Opinion
No. CV 07 5007485
July 20, 2011
MEMORANDUM OF DECISION
Facts and Procedural History
The plaintiff, James Wilkinson, filed a six-count complaint on July 18, 2007, in the Judicial District of New London at Norwich, against his employer, the defendant, Hobbs Associates, LLC. Count one alleges that the defendant unlawfully discharged the plaintiff in violation of General Statutes §§ 46-60 et seq., 46-60(a)(1), 46a-58, and Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1991. Count two alleges common-law wrongful discharge. Counts three and four allege negligent and intentional infliction of emotional distress. Count five alleges negligent supervision and count six alleges that the defendant breached its implied contract of employment with the plaintiff.
The plaintiff's claims arise from the following allegations. "On or about December 28, 2001, the plaintiff was hired by the defendant to work as a groundskeeper at Cedar Glen Apartments, and was at all times herein qualified for the position . . . The plaintiff is a member of the Wicca religion and at times since February 2002, he has hosted a weekly public access television program designed to discuss and celebrate his religion . . . The plaintiff performed all of his duties in a satisfactory and capable manner throughout the term of his employment with the defendant, and received promotions and pay raises while employed by the defendant . . . Beginning in June 2005, plaintiff suffered an adverse employment action consisting of a course of discrimination, harassment, and termination by the defendant, its agents, servants, and employees, which resulted in discriminatory treatment to plaintiff, based on his religion, and said adverse action occurred under circumstances giving rise to an inference of discrimination . . . Said discriminatory and harassing conduct was done by plaintiff's supervisors and co-workers, all of whom are employees, agents, and/or servants of the defendant. Said conduct was conducted in an open, hostile manner which was fully recognized, tolerated, acknowledged, condoned, approved, ratified and, in effect, encouraged by the defendant, through itself, its agents, servants and employees, in such a way as to create a hostile work environment towards plaintiff . . . The . . . conduct of the defendant, its agents, servants and employees has resulted in discrimination against plaintiff with respect to the terms, conditions and privileges of his employment because of plaintiff s religion."
"In particular, conduct discriminatory and harassing in nature against plaintiff by defendant, its agents, servants or employees consists of the following: Defendant's attitude and demeanor towards plaintiff adversely changed immediately upon learning the plaintiff's religion; Upon learning of plaintiff's religion, defendant's employees, agents, and servants changed their attitudes towards plaintiff and certain management personnel refused to speak to plaintiff except for work-related issues; Upon learning of plaintiff s religion, certain employees, servants, and agents of the defendant adorned said work area with Christian symbols, played Christian music in the work area, and frequently cited various Christian scriptures and did so openly in front of plaintiff in an attempt to harass and intimidate him, and such created a hostile work environment; Upon learning of plaintiff's religion, certain employees, servants, and agents of the defendant refused to accept plaintiff's radio calls or speak to the plaintiff, but rather used other employees as intermediaries in order to communicate; Defendant separated plaintiff from his work partner and plaintiff was forced to work alone."
The complaint concludes: "On July 14, 2005, defendant terminated plaintiff because of his religion. Any other reason posited by defendant is pretextual . . . The stated reason for termination for plaintiff's termination was for failure to follow the property manager's instructions on buying supplies and constantly overspending . . . The stated reason for termination, however, was pretextual as plaintiff was terminated for reasons associated with his religion."
The defendant filed a motion to strike counts two, three and four, and memorandum in support on November 14, 2007. The plaintiff filed a motion for extension of time to respond to the motion to strike, which was granted by the court, Parker, J. Subsequently, on June 11, 2008, the matter was transferred from Norwich to New London. The plaintiff filed his objection to the motion and memorandum in opposition on June 8, 2010. The parties appeared for oral argument at short calendar on June 13, 2011. At oral argument, the plaintiff agreed to strike count two, alleging common-law wrongful discharge. As a result, this decision will address the legal sufficiency of counts three and four, alleging negligent and intentional infliction of emotional distress.
CT Page 16078
Discussion
"[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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] 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).Count Three: Negligent Infliction of Emotional Distress
The defendant argues that count three should be stricken because it fails to allege particularly egregious conduct in process and manner in which the plaintiff was terminated. To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove: "(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, 127 (2003).
In Perodeau v. Hartford, 259 Conn. 729, 748-49, 792 A.2d 752 (2002), the Supreme Court addressed whether individual employees may be found liable for negligent infliction of emotional distress arising out of actions or omissions occurring within the context of a continuing employment relationship, as distinguished from actions or omissions occurring in the context of termination of employment, and concluded that they may not. In reaching its decision, the Perodeau court first reviewed of case law pertaining to claims of negligent infliction of emotional distress in the employment context.
"In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court recognized for the first time that recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. We concluded, rather, that, in such cases, the defendant would not be liable unless 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." (Internal quotation marks omitted.) Id., 749.
"In Morris v. Hartford Courant Co., 200 Conn. 676, 513 A.2d 66 (1986), we considered the plaintiff's claim that he had been wrongfully discharged and that the discharge constituted negligent infliction of emotional distress. We concluded that the discharge did not violate any important public policy and, accordingly, did not fall within any exception to the employment at will doctrine . . . We also concluded that, despite the fact that the termination was not wrongful, there was nothing in that doctrine . . . to preclude an action for unintentional infliction of emotional distress based upon unreasonable conduct of the defendant in the termination process . . . Thus, Morris stands for the proposition that a wrongful termination is not a necessary prerequisite for a claim of negligent infliction of emotional distress in the employment context." (Citations omitted; internal quotation marks omitted.) Id., 749-50.
"In Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), we again considered claims of wrongful discharge and negligent infliction of emotional distress. In that case, we concluded that the plaintiff had made out a prima facie case of wrongful discharge . . . but, relying on Morris, we also concluded that negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . Accordingly, we concluded that 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 . . . We found that the actions that the defendant took in terminating the employment of the plaintiff, as alleged in his complaint, were not so unreasonable as to support a cause of action for negligent infliction of emotional distress . . . Thus, Parsons stands for the proposition that a wrongful termination is not, in and of itself, a sufficient basis for a claim of negligent infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Id., 750.
"Accordingly, read together, Morris and Parsons merely stand for the proposition that, in 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 was 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." (Internal quotation marks omitted.) Id., 751.
After a review of Connecticut case law, the court examined public policy reasons for its conclusion that negligent infliction of emotional distress claims in the employment context should be limited to conduct occurring in the termination of employment. "It is clear that . . . individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, 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. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it 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. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed. We recognize, however, that that does not mean that persons in the workplace should expect to be subject to conduct that transgresses the bounds of socially tolerable behavior . . . and that involves an unreasonable risk of causing emotional distress . . . that . . . if it were caused, might result in illness or bodily harm . . . Nevertheless, for the following reasons, we conclude that, when the employment relationship is ongoing . . . public policies [discussed below] . . . outweigh the interests of persons subject to such behavior in the workplace in being compensated for their emotional injuries." (Citations omitted; internal quotation marks omitted.) Id., 757-58.
"First, in an ongoing employment relationship, employees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions such as demotions, promotions and transfers on the basis of fear of suit rather than business needs and desires. All of this conduct would contribute to a less vigorous and less productive workplace. We conclude that such a pervasive chilling effect outweighs the safety interest of employees in being protected from negligent infliction of emotional distress. In cases involving a termination of employment, on the other hand, the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees. Second, in light of the inherently competitive and stressful nature of the workplace and the difficulties surrounding proof of emotional distress, extending the tort of negligent infliction of emotional distress to ongoing employment relationships would open the door to spurious claims. We recognize that the line that we draw in the present case is somewhat arbitrary. This court previously has been willing to draw lines limiting liability, however, when there are fears of flooding the courts with spurious and fraudulent claims; problems of proof of the damage suffered; exposing [potential defendants] to an endless number of claims; and economic burdens on industry . . . We conclude that, although the rule that we adopt in this case may allow some legitimate emotional injuries to go uncompensated, the social costs of allowing such claims would outweigh the social benefits." (Citation omitted; internal quotation marks omitted.) Id., 758-59.
Therefore, the plaintiff must allege more than that the defendant simply terminated his employment. He must allege that the conduct of the defendants in terminating her was so unreasonable that they should have been aware that they were exposing the plaintiff to an unreasonable risk of suffering severe emotional distress. One Superior Court previously expressed this burden as requiring the plaintiff to allege "that the actual termination was . . . done in an inconsiderate, humiliating, or embarrassing manner." (Internal quotation marks omitted.) Skierkowski v. Creative Graphics Services, Inc., Superior Court, judicial district of New Britain, Docket No. CV 94 0463242 (May 5, 1995, Handy, J.); see also Brown v. Stamford Hospital, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009794 (June 29, 2010, Hiller, J.) [ 50 Conn. L. Rptr. 250] (negligent infliction of emotional distress count legally insufficient because it focused on the events leading up to the plaintiff's termination, and not on the actual act of termination itself); Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.) (plaintiff stated a claim for negligent infliction of emotional distress where the complaint alleged that the employer screamed at, berated and leaned over the plaintiff in a threatening manner during the termination process); Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) ( 33 Conn. L. Rptr. 206, 208) ("Termination means the ending, not the conduct that 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").
In the present case, the plaintiff's complaint is devoid of any allegations related to the process and manner in which he was terminated on July 14, 2005. The plaintiff attempts to maintain a claim for negligent infliction of emotional distress on the basis of actions taken by his employer in the context of an ongoing employment relationship, rather than the process of termination of employment. As such, his negligent infliction of emotional distress count is legally insufficient and should be stricken.
Count Four: Intentional Infliction of Emotional Distress
In regard to count four, the defendant argues that it should be stricken because the complained of conduct was not extreme and outrageous. Recently, in Gillians v. Vivanco-Small, 128 Conn.App. 207, 208, 15 A.3d 1200 (2011), the Appellate Court affirmed the trial court's granting of summary judgment on the plaintiff's claim of intentional infliction of emotional distress arising out of her employment, finding that she failed to allege sufficient extreme or outrageous conduct to sustain her claim.
Specifically, the plaintiff in Gillians was employed by the Stamford office of the department of children and families. She alleged that in her capacity as union steward, she filed an institutional labor grievance against the defendants complaining that the number of cases assigned to workers exceeded the maximum limit. In retaliation for this filing, the defendants conspired to force the plaintiff to withdraw the institutional grievance. Furthermore, the defendants were motivated by personal vendettas in connection with unsuccessful complaints each previously had filed against the plaintiff and that, as part of the conspiracy, they had become hostile and uncooperative and had falsely accused her of racial and sexual bias. As a result, the defendants gave her a negative performance evaluation and threatened her with demotion and termination of her employment. Ultimately, the defendants decided to terminate her employment and that, when their decision was reversed by the department, they offered to rehire her at a lower position. The plaintiff's complaint concluded with the allegation that the resulting distress caused her to resign and to take other employment at a greatly reduced income. See id., 208-09.
The court stated: "In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (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 . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 211-12.
The court then reasoned that: "On the basis of this standard, we conclude that the plaintiff failed to allege conduct that a reasonable fact finder could find to be extreme and outrageous. This conclusion is consistent with the decisions of this court and our Supreme Court in employment and termination of employment cases. Much of the alleged conduct involved investigation into the plaintiff's job performance, which, even if unfounded, does not satisfy the articulated standard. See, e.g., Tracy v. New Milford Public Schools, 101 Conn.App. 560, 567-70, 922 A.2d 280 (conduct not outrageous where supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007)." Id., 212.
The court continued: "The most troubling allegation is that the defendants vindictively conspired to terminate the plaintiff's employment. A concerted effort to remove an employee, however, does not necessarily constitute outrageous conduct; see, e.g., Dollard v. Board of Education, 63 Conn.App. 550, 552-55, 777 A.2d 714 (2001) (conduct not outrageous where supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her); nor does a wrongful motivation necessarily render a termination outrageous. See Parsons v. United Technologies Corp., [ supra, 243 Conn. 89] (mere act of terminating employee, even if wrongfully motivated, does not transgress bounds of socially tolerable behavior). Reading the allegations in the light most favorable to the plaintiff, the defendants' conduct, albeit distressing to her, did not exceed all possible bounds of decency. See, e.g., Appleton v. Board of Education, [ 254 Conn. 205, 210-12, 757 A.2d 1059 (2000)] (conduct not outrageous where supervisors made condescending comments about plaintiff in front of colleagues, subjected her to two psychiatric examinations, telephoned her daughter to say plaintiff was acting differently and should take time off, asked police to escort her from school and suspended her employment)." Id., 213.
In support of his intentional infliction of emotional distress claim, the plaintiff merely alleges that upon learning of his religious beliefs, the defendant's attitude and demeanor towards him adversely changed; management personnel refused to speak to him except for work-related issues; employees adorned his work area with Christian symbols, played Christian music, and read Christian scriptures; employees refused to accept plaintiff's radio calls; and finally, that he was forced to work alone. In light of the Appellate Court's decision in Gillians, and the appellate decisions relied upon therein, these allegations do not rise to the level of extreme and outrageous conduct required to support an intentional infliction of emotional distress claim. As a result, count four should be stricken.
Conclusion
By agreement of the parties, count two is stricken. For all of the foregoing reasons, the defendant's motion to strike counts three and four is hereby granted.