Opinion
No. CV 09 5013232 S
March 17, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#108.00)
Background
The plaintiff, Heidi Laros, brings the present action against the defendants, International Insights, Inc., North American Testing Organization, Inc. (NATO), Laura Schneck and Jay Zelinka. In count one of the complaint, the plaintiff alleges a claim of negligent infliction of emotional distress against all of the defendants. The defendants move to strike count one on the ground that the plaintiff is attempting to maintain a claim for negligent infliction of emotional distress on the basis of actions taken by her employer in the context of an ongoing employment relationship rather than the process of termination of employment.
Counts two through seven of the complaint are not relevant to the present motion. In these counts the plaintiff alleges innocent misrepresentation, negligent misrepresentation, fraudulent misrepresentation and three claims for piercing the corporate veil.
1. Allegations
The plaintiff alleges the following relevant facts: Schneck and Zelinka were principals of International Insights, a market research company that was a subsidiary of NATO, of which Zelinka was also a principal. In or about February 2008, Schneck contacted the plaintiff, who was living in Connecticut, to inform her that International Insights was interested in hiring an employee with her qualifications to work in an office located in or around Chicago, Illinois. The plaintiff was interested in moving to Chicago, but would do so only if she had employment there. After much negotiation, the plaintiff agreed to work for the defendants. She began to work for them out of an office in Connecticut.
The plaintiff then commenced planning her move to Chicago. The defendants were cooperative and repeatedly expressed that they were happy with her as an employee and intended to employ her at their office there. The plaintiff made the defendants aware that she was worried about the financial risk she and her family were taking by moving to Chicago.
In December 2008, the defendants told the plaintiff that they were having financial problems and would need to make cuts to avoid layoffs. They wanted to speak with the plaintiff about an adjustment in compensation. On or about December 31, 2008, without having contacted the plaintiff to discuss possible changes in her compensation, the defendants sent her what they intended to be her final paycheck. That same day Schneck approved a business trip to be taken by the plaintiff to Los Angeles, California despite knowing that the plaintiff had been given her final paycheck and soon would be terminated. Schneck told the plaintiff that she expected that the company would "come out of the slump" and get "back on track again."
Schneck and Zelinka, knowing that the plaintiff was scheduled to move on or about January 7, 2009, telephoned her on that date to inform her that her employment was terminated, effective immediately. The movers were then present at the plaintiff's home, loading her belongings. The plaintiff alleges she suffered severe emotional distress as a result of her termination.
2. Procedural History
The defendants filed the present motion to strike on April 16, 2010. With the motion, they filed a memorandum of law. On June 8, 2010, the plaintiff filed her objection, to which the defendants replied on January 20, 2011. The court heard the motion at short calendar on January 24, 2011.
Discussion
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006); see Practice Book § 10-39. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). It is equally fundamental, however, that a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Accordingly, "[i]f any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Under Practice Book § 10-41, a party moving to strike "shall distinctly specify the reason or reasons for each . . . claimed insufficiency." Such reasons must be stated in the motion itself and not solely in the memorandum of law. Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001). Moreover, "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
The defendants argue that the plaintiff has failed to state a cause of action because she relies only on acts occurring prior to her termination and not within the termination process. They contend that the plaintiff improperly attempts to base her claim upon assurances of employment allegedly made by the defendants prior to January 7, 2009, the date of her termination. They state that these assurances did not relate to the manner of her discharge from employment and were thus not part of the termination process.
The plaintiff objects to the motion to strike, arguing that she has stated sufficient facts to maintain a cause of action and that the specific conduct alleged constituted "an integral part of the termination process. . ." (Objection, p. 4.) Specifically, she states that she has alleged that "during the week prior to her termination, [the defendants] gave assurances of continued employment despite their actual knowledge that she would be terminated," that "the [d]efendants were aware of the date of the planned move to Chicago, where she was slated to open a new office," and that "the [d]efendants waited until the date of her planned move to inform her of her termination. . ." (Objection, p. 3-4.)
To state a claim for negligent infliction of emotional distress, "the plaintiff 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). In the employment context, the Connecticut Supreme Court has held that a claim for "negligent infliction of emotional distress . . . arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . [T]he mere termination of employment, even where it is wrongful, is therefore 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." (Citation omitted; internal quotations omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).
In other words, the plaintiff must allege more than that the defendants simply terminated her employment. She must allege that the conduct of the defendants in terminating her was so unreasonable that they should have been aware that they were exposing the plaintiff to an unreasonable risk of suffering severe emotional distress. One Superior Court has previously expressed this burden as requiring the plaintiff to allege "that the actual termination was . . . done in an inconsiderate, humiliating, or embarrassing manner." (Internal quotation marks omitted.) Skierkowski v. Creative Graphics Services, Inc., Superior Court, judicial district of New Britain, Docket No. CV 94 0463242 (May 5, 1995, Handy, J.); see also S. Harris, 14 Connecticut Practice Series: Connecticut Employment Law (2005) § 2.2, p. 95 ("Generally, the rule that a termination must be done in a way that is not `inconsiderate, humiliating, or embarrassing' guides the courts").
In Perodeau v. Hartford, supra, 259 Conn. 762-63, the Supreme Court significantly clarified the scope of the tort of negligent infliction of emotional distress in the employment context. The case involved a lawsuit by a police officer claiming, inter alia, negligent infliction of emotional distress against his employer, the Hartford police department, and certain of its employees. See id., 731-33. The officer alleged that certain employees of the police department, including a supervisor, retaliated against him for what they believed was his refusal to be available for "callbacks," i.e., unscheduled shifts, and for filing a discrimination complaint. Id., 732. Specifically, he alleged that he was transferred to another department, verbally berated in front of other officers and falsely accused of smoking in the photography laboratory. Id. Finally, he alleged that the police department and its employees refused to protect him or discipline those who were harassing him. Id. The officer was never terminated from his employment. See id., 731.
The United States District Court for the District of Connecticut, in which the officer brought his suit, certified two questions to the Connecticut Supreme Court, one of which was "whether individual employees may be held liable for negligent infliction of emotional distress for conduct arising in a continuing employment relationship." Id., 734. The Court answered this question in the negative. See id., 744. The Court essentially reasoned that public policy warranted the exclusion of such claims because of society's interest in not hindering a "vigorous" and "productive" workplace; because the very nature of the workplace involved emotional distress, including sometimes severe emotional distress; and because not excluding such claims would invite frivolous lawsuits. See id., 757-59.
The Court also noted that, even other jurisdictions that do not exclude such claims nevertheless recognize the public policy implications, which they address by generally imposing narrower standards for negligent infliction of emotional distress claims. See id., 759-62.
In the present case, the plaintiff is not alleging that the emotional distress was caused by statements that she characterizes as false assurances of employment, she is alleging that the manner of her termination caused her emotional distress because it was done in the context of those statements. In other words, she claims that the defendants terminated her in an unreasonable manner because they executed such termination, knowing she was worried about her financial situation in Chicago, after knowingly and falsely leading her to believe that her employment there was secure. There is nothing in Perodeau that excludes a claim such as this. In Perodeau, the officer was never terminated and his claimed emotional distress directly arose from retaliatory conduct occurring in the workplace. See id., 731-32. Moreover, this claim is unrelated to the policy concerns articulated in Perodeau; allowing it is not going to hinder a "vigorous" and "productive" workplace, for example.
In fact, the Appellate Court has suggested that the means of conducting a termination, while reasonable when examined in a vacuum, may nevertheless be unreasonable when examined in the context of conduct occurring prior to termination, and has deemed such prior conduct part of the termination process. In Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 63, 867 A.2d 876 cert. denied, 273 Conn. 936, 875 A.2d 543 (2005), the plaintiff, Staci Davis, was a certified nursing assistant working in a nursing home. Her job was to assist patients, which entailed physically strenuous activity. Id. One day, when Davis arrived for work, her supervisor changed her assignment from wing two to wing one of the facility. Id., 63-64. Davis, who was pregnant, expressed a legitimate concern about her health and safety, as well as that of her unborn child. Id., 64. She stated her belief that working on wing one would require a greater physical exertion on her part than working on any other wing. Id. Despite another employee's offer to work on wing one and Davis' offer to work on any other wing, the supervisor became angry and told Davis, "in a loud and sarcastic tone," to "`deal with it' or leave and never come back." Id. The health center had a policy allowing employees to leave their shifts early if they become ill. Id., 65. Davis, upset and crying, chose to leave the premises. Id., 64-65.
"The day after [Davis] had left the premises, she was asked to return to meet with the director of nursing. At the conclusion of a twenty minute meeting . . . [she] was told that the [health center] would investigate the situation and get back to her. Later that day, [Davis] made several telephone calls to the facility to beg for her job and once again to explain that she had left [the previous day] because she was afraid for her unborn child. She was informed by telephone [the same day] that her employment was terminated." Id., 65.
The Appellate Court held that "the jury reasonably could have determined that the [health center] engaged in unreasonable conduct during the process of terminating [Davis'] employment. Forcing [Davis] 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.
It is important to note that Davis' actual termination was conducted the day after she left during her shift and was done by telephone. There was nothing that was unreasonable about the actual telephone call. The manner of termination was unreasonable only when considered in context; it was done after "[f]orcing [her] to choose between her own health and well-being and that of her unborn child, and her continued employment . . ." Id.; see also Dichello v. Marlin Firearms Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5002796 (January 22, 2007, Zoarski, J.T.R.) [ 42 Conn. L. Rptr. 706] (" Davis requires a court to consider the totality of the circumstances surrounding an employee's termination, rather than looking exclusively at the actual termination procedures").
Other decisions of the Appellate Court agree with the principle expressed in Davis that context is relevant to whether the termination process is unreasonable. See Tracy v. New Milford Public Schools, 101 Conn.App. 560, 572, 922 A.2d 280 (2007) (finding no claim stated where plaintiff failed to allege anything that "connects . . . with the discharge process"; fact that defendant subjected plaintiff to discipline one year prior to his summary termination was not connected with termination), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007); Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 2-3, 6, 863 A.2d 748 (2005) (holding that plaintiff stated claim where she alleged that supervisor, knowing of disability of plaintiff that interfered with her ability to perform her job competently, falsely accused plaintiff of willful misconduct, shortly after which supervisor terminated plaintiff's employment), cert. granted in part, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
The defendants quote Perez v. Thomas G. Faria Corp., Superior Court, judicial district of New London at Norwich, Docket No. 98 0116017 (January 29, 1999, Parker, J.), for the proposition that "the conduct upon which a valid claim for negligent infliction of emotional distress is based must be close temporally to the actual termination. It must occur during, or immediately before or after the actual delivery of the notification of the termination to the employee. Usually it would take place within minutes or hours of time when the employee is told of the termination." (Defendants' Memorandum, p. 4.) Not only was this case decided prior to Davis, where the supervisor's angry ultimatum was not given immediately before or during the actual termination, it was also decided prior to Perodeau, which did not adopt a rule that was temporally restrictive.
Conclusion
Based on the foregoing analysis, under Perodeau v. Hartford, supra, 259 Conn. 762, the plaintiff's claim does not "[arise] out of conduct occurring within a continuing employment context . . ." Therefore, count one of the complaint is not legally insufficient for that reason, and the motion to strike is denied.