Opinion
No. CV 07-5015657
April 11, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
FACTS
On November 5, 2007, the plaintiff, Deborah Savage, commenced this action by service of process on the defendant, Samuel Andoh. The plaintiff filed a four-count complaint against the defendant in which she makes claims for libel per se, slander per se, intentional infliction of emotional distress, and tortious interference with an employment contract, respectively. The plaintiff alleges the following in the complaint. The plaintiff was, and currently is, employed by Southern Connecticut State University as a tenured, full-time professor of economics in the university's Department of Economics and Finance. The defendant is also a faculty member at the university and is the chair of the Department of Economics and Finance. From 2004 to the present, the defendant has subjected the plaintiff to an ongoing pattern of harassment, slander and libel. The conduct that comprises this pattern includes the publishing of written reports and making of statements to the plaintiff's superiors concerning her attitude, fulfillment of job responsibilities, opinion of the university and its students and employees, and overall merit as a professor. According to the plaintiff, the content of these statements and reports is false. In addition, the plaintiff alleges that the defendant made derogatory and anti-semitic comments about the plaintiff, who is Jewish. The plaintiff further alleges that as a result of the defendant's conduct, she has suffered harm to her personal and professional reputations, reduction of her ability to secure employment in her field, emotional distress and health problems, ascertainable economic loss, and the reduction of employment opportunities and the accompanying economic benefits.
The defendant has moved to strike the third and fourth counts of the complaint on the ground that the plaintiff has failed to allege facts sufficient to state causes of action. Specifically, the defendant contends that the plaintiff has failed to state a cause of action for intentional infliction of emotional distress in the third count because she has not alleged conduct that is extreme and outrageous. With regard to the fourth count, the defendant argues that the plaintiff has failed to state a cause of action for tortious interference with an employment contract because she has not alleged that the defendant did not act legitimately within the scope of his authority and used his corporate power for personal gain, that she suffered actual loss as a result of any interference, that the interference was tortious, and that the defendant intended to interfere with the plaintiff's employment.
Both parties filed memoranda of law on these issues and the matter was heard at short calendar on March 3, 2008.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294.
A. Count Three — Intentional Infliction of Emotional Distress
The defendant has moved to strike the third count on the ground that the plaintiff has failed to sufficiently plead a claim for intentional infliction of emotional distress. The defendant argues that the plaintiff has failed to allege conduct that could be considered extreme and outrageous by a reasonable trier of fact. In opposition, the plaintiff asserts that she has alleged facts that satisfy the elements of a claim for intentional infliction of emotional distress. Specifically, she argues that the requirement of extreme and outrageous conduct has been met by the allegations set forth in the complaint, including her allegation that "the defendant made derogatory and anti-semitic comments about the plaintiff, who is Jewish."
The complaint alleges the following conduct on the part of the defendant:
5. For an extended period of time continuing to the present, the plaintiff has been subjected to an ongoing pattern of harassment, slander and libel by the defendant . . .
7. On or about November 4, 2004, the defendant authored a memorandum in which he claimed, inter alia, that:
a. Ten years after coming to SCSU, the plaintiff has yet to submit even one course proposal;
b. the plaintiff often fails to attend scheduled meetings;
c. The plaintiff has engaged in heated exchanges with a committee chair;
d. The plaintiff has not honored employment commitments;
e. The plaintiff categorically refused to honor her teaching obligations at SCSU;
CT Page 6207
f. the plaintiff taught fewer classes that she was supposed to;
g. The plaintiff has caused a department of her employer inconvenience and to "Scramble to cover" the plaintiff's classes;
h. The plaintiff has to regularly be reminded to do simple and routine tasks related to her position;
i. The plaintiff is the only faculty member of SCSU who has failed to submit an annual report for the academic year of 2003-2004;
j. The plaintiff has cancelled her classes on many occasions;
k. the plaintiff is ashamed to be a professor at SCSU;
l. The plaintiff wishes she were a professor elsewhere;
m. The plaintiff does not take her job seriously;
n. That the plaintiff acted in a "weird" manner in applying for an academic position;
o. That the plaintiff deprives her employer of the benefit of being known to have her on its staff;
p. That the plaintiff thinks poorly of her students and the students of SCSU;
q. that the plaintiff thinks poorly of her employer as an educational institution; and
r. That the plaintiff's attitude contributes negatively to the image of the School of Business and Southern Connecticut State University.
8. The defendant published these statements to Dr. Barat Bhalla, the Interim Dean of the School of Business, and the plaintiff's superior.
9. The defendant published these statements to then Dean of SCSU Dr. Kenneth Kraft and to Vice President for Academic Affairs Dr. Phil Smith. Both are the superior of the plaintiff.
10. The defendant fraudulently concealed the existence of the document from the plaintiff.
11. Thereafter, the defendant recommended that the plaintiff be disciplined and to seek employment elsewhere.
12. On or about November 13, 2005, the defendant make further false and defamatory statements about the plaintiff. The defendant stated, inter alia:
a. That the plaintiff's complaints were fabrications;
b. that the plaintiff was making false statements about the defendant, because the plaintiff believed that she could act with impunity, as she had former Vice President for Academic Affairs Dr. Phil Smith "protecting" her;
c. that the plaintiff requested that certain of her colleagues step down from their positions;
d. that she inappropriately or unlawfully used voicemail;
e. That the plaintiff incorrectly put through a course;
f. That the plaintiff was a troublemaker;
g. That it is the plaintiff's fault that no DEC was available to review her work and consider her for promotion;
h. that the plaintiff is a bad teacher;
i. That the plaintiff is a lousy colleague; and
j. That the plaintiff is a poor academic.
13. The defendant published these statements to Selase Williams of SCSU.
14. The statements of the defendant are false.
15. The statements of the defendant specifically identified the plaintiff.
17. Thereafter, the defendant made derogatory and anti-semitic comments about the plaintiff, who is Jewish.
18. Thereafter, the defendant refused to acknowledge the plaintiff.
19. Despite his wrongdoing, the defendant perseverates in blaming the plaintiff, refusing to accept responsibility, and falsely describing his conduct toward and statements about the plaintiff.
"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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .
"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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"There is no bright line rule to determine what constitutes extreme and outrageous conduct . . . The court looks to the specific facts and circumstances of each case in making its decision. However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility . . . [T]hose cases in the employment context that have granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior are more often those that allege little more than that the plaintiff was terminated without just cause." (Internal quotation marks omitted.) Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72).
Connecticut courts have not directly addressed whether, in an employment context, a supervisor making anti-Semitic comments to a Jewish employee constitutes extreme and outrageous conduct. There are, however, several Connecticut cases in which the courts concluded that a supervisor's discriminatory comments to an employee based on the employee's race, religion, or ethnicity, could be considered extreme and outrageous conduct.
In Leone v. New England Communications, Judge Quinn denied the defendant employer's motion to strike where the complaint alleged that the owners of the company referred to the plaintiff employee as "dago, wop, Father Sarducci or Gimabroni," made offensive comments to the plaintiff about homosexuality and his sexual performance, and placed sexually offensive comments and pictures on his computer. Leone v. New England Communications, supra, 32 Conn. L. Rptr. 72. The court noted that "there is a strong public policy expressed by statute in our state prohibiting discrimination on the basis of race, sex or national origin." Id. Based on this public policy and the factual allegations, the court found "these comments so outrageous in character, and so extreme in degree so as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Id.
In Monahan v. Bausch, Superior Court, judicial district of Fairfield, Docket No. CV 91 0280862 (September 11, 1991, Spear, J.), the plaintiffs alleged that the defendant, their supervisor, made "disparaging remarks about their religion and ethnic backgrounds" and harassed and humiliated them. Id. The court found the conduct alleged to be sufficiently extreme and outrageous to state a claim for intentional infliction of emotional distress and denied the defendant's motion to strike. Id.
In Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.), the plaintiff, an African American, alleged that her supervisor made disparaging remarks about African American people to her and treated her disparately. Id. The court concluded that "reasonable people could disagree as to whether the facts alleged . . . satisfy the extreme and outrageous requirement" and denied the motion to strike. Id.
These cases share as common threads conduct that took place in an employment context, where the tormentor was the employee's supervisor, who made derogatory comments to or about the plaintiff directly corresponding to the plaintiff's race or ethnicity. In each case, the court found the defendant's conduct to be extreme and outrageous. Cases from other jurisdictions corroborate the rule of these Connecticut decisions.
For example, in a federal case applying Maryland law, the court denied a motion to dismiss where the plaintiff's supervisors, despite plaintiff's repeated objections, addressed the plaintiff using anti-semitic slurs. Smallzman v. Sea Breeze, 1993 U.S.Dist.LEXIS 288 (D.Md. 1993). In finding the defendants' conduct to be extreme and outrageous, the court emphasized the supervisory positions of the tormentors and their knowledge of the plaintiff's sensitivities to such conduct as aggravating factors. Id. Judge Corradino, in Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Milford, Docket No. CV 95 0050418S (June 29, 1999, Corradino, J.), reviewed several similar cases from other jurisdictions in which courts have found the authoritative position of the defendant to be an important consideration in determining whether conduct is extreme and outrageous. See id., (citing, e.g., Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (App. 1981); Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977)).
In contrast, the cases cited by the defendant as support for his argument are distinguishable from the facts of this case. In several of the cases cited by the defendant, the conduct did not take place in an employment context. See Lachira v. Sutton, 2007 U.S.Dist.LEXIS 33250, 73 Fed.R.Evid. Serv. (Callaghan) 536 (D.Conn. 2007) (landlord made derogatory comments to tenants); Brown v. Mulcahy, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001276 (July 24, 2007, Upson, J.) (43 Conn. L. Rptr. 835) (slurs by security guard to shopper); Umeugo v. Czajkowski, Superior Court, judicial district of Ansonia-Milford, Docket No. 96 0054919 (May 7, 1999, Thompson, J.) (24 Conn. L. Rptr. 429) (defendants harassed and assaulted minor plaintiff); Ferguson v. New York, 273 App.Div.2d 103, 709 N.Y.S.2d 90 (2000) (prison guard played audiocassette containing anti-semitic comments within earshot of prisoner). In other cases cited by the defendant, the conduct alleged to be extreme and outrageous did not involve derogatory comments specifically about the individual plaintiff's race, ethnicity, or religion. See Mallett v. Plainville, 2006 U.S.Dist.LEXIS 15794 (D.Conn. 2006) (plaintiff, a white male, being referred to as female genitalia, and by non-caucasian racial epithets, outrageous); Williams v. Perry, 960 F.Sup. 534 (D.Conn. 1996) (defendant coworker's derogatory comments about plaintiff's interracial marriage not outrageous); Negro v. Ream Cosmetic Packaging, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 04 4000333 (January 11, 2006, Trombley, J.) (only conduct relevant to claim was displaying pictures of plaintiff implying he engaged in bestiality); Lucuk v. Cook, Superior Court, judicial district of Ansonia-Milford, Docket No. CV9 50050210 (February 11, 1998, Corradino, J.) (21 Conn. L. Rptr. 377) (in a union meeting, police officer referring to another officer as "a rat" not outrageous). In Burr v. Howell, Superior Court, judicial district of New Haven, Docket No. CV 02 0464225 (June 25, 2003, Arnold, J.) (35 Conn. L. Rptr. 95), the circumstances were different from this case in that it was the employee who used a racial slur in reference to his employer. Id., 97. Moreover, the court found the conduct not to be outrageous because there was no evidence of a discriminatory motive and the conduct was "isolated in the context of a heated breakdown of a business relationship." Id. Finally, in Leibowitz v. Bank Leumi Trust, 152 App.Div.2d 169, 548 N.Y.S.2d 513 (1989), New York's appellate court reviewed facts very similar to those of the present case. The court stated that anti-Semitic comments by an employer to an employee do "not necessarily lead to the conclusion that [the conduct] arose to such a level that the law must provide a remedy." Id., 182. The court further explained, however, that the more important factor in sustaining the dismissal of the complaint was that the claim for intentional infliction of emotional distress was merely a rephrasing of her wrongful discharge claim; a cause of action not recognized under New York law. Id., 182-83. Therefore, Liebowitz, like the other cases cited by the defendant, is inapposite.
Here, the plaintiff's allegations regarding anti-semitic comments by the defendant, a co-faculty member and chair of the plaintiff's department, in conjunction with the other allegations of the complaint, are such that reasonable people could disagree as to whether the conduct was so outrageous, indecent, and intolerable as to go beyond all bounds of decency. Accordingly, the defendant's motion to strike the third count is denied.
B. Count Four — Tortious Interference with Employment Contract
The defendant has moved to strike the fourth count of the complaint on the ground that the plaintiff has failed to sufficiently plead a claim for tortious interference with an employment contract. The defendant argues that the plaintiff has not alleged that he used the employer's power improperly and solely for personal gain, that the plaintiff suffered a loss as a result of his conduct, that the interference was tortious, and that the defendant intended to interfere with the plaintiff's employment. In opposition, the plaintiff asserts that she has alleged facts to satisfy each element of tortious interference with contractual relations.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
The defendant first argues that because he is an agent of the plaintiff's employer, the claim for tortious interference must be stricken because the plaintiff has failed to allege that he acted outside the scope of his employment for personal gain. "The general rule is that the agent may not be charged with having interfered with a contract of the agent's principal. An agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . . [the agent, however,] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 53 Conn.App. 252, 267, 730 A.2d 88 (1999), rev'd in part on other grounds, 254 Conn. 505, 757 A.2d 1059 (2000).
"[I]n evaluating whether the defendants' conduct in this case is within or outside the scope of their authority, the focus is not on the type or extent of the harm to the plaintiffs. Furthermore, although this consideration is relevant, the inquiry is not controlled by whether the defendants received personal benefit from the conduct or transaction at issue because an agent may legitimately receive benefit or remuneration from its relationship with its principal. The primary focus of this inquiry is on this relationship between the agent and its principal whether the agent's conduct is beyond any fair description of the agent's legitimate responsibilities and whether the agent's conduct is inimical to the principal's interests or both." Metcoff v. Lebovics, Superior Court, complex litigation at Waterbury, Docket No. X06 CV 05 5000521 (February 14, 2008, Stevens, J.) [45 Conn. L. Rptr. 81].
"In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer . . . Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment . . . [b]ut there are occasional cases [in which] a servant's digression from [or adherence to] duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003). "An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions." (Internal quotation marks omitted.) Id., 786.
In the present case, the plaintiff alleges that the defendant, the chair of her department, made verbal and written reports to her supervisors that she was not meeting his and the department's expectations and had acted improperly. The plaintiff further alleges that the content of these reports is false. Although one could reasonably presume that overseeing professors within the department and providing reports about them to supervisors is within a department chair's authority and responsibility, it is difficult to believe that the defendant was authorized to make false reports about professors within his department.
Other courts have harbored similar skepticism. For example, in Krause v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 05 4010674 (November 21, 2006, Gilardi, J.), the plaintiff alleged that an agent of the plaintiff's employer provided the chief executive officer with false information about the plaintiff in order to earn a promotion and retaliate against the plaintiff for lodging complaints about staffing shortages. Id. In consideration of a motion to strike, the court found it "difficult to imagine that [the agent] was authorized to pass along false information about the plaintiff," and held that these allegations were sufficient to support the conclusion that the agent "did not act legitimately within the scope of her employment." Id.
As in Krause, the plaintiff in the present case has specifically alleged that the defendant provided false information regarding her to her supervisor. When presented with a defendant's motion to strike, the court must take the plaintiff's allegations as true. Therefore, the court concludes find that the defendant was not acting within the scope of his employment in making these reports.
In light of the conclusion that the defendant did not act within the scope of his employment, the court must consider whether the plaintiff has sufficiently alleged that the defendant "used the corporate power improperly for personal gain." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 53 Conn.App. 267. Most Connecticut cases that have found this element to be satisfied involved allegations of specific facts that the defendant acted for personal gain.
For example, in Appleton, it was alleged that the defendants attempted to discredit the plaintiff "to deflect public scrutiny from themselves regarding subjects of wrongdoing and misconduct." Id., 268. In Krause v. St. Vincent's Medical Center, supra, Docket No. CV 05 4010674, the plaintiff alleged that the defendant's misconduct was part of an attempt by the defendant to earn a promotion by showing that she could control the plaintiff and her coworkers, as well as retaliation against the plaintiff for raising grievances to the chief executive officer. Id. Other cases in which courts have found the requirement to be satisfied involved at least conclusory allegations that the defendant acted for personal gain. See, e.g., Walsh v. Long, Superior Court, judicial district of Hartford, Docket No. CV 02 0815945 (November 26, 2002, Rittenband, J.T.R.), (finding allegation that "[a]t all times the Defendant Long acted . . . for her own benefit" to be sufficient). In contrast, courts have denied motions to strike where no such allegations were made. See, e.g., Engle v. Bosco, Superior Court, judicial district of New Britain, Docket No. CV 05 4006996 (September 14, 2006, Robinson, J.) (striking claim because "plaintiff has not alleged that [defendant] . . . used his corporate power improperly for personal gain").
In the present case, the plaintiff has not presented even conclusory allegations that the defendant used his power improperly for personal gain. Likewise, the facts do not give rise to an inference that the defendant stood to profit in any way as a result of his conduct regarding the plaintiff. Accordingly, the plaintiff has failed to plead allegations that establish that the defendant was acting for personal gain.
Since the plaintiff has failed to allege that the defendant did not act legitimately within the scope of his authority but used his corporate power improperly for personal gain, this case does not fall within the exception to the general rule that an agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party. It is therefore unnecessary to address the defendant's remaining claims. Accordingly, the motion to strike the fourth count is granted.
CONCLUSION
For the foregoing reasons, the allegations of the third count are sufficient to state a claim for intentional infliction of emotional distress, and the allegations of the fourth count are insufficient to state a claim for tortious interference with an employment contract. Accordingly, the defendant's motion to strike is denied as to the third count and granted as to the fourth count.