Opinion
No. CV 04-4001177S
May 3, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#115)
Presently before the court is the defendants' motion for summary judgment. The court grants the motion for summary judgment as to counts two, four, six and eight and denies the motion as to counts one, three, five and seven for the reasons fully set forth below.
FACTS
The plaintiff, Kim Bickford, filed the eight-count complaint in this matter on August 2, 2004, alleging, inter alia, employment discrimination. The plaintiff alleges the following facts. From November 2000, until November 2002, the plaintiff was an employee of the defendant Phoenix Life Insurance Company (Phoenix). The defendant Linda Alaimo was the supervisor of the plaintiff and of the team on which the plaintiff worked. The defendant Alexander Gurski was the team leader, with some supervisory powers over the plaintiff and the ability to affect the terms and conditions of her employment. The plaintiff's last performance rating, which she received on April 22, 2002, was good and the plaintiff had not been given any warnings about unsatisfactory performance.
Beginning in the spring of 2002, Gurski engaged in increasingly demeaning and some harassing conduct toward the plaintiff and other female employees which created a hostile work environment and interfered with the plaintiff's job performance. In September 2002, the plaintiff complained to Alaimo about Gurski's behavior. The plaintiff believes that Phoenix did not undertake any investigation as a result of her complaint. On October 18, 2002, Gurski confronted the plaintiff and threatened her with job loss "and by tone, speech and demeanor assaulted and intimidated her and placed her in actual fear of bodily harm." A coworker who witnessed the incident told the plaintiff that she spoke with Gurski and Alaimo about the incident and that she intended to discuss the matter further with them. The plaintiff therefore expected that she would be contacted by Alaimo or the human resources department about the incident. On October 31, 2002, the plaintiff had not been contacted and sent Alaimo an e-mail in which she complained about "a number of increasingly stressful situations" with Gurski including the October 18, 2002 incident.
After receiving the plaintiff's e-mail, Alaimo fabricated a number of deficiencies in the plaintiff's performance. On November 15, 2002, Alaimo, using the fabricated deficiencies as support, sent a memorandum to her boss recommending the plaintiff's immediate termination. The plaintiff was terminated soon thereafter with poor job performance as the stated reason.
The defendants filed a motion for summary judgment on all counts of the complaint on September 26, 2006. The motion is supported by a memorandum of law and documentary evidence including deposition transcripts and affidavits. The plaintiff has filed a memorandum of law in opposition to the motion, as well as documentary evidence.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
I
In count one of the complaint, the plaintiff claims that Phoenix terminated her employment in violation of General Statutes § 46a-60(a)(1), which prohibits employment discrimination on the basis of sex, or § 46a-60(a)(8), which prohibits harassment of employees on the basis of sex. The defendants argue that they are entitled to summary judgment on count one because (1) there is no evidence that Gurski engaged in any conduct of a sexual nature and therefore, any claim of a hostile work environment must fail, (2) there is a strong inference against discrimination because Alaimo both hired and fired the plaintiff and because Alaimo is a woman (3) the plaintiff's gender could not have been a factor in the decision to terminate the plaintiff's employment because Gurski had no involvement in the decision, (4) there is no evidence that Gurski's alleged mistreatment of the plaintiff was because of her gender, and (5) Phoenix had a nondiscriminatory reason for the plaintiff's termination, namely, poor work performance, which reason is not pretextual.
General Statutes § 46a-60(a)(1) states that it is a prohibited discriminatory practice "[f]or an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . sex . . ." Under § 46a-60(a)(8) it is also a prohibited discriminatory practice "[f]or an employer, by the employer or the employer's agent . . . to harass any employee . . . on the basis of sex."
"In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60." Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998); see also CT Page 6367 Hercun v. Miller Automobile, Superior Court, judicial district of New Haven, Docket No. CV 03 0193641 (October 19, 2005, Wilson, J.). "Although the language of [Title VII of the Civil Rights Act of 1964, § 703(a)(1); 42 U.S.C. § 2000e-2(a)] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 (which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex) was to make the Connecticut statute coextensive with the federal." (Internal quotation marks omitted.) State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). Therefore, in ruling on the defendants' motion for summary judgment, the court may rely on the case law analyzing claims under Title VII.
A
The defendants argue that, because Gurski did not engage in any conduct of a sexual nature, count one must fail to the extent that it claims a hostile work environment created by harassment. The plaintiff concedes that the alleged harassment was not of a sexual nature, stating in her memorandum of law that "[i]t was harassment, but not sexual." Nevertheless, it does not follow from this concession that the plaintiff's harassment claim must fail. As the United States District Court for the district of Connecticut recently explained: "Title VII does not prohibit all verbal harassment in the workplace — only discrimination because of sex. A Title VII hostile work environment claim, however, is not limited to sexual advances or sexual behavior targeted at an employee. It also includes non-sexual behavior directed at an employee because of her gender . . . In this type of hostile work environment case, the courts have generally . . . requir[ed] the plaintiff to prove that the hostile conduct was directed at her because of her gender, as opposed to, for example, the harasser's dislike of her as an individual, or the harasser's general misanthropic personality." Evarts v. Southern New England Telephone Co., United States District Court, Docket No. 3:00cv1124 (WIG), 2006 U.S. Dist. LEXIS 71257, *51-52 (D.Conn. October 2, 2006). "The predicate acts which support a hostile-environment sexual-harassment claim need not be explicitly sexual in nature . . . Rather, the key issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." (Citation omitted; internal quotation marks omitted.) Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir. 1993). Because a claim of harassment on the basis of sex is not strictly limited to harassment of a sexual nature, the absence of conduct of a sexual nature by Gurski does not entitle the defendants to judgment as a matter of law.
B
The defendants further argue that they are entitled to summary judgment on count one because there is evidence that creates a strong inference that the defendants' decision to terminate the plaintiff's employment was not based on a discriminatory motive. Specifically, the defendants argue that this inference should arise because Alaimo both hired and fired the plaintiff and because Alaimo is a woman.
The ultimate issue in an employment discrimination case is whether the adverse employment decision was motivated at least in part by a discriminatory reason. Stratton v. Dept. for the Aging, 132 F.3d 869, 878 (2d Cir. 1997); Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705, 900 A.2d 498 (2006). With regard to that issue, the so-called "same actor inference" may arise in cases where the same individual both hired and fired the plaintiff. See Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 137-38 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000). "Although each case must involve an examination of all the circumstances, some factors strongly suggest that invidious discrimination was unlikely. For example, when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially so when the firing has occurred only a short time after the hiring." Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349, 142 L.Ed.2d 288 (1998).
Nevertheless, the federal courts have held that "`same actor' evidence gives rise to an inference, rather than a presumption, that no discriminatory animus motivated the employer's actions . . ." Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006). In other words, as the Grady case quoted above indicates, a conclusion that an employer in a particular case has acted with a discriminatory motive must be made by examining all the circumstances of the individual case. Grady v. Affiliated Central, Inc., supra, 130 F.3d 560. Because that determination involves the weighing of all the circumstances and the drawing of conclusions regarding motive and intent, it is a determination for a finder of fact and should not be decided by the court as a matter of law based on one isolated factor. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111. Moreover, the "same actor inference" is not appropriately applied where it is not clear that the same individual was solely responsible for both the hiring and the firing. Sciola v. Quattro Piu, Inc., 361 F.Sup.2d 61, 66 (E.D.N.Y. 2005). Here, the defendants themselves state in their memorandum that "Alaimo . . . made the decision to hire Plaintiff in November 2000 and was one of the two decision makers with respect to Plaintiff's termination . . ." (Emphasis added.) For these reasons, the "same actor inference" does not entitle the defendants to judgment as a matter of law in the present case.
C
The defendants argue that the plaintiff's gender could not have been a factor in the decision to terminate the plaintiff's employment because Gurski had no involvement in the decision. In support of this argument, the defendants cite to the transcripts of the plaintiff's and Alaimo's depositions. A review of those deposition transcripts, however, does not reveal the absence of any issues of fact related to this issue. On the contrary, Alaimo stated in her deposition that although Gurski did not decide whether the plaintiff would be terminated, he did have input in terms of giving Alaimo feedback on the plaintiff's work performance. Mary Cullinan, who works for Phoenix's human resources department also testified in her deposition that team leaders would give input with regard to a decision to terminate a team member. This evidence raises the possibility that Gurski's feedback might have played some part in the decision to terminate the plaintiff's employment. Accordingly, the defendants have not demonstrated that there is no genuine issue of material fact regarding Gurski's lack of involvement in the termination decision.
D
The defendants also argue that the court should grant their motion for summary judgment because there is no evidence that Gurski's alleged mistreatment of the plaintiff was because of her gender. Again, a review of the documents submitted by the parties does not reveal the absence of such evidence as argued by the defendants. Specifically, in her deposition, the plaintiff testified that during the course of her employment, Gurski became increasingly hostile and angry in his dealings with the plaintiff and the other female members of Gurski's team, to the point that they came to feel threatened and unsafe in their workplace. In discussing a particular incident that occurred on October 18, 2002, the plaintiff testified that a male coworker named Hal was speaking with Gurski about something when Gurski became visibly upset. The plaintiff testified that "[Gurski] was getting redder by the moment, you could tell, but he never ever crossed the line with the guys." (Emphasis added.) At another point in her deposition, the plaintiff stated the following when asked whether Guski ever behaved in a way that was demeaning toward women: "Looming over you. Well, you know, he's tall . . . And when he's mad, his eyes bug out of his head. It's scary. He could do that to a man, too, but I certainly never saw him do that to a man. I never heard him talk — The way he approached women when he was mad was — that's not a sexual connotation to it other than it was just a male/female thing." This evidence, while far from conclusive, suggests that Gurski's allegedly hostile and intimidating conduct may have been directed solely or primarily at women because of their gender.
In addition, there is evidence that on at least one occasion, Gurski made an inappropriate statement about a female coworker that could be interpreted as indicating gender bias or gender-based animus. According to the plaintiff in her deposition, Gurski said the following about a certain female former employee of Phoenix: "I always liked her until one day I realized she wore old lady underpants and I decided I never liked her anymore." The plaintiff indicated that Gurski did not seem to be joking when he made this comment.
While a jury might, based on this evidence, decline to find disparate treatment on the basis of gender, the court may not decide issues of fact at the summary judgment stage, but may only determine whether such issues exist. Nolan v. Borkowski, supra, 206 Conn. 500. Contrary to the defendants' assertion, there is some evidence in the record to support a conclusion that Gurski treated women differently than men because of their gender. Accordingly, there remains a genuine issue as to that material fact, and summary judgment is therefore inappropriate.
E
Finally, the defendants argue that the court should grant summary judgment on count one because Phoenix had a nondiscriminatory reason for the plaintiff's termination, namely, poor work performance, which reason was not pretextual. The plaintiff concedes that her work performance was not perfect, but maintains that any problem with her work performance is being used as a pretext for her termination.
"When a plaintiff claims disparate treatment under a facially neutral employment policy, [our Supreme Court] employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this analysis, the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002). "[T]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . . upon such rejection, [n]o additional proof of discrimination is required . . ." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, supra, 278 Conn. 706.
Where there is evidence of a nondiscriminatory justification for an employee's termination, the assessment of the credibility of the evidence and whether the proffered justification merely was pretextual is a question solely within the province of the finder of fact. Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 70, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). Although the defendants in the present case have offered evidence of deficiencies in the plaintiff's job performance, whether that justification for the plaintiff's termination is pretextual presents a genuine issue of material fact that is not appropriately resolved by way of a motion for summary judgment. For that reason, and for the other reasons set forth above, the court denies the motion for summary judgment as to count one of the complaint.
II
In count two, the plaintiff claims that Phoenix' termination of her employment violated § 46a-60(a)(4) in that it was in retaliation for her complaints about Gurski's conduct. The defendants argue that they are entitled to summary judgment on count two because (1) the plaintiff never complained to Alaimo or to anyone else at Phoenix that Gurski had singled her out because she is a woman and (2) there is no evidence of a causal connection between any complaints the plaintiff made and her termination.
The defendants also argue that the plaintiff never complained to Alaimo that Gurski had sexually harassed her. As stated previously in part IA of this memorandum, however, the plaintiff is claiming that she was the target of nonsexual harassment because she is a woman, not that she was sexually harassed. Accordingly, the plaintiff's failure to complain of sexual harassment is irrelevant.
The defendants first argue that the plaintiff cannot prevail on her retaliation claims because she never complained to her superiors that Gurski singled her out because she is a woman. "In order to establish a prima facie case of retaliation, [a plaintiff] must show that: (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity." Schiano v. Quality Payroll Systems, Inc., 445 P.3d 597, 608 (2d Cir. 2006); see also Hebrew Home Hospital, Inc. v. Brewer, 92 Conn.App. 762, 770, 886 A.2d 1248 (2005). "As to the second element, implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by [the anti-discrimination statutes]." Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 292 (2d Cir. 1998).
"Although an employee need not use the magic words `sex' or `gender discrimination' to bring her speech within . . . retaliation protections, she has to at least say something to indicate her [gender] is an issue . . . An employee can honestly believe she is the object of discrimination, but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints." (Internal quotation marks omitted.) Sitar v. Indiana Dept. of Transportation, 344 F.3d 720, 727 (7th Cir. 2003). Thus, a plaintiff who had complained of having to do work on personal matters for her boss, but who had not mentioned that she believed her gender was the basis for the inappropriate assignments, was unable to prevail on a retaliation claim. See Galdieri-Ambrosini v. National Realty Development Corp., supra, 136 F.3d 292. Similarly, a plaintiff who had informed her supervisor that she was always on "pins and needles," and felt that her coworkers were not giving her a chance to do her job and did not want to work with her, but who had not told the supervisor that she thought her coworkers' conduct was motivated by her gender, could not make out a retaliation claim. See Sitar v. Indiana Dept. of Transportation, supra, 727-28.
In the present case, the defendants point to the plaintiff's deposition, in which she stated that she complained to Alaimo about Gurski's conduct and told Alaimo that Gurski's behavior made her feel humiliated, afraid and sad, but admitted that she did not indicate to Alaimo that she felt she was being singled out by Gurski because of her gender. The plaintiff has not presented any evidence in response indicating that she ever conveyed to Alaimo or anyone else at Phoenix that she felt she was being treated badly by Gurski because of her gender. Therefore, there is no genuine issue regarding the fact that the plaintiff gave Phoenix no indication that her complaint was one of gender discrimination. Accordingly, Phoenix could not reasonably be expected to understand that the plaintiff's opposition was directed at conduct prohibited by § 46a-60. Therefore, the defendants are entitled to judgment as a matter of law on count two of the complaint, and the court need not address the second argument set forth by the defendants.
Accordingly, the court grants the defendants' motion for summary judgment as to the second count.
III
In count three, the plaintiff claims that she was wrongfully discharged in that Phoenix terminated her employment to circumvent Connecticut's public policy requiring an employer to provide a reasonably safe workplace as set forth in General Statutes § 31-49. The defendants argue that they are entitled to summary judgment because a common-law claim for wrongful discharge in violation of public policy is available only when a plaintiff is otherwise without remedy. According to the defendants, the plaintiff has an adequate statutory remedy under § 46a-60.
"The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis in original; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000). In the present case, the gravamen of count three is that after the plaintiff complained to Alaimo that she felt unsafe working with Gurski, she was terminated by Phoenix in contravention of the public policy requiring a safe workplace. In part II of this memorandum, the court concluded that the defendants are entitled to summary judgment on the plaintiff's claim of termination in retaliation for her complaints about gender discrimination in violation of § 46a-60. It is therefore apparent that § 46a-60 does not provide a remedy for the plaintiff's claim that she was terminated in retaliation for her complaints about Gurski.
The court denies the defendants' motion for summary judgment as to count three.
IV
In count four, the plaintiff claims that Phoenix' code of conduct, which it distributed to its employees, created an implied contract not to discharge the plaintiff for reporting harassment, violence or threats, and that Phoenix breached that implied contract by terminating the plaintiff's employment. The defendants argue that they are entitled to summary judgment because Phoenix expressly disclaimed an intention to create any such contractual obligation.
"It is firmly established that statements in an employee's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). Our Supreme Court "ha[s] stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract . . ." (Internal quotation marks omitted.) Id., 535. Judges of the Superior Court have granted judgment as a matter of law on such claims where there are clear disclaimers of the intention to create a contract. See, e.g., Labbe v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 02 0397829 (March 10, 2006, Rodriguez, J.); Walsh v. Long, Superior Court, judicial district of Hartford, Docket No. CV 02 0815945 (October 21, 2005, Miller, J.). Our Supreme Court itself has recognized that the use of an appropriate disclaimer would protect an employer as a matter of law and eliminate the need for a trial. See Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199 n. 5, 520 A.2d 208 (1987), overruled on other grounds, Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).
In the present case, the defendants have submitted a copy of a page of Phoenix' code of conduct, which contains the following disclaimer in bold type: "The Code of Conduct is a statement of policies for individual and business conduct and does not, in any way, create any contractual or other employment rights." The plaintiff has not presented any evidence indicating that such a disclaimer was not included in the copy of the code of conduct that she received. Accordingly, there is no genuine issue regarding the fact that the code of conduct on which the plaintiff relies for her breach of implied contract claim contained a clear disclaimer of Phoenix' intention to create any contractual promises. Under the authorities set forth above, the defendants are entitled to judgment as a matter of law.
The court grants the motion for summary judgment as to count four.
V
In count five, the plaintiff claims that the conduct alleged in the previous counts constituted a breach of the covenant of good faith and fair dealing implicit in the plaintiff's at-will employment contract with Phoenix. The defendants' sole argument is that they are entitled to summary judgment on count five because there was no contract between the plaintiff and Phoenix.
Contrary to the defendants' assertion that there was no contract in the present case, "[a]ll employer-employee relationships not governed by express contracts involve some type of implied `contract' of employment. `There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working.' 1 H. Perritt, Employee Dismissal Law and Practice (3d Ed. 1992) § 4.32, p. 326." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 532. Moreover, "every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).
Therefore, the court denies the motion for summary judgment as to count five.
VI
In count six, the plaintiff further alleges that the defendants' conduct as set forth in the previous counts was extreme and outrageous, that the defendants knew or should have known that the conduct was likely to cause emotional distress, and that the plaintiff suffered severe emotional distress as a result. The defendants argue that they are entitled to summary judgment on count six because, as a matter of law, the defendants' conduct, as recited by the plaintiff in her deposition, does not rise to the level of extreme and outrageous conduct. The plaintiff responds that the defendants' conduct was extreme and outrageous because the plaintiff was placed in fear of bodily harm and because the defendants threatened her with job loss. She also argues that whether the defendants' conduct was extreme and outrageous is a question of fact for the jury.
"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." (Internal quotation marks omitted.) Smulewicz-Zucker v. Zucker, 98 Conn.App. 419, 426, 909 A.2d 76 (2006) "`[E]xtreme and outrageous conduct is understood to mean conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005). It is well established that "[c]onduct 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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000).
In the employment context, "[s]imple employer mistreatment, in and of itself, is insufficient to establish extreme and outrageous conduct." Stepney v. Devereux Foundation, Superior Court, judicial district of Litchfield, Docket No. 0065885 (November 1, 1995, Pickett, J.). "Employees often find the conditions of their employment to be unpleasant and even unjustifiable, but there is a distinction between the ordinary indignities of the workplace and truly atrocious conduct." (Emphasis in original; internal quotation marks omitted.) Rizzo v. New Haven Register, Superior Court, judicial district of New Haven, Docket No. CV 02 467267 (October 7, 2005, Martin, J.); see also Nelson v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV01 0455318 (April 5, 2005, Blue, J.) ( 39 Conn. L. Rptr. 69).
The defendants' alleged conduct in the present case is recounted in the excerpts of the depositions and affidavits presented to the court. The plaintiff's deposition testimony is replete with instances of Gurski's alleged conduct that contributed to the plaintiff's subjective fear that Gurski could, at any moment, "go postal." In her deposition, when asked to describe Gurski's conduct, the plaintiff responded that Gurski had began to act unprofessional, speaking "more gruffly in tone," and used words like "`duh' a lot . . . in a mean tone." The plaintiff also experienced fear when Gurski would "loom over" other employees and commented that "when . . . [Gurski was] mad, his eyes [would] bug out of his head," which was "scary." Other alleged conduct included the October 18, 2002 incident, where Gurski angrily demanded that the plaintiff "go outside and discuss . . . [a work issue]." The plaintiff further testified that Gurski threatened her job if she did not go outside with him to discuss the matter. Regarding Alaimo's alleged conduct, the plaintiff testified that she was deeply upset by Alaimo's apparent failure to credit her complaints about Gurski and to empathize with her.
Taken in its entirety, a rational trier of fact could not conclude that Gurski's alleged behavior amounted to extreme and outrageous conduct that exceeded all bounds usually tolerated by decent society. At most, Gurski's alleged behavior evidences simple employer mistreatment. Similarly, a reasonable trier of fact could not conclude that Alaimo's alleged conduct exceeded all bounds usually tolerated by decent society. In the employment context, a supervisor's failure to adequately respond to an employee's grievance cannot support a claim for intentional infliction of emotional distress. See Diemond v. American Red Cross, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0533021 (January 9, 1995, Hennessey, J.).
Therefore, the court grants the defendants' motion for summary judgment as to count six.
VII
In count seven, which is directed solely against Alaimo and Gurski, the plaintiff further claims that Alaimo and Gurski tortiously interfered with her employment relationship with Phoenix in that they recklessly or maliciously acted outside the scope of their employment in covering up Gurski's behavior, preventing the investigation of it, and bringing about the plaintiff's firing. The defendants argue that they are entitled to summary judgment on count seven because the plaintiff cannot prove that Alaimo and Gurski acted outside the scope of their employment or were motivated by personal gain.
In the alternative, the defendants argue that there was no contractual relationship between the plaintiff and Phoenix. This argument is without merit because, as stated in part V of this memorandum, all employment relationships are based on at least an implied contract. The defendants further argue that if there was such a contractual relationship, Alaimo and Gurski were unaware of it. Again, in light of the principle that all employment relationships are contractual, this argument fails, as the defendants cannot seriously contend that Alaimo and Gurski were unaware that the plaintiff worked for Phoenix.
"[A]n 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 . . . [but the agent] 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." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).
The plaintiff has alleged in count seven that Alaimo and Gurski acted outside the scope of their employment. Although the defendants state in their memorandum of law that "[a]t all times, Ms. Alaimo and Mr. Gurski were acting within the scope of their employment and for the benefit of Phoenix," they have not pointed to any evidence to support that assertion. As stated previously, in the context of a motion for summary judgment, it is the moving party that has the burden of establishing the absence of genuine issues of material fact. Zielinski v. Kotsoris, supra, 279 Conn. 318-19. "`On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . .' 49 C.J.S. 365, Judgments § 261(b) (1997). It necessarily follows that it is only `[o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.' 49 C.J.S. 366, supra, § 261(b). Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
The defendants have not provided the court with evidence that negates the plaintiff's allegation that Alaimo and Gurski were not acting within the scope of their employment. Accordingly, the court denies the motion for summary judgment as to count seven.
VIII
In count eight, which is directed against Alaimo and Gurski only, the plaintiff alleges the following additional facts. In early November 2002, Alaimo, with input from Gurski, wrote a memorandum regarding the plaintiff's job performance, which was used to support Alaimo's recommendation to her boss that the plaintiff be terminated. The publication of that memorandum was false and malicious, damaged the plaintiff's reputation in her profession, caused her to lose her job, and also caused her humiliation and mental suffering. On February 24, 2003, the plaintiff requested in writing that Alaimo retract the defamatory statements, but Alaimo failed to do so.
The defendants argue that they are entitled to summary judgment for two reasons. First, they argue that the allegedly defamatory communications constituted statements of opinion, rather than fact. Second, they argue that the statements are contained in managerial evaluations protected by a qualified privilege, which cannot be overcome absent a showing of malice. These arguments will be addressed in turn.
The defendants' first argument is somewhat problematic, in that it is still not entirely clear what statements the plaintiff claims were defamatory. The defendant has identified four statements in the memos composed by Alaimo with which the plaintiff disagreed when asked about them during her deposition. Those four statements essentially consist of Alaimo's opinion regarding the plaintiff's abilities and whether the plaintiff was responsible for certain problems. As such, they are clearly in the nature of opinion rather than fact.
"To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 795. "[A] statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Citations omitted; emphasis in original.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 111-12. "[S]tatements concerning work performance are merely expressions of opinion and, therefore, are not actionable as defamation." Grossman v. Computer Curriculum Corp., supra, 131 F.Sup.2d 312, citing Scandura v. Friendly's Ice Cream Corp, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0529109 (June 26, 1996, Sheldon, J.), and Torok v. Proof, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 90 0113204 (February 2, 1993, Lewis, J.). Thus, to the extent that the plaintiff's defamation claim is based on those statements, it must fail.
With regard to their second argument, the defendants claim that the allegedly defamatory statements are contained in managerial evaluations protected by a qualified privilege, which cannot be overcome absent a showing of malice. Specifically, the defendants claim that the documents in which the statements appear are privileged as communications between managers regarding a review of an employee's job performance. "[C]ommunications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 29, 662 A.2d 89 (1995). "A qualified or conditional privilege arises out of an `occasion,' such as, when one acts in the bona fide discharge of a public or private duty . . . Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant." Miles v. Perry, 11 Conn.App. 584, 594 n. 8, 529 A.2d 199 (1987). The defendants in the present case have pleaded privilege as a special defense to count eight, and the privilege applies because the memoranda in which the allegedly defamatory statements appear were communications between managers regarding the review of the plaintiff's job performance.
"If a defendant shows entitlement to the privilege, it will be presumed that the communication, though defamatory, was made in good faith and without malice in fact . . . Thus, once an occasion of privilege is found, it is plaintiff's burden to rebut the presumption of good faith. This rebuttal is accomplished by showing malice in fact in uttering and broadcasting the alleged defamatory matter . . . The actual malice sufficient to destroy this immunity is shown where the defendant utters the statement with knowledge that it was false or with reckless disregard of the truth or falsity of the facts stated . . . The plaintiff is required to come forward with solid circumstantial evidence of malice to overcome summary judgment." Kelly v. Meriden, 120 F.Sup.2d 191, 198-99 (D.Conn. 2000).
Although the plaintiff argues that Alaimo, with Gurski's assistance, made defamatory statements with actual malice, in that they were motivated by a desire to avoid discipline for their own misconduct, the plaintiff has not cited to any evidence to support that conclusion. "It is not enough . . . for the [party opposing summary judgment] merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 319. Because the plaintiff has not presented evidence to support her claim of actual malice, but merely asserts its existence, she has failed to raise a genuine issue of material fact.
Therefore, the motion for summary judgment is granted as to count eight.