Opinion
No. CV 03 0090363
July 1, 2005
MEMORANDUM OF DECISION
This is a motion to strike all three counts of the plaintiff's complaint. The motion must be granted for the following reasons.
Count One
In this count the plaintiff, Michael Tracy, alleges that he had been employed as a custodian by the defendant New Milford Public Schools since September 1, 1987. He further alleges that the defendant, Raymond Avery ("Avery"), Superintendent of Schools, conspired with the defendant, John Calhoun ("Calhoun"), Director of Environmental Services, to harass the plaintiff in various specified ways which ultimately led to his involuntary termination on May 7, 2001. The plaintiff claims that this termination was in violation of C.G.S. § 46a-60 (a)(4).
§ 46a-60(a)(4) states: For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84.
The defendants claim that this count is legally insufficient because the plaintiff failed to pursue an adequate legal remedy under the Connecticut Unfair Employment Practices Act ("CFEPA"). I agree. The first count is entitled "Public Policy Wrongful Discharge." Although the first count contains the allegations of harassment by Calhoun and Avery, the essential allegation is that the plaintiff was terminated in violation of § 46a-60(a)(4), formerly § 31-126, and now a part of Chapter 814c entitled "Human Rights and Opportunities." Chapter 814c provides a comprehensive statutory scheme to investigate and remedy "discriminatory practices" though the Commission on Human Rights and Opportunities ("the Commission"). This statutory scheme provides an adequate remedy for those employees who claim violations of § 46a-60(a)(4) because it provides for reinstatement of employment, monetary relief, as well as the right to appeal to Superior Court.
The plaintiff failed to file a complaint with the Commission. It is well established that the public policy exception to the general rule baring wrongful discharge claims by at-will employees is not available if the employee has an adequate statutory remedy. Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159-61 (2000). The plaintiff cannot sue the defendants for wrongful discharge based upon a public policy violation of § 46a-60(a)(4) when he failed to take advantage of the remedy provided for violations of that statute. The motion to strike the first count is granted.
Second Count
The second count sets forth a cause of action for intentional infliction of emotional distress based upon the course of conduct set forth in the first count which is alleged to be extreme and outrageous. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. 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 . . .' 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." (Internal quotation marks and citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11 (2000).
The specific allegations of the plaintiff concerning the plan of harassment carried out by the defendants are: denial of position, fabricating disciplinary actions, defamation of character, denial of promotional opportunity, denial of a request to enroll in a computer class, denial of lateral transfer, imposition of discipline without proper investigation for three alleged acts of misconduct, and threats of termination. The defendants claim that these allegations do not rise to the level of "extreme and outrageous conduct" as defined by the court.
The only allegation in the second count which cannot be dismissed immediately as insufficient is that contained in paragraph 8: "The defendant, John Calhoun, conspired with defendant, Raymond Avery, to harass the plaintiff by agreeing and carrying out a pattern of conduct including . . . fabricating disciplinary actions . . . as more particularly described herein." But, the "more particular" description of this conduct is contained in paragraph 12: "On or about April 20, 2000, without proper investigation, the plaintiff was subjected to discipline for three (3) alleged acts of misconduct." Subjecting an employee to discipline without proper investigation is a far cry from "fabricating disciplinary actions" or from extreme and outrageous conduct. It is akin to other employment-related allegations which have been held to be insufficient to be extreme and outrageous. Parsons v. United Technologies Corp., 243 Conn. 66, 87-88 (1997) (employer failed to comply with performance evaluation procedures and then terminated the plaintiff employee, resulting in revocation of plaintiff's visa); Appleton v. Board of Education, 254 Conn. 205 (2000) (with regard to a public school teacher, the defendant employer was alleged to have made "condescending comments" in front of the plaintiff's colleagues, reported to the plaintiff's daughter that the plaintiff had been acting "differently," had telephoned the police to escort her out of the school building, and had required the plaintiff to submit to psychiatric examinations).
For these reasons, the motion to strike the second count is granted.
Count Three
This count sets forth a cause of action for negligent infliction of emotional distress for the same conduct set forth in the first and second counts. "[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. In Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995), we further reasoned: This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear 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 fear 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 and citations omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47 (2003).
Here the essential allegation is that the defendants terminated the plaintiff based upon improper investigations of disciplinary complaints. But, mere termination of employment, even where it is wrongful, is not by itself, enough to sustain a claim for negligent infliction of emotional distress. Parsons v. United Technologies Corp., 243 Conn. 66, 88-89 (1997). "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted.) Id. It is for this reason that the motion to strike the third count must be granted.
BY THE COURT,
JOHN W. PICKARD