Opinion
No. CV03-0479302
April 5, 2004
MEMORANDUM OF DECISION
Pursuant to Practice Book § 10-39, the defendant has moved to strike the plaintiff's complaint dated June 20, 2003, in its entirety. The plaintiff's complaint is comprised of two counts containing various allegations. Count One sounds in claims of negligent infliction of emotional distress, intentional infliction of emotional distress, and constructive discharge. Count Two alleges a breach of contract. The defendant claims that the plaintiff, as a matter of law, has failed to adequately state claims for the intentional and negligent infliction of emotional distress, constructive termination of employment and breach of contract. As to Count One, defendant argues that the plaintiff's allegations do not arise out of the termination process, as the plaintiff resigned from his employment. In addition, the conduct by the defendant, as alleged by the plaintiff, was neither outrageous or extreme. Further, the defendant argues plaintiff fails to allege that the defendant violated public policy or intentionally created the intolerable work environment that plaintiff alleges. Finally, as to Count Two, the defendant argues that the plaintiff does not allege that the defendant made or broke any definitive promise to him, and therefore, the "breach of promise" claim must also fail.
A summary of the allegations in the complaint reveals that the plaintiff was hired by the defendant as a van driver on October 16, 2000. On or about October 16, 2000, the defendant, acting through the plaintiff's supervisor, accused the plaintiff in writing of sexually harassing a supervisor of the defendant. The defendant Easter Seals threatened to terminate the plaintiff's employment based on this alleged sexual harassment by the plaintiff.
On July 20, 2001, the defendant's Director of Human Resources issued a written memorandum to the plaintiff, allegedly imposing written discipline upon the plaintiff for requesting that a supervisor assist the plaintiff in "recovering [his] reputation with various parties and improving ongoing communication." On this same date, the defendant, through the plaintiff's supervisor and its Director of Human Resources, ordered the plaintiff "in writing to cease any and all efforts to improve the lives of the disabled persons he was charged with transporting or in any other manner performing any kind of services for or in behalf of [Easter Seals'] clientele other than merely driving them in a van."
Prior to these alleged incidents, the plaintiff alleges that the defendant had committed in writing to the plaintiff and its other employees that before taking any disciplinary action against an employee accused of sexual or other unlawful harassment, the defendant would "promptly and thoroughly investigate any such accusation." The plaintiff states that he relied upon this promise in continuing to work for Easter Seals.
The plaintiff further alleges that as a result of the defendant's accusations and threatened discipline, the plaintiff came to view his working conditions as so difficult and unpleasant that he felt compelled to resign, and in fact, did resign his position on October 16, 2001. The plaintiff claims that the defendant's actions caused him to suffer "severe emotional distress and associated economic loss."
The standards for reviewing the merits of a motion to strike are well-established. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
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." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, CT Page 5305 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
I Negligent Infliction of Emotional Distress
To establish a claim of negligent infliction of emotional distress, the plaintiff must prove the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003); DeCorso v. Watchtower Bible Tract Society, 78 Conn. App. 865, 828 A.2d 620 (2003). The plaintiff does not base his claim on actions occurring during the termination process, but rather on making his working conditions difficult and unpleasant, causing the plaintiff to resign. Perodeau v. City of Hartford, 259 Conn. 729, 729 A.2d 752 (2002), held that the tort of negligent infliction of emotional distress does not apply to conduct arising during the course of an ongoing employment relationship, but rather applies only to conduct arising out of an employee's termination of employment. Id. at 762-63. Courts have also struck claims, such as the plaintiff's, that are based on an employment action other than termination. See. e.g. CT Page 5306 Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV01 0806951, (Sept. 25, 2002) (Beach, J.), 33 Conn.L.Rptr. 206 (allegations of intentional infliction of emotional distress arising form constructive termination); Kelly v. Seacorp, Inc., Superior Court, judicial district of New London, Docket No. 550383 (Aug. 13, 2002) (Hurley, J.) (precluding liability as a result of disciplinary and investigatory action arising from actual or alleged misconduct); Jones v. H.N.S. Management Co., Superior Court, judicial district of New Haven at New Haven, No. CV 02-0471419 S (Sep. 25, 2003) (Licari, J.), 35 Conn.L.Rptr. 549 (court strikes claim of negligent infliction of emotional distress as a result of a demotion).
The plaintiff resigned from his position with the defendant Easter Seals, and therefore, his claim for negligent infliction of emotional distress must fail.
II Intentional Infliction of Emotional Distress
The court agrees with the defendant that it is not entirely clear from a reading of Count One, if the plaintiff is also alleging that the defendant's actions constitute intentional infliction of emotional distress. If the plaintiff is alleging intentional infliction of emotional distress, that allegation must fail, as well.
In Heim v. California Federal Bank, 78 Conn. App. 351, 364-65, 828 A.2d 129 (2003), the court summarized the Connecticut standards for the tort of intentional infliction of emotional distress:
"[T]he plaintiff must establish four elements. 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 . . . 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 . . ." Id.
"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 to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; emphasis added; internal quotation marks omitted.) Id.; Carnemolla v Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); see also Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000); 1 Restatement (Second) Torts § 46 (1965); W. Prosser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60.
Even when the court interprets the complaint in a light most favorable to the plaintiff, there is nothing in the allegations that would cause a reasonable person to deem the defendant's actions "outrageous." In Dollard v. Board of Education, 63 Conn. App. 550, 552-53, 777 A.2d 714 (2001), the plaintiff alleged that the defendants hypercritically scrutinized every aspect of her work and personal life, publicly admonished her and organized a plan to force her to resign. Despite those allegations, this court determined that the defendants' actions did not constitute outrageous or extreme conduct. Id., 554; see also Appleton v. Board of Education, supra, 254 Conn. 211 (extreme or outrageous conduct not found where plaintiff subjected to condescending comments made by employer and psychiatric evaluations, escorted off employer's premises by police and forced to resign). See also, Carnemolla v Walsh, supra, 75 Conn. App. 331-32 (extreme and outrageous conduct not found where plaintiff employee was accused of a embezzling company funds).
Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form a basis for an action based upon intentional infliction of emotional distress. Appleton v. Board of Education, supra, 210-11. "It is clear that individuals in the workplace should reasonably expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflicts and the like." Perodeau v. Hartford, supra, 259 Conn. 757. "Individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluation, both formal and informal, decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance, and disciplinary or investigatory action arising from actual or alleged employee misconduct." Id.; see also, Chasin-Hoxley v. Jewish Community Council of New Haven, Superior Court, judicial district of New Haven at New Haven, No. CV 01-0454743 S (Sep. 19, 2002) (Arnold, J.)
The allegations of the present complaint do not amount to the atrocious and utterly intolerable behavior necessary to support the plaintiff's cause of action. The plaintiff's allegations are insufficient to meet the standard of "extreme" and "outrageous" conduct required in order to sustain an action for the intentional infliction of emotional distress.
III Constructive Discharge
In the First Count the plaintiff also alleges that the defendant "constructively terminated" him from employment, causing him to suffer humiliation, degradation, emotional distress and economic loss. The plaintiff alleges that he was hired by the defendant as a van driver on or about June 20, 2001, and performed his duties until he left this employment due to the alleged "constructive termination" on October 16, 2001. He does not allege that the terms of his employment were that he was to be employed for a definite period of time. Accordingly, he is deemed to be an employee at will. Morris v. Hartford Courant Co., 200 Conn. 676, 678, 513 A.2d 66 (1986); Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426 (1959). "[T]he right to recover in tort for wrongful discharge extends only to employees at will." Tomlinson v. Board of Education, 226 Conn. 206, 212, 629 A.2d 333 (1993).
Sheets v. Teddy's Frosted Food, Inc., 179 Conn. 471, 427 A.2d 385 (1980), recognized that it is a "general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will." Id. 474; see, e.g., Somers v. Cooley Chevrolet Co., supra. In Sheets, however, the court "recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." Carbone v. Atlantic Richfield Co., 204 Conn. 460, 466-67, 528 A.2d 1137 (1987), quoting Sheets v. Teddy's Frosted Foods, Inc., supra, 475.
In interpreting this exception, the courts have taken a narrow view. "We note 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 We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000); Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997).
In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: "A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis added; internal quotation marks omitted.) Id., 648; Burnham v. Karl Gelb, P.C., supra, at 159-60.
The court in Sheets v. Teddy's Frosted Food, supra, determined that a cause of action for wrongful discharge will lie when the former employee can demonstrate an improper reason for the discharge, "a reason whose impropriety is derived from some important violation of public policy." Id., 475. Sheets warns, however, that courts should proceed cautiously in their consideration of whether a public policy violation exists. Id., 477. "The issue then becomes the familiar common-law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not. We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Id., 478. Later cases test and define the limits of an important violation of public policy. Because of the vagueness that inheres in the concept of public policy; Morris v. Hartford Courant Co., supra at 680; the court must make an analysis of employee claims in such cases. Faulkner v. United Technologies Corp., 240 Conn. 576, 588-89, 693 A.2d 293 (1997).
A review of the allegations of the plaintiff's complaint reveals that the plaintiff has failed to allege any violation of public policy, nor is such an allegation reasonably inferred from the allegations. Allegations that employer has falsely accused an employee of improper or even criminal behavior are insufficient for establishing a violation of a public policy sufficient to support a wrongful or constructive discharge claim. "[A] claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she is forced to resign." Brittell v. Department of Corrections, 247 Conn. 148, 178, 717 A.2d 1254 (1998). The claim by the plaintiff for a constructive termination of his employment must also fail.
IV Breach of Contract
Plaintiff alleges in Count Two that the defendant promised him and "other employees, in writing, that before taking any disciplinary action against any employee accused of sexual or otherwise unlawful harassment, the defendant would promptly and thoroughly investigate any such accusation." The plaintiff further alleges that he relied upon this promise "in agreeing to work for the defendant and in continuing to work for the defendant," and that the defendant broke this promise when it accused him of harassing a supervisor and threatening to terminate his employment. The defendant argues that this claim must also be stricken, as the plaintiff has failed to allege that the defendant Easter Seals made any definitive promise to the plaintiff or broke any such definitive promise.
The following legal principles govern our analysis of the plaintiff's claim. "Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. [1 Restatement (Second), Contracts § 90, p. 242 (1981).] A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Ser. Corp., 267 Conn. 96, 104-05 (2003); quoting, D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).
"Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future." Stewart v. Cendant Mobility Ser. Corp., supra; see D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 214-15 "[A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance; 3 A. Corbin, Contracts, supra, § 8.9, pp. 29-30; and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion." Stewart v. Cendant Mobility Ser. Corp., supra, 105-06; see also, D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 214-15. "Finally, whether a representation rises to the level of a promise is generally a question of fact, to be determined in light of the circumstances under which the representation was made. Stewart v. Cendant Mobility Ser, Corp., supra, 105-06; Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995).
"To succeed on a claim of promissory estoppel, the party seeking to invoke the doctrine must have relied on the other party's promise." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 213. That reliance, of course, may take the form of action or forbearance. Id. Nevertheless, the asserted reliance, regardless of its form, must result in a detrimental change in the plaintiff's position. 3 A. Corbin, supra, § 8.9, p. 30; see also W. v. W., 256 Conn. 657, 661, 779 A.2d 716 (2001).
The court for the purposes of this motion assumes that the plaintiff did rely on a written statement by the defendant regarding a promised prompt and thorough investigation of any allegations regarding sexual or unlawful harassment by the plaintiff. The defendant's representation that it would adequately and thoroughly investigate any allegations of sexual or unlawful harassment was a definitive and clear statement of its commitment to its employees. Whether it rises to the level of a promise would normally be best left to the trier of fact. However, any detrimental change in the plaintiff's position was the result of his own decision to resign, not a termination or suspension by the defendant. Therefore, the plaintiff has not sufficiently established a claim of promissory estoppel as to Count Two.
Lastly, the court agrees with the defendant's argument that the plaintiff's breach of contract claim is in reality a tort arising out of a purported contract. See Gazo v. City of Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001). Count Two seeks to recover for the same alleged tortious actions claimed in Count One. Additionally, plaintiff's request for damages due to alleged severe emotional distress arising from the defendant's alleged breach of promise is improper because such damages are not recoverable for breach of contract. Id. at 265-66; see also Petronio v. Burich, Superior Court, judicial district of New Britain at New Britain, Docket No. CV01 0509130 S (April 23, 2002) (Wiese, J.) (citing cases holding same) ( 32 Conn.L.Rptr. 156).
Accordingly for the reasons stated herein, the defendant's motion to strike the plaintiff's complaint in its entirety is hereby granted.
The Court
By Arnold, JUDGE.