Opinion
FSTCV166027731S
09-22-2016
Pamela Toason v. Cablevision of Connecticut Limited Partnership
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Donna Nelson Heller, J.
The plaintiff Pamela Toason commenced this action, returnable March 8, 2016, against her former employer, Cablevision of Connecticut, Limited Partnership. In her four-count complaint (#100.31), the plaintiff asserts claims for wrongful discharge (count one), defamation (count two), intentional infliction of emotional distress (count three), and negligent infliction of emotional distress (count four). On April 22, 2016, the defendant filed a motion to strike all counts of the plaintiff's complaint, together with a supporting memorandum of law (#104.00; #105.00). The plaintiff filed an objection to the motion to strike, with a memorandum of law in support, on May 10, 2016 (#110.00; #111.00). The defendant filed a reply memorandum on May 24, 2016 (#114.00).
The defendant indicates in its memorandum in support of the motion to strike that its correct name is " Cablevision of Litchfield, Inc."
The defendant also submitted an affirmation of counsel and copies of unreported cases (#106.00; #107.00; #108.00; #109.00).
The parties were before the court on the June 6, 2016 short calendar. The court heard argument from counsel and reserved decision at that time. For the reasons set forth below, the defendant's motion to strike is granted.
I
In count one of her complaint, a claim for wrongful discharge, the plaintiff alleges that she began working full time for the defendant as a secretary in May 1998. She consistently performed her duties in an exemplary manner and received multiple raises during the time that she was employed by the defendant. In 2009, the plaintiff was promoted to the position of Secretary 1, at a higher pay grade, in recognition of her outstanding performance.
In 2013, the plaintiff became aware that Jeffrey Stigers (Mr. Stigers), an executive of the defendant, was in a relationship with her co-worker, Denise Doicos (Ms. Doicos). Ms. Doicos had the position of Coordinator, which was below the plaintiff's position of Secretary 1. Mr. Stigers began to give Ms. Doicos a substantial part of the plaintiff's work at that time.
In early 2015, the defendant began an audit related to its health insurance plan. In the course of the audit, the defendant discovered that the plaintiff had failed to remove her former husband, Michael Pettiford, from the defendant's health insurance plan following their October 2005 divorce. The plaintiff had unintentionally kept Mr. Pettiford on her health insurance. Mr. Pettiford had maintained his own health insurance coverage through a plan offered by his employer after the divorce.
On April 16, 2015, the defendant notified the plaintiff that Mr. Pettiford was no longer eligible for coverage under the defendant's health insurance plan due to the divorce. The defendant did not allege any wrongdoing on the part of the plaintiff in keeping Mr. Pettiford on its health insurance plan at that time or for three months thereafter.
On August 4, 2015, the plaintiff was called into a conference room to meet with Joan McAlister (Ms. McAlister). Mr. Stigers was also present. During the meeting, Ms. McAlister told the plaintiff that she was being terminated for an " egregious violation" of company policies because she failed to remove Mr. Pettiford from the defendant's health insurance plan following their divorce. Ms. McAlister implied by her words that the plaintiff had committed and was still committing fraud. The plaintiff was stunned because she had not been aware that she had done anything wrong, any alleged violation of company policy was clearly unintentional on her part, and it had been three months since she was notified that Mr. Pettiford was ineligible for coverage under the defendant's health insurance plan.
Ms. McAlister is not specifically identified in the plaintiff's complaint as an employee of the defendant but she is alleged to have been acting on the defendant's behalf.
After the meeting, the plaintiff realized that the reason she was given for her termination was a pretext. The real reason for her termination was that Mr. Stigers planned to promote his girlfriend, Ms. Doicos. The plaintiff's employment had to be terminated in order for him to do so.
In count two of her complaint, a claim for defamation, the plaintiff incorporates by reference all of the allegations set forth in count one. The plaintiff further alleges that Ms. McAlister's publication to third parties that the plaintiff had intentionally committed fraud against the defendant was false and was done deliberately to provide a reason to terminate her employment.
In count three of her complaint, a claim for intentional infliction of emotional distress, the plaintiff again incorporates by reference all of the allegations set forth in count one. The plaintiff further alleges that the defendant's acts of accusing the plaintiff of fraud in order to terminate her employment were intentional and/or reckless, extreme and outrageous, and outside the bounds of normal society. The plaintiff claims that such comments caused her severe emotional distress and bodily harm.
In court four of her complaint, for negligent infliction of emotional distress, the plaintiff once again incorporates by reference all of the allegations set forth in count one. The plaintiff further alleges that the defendant's negligent conduct in accusing the plaintiff of fraud during the termination process involved an unreasonable risk of causing emotional distress that might result in bodily harm. The plaintiff claims that such conduct caused her emotional distress and bodily harm.
II
" 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." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . 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. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Citation omitted; internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 47-48, 91 A.3d 412 (2014). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
" A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." (Citation omitted.) Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
A
The defendant has moved to strike count one of the plaintiff's complaint, alleging wrongful discharge, as legally insufficient because the plaintiff has failed to plead that the defendant violated an important public policy when it terminated her employment so as to warrant an exception to the at-will employment relationship. " In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Citation omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). Our Supreme Court has, however, " recognized a common-law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Emphasis in original; citation omitted; internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).
The plaintiff does not allege that she had an employment contract with the defendant. Therefore, her employment was at will. See Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002).
" [T]he public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . ." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 701. " In evaluating [wrongful discharge] claims, [courts] look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; internal quotation marks omitted.) Id. at 699. A plaintiff must identify in his pleading any particular public policy affronted by his termination. See Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986). The plaintiff must also allege that " the reason for or the manner of discharge [was] demonstrably improper . . ." Carbone v. Atlantic Richfield Co., 204 Conn. 460, 469, 528 A.2d 1137 (1987).
Although it is not necessary to use the precise or exact words " violation of an important public policy, " the complaint must apprise the court and the adverse party of the public policy that has purportedly been violated. See Apicella v. Driver Logistic Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV-01-0450101-S, (August 19, 2002, Arnold, J.).
In count one of her complaint, the plaintiff alleges that the defendant's termination of her employment " by using the false allegation of fraud" on her part was " fraud in and of itself, " and, therefore, her termination was in violation of the " public policy against fraud including but not limited to the public policy against fraud contained in the federal Major Frauds Act, [18 U.S.C. § 1031]. Connecticut courts have recognized an important public policy " against fraud, which is deeply rooted in our common law; see Broome v. Beers, 6 Conn. 198, 210-12 (1826); and in our criminal statutes. See, e.g., General Statutes § 53a-119(2) (obtaining property by false pretenses)." (Footnote omitted.) Schmidt v. Yardney Electric Corp., 4 Conn.App. 69, 74, 492 A.2d 512 (1985) (employee's termination in retaliation for disclosing employer's fraud implicated public policy against fraud). See also Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997) (employee's complaint sufficiently stated claim for wrongful discharge in violation of public policy where complaint alleged that he was discharged by employer for refusing to participate in violating Major Frauds Act).
The Major Frauds Act " criminalizes the knowing execution or attempted execution of a scheme or artifice in order to defraud the [United States] . . . The act targets schemes to defraud the United States in connection with procurement contracts executed by (1) prime contractors with the United States, or (2) subcontractors or suppliers on contracts in which there is a prime contract with the United States, if the value of the contract upon which the fraud is based is $1,000,000 or more . . . Congress enacted the Major Frauds Act to curtail the ubiquitous and rampant fraud in the defense procurement area, born of greed in the private sector and inefficiency and acquiescence by the [f]ederal [g]overnment." (Citations omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 581-82, 693 A.2d 293 (1997).
The plaintiff has failed to allege facts sufficient to show that the defendant's termination of her employment violated a public policy against fraud. Although the plaintiff claims that Ms. McAlister, on behalf of the defendant, implied during her termination meeting that the plaintiff had committed fraud and gave her a reason for her termination that was not the actual reason why she was being fired, the plaintiff concedes that the reason cited was, in fact, true--she had failed to remove her former husband from the health insurance coverage provided by the defendant for ten years following their divorce. Other than the plaintiff's allegation that Mr. Stigers began to give Ms. Doicos a substantial part of the plaintiff's work after Ms. Doicos was hired, the plaintiff has not alleged any facts that, if taken as true, would show that the defendant's actual reason for firing her was so that Ms. Doicos could take her position. Without more, the plaintiff's claim that she later realized the true reason for het termination is insufficient to support a cause of action for wrongful discharge in violation of an important public policy. Accordingly, the motion to strike count one of the complaint is granted.
B
The defendant has moved to strike the defamation claim in count two of the plaintiff's complaint because it fails to state a claim for which relief can be granted. " A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citation omitted; internal quotation marks omitted.) Nodoushani v. Southern Connecticut State University, 152 Conn.App. 84, 95 n.6, 95 A.3d 1248 (2014). " To prevail on a common-law defamation claim, [the] . . . plaintiff must prove that the defendant published false statements about her that caused pecuniary harm." (Citation omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1995).
The defendant contends that the plaintiff's claim for defamation is legally insufficient on the following grounds: (i) the plaintiff has failed to allege with specificity the defamatory words that were allegedly spoken; (ii) the alleged defamatory statement was true; (iii) there was no publication of an alleged defamatory statement; and (iv) any alleged defamatory statement was protected by a qualified privilege.
The defendant contends that the plaintiff admits in her complaint that Ms. McAlister's statements during her termination meeting were true; therefore, they cannot be defamatory. " [T]he rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense." (Citation omitted.) Goodrich v. Waterbury Republican American, Inc., 188 Conn. 107, 112, 448 A.2d 1317 (1982). A defendant is not required to show complete or absolute truth; substantial truth will suffice. " Where the main charge, or gist, of the libel is true, minor errors that do not change a reader's perception of the statement do not make the statement actionable." (Citation omitted; internal quotation marks omitted.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 322, 477 A.2d 1005 (1984). " [B]ecause truth is an absolute defense to an allegation of libel, the defendant cannot be held liable for statements that are substantially true . . ." Savage v. Andoh, Superior Court, judicial district of New Haven, Docket No. NNH-CV-07-5015657-S, (Feb. 6, 2013, Fischer, J.).
Turning to the specific allegations of the plaintiff's complaint, the plaintiff acknowledges her failure to remove her former husband from the defendant's health insurance plan following their divorce. She also does not dispute Ms. McAlister's assertion that her failure to do so violated the defendant's policies. The gravamen of her defamation claim appears to be that the word " egregious" was used to describe the violation--which, according to the plaintiff, implied that she had committed, and was continuing to commit, fraud--when her violation of the policy was unintentional.
" Egregious" is an adjective, defined in Black's Law Dictionary as " [e]xtremely or remarkably bad; flagrant." Black's Law Dictionary (10th ed. 2014). In labeling the plaintiff's violation of the defendant's policy as " egregious, " Ms. McAlister expressed an opinion of the plaintiff's conduct. " As a general rule . . . an opinion is privileged as fair comment . . . when the facts on which it is based are truly stated or privileged or otherwise known . . . [A]n opinion must be based upon facts." (Citations omitted; internal quotation marks omitted.) Savage v. Andoh, supra, Superior Court, Docket No. NNH-CV-07-5015657-S, .
The defendant's alleged defamatory statements are true, or based upon the truth, and truth is an absolute defense to a claim for defamation. To the extent a particular statement is viewed as an opinion, it is an opinion based upon fact and, therefore, privileged as fair comment. Accordingly, the motion to strike count two of the complaint is granted.
C
The defendant has moved to strike count three of the complaint on the ground that the plaintiff has failed to state a cause of action for intentional infliction of emotional distress. " 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 . . ." (Citation omitted; 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. 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.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
" [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." (Citations omitted; 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 . . . Those 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." (Citation omitted; internal quotation marks omitted.) Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV-01-0509752-S (April 10, 2002, Quinn, J.) (32 Conn.L.Rptr. 72, ). " 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." (Citation omitted.) Appleton v. Board of Education, supra, 254 Conn. at 210.
Notwithstanding the plaintiff's conclusory allegations that the defendant's conduct was " intentional and/or reckless, " " extreme and outrageous, " and " outside the bounds of normal society, " the defendant's actions--irrespective of whether it fired the plaintiff because she kept her former husband on the defendant's health insurance plan for ten years following their divorce, in an " egregious violation" of company policy, as it claimed, or whether it actually fired her so that the girlfriend of a company executive could take her job, as she has alleged--do not reflect the sort of atrocious and intolerable behavior that would give rise to a legally sufficient claim for intentional infliction of emotional distress. Accordingly, the plaintiff has failed to plead a cause of action for intentional infliction of emotional distress. The motion to strike count three of the complaint is granted.
D
The defendant has moved to strike count four of the plaintiff's complaint on the ground that the plaintiff has failed to state a legally sufficient claim for negligent infliction of emotional distress. To state a claim for negligent infliction of emotional distress, the plaintiff must plead that " (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., supra, 262 Conn. at 444. " [A] pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. 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. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted in part, 273 Conn. 914, 870 A.2d 1083 (2005).
" [N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . .
The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
In Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998), our Appellate Court held that the trial court should have directed a verdict in favor of the defendant on the plaintiff's negligent infliction of emotional distress claim because no evidence was presented regarding any unreasonable conduct by the defendant in the termination process. As the court explained, " [t]here was no evidence that the defendant humiliated the plaintiff publicly. She was told in a private meeting with her supervisors that she was being terminated effective immediately, and that she must take her personal items and leave the hospital premises. While there was undoubtedly some indignity involved with being involuntarily terminated, we cannot say that this rises to the level of unreasonable conduct that would justify liability based on negligent infliction of emotional distress." Id. at 598.
The plaintiff does not allege unreasonable conduct on the part of the defendant during the termination process; rather, the plaintiff alleges that the defendant was negligent by implicitly accusing her of fraud when it terminated her employment. While the plaintiff alleges that she was " stunned" and " had not been aware that she had done anything wrong, " the defendant's conduct cannot be said to have " transgressed the bounds of socially tolerable behavior, " particularly where the plaintiff has conceded that she failed to remove her former husband from the defendant's health insurance plan, which the defendant cited as the reason for her termination. Accordingly, the plaintiff has failed to plead a cause of action for negligent infliction of emotional distress. The motion to strike count four of the complaint is granted.
III
For the reasons set forth above, the defendant's motion to strike counts one, two, three, and four of the plaintiff's complaint (#104.00) is GRANTED.