Opinion
No. CV07-5012082S
March 5, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106
The question presented by the defendants' motion to strike is whether the plaintiff has alleged the requisite facts to ground his claims of (1) wrongful discharge in violation of public policy, (2) invasion of privacy by false light, (3) defamation, (4) intentional infliction of emotional distress, (5) negligent misrepresentation, (6) promissory estoppel, and (7) breach of the implied covenant of good faith and fair dealing. For the reasons set forth below the motion is granted in part and denied in part.
I FACTS
The plaintiff, Brendon Winters, filed a ten-count amended complaint on September 21, 2007, essentially alleging that the defendants, Concentra Health Services, Inc. (Concentra) and Occupational Health Centers of the Southwest, P.A. (OHC), terminated his employment in a manner that was both tortious and breached his employment contract. More specifically, the plaintiff alleges that: (1) Concentra intimated he would receive a promotion and was then passed over for that job in lieu of a less qualified candidate; (2) Concentra did not have or failed to provide him with sufficient notice of a company policy prohibiting the lawful possession of firearms at work, and terminated him for lawfully carrying a concealed weapon at work during late night shifts; and (3) Concentra terminated him in a misleading and public manner that was humiliating and violated his employment contract. For these alleged misdeeds, the plaintiff seeks compensatory and punitive damages, as well as attorney and expert witness fees.
On October 12, 2007, the defendants filed their motion to strike count one (wrongful discharge against defendants), count two (false light against Concentra), count three (defamation against Concentra), count four (intentional infliction of emotional distress against defendants), count five (negligent misrepresentation against Concentra), count six (negligent misrepresentation against OHC), second count six (promissory estoppel against Concentra), count seven (promissory estoppel against OHC), and count ten (breach of implied covenant of good faith and fair dealing against defendants). In support of their motion to strike, the defendants filed a memorandum of law. Subsequently, the plaintiff filed a memorandum in opposition to the defendants' motion to strike on November 8, 2007, which the defendants responded to in their reply brief on November 20, 2007.
The plaintiff's amended complaint contains a typographical error, naming two separate causes of action "count six." Accordingly, where it is necessary to distinguish these two distinct counts, this memorandum will refer to the latter count six as "the second count six."
II DISCUSSION
Before addressing the merits of this motion, the court pauses to set forth the applicable standard of review. "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Finally, while "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted"; Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006); "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A Count One (Wrongful Discharge)
Turning to the defendants' motion to strike count one of the amended complaint, they argue that it should be stricken both because the plaintiff was not an at will employee and because he failed to articulate a sufficiently specific public policy was violated by his termination. With respect to the employment status of the plaintiff at the time of his termination, the defendants argue that he was employed pursuant to a fixed term contract, and was not, therefore, an employee at will. In support of their argument, the defendants emphasize the plaintiff's admission in his amended complaint that he had an employment contract with OHC, and additionally observe that this employment contract is the basis for his breach of contract claims. The plaintiff however, argues that he is permitted to plead two alternative legal theories in the same complaint, even if they are legally inconsistent.
In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), our Supreme Court first recognized a common-law cause of action in tort for the wrongful discharge of an employee at will when the employee alleges "a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." Id., 475. In sanctioning this cause of action, however, the court narrowed its scope by limiting its availability to employees at will and by requiring that a public policy limitation be satisfied. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987) (wrongful discharge claim only available to employees at will); Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 477 (requiring employment termination violate a public policy). While the wrongful discharge cause of action was contrived to afford some legal protection to employees at will, the public policy limitation was designed to ensure that the courts did not "lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 477; see also Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002) ("we repeatedly have underscored our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one"). Moreover, due to the inherently vague nature of this limitation, courts evaluating such claims should consider "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." (Emphasis added.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 699. Accordingly, the court is obliged to ascertain whether the plaintiff was an employee at will of either defendant, and, if so, to inquire whether he alleged his termination from that employer violated an explicit statutory, constitutional, or judicially conceived articulation of public policy.
In this case, the plaintiff has pleaded that he had an employment contract with OHC, thereby foreclosing a wrongful discharge claim against that defendant because "the right to recover in tort for wrongful discharge extends only to employees at will." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 730 n. 18, 629 A.2d 333 (1993). The plaintiff has not pleaded in count one, however, that he had an employment contract with Concentra. Indeed, the plaintiff does not allege an employment contract with Concentra until count nine, and he routinely maintains that Concentra was without authority to enforce or alter the terms of his employment with OHC. It is therefore significant that, while alternative pleadings must be set forth in separate counts; see Practice Book § 10-26; "a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); see also Practice Book § 10-25. Consequently, because the presence of an employment contract between the plaintiff and Concentra is not pleaded in count one, and because the facts alleged in count nine are not incorporated by reference into the alternative legal theory asserted in count one, the plaintiff's wrongful discharge claim against Concentra survives this aspect of the analysis.
Having concluded that the plaintiff properly alleged he was an at will employee of Concentra's, the court must next inquire whether he also alleged that his termination from Concentra violated "any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Emphasis added.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 699. The plaintiff pleads in count one that his termination from Concentra for carrying a lawfully concealed firearm to work in the absence of a clearly established company policy to the contrary violates the fundamental right to possess firearms for self-defense enshrined in article I, § 15, of the constitution of Connecticut. Ergo, the plaintiff has alleged that his termination violated an explicit constitutional provision, which safeguards an individual's limited right to bear arms in self-defense. Furthermore, while our Supreme Court has not fully elucidated the contours of the right guaranteed by this constitutional provision, it has recognized "that the constitution protects each citizen's right to possess a weapon of reasonably sufficient firepower to be effective for self defense." Benjamin v. Bailey, 234 Conn. 455, 465, 662 A.2d 1226 (1995). Indeed, the court has explained that this limited right "would be illusory . . . if it could be abrogated entirely on the basis of a mere rational reason for restricting legislation." Id., 469, citing Lakewood v. Pillow, 180 Colo. 20, 23, 501 P.2d 744 (1972) (statute prohibiting possession of firearm in vehicle or place of business for self-defense invalid); In re Brickey, 8 Idaho 597, 599, 70 P. 609 (1902) (statute prohibiting carrying of deadly weapon in any form in cities or towns invalid). Accordingly, the plaintiff has explicitly referenced a right that is articulated in a specific provision of the constitution of Connecticut, and which has been judicially recognized by our courts as embodying a public policy that is not easily abrogated.
Article first, § 15, of the constitution of Connecticut provides: "Every citizen has a right to bear arms in defense of himself and the state."
It is additionally noted that our courts have presumed the right to bear arms encapsulated in article first, § 15, of the constitution of Connecticut secures a fundamental liberty interest. See, e.g., State v. Wilchinski, 242 Conn. 211, 218, 700 A.2d 1 (1997) (Connecticut Supreme Court assumed without deciding that Article first, § 15, shelters a fundamental right); Rabbitt v. Leonard, 36 Conn.Sup. 108, 112, 413 A.2d 489 (1979) ("[i]t appears that a Connecticut citizen, under the language of the Connecticut constitution, has a fundamental right to bear arms in self-defense, a liberty interest which must be protected by procedural due process").
The defendants respond by arguing both that (1) the plaintiff needs to reference an explicit public policy standing for the proposition that a right to bear arms is sufficient to modify the general standards of at will employment, and that (2) the policy of allowing guns in the workplace for self-defense purposes is trumped by a purportedly countervailing public policy that encourages a safe work environment. Neither argument withstands meaningful scrutiny. The plaintiff does not assert that the right to bear arms modifies a company's ability to prohibit employees from carrying a lawfully concealed firearm in the workplace. Instead, he argues that because Concentra did not have a company policy prohibiting lawful firearms at work, he could not be terminated for availing himself of his constitutional right to possess a weapon of sufficient firepower to be effective for self-defense. This is an important distinction because the public policy animated by article I, § 15, of the constitution of Connecticut is limited in scope and does not prevent a private landowner from prohibiting the otherwise lawful possession of firearms on his land. See Benjamin v. Bailey, supra, 234 Conn. 465 (article I, § 15, "permits reasonable regulation of the right to bear arms"); General Statute § 29-28(e) (permit to carry pistol does not authorize possession where otherwise prohibited by law or by person owning premises). Thus, while the existence a company policy prohibiting the possession of firearms at work and the plaintiff's prior knowledge of such a policy may later prove dispositive, these factual questions are of no moment in this context because the court must assume the truth of the plaintiff's allegation that Concentra did not have such a policy.
The plaintiff alleges that he consulted his Concentra employee handbook prior to bringing his weapon to work and was unable to locate a policy prohibiting the private possession of lawful firearms at work. Moreover, he pleads that his supervisor was not aware of any such policy, and that the first time he learned of Concentra's zero tolerance policy regarding firearms at work was at the time he was terminated. Assuming the facts alleged by the plaintiff in a light most favorable to sustaining the complaint, the court concludes that he has pleaded the company did not have a policy against lawful firearm possession at work or failed to provide adequate notice to its employees of such a policy. See Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294 (courts to "assume the truth of both the specific factual allegations and any facts fairly provable thereunder").
Similarly, the defendants' argument that the public policy allowing qualified citizens to possess a firearm for self-defense purposes is trumped by a purportedly competing public policy that encourages a safe work environment is equally acarpous. Although the defendants are correct that our courts have recognized a public policy "requiring an employer who conducts business in Connecticut to provide a reasonably safe work environment to its employees"; Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997); the defendants misperceive any conflict between this policy and the fundamental right to bear arms for self-defense. As a preliminary matter, it bears emphasis that the defendants offer no evidence to support their implied asseveration that the mere presence of a concealed firearm by a qualified employee makes the workplace less safe. Nevertheless, while an exposition concerning the impact of personal firearms on workplace safety may prove edifying, it is as unnecessary to resolve this motion as it is ultracrepidarian. An employer may prohibit any person from possessing an otherwise lawful firearm on his property, regardless of whether such a policy makes its work environment more or less safe. The court is not, therefore, persuaded that a policy allowing qualified citizens to carry a firearm for self-defense is in tension with a public policy that obligates employers to provide a safe work environment for their employees.
Actually, the plaintiff alleges that he brought his firearm to work with him during night shifts to ensure his personal safety in an otherwise unsafe work environment. Specifically, the plaintiff avers that: Concentra's office was located in a high-crime neighborhood; gang violence had resulted in the death of one person in the street outside Concentra's office; Concentra did not provide building security; and the plaintiff had to walk across a large parking lot to get to his car each night.
Consequently, the court grants the defendants' motion to strike count one against OHC because the plaintiff alleged that he had an employment contract with that company. The court denies the defendants' motion to strike count one as to Concentra because the plaintiff properly pleaded an alternative legal theory in a separate count of his complaint regarding his employment status with Concentra and because he pleaded that his termination by Concentra violated a public policy explicitly recognized by a provision of the constitution of Connecticut and by our Supreme Court.
B Count Two (False Light)
Concentra next moves to strike the plaintiff's second count, invasion of privacy by false light, on the ground that sufficient publicity has not been alleged. "[T]he law of privacy has not developed as a single tort, but as a complex of `four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone.' Prosser, Torts (4th Ed. 1971) 117, p. 804. The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 438 A.2d 1317 (1982). In the context of invasion of privacy by false light, a plaintiff must establish: "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn.App. 123, 132-33, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). It is the second element, requiring the falsity to be publicized, that the Concentra now challenges.
Unlike a claim that material was published to a third party, publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public." (Internal quotation marks omitted.) Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06 4022391 (November 26, 2006, Robinson, J.) (further noting "no magic number of persons which constitute public audience"). Nevertheless, while publicity requires that the falsity reach the public, "[t]o allow the cause of action to be premised on any conduct of the defendant which could foreseeably result in media publicity putting the plaintiff in a bad light, would expand the concept of invasion of privacy beyond manageable limits." LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 73, 360 A.2d 899 (1976). The question, therefore, is whether Concentra published the offending falsity directly to the public and not in a manner that was merely foreseeable the public would become aware of the falsity.
In this case, the plaintiff has alleged that he was initially confronted by his supervisor, Audrey Eppner, in front of other employees regarding his possession of a firearm while working after hours and that his subsequent termination was choreographed by Concentra to include a public confrontation with police. More specifically, the plaintiff pleads that his initial confrontation with Eppner took place within earshot of patients and that the police searched him in a public parking lot prior to escorting him into and out of Concentra's office to be terminated. Notwithstanding the plaintiff's public encounter with Eppner and the police, our jurisprudence confirms that he has not alleged the level of publicity necessary to ground a false light invasion of privacy claim. See Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 05 4002947 (June 29, 2005, Eveleigh, J.) (dissemination of offensive material to hospital employees and patients regarding plaintiff not publicity); LaFontaine v. Family Drug Stores, Inc., supra, 33 Conn.Sup. 72-73 (false information provided to police that resulted in public arrest of plaintiff not publicity). Although Concentra's actions may have foreseeably resulted in the public learning of its false statement that the plaintiff wanted to shoot people with his gun, the publication of this information to the small community of employees and patients at Concentra during the various public confrontations alleged does not rise to the level of publicity necessary to support a false light claim. Accordingly, the court grants the motion to strike count two for failure to state a claim of false light on which relief can be granted because the plaintiff alleged insufficient publicity.
With respect to the plaintiff's assertion that the publicity given to the false statements by the ensuing police action should be attributed to Concentra, the case law counsels against such a finding. Even if Concentra unnecessarily orchestrated the public confrontation between the plaintiff and the police, once the police became involved, the facts were "no longer private and they became part of the public record." LaFontaine v. Family Drug Stores, Inc., supra, 33 Conn.Sup. 72 (person losses right of privacy when investigated for violation of law); see also Mendez v. Vonroll Isola U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0462113 (April 8, 2004, Corradino, J.) (qualified privilege granted for communications or reports to police).
C Count Three (Defamation)
In connection with the plaintiff's third count, sounding in defamation, Concentra moves to strike because the requisite level of specificity has not been alleged. "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.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2005). Moreover, when claiming defamation, "[c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made." (Internal quotation marks omitted.) Crosby v. HSBC North American Holdings, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 06 5000378 (May 16, 2007, Robinson, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) ("[a] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom").
With these standards in mind, the court inquires whether the plaintiff has identified what statements were made, whom they were made by, and to whom they were offered. Although the plaintiff alleges that Concentra employees told patients that he had "threatened to go home and get a gun and come back and shoot somebody," the plaintiff does not adequately specify which employee made this statement or to which patient it was made. Moreover, while the court is sympathetic to the plaintiff's argument that these details are best flushed out during discovery, that concern is superseded by the familiar admonition that a plaintiff's complaint must put the defendant on notice of the claims made against him so that an effective defense can be advanced. In defamation cases in particular, there are a number of special defenses that may be applicable and which require greater specificity than provided in this complaint for Concentra to successfully marshal. See, e.g., Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0097138 (December 16, 2005, Beach J.) [ 40 Conn. L. Rptr. 565] ("[t]hough there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity"). Accordingly, count three is stricken because the plaintiff has not pleaded with adequate specificity who made the false statement or to whom the statement was made.
D Intentional Infliction of Emotion Distress (Count Four)
The defendants challenge the legal sufficiency of the plaintiff's intentional infliction of emotional distress claim on the ground that he has failed to allege extreme and outrageous behavior on the part of either defendant. In his amended complaint, the plaintiff pleads that Concentra passed him over for promotion in lieu of a less qualified candidate, Concentra terminated his employment in a public and humiliating way, OHC failed to investigate his termination, and Concentra employees falsely told patients that he was being terminated because he had threatened violence.
In actions asserting liability under a claim of intentional infliction of emotional distress, a plaintiff must establish four elements. "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." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Given the tenebrous nature of identifying extreme and outrageous conduct, courts have been usefully guided by observing that liability subsists "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." (Citation omitted; internal quotation marks omitted.) Id., 210-11. Informed by these standards, the court now inquires whether either defendant treated the plaintiff in an atrocious manner that is intolerable in civilized society.
With respect to the plaintiff's claims that Concentra passed him over for promotion in lieu of a less qualified candidate, OHC failed to investigate his termination in accordance with his employment contract, and Concentra employees falsely told patients that he was being terminated because he had threatened violence, they are each defenestrated by the relevant case law. See Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002) ("[i]ndividuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluation, both formal and informal, decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance, and disciplinary or investigatory action arising from actual or alleged employee misconduct"); Bombalicki v. Pastore, 71 Conn.App. 835, 841-42, 804 A.2d 856 (2002) (failure to promote due to supervisor's personal dislike of plaintiff not extreme and outrageous); Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.) (failure by employer to investigate contested allegation of physical abuse of child by employee prior to termination not extreme and outrageous). Consequently, neither the cacophony of false accusations spread about the plaintiff by Concentra nor the defendants' employment decisions regarding promotions and method of termination constitute the type of extreme and outrageous conduct necessary to allege intentional infliction of emotional distress.
A closer call involves Concentra's decision to terminate the plaintiff in the public and humiliating manner that it did. The plaintiff alleges that he is a law abiding citizen who was terminated for carrying a lawfully possessed firearm for self-defense purposes in the absence of a conspicuous company policy to the contrary. His character attributes are supported by the following allegations: (1) the plaintiff was hired as a physician's assistant and is licensed as a physicians assistant in Connecticut, which requires his ongoing adherence to his profession's ethical standards; see General Statute § 20-12f; (2) the plaintiff qualified as an "expert marksman" and "firing range control officer" while in the United States Army and has served as a civilian firearms and hunting safety instructor; (3) the plaintiff has possessed for the past ten years a Connecticut permit to carry a concealed weapon; see General Statute § 29-28(b); and (4) Concentra continued to employ the plaintiff for a month following its initial discovery that he carried his firearm to work after hours. Despite these considerations, Concentra nevertheless arranged to have the police meet the plaintiff in its parking lot when he arrived at work, at which point he was publicly searched and questioned before being escorted into and out of the office to be terminated. The plaintiff was given no warning that he was to be fired and was treated like a common criminal.
General Statute § 20-12f provides in pertinent part: "Conduct which fails to conform to the accepted standards of the physician assistant profession includes, but is not limited to, the following: Conviction of a felony; fraud or deceit in professional practice; illegal conduct; negligent, incompetent or wrongful conduct in professional activities; emotional disorder or mental illness."
General Statute § 29-28(b) provides in relevant part: "No state or temporary state permit to carry a pistol or revolver shall be issued under this subsection if the applicant (1) has failed to successfully complete a course approved by the Commissioner of Public Safety in the safety and use of pistols and revolvers . . . (2) has been convicted of a felony . . . (3) has been convicted as delinquent for the commission of a serious juvenile . . . (4) has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect . . . (6) is subject to a restraining or protective order issued by a court in a case involving the use, attempted use or threatened use of physical force against another person, (7) is subject to a firearms seizure order . . . (8) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 USC 922(g)(4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age.
Nevertheless, while Concentra's method of terminating the plaintiff may have been a callous, insensitive and unjustifiable course of conduct, a jury could not find that it was "so extreme and outrageous as to exceed all possible bounds of decency in a civilized community." Appleton v. Board of Education, supra, 254 Conn. 210. Our courts have routinely held that "it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort." Id., 212 (teacher removed from school by police escort not extreme and outrageous); see also Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (employee escorted off premises by security personnel not extreme and outrageous); Elbert v. Connecticut Yankee Council, Inc., supra, Superior Court, Docket No. CV 01 0456879 (employee detained by employer until police arrived to escort him off premises not extreme and outrageous). In this case, Concentra is within its right to have an employee escorted from its work premises by the police, notwithstanding the fact that it had no reason to believe the plaintiff was a danger to anybody. The court, therefore, grants the defendants' motion to strike count four of the plaintiff's amended complaint.
E Negligent Misrepresentation (Count Five as to Concentra and Count Six as to OHC)
The defendants next move to strike counts five and six on the grounds that the plaintiff has not alleged detrimental reliance because all representations made were articulated in the employment contract. As a preliminary matter, it is noted that the plaintiff does not allege a written employment contract with Concentra. See Part IIA. The plaintiff does allege, however, that Concentra made a number of representations to him that he relied upon in deciding to work for it. Chief among these were: Concentra strives to apply high moral and ethical legal principles to all aspects of work; all personal information regarding employees would be kept confidential; and employees would be provided with current employee handbooks that would reflect the current rules and regulations governing employment. The plaintiff further avers that these representations were proven false when: (1) Concentra required him to send patients for in-house physical therapy prior to being sent for an MRI or for independent review by a specialist, which he believed to be unethical and done to save money; (2) Concentra disclosed false and misleading information regarding the reason for his termination, which is confidential employment information; and (3) Concentra failed to provide him with an updated employee handbook that articulated a zero tolerance policy with respect to firearms in the workplace.
Our courts have "long recognized liability for negligent misrepresentation . . . One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Emphasis added; internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). Moreover, "[f]or purposes of a cause of action for negligent misrepresentation . . . the plaintiff need not prove that the representations made by the defendants were promissory. It is sufficient to allege that the representations contained false information." D'Ulisse-Cupo v. Board of Directors, 202 Conn. 206, 218, 520 A.2d 217 (1987). Finally, "[t]here must be a justifiable reliance on the misrepresentation . . . to recover damages." (Emphasis in original; internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002).
Mindful of these standards, the court concludes that the plaintiff has properly alleged the elements of negligent misrepresentation. The plaintiff has alleged that false information was represented to him and that his decision to work at Concentra was induced, at least in part, by those misrepresentations. Accordingly, the defendants' motion to strike is denied as to count five.
In connection with count six, alleging negligent misrepresentation against OHC, the court is likewise unpersuaded by the defendants' argument in favor of striking this count. Although the defendants are correct that the plaintiff has alleged an employment contract with OHC, a claim of negligent misrepresentation will still lie when a party relied upon false information in deciding to enter into that contact. Indeed, "[i]n a claim for misrepresentation, a tort claim, a plaintiff is not seeking to add to or change the terms of the written contract itself, but is claiming inducement to enter into the contract by material misrepresentations of material facts." Foley v. Huntington Co., 42 Conn.App. 712, 721, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996), citing Warman v. Delaney, 148 Conn. 469, 474, 172 A.2d 188 (1961). In this case, the plaintiff has alleged that he entered into his employment contract with OHC because he relied upon its misrepresentations that a third-party would not have authority to alter or terminate his contract and that any termination would be handled in accordance with the relevant contract provisions. Contrary to this understanding, the plaintiff alleges that Concentra, a third-party, terminated his contract with OHC and that said termination was not done in accordance with the provisions of the contract. Consequently, the court denies the defendants' motion to strike count six, alleging negligent misrepresentation by OHC.
F Promissory Estoppel (Second Count Six as to Concentra and Count Seven as to OHC)
In connection with the defendants' motion to strike the second count six of the plaintiff's amended complaint on the ground that a party cannot claim promissory estoppel and breach of contract, it is denied as to Concentra and granted as to OHC. The court notes that the plaintiff does not plead the existence of an employment contract with Concentra in the same count as his alternative theory of promissory estoppel. See Dreier v. Upjohn Co., supra, 196 Conn. 245 ("[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint"). Thus, with respect to the plaintiff's promissory estoppel claim against Concentra, the court inquires whether the requisite elements have been alleged.
The defendants misplace their reliance on Lark v. Post Newsweek Stations Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 94 0705326, as standing for the proposition that a party does not have a cause of action for promissory estoppel where an existing contract is alleged. In that case, the plaintiff alleged that his inducement to sign a contract in which he received less compensation was a promise that he would remain the lead anchor for the employer's evening news throughout the remainder of his contract term. Thus, he alleged the existence of a valid contract in the same count in which he alleged promissory estoppel. In this case, the two legal theories are pleaded independently of one another, and the existence of a valid contract that is enforceable between the plaintiff and Concentra remains uncertain.
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . [The] court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citation omitted, internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003).
In this case, the plaintiff has alleged that he decided to work for Concentra because he was promised that it strives to apply high moral and ethical legal principles to all aspects of healthcare, all personal information regarding employees would be kept confidential, and employees would be provided with current employee handbooks that would reflect the current rules and regulations governing employment. These are clear promises that would reasonably induce a potential employee to work for Concentra. Moreover, the plaintiff has alleged that injustice has been done because these promises have not been honored. It is because the plaintiff has not alleged the existence of a valid employment contract in the same count as his claim of promissory estoppel and because all elements of promissory estoppel against Concentra have been sufficiently pleaded, that the court denies the defendants' motion to strike the second count six.
With respect to the defendants' motion to strike count seven, claiming promissory estoppel against OHC, the motion is granted because a party cannot plead promissory estoppel when contemporaneously alleging the existence of a valid contract. "It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties." Levine v. Massey, 232 Conn. 272, 279 (1995). Indeed, "[w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." Leonard Concrete Pipe Co. v. C.W. Blakeslee Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979). In this case, the plaintiff has incorporated into count seven paragraphs one through one hundred and thirty of his amended complaint, which includes his assertion that he had a valid employment contract with OHC. Accordingly, the defendants' motion to strike count seven is granted.
G
Breach of Implied Covenant of Good Faith and Fair Dealing (Count Ten)
The defendants next move to strike count ten on the grounds that the plaintiff has failed to allege a sufficient public policy violation. Although "[e]very contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement"; (internal quotation marks omitted) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999); "a claim for breach of the implied covenant of good faith and fair dealing is not legally sufficient unless a dishonest purpose or sinister motive is alleged." Wolverine Fire Protection Co. v. Tougher Industries, Superior Court, judicial district of Hartford, Docket No. CV01 0805554 (June 20, 2001, Hale, J.) ( 29 Conn. L. Rptr. 731). Indeed, "[t]o recover for breach of the duty of good faith and fair dealing, the plaintiff [must] allege and prove that the defendant[s] engaged in conduct design[ed] to mislead or to deceive . . . or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . ." (Emphasis in original; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 544-45, 792 A.2d 132 (2002). Thus, the court's analysis is guided by whether the plaintiff has pleaded sufficient facts to allege the defendants refused to fulfill a contractual obligation it had to the plaintiff.
In this case, the plaintiff has alleged that Concentra prohibited him from ordering MRIs on patients he believed would benefit from that test because it lowered the average cost per patient, making Concentra a more attractive business partner to insurance companies. This, the plaintiff alleges, is in violation of Concentra's contractual obligation to encourage an ethical working environment in which medical professional makes treatment decisions based on patient needs rather than cost. Moreover, the plaintiff alleges that one reason why OHC declined to adhere to the termination provisions of his employment contract was that it wanted to fire the plaintiff because of his ordering too many MRIs. The plaintiff, therefore, alleges that the defendants purposefully breached their respective contracts with him due to a sinister motive, and the defendants' motion to strike count ten is denied.
III CONCLUSION
For the forgoing reasons, the motion is granted in part and denied in part. Specifically, the court DENIES the defendants' motion to strike count one against Concentra, count five against Concentra, count six against OHC, the second count six against Concentra and count ten against both Concentra and OHC. The court GRANTS the defendants' motion to strike as to count one against OHC, count two against Concentra, count three against Concentra, count four against both Concentra and OHC and count seven against OHC.