Opinion
No. CV-07-5008011-S
October 22, 2008
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendant, United Technologies Corporation ("UTC"), has moved for summary judgment on the grounds that there is not evidence from which a reasonable jury could find that UTC engaged in extreme and outrageous conduct with intent to inflict severe and extreme emotional distress upon the plaintiff, Mark Curran. For the reasons set forth below, the court grants the motion for summary judgment.
Statement of Facts
The defendant has relied on the allegations of the complaint and has also submitted the transcripts of the depositions of the plaintiff, Richard Livingston, David Durbin, Sr., Gary Nester, Jose Martinez and Maria Davila along with other documents to establish the facts upon which it bases this motion. Those facts are summarized as follows.
This is not an action in which the plaintiff claims an actual or constructive termination of his employment. The plaintiff is currently a jet engine mechanic at UTC's Pratt Whitney division in Middletown, Connecticut. He has been employed by Pratt Whitney for approximately 28 years.
The plaintiff's complaint alleges that Richard Livingston, a coworker at Pratt Whitney, has made harassing statements and violent threats against him and that, although UTC has taken actions to separate the plaintiff from Livingston, it has, neverthless, forced the plaintiff to work in an "unsafe and hazardous environment."
Richard Livingston has been employed by UTC as a jet engine mechanic at the same location for approximately 33 years. The plaintiff is a fifty-two year old male, who is approximately six feet, two inches tall and weighs about 250 pounds. Livingston is fifty-one years old, five feet, six inches in height and weighs approximately 190 pounds. He is a recent survivor of a devastating motorcycle accident in which he suffered serious injuries which caused him to be out of work for about eight months.
The plaintiff worked in the same department as Livingston for five years. Prior to the motorcycle accident, both men got along well. In March 2006, however, after Livingston returned to work following the accident, the plaintiff made a verbal complaint about Livingston to UTC, alleging verbal abuse and harassing comments. The plaintiff claimed that Livingston was unduly critical of the plaintiff's job performance and called him "lazy," "stupid," and "a useless piece of shit."
Following the plaintiff's verbal complaint about Livingston in March 2006, UTC personnel did an investigation. Thereafter, UTC suspended Livingston's lead man duties and UTC and the plaintiff agreed that the plaintiff would be temporarily moved to another department within the same building as a short-term solution. Thereafter, Livingston worked alongside the plaintiff for only a few days in June 2006 due to an increased workload in the department where plaintiff previously worked. On June 14, 2006 the plaintiff and Livingston argued about the weight ratings of a company hoist. According to the plaintiff, Livingston told him that if he "did not want to do [his] fucking job," Livingston would "move [him] off the fucking job and get somebody in [t]here that want[ed] to do the job."
In March 2007, after he had already filed this action, the plaintiff leaned though third-hand information that after the June 14, 2006 argument with Livingston, Livingston allegedly told Jose Martinez, Livingston's supervisor, that he "wanted to rig the hoist so it would come down and crash on [plaintiff]." Jose Martinez has stated that he heard Livingston make this statement, but that it was made jokingly. Nevertheless, Martinez admonished Livingston for what he believed was an inappropriate joke. Livingston later apologized to the plaintiff for the remarks.
Since the plaintiff first complained about Livingston, UTC has taken steps to address those complaints. In addition to relieving Livingston of his lead man duties and reassigning the plaintiff temporarily to a different department, UTC's Human Resources department monitored Livingston's behavior for problems. UTC also interviewed a number of employees to determine the nature and extent of Livingston's alleged comments and concluded that there was no evidence to suggest that Livingston was dangerous. UTC transferred Livingston to another department to separate him from the plaintiff. Finally, in late 2006, UTC sought to further allay the plaintiff's concerns by permanently moving the plaintiff to a different building from Livingston.
Since December 2006 the plaintiff has only seen Livingston when the plaintiff has chosen to enter the building where Livingston works.
The efforts made by UTC to separate the plaintiff and Livingston have apparently been successful. However, the plaintiff still maintains that UTC is liable for intentional infliction of emotion distress because it should have either terminated Livingston's employment, or transferred him to a location other than Middletown.
The plaintiff's claim is based on the allegation that Livingston is a real danger to the plaintiff. This allegation is based on the remarks concerning the hoist, of which the plaintiff learned only after he filed suit, and on the fact that Livingston sometimes wears an NRA t-shirt and on several occasions prior to March 2006, when he has become angry about something happening at work, Livingston has said he would like to shoot someone. For example the plaintiff claims that in February of 2006 Livingston was complaining about UTC's management and stated, "Those stupid fucking managers. They don't know what the hell they're doing . . . I ought to just come in here myself and handle this and, you know, shoot him." Affidavit of Mark Curran ¶ 8.
The plaintiff admitted at his deposition that Livingston never made any threats directly to him, that he had never seen Livingston with a gun, and that he had not complained to the police or sought any sort of protective order, and that he has not had any work disputes or argument with Livingston since 2006. The plaintiff has the ability to transfer to second shift at Pratt Whitney, but his alleged fear of Livingston has not caused him to do so. The plaintiff also testified at his deposition that he had not sought treatment from a physician, therapist or psychologist regarding the emotional distress he has experienced.
Discussion of the Law and Ruling
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); 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. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish: "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a 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." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). The question of whether a defendant's conduct is sufficient to satisfy the extreme and outrageous element is in a first instance for the court. Carnemolla v. Walsh, 75 Conn.App. 319, 331, 815 A.2d 1251 (2003). Liability for intentional infliction of emotional distress can be 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 of an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!
Carrol v. Allstate Insurance Co., 262 Conn. 433, 443 (2003) (quoting Restatement (Second) § 46 Torts, comment d (1965)).
In assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function. Hartmann v. Gulf View Estates Homeowners Ass'n, 88 Conn.App. 290, 295, 869 A.2d 275 (2005). In exercising this responsibility this court must determine whether the plaintiff has alleged conduct which a reasonable fact finder could find to be extreme and outrageous. Id.
In an employment setting, employees "reasonably should expect to be subject to routine employment-related conduct" including performance evaluations, decisions involving transfer, demotion, promotion and compensation and "disciplinary or investigatory action arising from actual or alleged employee misconduct." Perodeau v. City of Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002). While employees should not expect to be subject to conduct that "transgresses the bounds of socially tolerable behavior," the Court has stated that "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." Id. Emotional distress of the type described by the plaintiff is not actionable because employees "reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like." Id.
Courts have consistently rejected intentional infliction of emotional distress ("IIED") claims where a plaintiff's principal claim against a defendant-employer is its failure to deter, prevent or assist plaintiff in eradicating harassing behavior. See Perodeau v. Hartford, supra, at 756-58; Kilduff v. Cosential, Inc. 389 F.Sup.2d 12, 22 (D.Conn. 2003). In Kilduff the court dismissed an IIED claim where the plaintiff alleged that her employer failed to act in the face of her complaint which detailed sexually harassing conduct by her supervisor.
In Morrissey v. Yale University, 268 Conn. 426, 844 A.2d 853 (2004), the Court affirmed a summary judgment granted in favor of the defendant employer. The trial court described the facts as follows:
The evidence submitted to the court, viewed in the light most favorable to the plaintiff, establishes that Linda Morrissey, the plaintiff, was employed by Yale University (Yale) as an administrative assistant in the department of epidemiology and public health (department). Yale also employed Carmen Baez as Morrissey's coworker in the department. Yale had knowledge that Baez was addicted to painkillers, fired her, and then rehired her. Yale knew of "tension" between Morrissey, on the one hand, and Baez and Baez's boyfriend, Percy Penn, on the other. Penn occasionally visited Baez at her place of work. On December 4, 1997, Morrissey sent a letter to a supervisor informing him of two derogatory comments made to her by Penn. On one occasion Penn said, "Boy, did you get fat." On a second occasion, Penn said, "Well I guess Mrs. Morrissey wouldn't know anything about kids since she doesn't have any, her husband must have been shooting blanks." On January 18, 1999, Baez pointed her finger at the plaintiff and stated, "Sooner or later I'm going to kick your fucking ass."
Morrissey v. Yale University, 48 Conn.Sup. 394, 395, 846 A.2d 234 (2003).
After reviewing the law, the trial court stated: "It is unlikely, at best, that this element could be satisfied in a hypothetical case against the actual speakers, Baez and Penn. It is clear that this element cannot be satisfied, on this evidence, in Morrissey's action against Yale here. The recitation of the facts recounted above to an average member of the community would not conceivably arouse such a community member's resentment against Yale to the extent that she would exclaim, `Outrageous!'" Id., at 396.
Similarly, in the present case, it is unlikely that the plaintiff has stated a claim for intentional infliction of emotional distress against Livingston and it is equally clear that a jury could not conceivably find that the conduct of UTC with respect to the plaintiff is outrageous. Moreover, in addition to failing to meet the extreme and outrageous prong of the test enunciated by the Court in Petyan v. Ellis, supra, the plaintiff has not met the fourth prong of the test. He has sought no medical or psychological treatment whatsoever and there is no evidence that his emotional distress was severe. For the foregoing reasons the Motion for Summary Judgment is granted.