Opinion
No. CV07-5014504 S
December 4, 2008
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (#107)
The plaintiff, Daniel Russo, commenced this wrongful termination action on October 4, 2007, by serving a writ, summons and complaint upon the regulatory counsel of the legal department of the defendant Knights of Columbus. On January 17, 2008, the defendant filed a motion to strike (#102) counts one and three of the plaintiff's complaint. The plaintiff subsequently filed an amended complaint (#103) on February 27, 2008. In accordance with the defendant's request to revise (#105) of April 23, 2008, the plaintiff filed a second amended complaint (#106) on May 14, 2008. The defendant then filed a second motion to strike (#107) and memorandum of law in support (#107.5) on June 13, 2008. The plaintiff filed an objection to the motion to the strike (#109) on August 8, and oral arguments were heard on October 27, 2008.
For purposes of addressing this motion, the following allegations drawn from the plaintiff's second amended complaint are treated as admitted facts. The plaintiff was employed by the defendant as its tax counsel from January 30, 1989, to April 15, 2005. Throughout 2004 and into 2005, the plaintiff advised his supervisor Paul Devin, the defendant's general counsel or "Supreme Advocate," Ken Ryan, the defendant's "Supreme Treasurer," and David Brawley, the defendant's fund-raising consultant, that the defendant was engaging in fund-raising activities contrary to the ethics guidelines established by national fund-raising associations, and that such activities could jeopardize the defendant's federal tax-exempt status. In particular, the plaintiff repeatedly informed Devin, Ryan and Brawley that the defendant's use of "general acknowledgment language" in fund-raising response letters — language that could allow the defendant to redirect donations that donors intended to be used for specific funds or projects — was contrary to legal principles embodied in the Connecticut Attorney General's "Donor's Bill of Rights."
In response to the catastrophic tsunami in the Indian Ocean on December 26, 2004, the defendant appealed for donations. The plaintiff advised Devin and Ryan that donations collected in January of 2005 should be separated into a specific tsunami relief fund in order to comply with tax laws and regulations allowing donors to take 2004 tax deductions for charitable contributions earmarked for tsunami relief. When the plaintiff discovered that his advice had not been acted upon, and that some January 2005 donations had been placed in a general fund, he sent a memorandum to Devin, Ryan, and Brawley, as well as the defendant's chief financial officer and its internal auditor, explaining the need for corrective action. In that memorandum, the plaintiff explained that, unless notified by the defendant, some donors risked improperly taking a tax credit in violation of IRS regulations and the new tax laws because their donations were not being applied to tsunami relief. The plaintiff was later informed that no corrective action had been taken, and that some donations that donors may have intended for tsunami relief were treated as non-tsunami donations. The plaintiff was subsequently terminated in a performance review meeting on April 15, 2005. Additional facts will be set forth as necessary.
"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). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). "[I]n 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." Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendant moves to strike counts one, three and four of the plaintiff's second amended complaint. Count one is a claim for wrongful discharge, count three is a claim for negligent infliction of emotional distress, and count four is a claim for tortious interference with business relations. The court will address each of the counts separately.
Count One: Wrongful Discharge
Distilled to its essence, the plaintiff claims in count one that he was wrongfully discharged in retaliation for raising concerns about the defendant's method of find-raising, and in particular the defendant's fund-raising related to tsunami relief. The plaintiff mingles several alleged violations of laws, regulations, and legal principles that he argues properly form the basis of his wrongful discharge claim. These include the principles enunciated in the "Donor's Bill of Rights," Title 18 of the United States Code concerning prohibitions against using instrumentalities of interstate commerce to obtain money by false or fraudulent representations, 26 U.S.C. § 7212 which prohibits obstructing, impeding or endeavoring to obstruct or impede the due administration of the Internal Revenue Code, Public Law 109-1 (January 7, 2005), which describes how taxpayers may treat tsunami relief charitable contributions, and IR-2005-6, an IRS "News Release" alerting taxpayers to the effect of Public Law 109-1. Although the plaintiff could have alleged the basis for his wrongful termination claim more precisely, the "lack of linguistic specificity" alone does not warrant striking the count. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220, 520 A.2d 217 (1987).
The defendant argues that none of these laws or principles can be the basis of a wrongful discharge claim because the plaintiff was not discharged in violation of an explicit statutory or constitutional provision, nor any judicially conceived notion of public policy. Specifically, the defendant argues in its motion to strike that (1) the "Donor's Bill of Rights" is not a source of public policy; (2) 26 U.S.C. § 7212 is inapplicable to this case and that, even if it were applicable, the plaintiff has not properly alleged a violation of it that would constitute a public policy violation; (3) the IR-2005-6 publication is not in fact law but merely an announcement, and that it and the corresponding Public Law 109-1 only describe how a taxpayer must act, not how a contribution recipient must act; (4) the plaintiff's "reasonable beliefs" as to how these laws and regulations should be implemented cannot constitute the basis of a public policy claim; (5) the relevant sections of Title 18, specifically §§ 1341 and 1343, are not in any way implicated by the defendant's termination of the plaintiff's employment; and (6) to permit the plaintiff to pursue his wrongful discharge claims outside of the Connecticut whistleblower statute, Conn. Gen. Stat. § 31-51m, would itself offend public policy.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Beginning in the late 1950s, however, courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge. Certain employer practices provoked public disfavor, and unlimited employer discretion to fire employees eventually yielded to a more limited rule . . .
"Following that trend, [the Supreme Court], in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy . . . In doing so, we recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . In Morris v. Hartford Courant Co., [ 200 Conn. 676, 680, 513 A.2d 66 (1986)], we 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, [w]e 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." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-99, 802 A.2d 731 (2002).
Subsequent cases after Sheets recognized the sufficiency of claims under the public policy exception. The case of Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994), "present[ed] claims that genuinely involve[d] the mandates of public policy derived directly from state statutes" prohibiting sheriffs from engaging in fee-splitting. Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 699. The Supreme Court concluded in Faulkner v. United Technologies Corp., 240 Conn. 576, 584-86, 693 A.2d 293 (1997), that "a wrongful discharge claim could be predicated solely on a violation of federal, as opposed to state, law." Thibodeau v. Design Group One Architects, LLC, supra, 260 Cont. 699-700. In Parsons v. United Technologies Corp., 243 Conn. 66, 79-80, 700 A.2d 655 (1997), the court approved a claim for wrongful discharge where "the plaintiff's claim of a public policy violation found support in several state statutes explicitly requiring employers to maintain a reasonably safe workplace for its employees." Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 700.
However, the Supreme Court has also "repeatedly . . . underscored our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . [ Parsons v. United Technologies Corp., supra, 243 Conn. 79]; accord Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000); see also, e.g., Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. at 477 (`courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation'). Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy. See, e.g., Burnham v. Karl Gelb, P.C., supra, 61 (plaintiff failed to state claim because allegations of retaliatory discharge did not satisfy requirements of statute upon which claim was based); Daley v. Aetna Life Casualty Co., 249 Conn. [766, 804, 734 A.2d 112 (1999)] (plaintiff could not prevail on claim that public policy required employers to provide flexible work schedules for working parents because no statute mandates such accommodation); Carbone v. Atlantic Richfield Co., 204 Conn. 460, 468-70, 528 A.2d 1137 (1987) (oil company employee, who had been terminated for failing to obtain accurate information regarding competitors' pricing practices, did not allege facts sufficient to support claim that termination violated public policy); Morris v. Hartford Courant Co., supra, 200 Conn. at 680 (`[a] false but negligently made accusation of criminal conduct as a basis for dismissal is not a "demonstrably improper reason for dismissal"' when employer not statutorily obligated to investigate veracity of allegation). In each such instance, we found no statutorily based expression of public policy sufficient to warrant an exception to the at-will employment doctrine." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 701.
In Thibodeau, the plaintiff alleged that she was wrongfully terminated from her position in a two-employee business for becoming pregnant. The court, in denying her claim, concluded that "[a]lthough . . . there exists a general public policy in this state to eliminate all forms of invidious discrimination, including sex discrimination," an explicit statutory exemption "for employers with fewer than three employees is, itself, an expression of public policy that cannot be separated from the policy reflected in the act's ban on discriminatory employment practices. To conclude otherwise would require us to turn a blind eye to the legislative policy decision reflected in the statutory exemption for small employers and to the reasons underlying that decision." Id., 706.
In light of these parameters established by the Supreme Court, the core question for this court is whether the plaintiff has properly "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." Reviewing the amalgam of statutes that the plaintiff invokes in his complaint, the court is unable to identify an explicit statutory or constitutional provision that the plaintiff's discharge violated.
18 U.S.C. §§ 1341 and 1343 criminalize the fraudulent use of interstate mail or wire communications to obtain money or property under false pretenses. The plaintiff alleges that the defendant's solicitation of tsunami relief donations violated the public policy codified in these two statutes. (Second Amended Complaint, ¶¶ 19-20.) The plaintiff has not, however, identified how his termination violated any explicit provision of these statutes, and therefore the statutes cannot be the basis of his wrongful termination claim. Similarly, the plaintiff's invocation of 26 U.S.C. § 7212, a law that criminalizes attempts to corruptly or forcibly interfere with the administration of Internal Revenue laws, cannot provide the basis for his wrongful termination claim because he has not alleged any explicit provisions that the defendant violated by terminating his employment. Finally, Public Law 109-1, which describes how taxpayers may opt to treat tsunami relief donations made in 2005 as a contribution made on December 31, 2004, clearly lacks any explicit provisions directed towards donation recipients, such as the defendant, on which the plaintiff may base his wrongful termination claim. See 109 P.L. 1, 119 Stat. 3 (January 7, 2005).
The plaintiff also claims that his termination violated public policy as reflected in each of these laws, as well as the "Donor's Bill of Rights" and the IR-2005-6 publication. (Second Amended Complaint, ¶¶ 30-34.) Reviewing each alleged source of public policy on its own and in concert, the court is unpersuaded that the plaintiff has alleged that his dismissal contravened an important or clearly articulated statutorily-based expression, or judicially-conceived notion, of public policy.
First and foremost, the court notes that the plaintiff alleges that he "reasonably believed" that the defendant's allocation of tsunami donations to a general fund would violate federal and state law and the "Donor's Bill of Rights." (Second Amended Complaint, ¶ 30.) The plaintiff's reasonable beliefs are immaterial because case law provides "no support for the proposition that the employee's subjective beliefs can be the basis for the public policy exception in an action for the wrongful termination of an at-will employee." Fenner v. Hartford Courant Co., 77 Conn.App. 185, 196, 822 A.2d 982 (2003). The plaintiff bears the burden of pleading and "demonstrat[ing] objectively that the defendant's conduct violated public policy." (Emphasis in original.) Id., 197. "To hold otherwise would defeat the general immunity allowed an employer to discharge an at-will employee." Id.
The plaintiff points to the "Donor's Bill of Rights" as a source of public policy, which he characterizes as the Connecticut attorney general's embodiment of "generally accepted guidelines of the American Association of Fundraising Counsel." (Second Amended Complaint, ¶ 30); see State of Connecticut Website, Attorney General's Office, Charities Information, Donor's Bill of Rights, available at http://www.ct.gov/ag/cwp/view.asp?A=2074 Q=294610 (December 2, 2008). Although the Donor's Bill of Rights may contain desirable enunciations of good policy and ethics, these guidelines are merely aspirational statements created by a private association and endorsed by a state official lacking the power to make law or establish policy; the guidelines are not reflective of judicially conceived notions of public policy nor are they equal to public policies established through the democratic legislative process. See, e.g., Willimantic Community Memorial Hospital v. Willimantic, 166 Conn. 113, 118, 348 A.2d 651 (1974) ("[t]he opinions of the attorney general have in no sense the effect of judicial utterances").
The plaintiff describes IR-2005-6 as an "IRS regulation" that "direct[s] tax payers to clearly indicate on their contribution check that the donation was for tsunami victims if they wished to take such a tax deduction in 2004." (Second Amended Complaint, ¶ 16.) IR-2005-6 is not in fact an IRS regulation, but merely a "News Release" issued by the IRS on January 10, 2005, publicizing the passage of Public Law 109-1. Internal Revenue Service website, News Releases, available at http://www.irs.gov/newsroom/article/0,, id.=133843,00.html (December 2, 2008). Furthermore, it advises donors that when they "make contributions to assist the victims of the tsunami, they should notate their records to that effect . . . Donors may want to notate the memo field of checks they send that it is a contribution to help tsunami victims." (Emphasis added.) Id. IR-2005-6 fails to state any public policy, which, if violated, could support a wrongful termination claim, lacks any legal effect, and does nothing more than suggest ways that taxpayers might act to comply with Public Law 109-1. It in no way implicates an "important and clearly articulated public policy." Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 701.
Public Law 109-1, while having the benefit of actually being a law, similarly lacks an important and clearly articulated public policy on which a plaintiff might base a wrongful termination claim. It is written as a directive to taxpayers, and embodies no public policy other than that captured in its legislative title: "An Act to accelerate the income tax benefits for charitable cash contributions for the relief of victims of the Indian Ocean tsunami." 109 P.L. 1, 119 Stat. 3 (January 7, 2005). The defendant cannot have violated the law because the law is directed to taxpayers, not donation recipients, therefore the plaintiff's termination cannot have been derived from a violation of the limited public policy provided in Public Law 109-1.
The full text of the law states:
(a) In General. — For purposes of section 170 of the Internal Revenue Code of 1986, a taxpayer may treat any contribution described in subsection (b) made in January 2005 as if such contribution was made on December 31, 2004, and not in January 2005.
(b) Contribution Described. — A contribution is described in this subsection if such contribution is a cash contribution made for the relief of victims in areas affected by the December 26, 2004, Indian Ocean tsunami for which a charitable contribution deduction is allowable under section 170 of the Internal Revenue Code of 1986.
As noted earlier, the plaintiff quotes selectively from 26 U.S.C. § 7212 but fails to identify how the defendant specifically violated the law. (Second Amended Complaint, ¶ 33.) Furthermore, the plaintiff has not alleged how his termination would implicate the public policy embodied in the section, which might broadly be described as a policy against interference with the administration of the internal revenue laws. The plaintiff has not identified how the defendant interfered with any such administration and therefore cannot rely on the statute as a source of public policy on which to base his wrongful termination claim.
26 U.S.C. § 7212 states in relevant part: "(a) Corupt or forcible interference. Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term `threats of force,' as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family."
Finally, the plaintiff alleges that his termination violated the public policy against fraudulently soliciting money, as codified in 18 U.S.C. §§ 1341 and 1343. Sections 1341 and 1343 are broadly worded statutes that reflect a public policy against using interstate methods of communications to "obtain money or property by means of false or fraudulent pretenses." There is undoubtedly a judicially recognized public policy against fraud. See Board of Education v. Local 566, Council 4, AFSCME, 43 Conn.App. 499, 505-06, 683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997); Schmidt v. Yardney Electric Corp., 4 Conn.App. 69, 74-75, 492 A.2d 512 (1985). However, the connection between the public policy against fraud and the plaintiff's termination is too attenuated to support his claim of wrongful discharge and overcome the "general rule allowing unfettered termination of an at-will employment relationship." Parsons v. United Technologies Corp., supra, 243 Conn. 79.
The plaintiff was not forced to "risk criminal sanction or to jeopardize his continued employment" when he advised the defendant of his opinions regarding tsunami relief donations and allocation. Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 480; see Faulkner v. United Technologies Corp., supra, 240 Conn. 583. To the contrary, he was simply carrying out the normal duties of an attorney, identifying and advising his client on legal issues. The plaintiff emphasizes that he "reasonably believed" that the defendant's division of donations "probably intended for tsunami relief" between the tsunami fund and the general fund would violate the law; (Second Amended Complaint, ¶¶ 28-30); however, his supervisor, the general counsel, clearly disagreed with the plaintiff's beliefs, and furthermore, as noted above, the plaintiff's "subjective beliefs [cannot] be the basis for the public policy exception in an action for the wrongful termination of an at-will employee." Fenner v. Hartford Courant Co., supra, 77 Conn.App. 196.
"[W]hile certain actions may abrogate public policy, not every act in derogation of a general statute, nor all conduct contrary to the common law, rises to the level of a violation of an important public policy." TyMetrix, Inc. v. Szymonik, Superior Court, judicial district of Hartford, Docket No. CV 064019412 (January 19, 2007, Tanzer, J.) (42 Conn. L. Rptr. 743), citing Rafael v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 287705 (August 26, 1993, Ballen, J.) (9 Conn. L. Rptr. 610). The defendant's decisions to disregard the plaintiff's legal opinions and later terminate his employment under the facts alleged in the complaint do not rise to the level of a violation of an important public policy. Because the plaintiff has failed to allege a sufficiently important violation of public policy to support his claim of wrongful discharge, the court will not address the defendant's argument that to permit the plaintiff to pursue his wrongful discharge claims outside of the Connecticut whistleblower statute, Conn. Gen. Stat. § 31-51m, would itself offend public policy. The court grants the defendant's motion to strike count one of the second amended complaint.
It may, however, be noted that at least one court that has reviewed the legislative history of § 31-51m found "no expression of intent by the legislature to create contravening public policy that employees of private companies are not protected from wrongful discharge if they report fraud internally" and that Conn. Gen Stat. § 33-1336 "protects employees of public corporations from retaliatory discharge if they make an internal reporting of fraud," thus suggesting a general public policy in favor of protecting employees who report fraud internally. TyMetrix, Inc. v. Szymonik, supra, 42 Conn. L. Rptr. 743-44; see also Chenarides v. Best Foods Baking, Superior Court, judicial district of Stamford, Docket No. CV 03 197877 (March 30, 2005, Hiller, J.) (39 Conn. L. Rptr. 90)
Count Three: Negligent Infliction of Emotional Distress
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 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 . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).
"[I]n cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. 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 in original; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002).
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . The 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 quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
Viewing the plaintiff's allegations in the light most favorable to sustaining his claim, the plaintiff has failed to state a legally sufficient claim for negligent infliction of emotional distress. The plaintiff has alleged that the defendant, acting through the plaintiff's former supervisor, directed the defendant's employees to sever contact with the plaintiff, and that the plaintiff became aware of this directive approximately seven months after the termination. (Second Amended Complaint, ¶¶ 56-58.) These allegations cannot be considered in the plaintiff's claim for negligent infliction of emotional distress because they occurred outside the termination process. Parsons v. United Technologies Corp., supra, 243 Conn. 88-89.
The plaintiff, a tax attorney, also alleges that the defendant terminated his employment on April 15, "tax day," in order to "cause maximum injury to the plaintiff's reputation as a tax professional," and that the "defendant's termination of the plaintiff and his removal from the defendant's property was done in a public manner in close physical proximity to people with whom the plaintiff has long-standing professional and personal relationships." (Second Amended Complaint, ¶¶ 54-55.) In partial contradiction of the last allegation regarding the public nature of his termination, the plaintiff also states that his employment was terminated in a performance review meeting with his supervisor. (Second Amended Complaint, ¶ 29.)
With regards to the plaintiff's allegation that his termination was done "in a public manner," in Connecticut "it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort." Parsons v. United Technologies Corp., supra, 243 Conn. 89 (affirming trial court's granting of a motion to strike a claim for negligent infliction of emotional distress). Correspondingly, it is not unreasonable for an employer to terminate an employee in a performance review meeting and then remove the employee from the premises, and the plaintiff's allegations to this extent are legally insufficient to support his claim.
The plaintiff's only remaining allegation in support of his claim for negligent infliction of emotional distress is that his termination occurred on April 15, or "tax day." While this date may carry some significance for employees engaged in tax-related professions, it cannot be considered any more unreasonable a termination date than April 14, the day before "tax day," or April 16, the day after. To permit the plaintiff's claim to go forward on this ground would mean endorsing its logical — and untenable — implication: that employees in tax-related professions could never be terminated on April 15, or an employer would risk being sued. On the facts of this case, the defendant's conduct in terminating the plaintiff's employment on April 15 instead of another day, cannot, as a matter of law, be considered sufficiently wrongful so as to create an unreasonable risk of causing emotional distress that could result in illness or physical harm. For the foregoing reasons, the court grants the defendant's motion to strike count three of the second amended complaint.
The defendant also argues that the plaintiff's claim for negligent infliction of emotional distress should be stricken because it is untimely. (Motion to Strike, p: 16.) The court does not address this argument because "[a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006).
Count Four: Tortious Interference with Business Expectancies
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).
"[N]ot every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification." (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805-06, 734 A.2d 112 (1999). "The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
The plaintiff's fourth count is titled "tortuous [sic] interference with business relations" and alleges that "[a]s a result of the defendant's unlawful conduct, the plaintiff has been unable to use his former colleagues of sixteen years as professional references." (Second Amended Complaint, ¶ 61.) The plaintiff has failed to allege any specific business relationship that the defendant has intentionally and maliciously interfered with, and therefore has not alleged a legally sufficient claim for tortious interference with a business expectancy. Furthermore, the plaintiff has failed to allege interference with "even an unenforceable promise"; Biro v. Hirsch, supra, 62 Conn.App. 21; and has also failed to allege any facts that would support a claim that the defendant acted tortiously. For each and all of these reasons, the court grants the defendant's motion to strike count four of the second amended complaint.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike counts one, three and four of the plaintiff's second amended complaint.