Opinion
No. LLICV106002940S
March 10, 2011
MEMORANDUM RE SHORT CALENDAR 2/28/11-#106
The issue before the court is whether to grant the defendant's motion to strike counts two and three of the plaintiff's complaint on the ground that the counts fail to state claims for negligent and intentional infliction of emotional distress, respectively.
I FACTS
On November 4, 2010, the plaintiff, Joy Fogarty, filed a three-count revised complaint against the defendant, The Forman School, alleging breach of contract, negligent infliction of emotional distress and intentional infliction of emotional distress resulting from her employment and the termination of her employment with the defendant. The plaintiff alleges that she was an employee of the defendant for several years on the medical staff. According to the plaintiff, during the course of her employment with the defendant, the director of the defendant's health center, Wendyce Doyon, began systematically traumatizing the plaintiff by way of demeaning, harassing, insulting and berating the plaintiff on a regular basis. On October 1, 2009, the plaintiff's employment was terminated by the defendant.
On November 23, 2010, the defendant filed the present motion to strike counts two and three of the plaintiff's complaint, along with a supporting memorandum of law on the ground that they fail to state claims for negligent and intentional infliction of emotional distress, respectively. The plaintiff filed an objection on January 28, 2011. The matter was heard on the February 28, 2011 short calendar.
II DISCUSSION A Motion to Strike Standard CT Page 6905
"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). "[The court takes] 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 . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
B Count Two: Negligent Infliction of Emotional Distress
The defendant argues that the plaintiff's claim for negligent infliction of emotional distress should be dismissed because it is based on facts related to the plaintiff's continuing employment with the defendant. In contrast, the plaintiff argues that this claim relates to the termination process and that the facts alleged are sufficient to sustain the cause of action.
To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119, 127 (2003).
A claim of negligent infliction of emotional distress cannot arise "out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752, 765 (2002). "[I]n order to state . . . a claim [for negligent infliction of emotional distress], the plaintiff has the burden of pleading 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 . . . [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 . . . 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." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655, 667 (1997); see Perodeau v. Hartford, supra, 259 Conn. 751 ("[W]here the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. The dispositive issue . . . [is] whether the defendant's conduct during the termination process was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm." (Emphasis in original; internal quotation marks omitted.)). "Unreasonable conduct [for the purposes of pleading negligent infliction of emotional distress] has been interpreted by the [S]uperior [C]ourts as conduct performed in an inconsiderate, humiliating or embarrassing manner." (Internal quotation marks omitted.) Battistoni v. Lakeridge Tax District, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002223 (June 17, 2008, Marano, J.).
The plaintiff alleges that "Doyon . . . began systematically traumatizing the plaintiff by way of demeaning, harassing, insulting and berating the plaintiff on a regular basis and specifically as follows: On two separate occasions, Ms. Doyon barged into the room where the plaintiff was working (and in front of students and employees) yelling at the plaintiff and physically forcing the plaintiff back into the kitchenette area, one time yelling `I'm not going to take this anymore' and another time flicking her hands at the plaintiff and yelling at her to `go away' and then threatening that if she left now she would be leaving for good while never explaining why she was yelling at the plaintiff. On many other occasions, Ms. Doyon spoke to the plaintiff as if she were a child while she was in the presence of students and other employees thereby embarrassing her and undermining her status with fellow employees and students. On another occasion, Ms. Doyon purposely and publicly invited everyone in the department except the plaintiff to her home in Rhode Island. The unwarranted outburst and threats made it impossible for the plaintiff to maintain her standing with fellow employees and students and perform her job with the unwarranted outburst and threats . . . On or about October 1, 2009, during and as part of the defendant's course of inflicting emotional distress on the plaintiff, the defendant terminated the plaintiff."
The conflict between various cases turns on the specific facts of each case. Whether this Second Count is legally sufficient is one of perspective as to when does the "termination process" begin. Compare Brown v. Stamford Hospital, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009794 (June 29, 2010, Hiller, J.) [ 50 Conn. L. Rptr. 250] (negligent infliction of emotional distress count legally insufficient because it focused "on the events leading up to the plaintiff's termination, and not on the actual act of termination itself"), with Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.) (the plaintiff stated a claim for negligent infliction of emotional distress where the complaint alleged that the employer screamed at, berated and leaned over the plaintiff in a threatening manner during the termination process). The plaintiff's negligent infliction of emotional distress may not withstand the challenge of subsequent pleadings or trial, but for purposes of this Motion to Strike, the Court denies the Motion to Strike Count Two.
C Count Three: Intentional Infliction of Emotional Distress
The defendant argues that the plaintiff's claim for intentional infliction of emotional distress should be dismissed because the plaintiff has not alleged that the defendant's conduct was extreme and outrageous. The plaintiff disagrees but provides no citations to case law in support of her position.
"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 . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 442-43.
"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." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68, 73 (2003). "[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." (Internal quotation marks omitted.) Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.).
"In the workplace context, the threshold [for extreme and outrageous conduct] is even higher: [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." (Internal quotation marks omitted.) Wilk v. Abbott Terrace Health Center, Inc., supra, Superior Court, Docket No. CV 06 5001328, quoting Perodeau v. Hartford, supra, 259 Conn. 757. "Nevertheless, it has also been held 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 . . . Such position or relation may be that of an employer or supervisor at work . . ." (Citations omitted; internal quotation marks omitted.) Wilk v. Abbott Terrace Health Center, Inc., supra, Superior Court, Docket No. CV 06 5001328.
In Wilk, the motion to strike was denied where "[t]he plaintiff . . . alleged that [her supervisor] had a history of abusive conduct towards her, 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. Coming from her supervisor, reasonable minds could differ over whether this constitutes extreme and outrageous conduct." Wilk v. Abbott Terrace Health Center, Inc., supra, Superior Court, Docket No. CV 06 5001328.
Moreover, in Benton v. Simpson, [ supra], 78 Conn.App. 746, the appellate court upheld the judgment from the trial court granting the application for a prejudgment remedy finding that the plaintiffs had established probable cause to show intentional infliction of emotional distress. "In [that] case, the [trial] court found that there was probable cause to believe that the plaintiffs' action would be successful . . . The [trial] court relied on the following facts when it granted the prejudgment remedy. Benton testified that she witnessed the defendant lose his temper six to nine times, including instances such as the following: The defendant displayed anger at her yearly review; used profanity; banged on a filing cabinet; publicly admonished another plaintiff, and made the statements: `You women make me sick, you're like a cancer,' and, `Geri, you have Alzheimer's [disease].' Moore testified that she heard the defendant describe the plaintiffs as a `cancer' Additionally, when Moore disagreed with the defendant's assessment of the plaintiffs, he made the statement: `Donna, you are straddling the fence, you will be sore, may even have to take a hot bath tonight.' Cifatte testified about incidents of being belittled by the defendant and stated that he would get `in your face' or `in your space.' At one point, Cifatte relayed to the defendant that her computer was inoperable, and the defendant responded, `Kim, I am so goddamned sick of hearing about your goddamned computer, if I could shit you out a computer I would.' Cifatte testified that the defendant then hit a file cabinet and stated, `let's take this into my office now.' The defendant on a separate occasion made the statement to Cifatte, `You women make me sick, you disgust me, I feel sorry for anybody that has to work for you.' Buonincontra testified that she was present at a meeting where the defendant described the plaintiffs as a `cancer.' She further witnessed the defendant bang his fist to make a point and was a party to an exchange with the defendant when he followed her as she walked away from him and shouted at her." Id., 749-50, 754. "[W]hile some may question whether the defendant's conduct, which was clearly rude, unpleasant and, on one or two occasions, crude, rises to the level that is necessary to establish a claim for intentional infliction of emotional distress, this court nevertheless concludes that [the plaintiffs] have met their burden with respect to a prejudgment remedy. Moreover, because the plaintiffs and defendant worked in close proximity to one another and because of the nature of the employment relationship, it was difficult for the plaintiffs to avoid continued interaction with the defendant. Indeed, the testimony shows that at least one plaintiff felt compelled to endure the defendant's conduct." (Internal quotation marks omitted.) Id., 754-55.
In support of its argument, the defendant relies on Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059, 1063 (2000), where, on summary judgment, the court found that the defendant's conduct was not extreme and outrageous. "The plaintiff complains that [the defendant] made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read; telephoned the plaintiff's daughter, representing that the plaintiff had been acting differently and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign." Id. The court explained: "These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct . . ." Id.
Nonetheless, the court in Knight v. Southeastern Council on Alcoholism Drug Dependency, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.), after noting the Appleton case, explained that "[p]laintiffs have, however, been successful in establishing claims for intentional infliction of emotional distress where they have alleged that they were forced to suffer public ridicule . . . subjected to a hostile work environment involving repeated racially motivated statements . . . repeatedly taunted about a medical disability . . . or terminated for exercising a statutorily protected right." (Citations omitted.); see Armstead v. Stop Shop Co., Inc., United States District Court, Docket No. 3:01cv1489 (D.Conn. March 17, 2003) ("[O]ne hallmark of a sufficiently stated claim for intentional infliction of emotional distress is allegation of repeated and public ridicule, especially with respect to racial discrimination.").
"The court in Campbell v. Plymouth, 74 Conn.App. 67, [79, 811 A.2d 243] (2002), while noting that the mere act of wrongfully firing an employee `does not transgress the bounds of socially acceptable behavior' . . . referred to Knight as reflecting that courts have not stricken complaints alleging an element of public ridicule . . ." (Citations omitted.) 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, 540). In Oppenheim v. Gruell, supra, 540, the court denied the defendant's motion to strike noting that cases such as Appleton v. Board of Education, supra, 254 Conn. 205 where the motion to strike was granted "lack . . . the component of physically intimidating behavior coupled with vulgar treatment in a setting which would have had to have been humiliating."
In Oppenheim, the court found that the plaintiff made "[a]llegations of humiliating, vulgar remarks . . . some were made . . . by her new boss in a setting that exposed her to ridicule and had to be humiliating given the fact that the hearers were people she had to work with on an apparently regular basis. Also . . . there was an element of physical intimidation." Oppenheim v. Gruell, supra, 38 Conn. L. Rptr. 540. "[The defendant] came over . . . and put his face right into my face and his hand right up against my face and said `I won't take any shit from you. Don't open your mouth. You understand me, don't open your mouth.' At the ensuing meeting three representatives from the local development corporation were present. [The defendant] . . . told her: `I said to shut your mouth when I'm here.' He became agitated and . . . he came into my face. When she tried to explain what she thought was a misconception on [the defendant's] part about the operation of the program he said: `You cut that shit out. Don't you talk to me. Don't you open your mouth in front of me. That's what I told you about' — all this while pounding the table . . . About one month later . . . when she expressed reluctance about signing a document, [the defendant] pounded the table and went `under her chin' and `under her shoulder' in what she described as `almost a rage.' [The defendant] also blocked her from leaving the room at least momentarily. When he did remove himself from in front of the door, he put his hand in her face and said `I'm telling you, don't you open up your fucking mouth in front of me again.'" (Internal quotation marks omitted.) Id., 539.
In the present case, the plaintiff relied on the same conduct alleged in the negligent infliction of emotional distress claim. Although the plaintiff alleges that "Doyon . . . began systematically traumatizing the plaintiff by way of demeaning, harassing, insulting and berating the plaintiff on a regular basis" and that "Ms. Doyon barged into the room where the plaintiff was working (and in front of students and employees) yelling at the plaintiff and physically forcing the plaintiff back into the kitchenette area," none of the plaintiff's allegations rise to the level of extreme and outrageous conduct. There are no specific allegations of physical intimidation, vulgar remarks and public ridicule that rise to the level where other courts have denied a motion to strike.
Accordingly, the motion to strike the intentional infliction of emotional distress claim in the Third Count is hereby granted.