Opinion
No. CV 07-5010727
January 31, 2008
MEMORANDUM OF DECISION
Presently before the court in this wrongful termination action is the defendant's motion to strike the five counts of the plaintiff's amended complaint. The plaintiff, Kelly Hellanbrand, alleges that the defendant, National Waste Associates, LLC, through its owner, Carmine Esposito, demanded to inspect her private cellular telephone records in order to see if she was communicating with prior partners in the company who had been expelled by Esposito when he attained sole ownership of the corporation. The plaintiff alleges that she refused to submit her private telephone records and, as a result, Esposito placed her on indefinite suspension without pay. The plaintiff alleges in count one of the amended complaint that the plaintiff's indefinite suspension was in fact termination or constructive termination and brings a count sounding in wrongful termination in violation of public policy. The plaintiff's second count alleges statutory wrongful termination because of the employee's use of constitutional rights under General Statutes § 31-51q. In count three, the plaintiff alleges a cause of action under the intrusion upon seclusion portion of the invasion of privacy tort. Counts four and five allege the negligent and intentional infliction of emotional distress, respectively.
On August 10, 2007, the defendant filed a motion to strike each count of the plaintiff's amended complaint, together with a supporting memorandum of law. The plaintiff filed a memorandum of law in opposition on October 9, 2007. Arguments on the motion were heard at short calendar on October 15, 2007. The grounds upon which the defendant seeks to strike each count are set forth below.
DISCUSSION
"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). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[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).
WRONGFUL TERMINATION (FIRST COUNT)
In the first count of her amended complaint, the plaintiff alleges that she was terminated in violation of an important public policy, the right to privacy embodied in article first, § 7, of the Connecticut constitution, the fourth amendment of the United States constitution, the Connecticut General Statutes, and the common law of the state of Connecticut. The defendant moves to strike count one of the amended complaint on the ground that the plaintiff has failed to specify a clear mandate of public policy to support her wrongful termination claim. The defendant argues that the plaintiff has failed to identify a specific statute or common law on which her public policy claim is based. In opposition to the motion to strike, the plaintiff argues that her wrongful discharge claim is based on an invasion of her right to privacy.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Employment-at-will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 225, 837 A.2d 759 (2004). "As a general rule, an employer is free to terminate an at-will employee's employment with impunity." Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003).
However, "[i]n [ Sheets v. Teddy's Frosted Foods, Inc.], our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges `a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.'" Id., citing Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980). "In doing so, [the Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . In Morris v. Hartford Courant Co. [the Supreme Court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [the court looks] to see whether the plaintiff has alleged that his discharge violated any explicit statutory or constitutional provision or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; internal quotations.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 698-99, 802 A.2d 731 (2002), citing Daley v. Aetna Life Casualty Co., 249 Conn. 766, 798, 734 A.2d 112 (1999).
"The public policy exception to the at-will employment doctrine, however, is to be construed narrowly . . . Under that narrow exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy." (Citations omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 844, 888 A.2d 104 (2005). "A cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy." Id.
Connecticut courts have recognized privacy as a viable public policy ground in a wrongful discharge action. In Guccione v. Paley, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002943 (June 14, 2006, Trombley, J.), the court denied the defendant's motion to strike the plaintiff-housekeeper's wrongful discharge claim. The defendant in Guccione was devoutly religious and would require the plaintiff to pray and read aloud from the Bible during working hours and attend church and pursue religious study during nonworking hours. Id. The defendant also questioned the plaintiff about her relationship with her boyfriend and encouraged her not to engage in sexual relations with him or share a hotel room with him during an upcoming vacation. Id. Upon learning that the plaintiff had shared a room with her boyfriend while on vacation, the defendant terminated the plaintiff's employment. Id. The court held that "the discharge of an at-will employee due to an employer's disapproval of the employee's private sexual and religious practices does violate an important public policy of the State of Connecticut, the right to privacy." (Emphasis added.) Id.
In addition, the state of Connecticut has demonstrated that it values the privacy of phone records in particular. General Statutes § 16-247u(b) states, in part, that "[n]o person shall: (1) Knowingly procure, attempt to procure, solicit or conspire with another to procure a telephone record of any resident of this state without the authorization of the customer to whom the record pertains . . . (3) receive a telephone record of any resident of this state with the knowledge such record has been obtained without the authorization of the customer to whom the record pertains or by fraudulent, deceptive or false means."
The motion to strike the first count of the plaintiff's amended complaint is denied because the defendant's demand for the plaintiff's private cellular telephone records contravenes an important public policy of the state of Connecticut — the right to privacy. The plaintiff has alleged sufficient facts to support a claim for wrongful discharge.
TERMINATION IN VIOLATION OF GENERAL STATUTES § 31-51q (SECOND COUNT)
General Statutes § 31-51q provides: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
The defendant moves to dismiss the second count on the grounds that "the [p]laintiff has failed to allege that she was terminated for exercising her right to free speech, and that her conduct did not substantially or materially interfere with her working relationship with the [d]efendant." The defendant argues that "the [p]laintiff has not alleged that she engaged in free speech at all, let alone speech regarding a matter of public concern. Rather, she simply asserts that she was suspended and constructively discharged for refusing to show her cell phone records to her employer." Thc defendant also argues that assuming, arguendo, that the plaintiff "had alleged that she was subjected to adverse action for engaging in speech of public concern, she failed to allege that her exercise of allegedly protected speech did not substantially or materially interfere with her job performance or with her working relationship with" the defendant.
"Section 31-51q protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution . . . Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." (Citations omitted.) Daley v. Aetna Life Casualty Co., supra, 249 Conn. 779. "To be protected by the first amendment, `the speech must be on a matter of public concern, and the employee's interest in expressing [himself] on this matter must not be outweighed by any injury the speech could cause' to employee relationships. Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). Restrictions on employee-employer speech are more justified than restrictions on the speech of the public at large. Id., 672." (Quotation marks omitted.) Emerick v. Kuhn, 52 Conn.App. 724, 743-44, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999). "As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question. The legislature made its intention in that respect clear by stating expressly, in § 31-51q, that the statute provides a cause of action only against discharge for expressions of opinion that do `not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer . . .' The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Daley v. Aetna Life Casualty Co., 249 Conn. 766, 783-84, 734 A.2d 112 (1999); see also Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999)." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999).
"In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [she] was exercising rights protected by the first Amendment to the United States Constitution . . . (2) that [she] was fired on account of [her] exercise of such rights; and (3) that [her] exercise of first amendment . . . constitutional rights did not subsequently or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer." (Internal quotation marks omitted.) Horton v. Windham Community Memorial Hospital, Superior Court, judicial district of New London, Docket No. 4006020 (Mar. 29, 2007, Hurley, J.T.R.).
In the present case, the plaintiff has failed to allege in count two sufficient facts to support a claim under § 31-51q. The plaintiff has merely asserted as legal conclusions that she was indefinitely suspended or constructively terminated as a result of her exercise of her state and federal constitutional rights and that the protected activity did not interfere with her working relationship with her employer or her bona fide job performance. "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Further, the plaintiff has failed to allege facts demonstrating that the statements made were expressions of a matter of public concern. The motion to strike the second count is granted.
INVASION OF PRIVACY (THIRD COUNT)
The defendant moves to strike count three on the grounds that the plaintiff has failed to allege an actual unauthorized access to and intrusion upon her personal information by the defendant. The defendant argues that claims of unreasonable intrusion require an actual act of unauthorized access to a person's personal information. The plaintiff argues that an actual invasion of privacy is unnecessary.
"Connecticut recognizes a cause of action for invasion of privacy pursuant to which, a plaintiff may make claims based upon intrusion upon seclusion . . ." Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06 4022391 (November 28, 2006, Angela Robinson, J.). "In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982), [the Connecticut Supreme Court] observed that `the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone. [W.] Prosser, Torts (4th Ed. 1971) § 117, p. 804. The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public.'" (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007). "The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion . . . However, an unreasonable interference claim [requires] . . . [o]ne who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person." (Citations omitted; internal quotation marks omitted.) Cavallaro v. Rosado, Superior Court, judicial district of New Haven, Docket No. CV 05 4009939 (October 5, 2006, Angela Robinson, J.). The Connecticut Superior Court has "recognized exceptions to this requirement for physical intrusion when there are allegations that the defendant has made certain types of particularly offensive statements, such as statements about the plaintiff's sex life. See Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99066602 (February 4, 2000, Nadeau, J.) [26 Conn. L. Rptr. 368]." Kindschi v. Meriden, supra, Superior Court, Docket No. CV 06 4022391.
The plaintiff has not alleged facts to establish the elements of the tort of invasion of privacy because no intrusion took place. The plaintiff alleges in her amended complaint that she advised the defendant that the demand that she surrender her personal cellular telephone records was unlawful or unreasonable; the plaintiff further alleges that she would not comply with the demand, and that she was indefinitely suspended as a result of her refusal to surrender her phone records. If the plaintiff's allegations are taken to be true, then the defendant was never able to view the phone records and learn the private information contained therein. Courts in other jurisdictions have addressed situations in which the plaintiff in a right to privacy action has been able to prevent the invasion of his or her privacy.
In Tombrello v. USX Corp., 763 F.Sup. 541 (N.D.Ala. 1991), the plaintiff was an employee of the defendant corporation. The defendant had a program whereby its employees could receive training at a nearby technical college to improve their skills. Id., 542. The classes were provided during working hours, the employees received their full salaries while in class, and the cost of the classes were paid by the defendant. Id. The plaintiff attended one such course and refused to sign a waiver, which would release the records of his attendance at the program so that he could be paid his normal salary. Id. The records would also indicate whether the plaintiff was prepared to take higher level courses. Id. As a result of the plaintiff's refusal to sign the form releasing his attendance records, the defendant did not pay him for the time spent in class. Id., 543. The plaintiff brought an action against the defendant for failure to pay wages earned and invasion of privacy. Id., 542. The court stated that the "[p]laintiff is unable to establish the elements of the tort of invasion of privacy. No intrusion took place. [The plaintiff] refused to sign the release. Bessemer Tech refused to release his records to [the defendant]." Id., 545. The present case similarly lacks an intrusion because the plaintiff refused to turn her personal cellular telephone records over to the defendant.
The plaintiff in Gretencord v. Ford Motor Co., 538 F.Sup. 331 (D.Kan. 1982), was an employee at a Ford warehouse, which had a policy of random employee vehicle searches as employees left the property. Id., 332. The plaintiff was signaled by a guard to stop for a vehicle search, but he continued to drive off of the property. The plaintiff suffered a loss of pay, discipline, and a loss of on-property parking privileges as a result of his refusal to submit to a search. Id. He brought an action with a count alleging invasion of privacy. Id., 333. The court granted the defendant's motion for summary judgment of the invasion of privacy count, noting: "Here, plaintiff has failed to establish that any intrusion took place. He admits that he refused to allow defendant's agents to search his vehicle. Having successfully thwarted the commission of the alleged tort, plaintiff cannot now sue for damages as a result of an act that did not occur." Id. The plaintiff in the present matter has also thwarted the commission of the alleged tort by refusing to surrender her personal cellular telephone records to the defendant.
Similarly, in Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989), the plaintiffs were fired by their employer when they refused to allow their urine to be tested for the presence of drugs. Id., 1126-28. Among other counts, the plaintiff's brought a count for common-law invasion of privacy. The Supreme Court of Alaska held: "As to the urinalyses [that the plaintiffs] refused to take, we hold that no cause of action for invasion of privacy arises where the intrusion is prevented from taking place." Id., 1138; see also Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497, 502 (Tex.App-Austin 1989, cert. denied).
In Moffett v. Gene B. Glick Co., Inc., 621 F.Sup. 244 (D.C.Ind. 1985), the plaintiff discovered an intercom hidden behind a plant in the common workplace kitchen where she often had conversations with her boyfriend. Id., 256. The evidence at trial proved that the plaintiff found the intercom very shortly after it was placed and before she had any conversations in the kitchen. Id., 284. The court held that the plaintiff's invasion of privacy claim must fail. "[W]hile Hall's intercom may have made it possible to overhear a conversation, no intrusion would have occurred until something was actually overheard. Without such proof [the plaintiff's] second part of her privacy claim must fail as well." Id.
Because the plaintiff refused to surrender her personal cellular telephone records to the defendant, no intrusion took place. The plaintiff's claim for invasion of privacy therefore must fail. Count three is stricken.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (FIFTH COUNT) CT Page 1572
The defendant moves to strike the fifth count of the amended complaint on the ground that the allegations do not rise to the level of "extreme and outrageous" conduct. "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact-finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." Hartmann v. Gulf View Estates Homeowners Assn., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). "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." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
In her memorandum in opposition to the motion to strike, the plaintiff argues that courts are reluctant to strike claims of intentional infliction of emotional distress. The cases in which trial courts have decided claims of intentional infliction of emotional distress in a motion to strike, however, are myriad. See, e.g., Tracy v. New Milford Public Schools, 101 Conn.App. 560, 567, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007); Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018766 (February 21, 2007, Wiese, J.); Kontos v. Laurel House, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001408 (January 17, 2007, Taggart, J.) [42 Conn. L. Rptr. 709]; Baillargeon v. First Union National Bank, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0262723 (May 3, 2001, Booth, J.); Duncan v. Junior Achievement, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0335878 (January 27, 2000, Skolnick, J.).
"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.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"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 . . . 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.) Id., 210-11. "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!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
The threshold is higher still in the workplace arena. "[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). "[I]ndividuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal; decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance; and disciplinary or investigatory action arising from actual or alleged employee misconduct." Id. "Our courts have noted that [i]t is likely that a person whose employment is terminated will suffer some degree of stress and anxiety regardless of whether the termination was lawful and proper or wrongful and tortious in nature." (Internal quotation marks omitted.) Meade v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 05 4016155 (September 7, 2006, Skolnick, J.T.R.).
The defendant's motion to strike count five of the plaintiff's amended complaint is granted. The plaintiff has failed to allege in count five any facts that would rise to the level of extreme and outrageous conduct on the part of the defendant. "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). In Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the plaintiff was accused of embezzlement by the defendants, her employer and supervisors, who demanded that she sign a resignation. Id., 321. The defendants also demanded that the plaintiff repay the amount she was alleged to have embezzled or face criminal action. Id., 322. The Appellate Court held that the defendants' conduct in Carnemolla was not outrageous or extreme. Id., 333. While defendant's accusation that the plaintiff in the present matter was sociable or even potentially collusive with her former supervisors might be distressful to her, such accusations seem minor in comparison to the accusations made by the Carnemolla defendant that the plaintiff in that case was an embezzler, accusations which were held not to rise to the level of extreme and outrageous conduct necessary to support an action for intentional infliction of emotional distress.
In Campbell v. Plymouth, 74 Conn.App. 67, 811 A.2d 243 (2002), the plaintiff brought an action alleging intentional infliction of emotional distress by the defendant town. The plaintiff alleged that the defendant "through its agents, made repeated demands and inquiries into [his] personal beliefs and attitudes, and harassed him to change his mind . . . regarding the signing of . . . false grant documents." (Internal quotation marks omitted.) Id., 78. The Appellate Court upheld the trial court's granting of the motion to strike the intentional infliction of emotional distress count because it was not extreme and outrageous conduct. Id., 77.
Similarly, in Kontos v. Laurel House, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001408 (January 17, 2007, Taggart, J.) [42 Conn. L. Rptr. 709], moments before he was terminated, the plaintiff was accused by his superior of sexually harassing one of the plaintiff's subordinates. The court held that these allegations were not sufficiently extreme and outrageous and granted the motion to strike.
In the present case, the court grants the defendant's motion to strike count five of the plaintiff's amended complaint because the conduct alleged by the plaintiff does not rise to the level of extreme and outrageous conduct necessary to support an action for intentional infliction of emotional distress.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (FOURTH COUNT)
The plaintiff alleges in count four that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress, and that the distress might result in illness or bodily harm. The plaintiff further alleges that as a result of the unreasonable conduct of the defendant during the termination process, she suffered emotional pain, anguish and distress.
The defendant moves to strike count four of the amended complaint on the ground that there is no allegation in the amended complaint of any improper or unreasonable conduct during the termination process. The defendant argues that the plaintiff was suspended, not terminated, and that Connecticut courts do not recognize claims for negligent infliction of emotional distress that occur in the continuing employment context as distinguished from conduct occurring during termination.
In general, to prevail on [a claim of negligent infliction of emotional distress] a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . . Such a claim in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process rather than in an ongoing employment relationship . . . Finally, to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress.
(Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
In certain contexts, Connecticut courts have held that suspensions, even those of indeterminate length, are not constructive termination. In Tucker v. Board of Education, 4 Conn.App. 87, 492 A.2d 839 (1985), the plaintiff teacher was suspended for three years without pay. Id., 88. The Appellate Court held that the suspended plaintiff had no right to appeal her suspension by the school board because only the decision to terminate an employee's contract may be appealed under General Statutes § 10-151(f). Id., 90-91. The Tucker court specifically considered the argument that "boards of education could avoid the protections afforded by the [statute] by . . . imposing an unreasonably long suspension without pay, thus having the effect of a constructive or de facto termination," and declined to consider the suspension as a constructive termination. Id., 92-93.
In O'Connor v. Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 01 0808376 (July 7, 2003, Booth J.) [35 Conn. L. Rptr. 267], the court followed the reasoning of Tucker regarding a two-year suspension without pay but with continuing benefits. "It is clear that in our case, the plaintiff was not terminated. Rather, he was suspended for an inordinately long period of time. The plaintiff is, therefore, not extended rights and procedures for termination." Id.
In other contexts however, the Superior Court has found termination to commence concurrently with an indefinite suspension. In Bimler v. Stop Shop, Superior Court, judicial district of New London at Norwich, Docket No. 110028 (January 22, 2003, Corradino, J.) [34 Conn. L. Rptr. 112], the court noted that the plaintiffs, who were later terminated, "had no ongoing employment relationships since March 5, 1994 when they were placed on indefinite suspension because of time card violations."
In Kuselias v. Southern New England Tel. Co., Superior Court, judicial district of New Haven, Docket No. CV 910322295S (October 28, 1996, Corradino, J.) [18 Conn. L. Rptr. 80], the plaintiff was suspended with pay while the defendant investigated whether he had used company funds to finance family vacations to Toronto and Hawaii. Id. The plaintiff claimed that, during the investigation, he was not allowed to remove personal belongings from his office, he was interrogated in a building other than the one in which he worked and he was not permitted to attend an annual awards dinner which he had been heavily involved in during prior years. Id. After the investigation was concluded, the plaintiff was told that he could no longer work for the defendant and was offered an arrangement where short-term disability benefits would be paid for one year and he would be allowed to apply for long-term disability benefits after that. Id. If he did not accept this arrangement, he would be discharged outright. Id. The plaintiff had cancer and accepted the arrangement for fear of losing his benefits. Id. He was reinstated almost five months after the suspension and period of medical benefits without labor began. Id. The court had to determine whether there was a termination.
The court held "on the question whether `termination' took place here when a person is suspended from work, subjected to an investigatory process which ends with being put on disability pay, an admonition that he would not be allowed to work at the company in the future, and instructions to clean out his or her desk at a work site he or she had been barred from for several weeks, this is termination . . ." CT Page 1577 Id. Connecticut courts are, thus, split on the issue of when a suspension constitutes termination and that no case is dispositive in the instant factual scenario.
"[I]n cases where 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 in each case [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.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002).
It is unclear from the amended complaint whether the conduct on the part of the defendant that allegedly caused the plaintiff harm was the accusation that the plaintiff was loyal to the previous owners or in communication with them, or the demand that the plaintiff turn over her private cellular telephone records, or a combination of the two.
In the court's opinion the accusation or implication by the defendant that the plaintiff was loyal to the former owners or in continued communication with the former owners was not so unreasonable as to support an action for negligent infliction of emotional distress. In Foster v. Westbrook Lodge of Elks #1784, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 06 5001631 (April 11, 2007, Aurigemma, J.), the plaintiff-banquet manager's superiors terminated her employment and subsequently filled her personnel file with false accusations. These accusations included the charge that the plaintiff had called prospective patrons of the Elks' banquet facility and warned them against holding their events at the banquet hall. Id. The plaintiff also alleged that the defendant promulgated false information about her to prospective employers to prevent her from securing her job. Id. The court in Foster granted the defendant's motion to strike the plaintiff's negligent infliction of emotional distress claim. Id.
The current plaintiff's claim that the defendant falsely accused her of remaining loyal to the company's former owners is similar in nature to the Foster plaintiff's claim that the defendants in that case falsely accused her of calling prospective customers. The court believes that the defendant's accusations that the plaintiff remained loyal to the former owners was not so unreasonable as to support an action for negligent infliction of emotional distress.
Neither can the demand for personal cellular telephone records be considered so unreasonable as to support an action for negligent infliction of emotional distress. In Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), the plaintiff, an instructor in helicopter maintenance, was ordered by the defendant to take an assignment in the nation of Bahrain, which was, at the time, a primary staging area for military forces waging Operation Desert Shield and consequently on the State Department's travel advisory list. Id., 68-70. Two hours after the plaintiff announced that he refused to travel to Bahrain, he was terminated and escorted from the defendant's premises by security. Id., 70. The Supreme Court held that this conduct was "not so unreasonable as to support a cause of action for negligent infliction of emotional distress." Id., 89. Certainly, a demand that an employee uproot themself from their existing life and move across the globe to an area with significance as a military target is far more burdensome, disruptive and imposing than a demand for personal cellular telephone records.
The fourth count is stricken. The plaintiff has failed to allege sufficient facts to support a claim for the negligent infliction of emotional distress.