Opinion
No. 455318
April 5, 2005
MEMORANDUM OF DECISION
RE MOTION TO STRIKE (No. 111)
The motion to strike now before the court raises issues concerning the "under color of state law" requirement of 42 U.S.C. § 1983 and the "outrageousness" element of the common law tort of intentional infliction of emotional distress. For the reasons briefly explained below, the motion must be granted in part and denied in part.
The plaintiff, Rose Nelson, commenced this action by service of process on September 4, 2001. The defendants are Yale University; James Perrotti, the Chief of the Yale Police Department (YPD); and Peter Brano, a sergeant in the YPD. Nelson's Second Revised Complaint consists of two counts. Count One, alleging a violation of the Equal Protection Clause, is brought pursuant to 42 U.S.C. § 1983. Count Two alleges intentional infliction of emotional distress.
Count One specifically alleges that from 1998 to 2000, Nelson was employed as a Yale Police Officer. After Nelson's graduation from the Police Academy in March 1999, Brano was her immediate supervisor. Count One alleges that Brano refused to permit Nelson to work alone as an officer, showed up at her motor vehicle stops, removed the handcuffs from a suspect Nelson had just arrested, publicly ridiculed her determination concerning a student's medication, ordered her to write up an incident report on a matter in which she had not been involved, falsely accused her of incompetence, refused to provide backup support, gave her undesirable beat assignments, and caused disciplinary action to be brought against her because of what she terms a "minor error" in a police report. Paragraph 11 of Count One alleges that, "Thereafter, on March 16, 2000, defendant Perrotti ordered the plaintiff to appear at a meeting with him and caused her to be informed that at that meeting he expected her to `beg' for her job. After she did so, he and defendant Yale University immediately fired the plaintiff." Count One finally alleges that "[n]o male Yale Police officer similarly situated to the plaintiff has been subjected to the type of treatment to which the plaintiff was subjected.
Count Two incorporates by reference the factual allegations contained in Count One and further alleges that, "the defendants intentionally . . . subjected the plaintiff to severe emotional distress."
On April 4, 2003, the defendants filed the motion to strike now before the court. The motion seeks to strike both counts of the Second Revised Complaint. The motion contends that Count One is legally insufficient because its allegations that the defendants acted "under color of state law" in their specific dealings with the plaintiff fall short of the mark established by federal law. It further contends that Count Two is legally insufficient because the allegations fail to describe conduct that is sufficiently "extreme and outrageous" to qualify as the intentional infliction of emotional distress. Following a delay of Dickensian proportions, the motion was argued on the second anniversary of its filing, April 4, 2005. The court will now review the contentions of the motion with respect to each count.
Count One.
42 U.S.C. § 1983 provides that, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . ." A person claiming a violation of his rights under this statute must consequently show state action. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
The defendants in this case wear both public and private hats. On the one hand, they are empowered by the State to make arrests. When they act in that capacity, with respect to third parties, they may appropriately be deemed state actors. On the other hand, they are employed by Yale University, a private corporation. When they make personnel decisions, of the sort alleged here, they are not state actors. With respect to hybrid actors of this description, the court must begin "by identifying the specific conduct of which the plaintiff complains." American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 51 (1999). (Citation and internal quotation marks omitted.) The question is "whether the allegedly unconstitutional conduct is fairly attributable to the State." Id. The analysis of a recent decision of the United States Court of Appeals for the Second Circuit is helpful on this point:
Conduct that is ostensibly private can be fairly attributed to the state only if there is "such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself' " Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 . . . (2001) . . . The management of a corporation is not a public function; and a state's permission for a corporation to organize itself in a particular manner is not the delegation of governmental authority.
Tancredi v. Metropolitan Life Insurance Co., 316 F.3d 308, 312-13 (2d Cir.), cert. denied, 539 U.S. 942 (2003).
A private corporation's "exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so `state action' for purposes of the Fourteenth Amendment." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). (Footnote omitted.) As far as the complaint at issue here indicates, the initiative for the actions of which Nelson complains came entirely from Yale University and its employees and not from the State. There is no suggestion in the complaint that the State "intended either overtly or covertly to encourage the practice." Id. n. 17. The fact that the defendants may act under color of state law when they deal with third parties (e.g., when those third parties are arrested) does not transform them into state actors when they engage in personnel decisions with respect to fellow employees, such as Nelson.
Because Nelson's claims in Count One fail for lack of a sufficient allegation of state action, the motion to strike must be granted with respect to this count.
Count Two. CT Page 5921
Count Two, as mentioned, incorporates the factual assertions of Count One and alleges the intentional infliction of emotional distress.Our Supreme Court has recently explained that:
Liability for intentional infliction of emotional distress 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!"
Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004). (Citation, internal quotation marks, and brackets omitted.)
Nelson's allegations with respect to the actions of Brano do not approach the level of outrageousness required by Morrissey. The indignities assertedly visited upon Nelson by Brano, recounted in the complaint, may have been mean spirited and overbearing but are not so extreme in degree as to go beyond all possible bounds of decency. Employees often find the conditions of their employment to be unpleasant and even unjustifiable, but there is a distinction between the ordinary indignities of the workplace and truly "atrocious" conduct. Brano's alleged misconduct did not cross this line.
Nelson's allegations with respect to Yale and Perrotti are, however, of a different magnitude. As recounted above, Nelson alleges, in paragraph 11 of her complaint, that Perrotti ordered her "to appear at a meeting with him and caused her to be informed that at that meeting he expected her to `beg' for her job. After she did so, he and defendant Yale University immediately fired [her]." The scenario of an employer who specifically orders a subordinate to "beg" for her job and, immediately after she so begs, fires her, is that of an employer who has crossed the line into real atrocity. Such action by an employer, if proven, would be deemed outrageous by almost any group of citizens. The scenario alleged in paragraph 11 bears an uncomfortable resemblance to that of a heartless killer who orders his victim to beg for her life and then kills her anyway. Whether the plaintiff will prove this allegation remains to be seen, but she is entitled to try.
For these reasons, the motion to strike Count Two must be granted with respect to defendant Brano and denied with respect to defendants Yale and Perrotti.
As mentioned, the motion to strike Count One is granted with respect to all defendants.
Jon C. Blue Judge of the Superior Court