Opinion
No. CV08 5003425S
November 28, 2008
MEMORANDUM OF DECISION
The matter before the court is the defendant's motion (#101) to strike counts three, four, five and six of the plaintiff's complaint. For reasons set forth below, the
only two counts reserved for the court's decision are counts five and six of the complaint sounding in intentional and negligent infliction of emotional distress. These counts relate to the plaintiff's termination of employment with the defendant. The plaintiff has alleged that he was terminated for statutorily protected activities pursuant to §§ 31-51q(b) and 31-51q of the General Statutes, and that the defendant has also interfered with the plaintiff's efforts to secure subsequent employment elsewhere.
FACTS
On August 27, 2008, the plaintiff, Ian McDevitt, filed a six-count complaint against the defendant, Windham Hospital, sounding in statutory and common-law claims for wrongful termination and infliction of emotional distress. On October 29, 2008, the defendant filed a motion to strike counts three, four, five and six. Count three and count four allege common-law causes of action which the defendant contends are redundant with counts one and two; the plaintiff, in his responsive pleading, agreed to strike counts three and four. The remaining counts, counts five and six, respectively allege intentional and negligent infliction of emotional distress. The defendant submitted a memorandum of law in support of the motion to strike, and the plaintiff submitted a memorandum in opposition to the defendant's motion.
Counts one and two allege causes of action under General Statutes §§ 31-51m(b) and 31-51q that the defendant concedes are sufficient to state a claim for relief.
The plaintiff alleges the following facts: While he was employed as a paramedic for the defendant, he made complaints to various state and federal regulatory bodies regarding certain practices of the defendant that "resulted in unnecessary risks to patient safety and health and the improper and/or wasteful expenditures of charitable contributions." As a result, some or all of the regulatory officials took action against the defendant. The defendant suspended the plaintiff's employment on April 4, 2008 and subsequently terminated him on May 28, 2008. The plaintiff also alleges that following the termination, the defendant has "interfered with the plaintiff's efforts to obtain employment elsewhere."
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). "The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technology Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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).
I INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant argues that the plaintiff's claim of intentional infliction of emotional distress fails because the plaintiff does not allege any extreme and outrageous conduct by the defendant. The plaintiff argues that the conduct he alleges — retaliatory suspension and termination, followed by interference with the plaintiff's efforts to become re-employed-could be found by a jury to be extreme and outrageous.
"For the plaintiff to prevail on a claim of intentional infliction of emotional distress, four elements must be established. 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 . . . Liability for intentional infliction of emotional distress requires 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." (Citations omitted; internal quotation marks omitted.) Dollard v. Board of Education, 63 Conn.App. 550, 553-54, 777 A.2d 714 (2001).
"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 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 . . ." (Citation omitted; internal quotation marks omitted.) Carnemolla v. Walsh, 75 Conn.App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003).
The plaintiff cites Benton v. Simpson, 78 Conn.App. 746, 829 A.2d 68 (2003) as the only appellate authority supporting his argument. In that case, the plaintiffs, all women, testified before the court in order to seek a prejudgment remedy against their male supervisor. The conduct described by the plaintiffs was far more extreme than anything alleged by the plaintiff in the present case. Not only did the defendant in Benton repeatedly tell the plaintiffs that they "made him sick" and were a "cancer," the trial court described his conduct towards his subordinates as "clearly rude, unpleasant and, on one or two occasions, crude." Benton v. Simpson, supra, 78 Conn.App. 754. The allegations of the plaintiff in this case are not at all similar to the allegations in Benton.
The plaintiff's allegations are similar to those in Tracy v. New Milford Public Schools, 101 Conn.App. 560, 562, 922 A.2d 280 (2007). The plaintiff in Tracy alleged that his employers terminated him in violation of General Statutes § 46a-60(a)(4), harassed him, denied him a position, initiated discipline without proper investigation, defamed him and intimidated him. Id. The trial court granted the defendant's motion to strike and the Appellate Court upheld the decision. Id., 567. Applying the "Outrageous!" standard to the allegations, the court decided that the plaintiff's allegations were, as a matter of law, inadequate to state a claim for intentional infliction of emotional distress. Id., 570. See also Appleton v. Board of Education, 254 Conn. 205, 210-12, 757 A.2d 1059 (2000) (plaintiff's allegations did not rise to the level of intentional infliction of emotional distress, where she alleged that defendant made condescending comments about her in front of colleagues, required that she submit to two psychiatric examinations, had police escort her off the premises, and told her daughter she was acting "differently").
General Statutes § 46a-60(a) provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . ."
II NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendant argues that the plaintiff has failed to allege abusive conduct in the termination process and has therefore failed to state a claim for negligent infliction of emotional distress. The plaintiff argues that, to the contrary, his claim that the defendant has interfered with his efforts to obtain new employment makes his claim actionable under a negligent infliction of emotional distress theory.
In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), the court decided that recovery on claims for negligent infliction of emotional distress do not require "proof of either an ensuing physical injury or a risk of harm from physical impact." Instead, the plaintiff must show that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Id. The court in Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002), established the bright-line rule barring claims for the negligent infliction of emotional distress arising from the ongoing employment relationship, "as distinguished from conduct occurring in the termination of employment." The court emphasized that the Montinieri, supra, 175 Conn. 345, standard does not provide enough of a safeguard against spurious litigation arising from the normal stressors of the workplace; furthermore, allowing claims for unintentional emotional distress arising from ongoing employment would have a "chilling effect" on workplace competition, contributing to "a less vigorous and less productive workplace." Id., 758.
In Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997), while the plaintiff had made out a prima facie case of wrongful termination, the court nevertheless concluded that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." "An employee at will . . . has no contract, may be terminated at will and, therefore, operates under the assumption that he or she may be terminated at any time without cause. Thus, only if the manner of termination of an at will employee is unreasonable, outrageous or egregious will the tort of negligent infliction of emotional distress lie in such context." (Emphasis added.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 554, 938 A.2d 1269 (2008).
The plaintiff's allegations in count six are inadequate to state a claim for the negligent infliction of emotional distress. The plaintiff simply does not allege any "unreasonable, outrageous or egregious" conduct in the termination process. The plaintiff does not allege any conduct that the defendant should know would have an unreasonable risk of causing emotional distress that might lead to physical illness or bodily harm. Even if the plaintiff's allegation that the defendant interfered with his efforts to obtain employment subsequent to his termination supports some other cause of action, it is not enough to turn a claim of wrongful discharge into something that "transgress[es] the bounds of socially tolerable behavior." Parsons v. United Technologies Corp., supra, 243 Conn. 88.
CONCLUSION
In counts five and six, the plaintiff has failed to state claims upon which relief can be granted. The defendant's motion to strike counts five and six is, therefore, granted.