Kontos v. Laurel House, Inc.

Full title: RICHARD A. KONTOS v. LAUREL HOUSE, INC. et al

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Jan 17, 2007

2007 Ct. Sup. 1563 (Conn. Super. Ct. 2007)

42 CLR 709

Opinion

No. CV 06 5001408 S

January 17, 2007

MEMORANDUM OF DECISION RE MOTION TO STRIKE (104.00)

TAGGART D., ADAMS, J.

I. The Complaint

By amended complaint filed July 26, 2006 the plaintiff Richard Kontos alleges a series of claims against two defendants, Laurel House, Inc. (Laurel House) and Stephen Dougherty. Laurel House is a nonprofit organization that services mentally ill individuals. Dougherty was the executive director of Laurel House, and Kontos, a licensed social worker, was employed by Laurel House from November 1993, to March 2005. In October 2003, Laurel House initiated "The Partners Program," which aims to provide permanent, supportive housing for homeless individuals with chronic mental illness. Laurel House placed Kontos in charge of implementing the Partners Program, and Dougherty assigned Valerie Wallace as a staff member to the program.

The amended complaint further alleges that on numerous occasions, Kontos informed Dougherty that Wallace was not qualified to deal with clients of the Partners Program, and that her interaction with homeless clients created an "unsafe and dangerous situation." (Amended Compl. ¶ 13) Dougherty refused to replace or reassign Wallace, however, and dismissed Kontos' objections to Wallace's competence and qualifications. Kontos' requests for Wallace's reassignment began to strain the professional relationship between Kontos and Dougherty. In January 2004, Kontos reiterated his concerns regarding Wallace to Dougherty during a meeting, but Dougherty again refused to reassign her and prohibited Kontos from assigning other staff to the program.

It is alleged that in January 2005, Wallace complained to Kontos that she could no longer work with a particular client, who repeatedly threatened violent sexual behavior towards Wallace and others. Kontos, therefore, instructed Wallace to avoid all contact with the client. Nonetheless, in March 2005, Wallace apparently received a very disturbing telephone call from the client, which prompted her to discuss the issue with Dougherty's associate director, Jay W. Boll, who, along with Dougherty, was aware of this client's behavioral problems. Dougherty was unavailable that day. When Dougherty returned to work, he called Kontos into his office, falsely accused him of sexually harassing Wallace, falsely accused him of being responsible for the client's dangerous conduct toward Wallace, and summarily terminated Kontos' employment. No formal sexual harassment complaint was filed against Kontos, and Kontos never was granted a hearing to allow him to dispute the harassment charges. According to Kontos, Dougherty did not follow Laurel House procedures pertaining to sexual harassment, as outlined in the employee handbook.¹

1 Kontos further complains that when he filed for unemployment benefits, Laurel House objected to his receipt of such benefits on the basis that he had been terminated for cause in that he had sexually harassed Wallace.

Counts three and six of the amended complaint assert intentional infliction of emotional distress against Laurel House and Dougherty, respectively, on the basis that the defendants' conduct was extreme and outrageous in that they forced Kontos to accept an unqualified staff member, Wallace, in the Partners Program, refused to allow Kontos to use other qualified staff, summarily terminated Kontos and falsely accused him of sexually harassing Wallace. Counts four and seven assert claims of negligent infliction of emotional distress against Laurel House and Dougherty, respectively, on the basis that both defendants knew or should have known that their conduct in terminating Kontos and in falsely accusing him of sexual harassment created an unreasonable risk of causing him emotional distress.²

2 In the remaining counts, Kontos alleges: wrongful termination by Laurel House (count one); breach of implied covenant of good faith by Laurel House (count two); libel and slander as to Laurel House (count five); and, libel and slander as to Dougherty (count eight).

The defendants have filed a motion to strike counts three, four, six and seven, on the ground that Kontos failed to allege sufficient facts to state a claim upon which relief can be granted.

II. Standard of Review

"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 (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.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, (2006). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Id. "[If facts provable in the complaint would support a cause of action, the motion to strike must be denied.]" (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006).

III. Discussion A. Kontos' Intentional Infliction of Emotional Distress Claim.

As to counts three and six, the defendants argue that Kontos fails to allege that they engaged in extreme and outrageous conduct, as required to state an intentional infliction of emotional distress claim. Kontos counters that by falsely accusing Kontos of sexual harassment as a pretext for terminating his employment, the defendants' conduct in fact was extreme and outrageous.

In order for a plaintiff to make out an intentional infliction of emotional distress claim, "[i]t 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.) Carrol v. Allstate Ins. Co, 262 Conn. 433, 442-43, 815 A.2d 119 (2003).

In explaining the outrageousness requirement, the Connecticut Supreme Court stated: "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!" (Citation omitted; internal quotation marks omitted.) Id., 443. On the other hand, "[c]onduct 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.) Id. "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." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

"The Superior Court appears to be divided on the issue of whether making false accusations regarding unlawful or criminal behavior can constitute extreme and outrageous conduct." Strode v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 99 0432459 (November 8, 2002, Zoarski, J.T.R.). Although the Superior Court in some cases has determined that such false accusations could support an intentional infliction of emotional distress claim, Kontos' allegation in the present case that the defendants falsely accused him of sexual harassment of Wallace do not meet the threshold for extreme and outrageous conduct as established in the case law on the appellate level.

In Carrol, for instance, the plaintiff-insured accused the defendant-insurer of conducting a hasty investigation into the cause of a fire that destroyed the plaintiff's home and further alleged that the investigation was "improperly motivated" and potentially influenced by the plaintiff's race. Carrol v. Allstate Ins. Co., supra, 262 Conn. 444-45. Nevertheless, the court held that the defendant's conduct was not sufficiently outrageous: "As distressing as this insurance investigation may have been to the plaintiff . . . it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress." (Emphasis in original.) Id., 444. Similarly, although the defendants might not have properly investigated the basis for Kontos' termination, the sexual harassment accusations, he has not alleged facts to suggest that the manner of his termination was "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." Id., 443.

Kontos' allegations also are less egregious than those of the plaintiff in Appleton, in which the court upheld the granting of summary judgment in favor of the defendants on the plaintiff's intentional infliction of emotional distress claim. There, the plaintiff alleged 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 . . . 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." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 211. The Appleton court concluded, however, that although the defendants' conduct likely was "distressing and hurtful to the plaintiff;" id.; such conduct did not "constitute extreme and outrageous conduct within the meaning of the precedents . . ." Id.

Unlike the plaintiff in Appleton, Kontos does not allege that he was subjected to similarly invasive conduct at the time of his termination. Nor does he allege that the defendants informed anyone else of the accusations. Instead, even assuming that such accusations were false, their communication to Kontos appears to have been a contained event. See 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) (suggesting element of public ridicule may be necessary to state intentional infliction of emotional distress claim in context of wrongful termination). Thus, although Kontos might have been distressed and hurt by these events, the defendants' levying of false accusations of sexual harassment does not rise to the level of extreme and outrageous conduct. See also Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003) (plaintiff's allegations that defendants accused her of embezzlement held insufficient to support intentional infliction claim); Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 808 A.2d 1149 (2002), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006) (plaintiff's allegations, inter alia, that supervisor had falsely accused plaintiff of endangering a patient's life held insufficient to support intentional infliction claim); Baricko v. Chesebrough-Pond's USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.T.R.) (plaintiff's allegations that supervisor "created hostile work environment, discriminated against him, disciplined him and harassed him" held not to constitute extreme and outrageous conduct); Estate of Smith v. West Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080891 (July 28, 2003, Sferrazza, J.) (noting that false accusations of crime have been insufficient to state claim for intentional infliction of emotional distress). But see Strode v. Hamden, supra, Superior Court, Docket No. CV 99 0432459 ("[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"); Olivas v. DeVivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV99 0335908 (February 28, 2001, Hiller, J.) ("[t]he Plaintiff's allegations go beyond the fact that he was fired and include the circumstances surrounding the Defendant's accusations of theft and forgery. Reading the complaint broadly . . . these allegations . . . could amount to extreme and outrageous conduct."); Ferraro v. Stop Shop Supermarket, Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.) ("[a] job supervisor's false accusation of lying, made in the presence of one of the plaintiff's fellow employees, is sufficiently extreme and outrageous to warrant submitting the case to the jury" (citation omitted; internal quotation marks omitted)).

The Appellate Court likewise has declined to recognize an intentional infliction of emotional distress claim in a case in which the plaintiff alleged that "the defendant acted toward [the] plaintiff with malice, oppression, willful and conscious disregard of [the] plaintiff's rights . . ." Alexandru v. West Hartford Obstetrics and Gynecology, 78 Conn.App. 521, 527, 827 A.2d 776, cert. denied, 266 Conn. 912, 832 A.2d 68 (2003). Specifically, the plaintiff in Alexandru claimed that the defendant breached the doctor-patient privilege by releasing her medical records in connection with another lawsuit she had initiated. The plaintiff in Alexandru also had alleged that the defendant's actions violated Connecticut statutes prohibiting disclosure of medical records. In the present case, Kontos further alleges in connection with his intentional infliction claims that the defendants refused to provide him with the necessary backup of personnel for units that he managed, and that this conduct violated certain statutes and regulations regarding the care of mentally ill patients in residential rehabilitation centers. He argues that a violation of a statutorily protected right necessarily will sustain an action for intentional infliction of emotional distress.

Kontos grounds this proposition in an Appellate Court case, in which the defendant terminated the employment of the whistle-blower plaintiff. Preston v. Phelps Dodge Copper Products Company, 35 Conn.App. 850, 647 A.2d 364 (1994). There, the jury found that the defendant's conduct was "malicious and outrageous" and motivated by bad faith and found in favor of the plaintiff on intentional infliction of emotional distress and other claims. Although the court upheld that verdict on appeal, it did not rely on a per se connection between a statutory violation and a finding of intentional infliction of emotional distress, as Kontos now urges. In fact, in a subsequent case, the Appellate Court has refused to create such a per se rule. See Barber v. Mulrooney, 61 Conn.App. 108, 111, 762 A.2d 520 (2000). Instead, the stronger aspect of Kontos' intentional infliction of emotional distress claim against Laurel House and Dougherty focuses on the circumstances surrounding his termination. As discussed above, however, these circumstances were not sufficiently extreme and outrageous to support Kontos' intentional infliction of emotional distress counts. Accordingly, the court grants the defendants' motion to strike counts three and six of the plaintiff's complaint, which allege intentional infliction of emotional distress.

B. Kontos' Negligent Infliction of Emotional Distress Claim. As to counts four and seven, the defendants argue that Kontos fails to allege that their conduct in terminating him was unreasonable, as required to state a negligent infliction of emotional distress claim. Moreover, the defendants point out that a plaintiff must base his negligent infliction claim upon the defendant's conduct in terminating the plaintiff's employment, and not upon the defendant's reasons for terminating the plaintiff. In this case, the defendants argue, Kontos complains that he was wrongfully terminated, but fails to allege that either Laurel House's or Dougherty's conduct in actually terminating Kontos was unreasonable. Kontos counters that the defendants' false and defamatory accusations constituted unreasonable conduct intended to humiliate or embarrass Kontos during the course of his termination. The Connecticut Supreme Court has set forth the elements of a negligent infliction of emotional distress claim as follows. The plaintiff must establish that: "(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., supra, 262 Conn. 444. In the particular context of termination from employment, the court also has made clear that courts must assess the circumstances and conduct surrounding the termination, rather than focusing on the employer's reasoning behind it. Thus, summarizing the relevant precedent, the court stated that "in 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." Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002). Instead, the court continued, "[t]he 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." (Internal quotation marks omitted.) Id.

On the other hand, unlike a claim for intentional infliction of emotional distress, in order to state a claim for negligent infliction of emotional distress, a plaintiff need not allege extreme and outrageous conduct on the part of the defendant. Rather, "[a] claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn, May 25, 2005). Often, therefore, a plaintiff will be able to state a claim of negligent infliction of emotional distress, even though the same set of facts would not give rise to a claim for the intentional counterpart to the tort. Id., 7-8 (citing Carrol v. Allstate Ins. Co., supra, 262 Conn. 452 (Borden, J., concurring), for the proposition that "it is less onerous to prove the tort of negligent infliction of emotional distress [than intentional infliction of emotional distress]"). Nevertheless, the plaintiff must allege something more than mere wrongful termination. "[T]he mere termination from employment, even if wrongful, does not justify a finding of negligent infliction of emotional distress absent unreasonable conduct by the defendant during the termination process." (Internal quotation marks omitted.) Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 597, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).

In the present case, Kontos alleges that in summarily terminating him and falsely accusing him of sexually harassing Wallace, Laurel House (count four) and Dougherty (count seven) knew or should have known that such conduct created an unreasonable risk of causing him emotional distress. He further alleges that he suffered depression, loss of self-esteem, extreme embarrassment and consternation as a result of the circumstances surrounding his termination.³ Whereas the Appellate Court has not yet determined whether false accusations of crime or other misconduct could constitute extreme and outrageous conduct, it has held that where the plaintiff alleged, inter alia, that the defendant had "falsely accused the plaintiff of wilful misconduct . . . such allegations, if proven, constitute a viable claim for negligent infliction of emotional distress." Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 6. In light of Olson, Kontos has pleaded sufficient facts to suggest that the manner in which Laurel House and Dougherty carried out Kontos' termination was sufficiently unreasonable to support a claim of negligent infliction of emotional distress. Therefore, the court denies Laurel House's and Dougherty's motion to strike counts four and seven of Kontos' amended complaint, which allege negligent infliction of emotional distress.

3 Kontos is not required to plead physical illness or injury in connection with his negligent infliction of emotional distress claim. According to the Connecticut Supreme Court in Carrol v. Allstate Ins. Co., supra, 262 Conn. 448, "[t]he only requirement is that the distress might result in illness or bodily harm." (Emphasis in original.) See also Moore v. Continental Casualty Co., 252 Conn. 405, 415, 746 A.2d 1252 (2000) ("Connecticut has long recognized the tort claim for negligent infliction of emotional distress without requiring an accompanying physical injury").

Conclusion

For the foregoing reasons, the court grants the defendants' motion to strike counts three and six of the plaintiff's amended complaint, and denies the defendants' motion to strike counts four and seven of the plaintiff's amended complaint.