Opinion
No. CV 08 5009273 S
March 30, 2009
MEMORANDUM RE MOTION TO STRIKE #104
The defendant, Miss Porter's School, has moved to strike each of the four counts of the complaint of plaintiffs, Donna Pinckney (Pinckney) and Bonnie Oliver (Oliver). Each plaintiff has alleged that the defendant's conduct caused her emotional distress. The defendant claims that none of the allegations present conduct so outrageous that a cause of action has been sufficiently stated for intentional infliction of emotional distress. It also claims that the conduct complained of is insufficient to state a claim of negligent infliction of emotional distress because the alleged conduct occurred during the course of an employment relationship.
As to their intentional infliction of emotional distress claim, the plaintiffs contend in their objection that the conduct complained of must be deemed to exceed the bounds of a decent society. As to the negligent infliction of emotional distress claim, they contend that the plaintiffs have alleged that they were constructively discharged because the conduct was designed to force their resignations.
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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). While a motion to strike admits all facts well-pleaded, it does not admit legal conclusions or the truth or accuracy of opinions stated in pleadings. Doe v. Yale University, 252 Conn. 641, 694 (2000). In ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006).
THE ALLEGATIONS
Pinckney was employed by Miss Porter's School (MPS) from 2004, caring for toddlers at the Schoolhouse in the day care program, until she voluntarily resigned from her position on April 14, 2008. Oliver worked at the Schoolhouse from 2001, caring for children, until she voluntarily resigned her employment on April 17, 2008.
The gravamen of the plaintiffs' claims is that working conditions at MPS became intolerable, compelling them to resign their positions. The plaintiffs allege that employees of MPS encouraged or permitted the plaintiffs' supervisor, Elizabeth Koehler, (Koehler) to engage in a course of conduct designed to force the plaintiffs to quit.
The following allegations in the plaintiffs' complaint provide the groundwork for their claims of intentional and negligent infliction of emotional distress.
Koehler stopped speaking to the plaintiffs in October 2007, after Pinckney complained of a lack of work ethic in the Schoolhouse. That same month, Pinckney volunteered to reduce her hours after Koehler represented that she would not lose any benefits, however, Koehler and the business manager at MPS required Pinckney to reduce her hours more than she had volunteered and then refused her request that they be somewhat increased. After plaintiff objected to the reduction, she was told that if she was not happy, she could leave. She was further advised that with the reduction in hours she would have to pay a portion of her daughter's tuition at MPS, in the event that her daughter eventually enrolled there in the future. At plaintiff's objection, Koehler accused Pinckney of working at the Schoolhouse so that her children could attend MPS for free. Koehler engaged in conduct that was unprofessional, cruel, and embarrassing, including instructing Pinckney to disregard personal relationships with other staff members during working hours; "berating" Pinckney for asking to go home to accept delivery of a washer and dryer during working hours; and accusing Pinckney of using inappropriate sick time; and instructing her not to invite parents to her home regarding plaintiffs home-based business or otherwise carry on her business at MPS. Koehler confronted and berated Oliver in front of schoolchildren and a parent about confusion over a school closing.
Although the plaintiffs met with Koehler's supervisors, to complain about Koehler and to seek a remedy to the situation, the plaintiffs allege that Koehler's behavior did not change. In particular, plaintiffs allege that Koehler was nasty, spoke to them less frequently, stared or glared at them, subjected them to increased supervision, was overly critical of their work, created a double standard regarding the amount of time they could take the children out for walks, accused Oliver of stealing papers, accused the plaintiffs of sabotaging the program, and issued written warnings to Oliver accusing her of engaging in inappropriate, unacceptable, unprofessional behavior that had a negative impact upon the children and accusing her of walking off the job, abandoning the children, abandoning her responsibilities, lacking professionalism and commitment. MPS responded to the plaintiffs' complaints by suggesting that plaintiffs were alleging harassment because they did not like the personnel policies which had been implemented and because they were not committed to the children under their care.
On March 31, 2008, Koehler completed a performance appraisal of Pinckney that contained numerous criticisms and negative feedback, and the only positive statement was that plaintiff was punctual in her attendance. Pinckney was placed on a performance improvement plan in an effort to help her achieve acceptable performance levels. On March 31, 2008, Koehler completed a performance appraisal of Oliver that also contained criticisms and recommendations.
The plaintiffs allege they were insulted by the performance appraisals, which they considered to be false. MPS employees made no effort to protect plaintiffs from Koehler. The plaintiffs allege that as a result of these alleged intolerable conditions, they felt forced to resign.
Intentional Infliction of Emotional Distress
To set forth a claim of intentional infliction of emotional distress, a plaintiff must plead facts sufficient to establish four elements:
(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. Carroll v. Allstate Ins. Co., 262 Conn. 433, 442-43 (2003) (internal quotation marks omitted). Thus, [l]iability for intentional infliction of emotional distress requires conduct that exceeded all bounds usually tolerated by decent society. 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 its resentment against the actor, and lead him to exclaim, Outrageous! Id., 433
It is also well-settled that whether a defendant's conduct is sufficient to satisfy the requirement that the conduct be extreme and outrageous is at the outset a question for the court to decide. Appleton v. Board of Education, 254 Conn. 205, 210 (2000).
An examination of cases deciding a motion to strike a count alleging intentional infliction of emotional distress reveals that the plaintiffs' allegations do not pass muster. In Dollard v. Board of Education, 63 Conn.App. 550, 551 n. 2 (2001), the plaintiff, a school psychologist, was supervised by three individual defendants. The complaint alleged that the individual defendants jointly engaged in a concerted plan to force the plaintiff to resign her employment or become so distraught that they would have a basis for discharging her. The plaintiff alleged that defendants hypercritically examined every detail of her professional and personal conduct; transferred her to a school where she did not want to be assigned and secretly hired someone to replace her; publicly admonished plaintiff for chewing gum, being late, and being disorganized and not using her time well; and placed her under intensive supervision. The complaint alleged that defendants forced plaintiff to resign. The Appellate Court affirmed the trial court's granting of defendant's motion to strike, finding that these allegations were not sufficiently extreme and outrageous.
In Bator v. Yale-New Haven Hospital, 73 Conn.App. 576 (2002), the Appellate Court affirmed the granting of a motion to strike. There the plaintiff alleged that he was required to report for duty when he was under a physician's care, and was recommended for discipline when he failed to report; that a person in authority falsely accused the plaintiff of serious misconduct and of endangering a patient's life. The court found such allegations insufficiently outrageous.
In Carnemolia v. Walsh, 75 Conn.App. 319 (2003), the court summarized the essential facts:
[t]he plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling company funds and request that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotion upset.
Id., 332-33. Nevertheless, the court found such allegations insufficient to satisfy the requirements of pleading a case of intentional infliction of emotional distress. The court noted that while the conduct may have been "distressful or hurtful," it was not outrageous. Id., 333. See also Schmidt v. Housing Authority of the City of Bristol, Superior Court, judicial district of New Britain, Docket No. 06 5001979 (October 4, 2007, Shapiro, J.) (motion to strike granted where defendants made false and misleading statements that the plaintiff violated a drug-free workplace policy; intentionally hired a known drug user; engaged in a conspiracy to hide drug usage by using a masking agent to foil drug testing; repeatedly republished the same untrue and misleading representations; spread rumors and innuendos about her; and caused the plaintiff to be terminated from her employment; withheld and hid information from her, created pretexts for investigation and terminating her, and demanded that she report to work while she was disabled and on approved leave.) See also Crane v. Northwestern CT Young Mens Christian Assoc., No. CV 04 4001019 Superior Court, judicial district of Litchfield at Litchfield (Bozzuto, J., 2005) (defendants spoke and/or published defamatory statements about plaintiff's cap abilities as a swim coach, and maliciously contacted plaintiff's other employer); Langer v. Mail Delivery Courier Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4008535 (Hiller, J. 2006) (defendants made statements in front of plaintiff's daughter that plaintiff was a thief and a liar, and that customers smelled alcohol on his breath, that customers hated him, and that he was a useless cheat, loafer and common drunkard, these statements were insufficient to support a claim of intentional infliction of emotional distress).
To the contrary, those cases which have found a cause of action to exist have included physical abuse by a co-worker, such as punching and choking, Berry v. Loiseau, 223 Conn. 786, 793 (1992), or racial, ethnic, religious or sexual attacks. Leone v. New England Communications Corp., Superior Court, judicial district of New Britain at New Britain, Docket No. CV01 0509752, 2002 (April 10, 2002, Quinn, J.)
Viewing the facts alleged in a light most favorable to the plaintiffs and deeming them to be true, the conduct described by plaintiffs here, does not even rise to the level of conduct found insufficient in Dollard, Bator, Carnemolia, or Schmidt, all of which granted the defendant's motion to strike.
The motion to strike the First and Third Counts of plaintiffs' complaint is granted.
Negligent Infliction of Emotional Distress
In Perodeau v. City of Hartford, 259 Conn. 729, 757-59 (2001), the Connecticut Supreme Court ruled emphatically and unequivocally held that a person "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Id., 762-63. The court observed that employees in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. The court concluded that public policy considerations outweigh the interests of individual employees, that to permit such suits would result in supervisors promotion the interests of their employers less vigorously, resulting in a less productive workplace. The court also feared that recognizing such a cause of action might open the doors to spurious claims, and flood the courts with fraudulent lawsuits.
Perodeau makes the unequivocal distinction between negligent infliction of emotional distress claims arising out of an ongoing employment relationship versus the termination of that relationship; only the latter are permissible. The court left open the possibility, however, that negligent infliction of emotional distress claims may be allowed when the employee is forced to endure conduct that "transgresses the bounds of socially tolerable behavior." It did not, however, discuss claims arising out of constructive discharge, as is alleged here.
In considering the question of whether negligent infliction of emotional distress claims are viable in the face of allegations of constructive discharge, I am persuaded by the reasoning and analysis of this court in Michaud v. Farmington Community, Inc. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.):
First, the language of Perodeau itself is restrictive. The holding is phrased narrowly: the tort is maintainable only for "conduct occurring in the termination of employment." Language such as conduct in the "discharge Process" is not used; such language perhaps would contemplate a more expansive time frame. Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means the ending, not the conduct which causes the ending. When one analyzes the policy reasons underlying Perodeau, one sees that conduct taking place within the employment relationship, even if wrongful and providing the basis for the claim of unlawful discharge, cannot provide the factual predicate for the emotional distress claim. If the actual termination is conducted wrongfully, then the action may lie. If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed.
Here, the events complained of occurred over the course of Pinckney's four-year and Oliver's seven-year employment relationship. Even if the court were to consider the incident that transpired shortly before their resignation, namely, Koehler's negative performance evaluations completed March 31, 2008, such conduct is not sufficiently unreasonable to support a claim for negligent infliction of emotional distress. Emotional distress from poor performance ratings, even if fabricated or exaggerated, is an "unavoidable part of being employed." Id., 769. Similarly, the court in Wilcox v. Yale University, Superior Court, judicial district of Waterbury at Waterbury Docket No. CV 020174796S (August 24, 2005, Eveleigh, J.) held that plaintiff's constructive discharge argument "contravenes the rationale and holding." "Termination means the ending, not the conduct which causes the ending." Id.
Here, Pinckney and Oliver, who for the purposes of this motion to strike are deemed to have been constructively discharged because of alleged unbearable working conditions, may not pursue a negligent infliction of emotional distress claim, because their supervisor's misconduct giving rise to their injuries occurred during the course of their employment, and not during or subsequent to their resignations in April 2008.
The motion to strike Counts Two and Four is granted.