Opinion
No. CV-03-0472301 S
January 11, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
The plaintiff in this case was formerly the Waterbury Regional Director of the Connecticut Small Business Development Center. In 1997 the defendant Dennis Gruell was appointed State Director of the program. The defendant Thomas Gutteridge at the relevant times in question was Dean of the University of Connecticut School of Business and "ultimately in charge" of the center according to the Amended Complaint. The defendant Virginia Miller was an Assistant Vice Chancellor for Human Resources. The complaint asserts a claim of Intentional Infliction of Emotional Distress against all three defendants. It is alleged that Gruell subjected the plaintiff to very abusive treatment at two meetings in one-on-one situations and before others with whom the plaintiff had to work. It is alleged that Gruell had a hatred of women which Gutteridge was aware of yet he appointed Gruell to his position and took no action to protect the plaintiff.
The plaintiff took her complaints of ongoing mistreatment to her union representative but "the defendants" retaliated by denying her the right to take a prepaid vacation, not adequately staffing her office or providing her with an adequate computer, and locating her office far from downtown.
A payroll authorization was signed to continue the plaintiff in her position for the year commencing October 1, 1998 but she was then wrongfully terminated for pretextural reasons.
The defendants Miller and Gutteridge were aware of Gruell's abusive behavior; in fact an agreement was worked out limiting Gruell's contacts with the plaintiff. But Miller and Gutteridge did not enforce the terms of the agreement. Based on the foregoing the plaintiff advances the state tort claim against all defendants.
Prior to this action the plaintiff's union filed a complaint with the Connecticut State Labor Relations Board raising the foregoing allegations and claiming her termination from employment was based on anti-union bias. The claim was that Gruell's actions violated the collective bargaining agreement and the University (Miller and Gutteridge), because of the plaintiff's complaints about his actions, retaliated by firing Oppenheim. The Labor Board dismissed the complaint.
In an action filed in federal district court the foregoing allegations were also made. Judge Chatigny dismissed the 42 U.S.C. § 1983 cause of action, ruling it did not meet the "shocks the conscience" standard. ( Oppenheim v. Gutteridge et al, 225 F.Sup.2d 185, 188 (2002).) The federal court declined to exercise jurisdiction over the state tort claims of intentional infliction of emotional distress and dismissed them without prejudice. This state action was then brought.
The defendants have filed a motion to dismiss and/or motion for summary judgment.
The motion to dismiss is based on two grounds. It is claimed that the defendants are entitled to common-law sovereign immunity since it cannot be established that any of the defendants acted in excess of statutory authority. At argument the defendants withdrew this defense. The defendants still maintain, however, that the court should dismiss the complaint under the statutory immunity provided by § 4-165 of the General Statutes.
In the alternative the defendants have moved for summary judgment and argue that the "plaintiff is collaterally estopped from re-litigating her intentional infliction of emotional distress claim based on the federal court's factual findings and decision regarding the substantive due process claim and the State Labor Board's Decision that the defendants' action were reasonable and did not demonstrate hostility or animus toward plaintiff." Also it is argued that in any event a case of intentional infliction of emotional distress cannot be made out based on the facts before the court.
The court will address the summary judgment motion first dealing with the collateral estoppel argument initially. The court will then discuss the motion as it applies to each defendant and finally refer to the statutory immunity question under § 4-165 of the General Statutes.
I. MOTION FOR SUMMARY JUDGMENT (A) Collateral Estoppel
The defendants rely on the doctrine of collateral estoppel for one aspect of their motion for summary judgment. In effect the claim is that rulings by prior tribunals — federal district court and the Labor Relations Board — define and limit the scope of the legal and factual issues that may be considered by this court in ruling on the summary judgment motion.
In a prior ruling in the district court dismissing a 42 U.S.C. § 1983 action the court there held the plaintiff's right to substantive due process under the Fourteenth Amendment was not violated due to her wrongful termination from employment. Oppenheim v. Gutteridge et al., 225 F.Sup.2d 185 (2002). At page 188 the court said the "Plaintiff claims that her right to substantive due process was violated by Gruell when he mistreated her and by all three defendants when they retaliated against her for complaining to her union representative."
The defendants also claim that the plaintiff is collaterally estopped by what they say is "the State Labor Board's decision that the defendants' actions were reasonable and did not demonstrate hostility or animus toward plaintiff."
Before dealing with each of these two claims it would be helpful for the court at least to review some basic distinctions between res judicata and collateral estoppel and the elements that must be found for the latter doctrine to apply.
In 46 Am.Jur.2d, "Judgments," § 516 at page 780 it says:
The doctrine of res judicata is composed of two parts: claim preclusion and issue preclusion. Claim preclusion prohibits a party from relitigating a previously adjudicated cause of action, and entirely bars a new lawsuit on the same cause of action. Issue preclusion, or collateral estoppel, applies to a subsequent suit between the parties on a different cause of action. Collateral estoppel prevents the parties from relitigating any issue that was actually litigated and finally decided in the earlier action. The issue decided in the earlier action must be identical to the one presented in the subsequent action. The most important criterion in determining whether two suits concern the same controversy is whether they both arose from the same transactional nucleus of facts. If so, the judgment in the first action is deemed to adjudicate, for purposes of the second action, every matter that was urged, and every matter that might have been urged, in support of the cause of action or claim in litigation.
In Conn. National Bank v. Rytman, 241 Conn. 24, 34-44 the court said the following:
Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, "[u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim for any claim based on the same operative facts that] might have been made . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Emphasis in original; internal quotation marks omitted.)
In order for there to be issue preclusion the issue in the prior action has to be identical to the issue in the present litigation. Midgett v. Cook Inlet Pre Trial Facility, 53 P.2d 1105, 1110 (Alaska, 2002); Bells v. Townsends, Inc., 765 A.2d 531, 535 (Del. 2000); United Fire Casualty Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 655 (Iowa, 2002), 46 Am.Jur.2d "Judgments," § 539, page 809. The Restatement (2d) Judgment is less definitive, at § 27, page 252 it seems to suggest "total identity" does not necessarily preclude application of the doctrine. At comment c to § 27 at page 252 the following remarks are made:
c. Dimensions of an issue. One of the most difficult problems in the application of the rule of this Section is to delineate the issue on which litigation is, or is not, foreclosed by the prior judgment. The problem involves a balancing of important interests: on the one hand, a desire not to deprive a litigant of an adequate day in court; on the other hand, a desire to prevent repetitious litigation of what is essentially the same dispute. When there is a lack of total identity between the particular matter presented in the second action and that presented in the first, there are several factors that should be considered in deciding whether for purposes of the rule of this Section the "issue" in the two proceedings is the same, for example: Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action and reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings?
The court will now examine a Connecticut case that deals with some of the foregoing considerations. In Daoust v. McWilliams, 49 Conn.App. 715 (1998) the plaintiff's federal civil rights action had been dismissed. The federal district court declined to take jurisdiction on various state claims. A motion for summary judgment was filed in the state action in which the defendant claimed the plaintiff was collaterally estopped from pursuing his state claims because the district court had dismissed conceptually related federal claims. The Daoust court noted that the district court dismissed a 42 U.S.C. § 1983 claim based on malicious prosecution relying on a Second Circuit case defining the elements of this tort under federal common law. The district court had found that the plaintiff failed to establish one of the required elements. In holding that the state malicious prosecution was correctly dismissed the Daoust court noted that as to the federal common-law requirements of this tort: "These common law elements are identical to those necessary under Connecticut law." Id., page 728. Under Daoust then, a trial court faced with a collateral estoppel argument to the effect that a state claim remanded to state court after a federal claim was dismissed by the district court should dismiss the state claim if the federal claim has elements "identical" to those that must be proven to establish the state claim.
(1.) Actions of Federal District Court
As mentioned, in this case the district court dismissed the plaintiff's § 1983 substantive due process claim because it could not find that the facts alleged satisfied the prerequisite of being shocking to the conscience, a prerequisite for the type of substantive due process claim made in the district court.
The defendant's collateral estoppel argument as it relates to the district court's dismissal of the substantive due process claim in federal court requires this court to find that the "shocks the conscience" test for a due process violation equates with and is identical to that aspect of the state common-law claim for intentional infliction of emotional distress which requires proof of "extreme and outrageous" conduct by the defendant. The court must therefore define that aspect of the state tort first. Peytan v. Elles, 200 Conn. 243 (1986) which recognized the tort indicated by its reference to Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 62 (1994) and its discussion at pages 253-54 that it adopted the Restatement (Second) Torts § 46 requirements for this cause of action. The Restatement at comment d says the following in defining "extreme and outrageous conduct."
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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!'
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.
The court will discuss now whether the elements necessary to prove a "shocks the conscience" due process claim under § 1983 are identical to those elements necessary to establish the tort of intentional infliction of emotional distress.
A close examination of the "shocks the conscience" standard as applied in federal court seems to indicate that, however rigorous the requirements are for the common-law tort of intentional infliction of emotional distress a substantive due process claim must satisfy a higher degree of outrageous conduct. This is not surprising since the substantive due process standard found its genesis in the case of Rochin v. California, 342 U.S. 165 (1952), where state officers seized an individual on drug charges after he swallowed two capsules. They then took the man to the hospital. The court found a substantive due process violation because at the hospital at the officers' direction "a doctor forced an emetic solution through a tube into Rochin's stomach against his will. This `stomach pumping' produced vomiting. In the vomited matter were found two capsules which proved to contain morphine." Id., p. 166. The court at page 172 said "illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. There are methods too close to the rack and the screw to permit of constitutional differentiation."
The federal cases with Rochin as background seem to underline the importance of physical violence or explicit and immediate physical threats to a person's safety; Judge Chatigny relied in part on DeLeon v. Little, 981 F.Sup. 728 (D.Conn. 1997) where the court noted that the acts necessary to satisfy the shocks the conscience test "must be such as to offend even hardened sensibilities or constitute force that is `brutal' and `offensive to human' dignity. Id., p. 735. One of the things noted by the DeLeon court is that although the defendant requested that the plaintiff buy drugs for her and stand by while she used them, there was "no evidence that the defendant threatened plaintiff with physical violence or the loss of her job if she failed to comply." Id. The DeLeon case is instructive from another perspective. At 981 F.Sup. pp. 737 et seq. that court retained a claim under our law of intentional infliction of emotional distress. It reviewed the same facts on the state claim as were before it on the § 1983 substantive due process claim (the situation here) and dismissed the state claim too. The interesting thing to note is that not once did DeLeon in its discussion of the state claim refer to the "shocks the conscience" standard or cite federal case law thereunder to elucidate what might be that outrageous conduct that is necessary to establish the state tort. It cited Jones v. T.V.A., 948 F.2d 258, 266 (CA 6, 1991), which also decided a Tennessee state law claim of intentional infliction of emotional distress over which it retained jurisdiction. In dismissing the state tort the Jones court referred to the Restatement and Tennessee cases but never alluded to federal case law and the shocks the conscience standard for substantive due process. All of this is very odd if the federal courts thought that the identical issue was presented by a federal "shocks the conscience" claim and that aspect of a state claim of intentional infliction of emotional distress requiring extreme and outrageous conduct.
The difference between the two claims is further underlined by reference to the language of a commentator and a federal Supreme Court case.
In Steinglass's Section 1983 Litigation in State Courts, Vol. 1, § 3.6, page 3-45 it is noted that "Substantive due process claims arise most often in § 1983 litigation involving the excessive use of force by police or other law enforcement officials." The point really is that the requirements of proving a state claim of intentional infliction of emotional distress are quite high but after all it is a common-law claim. The court in County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998), thus said:
"It should not be surprising that the constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability."
(Emphasis by this court.)
Nothing in the Restatement and thus in our law requires explicit physical threats or the application of force to meet the threshold requirements of the state tort under discussion. Humiliation and the creation of a shocking or frightening experience can qualify if severe emotional distress is caused. Thus § 46 of the Restatement in its "Illustrations" to comment d which discusses "extreme and outrageous conduct" at pp. 73-74 talks of a practical joke falsely telling a wife her husband was seriously injured or giving a woman a bathing suit that dissolves in pool water as being the type of conduct that qualifies as "extreme and outrageous conduct." This is certainly not what the federal shocks the conscience cases dealing with substantive due process violations had in mind.
This court, therefore, will not give collateral estoppel effect to the dismissal of the substantive due process § 1983 claim in district court so as to require it to grant the defendants' motions for summary judgment.
(2.)
The defendants also advance another collateral estoppel claim. As noted the argument is made that "the State Labor Board's decision that the defendants' actions were reasonable and did not demonstrate hostility or animus toward plaintiff," should bar the intentional infliction of emotional distress claim. The court will make preliminary remarks on this matter and continue the discussion as it concentrates on the motion against each defendant later in the opinion.
In 46 Am.Jur.2d § 580, pp. 856-57, "Judgments" it is noted that "a growing number of jurisdictions" give collateral estoppel effect to the decisions of public officers or boards. But "in order for the doctrine of collateral estoppel to be invoked, the officer or board must have been acting in a judicial capacity, and there must be an identity of issues which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling." Id.
Connecticut accepts the notion of administrative collateral estoppel. Cf. Fink v. Golenbock, 238 Conn. 183, 195 (1996); Convalescent Center of Bloomfield v. Dept. of Income Maintenance, 208 Conn. 187, 195 (1988) said that for the doctrine to apply the parties who litigated before a board must have access to judicial review. Id., at pp. 195-202. The defendants did not address this predicate requirement but the provisions of the State Employees Relations Act § 5-270 et seq. provide for a hearing at which the board appears to act in a judicial capacity, § 5-274(a)(b), and (c) and the decision of the Board of Labor Relations which is attached to the defendants' motion indicates the Board acted in such manner here. Also subsection (d) of § 5-274 provides for the right to appeal.
The posture of the collateral estoppel question is somewhat different as it relates to the actions taken by the Labor Board as opposed to the decision on federal district court regarding this plaintiff's claims. In Oppenheim v. Gutteridge, 225 F.Sup.2d supra at page 188 the district court viewed the facts in a light most favorable to the plaintiff and still granted the defendants' motion for summary judgment by concluding the federal "shocks the conscience" standard had not been met. This court in making its collateral estoppel analysis confined itself to examining the various elements of two separate claims — a § 1983 shocks the conscience claim versus a state tort claim of intentional infliction of emotional distress. The task was to decide if the legal issue before the federal court was the same legal issue before this court or, perhaps less woodenly, whether the separate federal and state claim require the establishment of identical elements a la Daoust.
By way of contrast the Labor Board had to resolve a complaint filed by the plaintiff's union to the effect that the University had repudiated the collective bargaining agreement by Gruell's actions and because she complained retaliated by firing her thus violating protected rights. No issue of a legal nature was before the Board which could be defined as raising the same elements as would be involved in establishing the common-law tort now before this court. But this does not foreclose the defendants from arguing collateral estoppel regarding the actions or decision of the Labor Board.
The identity of issues test for collateral estoppel is not confined solely to the manner in which a prior court, tribunal, or board resolved legal questions but applies to issues of fact actually litigated. In New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001), the court said: "Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to prior judgment, whether or not the issue arises on the same or a different claim" (emphasis by this court), see also § 27 of Restatement (2d) Judgments at page 250; Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 297 (1991). But the point is that for collateral estoppel effect to be given the issue of fact must be actually litigated. Thus in Corey v. Avco-Lycoming, 163 Conn. 309, 317 (1972) the court quoted from an earlier case to the effect that a judgment on a prior cause of action was not conclusive in the trial of a subsequent and different cause of action "as to questions of fact not actually litigated and determined in the first action," see also Scott v. Scott, 83 Conn. 634, 638 (1910); 46 Am.Jur.2d "Judgments" — introductory note to "Issue Preclusion" sections at pp. 249-50 and comment e to Section 27 at page 526.
In addition there is one more consideration that must be taken into account on the collateral estoppel issue concerning the Labor Board's actions that was not present in the discussion of this claim relating to the action of the federal district court. That is, if the parties before the prior court or tribunal are not nominally the same the mere circumstance that a certain issue of fact was litigated will not have collateral estoppel effect on another party appearing before a different tribunal or court. For collateral estoppel to apply there must be an identity between the party who litigated before the first tribunal (chronologically) and a nominally different party appearing before another court or tribunal against whom the doctrine is asserted. There must be privity it is said. Our court has observed the following in this regard.
"In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion," Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814 (1997), Lundborg v. Lawler, 63 Conn.App. 451, 456 (2001).
One way of approaching the morass collateral estoppel sometimes presents is first to determine if a prior tribunal actually litigated a legal or factual issue. If it has not the collateral estoppel analysis regarding privity need not proceed. But if it has, it still must be determined whether collateral estoppel effect should be given in the second tribunal to that legal or factual issue where the party sought to be bound is not the same party nominally. That can be done only where there is privity between the parties.
In the court's opinion the collateral estoppel analysis that must be conducted regarding the Labor Board's actions is different in the case of Gruell from the cases of Miller and Gutteridge. Therefore, the court will continue the collateral estoppel analysis as it applies to the determination of factual issues separately in the summary judgment motion as it applies to Gruell and then as it applies to Miller and Gutteridge.
The court will now try to address the summary judgment motions filed by these defendants. The standards to be applied in deciding such a motion are well known. A disputed issue of fact cannot be decided by the court under the guise of ruling on such a motion but if there is no such disputed issue the court should grant such a motion.
Intentional Infliction of Emotional Distress
Each of the defendants, Gruell, Miller and Gutteridge, argue that summary judgment should be granted in their favor on the claim made against them of intentional infliction of emotional distress. They rely on affidavits submitted by each of them and also rely on factual findings of the Labor Board that they claim were actually litigated. The plaintiff has submitted deposition testimony of a union representative, a person present at a meeting at which Mr. Gruell and the plaintiff were present, and the deposition testimony of the plaintiff — all presented at the hearing before the Labor Board. All of this deposition testimony is given under oath and in the court's view is the equivalent of an affidavit under oath. If it is appropriate for a court to consider sworn affidavits for summary judgment proceedings (P.B. § 17-46), it should be appropriate to consider depositions under oath. Depositions have in fact, a greater indicia of reliability. They proceed by way of question and answer, they are often too lengthy to be rehearsed, and the deponent is subject to cross-examination. Depositions are thus not formally prepared set pieces drafted in such a way as to put the affiant's position in the best possible light. Often the candor of such a way of proceeding is helpful to the court, as it was here, especially when the brief of counsel submitting the deposition refers to specific transcript pages. In addition to the depositions plaintiff's counsel has also submitted the plaintiff's sworn responses to the defendants' interrogatories.
The basic argument advanced by the defendants is that their conduct was not such as to satisfy the elements of this tort which require the intentional infliction on another of extreme and outrageous conduct. The court has discussed in the collateral estoppel section the definition our cases and the Restatement have given to this concept and will not repeat that discussion. A procedural matter must be discussed first, however.
In addressing motions to strike or for summary judgment aimed at this tort it is necessary to make certain preliminary comments. Because it is relevant to this question the court will quote from a decision it wrote in 1999, DeNault v. Conn. General Life Ins. Co., 1999 Ct.Sup. 8688:
The defendant claims that as a matter of law what occurred here was not extreme and outrageous; the plaintiff argues that this question should be decided by the trier of fact . . . (As noted) our court in Peytan and by its reference to Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 62 (1984) indicates that it relies on the Section 46 requirements of Restatement (Second) Torts to define this tort and the judicial role in dealing with claims of this nature. Whether conduct claimed to be outrageous can be determined in a motion to strike or one for summary judgment can, in fact in some circumstances, be treated as a question of law — the Restatement certainly seems to think so. In comment k to § 46 it says: CT Page 689
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is necessarily so. Where reasonable (people) may differ, it is for the jury, subject to the control of the court, to determine whether in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
Following this reasoning, courts in this state and other states recognize that whether certain conduct can be regarded as outrageous can in certain instances be regarded as a question of law — even in the appropriate case permitting a motion to strike if conduct alleged in the pleading is not deemed to be outrageous, cf. Moore v. Greene, 431 F.2d 584, 592, (CA9, 1970), Pittman v. City of Oakland, 243 Cal. Rptr. 306, 311 (1988). Also cf. Brown v. Ellis, 40 Conn.Sup. 165 (1984), where court said the question whether conduct was sufficiently extreme and outrageous is for the jury but made clear that it had made a preliminary assessment that the defendant's conduct rose to the level necessary for this cause of action. In Peytan v. Ellis, supra itself the court upheld the trial court's direction of a verdict for the defendant holding that as a matter of law it agreed "with the trial court's conclusion that the defendant's conduct could not be considered outrageous," 200 Conn. at p. 254.
One other observation should also be made before a specific discussion begins. The acts alleged here occurred in the employment context. Case interpreting this tort reach divergent results as to the implications this might have.
Some courts hold that is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to establish the tort of intentional infliction of emotional distress; Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (CA 3m 1988), Clark v. Township of Falls, 890 F.2d 611, 623 (CA 3, 1989), other courts appear to take a more liberal view, see Rinehimmer v. Luzerne County Community College, 539 A.2d 1298, 1305 (Pa. 1988), and other courts seem to hold that a person's status as an employee affords him or her greater protection from insult and outrage than if she or he were a stranger to employer defendants, see discussion at Blong v. Snyder, 361 N.W.2d 312, 316 (Ia., 1984), cf. Also Solitari v. Smith, 812 F.Sup. 1280, 1284-87, 1296 (D.NH, 1993), interpreting New Hampshire law and holding that deliberate long-term harassment enough to establish outrageous conduct — plaintiff was given written warnings and required to keep time records not required of everyone else, but see Whitehead v. A M Intern, Inc., 880 F.Sup. 1280, 1285, 1290 (ND.Ill. 1994), which takes a different and more conservative approach, cf. Also Douhan Bigfork School District No. 38, 805 P.2d 1354, 1362-66 (Mont., 1991) Cox v. Keystone Carbon Co., 801 F.Sup. 390, 394-97 (CA 3, 1988).
Interestingly at comment e to § 46 the Restatement itself makes the following observation at page 74.
The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position or relation with the other, which gives him (or her) actual or apparent authority over the other or power to affect his (her) interests.
With these basic principles in mind the court will try to examine the motion for summary judgment as it is directed at each individual defendant.
Dennis Gruell
The court will first discuss the factual allegations made by the plaintiff to support her claim against Mr. Gruell. Then it will try to discuss the collateral estoppel effect, if any, it should give to the findings of the Labor Board in ascertaining the factual predicates it must base its decision on in deciding whether there is a viable claim for intentional infliction of emotional distress. The court will only examine a particular aspect of the alleged behavior of Mr. Gruell in reaching its decision on the motion as it affects him.
Mr. Gruell was appointed State Director of the Small Business Development Center in 1997. At the time the plaintiff was a regional director for the center. The plaintiff's deposition indicates that after Gruell was appointed State Director he came to a meeting on November 4, 1997 that Gruell was to have with an organization Gruell worked with. This local program was important to Gruell's work since she had to secure matching funds to supplement the grant she received from the Small Business Administration to run her office.
Gruell first went to Oppenheim's office the day of the meeting and according to her the following occurred:
I got up and I went "Hi, how are you? Come on in. Welcome to Waterbury."
She said she stood up to shake his hand and Gruell came over to her "and put his face right into my face and his hand right up against my face and said `I won't take any shit from you. Don't open your mouth. You understand me, don't open your mouth.'"
At the ensuing meeting three representatives from the local development corporation were present. Ms. Oppenheim said as she went to introduce Mr. Gruell he told her: "I said to shut your mouth when I'm here." He became agitated and Oppenheim said "he came into my face." When she tried to explain what she thought was a misconception on Gruell's part about the operation of the program he said: "You cut that shit out. Don't you talk to me. Don't you open your mouth in front of me. That's what I told you about" — all this while pounding the table. Mr. Saul, a person from the local development agency was present at this November meeting. He confirmed Gruell's rude and agitated behavior in his deposition and also the language Gruell used. Gruell's face was colored and his hands were held in an aggressive way.
About one month later on December 17th Gruell and Oppenheim also met to discuss a matter involving her compensation; Gruell wanted Oppenheim to sign some papers. The court has reviewed the plaintiff's responses to interrogatories and her deposition. From these sources it appears the plaintiff alleges that when she expressed reluctance about signing a document, Gruell pounded the table and went "under her chin" and "under her shoulder" in what she described as "almost a rage." Gruell also blocked her from leaving the room at least momentarily. When he did remove himself from in front of the door, he put his hand in her face and said "I'm telling you, don't you open up your fucking mouth in front of me again."
Gruell's affidavit does not go into much detail about the foregoing events. But the administration regarded it as serious enough so that after a meeting concerning the matter fairly detailed rules were laid down about how Gruell was to have contact with Oppenheim — they reflected an attempt to restrict his personal physical contact with the plaintiff. The Labor Board Decision made findings in two paragraphs concerning the November and December meetings just discussed. As to the November meeting Gruell was found to be confrontational and agitated; indeed he was not "cordial" to Oppenheim, telling her to "shut up and that she didn't know shit about the issue (being discussed)." When the December meeting was mentioned in the Board's findings, Gruell's behavior was not described.
As discussed, the court is aware of the importance of its gatekeeper role with regard to this tort. This, however, is not an occasion to exercise that role. Allegations of humiliating, vulgar remarks are not denied; some were made to this professional by her new boss in a setting that exposed her to ridicule and had to be humiliating given the fact that the hearers were people she had to work with on an apparently regular basis. Also as noted there was an element of physical intimidation.
Leaving aside the collateral estoppel issue, which the court will discuss in a moment, and accepting the foregoing facts, the court cannot grant the defendants' motion for summary judgment, cf. Scandura v. Friendly Ice Cream Corp., 1994 Ct.Sup. 12818 (Wagner, J., decision on motion to strike) ( 13 Conn. L. Rptr. 512). The cases cited by the defendant in support of his argument that the activity alleged does not satisfy the requirements of this tort are distinguishable, Carnemolla v. Walsh, 75 Conn.App. 319, 331 (2003); Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 577 (2002); Campbell v. Plymouth, 74 Conn.App. 67, 78 (2002); Dollard v. Board of Education, 63 Conn.App. 550, 552 (2001); Appleton v. Board of Education, 254 Conn. 205, 211 (2000). These cases do arise in the employment context and involve claims of false accusations and humiliating treatment. What they lack and what is alleged here is the component of physically intimidating behavior coupled with vulgar treatment in a setting which would have had to have been humiliating.
It is a matter of degree, but after noting the Appleton case which held that condescending remarks about a teacher's ability to read could not be defined as extreme and outrageous, the court in Knight v. Southeastern Council, 2001 Ct.Sup. 1337 (New London, 2001, Hurley, J.), refused to grant a motion to strike. The court noted that "Plaintiffs have, however, been successful in establishing claims for intentional infliction of emotional distress where they have alleged that they were forced to suffer public ridicule." The court in Campbell v. Plymouth, 74 Conn.App. 67 (2002), while noting that the mere act of wrongfully firing an employee "does not transgress the bounds of socially acceptable behavior," citing Parsons v. U.T.C., 243 Conn. 66, 83 (1997), referred to Knight as reflecting that courts have not stricken complaints alleging an element of public ridicule, 74 Conn. at page 79. Furthermore as noted there was an element of physical intimidation alleged here not present in the cases cited by the defendant.
Since the court is obligated to review the plaintiff's allegations in the most favorable light, even given its gatekeeper role as regards this tort, see Carnemolla at 75 Conn.App. page 332, it cannot grant the motion by Gruell on the basis of the factual allegations made in the Oppenheim deposition and the Saul deposition.
The court will confine its analysis to the allegations made concerning the two referenced meetings. They are sufficient to surmount this motion and gratuitous judicial comment on other allegations made against Gruell would serve no fair purpose in light of any impending trial. It should be noted in the interest of analytical consistency that in the court's opinion the allegations made here do not rise to the level of the "shocks the conscience" test for a federal substantive due process claim. No actual violence occurred and the intimidating behavior was not accompanied by explicit verbal threats or attempts to inflict injury.
But this does not end the inquiry as to Gruell's motion because it must also discuss the possible collateral estoppel effect of the Labor Board's findings as they relate to the factual allegations made by the plaintiff. Clearly the court cannot have been correct in reviewing the facts alleged by the plaintiff in the light most favorable to the plaintiff if collateral estoppel precludes consideration of the facts as alleged. But the court concludes the Board's actions or findings do not preclude it from denying the defendant Gruell's motion. The Board's assigned role was to determine whether Gruell's actions and the alleged actions and statements of the other two defendants in effect repudiated the collective bargaining agreement and retaliated against the plaintiff for exercising protected rights as a union member. The actual level of rudeness or even intimidating behavior exhibited by a work supervisor to an employee who happens to be in a union no matter how otherwise unacceptable or even tortious does not necessarily have anything to do with anti-union bias. A reading of the Labor Board's decision indicates that what was important to its determination was not so much the way in which Gruell treated Oppenheim at the previously discussed meetings but rather management's response to that treatment after the meetings and her complaints about Gruell. Therefore the court cannot find the present factual issue before it — whether Gruell's conduct per se was extreme and outrageous — were "actually litigated" in the sense necessary to impose a collateral estoppel effect on any factual findings it might otherwise make, see comment C to Restatement (2d) Judgments, Section 27. In effect then the court need not discuss the second tier concept of privity that it referred to earlier.
In any event based on the foregoing discussion the court will not grant the defendants' motions for summary judgment as they apply to the defendant Gruell.
Virginia Miller/Dean Thomas Gutteridge
The court will now address the claims made against Miller and Gutteridge. It will first set forth the factual allegations made against each of the two defendants and its observations concerning those allegations. There is some overlap on the factual allegations. It will then try to discuss the legal implications of the factual allegations for the viability of the tort claim being made. It will also separately deal with the collateral estoppel issue.
(a) Factual Allegations: Virginia Miller
Miller at the time of the allegations was the Assistant Vice Chancellor for Human Resources at the University of Connecticut. The allegations raised against her and Dean Gutteridge do not center on Gruell's conduct at the November and December 1997 meetings. They did not directly instigate or encourage this particular behavior.
Also, one difficulty the court has in regards to Miller is the scope of her authority in relation to preventing the actions of which Oppenheim complains — one of the drawbacks of relying on depositions and responses to interrogatories which are not geared to dealing directly with positions taken in a defendant's motion for summary judgment.
The court will try to review the various allegations that were made.
One incident raised by the plaintiff was the fact that she was denied permission to take a pre-paid and planned vacation because the university wanted her to attend a meeting in Massachusetts. It is alleged that such a denial was "very unusual." There is no claim made, however, that the meeting was not job-related.
Also the deposition of Ms. Rinker who testified before the Labor Board, as a union representative indicated Gruell had the final say as to whether Oppenheim could go on vacation and Oppenheim herself testified that Gruell "cancelled my vacation," although Rinker did bring up the vacation denial with Miller.
The court has discussed Gruell's conduct at the meetings which has led it to conclude the tort claim against Gruell should not be dismissed. The union representative, Rinker, informed Miller of these events and Miller according to Rinker, said "things like that should not happen again." In fact the plaintiff, Miller, and Gutteridge had a meeting in which the previously referred to contact limiting agreement was put in place.
The plaintiff complained in her deposition of continuing ill treatment and harassment by Gruell even after the agreement between the parties was arrived at limiting Gruell's contact with Oppenheim. The nature of the harassment is never described in any detail and an examination of the depositions of Oppenheim and Rinker indicates Miller was only informed of one violation of the just mentioned agreement. Miller states as much in her affidavit. The violation of the agreement involved an interpretation of its terms and did not involve any claim of inappropriate behavior on Gruell's part. He just indicated by a letter to Oppenheim, when he thought he could attend meetings at which she was also present.
The plaintiff also alleges that her office had been moved from downtown Waterbury to a distant location at Naugatuck Valley Community College and that this was done to retaliate against her because of her complaints against Gruell. But as noted the only complaint Oppenheim apparently made over several months to Miller concerned the two previously discussed meetings and Gruell's alleged attempt to violate the agreement regarding his contacts with plaintiff by a letter sent to Oppenheim. No actual, specific, non-conclusory evidence is presented that Miller was behind any scheme to locate Oppenheim in an isolated unsafe office.
Oppenheim also claims her office was not adequately staffed and did not have an appropriate computer or computer services. But she ascribes this to "Gruell's questionable mental health."
She only links Miller and Gutteridge to all of these Gruell centered events by conclusory allegations that these defendants knew of Gruell's general hostility and hostility to women in particular when putting him in a position of authority or not correcting his abusive behavior once there. Although Rinker and Oppenheim at their depositions provided some names of women who were on the receiving end of such behavior and at the meeting to limit Gruell's contact with the plaintiff it is alleged his problems with women were discussed, no details are provided as to the nature and dates of any such abuse. These accusations, for all the court can ascertain are based on conclusory assessments by the plaintiff. The court has no concrete evidence that these defendants were notified of any abusive treatment of female workers before the just mentioned meeting or after it. In fact Ms. Miller as well as Gutteridge in affidavits in support of the summary judgment motion indicate they were not aware of any complaints against Gruell by other employees including female employees. These affidavits were prepared long after the Labor Board hearings and a few weeks after Oppenheim's answers to interrogatories, but no specific response was made to the defendants' affidavit representations — the plaintiff chose to rely on generalities and conclusory statements in the depositions and the answers to interrogatories she submitted.
Rinker, the union representative, even indicated in her deposition that when she talked to Miller about Gruell's behavior at the meetings, she mentioned she "had some other complaints from that department." Miller wanted to know who these complaints were from but Rinker said: "I couldn't tell her that because they had called me and asked me not to reveal their names."
Understandably the great part of the plaintiff's claim about the way she was treated revolves around her allegation that she was terminated form her job because of bogus reasons involving her alleged lack of manufacturing technical experience. In her response to interrogatories the plaintiff lays out in some detail why she felt this was true — this involved an explanation as to why she was in fact qualified, the program she was operating could not be changed pursuant to Federal guidelines, and there were in fact no changes in her office as regards to manufacturing after she was terminated. Also it is claimed that she was not given the 90-day contractually required notice before her termination. It is also alleged that a payroll authorization in fact continuing her in her job had been placed in her file prior to her termination but Miller tried to destroy the evidence of this. It is not clear, however, what if anything Miller had to do with Oppenheim's actual firing.
(b) Factual Allegations: Thomas Gutteridge
At the time of the relevant incidents Gutteridge was the Dean of the University of Connecticut School of Business. The court will try to discuss the separate factual allegations against him, although there is some overlap in those made against Miller and against Gutteridge as the just completed discussion indicates.
Gutteridge was present at the meeting between Miller, Gutteridge, and Oppenheim to work out the agreement regulating Gruell's contacts with the plaintiff. Gutteridge was described as "nasty, insulting, rude" he refused to shake Oppenheim's hand. He basically ignored her complaints. Yet after this meeting an agreement was worked out and only one violation of it was brought to Miller's attention let alone Gutteridge's. Oppenheim goes on to say in her deposition that Gutteridge was asked to call the NVDC and "it was reaffirmed that Gruell was dangerous and barred for security reasons from coming to their office." (NVDC is the Naugatuck Valley Development Corporation). But Mr. Saul whose deposition was submitted by the plaintiff said Gruell was not to come to his offices without Saul's permission. Saul said he was not concerned with safety but apparently with Gruell's rude and demeaning behavior. The court cannot ascertain where Oppenheim got her version of the Saul-Gutteridge conversation; Saul does not even say he told Gutteridge of the fact that Gruell was barred from his offices let alone that he was considered a security threat. The court has every reason to rely on Saul's sworn deposition testimony — it was submitted by the plaintiff and relied on by the court in part, to deny the defendant Gruell's summary judgment motion. Apparently referring to the time of Oppenheim's termination, Gutteridge is also accused of moving staff around to make it appear two other contractual positions were filled. It is not clear that Oppenheim was willing to take these positions or even applied for them, however. As the dean of the school the various allegations regarding the plaintiff's termination, just discussed as to Miller, can probably be said to apply to Gutteridge, although his explicit involvement in these matters or for example in the staffing of her office, computer services, and location of her office is not made clear. The same can be said of the issue regarding the denial of permission for her to take a vacation.
In the section on the factual allegations against Miller the court discussed Oppenheim's allegations of Gruell's abusive treatment of women and disclosure of such information to Gutteridge or lack thereof and will rely on that discussion.
(c) (i)
Now the court will evaluate these factual allegations and whether, even learning aside the collateral estoppel issue, a prima facie case can be made to establish this tort. First, the court rejects any notion that somehow the employer — employee relationship is in every respect insulated from application of the tort of intentional infliction of emotional distress or that an employee has to overcome a special hurdle not faced by other litigants in advancing this tort claim. The court has noted the different positions taken by other jurisdictions on this question.
The courts appear to agree that mere insults or verbal taunts do not rise to the level of extreme and outrageous conduct even when they include obnoxious activity like threats, insults or taunts by co-workers, McNeal v. City of Easton, 598 A.2d, 638, 641 (Pa., 1991), Miller v. Equitable Life Insurance, 537 N.E.2d 887, 889 (Ill., 1989), Bhorn v. Town of Allenstown, 648 F.Sup. 831, 839 (D.NH, 1988). If this is so as to claims against co-workers, it would seem to be applicable to supervisors where it is alleged they knew such activity was occurring but did nothing to stop it. But here apart from the allegedly unacceptable behavior by Gruell at the two early meetings with the plaintiff, there is no indication that the allegedly abusive behavior by Gruell, which is not described, was even brought to these defendants' attention. The vacation denial and inadequate staffing matters are raised against both these defendants but as previously discussed whether these defendants had anything to do with bringing about these problems is not explicitly alleged. Miller was informed about the vacation denial but that without more does not establish extreme and outrageous conduct. It is nowhere alleged Gutteridge was aware of the denial of the vacation or the staffing problem.
Perhaps more to the point none of the specific allegations made rise to the level of "extreme and outrageous conduct." Also if all the foregoing allegations are reviewed together there is simply no pattern of long-term harassment and outrageous conduct that can be ascribed to these defendants to establish a prima facie case for this tort. Solatari v Smith, 812 F.Sup. 1280, 1284-87 (D.N.H., 1983); Dickerson v. Nichols, 409 N.W.2d 741 (Mich. 1987).
Neither is there any supportable underlying theme established against these two defendants providing them with an underlying motive to support Gruell in his actions which could lead to a conclusion that they encouraged such actions let alone knew about them. The court agrees with those jurisdictions which conclude that racial and ethnic slurs and a fortiori equally despicable gender bias actions by a supervisor should be considered as strong evidence toward establishing a finding of extreme and outrageous conduct. In Dominquez v. Stone, 638 P.2d 432, 427 (NM, 1981), the Court of Appeals of that state held the trial court erred in granting summary judgment in a case where an employer, who was in a position of authority, uttered ethnic slurs against the plaintiff employee over a period of time. The Dominquez court itself relied on Contreras v. Crown Zellerback Corp., 565 P.2d 1173 (Wash., 1977), which involved a suit by a former Mexican employee and his wife. The Supreme Court reversed a decision of the trial court dismissing the claim for intentional infliction of emotional distress and held that when one in a position of authority has made racial slurs and jokes and other comments, the abusive conduct gives added impetus to a claim of outrageous conduct. The court went on to say that: "The relationship between the parties is a significant factor in determining whether liability should be imposed," id. page 1176, but see strong dissent, pages 878 et seq. Here as discussed in the Miller factual section the claim that Miller and/or Gutteridge knew of a long pattern of bias and hostile behavior against employees and especially females is based on conclusory accusations unsupported by date or detail and it is not made apparent by any specific factual allegations that any such behavior was brought to the defendants' attention or they knew or should have known about it. Even assuming the court could rely on generalities, if such activity did go on in this case there is no evidence that its continuance was anything more than careless exercise of management responsibilities as opposed to a general plan and course of conduct permitted to go on intentionally to harass the plaintiff.
As far as the termination of employment itself it cannot be used as a capstone to establish this tort against these two defendants, since, as discussed, they cannot be directly connected to any pattern of allegedly abusive behavior of which termination can said to be the culmination. This is apart from the general rubric that: "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Parsons v. U.T.C., 74 Conn.App. 67, 78 (2002).
The court concludes that, without even considering any collateral estoppel effect that might be given to the Labor Board's decision, summary judgment should be granted in favor of the defendants Miller and Gutteridge.
(ii)
In the interest of completeness the court will now address the collateral estoppel issue as it applies to the actions and decision of the Labor Board.
The first issue is what was actually litigated and decided by the Labor Board in response to the union's complaint that Oppenheim was retaliated against for the exercise of rights protected under the collective bargaining agreement. In its decision dismissing the complaint the Board noted that the Union argues that "the University harassed, discriminated against and subsequently terminated" Oppenheim "in retaliation for the exercise of her protected rights to Union representation to resolve workplace disputes with her supervisor, Dennis Gruell." As to several factual claims made by the union and referred to in the plaintiff's allegations in this matter the Board found no anti-union bias. It then made the following findings in support of its conclusion:
Each of the University's agents appeared willing to work with the Union to resolve the situation between Gruell and Oppenheim. For example, Virginia Miller was concerned and willing to intervene when alerted to the situation by Oppenheim's representative, Peggy Beckett-Rinker. Gruell himself readily agreed to meet with Beckett-Rinker and Oppenheim after the second incident in December of 1997. When the parties met on February 2 and 9, 1998, it is clear that the University approached the matter very seriously and cooperated fully with the Union to resolve the problem, ultimately agreeing to a plan whereby direct contact between Gruell and Oppenheim was minimized.
Thereafter, the only evidence of perceived "violations" of the agreement was Gruell's correspondence to Oppenheim on March 3, 1998 (Ex. 7). We do not agree that this letter exhibits any disregard by Gruell for the agreement regarding Oppenheim. To the contrary, regardless of the agreement Gruell still retained authority as a supervisor, and Miller promptly responded to the union to clarify this point. We find no indication of hostility towards the Union or towards Oppenheim in this regard. Indeed, a few weeks after Miller's correspondence, Oppenheim received a satisfactory performance evaluation from Gruell.
The denial of Oppenheim's vacation request and the decision to move her office likewise do not support any inference of improper motive. Oppenheim was previously aware (or should have been as a result of her attendance at the staff meeting where it was discussed) of the training session scheduled at the end of January which conflicted with her planned vacation. Gruell sought Oppenheim's input as to the proposed locations for new office space. There is simply no evidence that any failure on his part to follow her recommendations was due to anti-union sentiment.
Finally, we find sufficient evidence on this record to support the University's position that there were legitimate programmatic reasons for the shift in emphasis to manufacturing and technology support in the Waterbury region. Discussions regarding such a shift occurred as early as 1996, long before the events in question, and many people both within and without the University were involved. Although the process to hire a new Regional Director with the appropriate background and experience took almost a year, and arguably Oppenheim could have remained employed in the meantime, these factors do not convince us that the University's decision was prompted solely by a desire to retaliate against Oppenheim for utilizing union representation."
(SBA is Small Business Administration; CSBDC is the Connecticut Small Business Development Center).
The Board went on to say:
The Union urges us to consider what it refers to a "circumstantial" evidence of the University's improper motives in not renewing Oppenheim's contract. For example, the Union claims that the SBA grant required the University to receive approval prior to changing the "scope" of the CSBDC program in Waterbury, and the University's failure to discuss the proposed changes with the SBA supports a finding that there was no change made. This argument does not dissuade us from our conclusion that the University was seeking to change the target of its small business development efforts from one segment of the business population to another. The possibility that the University may have failed to comply with all requirements of the SBA grant does not prove that it wasn't seeking to change the focus of its program. The Union also points to the confusion regarding the payroll authorization forms for Oppenheim as evidence of the University's alleged subterfuge. (Exs. 9 and 12). While the record does not offer an adequate explanation for why there appeared to be two separate forms, we credit the testimony offered by the University as to why a form was filled out for Oppenheim at the same time that it was considering the non-renewal of her contract. Although the contract renewal process was initiated, it wasn't completed by forwarding the paperwork to the Dean for signature as required.
If the factual findings and conclusions of the Board regarding the plaintiff's claims of harassment regarding the denial of her vacation request, office location, termination, and failure to enforce the minimized contact agreement arrived at because of Gruell's behavior are accepted as collaterally estopping this court's inquiry into those allegations, none of them of course could be used to establish a necessary element of this tort — "extreme and outrageous conduct." All that would be left would be the allegations of other undefined harassment by Gruell subsequent to the agreement and anti-female bias as an alternative explanation for the actions alleged and Miller's and Gutteridge's purported failure to prevent or control these actions knowing of that bias. But the court has already concluded there is an absence of non-conclusory evidence to support such allegations.
This does not end the collateral estoppel discussion, however. The question must also be asked whether there is sufficient identity between the party litigating before the Board, i.e. the Union and Oppenheim who has brought this suit at common law to permit the foregoing application of collateral estoppel. Was their privity between them. In this court's opinion there was privity, if we apply the test referred to in Mazziotti v. Allstate Ins. Co., supra and Lundburg v. Lawler, supra. As a predicate to establishing anti-union bias the union had to prove the very factual allegations she now makes and which the Board rejected. Furthermore, the union complaint was filed under § 5-272a(1) and (4) of the State Employee Relations Act. Although the Board's decision does not reflect the relief sought presumably the union was seeking relief under § 5-274(b)(2) of the act providing for reinstatement of an employee wrongfully discharged for anti-union discrimination in violation of a collective bargaining agreement. There would thus be a direct representation of her interest.
In any event if collateral estoppel is applied here, it is even clearer that there is no factual basis on which the court can conclude in addressing the summary judgment motion against Miller and Gutteridge, that a prima facie case for this tort can be established.
III Immunity Issues
The sovereign immunity argument has been withdrawn by the defendants at least for the purposes of this motion.
As to the immunity claim under § 4-165 of the general statutes, the court will not address that claim as to Miller and Gutteridge in light of its decision on the summary judgment motion. Section 4-165 statute grants immunity for state officers and employees "for damage or injury" not "wanton, reckless, or malicious," see Shay v. Rossi, 235 Conn. 134, 181 (2000) for interpretation of statute. Having denied the summary judgment motion as against Gruell and given the nature of this tort, the motion to dismiss the claim against Gruell on statutory immunity grounds is denied.
* * * * CT Page 704
The court denies the motion for summary judgment and the motion to dismiss as against the defendant Gruell.
The court grants the motion for summary judgment as it applies to Miller and Gutteridge and therefore takes no action on the motion to dismiss since the issue as to these motions is rendered moot.
Corradino, J.