MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT/MOTION TO STRIKE (Motion #127)

ARTHUR A. HILLER, J.

FACTS

This matter arises out of the termination of employment of the plaintiff, Malika Martin, from the defendant, PARCC Health Care, Inc., doing business as Astoria Park, where the plaintiff was formerly employed as a certified nurse's assistant. In her amended complaint, the plaintiff alleges the following facts. In 1997, the plaintiff began working at Astoria Park, which is a healthcare facility located in Bridgeport, Connecticut. During the course of her employment, the plaintiff contends that her employer made representations that her job was secure, that she would only be fired for just cause and that Astoria Park would use a progressive discipline policy should any problems arise. Consequently, the plaintiff did not attempt to obtain alternate employment. On March 19, 2001, the plaintiff suffered an injury in the workplace, for which she received medical treatment and was compensated under the Connecticut Workers' Compensation Act. In July 2002, Astoria Park terminated the plaintiff's employment on the ground that she was unable to perform work-related tasks. The plaintiff contends that she was still able to work adequately, and was actually fired in retaliation for the exercise of her workers' compensation rights. Accordingly, the plaintiff's seven-count complaint alleges causes of action against the defendant for (1) violation of General Statutes § 31-290a (Workers' Compensation Act), (2) breach of express contract, (3) breach of implied contract, (4) breach of the implied covenant of good faith and fair dealing, (5) negligent misrepresentation, (6) intentional infliction of emotional distress and (7) negligent infliction of emotional distress.

On October 1, 2008, the defendant filed this motion for judgment and motion to strike counts two, three, four, six and seven. The defendant also filed a memorandum of law in support and the plaintiff has filed a memorandum of law in opposition. Notably, on June 5, 2007, this court previously granted the defendant's motion to strike counts four, six and seven from an earlier iteration of this complaint. The plaintiff then proceeded to replead these counts in an amended complaint that was filed on June 25, 2007. As this amended complaint was filed outside the fifteen-day time period provided in Practice Book § 10-44 for repleading a stricken complaint, the defendant has first moved to enter judgment against the plaintiff on these counts. Since all of the issues raised in this motion can be dealt with via a motion to strike, this decision will proceed as such.

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). Consequently, "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gutlack v. Gutlack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993), citing Practice Book § 10-39. In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[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-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, the moving party "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Finally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

I COUNTS TWO AND THREE: BREACH OF EXPRESS AND IMPLIED CONTRACT

In its memorandum of law, the defendant argues that counts two and three alleging breach of express and implied contract must be stricken because the complaint only states legal conclusions and does not allege facts that establish a contract between the parties. In response, the plaintiff contends that she has pleaded sufficient facts to establish these causes of action, "Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity." Campbell v. Plymouth, 74 Conn.App. 67, 74, CT Page 17809 811 A.2d 243 (2002). Nevertheless, "[p]ursuant to traditional contract principles . . . the default rule of employment at will can be modified by the agreement of the parties." Torosyan v. Boehringer Ingelheim, Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). "The rules governing contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . If the minds of the parties have not truly met, no enforceable contract exists." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30 (2006). "A contractual promise cannot be created by plucking phrases out of context, there must be a meeting of the minds between the parties." (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). "[T]o survive a motion to strike, the allegations [in a complaint alleging breach of contract] must include . . . specific factual allegations concerning the formation and terms of the express contract that [the plaintiff] claims she had with the defendant." (Internal quotation marks omitted.) Dubowsky v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 03 0522892 (April 13, 2006, Shapiro, J.).

In count two, the plaintiff has alleged that the defendant "expressly misrepresented to the plaintiff, Malika Martin, that she would not be terminated without just cause and represented to the plaintiff that a progressive disciplinary policy would be used prior to the discharge of an employee including the plaintiff . . . [and that the defendant] breached an express contract of employment with the plaintiff that her job was secure and that a progressive disciplinary policy would be used." From the outset, it is apparent that these contentions are insufficient to allege any express contract between the parties. Nowhere in count two does the plaintiff allege that there was even an agreement between the plaintiff and her employer, let alone that such an agreement rose to the level of contract formation. By its plain terms, the language of count two simply alleges that the defendant employer made representations to its employee regarding certain employment policies, and the complaint labels such statements as an express contract. In Dubowsky v. New Britain General Hospital, Judge Shapiro granted a defendant's motion to strike in a factually similar case. He wrote that "[the plaintiff] alleges that she was wrongfully discharged in violation of her express contract and implied agreement with the defendant, and the defendant failed to comply with its personnel policies, including promises of job security and continued employment and failed to conform to its promulgated job security procedures, including just cause provisions and policies, and procedures in connection with progressive discipline to which she was entitled as a regular, full-time employee." The allegations in this complaint are virtually identical, if not less specific than those in Dubowsky, and Judge Shapiro ruled that these contentions amounted to legal conclusions. The same result is mandated here. Accordingly, count two is stricken for failure to allege an express contract between the parties.

Count three states virtually the same allegations as count two, except the phrase "implied contract" is substituted for "express contract." In Connecticut, "[a] contract implied in fact, like an express contract, depends on actual agreement . . . Accordingly, to prevail on [her breach of contract] claim, which alleged the existence of an implied agreement between the parties, the plaintiff ha[s] the burden of proving by a fair preponderance of the evidence that the [defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause . . ." (Citations omitted; internal quotation marks omitted.) Burnham v. Karl and Gelb, P.C., 50 Conn.App. 385, 388, 717 A.2d 811 (1998). Since the allegations of count three mirror those of count two, the plaintiff has failed to plead sufficient facts to state a cause of action for breach of implied contract. Count three does not mention any facts that could demonstrate an implied agreement on the part of the employer to only discharge the plaintiff for cause or to bind itself to only utilize a progressive disciplinary policy. There are simply no facts alleged, shown by either words or conduct, that the defendant entered into any contractual agreement with the plaintiff. As a result, the plaintiff has once again only stated a legal conclusion that there was a contract between the two parties and the court grants the defendant's motion to strike count three.

II BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Count four states a claim for breach of the implied covenant of good faith and fair dealing. In the previous motion to strike, this court ruled that count four must be stricken because the plaintiff had pleaded a statutory remedy, General Statutes § 31-290a, in count one. In this amended complaint, the plaintiff has repleaded the exact same language in count four, with an addition in the count's heading that count four is "as an alternative cause of action to the First Count." In its memorandum of law, the defendant argues that the court once again must strike count four, while the plaintiff contends that she is allowed to plead in the alternative.

As a general rule, the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim. See DeOliveria 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). The Appellate Court has held that when a statutory remedy is available to the plaintiff "an action brought on the basis of an alleged breach of the implied covenant of good faith and fair dealing is precluded." Campbell v. Plymouth, 74 Conn.App. 67, 75, 811 A.2d 243 (2002); see also Stavena v. Sun International Hotels, Ltd., Superior Court, judicial district of New London, Docket No. 116974 (June 30, 2000, Corradino, J.) ("[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); Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.) ("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"). While it is true that Connecticut often allows for pleading in the alternative, even when the theories are completely inconsistent, see, e.g., Drier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985), the above cited cases make clear that the determinative factor is the availability of a statutory remedy. Since the plaintiff has pleaded a violation of § 31-290a in count one, which alleges retaliatory discharge, and a breach of the implied covenant of good faith and fair dealing in count four arising out of the same conduct, the plaintiff cannot proceed with count four. As an additional reason for striking this claim, it should be noted that since counts two and three have already been stricken, without these this count fails to adequately plead the existence of a contract, and a breach of the implied covenant of good faith and fair claim dealing requires an underlying contract. See, e.g., Chase Home Finance v. Albert, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 07 5004615 (June 3, 2008, Moran, J.T.R.) (the defendant's actions "could not constitute a breach of the covenant of good faith and fair dealing because no contract was in existence at the time"). Accordingly, count four is once again stricken.

III INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The defendant has also moved to strike count six of the complaint alleging intentional infliction of emotional distress because the plaintiff has not pleaded sufficiently "extreme and outrageous" conduct. In her memorandum in opposition, the plaintiff argues that she has pleaded sufficient facts to establish this element. "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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). The extreme and outrageous element is only satisfied "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 society. 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.) Id., 443. Determining "[w]hether 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.) Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).

Count six was previously stricken by this court because the plaintiff had not alleged any facts that could establish the "extreme and outrageous" element of this tort. At that time, the plaintiff had merely contended that she was wrongfully terminated even though the defendant had made representations implying she had some level of job security. As a matter of law, such conduct did not satisfy the extreme and outrageous element because "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially intolerable behavior." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).

In this amended complaint, the plaintiff has added the allegations that the "the defendant knew that the plaintiff satisfactorily performed her job duties but intentionally made representations knowing that they were not accurate and accused the plaintiff of performing sub-par work" and "the defendant contrary to the plaintiff's satisfactory work performance, intentionally accused the plaintiff of performing sub-par work." When determining whether alleged conduct can possibly satisfy the "extreme and outrageous" element, it is often best to look at examples. Indeed, the two cases cited in the defendant's memorandum of law are very instructive. According to the Supreme Court, conduct such as the following does not constitute "extreme and outrageous" behavior: (1) an employer making condescending comments in front of the employee's colleagues regarding her abilily to read and see, (2) telephoning an employee's daughter to tell her that the plaintiff "had been acting differently" and should take some time off from work, (3) forcing the employee to leave the building via a police escort and (4) subjecting an employee to two psychiatric examinations. Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000); see also Dollard v. Board of Education, 63 Conn.App. 550, 552, 774 A.2d 714 (2001) (allegations that "the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position . . . [where] [t]he defendants carried out their plan by hypercritically examining every small detail of [the plaintiff's] professional and personal life" did not rise to the level of "extreme and outrageous"). If such conduct did not qualify as "extreme and outrageous," simply alleging that agents of the defendant referred to the plaintiff's work as "sub-par" would certainly not qualify. As a result, this court grants the defendant's motion to strike count six.

IV NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Finally, the defendant moves to strike count seven, negligent infliction of emotional distress, for failure to allege legally sufficient conduct to establish this tort. Under Connecticut law, "negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . [t]he 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." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 750. There must be "evidence that the manner of the plaintiff's termination from employment was different . . . from the usual termination of employment or that it was done in [a] way that would cause . . . more than the normal upset that would result from any termination of employment." (Internal quotation marks omitted.) Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 480-81, 714 A.2d 1261 (1998). This court struck count seven in the previous motion to strike because the plaintiff failed to allege any conduct regarding a termination procedure. In her amended complaint, however, the plaintiff now alleges that "[t]he defendant also knew that the plaintiff satisfactorily performed her job duties but intentionally made representations knowing . . . that said representations were not accurate and accused the plaintiff during the termination process of performing sub-par work." As a result of this language, the plaintiff has at least cured her defect from the original complaint, in that she has pleaded conduct regarding termination proceedings.

Nevertheless, Perodeau and Chieffalo still require that the defendant's conduct in the termination proceedings be unreasonable in order to sustain a negligent infliction of emotional distress claim. The plaintiff's only allegation of arguably unreasonable conduct during the termination procedure is that the defendant accused the plaintiff of sub-par work. As a matter of public policy, such an allegation must be insufficient. If an employer could not tell a fired employee that it was terminating her employment because of her poor work habits without subjecting itself to liability for negligent infliction of emotional distress, then an employer would essentially be unable to ever tell an employee why she was getting fired. Moreover, policy dictates that an employer should be able to communicate why he is firing an employee. Indeed, it happens every day, and therefore it cannot be deemed unusual or unduly harsh for an employer to tell its employee that her work was not sufficient. Without any claim of more egregious conduct, this plaintiff cannot state a claim for negligent infliction of emotional distress, and count seven is hereby stricken.

CONCLUSION

For the above stated reasons, this court grants the defendant's motion to strike counts two, three, four, six and seven.