Opinion
No. CV 07-5012829 S
November 15, 2007
Count three and the claim for attorneys fees in the prayer for relief are stricken absent objection.
At oral argument all counsel agreed that the defendant Outsource's amended motion to strike dated November 5, 2007, would also be argued.
Count One
When read in the light most favorable to sustaining it, for the foregoing reasons, the court finds that count one on its face sufficiently alleges extreme and outrageous conduct.
"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." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). "Liability [for intentional infliction of emotional distress] 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!" (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
Courts have recognized that emotional distress and anxiety are an unavoidable aspect of daily life, especially in the workplace context: "[I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002). "Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflict and the like." Id. Whether conduct is extreme or outrageous is highly fact dependent and unique to each case. A review of the relevant appellate authority, however, reveals that a defendant's conduct must be quite egregious for there to be liability for intentional infliction of emotional distress. See, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003) (no extreme and outrageous conduct by defendant insurance company, which had refused to pay out on plaintiffs' homeowners policy after a fire destroyed their home when defendant determined, upon investigation, that the fire was caused by arson, even though plaintiff produced experts testifying that defendant's investigation was cursory and inadequate, and all evidence pointed to accident as opposed to arson, in addition to racially discriminatory comments by insurance investigators); Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), (no extreme and outrageous conduct where plaintiff teacher's competency as teacher was questioned, she was put on leave of absence and required to undergo various psychological examinations before she was forced into an agreement whereby she would resign, and that her supervisors made condescending remarks to her in front of her colleagues, called her daughter at home to express concerns about the plaintiff, and had the police escort her out of the building to her car); Barber v. Mulrooney, 61 Conn.App. 108, 762 A.2d 520 (2000) (plaintiff ended a voluntary sexual relationship with her supervisor, who continued to pursue her with sexual propositions and unwanted contact; court found for plaintiff on sexual harassment count though not intentional infliction count because conduct not extreme and outrageous). The issue on appeal was sufficiency of the evidence after a court trial not the facial validity of the complaint.
However, in intentional infliction of emotional distress claims, "the extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991), citing 1 Restatement (Second) Torts § 46, comment (e). "The extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." Mellaly v. Eastman Kodak Co., supra, 42 Conn.Sup. 20, citing 1 Restatement (Second) of Torts § 46 comment (f).
Such "position or relation" may be that of an employer or supervisor at work; see, e.g., 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) (conduct by supervisor that was verbally abusive held to be extreme and outrageous); Anastasio v. Knights of Columbus, Superior Court, judicial district of New Haven, Docket No. CV 97 0396806 (May 21, 1998, Silbert, J.) (supervisor stated "that a superior should be the `enemy' of his subordinates," verbally abused plaintiff employee and took adverse actions against him without reason); Cucuel v. Fayed, Superior Court, judicial district of Fairfield, Docket No. CV 94 315420 (February 28, 1997, Levin, J.) (plaintiff's supervisors had enticed him away from his position as police officer and then terminated his employment); Watt v. Ford Consumer Finance Co., Superior Court, judicial district of Fairfield, Docket CV 95 323572.
The plaintiff has alleged that Corte, as her employer and supervisor, subjected her to continual sexual harassment and physical contact over her strong objection including ordering her into his office where he put his hand on her leg and kissed her again after the door had been closed. (Count one, Paragraphs 21 and 22.) They were nowhere near equals in the employment pecking order. Moreover, the plaintiff alleges she was a twenty-year-old single mother at the outset of her employment.
While perhaps not overtly egregious, individually, these facts, viewed collectively and in a light favorable to the plaintiff, coupled with Corte's position of authority, could lead reasonable minds to differ as to whether Corte's conduct was extreme and outrageous.
At oral argument the defendants offered Majewski v. Bridgeport Board of Education, et al., 2005 Conn.Super LEXIS 209 (January 20, 2005) in support of their argument on the first count. Having reviewed it this court is not persuaded. As already noted each case stands on its own unique facts. The relationship of the parties here is much more unequal. This plaintiff is more vulnerable on paper at least. The physical contact here was much more persistent and egregious. Much of the conduct complained of in Majewski involved adverse employment decisions and not unwanted physical and personal contact as alleged here. cf. Hearn v. Yale New Haven Hospital, et al., (Judicial District of New Haven, Docket No. CV 02 0466339S, April 2, 2007, Licari, J.).
Therefore, the defendants' motions are denied as to count one.
Count Two
No fair reading of count two can save it from the necessary temporal requirement that the termination process occur during a specific narrow period of time. On the face of this count the plaintiff's claim of constructive discharge is without merit. This court is persuaded by the reasoning of Judge Beach in Michaud v. Farmington Community Insurance Agency, 2002 Conn.Super 3254 (September 25, 2002) [ 33 Conn. L. Rptr. 206]:
The more interesting issue is the applicable time frame. The plaintiff suggests that because the claim is constructive discharge, the termination process in effect extends through much of the course of the employment relationship, so that it is impossible to draw a bright line between conduct occurring in the course of the employment relationship and conduct occurring in the termination of employment. There would, therefore, be a question of fact as to whether impermissible conduct occurred within the continuing employment context or in the termination of employment. I do not find that Perodeau and its predecessors should be read so broadly or permissively.
First, the language of Perodeau itself is restrictive. The holding is phrased {*10} narrowly: the tort is maintainable only for "conduct occurring in the termination of employment." Language such as conduct in the "discharge process" is not used; such language perhaps would contemplate a more expansive time frame. Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means the ending, not the conduct which causes the ending. When one analyzes the policy reasons underlying Perodeau, one sees that conduct taking place within the employment relationship, even if wrongful and providing the basis for the claim of unlawful discharge, cannot provide the factual predicate for the emotional distress claim. If the actual termination is conducted wrongfully, then the action may lie. If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed.
Id., p. 3
Accordingly, the defendants' motions to strike count two are granted.