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determining that wrongful discharge and § 31-51q claims were based "on the same essential set of facts" since the "gravamen" of plaintiff's wrongful discharge claims was that she was fired for "her 'consistent and emphatic opposition' and 'complaining' regarding the alleged illegal activities," and where her wrongful discharge claim relied, in part, on "the state whistleblower statute against retaliatory discharges for speaking against illegal and unethical practices . . . ."
Summary of this case from Medero v. Murphy Sec. Serv., LLCOpinion
No. CV-10-6015682S
June 20, 2011
RULING ON DEFENDANTS' MOTION TO STRIKE THE AMENDED COMPLAINT (#106)
This case arises from the termination of the plaintiff Janice King's employment by the defendant The Connection, Inc. (The Connection). The plaintiff (King) brought a five-count complaint dated November 3, 2010 which named The Connection and Lynn Spencer (Spencer), its vice-president of human resources, as defendants. On December 9, 2010, the defendants filed a motion to strike the complaint along with an accompanying memorandum (##101, 102). On January 21, 2011, King filed an objection to the motion to strike and an amended complaint which did not contain the fifth count. On February 10, 2011, the defendants filed a motion to strike the amended complaint in its entirety, along with a memorandum that responded to King's objection (##106, 107). On February 22, 2011, King filed an objection to the second motion to strike (#108) and on March 8, 2011, in response to a request from the court at oral argument on March 7, 2011, King filed a supplemental memorandum (#109).
In her amended complaint, King alleges that she was terminated from her employment in violation of General Statutes § 31-51q (count one), that she was wrongfully discharged in violation of public policy (count two) and contract (count three), and that she suffered damages as a result of the defendants' intentional infliction of emotional distress upon her(count four). The defendants have moved to strike all four counts of the amended complaint on the following grounds: (1) the first count insufficiently alleges a violation of § 31-51q because it fails to allege a matter of public concern and fails to allege all the requisite elements of the statutory cause of action; (2) the common-law tort and contract wrongful termination claims in counts two and three are not cognizable as § 31-51q provides the exclusive remedy for the alleged wrongful conduct; and (3) the fourth count fails to sufficiently allege extreme and outrageous conduct on the part of the defendants.
"The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions . . . On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. Practice Book § 10-39(a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
The amended complaint contains the following facts which are common to all counts: In November 2008 King, who had experience working as an administrator in the human services industry, began working at The Connection, a non-profit Connecticut corporation specializing in human services, as Administrative Director (¶¶ 4, 5, 6.) Her chief responsibility was to identify ways to reduce costs and increase revenues. (¶ 7.) In July 2009, another individual was hired by The Connection and he had overlapping responsibilities with King that "created issues." (¶¶ 9, 10.) King had concerns with respect to the manner in which this individual used state grant monies including concerns about the "inadequate experience and medical knowledge" of certain individuals compensated with a portion of the grant funds (¶ 15) and accounting deficiencies. (¶¶ 16, 17.) After King voiced certain complaints (¶ 17), Spencer held a meeting on January 7, 2010 to discuss new job descriptions and specifically discussed changes in King's job description. (¶¶ 19, 20, 21.) These changes included a revocation of certain previously granted authority and reassignment of office space. (¶¶ 22, 23.) On January 22, 2010, Spencer advised King that she had to sign her new job description by January 25, 2010 "or that she would lose her job." (¶ 27.) Although she wanted to consult with her attorney about the new job description because it "stripped [her] of substantial authority," King signed the job description before the deadline. (¶¶ 27-29.)
At around the same time in early 2010, King received an e-mail directing her "to obtain new tags for fire extinguishers" and she had a conversation with The Connection's maintenance director, David Kyle (Kyle), "who informed her that it was illegal for a non-licensed person to change the tags on fire extinguishers." (¶ 26.) At the same time, Kyle explained this issue to other individuals at The Connection including one of King's supervisors and the Connection's Clinical Director Leah Russack-Baker. (¶¶ 7, 21, 26.) On February 21, 2010, Russack-Baker sent King an e-mail "asking about changing the tags on fire extinguishers" (¶ 32.) As a result of King's response that it was illegal for a non-licensed person to change tags on fire extinguishers and that she would not be involved in illegal activities, she was reprimanded by Spencer. (¶¶ 32, 33, 34.) Spencer subsequently issued two other warnings to King for purported violations of company policy. (¶¶ 36, 37, 39, 40, 41.) Additional issues arose between Spencer and King in mid-May 2010 relating to a complaint that King had made to Tom Forschner, The Connection's Chief Financial Officer, with respect to an e-mail that had been circulated by other staff members which King found to be offensive because of its religious theme. (¶¶ 44-46.) At around the same time, King complained to her superiors that she was being subjected to "harassment through [the] hostile, antagonistic and condescending behavior" of Marcie Dimenstein (Dimenstein), the program director at The Connection's Orange Street facility in New Haven, at monthly meetings attended by members of management. (¶¶ 47-48.) Also between May and June 2010, King was ordered by management to spend funds on equipment in a manner that King believed was a misuse of public funds. (¶ 51.)
On June 4, 2010, King attended a meeting with Forschsner, Dimenstein and David D'Amora, the vice-president of agency programs at The Connection. There was a discussion about whether King or clinicians should handle issues regarding re-credentialing after which King suggested that a new staff member be hired and was later asked to draft a job description of the new position. (¶ 52, 54.) Immediately following this meeting, Dimenstein confronted King about an e-mail reply and King informed her that she was acting in an inappropriate and bullying manner. (¶ 53.) On June 15, 2010, Spencer terminated King's employment effective immediately citing King's refusal to assume credentialing responsibility at the June 4, 2010 meeting, as well as her behavior toward Dimenstein subsequent to that meeting. (¶ 55.)
I
In count one, King alleges that she was discharged in retaliation for exercising protected speech in violation of General Statutes § 31-51q. (Count One, ¶ 62.) Specifically, she alleges that she "spoke out against activities that were illegal, such as the retagging of fire extinguishers without the use of a safety inspector, the improper use of funds provided by the Connecticut Department of Correction, and by extension the Connecticut taxpayers, to compensate individuals who were unqualified to provide human services to those in need, and a lack of controls with regard to charges for counseling center staff being assigned to incorrect accounts." ( Id., ¶ 60.) The first count also alleges (¶ 61) that "[i]n speaking out on these issues, Plaintiff spoke out as a citizen on matters of public concern" and was therefore protected by the free speech provision of the Connecticut constitution and General Statutes § 31-51q.
Section 31-51q provides, in pertinent part: "Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendments to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge . . ."
The defendants have moved to strike the first count as legally insufficient on two grounds: (1) the alleged statements do not involve matters of public concern and (2) the complaint fails to allege all of the requisite elements to sustain a claim pursuant to § 31-51q because King has failed to plead that her speech did not substantially or materially interfere with her job performance or working relationship with her employer.
A.
Section 31-51q, and the constitutional provisions encompassed within its auspices, "safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). "The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999). An employee's speech addresses a matter of public concern when it "involves statements that can be fairly considered as relating to any matter of political, social, or other concern to the community . . ." (Internal quotation marks omitted.) Id., 249 Conn. 779, citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). "[W]hether the subject matter addressed by a particular statement is of public concern involves a question of law for the court . . ." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 777. "[W]hether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Id. Stated differently, in determining whether the plaintiff has alleged protected speech, the inquiry on a motion to strike is only directed to the subject matter of the statement and not the particulars of the statement itself.
King first argues that she was terminated in violation of § 31-51q for voicing concerns regarding the improper use of state grant funds. Specifically, she maintains that her general complaints regarding "the inadequate experience and medical knowledge" of certain "unqualified individuals" compensated with grant monies, (¶¶ 13-17), and her expressions of concern regarding the purchase of audio-visual equipment "using money provided for `office supplies'" (¶ 51) are proper subjects of public concern.
Construing these allegations in the light most favorable to sustaining their sufficiency, it is nonetheless clear in the context of all the factual allegations that King's complaints, expressed privately to someone within her workplace, concern topics within the scope of her job duties and involve an internal workplace dispute regarding office practices and procedures. Specifically, King disagreed with a decision to hire, and necessarily pay with state funds, individuals she believed to be incompetent, and she also disagreed with a management decision regarding the ordering and classifying of a purchase of audio-visual equipment. The fact that taxpayer funds are involved in workplace decisions does not reflexively transform the subject of an internal dispute into one involving public concern. Section 31-51q "should not be construed so as to transform every dispute about working conditions into a constitutional question." Cotto v. United Technologies Corp., supra, 251 Conn. 17. As alleged, King's statements about a co-worker's incompetent hiring decisions or management decisions to assign audio-visual equipment purchases to the accounting category of "office supplies" instead of "computer equipment" are matters between King and her employer and not matters of public concern. See Lowe v. AmeriGas Inc., 52 F.Sup.2d 349, 359 (D.Conn. 1999) (allegations insufficient because complaints were "made by plaintiff in his role as an employee, not as a concerned citizen").
King also claims that her speech opposing the placement of new tags on fire extinguishers without use of a safety inspector implicates a matter of public concern regarding illegal activity. Specifically, King alleges that she was "directed via email to obtain new tags for fire extinguishers" but was informed "that it was illegal for a non-licensed person to change the tags on fire extinguishers." (¶ 26.) King further alleges that she was asked for a second time to change fire extinguisher tags but refused, stating that "she could not be involved in any illegal activities" of The Connection, and was subsequently reprimanded and eventually terminated for speaking out in opposition to these illegal practices. (¶¶ 32, 34, 57.)
"When employees speak out about potentially illegal activities of their employers that affect third parties or the community at large, courts have held that public concerns are implicated." Trusz v. UBS Realty Investors, LLC, United States District Court, Docket No. 3:09cv268, 2010 WL 1287148, *9 (D.Conn. March 30, 2010). Further, "[s]tatements regarding safety matters affecting the general public have also been found by our courts to be matters of public concern." Guimard v. Falcon Financial, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 05 4003828 (December 16, 2005, Rogers, J.) [ 40 Conn. L. Rptr. 498]. In the present case, the factual allegations regarding alleged illegal re-tagging of fire extinguishers at various locations of a non-profit corporation is a topic of concern to third parties and the community at large because the statements implicate public safety and are not merely an internal dispute between employee and employer. See Lowe v. AmeriGas, Inc., supra, 52 F.Sup.2d 359 (employee's complaints about the improper storage of propane implicated matters of public concern). Even if King's speech on the subject of the fire extinguishers is viewed as mixed, raising issues of personal and public concern, the allegations suffice to implicate a matter of public concern for the purposes of a pleading a § 31-51q claim. See Daley v. Aetna Life Casualty Co., supra, 249 Conn. 786.
B.
The defendants argue next that, even if King's alleged speech is found to address a topic of public concern, the first count should be stricken nonetheless because it fails to allege a necessary element to find liability under § 31-51q: that her free speech activity did not interfere with her job performance or working relationship with the employer. King counters that it is not necessary to plead non-interference with her job performance or working relationship because the combination of legislative intent, statutory language, correspondent federal pleading standards, and history of insufficient judicial analysis of the pleading of § 31-51q actions, suggests that it is actually the defendants who are required to plead that element as a special defense. In light of the overwhelming consensus of Connecticut case law that a plaintiff must affirmatively plead lack of interference with job performance and working relationship in order to sustain a § 31-51 action, King's argument is unavailing.
It is well settled that "[i]n order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [she] was exercising rights protected by the first Amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that [she] was fired on account of [her] exercise of such rights; and (3) that [her] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer." (Internal quotation marks omitted.) Sierra v. State, Superior Court, judicial district of Hartford, Docket No. 00 0803588 (June 4, 2001, Beach, J.) ( 29 Conn. L. Rptr. 734) (collecting Connecticut Superior Court cases requiring affirmative pleading of non-interference with job performance or working relationship with employer); see also Kennedy v. Coca-Cola Bottling Co. of New York, Inc., 170 F.Sup.2d 294, 299 (D.Conn., 2001) (citing Connecticut district court cases setting forth requisite elements of § 31-51q claim). "The language of § 31-51q is consistent . . . with the need to allege that the free speech in question did not interfere with the job performance or employment relationship of the speaker." Streater v. Maier, Superior Court, judicial district of New Haven, Docket No. 03 0473265 (June 16, 2004, Skolnick, J.). Numerous courts in Connecticut have granted motions to strike specifically on account of the failure of a plaintiff to plead non-interference with job duties and employer working relationship. See Armstrong-Grice v. Community Health Services, Inc., Superior Court, judicial district of Hartford, Docket No. 10 6012800 (March 30, 2011, Domnarski, J.) (striking § 31-51q claim and citing various superior court cases similarly striking § 31-51q counts for failure to plead non-interference).
As King concedes, "there is no dispute that the majority of the Superior Court decisions and decisions from the United States District Court for the District of Connecticut hold that the plaintiff must plead and prove lack of substantial interference as an essential element under § 31-51q." (Pl.'s Mem. Opposition to Def.'s Mot. to Strike at 23.) Despite the clear dictates of Connecticut case law, King has failed to allege in her complaint that the exercise of her protected speech did not substantially or materially interfere with her bona fide job performance or the working relationship with her employer. Thus, King has failed to allege a requisite element to sustain a claim under § 31-51q. Accordingly, the motion to strike count one is granted.
II
Counts two and three assert common-law claims for wrongful discharge sounding in both tort and contract. In addition to the common factual allegations, King further claims in the second count that her termination of employment violated various public policies because she was "discharged for her opposition to illegal conduct, including misappropriation of State of Connecticut funds, inadequate billing controls, and requests to change fire extinguisher tags in violation of the law." (Count 2, ¶ 75.) In the third count, King alleges her termination violated public policy and constituted a breach of the implied covenant of good faith and fair dealing, incorporates the allegations as set forth in the second count and further asserts that she was terminated "with a sinister and dishonest purpose that was contrary to the fulfillment of the parties' reasonable expectations." (Count 3, ¶ 76.)
The defendants, relying upon Burnham v. Karl Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000), claim that these common-law wrongful discharge claims cannot be brought because § 31-51q provides the exclusive remedy and precludes these claims. The defendants argue that King has specifically alleged she spoke out on matters of public concern and was terminated in retaliation for that speech. Thus, § 31-51q provides an available and exclusive remedy to vindicate any alleged public policies violated by her dismissal.
Connecticut recognizes an exception to the general rule of at-will employment to permit a common-law cause of action for wrongful discharge "if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy," Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980), and where no other means exists to vindicate the public policy. Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60. However, the scope of the public policy exception to the employment-at-will doctrine is "to be construed narrowly." Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003). Under this narrow exception, "the employee has the burden of pleading and proving that [her] dismissal occurred for a reason violating public policy." Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). Merely pleading that employment was terminated in violation of public policy, however, will not sustain a common-law cause of action if there is an otherwise available remedy to address the specific claims for wrongful discharge, such as the existence of a statutory remedy, even if that statutory remedy has not been asserted or is insufficiently pleaded. Burnham v. Karl Gelb, P.C., supra, 252 Conn.159-62.
In the present case, King has asserted common-law claims for wrongful termination in violation of public policy, as well as violation of § 31-51q, on the same essential set of facts. In count one, brought pursuant to § 31-51q, King alleges she was fired in retaliation because she "spoke out against activities that were illegal, such as retagging of fire extinguishers without the use of a safety inspector, the improper use of funds . . . and a lack of controls with regard to charges for counseling center staff being assigned to incorrect accounts." (Count 1, ¶ 60.) The gravamen of King's wrongful discharge claims in counts two and three is that she was fired for her "consistent and emphatic opposition" and "complaining" regarding the alleged illegal activities at The Connection, including such public policy concerns as the misappropriation of state funds, inadequate billing controls, and improper removal of fire extinguisher tags. (Count 2, ¶ 60, 75; Count 3, ¶ 76.) King, in alleging that she was wrongfully discharged in violation of public policy, relies upon, inter alia, the following statutes and regulations as expressing that public policy: the state whistleblower statute against retaliatory discharges for speaking against illegal and unethical practices embodied in § 31-5m; § 53a-119(6) which provides against misappropriation of state funds; §§ 4-231 and 4e-30 which provide that state financial assistance be spent consistent with its intended purpose; § 18-101i which provides authority to the department of correction to monitor and evaluate community correction programs; § 31-49 which provides that employees are able to work in work environments free from hazards and unsafe conditions; and numerous fire safety code regulations including § 29-306(a), § 29-308, and § 19a-495-570(j)(a)(A).
King is precluded from bringing common-law counts based upon claims her firing violated any general public policies set forth in the cited statutes because there is available statutory remedy to address the alleged wrongful conduct. See Burnham v. Karl Gelb, P.C., supra, 252 Conn. 161-62. Specifically, King's claim that her dismissal was wrongful for violating public policy against retaliatory discharges set forth in § 31-51m is precluded by § 31-51m(c) which provides the exclusive remedy for employees who are discharged for reporting the "unethical practices, mismanagement or abuse of authority" by an employer; precluding any common-law tort or contract actions. Burnham v. Karl Gelb, P.C., supra, 252 Conn. 162 ("Section 31-51m(c) provides a statutory remedy for employees who are harmed by employer conduct in violation of § 31-51m(b) . . . The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action"). Section 31-51m(c) works to preclude King's claim based upon its public policy despite the fact she herself could not bring a claim under that statute because she did not report the alleged wrongful conduct to anybody outside of her employer. Where a statutory remedy exists for an alleged discharge in violation of public policy, it precludes any common law wrongful discharge action based upon that same public policy, even where the plaintiff did not, or could not, avail herself of the statutory remedy. See Burnham v. Karl Gelb, P.C., 252 Conn. 161-62, 531 A.2d 125 (plaintiff unable to bring wrongful termination claim because of available statutory remedy, even though statute was not viable in her case as she had not complained to a public body).
Further, King's reliance upon the same essential facts in her common-law claims in counts two and three, as alleged in her first count asserting a § 31-51q violation, make evident that she is not otherwise without remedy for the conduct allegedly violative of public policy set forth in the various cited statutes. Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60 ("The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated"). Although King cites to assorted statutes and regulations as setting forth general public policy concerning, for example, the misappropriation of state funds and fire safety, the common thread underlying King's factual allegations is a claimed causal relationship between her outspoken opposition to illegal practices and the adverse employment action taken by The Connection. King's common-law wrongful discharge claims, therefore, are based upon the same conduct and underlying policy considerations as her free speech claim in the first count. Thus, a § 31-51q claim, as brought by King in her first count, provides the remedy for the alleged improper conduct in counts two and three and allows for the vindication of the public policy King alleges was violated by her dismissal, thereby precluding her common-law claims. Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-62; Konspore v. Friends of Animals, United States District Court, Docket No. 3:10cv613, 2010 WL 3023820, *3 (D.Conn. Aug. 2, 2010); see also Kilduff v. Cosential, Inc., 289 F.Sup.2d 12, 19 (D.Conn. 2003) (The common-law wrongful discharge cause of action "is not intended to be a catch-all for those who either procedurally or on the merits fail to establish a claim under existing" statutes).
King's memorandum in opposition to the motion to strike also supports the conclusion that the gravamen of the action is wrongful discharge for exercising plaintiff's constitutional right of free speech. For example, King states that throughout her employment, she " spoke out against the illegal practices and willful misuse of Connecticut taxpayer money" and in response to King's persistence in " voicing her opposition to said practices," the defendants embarked on a campaign of harassment, diminution of duties, and eventual retaliatory termination under false pretenses "in an attempt to silence her," and further that the defendants "reprimanded plaintiff for stating that changing the tags was illegal . . ." (Emphasis added.) (Pl.'s Mem. Opposition to Def.'s Mot. to Strike at 1, 6.)
As King has an available remedy under § 31-51q, even if that claim was insufficiently pleaded, as discussed in section I above, she cannot bring common-laws claims for wrongful discharge. Accordingly, the motion to strike counts two and three is granted.
III
In count four, King has alleged claims of intentional infliction of emotional distress against The Connection and Spencer. King relies on common factual allegations including that she was subjected to various instances of retaliatory action, harassment, diminution in duties, criticism, discipline, interference with the performance of her work and eventual termination. (See ¶¶ 18-21, 27-28, 34, 36-40, 47-50, 52-53.) She further alleges that she was subjected to highly offensive e-mails and public humiliation during work meetings due to her opposition to The Connection's alleged illegal activities. (Count Four, ¶ 60.)
There are four elements which a plaintiff must plead and prove to prevail on a claim of intentional infliction of emotional distress. "It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was 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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). The defendants have moved to strike count four on the ground that the complaint fails to allege sufficient facts to support that the conduct was extreme and outrageous.
Extreme and outrageous conduct is "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 254, n. 5, 510 A.2d 1337 (1986), quoting W. Prosser W. Keeton, Torts (5th ed. 1984) § 12, p. 60. "Whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court." (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 712, 746 A.2d 184 (2000). "Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, supra, 254 Conn 210.
"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).
In Appleton v. Board of Education, supra, 254 Conn. 211-12, the Supreme Court concluded that the facts did not rise to the level of extreme and outrageous conduct to support a claim of intentional infliction of emotional distress. The undisputed facts in Appleton were that the school's principal had made condescending and humiliating remarks about the plaintiff teacher in front of her colleagues including questioning her vision and her ability to read, had called the plaintiff's daughter to complain that the plaintiff was "acting differently" and had telephoned the police to escort the plaintiff out of the school building. In addition, as a result of the school board's request, the plaintiff underwent two psychiatric examinations and, ultimately, she was forced to take a suspension and then resigned. Although it did not condone this rather distressing and hurtful treatment of a longtime colleague, Id., 212, n. 1, the court found that "the defendants' actions in the present case were not so atrocious as to exceed all bounds usually tolerated by decent society" and, as a result, "insufficient to form the basis of an action for intentional infliction of emotional distress." Id., 212.
In Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001), the Appellate Court concluded that the following facts were insufficient to support a claim of intentional infliction of emotional distress: "In 1998 and early 1999, the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position [as a school psychologist] or to become so distraught that they would have a colorable basis for terminating her employment. The defendants carried out their plan by hypercritically examining her small detail of her professional and personal conduct." Id., 552. This included transferring the plaintiff to a school to which she did not want to be assigned, publicly admonishing her for various behavior, and placing her under the intense supervision of a friend of one of the defendants. The court concluded that "[w]hile the conduct alleged here may have be distressful and hurtful to the plaintiff, it was no more extreme and outrageous than the conduct alleged in Appleton." Id., 555.
In Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the court found that the following facts did not constitute extreme and outrageous conduct as a matter of law: "The plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling funds and requested that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotional upset." Id., 331-32.
In the present case, reasonable minds would not differ regarding the conclusion that the conduct King claims was directed against her does not rise to the requisite level of outrageousness to support a claim for intentional infliction of emotional distress. Indeed, the conduct, which in many ways typifies a deteriorating relationship between an employee and her employer, does not even rise to the level of offensiveness of the conduct described in Carnemolla, Dollard and Appleton. Accordingly, the motion to strike count four is granted.
IV CT Page 13827
For the foregoing reasons, the defendants' motion to strike the amended complaint in its entirety is granted.