Opinion
CV 05-401 09 00 S
June 5, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion #108.00)
The defendant, PARCC Health Care, Inc., doing business as Astoria Park, moves to strike counts two, three, four, six and seven of the plaintiff, Malika Martin's, revised seven-count complaint sounding in wrongful termination of employment. The complaint alleges a violation of General Statutes § 31-290a, breach of express contract, breach of implied contract, breach of the implied covenant of good faith and fair dealing, negligent misrepresentation, intentional infliction of emotional distress and negligent infliction of emotional distress. The court heard the matter at the short calendar on March 5, 2007. All that remains to be decided is the motion to strike the fourth, sixth and seventh counts. As discussed below, these counts must be stricken.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court must] assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
I COUNT FOUR: BAD FAITH
In support of its motion to strike, the defendant argues that because a statutory remedy is available to the plaintiff, her claim of breach of the implied covenant of good faith and fair dealing is barred. The plaintiff counters that the claim raises "questions of material fact" and that the defendant did not follow a progressive discipline policy contained in a manual.
Although the plaintiff argues that there is a progressive discipline policy contained in a manual, this is not pleaded.
"The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis added; internal quotation marks omitted.) Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985). Thus, as a general rule, the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim. See DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 501, 870 A.2d 1066 (2005); Burnham v. Karl Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000); Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 708, 874 A.2d 844 (2005).
"[A] common law claim for breach of the covenant of good faith and fair dealing for wrongful discharge . . . cannot be made because [General Statutes] § 31-[2]90[a] provides for a statutory remedy for discharge based on the filing of a workers' compensation claim." Stavena v. Sun International Hotels, Ltd., Superior Court, judicial district of New London, Docket No. 116974 (June 30, 2000, Corradino, J.). "Superior court cases and district court cases have fairly consistently held . . . that neither a wrongful discharge nor a breach of implied covenant claim are available where . . . the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced." Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.).
For its first count, the complaint alleges a violation of § 31-290a of the Workers' Compensation Act, General Statutes § 31-275 et seq. Specifically, the plaintiff alleges that "subsequent to the plaintiff's work-related injury the defendants discriminated against the plaintiff including terminating the plaintiff due to the plaintiff's exercising her rights in accordance with the . . . Workers' Compensation Act."
The existence of the remedies provided by the act preclude the plaintiff's breach of implied covenant claim because § 31-290a provides relief for retaliatory actions based on a plaintiff filing a workers' compensation claim or otherwise exercising her rights under the act. Knoblaugh v. Marshall, 64 Conn.App. 32, 33, 779 A.2d 218, cert. denied, 258 Conn. 916, 782 A.2d 1243 (2001). The plaintiff's cause of action in count one seeks to redress the retaliatory nature of her termination. Thus, count four is legally insufficient because it is barred by the availability of a statutory remedy.
Because the fourth count is stricken in view of the availability of an adequate statutory remedy, the court need not address the remaining arguments made by the defendant directed to this count.
II COUNT SIX: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant next moves to strike count six of the complaint, which alleges that the defendant committed an intentional infliction of emotional distress because it terminated the plaintiff's employment despite earlier representations that her job was secure and would not be terminated without just cause. The defendant argues that the plaintiff has not alleged extreme and outrageous conduct. The plaintiff counters that she has sufficiently alleged the elements of a claim for intentional infliction of emotional distress, and that the question of whether facts are sufficient to constitute severe and outrageous conduct is one for the jury, not the court.
Even if provable, the facts alleged in count six fail to adequately plead the plaintiff's cause of action for intentional infliction of emotional distress. To properly state a claim of intentional infliction of emotional distress, a plaintiff must allege, inter alia, facts necessary to establish that the conduct complained of was extreme and outrageous. Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "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." (Citation omitted; internal quotation marks omitted.) Id., 443.
"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." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
Reasonable minds could not differ that the facts alleged in the complaint do not rise to the level of extreme and outrageous conduct under the applicable law. The court cannot glean an allegation of extreme and outrageous behavior in this count or elsewhere in the complaint. The only conduct complained of by the plaintiff is that the defendant terminated her employment despite representations of job security. Our Supreme Court has recently reiterated that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).
Additionally, assuming that the defendant's motivation for terminating the plaintiff was wrongful, that fact alone cannot support an allegation of extreme and outrageous behavior where the plaintiff does not allege any additional improper conduct on the part of the defendant other than the alleged promise of job security. In this respect, the court sees no reason to depart from the "job security" case precedent in which similarly advanced claims were stricken. See Firgeleski v. Hubbell, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 98 0353287 (February 25, 1999, Melville, J.); Barbuto v. William Backus Hospital, Superior Court, judicial district of New London at Norwich, Docket No. 105452 (April 13, 1995, Hendel, J.); Neuharth v. Connecticut Institute for the Blind, Superior Court, judicial district of Tolland, Docket No. 42975 (March 8, 1991, Dunn, J.). Thus, count six is legally insufficient for failure to allege severe and outrageous conduct.
III COUNT SEVEN: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Finally, the defendant moves to strike count seven of the complaint for failure to allege facts relating to the defendant's conduct toward the plaintiff during the course of the termination process. The plaintiff counters that "the [d]efendant's actions in the discharge process in claiming for the first time that [the plaintiff] was performing `sub-par' work is sufficient to satisfy a claim for . . . negligent . . . infliction of emotional distress."
"The complaint contains no allegation that, during the discharge process, the defendant claimed that the plaintiff was "performing `sub-par' work." Indeed, it contains no allegation as to either the defendant's conduct in the termination process or the circumstances of the plaintiff's termination. "[T]o 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 . . . 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." (Citation omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted in part, 273 Conn. 914, 870 A.2d 1083 (2005); See generally Perodeau v. Hartford, supra, 259 Conn. 729. Thus, count seven is legally insufficient for failure to allege that the defendant's conduct during the termination process was unreasonable.
CONCLUSION
Based on the foregoing reasons, the court grants the defendant's motion to strike counts four, six and seven.