MEMORANDUM OF DECISION, RE MOTION #113 — MOTION TO STRIKE

RICHARD A. ROBINSON, JUDGE.

On January 17, 2006 the plaintiff filed a request for leave to file an amended complaint. On February 1, 2006 the defendants filed an objection to the plaintiff's request. On March 28, 2006 the Court (Domnaiski, J.) overruled the defendants' objection and the Amended Complaint dated January 17, 2006 became the operative complaint.

Count One of the Amended Complaint sounds in the tort of intentional infliction of emotional distress. The plaintiff alleges that he was hired by the defendant, Anstro Manufacturing (hereinafter "Anstro") as a toolmaker. He alleges that on or about September 9, 1996 he was promoted to the position of "Production Manager." He further alleges that at all times his work performance was "satisfactory or better."

The plaintiff alleges that throughout the course of his employment he and other employees of Anstro were verbally belittled and abused by the defendant Robert Bosco (hereinafter "Bosco") the President of Anstro. On more than one occasion the defendant Bosco referred to the plaintiff and the plaintiff's co-workers as "dumb mother fuckers" and accused them of being "brain dead" in the presence of other employees. On another occasion the defendant Bosco told the plaintiff and the plaintiff's co-workers that he wouldn't let them "lick [his] dead cat's balls," and that his "dead cat could do a better job" than the plaintiff and other employees.

On May 7, 2003 Bosco allegedly singled out and verbally abused the plaintiff. He also threatened the plaintiff with termination and intimidated him with threats of surveillance.

On March 25, 2004 Bosco allegedly singled out and verbally abused the plaintiff. He also threatened the plaintiff with termination and intimidated him "by spitting on him and foaming at the mouth."

On another occasion the Defendant Bosco allegedly stated that he would not let the plaintiff "lick the sweat off [his] balls."

On or about March 26, 2004 the plaintiff requested his personnel file from the Defendant Anstro.

On or about March 31, 2004 the defendant Bosco allegedly threatened the plaintiff with unemployment if he were to seek legal advice or assistance. The plaintiff then informed Bosco that he would not be spoken to in such an abusive manner.

The plaintiff alleges that on or about May 12, 2004 the defendants forced him to resign from his position with Anstro.

Anstro was aware of Bosco's actions but did not take any remedial action.

The plaintiff alleges that as a result of the defendants' actions he suffered a loss of employment, income and benefits. He also suffered from severe emotional distress causing him to develop acid reflux disease, extreme stress and depression, a rise in blood pressure, sleeplessness, loss of concentration, loss of motivation and a loss of his desire to work. As a result of the same the plaintiff had to seek medical treatment.

The plaintiff alleges that Bosco intended to inflict emotional distress upon the plaintiff and knew or should have known that the emotional stress was a likely result of his conduct. The plaintiff further alleges that Bosco's conduct was extreme and outrageous.

On April 17, 2006 the defendants filed a motion to strike the subject complaint in its entirety.

Discussion

Whereas the defendant has filed a motion to strike, a brief review of recent case law concerning the motions to strike is warranted:

A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).

Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).

Count One: Intentional Infliction of Emotional Distress

"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." (Citation omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104.

"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 omitted.) Little v. Yale University, 92 Conn.App. 232, 239-40, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

In the present case, the plaintiff has not alleged sufficient facts to show that the defendants' conduct toward him was extreme and outrageous. The only conduct alleged to have occurred concerning him is that the defendant Bosco would yell at the plaintiff and other employees and would curse and say some rather rude things. Even upon viewing these allegations in the light most favorable to the plaintiff, the court finds that they are not legally sufficient to sustain an action sounding in the intentional infliction of emotional distress.

The defendants' motion to strike one is granted.

Count Two: Assault

The plaintiff alleges in second paragraph of this count that "The defendants' intentional acts and omissions, particularly the events of March 25, 2004, caused the Plaintiff imminent apprehension of harmful or offensive contact and to fear for his safety."

"A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another." Dewitt v. John Hancock, 5 Conn.App. 590, 594, 501 A.2d 768 (1985). Assault has also been defined as `any attempt with force or violence to do corporeal offense to another, coupled with the present apparent ability to complete the act,' D. Wright J. FitzGerald W. Ankerman, Connecticut Law of Torts (3rd ed. 1991), Sec. 6, p. 8. Thus actual, physical contact (technically defined as `battery') is not necessary to prove civil assault. Boccanfusco v. Gorham, judicial district of Fairfield at Bridgeport, d.n. CV 00-0379584 5 (Jan. 22, 2004, Stevens, J.).

Upon reviewing the allegations of the complaint in the plaintiff's best light, this court could not find sufficient facts to support an allegation that the plaintiff was placed in a position of imminent apprehension of harmful or offensive contact and to fear for his safety.

The motion to strike count two is granted.

Count Three: Battery

The plaintiff alleges that the defendant Bosco's actions on May 25, 2004, specifically spitting upon the plaintiff constitutes the tort of battery. "An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." Alteiri v. Colasso, 168 Conn. 329, 334, n. 3, 362 A.2d 798 (1975), quoting 1 Restatement (Second) Torts § 13 (1965).

The defendants assert that the subject count should be stricken for reason that the Workers' Compensation Act precludes the plaintiff from bringing this claim against the defendants. Section 31-284(a) C.G.S. provides in pertinent part that: "An employer who complies with the requirements of [the Workers' Compensation Act] shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . ."

"In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), our Supreme Court considered whether an employer could be subject to common-law tort liability for a battery that a supervisory employee committed on a co-employee. The court explained that `[i]f the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort; if the assailant is only another employee who cannot be so identified, then the strict liability remedies provided by the Work[ers'] Compensation Act are exclusive and cannot be supplemented with common-law damages.'" McCoy v. City of New Haven, 92 Conn.App. 558, 563 (2005).

The plaintiff has not alleged in his complaint that defendant Bosco is an alter ego of the defendant Anstro; therefore this count of the complaint does not allege a legally sufficient cause of action against the corporate defendant or the defendant Bosco as employers of the plaintiff

CT Page 16941

As to the defendant individually, as was noted by counsel for the defendants, the plaintiff conceded at previous argument that any "spitting" that was done by Bosco was when errant spittle landed on the plaintiff after it came from Bosco's mouth as he was yelling at the plaintiff (see transcript of January 17, 2006, at page 15). The allegations of this count do not contain all of the elements to sustain a cause of action sounding in battery against the defendant Bosco and is therefore legally insufficient as to said defendant. See Alteiri v. Colasso, supra.

The motion to strike count three is granted.

Fourth Count — Tortious Interference With Contractual Relations

The plaintiff alleges that he had a contractual or beneficial relationship with the defendant Anstro and that the defendant Bosco was aware of said relationship. The plaintiff further alleges that Bosco intended to interfere with said relationship.

"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).

"The general rule is that an agent may not be charged with having interfered with a contract of the agent's principal. Selby v. Pelletier, 1 Conn.App. 320, 327, n. 4 (1984). An agent can however be held liable for tortious interference "if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Citations omitted; internal quotation marks omitted.) Wellington System, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168 (1988).

"However, it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties. Hiers v. Cohen, 31 Conn.Sup. [305], 312, 329 A.2d at 612-13; R and W Hat Shop, Inc. v. Sculley, 98 Conn. 1, 14, 118 A. 55 (1922)." (Emphasis in original.) Paint Products Co. v. Minwax Co., Inc., 448 F.Sup. 656, 658 (D.Conn. 1978). "[A]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . ." Boyce v. American Liberty Insurance Co., 204 F.Sup. 317, 318 (D.Conn. 1962) cited in Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

The plaintiff alleges in his complaint that Bosco was the president of Anstro at the time that the alleged interference occurred. The plaintiff has not alleged that Bosco was acting within his scope of duties but used his corporate power improperly for personal gain and therefore the allegations are insufficient to sustain a cause of action for tortious interference with contractual relations.

The motion to strike count four is granted.

Count Five: Wrongful Discharge

The plaintiff alleges in the fifth count of his complaint that he was dismissed from Anstro because he made a demand to see his personnel file and refused to tolerate "any more outrageous behavior by Bosco." He further alleges that his dismissal violated public policy as codified in § 31-126(b) C.G.S.

Section 31-128b of the Connecticut General Statutes concerns an employee's access to his or her own personnel file. This statute provides in pertinent part that: "Each employer shall, within a reasonable time after receipt of a written request from an employee, permit such employee to inspect his personnel file if such a file exists . . ."

Our Supreme Court has "recognized a common-law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Emphasis in original; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).

This court agrees with the defendant assertion that the court should strike the portion of count five concerning the allegation that the "plaintiff's `dismissal' was based on his `refusal tolerate any more outrageous behavior by Bosco.'" However, as to the allegations concerning the plaintiff's termination because he asked to review his personnel file, assuming the truth of the facts as alleged and construing the complaint in the plaintiff's best light, the court finds that the allegations in this count are sufficient to sustain a cause of action for wrongful discharge and the motion to strike count five is denied.

Count Six: Negligent Supervision

The plaintiff alleges that his employer, the defendant Anstro owed him a duty to exercise reasonable care in the hiring, retention and supervision of its employees. The plaintiff further alleges that Anstro breached said duty because it was aware of Bosco's extreme and outrageous behavior but failed to take any action against him.

"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of forseeability." Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV01 0456879 (July 16, 2004, Arnold, J.). An essential element to the tort of negligent supervision is that the conduct of the employee whom the employer is accused of failing to supervise was itself tortious. Ahern v. Kappalumakkel, judicial district of Ansonia-Milford at Milford, Docket No. CV 01-0075617-S (Dec. 1, 2004, Carroll, J.) ( 38 Conn. L. Rptr. 315), aff'd, 97 Conn.App. 189 (2006).

Whereas this court has already stricken the counts wherein the plaintiff alleges that the actions of the defendant Bosco were tortious, the instant count is not legally sufficient and must be stricken.

The motion to strike count six is granted.

Count Seven: Constructive Discharge CT Page 16944

A constructive discharge occurs when an employer indirectly precipitates an employee's termination, by making that employee's "working conditions so intolerable that the employee is forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2nd Cir. 1983). "Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge . . . Through the use of constructive discharge, the law recognizes that an employee's `voluntary' resignation may be, in reality, a dismissal by an employer . . . Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily . . . Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign . . . Accordingly, [a] claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." (Citations omitted; emphasis in original; internal quotations omitted.) Brittell v. Department of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998).

The motion before the court is a motion to strike not a motion for summary judgment. In deciding upon a motion to strike or a demurrer, a trial court must take the facts to be those alleged in the complaint; Blancato v. Feldspar Corporation, 203 Conn. 34 (1987); DeMello v. Plainville, 170 Conn. 675, 677 (1976); and "cannot be aided by the assumption of any facts not therein alleged." Fraser v. Henninger, 173 Conn. 52; Wexler Construction Co. Housing Authority, 144 Conn. 187, 194 (1956).

Although a motion to strike and a motion for summary judgment may be used to challenge the legal sufficiency of a pleading, the court must apply different standards to said motions. In a motion to strike, the court is required to assume as true all well pleaded facts. Eskine v. Castiglia, 253 Conn. 516, 522 (2000). While on the other hand, the court grants a motion for summary judgment when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.

Whereas the issue raised by the moving party would require the court to make assumptions concerning the facts cited in the Amended Complaint, and whereas the issue is properly addressed by way of a motion for summary judgment, the motion to strike count seven is denied.

Conclusion

For the reasons stated herein the motion to strike counts one, two, three, four and six are granted. The motion to strike is denied as to counts five and seven.

So ordered.