Opinion
No. CV07-4022729 S
March 25, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (MOTION #116.00)
FACTS
The matter presently before the court arises out of an employment relationship between the plaintiff, Megan Lamothe, and the defendant Philip Russell, LLC ("law firm"). The operative complaint is the Revised Complaint dated May 22, 2008 which essentially alleges that the plaintiff suffered injury and damage as a result of the conduct of the defendant Philip Russell, an employee of the law firm. The first and second counts of the complaint are claims of intentional infliction of emotional distress brought against Russell and the law firm, respectively; the third count, which was brought against the firm and alleged violations of Conn. Gen. Stat. § 31-370, has subsequently been withdrawn by the plaintiff.
The defendants filed their motion to strike on June 3, 2008. The plaintiff filed her objection and supporting memorandum of law on March 5, 2009. The matter was argued at short calendar on March 9, 2009.
Although the defendants did not technically meet the requirements of Practice Book § 10-42(a), which requires a motion to strike to be accompanied by a memorandum of law, the plaintiff did not raise the issue. As the motion itself includes the arguments and the legal authorities upon which the arguments are based, the court will not require strict adherence to the rule. See Benoit v. Edington, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 065006056 (March 13, 2009, Bellis, J.)
DISCUSSION
Before addressing the merits of this motion, the court sets forth the applicable 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, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (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, supra, 294.
The defendants have moved to strike the second and third counts of the revised complaint, on the grounds that the plaintiff has failed to allege conduct intended to cause emotional distress. In opposition, the plaintiff asserts that she has sufficiently alleged purposeful conduct intended to cause her emotional harm, by virtue of her allegation that "[o]n at least one occasion on or about June 2006, and in front of at least one attorney the plaintiff was working with, and in front of at least four other people, [Russell] grabb[ed] a cigarette out of the Plaintiff's mouth and/or hands, while screaming at the Plaintiff." Additionally, the defendants have moved to strike the claims of intentional infliction of emotional distress on the grounds that the plaintiff has failed to allege conduct that would be considered "extreme and outrageous" as required by law. In response, the plaintiff argues that she has sufficiently alleged extreme and outrageous conduct, as the revised complaint alleges that Russell constantly belittled the plaintiff told her she had health problems because she was overweight, and screamed and yelled at her in front of her coworkers and friends, while Russell was her supervising attorney in a position of authority over her. The plaintiff also argues that she continued her employment with the law firm based upon Russell's promises that he would no longer yell or scream at the plaintiff, with the reasonable inference that the defendants were on notice that Russell's actions were negatively affecting the plaintiff, and that she was susceptible to emotional distress. Finally, the plaintiff posits that because the alleged conduct by Russell was accompanied by physical touching, the allegations give rise to conduct that is "extreme and outrageous."
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . 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.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "[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 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 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." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"There is no bright line rule to determine what constitutes extreme and outrageous conduct . . . The court looks to the specific facts and circumstances of each case in making its decision . . . However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility . . . [T]hose cases in the employment context that have granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior are more often those that allege little more than that the plaintiff was terminated without just cause." (Internal quotation marks omitted.) Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72).
There are several Connecticut cases in which the courts concluded that a supervisor's discriminatory comments to an employee based on the employee's race, religion, or ethnicity, could be considered extreme and outrageous conduct.
In Leone v. New England Communications, Judge Quinn denied the defendant employer's motion to strike where the complaint alleged that the owners of the company referred to the plaintiff employee as "dago, wop, Father Sarducci or Gimabroni," made offensive comments to the plaintiff about homosexuality and his sexual performance, and placed sexually offensive comments and pictures on his computer. Leone v. New England Communications, supra, 32 Conn. L. Rptr. 72. The court noted that "there is a strong public policy expressed by statute in our state prohibiting discrimination on the basis of race, sex or national origin." Id. Based on this public policy and the factual allegations, the court found "these comments so outrageous in character, and so extreme in degree so as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Id.
In Monahan v. Bausch, Superior Court, judicial district of Fairfield, Docket No. CV 91 0280862 (September 11, 1991, Spear, J.), the plaintiffs alleged that the defendant, their supervisor, made "disparaging remarks about their religion and ethnic backgrounds" and harassed and humiliated them. Id. The court found the conduct alleged to be sufficiently extreme and outrageous to state a claim for intentional infliction of emotional distress and denied the defendant's motion to strike. Id.
In Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.), the plaintiff, an African American, alleged that her supervisor made disparaging remarks about African American people to her and treated her disparately. Id. The court concluded that "reasonable people could disagree as to whether the facts alleged . . . satisfy the extreme and outrageous requirement" and denied the motion to strike. Id.
This court, in Savage v. Andoh, Superior Court, judicial district of New Haven at New Haven, Docket No. 075015657 (April 11, 2008, Bellis, J.) [45 Conn. L. Rptr. 493] denied the defendant's motion to strike where the complaint alleged that the defendant, a faculty member at Southern Connecticut State University and chair of the University's Department of Economics and Finance, made derogatory and antisemitic remarks about the plaintiff who was Jewish and an economics professor in the same department.
These cases share as common threads conduct that took place in an employment context, where the tormentor was the employee's supervisor, who made derogatory comments to or about the plaintiff directly corresponding to the plaintiff's race or ethnicity. In each case, the court found the defendant's conduct to be extreme and outrageous. Cases from other jurisdictions corroborate the rule of these Connecticut decisions.
For example, in a federal case applying Maryland law, the court denied a motion to dismiss where the plaintiff's supervisors, despite plaintiff's repeated objections, addressed the plaintiff using anti-Semitic slurs. Smallzman v. Sea Breeze, 1993 U.S. Dist. LEXIS 288 (D.Md. 1993). In finding the defendants' conduct to be extreme and outrageous, the court emphasized the supervisory positions of the tormentors and their knowledge of the plaintiff's sensitivities to such conduct as aggravating factors. Id. Judge Corradino, in Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Milford, Docket No. CV 95 0050418 S (June 29, 1999, Corradino, J.), reviewed several similar cases from other jurisdictions in which courts have found the authoritative position of the defendant to be an important consideration in determining whether conduct is extreme and outrageous. See id., (citing, e.g., Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (App. 1981); Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977)).
There are also numerous cases involving claims of intentional infliction of emotional distress in an employer/employee relationship context, not involving an employee's race, religion or ethnicity. For example, the court in Negron v. Ream Cosmetic Packaging, Inc., Superior Court, judicial district of Litchfield, Docket No. 04 4000333 (January 11, 2006, Trombley, J.), denied the defendant factory owner's motion to strike where the plaintiff, an employee in the defendant's factory, alleged intentional infliction of emotional distress from the defendant's posting of photographs of the plaintiff implying he engaged in bestiality. See also Cole v. Terrell Moorehouse, Superior Court, judicial district of New Haven, Docket No. 99 0427337 (September 18, 2002, Robinson-Thomas, J.) (denying defendants' motion for summary judgment, finding issues of material fact as to whether conduct was extreme and outrageous and whether emotional distress was severe, where defendant, who was plaintiff's supervisor at the defendant Yale university, insulted and demeaned the plaintiff, shouted at her, roughly grabbed a document from her hands, and lunged at her, grabbing her hands when she was attempting to exit the supervisor's office). But see Engle v. Bosco, Superior Court, judicial district of New Britain at New Britain, Docket No. 054006996 (September 14, 2006, Robinson, R., J.) (Granting motion to strike, where plaintiff, an employee of the defendant manufacturing company, alleged that he and other employees were verbally abused by the defendant president of the company, who referred to them as "dumb mother fr**ers" and "brain dead," told them he wouldn't let them "lick [his] dead cats' balls" and that his "dead cat could do a better job" than them, stated that he would not let the plaintiff "lick the sweat off [his] balls," threatened to put the plaintiff under surveillance and/or terminate him, and spit at the plaintiff); Aquavia v. Shelton Board of Ed., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. 01 0075742 (July 22, 2003, Lager, J.) (granting motion to strike, where plaintiff, a school guidance counselor employed by the defendant school was told in writing, following a complaint by a colleague that the plaintiff had kissed a student albeit innocently, that it was "inappropriate," his colleagues subsequently shunned him, his office was relocated, and his supervisor told him that if it were up to the supervisor, he would not be given tenure).
The defendant cites to Morrissey v. Yale University, 268 Conn. 426 (2004) for support of its argument that "comments about being fat are insufficient to meet the extreme and outrageous element of an intentional infliction of emotional distress claim." In Morrissey, however, the comments were not directed to her by her supervisor or employer, but rather, by a co-worker's boyfriend. Simply put, that is an important distinction when addressing the issue of whether certain conduct or comments are outrageous. The same comment, while merely hurtful or embarrassing in one context, may very well be extreme and outrageous in another, and being insulted by the boyfriend of someone you work with as in Morrissey presents an entirely different situation than when the same words are used by an employer who is in a position of control over an employee, such as is alleged in the present matter.
In the present case, the plaintiff alleges, inter alia, that Russell, the "immediate supervising attorney of the plaintiff," constantly "belittled, berated, and screamed/ yelled" at the plaintiff, was "made the subject of harassment, verbal abuse and hostility" by Russell, was "[c]onstant[ly] mocking and teasing the Plaintiff by calling her `fat,'" was "[c]onstantly telling the plaintiff that she needed to park her car at the railroad station and . . . walk her fat a** from the railroad station to work." Furthermore, the complaint makes allegations beyond verbal acts, and claims that Russell threw objects at or near the plaintiff, and, on at least one occasion in front of others, grabbed a cigarette out of the plaintiff's mouth and/or hands, while screaming at her.
Here, the plaintiff has alleged conduct that goes beyond the merely embarrassing, temporarily hurtful, or bad manners, or even remotely normal to a working environment. The court does recognize that anxiety and distress are an unavoidable part of daily life, including the workplace. "[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). "Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflict and the like." However, here the complaint alleges extreme and outrageous conduct on the part of Russell who is in a position of power and control over her as her supervising attorney, in constantly screaming at and abusing the plaintiff verbally, coupled with physically throwing objects at or near her, and grabbing a cigarette out of her hands and/or mouth. As such, and in the context as alleged, the allegations in the complaint give rise to allegations of extreme, outrageous, indecent conduct intolerable by society, sufficient to withstand a motion to strike.
For the foregoing reasons, the defendants' motion to strike is denied.