Opinion
No. CV05 4001839-S
August 2, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
I PROCEDURAL HISTORY
This action arises out of the defendant's termination of the plaintiff's employment. The plaintiff, Kathleen Hoffman, alleges the following facts in her two-count revised complaint. In the first count, the plaintiff alleges that she was employed by the defendant, Miller Memorial Community, Inc., as registered nurse in its residential care facility from October 2002 to February 11, 2004. During that time, the plaintiff had diabetes and multiple sclerosis, which she refers to as her "disability," but was able to perform the functions of her job, with reasonable accommodations. The defendant had knowledge of her condition, and previously accommodated her request that she be reassigned from the Edwards Pavillion portion of the facility to a part of the facility that involved work that was less aggravating to her disability. Before she reported to work on February 10, 2004, the plaintiff noticed that the defendant had assigned her to work in the Edwards Pavillion. The plaintiff asked the defendant to change this assignment, but the defendant refused to do so. Because the plaintiff was experiencing increased pain and discomfort due her disability, she decided to take a sick day and left the facility. The next day, the defendant's personnel director informed the plaintiff that the defendant was terminating her employment because she had abandoned her position. The plaintiff alleges that the defendant used this as a pretext for terminating her because of her disability in violation of General Statutes § 46b-58 et seq.
In the second count, the plaintiff realleges the facts of the first count and adds that, on February 10, 2003, after the CT Page 11889-z defendant refused to change her assignment, she informed her supervisor that she was going to take a sick day. She claims that her supervisor merely stated "fine, then leave," and did not tell her that she would be violating a policy by leaving, or that her conduct was inappropriate or might result in adverse actions against her. The following day, when the personnel director informed the plaintiff that she was being terminated for abandoning her position, the plaintiff protested that she had not done so in that she left before she had actually reported to her position. The director said she would "check this out." The plaintiff then reminded the director that in previous conversations, she had informed the director that her disability would prevent her from being physically able to work on some occasions. In response, the director shrugged her shoulders. Finally, the plaintiff alleges that the defendant later terminated the plaintiff's supervisor because the supervisor "falsely reported that the plaintiff abandoned her shift." The plaintiff concludes that "the defendant should have realized that its wrongful conduct in the process of terminating the plaintiff involved an unreasonable risk of causing emotional distress and that said distress, if caused, might result in illness or bodily harm."
The defendant moves to strike the second count on the grounds that the plaintiff fails to allege facts that show that it engaged in unreasonable conduct in the process of terminating her, and because she fails to allege that she suffered any emotional distress. The plaintiff opposes the motion on the basis that the issue of whether the defendant's conduct was unreasonable is generally a question of fact and that she has adequately alleged facts to support this element. She also asserts that her failure to specifically allege that she suffered emotional distress is a technicality, and, in any event, in her prayer for relief, she states that she seeks damages for emotional distress.
II DISCUSSION
The function of a motion to strike is to challenge "the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a CT Page 11889-aa 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.) Id., 292-93. "[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." (Citation omitted; internal quotation marks omitted.) Id., 292. Nevertheless, in ruling on a motion to strike, the trial court does not admit the legal conclusions in a complaint. Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). Therefore, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOG Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
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 the 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). The Appellate Court recently stated, "to prevail on such a claim, 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). Here, the defendant asserts that the plaintiff has failed to plead sufficient facts to support the first and third elements.
As to the first element, "[n]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process"; (internal quotation marks omitted). Parsons v. United Technologies Corp., supra, 243 Conn. 88; as opposed to conduct that occurs during an ongoing employment relationship. Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 5. Nevertheless, "[t]he mere termination of employment, even where it is wrongful, is . . . not, by itself, enough to sustain a CT Page 11889-ab 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. 89.
The facts of this case are strikingly dissimilar to the facts in Davis v. Manchester Health Center, 88 Conn.App. 60, 867 A.2d 876 (2005), in which the plaintiff, who had been employed as a nursing assistant in the defendant's nursing home, brought an action against her employer for, among other things, negligent infliction of emotional distress. Following a trial in which the jury returned a verdict in favor of the plaintiff, the defendant appealed on the ground that the trial court improperly denied its motion for a directed verdict on this claim. The defendant argued that its conduct during the termination process was not the type of conduct that could support such a claim. The Appellate Court disagreed with the defendant, explaining, "the jury reasonably could have determined that the defendant engaged in unreasonable conduct in the process of terminating the plaintiff's employment. Forcing the plaintiff to choose between her own health and well-being and that of her unborn child, and her continued employment, especially in light of the substantial evidence of other available and suitable work stations, was patently unreasonable. This case is not one in which the defendant's employees were merely rude during the termination process. This is a case in which the plaintiff reasonably believed that she would suffer physical harm if she worked on the wing on which her supervisor insisted she work." Id., 73.
In Davis v. Manchester Health Center, supra, 88 Conn.App. 60, the plaintiff, who had already informed the defendant that she was pregnant, was informed by her supervisor that she had been reassigned to a wing of the nursing home that would require increased physical exertion on her part. When the plaintiff told her supervisor that she was concerned as that the increased exertion would have a negative impact on her pregnancy, the supervisor refused to change the assignment. The supervisor also told another employee that she did not believe the plaintiff, and told the plaintiff to either work or leave and not come back. The plaintiff left. The next day, the plaintiff met with the director, who told the plaintiff that she would investigate the situation. Later that day, the plaintiff was informed that her employment was terminated.
As to the fourth element, the defendant correctly points out that the plaintiff's complaint is completely devoid of any allegation that she suffered any emotional distress. In evaluating the elements of this cause of action, the Supreme Court has explained that a plaintiff is required to prove that "the fear or distress experienced by the plaintiffs [was] reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., CT Page 11889-ac 262 Conn. 433, 447, 815 A.2d 119 (2003). "[T]his condition differs from the standard foreseeability of the risk of harm requirement for negligence generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even [when] a breach of duty might otherwise be found . . ." (Emphasis added; internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 447, 782 A.2d 87 (2001).
Here, the plaintiff has not alleged any facts to support this element of her cause of action. The defendants' motion to strike count two of the complaint is granted for the reasons stated above.
III CONCLUSION
The motion to strike is granted.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge