MEMORANDUM OF DECISION RE MOTION TO STRIKE #101

JOHN W. PICKARD, JUDGE.

Before the court is a motion to strike filed by the defendant, East Coast Lightning Equipment, Inc., seeking to strike counts four and five of the plaintiff's complaint. For the reasons stated below, the motion must be granted.

The plaintiff, Suzanne Fecteau, filed a complaint on October 22, 2007, alleging the following facts. The plaintiff worked for the defendant as a machine operator. On or about April 21, 2005, one of the plaintiff's co-workers, Jose, "rubbed his rear end against the plaintiff's" during work hours. The plaintiff made a complaint to her immediate supervisor, Chris Schroeder, about the incident. After this complaint, Jose began to harass the plaintiff "by sticking his tongue or his hand" at the plaintiff as she would pass him on the factory floor and make statements in Spanish that the plaintiff believes were of a sexual nature.

In addition, the plaintiff alleges that Jose's family members, who also worked at the factory, harassed her, including his brother, who would elbow the plaintiff in the chest when she passed. After these incidents, the plaintiff again complained, this time to the owner of the defendant company, Mark Morgan. Morgan stated that he would speak to Jose and his brother during performance reviews in June 2005. Following this complaint, Jose's aunt, who also worked for the defendant, and Jose, began to sabotage the plaintiff's work product and make false complaints about her to Schroeder. On August 1, 2005, Morgan terminated the plaintiff's employment. The plaintiff claims that she "was targeted by the defendant for harassment, abuse and retaliation, and was eventually terminated solely on account of the plaintiff's sex/gender, rejections of unwanted sexual advances and harassment, and repeated complaints of sexual harassment to management." The plaintiff further claims that the defendant then created fraudulent documents of alleged employment misconduct on the part of the plaintiff, and put those documents in her personnel file and tampered with her payroll records. According to the plaintiff's complaint, she filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CHRO") alleging the above facts. On September 25, 2007, the plaintiff received a release of jurisdiction from the CHRO. The plaintiff attached a copy of the release of jurisdiction to the current complaint.

In counts one, two, and three, the plaintiff alleges violations of the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-58 et seq. The defendant's motion to strike seeks to strike count four, alleging intentional infliction of emotional distress, and count five, alleging wrongful termination, on the grounds that, as to count four, the plaintiff has failed to allege facts that are sufficiently outrageous on the part of the defendant to support a claim for intentional infliction of emotional distress, and as to count five, that the plaintiff's claim for wrongful termination is precluded by available statutory remedies.

Standard

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

Count Four

The defendant seeks to strike count four on the ground that the plaintiff has failed to allege facts that are sufficiently outrageous on the part of the defendant to support a claim for intentional infliction of emotional distress. The plaintiff responds that she has alleged sufficient facts to support her claim, and that the defendant fails to acknowledge that such abuse can arise in the context of an employer/employee relationship.

"Liability [for intentional infliction of emotional distress] 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!" Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004). "[I]t 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." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002).

The defendant claims that the conduct alleged on the part of the defendant is not sufficient to meet this threshold. In defense of her position, the plaintiff cites to several cases, including Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.), where the court dealt with an intentional infliction of emotional distress claim in an employer/employee context. The court, relying on the principle that "[t]he extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests," held that allegations of "a history of abusive conduct towards [the plaintiff], culminating in her termination during which he screamed at and berated her, stood over her chair threateningly, thereby preventing her from getting up, and falsely declared that she was terminated for `insubordination,'" were sufficient to withstand a motion to strike. Wilk v. Abbott Terrace Health Center Inc., supra, Superior Court, Docket No. CV 06 5001328, citing Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991). See also Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.) ("The plaintiff . . . alleged that [her supervisor] failed to take action to prevent other employees from harassing her after promising to do so, subjected the plaintiff to a "screaming tirade" in connection with the false sexual harassment allegations, entered a charge of sexual harassment in the plaintiff's file after an investigation found the claims meritless, and . . . admonish[ed] the plaintiff for flaunting her body even though she knew the plaintiff to be sensitive on that topic"); Benton v. Simpson, 78 Conn.App. 746, 829 A.2d 68 (2003) (court upheld finding of emotional distress where supervisor told employee plaintiff's they were a "cancer" and constantly berated and swore at them while banging on file cabinets); Strode v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 99 0432459 (November 8, 2002, Zoarski, J.) ("[r]easonable minds could disagree on the issue of whether an employee's filing of a false accusation that he was assaulted by a coworker satisfies the extreme and outrageous conduct element of cause of action for intentional infliction of emotional distress"); Centi v. Lexington Health Care Center, Superior Court, judicial district of New Haven, Docket No. CV 96 0383535 (May 1, 1997, Licari, J.) (defendant supervisor set unrealistic goals for plaintiff, came to her house unannounced one day, changed her assignments, and gave her a pretextual reason for termination).

Here, the plaintiff's complaint alleges that the defendant did not adequately respond to her complaints regarding her coworkers, that the defendant tampered with her personnel records, and wrongfully terminated her employment. While the plaintiff alleges an employment relationship, there are no allegations that the defendant abused this relationship to encourage the harassment of the plaintiff or that the defendant harassed the plaintiff in any way. In Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV 03 0472301 (January 11, 2005, Corradino, J.) ( 38 Conn. L. Rptr. 533), the court dealt with a similar situation to the case at hand. There, the plaintiff was the Waterbury Regional Director of the Connecticut Small Business Development Center. The plaintiff claimed that the State Director of the program, Dennis Gruell, subjected her to abusive treatment and harassment, and had an inordinate hatred of women. The plaintiff claimed that Gruell verbally abused her, putting his hand in her face and telling her "I won't take any shit from you. Don't open your mouth. You understand me, don't open your mouth." Oppenheim v. Gruell, supra, 38 Conn. L. Rptr. 539. Gruell repeated these sentiments on other occasions, at one point pounding on a table. The plaintiff also alleged that Gruell wanted her to sign some papers, and when she expressed reluctance, he pounded on a table a second time and blocked her from leaving a room, repeating a statement similar to the one above. With these facts, the court denied a motion for summary judgment on the grounds that there were insufficient facts to state a prima facie case for intentional infliction of emotional distress. The plaintiff had also alleged intentional infliction of emotional distress claims against Virginia Miller and Thomas Gutteridge. Miller served as Assistant Vice Chancellor for Human Resources, and Gutteridge was Dean of the University of Connecticut School of Business and ultimately in charge of the Center at which the plaintiff worked. The court found that Miller and Gutteridge, despite accusations of attempting to destroy documents in the plaintiff's personnel file and knowledge of Gruell's bias and hostile behavior toward females, were not sufficiently connected to the actions of Gruell to support a claim for intentional infliction of emotional distress. Oppenheim v. Gruell, supra, 38 Conn. L. Rptr. 543 ("Even assuming the court could rely on generalities, if such activity did go on in this case there is no evidence that its continuance was anything more than careless exercise of management responsibilities as opposed to a general plan and course of conduct permitted to go on intentionally to harass the plaintiff.")

Such is the case here. The plaintiff has not alleged that the defendant in any way encouraged the conduct of Jose, his brother, or his aunt. The acts alleged by the plaintiff are not sufficiently "extreme and outrageous" to support a claim for intentional infliction of emotional distress, and therefore the defendant's motion to strike count four is granted.

Wrongful Termination

The defendant seeks to strike count five on the ground that the plaintiff's claim for wrongful termination is precluded by available statutory remedies. The defendant claims that the plaintiff has a remedy under the provisions of the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-58 et seq. The plaintiff responds that she has properly alleged that "[i]n intentionally ignoring the Plaintiff's complaints of sexual harassment, causing the plaintiff to continue to endure sexual harassment, retaliating against the plaintiff with termination for complaints of sexual harassment, tampering with the plaintiff's personnel file and payroll records, all resulting in plaintiff's discharge, the defendant violated one or more public policies."

In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the Supreme Court "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.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000). This cause of action is limited however. "In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: `A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.'" (Emphasis added.) Id., 159-60.

In Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159, the Supreme Court held that "even if we were to assume that the plaintiff's termination violated the public policy embodied in § 31-51m, we would still conclude that the plaintiff's claim is precluded by virtue of the existence of a statutory remedy under that statute . . . Section 31-51m(c) provides in relevant part: `Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation . . .' General Statutes (Rev, to 1993) § 31-51m(c). The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31-51(b)." Id., 161-62.

Similarly, § 46a-100 provides, in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ." This provision provides for a statutory remedy, and precludes the plaintiff from bringing a common-law claim for wrongful discharge. See Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn.App. 648 (plaintiff can bring wrongful discharge claim only when he or she is "otherwise without remedy"); see also, Napoleon v. Xerox Corp., 656 F.Sup. 1120, 1125 (Conn. 1987) (plaintiff's claim for wrongful discharge preempted by the CFEPA).

Accordingly, the defendant's motion to strike count five is granted.