Opinion
No. CV 00-0803888
July 16, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this revised six-count complaint seeking damages from the defendant, Mega Communications, LLC, the plaintiffs, Andres Marrero and Brenda Bertolini allege in counts one and two invasion of privacy; in counts three and four that the defendant violated General Statutes § 31-51q when it wrongfully terminated the plaintiffs from their place of employment; and in counts five and six negligent infliction of emotional distress.
The plaintiffs agree that they were both employed by the defendant and in March of 2000, that they entered into a romantic relationship; that the defendant held several meetings with the plaintiffs and asked "highly personal questions" about the nature of their relationship and thereafter requested that Marrero either resign or transfer to a different market due to his relationship with Bertolini; and that Bertolini was terminated due to her relationship with Marrero.
On September 6, 2002, the defendant filed this motion to strike all six counts.
I
The defendant moves to strike counts one and two of the revised complaint claiming that the plaintiffs fail to set forth sufficient allegations in order to support a cause of action for invasion of privacy, particularly by alleging that the defendant's conduct was "highly offensive to the reasonable person." The plaintiffs argue that it was sufficient to allege that the defendant's agents "made inappropriate inquiries and comments about the Plaintiff's relationship and morals, and premised the Plaintiffs' termination upon their relationship" and asks the court to find that defendant's actions were "highly offensive."
Invasion of privacy is a recognized cause of action in Connecticut. In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, CT Page 8413-eb 438 A.2d 1317 (1982), our Supreme Court stated:
[T]he 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. The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts 652A 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.
In Benton v. Simpson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0385675 (September 18, 2002, Rush, J.), Judge Rush commented:
The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another. Comments to the section of the Restatement adopted by the Supreme Court in Goodrich, however, state that "One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person" . . .
See also Delorge v. United States Fire Inc., Superior Court, judicial district of New London-Norwich at Norwich, Docket No. CV 990116794 (August 15, 2002, Hurley J.T.R..
In count one of the revised complaint, the plaintiffs allege that after they began dating, the defendant's agents ostracized them and asked them "highly personal questions" about their relationship; that the defendant suspended the plaintiffs because other employees felt "uncomfortable" with their relationship; that Marrero felt his privacy was invaded when the defendant's agent commented to him that "you know that you have three children and you have to pay child support" and that his relationship with Bertolini was at issue.
In count two of the revised complaint, the plaintiffs again allege that after they entered into a romantic relationship, the defendant's agents ostracized them and asked them "highly personal questions" about the nature of their relationship; that they were informed by the defendant's agent that other employees were "uncomfortable" with their relationship; and that Bertolini was told by the defendant's agent that she was viewed CT Page 8413-ec as "the other woman" and that Marrero was involved in a "common law marriage" with another woman, the mother of his three children.
Defendants point out that in Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 066603 (February 4, 2000, Nadeau, J.), 26 Conn.L.Rptr. 368, the trial court concluded that the plaintiffs had alleged sufficient cause of action for invasion of privacy because they had set forth allegations that the defendant had made comments concerning their sex lives, morals and physical appearances. In the present case, although the plaintiffs allege that the defendant's agents asked term "highly personal questions" concerning their relationship, they fail to allege the details of the "highly personal questions" they were asked or to otherwise support a claim that defendant's conduct would be considered "highly offensive" to the reasonable person. These counts are therefore legally insufficient in their present form.
II
In counts three and four, the plaintiffs argue that because of their personal relationship, the defendant terminated them for exercising their constitutional right to freedom of association, which "falls squarely within theft First Amendment right to free association, which is protected by § 31-51q."
The defendant moves to strike counts three and four of the revised complaint on the ground that each count is legally insufficient as a matter of law because the plaintiffs' rights to both "intimate and expressive association" are not recognized rights under the first amendment and, therefore, cannot be protected pursuant to § 31-51q.
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 . . .
Section 3 of the constitution of Connecticut provides in pertinent part:
The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state." Section 4 provides in relevant part: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." Finally, § 14 provides in pertinent part: "The citizens have a right in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by petition, address, or remorse.
In Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999), our Supreme Court stated: CT Page 8413-ed
[T]he statute [§ 31-51q] extends the protection of federal and state constitutional rights in two respects. It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers. The statute [§ 31-51q] plainly was intended to protect the first amendment and related state constitutional rights of working men and women. As a remedial statute, § 31-51q deserves a generous construction that implements its purpose at one of the important places, the private workplace, in which those rights may be impaired.
In Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the Supreme Court examined the two different types of association that are constitutionally protected and stated: "Freedom of [intimate] association receives protection as a fundamental element of personal liberty" and that a right to expressive association for the purpose of engaging in those activities is protected by the First Amendment. In Champagne v. Gintick, 871 F. Sup. 1527 (D.Conn. 1994), the district court categorized intimate association as a right protected under the Fourteenth Amendment although the right to expressive association originates in the First Amendment for the purpose of engaging in those activities protected by that Amendment such as speech.
Although the right to freedom of expressive association is a right protected under the First Amendment, or possibly the Fourteenth Amendment, in order to allege a violation of § 31-51q, pursuant to that right, the plaintiffs must allege: (1) that they were exercising rights protected either under the First Amendment to the United States Constitution or §§ 3, 4, or 14 under the constitution of Connecticut; (2) that they were disciplined or discharged by exercising these rights; and (3) that the exercise of these rights did not "substantially or materially interfere with [their] bona fide job performance or with [their] working relationship with [their] employer." Winik-Nystrup v. Manufacturers Life Ins. Co., 8 F. Sup.2d 157, 159 (D.Conn. 1998); see also Lowe v. Amerigas, Inc., 52 F. Sup.2d 349, 359 (D.Conn. 1999), aff'd., 208 F.3d 203 (2nd Cir. 2000).
In counts three and four the plaintiffs have failed to allege that the exercise of their First Amendment right to freedom of expressive association did not substantially or materially interfere with their job performance or their working relationship with the defendant, and these counts are therefore insufficient.
III
The defendant moves to strike counts five and six of the revised CT Page 8413-ee complaint on the ground that each count fails to state a cause of action for negligent infliction of emotional distress because the plaintiffs do not allege that the defendant's conduct occurred during the actual termination process. The plaintiffs argue that pretermination conduct by the employer should be considered sufficient if the alleged conduct was clearly related to the termination process.
In Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997), our Supreme Court has stated:
[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.
This court has previously relied on Parsons v. United Technologies Corp. in limiting an action for negligent infliction of emotional distress in an employment situation to the circumstances of the actual termination. Austin v. Sonitrol Comm. Corp. Inc., Superior Court, judicial district of Hartford, Docket No. CV 99 0589116 (December 3, 1999, Wagner, J.T.R.).
In count one of the revised complaint, the plaintiffs allege that Marrero was asked whether he would submit his resignation, in which he answered he would not resign; that Marrero was told that he could no longer work in the Hartford market but that he would have to work in either the Boston or New York market. The plaintiffs allege that Marrero was told a second time that he could no longer work in the Hartford market and that Marrero suffered a loss of employment. Nowhere in the revised complaint do the plaintiffs allege any facts indicating how Marrero was terminated, and this court has no basis on which to determine whether the defendant's conduct was unreasonable during the actual termination process.
It is noted that although in count two of the revised complaint, the plaintiffs allege that Bertolini received a memorandum informing her that her employment was terminated, the plaintiffs fail to allege any facts in the revised complaint from which this court could find that the defendant's conduct was unreasonable during the actual termination of Bertolini.
For the above mentioned reasons, defendant's motion to strike counts one through six of the plaintiffs' revised complaint is granted. CT Page 8413-ef
Wagner, JTR