Opinion
No. LLI CV 05 4002943S
June 14, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#102)
I. Nature of the Proceedings
This case arises out of the alleged wrongful termination, by the defendant, Kate C. Paley, of the plaintiff, Georgette Guccione, who was employed by the defendant as a full-time housekeeper. The plaintiff (hereinafter "Guccione") filed a seven-count complaint against the defendant (hereinafter "Paley"), sounding in invasion of privacy, wrongful discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, breach of the covenant of good faith and fair dealing, and promissory estoppel on the ground that each count fails to state a claim upon which relief may be granted. The court has reviewed the legal memoranda filed by counsel for each of the parties and the cases cited therein. For reasons hereinafter set forth, the defendant's motion is DENIED, as to all seven counts.
II. Facts
Guccione alleges the following. For approximately six years prior to June of 2001, Guccione operated her own house cleaning business. On or about June 9, 2004, Guccione began working for Paley as a house cleaner two days per week, which later increased to three days per week. During this time, Paley was one of Guccione's many customers. After about two months Paley offered Guccione a full-time house cleaning position, five days a week and eight hours a day. Guccione relayed her concerns to Paley that taking a full-time position would require her to give up her own house cleaning business. Paley assured Guccione that she needed her services and promised that if Guccione accepted the offer of full-time employment, she would have a job with her "as long as she wanted it." In reliance of Paley's representations, Guccione took the position on or about July 23, 2001. After Guccione became a full-time employee, Paley's treatment of her changed. It became rude, abusive, humiliating, intimidating and coercive. Guccione alleges that Paley's treatment of her was objectionable and unwelcome, and that she did not participate or submit to the treatment voluntarily, rather she believed that if she objected to or resisted Paley's treatment, she ran a substantial risk of losing her job, which was the sole source of income for herself and her three children.
III. 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. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). When deciding the motion "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The trial court must deny the motion to strike "[i]f facts provable in the complaint would support a cause of action . . ." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).
A. Count One — Invasion of Privacy
In count one, Guccione alleges that Paley engaged in the following conduct, which constituted an invasion of her privacy. Paley preached religious subjects and required Guccione to listen during her working hours. Paley required Guccione to read aloud from the Bible and/or participate in mandatory Bible study sessions during her work hours. Paley assigned Guccione "homework," which was to be completed during non-working hours. Paley monitored Guccione's church attendance and required that she answer questions about the service she attended. During working hours, Paley required that Guccione "pray" over a sick woman in her home. She also questioned Guccione about her sexual relations with her boyfriend and instructed her not to have such relations. Paley questioned Guccione as to whether she planned on sharing a room with her boyfriend during their vacation. When Guccione returned from vacation, Paley questioned her again and became very upset when Guccione responded honestly that she had shared a room with her boyfriend. Paley terminated Guccione's employment on the basis of off-duty conduct by Guccione during non-working hours of a highly personal and private nature, as to which Paley has no legitimate interest or concern as Guccione's employer, such as Guccione's sexual relations with her boyfriend and her religious practices.
Paley argues that in order to establish a claim for invasion of privacy due to an unreasonable intrusion upon the seclusion of another in Connecticut, a plaintiff must prove an intentional physical intrusion by the defendant upon the private affairs or concerns of the plaintiff which would be highly offensive to a reasonable person. Paley asserts that because Guccione does not allege that Paley accosted her physically her claim necessarily fails as a matter of law. Paley continues, Guccione's allegations regarding her conduct does not rise to the level of being highly offensive to a reasonable person, or even intrusive. Thus, Paley asserts that count one should be stricken for failure to state a claim upon which relief may be granted.
Guccione responds that the seminal Connecticut Supreme Court case on invasion of privacy, Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982), does not state that allegations of physical contact or physical intrusion upon the seclusion of another are necessary to state a viable cause of action for invasion of privacy. Rather, the Goodrich case simply requires an allegation of an " unreasonable intrusion upon the seclusion of another." (Emphasis added.) Id., 128. Guccione also points to Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia/Milford, Docket No. CV 99066603 (February 4, 2000, Nadeau, J.) ( 26 Conn. L. Rptr. 368), a case in which the court stated that Connecticut courts have "discarded the notion that allegations of physical intrusion upon seclusion [of another] must be present in order for a recovery under an invasion of privacy claim." As a result, Guccione argues that count one should not be stricken.
"[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [and include] . . . (a) unreasonable intrusion upon the seclusion of another . . ." (Citation omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 127-28.
According to § 652B of the Restatement, which pertains to invasion of privacy by intrusion upon seclusion, "[o]ne who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." "Therefore, [i]n order for a complaint to withstand a motion to strike, the plaintiff must allege facts demonstrating an intrusion upon a privacy interest that is highly offensive to a reasonable person." (Citation omitted; internal quotation marks omitted.) Gallagher v. Rapoport, Superior Court, judicial district of Stamford, Docket No. CV 96 149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474, 475). Whether particular conduct would be highly offensive to a reasonable person is a question of fact. Mashantucket Pequot Tribe v. State, Superior Court, judicial district of New London, Docket No. CV __ 101113 (August 19, 1994, Hendel, J.); Rafferty v. Hartford Courant Co., 36 Conn.Sup. 239, 241, 416 A.2d 1215 (1980).
Although our appellate courts have not addressed the issue directly, in several cases, the judges of the Superior Court have decided that "an allegation of physical contact is not necessary to successfully state a claim for invasion of privacy via an unreasonable intrusion upon the seclusion of another." Bonanno v. Dan Perkins Chevrolet, supra, 26 Conn. L. Rptr. 368. In Bonanno v. Dan Perkins Chevrolet, the court found that the plaintiffs' allegations that the defendant had made comments regarding the plaintiffs' sex life, appearance, and values adequately set forth a cause of action for invasion of privacy. The court relied on the comments to § 652B of the Restatement, which is closely related to the sections that the court relied upon in Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 107, and case law from courts in other states determined that an intrusion, physical or otherwise, which is highly offensive to a reasonable person will support an invasion of privacy claim. The court held that the defendant's comments were highly offensive and accordingly denied the defendant's motion to strike. In this court's view, Paley's alleged actions and comments concerning Guccione's religious and sexual practices are analogous to the intrusive and highly offensive comments made by the defendant to the plaintiffs in Bonanno v. Dan Perkins Chevrolet. If these allegations are proven at trial, they may be judged intentional intrusions upon Guccione's private affairs and concerns and highly offensive to a reasonable person. Accordingly, Paley's motion to strike count one is denied.
B. Count Two and Six — Wrongful Discharge and Breach of the Covenant of Good Faith and Fair Dealing
In counts two and six, Guccione alleges that Paley engaged in the following conduct which constituted wrongful discharge and breach of the covenant of good faith and fair dealing respectively. Paley discharged Guccione on the basis of Guccione's off-duty conduct during non-working hours, which included engaging in sexual relations with her boyfriend, and staying in the same hotel room with her boyfriend during their vacation. During Guccione's employment with Paley, Paley acted in bad faith and for demonstrably improper and wrongful motives, including to control or attempt to control Guccione's religious and sexual practices.
Paley states in cases such as the present, where the breach of implied covenant claim is based on the same public policy violation as the wrongful discharge tort claim, the courts have treated the two claims as contemporaneous and co-extensive and, therefore, have considered them together. Accordingly, Paley addresses counts two and six concomitantly. Paley asserts that the decisive issue with respect to both counts is whether the allegations of the complaint are sufficient to support a claim that the plaintiff's discharge was in violation of an important and clearly articulated public policy. She argues that Guccione's claim that the defendant terminated her employment on the basis of her off-duty conduct during non-working hours does not give rise to a statutory or established common law cause of action sounding in wrongful discharge in Connecticut. Furthermore, Paley asserts that a cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy. Paley argues that Guccione's alleged inquiries concerning plaintiff's relationship with her boyfriend did not amount to a tortious invasion of privacy. As a result, Paley could not have actually violated the public policy protecting individuals against unreasonable intrusions upon their solitude for firing Guccione based on her response to those inquiries. Accordingly, Paley maintains that Guccione does not allege facts sufficient to establish that her termination implicated, or violated, a recognized public policy her claims for wrongful discharge and breach of covenant of good faith and fair dealing, should be stricken for failure to state a claim upon which relief may be granted.
Guccione counters that the Connecticut Supreme Court has held that: (1) the discharge of an at-will employee for a reason which violates an important public policy of the state of Connecticut gives rise to a cause of action for the tort of wrongful discharge and (2) a cause of action in contract for discharge in violation of the implied covenant of good faith and fair dealing exists where the reason for discharge involves impropriety derived from some important violation of public policy. She argues that Connecticut courts have also recognized that a valid claim for wrongful discharge and/or breach of the implied covenant of good faith and fair dealing may be based on violation of a "judicially conceived notion of public policy," rather than a public policy that is statutorily derived. Guccione points out that the Connecticut Supreme Court has expressly stated that no statute or legislative action was necessary to recognize or establish Connecticut's common-law right of privacy or "the right to be let alone." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 125-27. Thus, Guccione argues that the second and sixth counts of her complaint allege a violation of an important "judicially conceived notion of public policy" sufficient to state viable causes of action.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Beginning in the late 1950s, however, courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge. Certain employer practices provoked public disfavor, and unlimited employer discretion to fire employees eventually yielded to a more limited rule . . . Following that trend, [the Supreme Court], in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy . . . In doing so, [the Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . In Morris v. Hartford Courant Co., [ 200 Conn. 676, 680, 513 A.2d 66 (1986), the Supreme Court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [the Supreme Court] look[s] to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy . . .
"Although [our Supreme Court has] been willing to recognize, pursuant to Sheets and its progeny, a claim for wrongful termination in appropriate cases, [the court] repeatedly ha[s] underscored [its] adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-701, 802 A.2d 731 (2002).
As discussed earlier, the Connecticut Supreme Court has expressly provided that the unreasonable intrusion upon the seclusion of another is one of the four categories of invasion of privacy. Goodrich v. Waterbury Republican-American, Inc., supra, 107 Conn. 127-28. This court has already determined that Paley's alleged actions and comments concerning Guccione's religious and sexual practices, if proven at trial, could be viewed as highly offensive to a reasonable person. Thus, it is also logical that the discharge of an at-will employee due to an employer's disapproval of the employee's private sexual and religious practices does violate an important public policy of the State of Connecticut, the right to privacy. As a result, Guccione's allegations, if proven at trial, do constitute a cause of action for the tort of wrongful discharge. Accordingly, Paley's motion to strike counts two and six, for wrongful discharge and breach of covenant of good faith and fair dealing in the employment context, is denied.
C. Count Five — Breach of Contract
In count five, Guccione alleges that Paley's termination of Guccione's employment constituted a breach of the express or implied contract of employment between Guccione and Paley. She alleges that Paley made oral assurances to her that she would have a job "as long as she wanted it." She further alleges that Paley made this promise to induce Guccione to give up her other clients, who had provided her with a source of income, in order to work full-time for Paley, and that Paley breached this promise when Paley terminated her employment.
Paley argues that to overcome the presumption of at-will employment in the absence of a contract to the contrary, a plaintiff must allege far more than that the employer made opaque remarks about the longevity of employment. Thus, Paley asserts that Guccione's breach of contract claim is insufficient to overcome Connecticut's well-established doctrine of employment at will. As a result, Paley asserts that count five should be stricken for failure to state a claim upon which relief may be granted.
Guccione responds that she made it clear to Paley that she would only give up her other clients if she received a commitment from Paley regarding job security and length of employment. Thus, Guccione's reassuring statement that Paley would have a job for "as long as she wanted it" was a bargained-for commitment of long-term job security which both parties clearly understood was part of the "basis of the bargain" made when Guccione accepted Paley's offer of full-time employment. Hence, Guccione argues that count five should not be stricken.
"[E]mployer-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." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). An "implied contract . . . [may incorporate] the terms of . . . oral statements." Sidiropoulos v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 03 0401830 (February 28, 2005, Skolnick, J.), citing Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 12-13, 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 . . . Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 14-15.
Paley's alleged statements to Guccione are analogous to those made by the plaintiff in Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 523. In Gaudio, the plaintiff alleged that the defendant's personnel made oral statements to him when he began working for the defendant, that if he did a good job, he would have a job as long as he wished. In holding that such statements were sufficient evidence of implied contract terms, our Supreme Court reasoned that a "jury reasonably could have credited the plaintiff's testimony that [the plaintiff] was promised [that] as long as [he] was doing [his] job and . . . continued to do a good job, [he] would be there for as long as [he] wished . . . As we recently stated in Torosyan . . . [b]ecause the plaintiff testified as to . . . alleged oral statements concerning his future job security and the [trier] found that testimony credible, there was sufficient evidence for the [trier] to find that the statements were in fact made . . . [even if] the defendant's witnesses [had expressly] denied having made the statements . . ." (Emphasis added; internal quotation marks omitted.) Id., 538. As the oral statements made to the plaintiff in Gaudio may be sufficient to allege the terms of an implied contract, Guccione's allegations of Paley's oral promises that she would have a job "as long as she wanted it" is also sufficient to allege the terms of an implied contract. Therefore, Guccione's allegations of a breach of contract do withstand a motion to strike; the defendant's motion relative to count five is denied.
D. Count Three — Intentional Infliction of Emotional Distress
In count three, Guccione alleges that Paley engaged in the following conduct which constituted extreme and outrageous conduct, which she intended to inflict emotional distress on Guccione, or knew or should have known was likely to result in emotional distress to Guccione. Guccione was not allowed to disagree with Paley or question her in anyway. If Guccione displeased Paley, she was required to apologize repeatedly and understood that failure to do so would put her at risk of being fired. If Guccione upset Paley in any way, Paley would have the fan, which was used to cool the laundry room where Guccione worked, removed as punishment. Paley would make fun of Guccione's Italian accent. Paley assigned Guccione religious homework and quizzed her the next day. She also required Guccione to attend church every Sunday and, to ensure that she had actually attended, Paley would ask her what the minister discussed. If Guccione did not attend church on Sunday, Paley would become very upset. She also required Guccione to pray over a sick woman that Paley took into her home to "chase the demons away so God would heal her." Paley also would inquire as to whether Guccione and her boyfriend had sexual relations and if they shared a room together during vacation. Paley would become very upset when Guccione answered that she had sexual relations with her boyfriend. In sum, Paley consistently questioned Guccione about her religious and sexual practices and would compel Guccione to answer her as Guccione feared for the loss of her employment with Paley.
Paley asserts that, in the employment context, the only allegations found sufficient to establish claims for intentional infliction of emotion distress include, being forced to suffer public ridicule, repeatedly taunted about a mental disability, or terminated for exercising a statutorily protected right. She argues that Guccione's claim that Paley inflicted emotional distress upon her by allegedly posing intrusive personal questions and making her feel "ashamed, unworthy, dirty and like a sinner," therefore, are woefully insufficient to establish a viable claim for intentional infliction of emotional distress. Hence, Paley asserts that count three, intentional infliction of emotional distress, should be stricken for failure to state a claim upon which relief may be granted.
Guccione responds she has alleged the four elements necessary to prevail in a claim for intentional infliction of emotional distress and that her allegations rise to the level of conduct which is sufficiently extreme and outrageous to state a viable cause of action for intentional infliction of emotional distress. Guccione submits that, under the circumstances of this case, reasonable minds may differ as to whether the allegations in her complaint set forth facts sufficient to state a viable cause of action for intentional infliction of emotional distress. Accordingly, count three should not be stricken as a jury should be allowed to decide whether Paley's efforts to control Guccione's off-duty behavior constitute intentional infliction of emotional distress.
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).
"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." (Internal quotation marks omitted.) Crane v. Northwestern Connecticut Young Men's Christian Ass'n., Superior Court, judicial district of Litchfield, Docket No. CV 044001019 (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." (Citation omitted; internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 78, 811 A.2d 243 (2002). "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 0472301 (January 11, 2005, Corradino, J.) ( 38 Conn. L. Rptr. 533, 539).
This court finds that Paley's alleged behavior during Guccione's employment, which consisted of repeatedly compelling Guccione to divulge highly private information about her sex life, romantic relationships and religious practices at work, and then using such private information, together with her power over Guccione's livelihood, to attempt to control those private aspects of Guccione's life outside of work, may very well rise to the level of extreme and outrageous conduct that would lead one to exclaim, " Outrageous!" When an employer systematically intimidates an employee who fears the loss of her livelihood into revealing extremely private details about his or her religious and sexual practices, the employer's conduct may be described as "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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443. Paley's motion to strike count three of Guccione's complaint is, therefore, denied.
B. Count Four — Negligent Infliction of Emotional Distress
In count four, Guccione alleges the following conduct by Paley constituted negligent infliction of emotional distress as Paley knew or should have realized that her conduct involved an unreasonable risk of causing emotional distress to Guccione, and that such distress, if caused, might result in illness or bodily harm to Guccione. Paley had her bodyguard call Guccione on July 8, 2003. The bodyguard instructed Guccione not to come to work the next day, and that someone would call her the following day. No one called Guccione on July 9, 2003. On July 10, 2003, Guccione called Paley's accountant and inquired about her employment status. During that telephone call, Paley's accountant informed Guccione that she had been fired.
Paley contends that employee claims for negligent infliction of emotional distress are only cognizable when they are based on unreasonable conduct of the defendant in the termination of the plaintiff's employment. The mere termination of employment, however, even where it is wrongful, is not, by itself, enough to sustain a claim for negligent infliction of emotional distress. Hence, Paley argues that Guccione's allegations that she was notified of her firing over the telephone by Paley's accountant is far from sufficient to support a viable claim for negligent infliction of emotional distress. Therefore, Paley asserts that count four should be stricken for failure to state a claim upon which relief may be granted.
In reply, Guccione points out that Paley conceded in her memorandum that negligent infliction of emotional distress can occur when the employee is "dealt with in an unreasonable manner during a period of time in which his or her termination of employment is pending." Guccione avers that Paley's conduct of placing and leaving Guccione in a situation in which she did not know for several days whether she was employed by Paley, which was her sole source of income for herself and her children, constitutes unreasonable treatment of the employee during a period of time in which her termination of employment is pending. Paley's actions, therefore, constitute a negligent infliction of emotional distress in the process of termination of Guccione's employment. Accordingly, by the standards cited by Paley, the fourth count should not be stricken.
A plaintiff pursuing a cause of action for negligent infliction of emotional distress "has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). "To prevail on [a claim for negligent infliction of emotional distress], a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005). "[Negligent infliction of emotional distress] in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process rather than in an ongoing employment relationship." (Internal quotation marks omitted.) Id. citing Parsons v. United Technologies Corp., 243 Conn. 88. Even so, "[t]he mere termination of employment, even where it is wrongful, is . . . not, by itself, enough to sustain a claim for negligent infliction of emotional distress . . . The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88-89.
It is unclear when Paley intended to inform Guccione of her employment status. It is clear, however, that Paley did not bother to inform Guccione of her employment status for at least 48 hours, leaving her in the precarious situation of not knowing whether to pursue alternative work or remain ready to report to her "present employment." Paley acted with the knowledge that Guccione's employment with her was Guccione's and her three children's sole source of income. Paley was not merely inconsiderate or rude during the termination process, rather her actions were unreasonable. Therefore, Paley's motion to strike count four is denied.
F. Count Seven — Promissory Estoppel
In count seven, Guccione alleges that injustice can be avoided only by enforcement of Paley's promise of employment to Guccione. Guccione also alleges that Paley told her that she would have a job for "as long as she wanted it" to induce her to give up her other house cleaning clients and work full-time for Paley.
Paley argues that, generally speaking, promissory estoppel permits recovery based on a sufficiently clear and definite promise, even in the absence of the consideration required to create a contract. In light of this standard, Paley argues that Guccione's promissory estoppel claim fails for want of the requisite "clear and definite promise," rather Guccione relied on nothing more than vague remarks ostensibly concerning longevity of employment and the like. Therefore, Paley asserts that count seven should be stricken for failure to state a claim upon which relief may be granted.
Guccione responds that Paley's statement that Guccione would have a job for "as long as she wanted it" was sufficiently clear and definite to achieve its intended purpose, which was to allay Guccione's fears, induce her to forego her other clients and come to work solely for Paley. Guccione argues that it would not be appropriate for the court to decide as a matter of law that the Paley's promise was not sufficiently "clear and definite" to give rise to promissory estoppel. Accordingly, the seventh count should not be stricken.
"[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action of forbearance is binding if injustice can be avoided only by enforcement of that promise." Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003). "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." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., supra, 104-05. "Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Emphasis in original; internal quotation marks omitted.) Id., 105. "[T]he promise must reflect a present intention to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire or opinion, which shows no real commitment, cannot be expected to induce reliance . . . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire, or opinion . . . Finally whether a representation rises to the level of a promise is generally a question of fact to be determined in light of the circumstances under which the representation was made." (Citations omitted; internal quotation marks omitted.) Id., 105-06.
In the present case, Guccione's allegations that Paley stated to her that she would have a job for "as long as she wanted it," a statement which clearly communicates that as long as Guccione's performance was satisfactory she would have employment with Paley until Guccione terminated the relationship. According to Guccione, Paley made this statement in response to Guccione's concerns about giving up her other clients to work solely for Paley. Thus, Guccione alleges that Paley knew that Guccione was relying on this statement when she "gave up" her other customers and accepted the position to work for her. As a result, Guccione has alleged the necessary "clear and definite promise." Paley's motion to strike count seven is, therefore, denied.