Opinion
No. CV 09 5013578
April 29, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101 FACTS
On December 11, 2009, the defendants, Greenwald Industries, Inc. (Greenwald) and Susan B. Miller, filed this motion to strike and a memorandum in support. The defendants move to strike counts six and seven of the plaintiff's complaint, which allege a breach of the implied covenant of good faith and fair dealing and negligent infliction of emotional distress, respectively. On January 4, 2010, the plaintiff, Scott Powell, filed an objection to the motion and a memorandum in opposition.
The first three counts are directed to the defendant Greenwald. Counts one and two of the complaint allege causes of action for violations of the Connecticut Fair Employment Practices Act (CFEPA), section 46a-60(a)(1), Count three alleges a cause of action for violations of CFEPA, section 46a-60(a)(4). With regard to each of these counts the plaintiff alleges that "All conditions precedent to jurisdiction under the Connecticut Fair Employment Practices Act . . . have occurred or have been satisfied . . ." Count four is directed against the individual defendant, Susan Miller, and alleges that the defendant aided and abetted the CFEPA violations. The Fifth count is directed against the defendant Greenwald for its negligent supervision of its employee, the defendant Miller.
The plaintiff alleges the following facts in his complaint. On September 8, 2003, the plaintiff was hired by Greenwald as a development engineering technician. In 2004, the plaintiff was diagnosed with attention deficit hyperactivity disorder (ADHD) and has been receiving regular medical treatment for the condition since that time. The plaintiff's ADHD is a learning/mental disability or impairment, which affects his learning, reading, concentrating and/or thinking. The ADHD causes symptoms of hyperactivity, distractability, impulsivity, and lack of focus and concentration.
On or about August 8, 2007, the plaintiff was promoted to the position of associate firmware and hardware design engineer. After being promoted, the plaintiff found work to be more complex and he spent more time at his desk doing intense detail-oriented programming and design tasks. The plaintiff found that he had a greater sensitivity to distractions, ambient noise and movements.
On or about July 2, 2008, the plaintiff mentioned to his supervisor that he had a medical condition. Additionally, the plaintiff submitted a note from his physician to Miller, who is employed by Greenwald as its director of human resources. The note detailed that the plaintiff was under the care of his physician for attention deficit disorder, and that it would be in the plaintiff's best interest if he was placed in a work area with limited noise and distractions. During the course of the plaintiff's discussions with Miller, he requested that his work space be moved to the software engineering lab room (lab room) as an accommodation for his disability. At that time, there were two available work stations in the lab room, and the lab room had been the work station for the engineer that the plaintiff replaced when he was promoted. Miller requested that the plaintiff provide a more specific note from his physician.
On or about July 3, 2008, the plaintiff was moved to the sales area, which Miller considered to be a less distracting work space. The plaintiff was the only engineer working in the sales area, which was close to the reception area and adjacent to a hallway that leads to the cafeteria. On or about that date, the plaintiff also asked his supervisor if he could have a modified or flexible lunch period because the medication he was taking for ADHD reduced his appetite. The plaintiff was told by his supervisor that he could only eat lunch between 12:30 and 1:30 p.m.
On July 28, 2008, the plaintiff submitted a note to Miller that explained that he found it difficult to concentrate in the sales area and requested that his work station be relocated to the lab room. On or about August 18, 2008, the plaintiff gave Miller a second note from his physician, which stated that the plaintiff was under the physician's care for attention deficit disorder, and that a work environment with limited noise and distractions would optimize the plaintiff's job performance. On September 16, 2008, Miller informed the plaintiff that there were no work areas available in the lab room, and that the plaintiff's work station in the sales area should be in compliance with the plaintiff's request for a less distracting work space. On September 17, 2008, the plaintiff responded to Miller that he didn't consider the sales area work space a reasonable accommodation, and suggested that if he had to remain in the sales area space he would like higher cubical walls, noise reduction headphones or a rearrangement of the work station. On September 24, 2008, the plaintiff filed a charge of disability discrimination and retaliation with the Equal Employment Opportunities Commission, based on the defendants' denial of the plaintiff's request for a suitable work station and a flexible lunch period.
On October 27, 2008, Miller gave the plaintiff a set of noise reduction headphones. On November 5, 2008, a new engineer was hired and assigned to a work space in the lab room. On November 7, 2008, the plaintiff sent an e-mail to Miller, explaining that, because of his ADHD, he was not able to focus and concentrate with the headphones because they were uncomfortable, cumbersome and ineffective. The plaintiff informed Miller that he was not able to perform his work, which required listening to electronic devices, and that wearing the headphones in the sales area was demeaning.
In the months prior to the plaintiff's termination, the defendants reprimanded the plaintiff for several reasons, including late arrival to work, receiving personal phone calls on his desk phone, sending inflammatory e-mails to co-workers, taking a coffee break and putting on his coat before the end of the work day. The plaintiff documented "the disparate treatment he was receiving due to unequal and lax enforcement of company rules and regulations with his co-workers." Complaint, ¶ 29. On December 11, 2008, the plaintiff was suspended from his job without pay, and on December 15, 2008, the plaintiff's employment was terminated. The defendants stated the reasons for the plaintiff's termination as poor judgment, using work time for improper purposes and hostility toward others.
LAW OF MOTION TO STRIKE
"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.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 130-31, 952 A.2d 56 (2008). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
DISCUSSION I
The defendants move to strike count six, which alleges a breach of the implied covenant of good faith and fair dealing, on the grounds that the plaintiff fails to allege the existence of a contract, and that his discrimination claims are governed by statute. Specifically, the defendants argue that the plaintiff was an at-will employee, and that the existence of a contract is a prerequisite for a claim for breach of the implied covenant of good faith and fair dealing unless the termination is in violation of an important public policy. Additionally, the defendants argue that a plaintiff may not assert a cause of action based on a public policy embodied in a statute if the statute itself provides a remedy. The defendants argue that the plaintiff has alleged violations of policy considerations embodied in the Connecticut Fair Employment Practices Act (CFEPA), and that the statute itself provides a remedy for the plaintiff.
In response, the plaintiff argues that he alleges that the defendants violated the public policy in the CFEPA, which allows an at-will employee to bring a cause of action for breach of the implied covenant of good faith and fair dealing. The plaintiff asserts that the defendants offer no support for the proposition that he is precluded from bringing an action for breach of the implied covenant of good faith and fair dealing because he has a statutory remedy under the CFEPA. Additionally, the plaintiff argues that several judges of the trial court have suggested that the CFEPA does not abrogate the right to bring all common-law claims, particularly those couched in traditional forms like negligence, recklessness and breach of contract.
A
To begin, the defendants argue that the plaintiff's claim for breach of the implied covenant of good faith and fair dealing should be stricken because the plaintiff was an at-will employee. In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-72, 479 A.2d 781 (1984), the Connecticut Supreme Court addressed the applicability of the implied covenant of good faith and fair dealing to employment contracts. The Supreme Court explained that the implied covenant is "a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." Id., 567.
"Although [the Supreme Court endorses] the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason . . . to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety . . . derived from some important violation of public policy." (Internal quotation marks omitted.) Id., 572.
"Our Supreme Court has elaborated on the public policy exception and recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, we look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Internal quotation marks omitted.) Fenner v. Hartford Courant Co., 77 Conn.App. 185, 195, 822 A.2d 982 (2003). "[T]he public policy exception to the at-will employment doctrine is a narrow one, and . . . we do not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation . . . Absent unusual circumstances, we will interfere with a personnel decision only if it implicates an explicit statutory or constitutional provision, or judicially conceived notion of public policy." (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 802-03, 734 A.2d 112 (1999).
In the present case, the plaintiff alleges that his discharge violates "the important public policy considerations prohibiting discrimination and retaliation against an employee's disability and requiring employers to make a reasonable accommodation for an employee's disability inherent in the [CFEPA] . . ." Complaint, ¶ 67. "It is axiomatic that Connecticut adheres to a public policy prohibiting discrimination on the basis of disabilities. Such a policy is embodied in General Statutes § 46a-60(a)(1), which prohibits discrimination `because of [an] individual's . . . present or past history of mental disability . . . or physical disability . . . International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn.App. 726, 735, 841 A.2d 706 (2004). Accordingly, the plaintiff has alleged that his termination was in violation of the explicit public policy embodied in the CFEPA.
The defendants argue, however, that the statute cited by the plaintiff as the basis for this public policy, the CFEPA, provides the exclusive statutory remedy for the plaintiff's claim. At the outset, the court notes that the judges of the Superior Court are split with respect to this issue. On one side, judges have reasoned that "[t]here is nothing in the [CFEPA] statutes indicating that the administrative remedy provided therein preempts common-law actions and recovery of damages for tort claims arising out of the conduct which also gives rise to the complaints under [the CFEPA] . . . Therefore, common law causes of action . . . are not preempted by [CFEPA]." (Citations omitted; internal quotation marks omitted.) Brightly v. Abbott Terrace Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148584 (February 27, 2001, Rogers, J.). See also Delvecchio v. Griggs Browne Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 118659 (April 17, 2000, Hurley J.T.R.) ( 27 Conn. L. Rptr. 89, 91); Cantavero v. Horizon Meat Seafood Distributors, Inc., Superior Court, judicial district of Stamford, Docket No. CV 96 0152918 (April 22, 1997, Nadeau, J.) ( 19 Conn. L. Rptr. 333, 334-35). In contrast, other judges have reasoned that the CFEPA provides the exclusive statutory remedy for common-law claims. See, e.g., Geysen v. Securitas Security Services, USA, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 09 5007429 (November 18, 2009, Bear, J.); Fecteau v. East Coast Lighting Equipment, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002853 (May 19, 2008, Pickard, J.); Cintron v. Ademco Distribution, Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0470757 (February 24, 2003, Harper, J.).
In Burnham v. Karl Gelb, P.C., 252 Conn. 153, 157-58, 745 A.2d 178 (2000), the Connecticut Supreme Court addressed the issue of whether General Statutes § 31-51m provided the exclusive statutory remedy for the plaintiff's claim of wrongful discharge. "The plaintiff's first claim is that the Appellate Court improperly concluded that she was precluded as a matter of law from bringing a common-law cause of action for wrongful discharge based on a violation of public policy embodied in . . . § 31-51m. The Appellate Court concluded that the plaintiff's claim that she was terminated by the defendants for reporting violations of the act could not support a common-law cause of action for wrongful discharge based on the existence of a statutory remedy available to her under 29 U.S.C. § 660(c) . . .
Sec. 31-51m(b) provides "No employer shall discharge . . . any employee because the employee . . . reports . . . a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . .
Sec. 29 U.S.C. 660(c)(2) provides "Any employee who believes that he has been discharged . . . may . . . file a complaint with the Secretary alleging such discrimination . . . If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States District Court against such person. In any such action . . . district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay."
"We conclude that the plaintiff was precluded from bringing a cause of action for wrongful discharge for three reasons. First, we agree with the trial court that the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the public policy embodied in § 31-51m. Second, even if we were to conclude that the plaintiff's termination violated the public policy embodied in § 31-51m, the plaintiff's common-law wrongful discharge claim would be precluded by § 31-51m(c), which provides a statutory remedy for employer conduct prohibited under § 31-51m(b). Third, we agree with the Appellate Court that the plaintiff's common-law cause of action for wrongful discharge is precluded because she had a remedy for her employer's conduct under 29 U.S.C. § 660(c)." (Citation omitted.) Id., 157-58.
In Campbell v. Plymouth, 74 Conn.App. 67, 72-75, 811 A.2d 243 (2002), the Appellate Court applied the same reasoning with respect to § 31-51m to a cause of action for breach of the covenant of good faith and fair dealing. "Count two of the complaint alleged that the defendant breached its covenant of good faith and fair dealing by discharging the plaintiff. The plaintiff argues . . . that the court improperly decided that § 31-51m was the plaintiff's exclusive remedy . . . We disagree.
"The court correctly decided on the basis of the Supreme Court's decision in Burnham v. Karl Gelb, P.C., [ supra, 252 Conn. 157-58], that § 31-51m provides the exclusive remedy for wrongful discharge for `whistleblowing' and that the availability of that statutory remedy precluded the plaintiff from pleading any alternative, common-law cause of action." Id., 72-74.
Section 31-51m(c) provides, in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation . . ." Similarly, General Statutes § 46a-100 provides, in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ."
Considering the similarities between the two sections, and in light of the analysis contained in Burnham v. Karl Gelb, P.C., supra, 252 Conn. 157-58, and Campbell v. Plymouth, supra, 74 Conn.App. 72-75, it follows that § 46a-100 provides the exclusive remedy for the plaintiff's claim of a breach of the implied covenant of good faith and fair dealing in a case, such as this case. The plaintiff relies exclusively on the public policy embodied in the CFEPA as the basis for this claim, as such, the CFEPA provides the exclusive relief. Accordingly, the defendants' motion to strike count six is granted.
II
The defendants move to strike count seven, which alleges negligent infliction of emotional distress, on the ground that the plaintiff does not allege unreasonable conduct in the termination process. Specifically, the defendants argue that the plaintiff does not allege that his termination was carried out in an unreasonable manner, and that any alleged unreasonable conduct took place prior to the plaintiff's termination. In response, the plaintiff argues that the allegations sufficiently allege that the defendants' conduct at the plaintiff's termination exacerbated the plaintiff's anxiety and emotional distress. The plaintiff also argues that he sufficiently alleges that his termination was unreasonable because he alleges that he was terminated based on his documentation of company policies that he, alone, was required to follow.
"In general, to prevail on . . . a claim [for negligent infliction of emotional distress], 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 . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . . Such a claim in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process rather than in an ongoing employment relationship . . . Finally, to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress." (Citations omitted; internal quotation marks omitted.) 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) (appeal withdrawn May 25, 2005).
In Perodeau v. Hartford, 259 Conn. 729, 762, 792 A.2d 752 (2002), the Supreme Court explained that within the employment context, the tort of negligent infliction of emotional distress is limited to unreasonable conduct during the termination process because "the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high." `The dispositive issue in each case [is] whether the defendant's conduct during the termination process was sufficiently wrongful 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." (Emphasis omitted; internal quotation marks omitted.) Id., 751.
In light of these cases, the court must examine allegations as to the process of termination rather than the reasons for termination. The process of evaluating an employee's performance or the process of disciplining an employee may lead the employer to a decision to terminate an employee. In anticipation of the employee's disagreement with such a decision, the employer sometimes engages in a process of documentation. Sometimes the employee also begins to document treatment that the employee perceives as unequal treatment, discriminatory treatment or pretextual conduct. Some termination processes are swift, such as when there is a question of theft. Some termination processes may arise from a pattern of employee conduct that the employer finds unacceptable.
For the purposes of this motion to strike the court will examine the allegations of the seventh count. Construing these allegations in the light most favorable to the plaintiff, the plaintiff alleges that the unreasonable conduct he complains of occurred "during the relatively brief period from his disclosure of his disability to his termination . . ." (Complaint, ¶ 73.) The plaintiff describes this conduct as "abusive and hostile conduct that was unreasonable, inconsiderate and humiliating . . ." (Complaint, ¶ 69.) Specifically, he alleges that the defendants "compelled him to work in a professionally demeaning manner with headphones . . . and isolated from other engineers." (Complaint, ¶ 70.) Further, the plaintiff alleges a disparate enforcement of company rules. (Complaint, ¶¶ 71, 72.) The plaintiff thereafter alleges that this conduct involved an unreasonable risk of causing the plaintiff emotional distress. (Complaint, ¶ 73.)
While a trier of fact may disagree as to when the termination process began, the nature or reasonableness of the defendants' conduct or the harm suffered, for the purposes of a motion to strike the plaintiff has alleged a legally sufficient cause of action.
CONCLUSION
Based on the foregoing, the defendants' motion to strike is granted as to the sixth count and denied as to the seventh count.
The Court