Opinion
No. CV 07 5008703
September 17, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE CLAIMS OF EMOTIONAL DISTRESS AND BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING IN TERMINATING EMPLOYEE
Plaintiff Karen Pyne, a former at-will employee of defendant CO-EX Corp, brings this action in three counts seeking redress for its firing her while she was out of work on leave due to emotional problems. The plaintiff alleges that she had taken prior leaves of absence, due to emotional problems, and had returned to her job. The leave that gives rise to this complaint began on March 29, 2006. She alleges that her psychiatrist stated in a written note that she would return to work on June 30, 2006.
The plaintiff alleges, inter alia, that by failing to tell her that her job was in jeopardy or consulting with her, and then terminating her employment during her leave defendant CO-Ex Corp engaged in conduct that was extreme and outrageous thus exposing itself to a claim of intentional infliction of emotional distress. The plaintiff also argues that the defendant's conduct entitles her to assert a claim of negligent infliction of emotional distress, as well as a cause of action in breach of the employment-contractual duty of good faith and fair dealing. The defendant moves to strike the complaint on the following grounds: 1) that the plaintiff has not alleged the elements of either an intentional or a negligent infliction of emotional distress; and 2) that a claim for breach of the covenant of good faith and fair dealing in an employment context is limited to employment terminations in violation of a public policy, a situation not present in this case.
Intentional Infliction of Emotional Distress-Count One
The defendant argues that its termination of the plaintiff's employment was not extreme and outrageous. The plaintiff counters, arguing that the way in which the defendant terminated her was extreme and outrageous, in that the termination was conveyed to her by letter, that she was given no "real time to reply" to her termination letter to save her job, and in leading her to believe that her job was safe while she was taking a second leave of absence, notwithstanding that she had informed the defendant of her return date contrary to its statements in her termination letter.
"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.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Liability for intentional infliction of emotional distress requires conduct that exceeds 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 . . . 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., 210-11.
In Appleton v. Board of Education, the plaintiff teacher claimed in her affidavit that one of the defendants "`made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read'; telephoned the plaintiff's daughter, representing that the plaintiff `had been acting differently' and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign." Id., 211. The court determined that, while distressing to the plaintiff, these occurrences did not constitute extreme and outrageous conduct and, therefore, concluded that the defendants' conduct was insufficient to form the basis of an action for intentional infliction of emotional distress. Id., 212; see also Tracy v. New Milford Public Schools, 101 Conn.App. 560, 570, 922 A.2d 280 (2007) (defendant's denying the plaintiff a position, initiating disciplinary actions without proper investigation, defaming the character of the plaintiff and intimidating the plaintiff was insufficient to form the basis for an action based upon intentional infliction of emotional distress); Aquavia v. Board of Education, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 01 0075748 (July 22, 2003, Lager, J.) (conduct of the plaintiff's supervisor, including moving the plaintiff's office to a remote location without informing him and openly criticizing him, where plaintiff developed severe depression for which he sought a medical leave of absence and was terminated four months later, did "not rise to the requisite level of outrageousness to support a claim for intentional infliction of emotional distress").
The plaintiff alleges in count one of her complaint that the manner in which the defendant terminated her employment was extreme and outrageous conduct in that, during her leave of absence, she was never contacted by the defendant, never informed that her absences from work could jeopardize her job, never consulted as to how her work would be completed in her absence or as to how she could avoid termination, and finally, she was never provided with any reasonable time to convince the defendant not to terminate her. Even construing the facts in the complaint most favorably to the plaintiff, the defendant's alleged conduct is not such as would be considered outside the bounds of decency or utterly intolerable and, consequently, is not extreme and outrageous. The court finds that the allegations of the First Count are not legally sufficient to support a claim of intentional infliction of emotional distress.
Negligent Infliction of Emotional Distress-Count Two
Next, the defendant argues that the plaintiff fails in count two to allege any unreasonable conduct on the part of the defendant and fails to allege that any such unreasonable conduct occurred during the termination process to support a claim of negligent infliction of emotional distress. The plaintiff argues in opposition that the court may consider the totality of the circumstances surrounding her termination, including those events leading up to her termination, and under that standard, the defendant's conduct in its totality was unreasonable. In particular, the plaintiff argues that because "she took her leave of absence in the full understanding that she would retain her job," and because, nevertheless, the defendant terminated her employment without warning or "any other communication," that the defendant's actions were unreasonable. Finally, the plaintiff asserts that, given its knowledge of her ongoing psychiatric treatment, the defendant was aware that its actions would cause the plaintiff additional distress.
"In general, to prevail on [a cause of action for negligent infliction of emotional distress] a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . . Such a claim in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process rather than in an ongoing employment relationship . . . Finally, to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress." (Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
In this count the plaintiff alleges that "[i]n March 2005, she started to suffer from depression, anxiety, and panic attacks" due to which she requested and was granted a six-week leave of absence, and that "[i]n January to March 2006, [she] again experienced problems, with some loss of time from work," for which she again took another leave of absence. The plaintiff further alleges that after the defendant had granted the second requested leave and knew on which date she would be returning to her job, the defendant acted in an unreasonable and negligent manner. Specifically, she alleges that the defendant failed to warn the plaintiff that her job was in jeopardy, failed to work with the plaintiff in getting her work done, failed to allow the plaintiff to come back to her job to avoid being fired, failed to inquire of the plaintiff when she would return to work, failed to be truthful and reasonable with her in its termination letter, and failed to take actions to preserve her job when they knew of her return date.
In opposition to the defendant's motion, the plaintiff relies on Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 73, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005) for her argument that the court "should consider the totality of the circumstances surrounding an employee's termination" rather than focusing solely on the termination process on a claim for negligent infliction of emotional distress. In Davis, the plaintiff nurse, who was pregnant at the time, was told to work in wing one of the defendant nursing home, which involved the heaviest workload, and an increased risk of the onset of cramping to her. Id., 64. The plaintiff nurse chose to sacrifice her job rather than endanger her pregnancy. Id., 70. The Appellate Court stated: "Viewing the totality of the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined that the defendant engaged in unreasonable conduct during the process of terminating the plaintiff's employment. Forcing the plaintiff to choose between her own health and well-being and that of her unborn child, and her continued employment . . . was patently unreasonable." (Emphasis added.) Id., 73. In affirming the jury verdict, the court, however, did not consider events that occurred outside the termination process.
As noted in Olson v. Bristol-Burlington Health District, supra, "A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm." Id., p. 7. The court finds that the allegations in the second count are sufficient for submission to the trier for adjudication of her claim of negligent infliction of emotional distress.
Breach of Covenant of Good Faith and Fair Dealing-Count Three
Lastly, the defendant moves to strike count three, claiming a breach of the covenant of good faith and fair dealing, on the ground that, in the absence of an employment contract, the plaintiff was an at-will employee and employment at-will grants both parties the right to terminate the relationship without regard to cause. The defendant argues in his memorandum in support that the only exception to this rule is where the employer's reasoning for terminating the employee violates an important public policy, and that the plaintiff has failed to allege a violation of any such public policy. Therefore, the defendant maintains that the plaintiff fails to state a claim for breach of the covenant of good faith and fair dealing.
In response, the plaintiff counters that she and the defendant entered into an oral contract of employment, that every contract imposes a duty of good faith and fair dealing in its performance and that the defendant breached this duty when it granted the plaintiff her leave of absence with knowledge that she would be returning to her job, but giving her "no time to try to save her job" and no "notice that her leave of absence could not continue." The plaintiff further argues that the defendant "made no apparent attempt to accommodate her leave of absence," and that its actions in terminating her employment were "underhanded and evasive" and, therefore, in violation of its duty of good faith and fair dealing.
"As a general rule, contracts . . . for an indefinite term are terminable at will." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). "Employment at will grants both [the employer and employee] the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). The Supreme Court, however, has created a public policy exception which limits employers' discretion to terminate at-will employees. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980). In Sheets, the plaintiff alleged that he had been dismissed in retaliation for his insistence that the defendant's products comply with the labeling and licensing sections of the Connecticut Uniform Food, Drug and Cosmetic Act. Id., 473. The court recognized an exception to the traditional rules governing employment at will "so as to permit a cause of action for wrongful discharge where the discharge contravenes a clear mandate of public policy." Id., 474.
The Supreme Court has applied this same analysis to claims of breach of the implied covenant of good faith and fair dealing. In Carbone v. Atlantic Richfield Co., 204 Conn. 460, 470, 528 A.2d 1137 (1987), the plaintiff argued that the trial referee erred in finding that the defendant had not breached an implied covenant of good faith and fair dealing in its oral contract by dismissing the plaintiff. The plaintiff claimed that such a covenant "should be interpreted as standard of behavior which governs the conduct" of the contracting parties, and that "the referee should have determined that the defendant, by its behavior and conduct in performing the contract, breached this implied covenant." (Internal quotation marks omitted.) Id. The Supreme Court noted that while the court endorses "the principle of good faith and fair dealing in employment contracts, the purpose of such an implied covenant is to fulfill the reasonable expectations of the parties . . . Where an employment contract is clearly terminable at will, however, a party cannot ordinarily be deemed to lack good faith in exercising this right." (Citations omitted.) Id. The court thus concluded that "absent a showing that the discharge involves an impropriety which contravenes some important public policy, an employee may not challenge a dismissal based upon an implied covenant of good faith and fair dealing." Id., 470-71.
In the present case the plaintiff does not allege in her complaint, as revised, any violation of any public policy. She alleges, simply, that the defendant breached its duty of good faith and fair dealing by not informing her that her job was in jeopardy, by not giving her reasonable time to attempt to keep her job, and by not inquiring about her condition and whether she could get work done or train a temporary worker during her absence. The gravamen of the plaintiff's allegations is essentially that the defendant failed to maintain her job security. As an at-will employee, however, her job security in itself is not mandated by a public policy. The court finds that since the plaintiff has not alleged any violation of a public policy sufficient to maintain a claim of breach of the covenant of good faith and fair dealing, she has not asserted a viable claim in the third count.
Conclusion
For the foregoing reasons the Motion to Strike addressed to the First and Third Counts is granted. The Motion to Strike addressed to the Second Count is denied.