should expect to be subject to routine employment related conduct, including performance evaluations, both formal and informal; decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance; and disciplinary or investigatory action arising from actual or alleged employee misconduct. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed.
Perodeau v. City of Hartford, 259 Conn. 729, 757 (2002).
Termination of employment or change of job title are even higher stressors for both the employer and employee. To the employee it may be a life changing experience, demoralizing, personally offensive, a cause of economic hardship and damaging to the employee's family relationships. To the employer it may be the loss of institutional knowledge, exposure to litigation or post-discharge claims and a lessening of company morale.
Intentional infliction of emotional distress depends on the circumstances surrounding the event. Conduct tolerated at the regular Friday night poker game would not be tolerated at Friday evening vespers. "A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." Craddock v. Church Community Supported Living Association, Superior Court, judicial district of Hartford at Hartford, Docket Number CV 99-0592711 S (November 13, 2000, Hennessey, J.). Above quote was cited by Brown v. Mulcahy, judicial district of Waterbury at Waterbury, Docket Number CV 06-5001276 S (July 24, 2007, Upson, J.). "The court does recognize that anxiety and distress are an unavoidable part of daily life, including the workplace." Lamothe v. Russell, supra.
This court could not find any Connecticut legal authority that changed the intentional infliction of emotional distress elements in an employment situation. The standards set forth in Appleton v. Board of Education, supra, 254 Conn. 210-11 apply equally in all claims of infliction of emotional distress.
There are dozens of reported decisions involving intentional infliction of emotional distress in an employment context. Guccione v. Paley, Superior Court, judicial district of Litchfield at Litchfield, Docket Number LLI CV05-4002943 S (June 14, 2006, Trombley, J.) (Full-time housekeeper adequately alleged extreme and outrageous conduct consisting of being reportedly compelled to divulge highly private information about her sex life, romantic relationships and religious practices at work and then using such private information to attempt to control these private aspects of her life outside of work): Robles v. Mantilia Motors, Inc., Superior Court, judicial district of New Haven at New Haven, Docket Number CV 07-5009456 S (March 10, 2009, Robinson, J.). (In a combined employment discrimination and intentional infliction of emotional distress claim, the plaintiff, a member of a minority group, who was subject of adverse employment action, disagreed that he was terminated for inappropriate and sexual harassing comments he made to a female employee alleging that he was terminated for lack of work while a non-minority employee was not terminated for the same alleged conduct. The employers conduct was held not to be extreme and outrageous.) Lamothe v. Russell, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV07-4022729S (March 25, 2009, Bellis, J.) [ 47 Conn. L. Rptr. 450] (The following was held to be outrageous conduct:
In the present case, the plaintiff alleges, inter alia, that Russell, the "immediate supervising attorney of the plaintiff," constantly belittled, berated, and screamed/yelled" at the plaintiff, was "made the subject of harassment, verbal abuse and hostility" by Russell, was `[c]onstant[ly] mocking and teasing the Plaintiff by calling her fat,'" was "[c]onstantly telling the plaintiff that she needed to park her car at the railroad station and . . . walk her fat a** from the railroad station to work." Furthermore, the complaint makes allegations beyond verbal acts, and claims that Russell threw objects at or near the plaintiff, and, on at least one occasion in front of others, grabbed a cigarette out of the plaintiff's mouth and/or hands, while screaming at her.)
Negron v. Rexam Cosmetic Packaging Inc., Superior Court, judicial district of Litchfield Docket Number CV04-4200333S (January 11, 2006, Trombley, J.) (Outrageous conduct properly alleged including publishing of photographs of plaintiff implying he engaged in bestiality.) Engle v. Bosco, Superior Court, judicial district of New Britain at New Britain, Docket Number CV054006996 S (September 14, 2006, Robinson, R., J.) (Combined use of "dumb mother x x x x ers, brain dead, dead cat could do a better job, suck his dead cat's . . . and spitting at employee held insufficient allegations of extreme outrageous conduct.)
The following cases have found insufficient allegations of outrageous conduct. Jeffress v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 96-03 86866 S (August 28, 1997, Silbert, J.) (Defendants subjected plaintiff to a continuous pattern of harassment, humiliation and degradation): Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 95-0377376 S (October 29, 1999, Licari, J.) (Defendant did not allow plaintiff to respond to false and malicious allegations made about his conduct or confront other employees that had a problem with his conduct.) Henderson v. Hoban, Superior Court, judicial district of New Haven at New Haven, Docket Number 391352 (July 10, 1998, Levin, J.) (Defendant shouted at plaintiff used obscenities, threatened to strike her, verbally attacked her, threatening and abusing her, inviting a physical altercation.); Baricko v. Chesebrough-Pond's USA, Company, Superior Court, judicial districts of New Haven at New Haven, Docket Number CV 97-03 95642 S (December 26, 2000, Zoarski, J.) (Supervisor actively attempted to eliminate plaintiff from employment, prevent plaintiff from using vacation time and played fellow employees against each other.) Majewski v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV03-0406893 S (January 20, 2005, Arnold, J.) (Plaintiff filed a discrimination complaint with CHRO and this civil suit for hostile work environment, retaliation and intentional infliction of emotional distress alleging supervisor hugged and kissed plaintiff, discussed sexual interests, suggested meeting socially after work resulting in a series of adverse employment actions. Trial court held these allegations not sufficient to support intentional infliction claim.)
The following cases have found sufficient allegations of outrageous conduct in an employment situation. Taylor v. Phyllis Bodel Child Care Center, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 95-0377237 (July 10, 1996, Licari, J.) (Defendants falsely accused plaintiff of child abuse against one of her students and professional misconduct without investigating such claims, portrayed her as incompetent and unprofessional in evaluations to justify her termination and prevent future employment). Leone v. New England Communications, Superior Court, judicial district of New Britain at New Britain, Docket No. CV01 0509752 S (April 10, 2002, Quinn, J.) [ 32 Conn. L. Rptr. 72] (Constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff's computer, and insulting comments on his sexual preference); Lin v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket No. CV96-0384551 S, (August 25, 1998, Hartmere, J.) (Supervisors subjected employee to daily acts of sexual assault and battery, threatening statements and termination after employee reported this conduct.)
At the oral argument the defendants argued that even if the plaintiff could prove all of the allegations contained in the Second Substituted Complaint, these facts would not be sufficient to justify a claim for intentional emotional distress. The defendants also conceded at oral argument that if the plaintiff's affidavit is accepted as true, even then the defendant's Motion for Summary Judgment should be granted.
The court has reviewed the plaintiff's December 4, 2009 Affidavit in Support of Objection to Motion for Summary Judgment (#159.00). In paragraphs 11 and 12 of the Second Substituted Complaint dated October 10, 2006 and in her Affidavit the plaintiff states:
In response to the filing of the said institutional labor grievance, the defendants acted individually and in concert to retaliate against the plaintiff, and to coerce her to withdraw the institutional labor grievance, in one or more of the following ways:
(A) By engaging in a pattern of harassment and intimidation, falsely accusing the plaintiff of poor job performance; and/or,
(B) By engaging in a pattern of harassment and intimidation, falsely accusing the plaintiff of racial and/or sexual bias; and/or,
(C) By threatening demotion of job position; and/or
(D) By threatening employment termination; and/or,
(E) By demoting the plaintiff; and/or,
(F) By terminating the plaintiff's employment; and/or
(G) By creating a hostile work environment to the plaintiff.
By retaliating against the plaintiff for filing the institutional labor grievance, the defendants Kenneth Mysogland, David Williams, Kathleen Simpson, Aissa Williams, Yodna Vivanco-Small, Anastasia Kalmanides, Aracely Centeno, and Karla Rivera, did intentionally cause and inflict emotional distress upon the plaintiff to her loss and damage.
In the late summer of 2004, the plaintiff filed an institutional grievance against Kenneth Mysogland, DCF Area Director, and David Williams, DCF Program Supervisor, on the basis that the staff of the Stamford DCF office was overworked and the maximum caseload limitations were being exceeded. This institutional grievance was filed by the plaintiff as Union Steward on a request by 20 out of 25 members of the bargaining members. The plaintiff's complaint states that all the defendants acted individually and in concert to retaliate against the plaintiff and to coerce her to withdraw her institutional labor grievance. The exact allegations of the plaintiff's complaint are quoted in this Memorandum of Decision and are repeated in plaintiff's Affidavit in Support of Objection to Motion for Summary Judgment dated December 9, 2009 (#159.00). No further details are contained in the Second Substituted Complaint dated October 10, 2006 (#119.10).
The plaintiff's Affidavit (#159.00) does contain more details: (1) prior to filing the institutional grievance the plaintiff had received satisfactory performance evaluations and any unsatisfactory evaluations had been the subject of prior personnel action, which were favorable to the plaintiff, (2) the defendants, Simpson, Williams and Mysogland, were the direct or indirect subjects of the institutional grievance and the remaining five defendants were disgruntled employees, who unsuccessfully filed individual prior complaints against the plaintiff, (3) the defendants intended to drive the plaintiff out of her position as supervisor in retaliation for the personal vendetta of each of the individual defendants, (4) the defendant, Mysogland, demanded that the plaintiff withdraw the grievance and the plaintiff retire, (5) the resulting campaign by the defendants, Mysogland, Simpson and Williams, was to force the plaintiff to withdraw the grievance, and resulted in a review of the plaintiff's prior personnel history with each prior complaint being revisited, with a performance evaluation of the plaintiff performed by the defendants, Mysogland, Simpson and Williams, for the first time resulting in the plaintiff's first unsatisfactory performance evaluation, (6) the other five defendants became hostile and uncooperative, (7) the plaintiff described the conspiratorial conduct between the defendants as demeaning, humiliating, mean-spirited, racially biased and an unwarranted attack against the plaintiff personally and professionally partially because the plaintiff was a Union Stewart and an African American woman and, (8) as a result the plaintiff left her employment at DCF and secured employment elsewhere at a greatly reduced income.
The plaintiff's complaint and affidavit provide no further details. The plaintiff has not submitted any other supporting documentation or affidavits. Neither the plaintiff's affidavit nor her Objection to Motion for Summary Judgment dated December 4, 2009 (#159.00) contains any reference to the documents submitted by the defendants in their Memorandum (#157.00). The plaintiff did not submit a Memorandum in Support of her Opposition to the defendants' Motion for Summary Judgment.
Accepting all of the above facts as true, these facts do not allege sufficient extreme or outrageous conduct by any of the defendants. The court finds that there is no material issue of fact. The defendants have offered a different version of the facts than recited in this Memorandum of Decision and have filed documents supporting that version. It is not necessary for this court to review the facts from the defendants' point of view.
The defendants' Motion for Summary Judgment dated November 9, 2009 (#156.00) is granted as to the First Count and Second Count of the plaintiff's Second Substituted Complaint (#119.10).