Opinion
No. AANCV054003670S
May 29, 2008
MEMORANDUM OF DECISION
On May 31, 2005, the plaintiff, Victor Aponte, commenced this action by service of process on the defendants, Alinabal, Inc., and Alinabal Holdings Corporation (hereafter referred to collectively as Alinabal or the defendants). In his six-count complaint he alleges the following facts: The plaintiff began working for the defendants on September 25, 2001, as a power press machine operator. Prior to the plaintiff's termination, the defendants' agents represented to him that his job was secure. As a result, the plaintiff thought his job was secure, and he did not seek other employment. On May 30, 2002, the defendants terminated the plaintiff's employment, for the violation of safety procedures on mechanical power presses. The plaintiff did not violate any safety procedures but, rather, was injured on a power press due to a fellow employee's violation of safety procedures.
In the first count, the plaintiff alleges that he was wrongfully discharged because the defendants expressly or impliedly misrepresented to him that he would not be terminated without just cause, and had represented to him that his job was secure. In the second count, the plaintiff claims that his discharge breached an implied covenant of good faith and fair dealing. The third count claims negligent misrepresentation. The fourth and fifth counts assert claims for intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. The sixth count alleges that the plaintiff's discharge by the defendants violated General Statutes § 31-290a.
The defendants move for summary judgment on each of the six counts. "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277 279, 567 A.2d 829 (1989); see Practice Book § 17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 370, 727 A.2d 1245 (1999).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997); see also Practice Book § 17-45.
Viewed in a light most favorable to the plaintiff, the affidavits, deposition transcripts and accompanying exhibits filed by the parties, establish the following material facts: The defendants are in the business of manufacturing precision stampings and assemblies, spherical rod end bearing and linkage assemblies, as well as special purpose printers, aircraft instrumentation and advanced optical shutters. On September 25, 2001, Alinabal hired the plaintiff as a power press machine operator. Although at the time of his employment with Alinabal, the plaintiff was not told that he was an "at-will employee," he was given a copy of Alinabal's employee handbook so provided. The plaintiff read some of the handbook's provisions. Nevertheless, the plaintiff is not proficient in reading English and had his son read parts of the handbook to him. On September 28, 2001, the plaintiff signed a document acknowledging that he had "received, understand[s], and accept[s] the provisions of the Alinabal, Inc. Employee Handbook, including the at will nature of the employment relationship."
This document is one of several included in Exhibit C to Defendants' Motion for Summary Judgment and is Bates Stamped "ALINABALOO67."
On April 2 or 3, 2002, the plaintiff was operating a 90-ton press without wearing safety straps, which the plaintiff referred to as "pullbacks." When Alinabal's second shift supervisor, Harvey Bison, asked the plaintiff why he was not wearing the safety straps, the plaintiff responded: "I got to oil the strip over there and I cannot reach." The plaintiff explained that it was a "pain" to take off the safety straps, oil the strip, return and put the safety straps on again. The plaintiff maintains that he had to remove the safety straps to perform his job duties at the time. The plaintiff was counseled by an employee of the defendants' on safety precautions.
The plaintiff was subsequently given a performance review containing eight categories, seven of which were graded. The plaintiff was evaluated as "good" in five of the categories: knowledge of job, productivity, absenteeism and tardiness and attitude. In two categories, however, the plaintiff was rated as "needs improvement": accuracy or quality and safety awareness and attitude. In the latter category the evaluator wrote: "Safety equipment must be used when operating presses." The plaintiff signed the form, indicating that he had seen it and had the opportunity to discuss it. The form provided that "[a] signature does not indicate agreement or disagreement with the rating, but only that it has been seen."
The following month, the incident giving rise to the plaintiff's discharge occurred. On May 28, 2002, the plaintiff was cleaning a 90-ton power press machine. He noticed a piece of metal that was not inside the chopper as it should have been. Since it was the plaintiff's responsibility to maintain and clean the machine, he began to put the piece of metal into the choppers. While doing so, another employee, without looking to see if anyone was in the area, plugged the power press machine into the reverse plug, causing the sheet metal in the machine to be pulled out of the plaintiff's hands, lacerating both the plaintiff's left ring and pinkie fingers, and his right thumb. Subsequently, a supervisor found that the machine's safety pedal had been disengaged by a piece of wood that was jammed under the pedal, rendering it unsafe. The supervisor observed blood on another piece of wood adjacent to the press, and his superior concluded that the plaintiff had put the piece of wood behind the foot safety pedal. The plaintiff, however, attested that he had not done so, and had no knowledge of who did.
After his injury, the plaintiff was taken by a supervisor to the foreman's office. The plaintiff told the foreman how his injury had occurred. The information provided by the plaintiff was used by the defendants' Human Resources Administrator, Mary Stephens, to prepare an Employer's First Report of Injury on May 30, 2002. The defendants' foreman told the supervisor to take the plaintiff to the hospital. The following day, the plaintiff met with Bruce Bickley, Alinabal's corporate vice president in charge of administration. Plaintiff told Bickley the details of how the accident occurred, Bickley then stated: "Okay. We're going to pay you. When the doctor releases you, you come back to work." Nevertheless, on May 30, 2002, the plaintiff received a mailgram informing him that he had been discharged "[f]or violation of safety procedures on mechanical power presses." From the time he was hired by Alinabal, until the day prior to his termination, the defendants had represented to the plaintiff that his job was secure and rewarded him with a raise.
Additional facts will be set forth as necessary.
I
In the first count, the plaintiff alleges that he "was wrongfully discharged by the Defendants . . . due to the Defendants' breach of an express and/or implied contract of employment . . . with the Plaintiff . . . Defendants . . . impliedly and/or expressly misrepresented to the Plaintiff . . . that the Plaintiff would not be terminated without just cause; Defendants . . . breached an express and/or implied contract of employment with the Plaintiff that his job was secure." The defendants maintain that plaintiff was an at-will employee and could be terminated at any time with or without cause.
The plaintiff counters that the motion for summary judgment should be denied because "[t]here are genuine issues of material facts as to whether there exists an implied contract between the Plaintiff and Defendant based on the progressive disciplinary policy outlined in the Employee Handbook." Paragraph fourteen of the plaintiff's affidavit states: "I relied on the representations concerning the progressive disciplinary procedure in continuing and remaining employed by the Defendant." The defendants rejoin that the plaintiff cannot create an employment contract out of the progressive disciplinary policy contained in the Handbook. The defendants assert that the Handbook explicitly states that it is not an employment contract and that the plaintiff is an at-will employee. The court agrees with the defendants.
"Connecticut law provides that an employment contract is presumed to be terminable at will." Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn.App. 85, 94, 654 A.2d 1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995). However, "statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999).
Chapter seven of the employee handbook, entitled "Corrective Discipline and Plant Rules," states:
Every organization must have rules in order to operate in an orderly and efficient manner. It is Alinabal's philosophy that except for certain major or felonious offenses, which permit no compromise, reasonable effort will be made to effect a change in behavior or attitude through the use of a system of corrective discipline.
Corrective discipline is used to notify and impress employees that continued violations of established standards of good conduct will result in a more severe type of discipline. An example of corrective discipline steps is:
1st infraction — 1st written warning
2nd infraction — 2nd written warning
3rd infraction — Suspension (up to 3 days)
4th infraction — Discharge
As a guide, the actions listed alphabetically below are not acceptable and may result in appropriate disciplinary action.
There follows a list of thirty examples of unacceptable actions, the fourteenth of which is "[f]ailure to observe safety rules and use available guarding."
Nevertheless, the page preceding the Table of Contents in the Employee Handbook, bearing the boxed heading "WELCOME!," states:
As a new employee of Alinabal, Inc., we wish to welcome you and say we are most happy you have chosen to join us in our work. We operate as a team. It is within that concept that the plans and policies described in this booklet demonstrate the concern of the company for the welfare of our employees.
While this booklet will serve to let you know about various policies and rules, it does not constitute an employment contract, neither expressed nor implied. Alinabal believes in the concept of employment at will. Either Alinabal or any employee may terminate the employment relationship at any time without cause or notice. No statement or representation by any employee, including any managerial employee, can create any contract or other obligation enforceable against the company, nor alter the at will nature of the employment relationship, and should not be relied upon as such. Alinabal reserves the right to alter, amend or terminate any of the benefits or policies referenced in this booklet, with or without notice, at any time. Please read it and should you have any questions, ask your immediate Supervisor to clarify them.
The success of Alinabal, Inc., in the past and in the future can be measured only in terms of satisfying the needs of our customers by producing quality products and services at competitive prices. In serving their needs, we serve our own. Quality products can only be made by people like you who take pride in your work and in the company with which you are associated. (Emphasis in original.)
The plaintiff signed the following document in the Handbook:
I, Victor M. Aponte, have received, understand, and accept the provisions of the Alinabal, Inc. Employee Handbook, including the at will nature of the employment relationship.
S/Victor M. Aponte 9-28-01
Signature Date
We begin with the fact that, in the absence of the Employee Handbook, the plaintiff was an at-will employee, meaning that he could be discharged at any time. Lockwood v. Professional Wheelchair Transportation, Inc., supra, 37 Conn.App. 94. His claim is that the corrective discipline provision of the Handbook changed this.
"[E]mployers can protect themselves against employee contract claims based on statements made in personnel manuals by either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract . . ." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 535. Alinabal's Employee Handbook is crystal clear. It speaks for itself and does so unambiguously. Moreover, the plaintiff points to no other circumstances or contradictory statements that could have given rise to an express or implied agreement by Alinabal not to discharge the plaintiff except for cause. Compare Thompson v. Revonet, Inc., United States District Court, Docket No. 3:05-CV-168 (RNC) (D.Conn. November 21, 2005).
The plaintiff argues that the disclaimer in the employee handbook is in fine print, not highlighted and not signed by the plaintiff. In determining the validity of such disclaimers, Connecticut courts have looked at the specificity of the disclaimer language, its location in the handbook, whether the disclaimer was signed by the employee, and the size of the print. Here, the disclaimer is in the same size print as all other text in the Handbook, underlines the phrase that the Handbook "does not constitute an employment contract, neither expressed nor implied," is signed by the plaintiff, and could not be clearer.
See Hood v. Mercedes-Benz Credit Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 870089126 (June 17, 1991, Lewis, J.) ( 4 Conn. L. Rptr. 680, 681) (the contractual disclaimer was contained in a section entitled "Notice."); See also Grieco v. Hartford Courant Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 900372593 January 27, 1993, Aurigemma, J.) ( 8 C.S.C.R. 219, 220) (The contractual disclaimer is contained on the first page of a personnel handbook.); Dellipoali v. DHL Airways, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV920121574 (May 26, 1993, Lewis, J.) ( 8 C.S.C.R. 653, 654) (Contractual disclaimer is contained on the first page of a driver's manual).
See Lawrence v. Summit Corp. of America, Superior Court, judicial district of Waterbury, Docket No. 105085 (March 22, 1993, Sullivan, J.) ( 8 C.S.C.R. 402, 403) [ 8 Conn. L. Rptr. 771] (the contractual disclaimer is stated in boldface type).
Finally, the plaintiff pleads that he lacks proficiency in English and therefore, the disclaimer is not binding on him. He admitted in his deposition that, although he does not read English well, his son helped him with the Employee Handbook and "explained to me a lot of things." See Preleski v. Farganiasz, 97 Conn. 345, 352, 116 A. 593 (1922) (party bound by agreement, though he did not understand English perfectly, where his agent employed for the purpose dictated the agreement, knew its contents and read it to him). He also admitted that no one at Alinabal ever told him that he could only be discharged for cause.
There is no basis in the law for the plaintiff's selective literacy argument. A plaintiff cannot cull out the progressive discipline language of the Handbook as the basis of a contract providing for discharge only for cause, while claiming ignorance of the disclaimer prominently positioned at the beginning of the book), anymore than a party to a contract may repudiate one part of a non-divisible contract and claim the benefit of the residue. See Menorah Chapels At Millburn v. Needle, 386 N.J.Super. 100, 110, 899 A.2d 316 (App.Div. 2006) ("A party may not repudiate one part of a nondivisible contract and claim the benefit of the residue . . ."). "A contractual promise cannot be created by plucking phrases out of context (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 389, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).
In summary, the plaintiff was an employee at will. Due to the clear and unambiguous disclaimer in the Employee Handbook, the progressive disciplinary policy discussed therein did not result in an implied contract by which the plaintiff could be discharged only for cause. Accordingly, in discharging the plaintiff, Alinabal did not breach any such contract. "There is a substantial body of Connecticut state and federal court decisions granting summary judgment in cases where the personnel manual at issue in a breach of contract claim contains an express disclaimer." Davis v. Liberty Mutual Ins. Co., 218 F.Sup.2d 256, 260 (D.Conn. 2002). The defendants' motion for summary judgment on the first count is granted.
II
In the second count, the plaintiff alleges that by discharging him, the defendants breached the implied covenant of good faith and fair dealing. The defendants argue that their discharge of the plaintiff violated no public policy. The plaintiff argues that the motion for summary judgment should be denied because there is a genuine issue of material fact as to whether an implied contract existed between the parties. According to the plaintiff, "[t]he language in the Defendants' employee handbook regarding its progressive disciplinary policy . . . could reasonably be construed as a basis for a contractual promise."
Connecticut law is clear that an employee may file an action against an employer for a breach of an implied covenant of good faith and fair dealing arising out of an employment contract. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 568-69, 479 A.2d 781 (1984). "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . Bad faith means more than mere negligence; it involves a dishonest purpose. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Citation omitted; internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 576-77, 845 A.2d 417 (2004).
In Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 558, the court held that employment contracts include such a covenant but added, "we do not believe that this principle should be applied to transform a contract of employment terminable at the will of either party into one terminable only at the will of the employee for just cause." Id., 568-69. The court reasoned that since both parties recognize that the employment relationship is terminable at will, the employer could not be deemed to lack good faith merely for exercising his contractual right. The court also noted that "[b]reach of such an implied covenant cannot be predicated simply upon the absence of good cause for a discharge." Id., 571. Moreover, the court stated: "Although we endorse 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 . . . therefore, 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. The plaintiff neither alleges in this count nor argues that his discharge involved impropriety that derived from some important violation of public policy.
Since the plaintiff was at all times an at-will employee, a status the Employment Handbook did not change, his discharge from employment by the defendants did not violate a covenant of good faith and fair dealing. The defendants' motion for summary judgment as to the second count is granted.
III
The third count is for negligent misrepresentation. The plaintiff alleges that the defendants represented to him that his position "was secure and/or he would not be discharged without just cause." The defendants move for summary judgment on the ground that this cause of action is time barred by the two-year statute of limitations, and there is no genuine issue of material fact that the defendants did not make made a negligent misrepresentation to the plaintiff upon which he relied to his detriment.
The plaintiff argues that the applicable statute of limitations is three years, pursuant to General Statutes § 52-577. Factually, his claim of negligent misrepresentation is based on Bruce Bickley's May 29, 2002 statement to him in which Bickley said: "Okay. We're going to pay you. When the doctor releases you, you come back to work." The following day, the plaintiff was discharged.
As to the claim that this cause of action is time-barred by the statute of limitations, the issue is whether the applicable statute of limitations for negligent misrepresentation is three years, pursuant to General Statutes § 52-577 or two years, pursuant to General Statutes § 52-584. The court holds that the statute of limitations for negligent misrepresentation is two years and that, therefore, the plaintiff's claim is time-barred.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
"[O]ur Supreme Court has held that the three year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections . . ." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299, 830 A.2d 346 (2003). General Statutes § 52-584 provides in pertinent part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained . . ."
That an action for negligent misrepresentation is an action in negligence is supported by Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995). The issue before the court in that case was whether Connecticut's comparative negligence statute, General Statutes § 52-572h, applied to an action seeking damages for commercial losses caused by negligent misrepresentation. General Statutes § 52-572h provided, in subsection (b): "In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . ." Id., 580 n. 16. The court held that an action for purely commercial losses was not an action for damage to property. Id., 583-84. The court nonetheless held "as a matter of common law, that the policy of the comparative negligence statute, § 52-572h, applies to negligence actions where only commercial losses are sustained." Id., 586. What is significant for present purposes, however, is that the court never intimated that an action for negligent misrepresentation was anything other than an action for negligence.
This court, therefore, holds that an action for negligent misrepresentation is governed by the negligence statute of limitations, General Statutes § 52-584. Since the plaintiff was terminated on May 30, 2002, and did not bring suit until May 7, 2005, the plaintiff's action for negligent misrepresentation is barred by the statute of limitations.
Even if this were not so, the defendants' motion would still be granted as to the third count on other grounds. The rule with respect to the tort of negligent misrepresentation is as follows: "One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). The evidentiary submissions by the parties show that there was no reliance by the plaintiff on Bickley's statement during the twenty-four hours between the time the statement was made and the time the plaintiff was discharged. Nor, for reasons discussed in part I, supra, may the plaintiff claim reliance on the progressive discipline policy in the Employee Handbook. The defendants' motion for summary judgment as to the third count is granted.
IV
The fourth count is for intentional infliction of emotional distress. The plaintiff alleges that the defendants knew that he believed his job was secure, yet they discharged him despite their own representations to the plaintiff, knowing that it would cause him severe emotional distress, which it did. In his brief, the plaintiff seeks to expand the scope of these allegations by claiming that his emotional distress also was caused by the defendants' discharging him "to avoid any payment on the potential workers' compensation claim that the Plaintiff would file." The defendants move for summary judgment, claiming that there is no question that they did not engage in extreme and outrageous conduct, and that the plaintiff did not sustain extreme emotional distress.
Preliminarily, the court addresses whether the plaintiff's argument, that the defendants intentionally visited emotional distress on him by discharging him "to avoid any payment on the potential workers' compensation claim that the Plaintiff would file," is properly before the court. Such an allegation, though made in argument, is nowhere to be found in the fourth count of the complaint. "It is axiomatic that a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint . . . What is in issue is determined by the pleadings and these must be in writing." (Internal quotation marks omitted.) Saye v. Howe, CT Page 9507 92 Conn.App. 638, 642, 886 A.2d 1239 (2005); see also Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). This principle applies when a motion for summary judgment is before the court. Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 410, 279 A.2d 540 (1971); see, e.g., Preville v. Munson, Superior Court, judicial district of Tolland, Docket No. CV 020078212 (September 12, 2006, Sferrazza, J.); Blocker v. Maine Drilling Blasting, Superior Court, judicial district of Middlesex, Docket No. CV 044001329 (August 31, 2006, Booth, J.) [ 42 Conn. L. Rptr. 45]; Stein v. Horton, Superior Court, judicial district of New London, Docket No. 568178 (June 2, 2005, Hurley, J.T.R.); Biber v. Preston, Superior Court, judicial district of New London, Docket No. 559813 (December 23, 2004, Hurley, J.T.R.) ( 38 Conn. L. Rptr. 455, 459-60); Niantic Colonial v. IGA, Inc., Superior Court, complex litigation docket at New London, Docket No. X04 CV 02 0127529 (December 2, 2003, Quinn, J.); Skrobacz v. Sweeney, 49 Conn.Sup. 15, 21 n. 4, 858 A.2d 899 (2003); Greenfield v. Lawrence Memorial Hospital, Superior Court, judicial district of New London, Docket No. 560884 (August 26, 2002, Corradino, J.); Bruder v. New Haven Memorial Veterans Coliseum Authority, Superior Court, judicial district of New Haven, Docket No. CV 94 0367859 (June 24, 1998, Hartmere, J.); Estate of Riggott v. Bartlett, Superior Court, judicial district of New Haven, Docket No. CV 920514789 (December 7, 1995, Wagner, J.) [ 15 Conn. L. Rptr. 507]; Chang v. Novella, Superior Court, judicial district of Danbury, Docket No. 311569 (July 28, 1995, Stodolink, J.). Accordingly, the plaintiff's argument that the defendants discharged him to avoid paying workers' compensation benefits is not before the court on the fourth count.
"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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
The plaintiff claims that he was terminated by the defendants after being falsely accused of violating safety rules. "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!' 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965)." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997); see Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2006). For this reason, the defendants' motion for summary judgment on the fourth count is granted.
In addition, the defendants have sustained their burden with respect to the other elements of the tort." The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 27, 930 A.2d 682 (2007). The defendants have adduced evidence that the plaintiff was discharged for safety violations. The plaintiff claims he was discharged because he was going to file a workers' compensation claim. There is no evidence, nor evidence of circumstances from which an inference could reasonably be drawn, that the plaintiff was discharged because the defendants intended to inflict emotional distress on him or that they knew or should have known that emotional distress was the likely result of their conduct. Nor is there a genuine issue of material fact as to whether the plaintiff sustained severe emotional distress. The plaintiff was never treated by a medical or mental health care provider for emotional distress. While this may not be conclusive of the nonexistence of emotional distress, it is sufficient to require the plaintiff to bring forth some proof of his claim of severe emotional distress. He has not done so. Other than the bald statement in his affidavit that he suffered severe emotional distress, there is no evidence, explanation or elaboration of this claim.
V
In the fifth count the plaintiff alleges that the defendants negligently inflicted emotional distress on him by discharging him "without cause." A cause of action for negligent infliction of emotional distress requires the plaintiff to plead and prove "that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88. "An individual making an emotional distress claim must show that a reasonable person would have suffered emotional distress . . . that . . . might result in illness or bodily harm . . . as the result of the defendant's conduct." (Citation omitted; emphasis in original; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 755, 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." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88. "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." (Internal quotation marks omitted.) Id., 88-89. Since the plaintiff alleges nothing more than a wrongful discharge, the defendants' motion for summary judgment on the fifth count is granted.
VI
In the sixth and final count the plaintiff alleges that his discharge by the defendants violated General Statutes § 31-290a because it was done in retaliation for his making workers' compensation claims. The defendants move for summary judgment on the ground that § 31-290a is inapplicable to the facts of this case or, in the alternative, that the plaintiff has failed to produce evidence suggesting that the defendants terminated the plaintiff's employment because the plaintiff filed a workers' compensation claim. The plaintiff argues that the motion for summary judgment should be denied because there is a genuine issue of material fact as to whether he was fired for exercising his workers' compensation rights, in violation of 31-290a.
General Statutes 31-290a(a) provides: "No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter." The verb "exercised," in this context, means "assert." Merriam-Webster Dictionary (10th Ed. 1998).
"To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." (Internal quotation marks omitted.) Mele v. Hartford, 270 Conn. 751, 769, 855 A.2d 196 (2004). "[T]he plaintiff must show a causal connection between exercising [his] rights under the act and the alleged discrimination [he] suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised [his] rights under the act . . . [T]o establish prima facie case of discrimination, the plaintiff must first present sufficient evidence . . . that is, evidence sufficient to permit a rational trier of fact to find [1] that [he] engaged in protected [activity] . . . [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." (Citation omitted; internal quotation marks omitted.) Moran v. Media News Group, Inc., 100 Conn.App. 485, 494-95, 918 A.2d 921 (2007).
Although at trial, § 31-290a "[c]laims of employment discrimination are evaluated under the burden shifting analysis set forth in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990)"; Moran v. Media News Group, Inc., supra, 100 Conn.App. 493, on summary judgment, as discussed, supra, "[t]he party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Weldy v. Northbrook Condominium Ass'n., Inc., 279 Conn. 728, 734, CT Page 9510 904 A.2d 188 (2006).
The first element of an action pursuant to General Statutes § 31-290a is that the plaintiff engaged in protected activity, which in this case means that he "has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of [the Workers' Compensation Act]." Although in his complaint, the gravamen of this count is alleged to be that the plaintiff's discharge was "done in retaliation for the Plaintiff making Workers' Compensation claims," in his brief, the plaintiff redeploys away from this position and argues that the defendants' knowledge that he had sustained a work-related injury satisfies the requirement that he exercised the rights afforded to him under the Workers' Compensation Act. Prior to his discharge, the plaintiff had not filed a claim for workers' compensation benefits. The issue, then, is whether he had "otherwise exercised the rights afforded to him pursuant to the provisions of" the Workers' Compensation Act.
In Loftus v. Vincent, 49 Conn.App. 66, 713 A.2d 892 (1998), an appeal from the finding of a workers' compensation commission that the defendant employer had discharged the plaintiff in violation of General Statutes § 31-290a, the defendant claimed on appeal that the plaintiff had failed to prove a prima facie case under the statute. The Appellate Court disagreed, saying: "Despite the defendant's claim to the contrary, we conclude that the commissioner's factual findings and the conclusions drawn therefrom adequately satisfy these criteria. The commissioner found that (1) the plaintiff had worked several years for the defendant and had a good work history, (2) after the plaintiff had quit his employment at the gas station, approximately one month before his discharge, the defendant persuaded him to return and allowed him to earn substantial amounts of overtime pay at the gas station, (3) although the defendant briefly discussed a customer complaint with the plaintiff at the start of his shift on the date he was injured, their relationship remained harmonious until the plaintiff telephoned him about his injury and the defendant realized that a workers' compensation claim might arise and (4) the reaction of the defendant, when he received the note from a physician directing a suspension of the plaintiff's employment for three days, was highly significant in establishing that the plaintiff's discharge had resulted from the defendant's concern about his liability for a workers' compensation claim. Those findings are adequately supported by the evidence and sufficiently establish a prima facie case of a violation of § 31-290a(a)." (Emphasis added.) Id., 70-71.
In Loftus, "[t]he plaintiff testified . . . that, in their telephone conversation the morning after the injury occurred, the defendant had talked about the workers' compensation claim and his concern about such a claim." Loftus v. Vincent, 49 Conn.App. 66, 71 n. 2, 713 A.2d 892 (1998).
Loftus seemingly holds that an employer's " realiz[ation] that a workers' compensation claim might arise." (Emphasis added.) Loftus v. Vincent, supra, 49 Conn.App. 71, is sufficient to satisfy the statutory requirement that the employee has . . ."exercised the rights afforded to him pursuant to the provisions of [the Workers' Compensation Act]." If so, it conflicts with the subsequent statement of the Supreme Court in Mele v. Hartford, supra, 270 Conn. 778, that "[k]nowledge of a work-related injury, without more, is not, as a matter of law, knowledge that a claim was filed for the injury or that any other right afforded by the act had been exercised." (Emphasis added.) Where such a conflict in the law exists, this court is, of course, duty bound to follow the precedent of the Supreme Court. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 676 A.2d 831 (1996).
Here, there is more than merely the defendant's knowledge of the plaintiff's work-related injury. The defendant, by its human resources administrator Mary Stephens, filed an employer's first report of occupational injury or disease, as required by General Statutes § 31-316, Bickley told the plaintiff "we're going to pay you," and an employee of the defendant drove the plaintiff to the hospital. None of these acts, however, individually or collectively, by any reasonable stretch of the English language, amount to the plaintiff's exercising the rights afforded to him pursuant to the provisions of the Workers' Compensation Act.
General Stat'tes § 31-316 provides: "(a) Each employer shall keep a record of the injuries sustained by his employees in the course of their employment that result in incapacity for one day or more. Each employer shall send to the chairman of the Workers' Compensation Commission, in duplicate, each week, or more often if so directed, a report of all injuries that the rules prescribed by the chairman determine, including the time of each injury, together with notices of claims for compensation that have been served upon the employer under section 31-294c, within one week of the receipt of the notices of claims. The employer shall inform the chairman as to the extent to which he provides accident and health insurance and life insurance coverage for his employees, and his payment or contribution requirements for any employee welfare plan, as defined in section 31-284b. No other report of injuries to employees shall be required by any department or office of the state from employers. The duplicates of the reports shall be immediately transmitted to the Labor Commissioner.
"(b) Upon determining that the employer failed to report injuries as required by subsection (a) of this section, the workers' compensation commissioner may increase the award for compensation for the employee's injuries proportionate to the prejudice that the employee sustained due to the employer's failure to file."
The plaintiff argues that the "Judges of the Superior Court have held that the actual filing of a workers' compensation claim is not required by § 31-290a and the fact that the employer knew of the work related injury is sufficient to satisfy the first prong of the prima facie test." That the filing of a workers' compensation claim is not required is clear. However, this court disagrees that employer's mere knowledge of the employee's work-related injury constitutes the employee's exercise of the rights afforded to him pursuant to the provisions of the Workers' Compensation Act. The cases cited by the plaintiff are all Superior Court cases that derive from the decision of Judge Lewis in Bundock v. Waste Management of Connecticut, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 92 0123903 (January 26, 1993, Lewis, J.) ( 8 Conn. L. Rptr. 263), on a motion to strike involving the sufficiency of the plaintiff's pleading, not a motion for summary judgment. The body of the brief decision in Bundock states: "It is clear that at the time of discharge in August 1991, the plaintiff had not yet filed a claim for workers' compensation, and hence the termination of his employment could not constitute a violation of General Statutes § 31-290a(a) for that reason. Paragraph 9 of the amended complaint, however, alleges that plaintiff was discharged because he notified the defendant that he `would exercise the rights afforded him under the Connecticut Workers' Compensation Act.' This allegation sufficiently states, in my opinion, a cause of action for a violation of § 31-290a(a), in that it is claimed that discharge followed notice that the plaintiff `otherwise exercised the rights' afforded him by the statute. If the actual filing of a claim was a prerequisite to a recovery under the statute, there would be no need to refer to someone who `otherwise exercised' his rights. It would seem that this phrase encompasses an announcement to an employer of a present intent to file a compensation claim in the future, which then precipitates a discharge from employment. This interpretation is in accord with the description of § 31-290a in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 52, 578 A.2d 1054 (1990) . . ." Bundock v. Waste Management of Connecticut, Inc., supra, 8 Conn. L. Rptr. 263.
Thus, Bundock does not go so far as the plaintiff claims and is distinguishable from the facts of this case. Here, although the plaintiff claims in his affidavit that the defendants terminated him "with the knowledge that I would be filing a workers' compensation claim for my work related injury," the affidavit is not made on personal knowledge nor does it "show affirmatively that the affiant is competent to testify to the matters stated therein" as required by Practice Book § 17-46; nor, importantly, is there any evidence in the record that the plaintiff at any time suggested to the defendants that he might be exercising his rights under the Workers' Compensation Act. Accordingly, the defendants have shown that there is no genuine issue of material fact as to the first element of the plaintiff's action under General Statutes § 31-290a and that they are entitled to judgment as a matter of law on that count.
If, upon further review it is determined that the court is mistaken in this holding, this court also holds that there is a genuine issue of material fact as to the remaining elements of the plaintiff's cause of action under General Statutes § 31-290a, given the temporal proximity between the plaintiff's injury and his discharge by the defendants. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) ("The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." (quoting Cjfra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (finding that the causal connection requirement was satisfied simply because the plaintiff's discharge came less than two months after one complaint and just ten days after another), abrogated in part on other grounds by AMTRAK v. Morgan, 536 U.S. 101, 22 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Manoharan v. Columbia University College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action."); see also Feingold v. New York, 366 F.3d 138, 156-57 (2d Cir. 2004).
It is a fair question as to why the Legislature did not draft the 1984 legislation now codified as § 31-290a to simply proscribe an employer's discharge of an employee because of a work-related injury. Such a proscription would have more fully protected employees. See Lombardi v. Tilcon Connecticut, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 4007485 (October 3, 2007, Taylor, J.) ("To hold otherwise would disadvantage claimants who are discriminated against before they have perfected their claims under the Act and are merely in the `process of exercising [their] rights.' For example, an employer of a seriously injured worker might otherwise be motivated to discriminate against the injured worker before the worker's rights are fully `exercised.'"). The legislative history is unilluminating on this question. However, "`[w]e must construe and apply the statute as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions.' Granniss v. Weber, 107 Comm. 622, 629, 141 [A. 877 (1928)]." State ex rel. Heimov v. Thomson, 131 Conn. 8, 12, 37 A.2d 689 (1944).
The defendants' motion for summary judgment is granted.