Opinion
No. CV 10 6012901 S
April 28, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #122
FACTS
On July 16, 2010, the plaintiff, Susane Grasso, filed a six-count complaint against the defendants, Connecticut Hospice, Inc. (CTHI), and Rosemary Hurzeler, Ronny Knight, David Goldfarb, Sandra Klimas, Susan Flannigan, Nancy Baranowski, and Michael Sweeney (individual defendants), arising out of the plaintiff's employment at CTHI. Specifically, the complaint alleges that the plaintiff filed two complaints with the federal Occupational Safety and Health Administration (OSHA) relating to two defective office chairs. Thereafter, the plaintiff alleges that she was subjected to a hostile work environment and a change in her job duties. As a result, the plaintiff filed a formal complaint with OSHA's whistleblower protection program claiming retaliation and discrimination for filing the OSHA complaints. The OSHA investigator negotiated and approved a settlement agreement and release (settlement agreement) between the plaintiff and CTHI. The plaintiff alleges, however, that the defendants immediately breached the agreement. Count one of the complaint alleges that the defendants violated Connecticut's whistleblower statute, General Statutes § 31-51m. Count two alleges violations of the plaintiff's first amendment rights under the U.S. Constitution and §§ 3, 4, and 14 of the Connecticut Constitution and seeks damages pursuant to General Statutes § 31-51q. Counts three and four allege breach of contract with respect to the settlement agreement and the defendants' staff handbook, respectively. In counts five and six, the plaintiff alleges negligent and intentional infliction of emotional distress against the individual defendants.
"The individual defendants are being sued in their individual capacity for actions taken under color of authority granted by CTHI, but in excess of or in violation of such authority for purposes of personal advantage within the `chain of command' of CTHI."
Although the plaintiff uses the phrase "hostile work environment" to describe the circumstances of her employment with the defendants, the plaintiff did not bring a claim under Connecticut's Fair Employment Protection Act (CFEPA), General Statutes § 46a-51, et seq. Even if the court did construe the plaintiff's complaint to allege a claim under CFEPA, the plaintiff never filed a charge with the Commission on Human Rights and Opportunities alleging a discriminatory practice, has not exhausted her administrative remedies and therefore, is unable to bring such a claim in the Superior Court. See General Statutes § 46a-100; Ware v. State, 118 Conn.App. 65, 78-79, 983 A.2d 853 (2009).
On November 3, 2010, the defendants filed an answer, special defenses and a counterclaim. The counterclaim seeks a declaratory judgment that under the settlement agreement the plaintiff released all of her claims against the defendants. On December 16, 2010, the defendants filed the present motion for summary judgment along with a supporting memorandum of law and evidentiary support. The defendants seek summary judgment on the plaintiff's complaint in its entirety and the defendants' counterclaim on the ground that there are no genuine issues of material fact that (1) the plaintiff entered into the settlement agreement which released all of the defendants from the claims asserted in the complaint; (2) the individual defendants are not employers under General Statutes §§ 31-51m and 31-51q; (3) the plaintiff failed to exhaust her administrative remedies; (4) CTHI complied with the settlement agreement; (5) the employee handbook is not an employment contract; and (6) the individual defendants are not liable under the negligent and intentional infliction of emotional distress claims.
On March 15, 2011, the plaintiff filed an objection to the defendants' motion for summary judgment along with evidentiary support. The plaintiff alleges that there are genuine issues of material fact concerning the defendants' treatment of the plaintiff before and after the settlement agreement was signed and whether the defendants honored the settlement agreement.
The matter was heard on the March 28, 2011 short calendar. Additional facts will be presented as necessary.
II DISCUSSION A Summary Judgment Standard
"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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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 . . . It is not enough, however, for the opposing party 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Analysis 1 Background
The plaintiff was employed by CTHI from 1998 until April 2010. From 2000 to 2010, the plaintiff was the director of complementary and alternative medicine and/or director of complementary therapy (director of CAM). On September 3, 2008, the plaintiff was injured in an automobile accident unrelated to her employment resulting in fractures to her pelvis and ribs as well as a punctured lung. The plaintiff returned to work on December 1, 2008. According to the plaintiff, on or about February 9, 2009, she was about to sit at her desk when she was warned that her chair was broken. The plaintiff pushed the chair to the maintenance office and placed a "BROKEN" sign on it. Thereafter, on or about February 19, 2009, the plaintiff alleges that, while sitting in the chair at her desk, the chair collapsed and she fell to the floor aggravating the injuries from her automobile accident. The plaintiff reported the incident to CTHI and was placed on workers' compensation disability until February 24, 2009. Thereafter, the plaintiff reported the incident to OSHA, which ordered that the safety hazard be corrected. On March 17, 2009, the plaintiff reported to OSHA a second incident of a defective chair which collapsed at a staff conference.
The plaintiff alleges that following these two reports to OSHA her duties were changed, she was prohibited from performing the duties of the director of CAM, and was subjected to a hostile work environment and relentless and severe pressure to quit by the individual defendants. As a result, the plaintiff filed a formal complaint to OSHA's whistleblower protection program claiming that there was no rational or ethical basis for the way she was being treated and that the treatment was in retaliation for filing the OSHA complaints. On October 13, 2009, OSHA informed the plaintiff that upon investigation it found reasonable cause to believe a violation existed. Pursuant to its procedures, OSHA's investigator negotiated and approved a settlement agreement between the parties and thereafter closed its file. The plaintiff alleges, however, that the defendants immediately breached the agreement and on February 4, 2010, the plaintiff sent a notice of breach to CTHI which, according to the plaintiff, was ignored. Thereafter, the plaintiff sent a formal notice of "violation/breach and request for remedy" to OSHA and CTHI. Again, according to the plaintiff, CTHI ignored the formal notice. On February 22, 2010, OSHA advised the plaintiff that it would not enforce the settlement agreement because OSHA was not a party to the agreement. OSHA advised the plaintiff that if she believed that the agreement was violated, she would have to determine the proper venue to enforce it. The present action followed.
The defendants seek summary judgment on the plaintiff's complaint in its entirety and on their counterclaim. The defendants' first argument is that they are entitled to summary judgment on the ground that there is no genuine issues of material fact that the plaintiff entered into the settlement agreement thereby releasing all of the defendants from the claims asserted in the complaint. The defendants submit the affidavit of Ian Bjorkman, counsel for the defendants, which serves to authenticate the exhibits attached thereto, including a copy of the settlement agreement. The defendants also submit the affidavit and supplemental affidavit of defendant Goldfarb, the senior vice-president and chief financial officer of CTHI, with multiple exhibits attached thereto.
"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009); accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
Goldfarb's supplemental affidavit corrects an error in his original affidavit. In the original affidavit, Goldfarb attests that he signed the settlement agreement on behalf of CTHI. In the supplemental affidavit, Goldfarb attests that this assertion was mistakenly made and that the settlement agreement was actually executed by John Bimonte, the director of human resources, who was duly authorized to execute the settlement agreement. The plaintiff argues that this impropriety raises a genuine issue of material fact in that Goldfarb's supplemental affidavit does not supplement his earlier affidavit but rather contradicts it. The plaintiff warns the court that "[t]o permit that false oath to go unexplained or challenged would blur or eradicate the distinction between perjury and pragmatism — a dangerous precedent." The court finds that Goldfarb's supplemental affidavit properly corrects the error in his original affidavit and does not raise a genuine issue of material fact.
The plaintiff objects arguing that there are genuine issues of material fact concerning how the defendants treated the plaintiff before and after the settlement agreement was signed and whether the defendants honored it. It should be noted, however, that the plaintiff provides no further argument, analysis or case law in support of her position. The plaintiff does submit her own affidavit.
Since resolution of the scope and effect of the settlement agreement may be dispositive, the court will first address whether the defendants are entitled to summary judgment on this ground.
2 Settlement Agreement
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff's claims are barred by the settlement agreement. The defendants argue that when the plaintiff executed the settlement agreement, she released every claim that she had or may have had against the defendants. According to the defendants, the settlement agreement is enforceable against the plaintiff because she voluntarily executed the agreement, the terms of the agreement are clear, unambiguous and undisputed, the plaintiff received consideration that she was not otherwise entitled to receive in exchange for the release and other provisions of the settlement agreement, the settlement agreement satisfies the requirements of the Older Worker Benefits Protection Act, 29 U.S.C. § 626(f), and the settlement agreement contains an integration clause. The defendants argue that the plaintiff's complaint purports to state causes of action relating to events that she alleges occurred prior to the date that she entered into the settlement agreement. According to the defendants, the plaintiff's entire complaint is therefore precluded by release of claims provision in the settlement agreement.
The plaintiff argues that there are genuine issues of material fact concerning how the defendants treated the plaintiff before and after the settlement agreement was signed and whether the defendants honored it.
"It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction . . . It is similarly stated that a release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties . . . and, where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future." (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994).
"If a contract is found to be clear and unambiguous, the intent of the contracting parties may only be discerned from the language used and the circumstances of the transaction." (Internal quotation marks omitted.) Lowden v. Jones, Superior Court, judicial district of New Haven, Docket No. CV 08 5021885 (January 23, 2009, Robinson, J.) citing Muldoon v. Homestead Insulation Co., supra, 231 Conn. 482. "The fact that the parties interpret the terms of a contract differently, however, does not render those terms ambiguous . . . Rather, whether a contract is ambiguous is a question of law for the court." (Citation omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 200, 901 A.2d 666 (2006). "[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Montoya v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006). "If contract language is not definitive or if the contract is found to be ambiguous, the determination of the parties' intent, which controls its scope and effect, becomes a question of fact." Lowden v. Jones, supra, Superior Court, Docket No. CV 08 5021885, citing O'Connor v. Waterbury, 286 Conn. 732, 743, 945 A.2d 936 (2008).
"[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., supra, 279 Conn. 199. "General releases written in broad language releasing `any and all claims' have been held to be ambiguous." Raymond v. Benson, Superior Court, judicial district of Middlesex, Docket No. CV 09 5007148 (September 3, 2010, Burgdorff J.); see Pudlo v. Allstate Ins. Co., Superior Court, judicial district of New London at Norwich, Docket No. 117153 (August 23, 2000, Martin, J.) ( 28 Conn. L. Rptr. 27, 29) (summary judgment denied because question of fact existed as to parties' intent in executing release written in broad terms that could reasonably be interpreted in two ways).
In the present case, the release of claims provisions of the settlement agreement states:
In consideration of the covenants set forth herein, and other good and valuable consideration, Grasso knowingly and voluntarily releases and forever discharges Hospice, and all of its present and former shareholders, owners, parents, affiliates, subsidiaries, divisions, successors, assigns and customers (hereinafter referred to as the "Released Entities"), and the Released Entities' current and former trustees, officers, employees, accountants, insurers, agents and attorneys, of and from any and all actions, causes of actions, suits, debts, charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, and expenses (including attorney fees and costs actually incurred), of any nature whatsoever, in law or equity which Grasso has or may have had as of the date of execution of this Agreement and Release including but not limited to the OSHA complaint, the employment claims and the governmental claims as defined above. Listed below are examples of the statutes under which Grasso agrees she will not bring any claim. If the law prohibits a waiver of claims under any such statute, Grasso hereby acknowledges that she has no valid claim under those statutes. The claims released or acknowledged not to exist include, but are not limited to, any alleged violation of . . . The Occupational Safety and Health Act, as amended . . . The Connecticut Whistleblower Law, as amended . . . Any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance . . . Any public policy, contract, tort or common law obligation.
The release of claim provision contains an illustrative list of twenty-six (26) violations to which the plaintiff would waive a claim.
(Emphasis added.) The settlement agreement also includes the following integration clause:
This Agreement sets forth the entire agreement between the parties hereto, and fully supercedes any prior agreements or understandings between the parties, except that Grasso shall continue to be bound by the applicable provisions of Hospice's Policies and Procedures and its confidentiality and related agreements. Grasso acknowledges that she has not relied on any representations, promises, or agreements of any kind made to her in connection with her decision to accept this Agreement, except for those set forth in this Agreement.
In addition, the agreement contains several representations by the plaintiff including:
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE CONSIDERATION SET FORTH HEREIN, GRASSO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS SHE HAS OR MIGHT HAVE AGAINST HOSPICE, ANY OF THE OTHER RELEASED ENTITIES, AND ANY CURRENT OR FORMER TRUSTEE, OFFICER, EMPLOYEE ACCOUNTANT, INSURER, AGENT OR ATTORNEY OF PDI OR OF ANY OF THE OTHER RELEASED ENTITIES.
(Emphasis in original.)
The terms of the settlement agreement are unambiguous and not so broad as to be susceptible to more than one reasonable interpretation. The release of claims provision is clear as to which claims the plaintiff has agreed to release, i.e., those that the plaintiff had or may have had as of the date of execution of the agreement including but not limited to the OSHA complaint, the employment claims and the governmental claims. The release of claims provision also lists examples of the statutes under which the plaintiff agreed that she would not bring any claim, including the OSHA Act, Connecticut's whistleblower law, any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance, and/or any public policy, contract, tort or common-law obligation. The plaintiff does not offer an alternative interpretation of the release of claims provision and does not present any evidence that there is a genuine issue of material fact concerning what the parties intended when they executed the settlement agreement and specifically, the release of claims provision.
Thus, the plaintiff agreed to release all claims that she had or may have had prior to, and up to the date of, execution of the settlement agreement. Three counts of plaintiff's complaint are based on events that occurred prior to the date that she entered into the settlement agreement and are causes of action which were released by the plaintiff. Count one alleges that the defendants violated Connecticut's whistleblower statute and alleges facts that occurred prior to the signing of the settlement agreement. Count two alleges violations of the plaintiff's first amendment rights under the federal and state constitutions for her complaints to OSHA and to the defendants' quality assurance committee, acts which the plaintiff undertook prior to the signing of the settlement agreement. Count four alleges breach of contract with respect to the plaintiff's attempt to exercise rights under the defendants' staff handbook to report violations the defendants' quality assurance committee. The reports the plaintiff made to the defendants' quality assurance committee occurred prior to the signing of the settlement agreement. Accordingly, by the unambiguous terms of the settlement agreement, counts one, two and four are barred and the summary judgment is granted as to these counts.
Counts three, five and six purport to allege conduct that occurred after the signing of the settlement agreement and are not barred by the settlement agreement. The court will now address the defendants' additional grounds for summary judgment as to the three remaining counts.
3 Count Three: Breach of Contract/Settlement Agreement
Count three alleges that CTHI immediately breached or violated the settlement agreement. Specifically, the plaintiff alleges that the continuous harassment, humiliation, and endless pointless driving to which she was subjected constituted a constructive termination and breach of the settlement agreement.
The defendants move for summary judgment on the ground that CTHI did not breach the settlement agreement but rather provided the plaintiff with the consideration required by the settlement agreement. According to the defendants, after executing the settlement agreement on January 26, 2010, the plaintiff returned to work on February 4, 2010. On February 5, 2010, the plaintiff presented the defendants with a memo, entitled "Notice of Violation and Breach of the OSHA Settlement," listing eight problems that she claimed constituted a breach of the settlement agreement. The defendants submit an authenticated copy of the memo which lists the following alleged violations: (1) the plaintiff's phone number was not in service which was not an improvement of the constant busy signal on her previous phone number that was complained about to OSHA; (2) the plaintiff did not have a computer at her desk nor access to any of those in her area and this is a breach of the "not worse than" clause of the settlement agreement because all others in her area have a computer; (3) the plaintiff's work area is too small and suitable only for a very short thin person; (4) the plaintiff's work area lacked office supplies; (5) the plaintiff did not have new business cards; (6) the plaintiff did not have a new appropriate work identification card; (7) the confidential and anonymous phone line to report issues to the quality assurance committee was not in service; and (8) the plaintiff did not receive a cell phone despite having requested one a month earlier because she travels often for work. The defendants argue that none of these issues relate to the terms of the settlement agreement.
The memo is attached to and authenticated by the affidavit of David Goldfarb.
The relevant portions of the settlement agreement provide that the plaintiff will retain her job title, will work a part-time schedule in two different locations and is expected to bring with her to either of those locations materials she needs to carry out her planned activity of the day. The settlement agreement further provides that CTHI will help the plaintiff, if needed, obtain computer generated directions of driving routes, CTHI will credit the plaintiff's paid time off (PTO) and CTHI will withdraw the written disciplinary warning relating to a HIPPA violation from the plaintiff's personnel file. Additionally, the settlement agreement provides that the settlement agreement will not provide the plaintiff with greater or lesser rights or privileges than other employees.
The defendants submit Goldfarb's affidavit attesting that after the settlement agreement was signed and submitted to OSHA, CTHI took action to comply with its terms. Specifically, CTHI made arrangements for the plaintiff to be assigned to the Shelton office and the Branford facility and to work from 8:30 a.m. to 3 p.m., it credited her PTO time, and it removed the disciplinary warning from the plaintiff's file.
The plaintiff submits her own affidavit attesting that after the settlement agreement, she was not provided with a cell phone and that her new desk phone number was not a direct outside line. The plaintiff further attests that she had no personal computer and was not given the password to the unassigned computers. Rather, to obtain travel directions, the plaintiff had to wait for her supervisor to log her onto the computer. Additionally, the plaintiff attests that she was the only director or staff member who had to record all job-related activity by hand. The plaintiff also attests that before and after the settlement agreement she remained without after-hours key access to the office and was the only employee without a key. Finally, the plaintiff attests to a situation that occurred after the settlement agreement where she was required to drive from West Hartford to Greenwich to attend a presentation. During this trip, the plaintiff was repeatedly thwarted by traffic and accidents. The plaintiff called her supervisor several times asking to cancel the assignment but was told to keep going. The plaintiff attests that she was forced to sit in traffic and watch "with horror as the rescue people worked" on those involved in the accident. By the time the plaintiff got to where she needed to be, the presentation was over. The plaintiff attests that she suffered medical consequences as a result of this incident.
Under the terms of the settlement agreement, CTHI was not required to provide the plaintiff with a specific phone number and line, a computer, a specific sized work space, specific office supplies, new business cards, a new identification card, or a cell phone. Rather, there is no genuine issue of material fact that the defendants did not breach the settlement agreement and the plaintiff's affidavit fails to raise a genuine issue of material fact.
Accordingly, the summary judgment is granted as to count three alleging breach of the settlement agreement.
4 Count Five: Negligent Infliction of Emotional Distress
Count five alleges negligent infliction of emotional distress against the individual defendants. The plaintiff alleges that "[t]he individual defendants in their actions to supposedly help the plaintiff in doing her work negligently condoned willful and wanton misconduct which intimidated staff members from having anything to do with [the plaintiff] and which caused her to suffer emotional distress." The plaintiff further alleges that written requests to the human relations director of CTHI make it clear that those who were responsible for addressing the conditions complained of by the plaintiff either chose to or were ordered to ignore the written requests. Count five also incorporates the allegations of all preceding paragraphs including count three which alleges that the plaintiff was subjected to continuous harassment, humiliation, and endless pointless driving resulting in a constructive termination.
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff does not allege any conduct of the individual defendants related to her separation of employment. The defendants submit the affidavit of Goldfarb attesting that the plaintiff voluntarily resigned after providing CTHI with notes from her treating therapists stating that she could no longer perform essential duties of her job. Goldfarb further attests that the plaintiff voluntarily chose not to take a leave of absence in accordance with the state and federal family and medical leave acts.
To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove: "(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., 262 Conn. 433, 444, 815 A.2d 119, 127 (2003).
A claim of negligent infliction of emotional distress cannot arise "out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752, 765 (2002). "[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." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655, 667 (1997).
Moreover, an allegation of constructive discharge is insufficient to satisfy the requirement that the unreasonable conduct occurred in the termination process. See Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach J.) ( 33 Conn. L. Rptr. 206) (summary judgment granted on negligent infliction of emotional distress claim where the plaintiff alleged constructive discharge). Consequently, a resignation allegedly resulting from a constructive termination cannot satisfy the "termination" requirement for a negligent infliction of emotional distress claim. See St. Paul v. Easter Seals Goodwill Industries Rehabilitation Center, Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0479302 (April 5, 2004, Arnold, J.) (motion to strike negligent infliction of emotional distress claim granted where the plaintiff resigned as a result of difficult and unpleasant work conditions).
In the present case, there is no genuine issue of material fact that the plaintiff resigned from her position and was not terminated from employment. Accordingly, the motion for summary judgment as to count five is granted.
5 Count Six: Intentional Infliction of Emotional Distress
Count six alleges that the individual defendants conspired together to engage in a pattern of harassment and infliction of emotional distress which they knew or should have known would have an adverse impact on the plaintiff and cause her to suffer emotional and physical damages. The plaintiff further alleges that the individual defendants engaged in this conduct in order to ingratiate themselves with the upper levels of the chain of command which made it clear that CTHI wanted to force the plaintiff out. Count six also incorporates the allegations of all preceding paragraphs including count three which alleges that the plaintiff was subjected to continuous harassment, humiliation, and endless pointless driving, and count five alleging that the individual defendants negligently condoned willful and wanton misconduct which intimidated staff members from having anything to do with the plaintiff and which caused her to suffer emotional distress.
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff has not alleged and cannot establish that the individual defendants engaged in any extreme and/or outrageous conduct. The plaintiff argues that there are genuine issues of material fact concerning how the defendants treated the plaintiff before and after the settlement agreement.
"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 . . . 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 Ins. Co., supra, 262 Conn. 442-43. "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.) Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68, 73 (2003). "[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." (Internal quotation marks omitted.) Craddock v. Church Community Supported Living Assn., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.).
"In the workplace context, the threshold [for extreme and outrageous conduct] is even higher: [I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace." (Internal quotation marks omitted.) Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.). "Nevertheless, it has also been held that [t]he extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests . . . Such position or relation may be that of an employer or supervisor at work . . ." (Citations omitted; internal quotation marks omitted.) Id.
In Gillians v. Vivanco-Small (2011), the Appellate Court upheld the trial court's granting of summary judgment on an intentional infliction of emotional distress claim because the conduct complained of was not extreme or outrageous. In that case, the plaintiff alleged that in retaliation for filing a labor grievance against the defendants, the defendants "conspired to force the plaintiff to withdraw the institutional grievance . . . were motivated by personal vendettas . . . and that, as part of the conspiracy, they had become hostile and uncooperative and had falsely accused her of racial and sexual bias . . . [the defendants] gave her a negative performance evaluation and threatened her with demotion and termination of her employment." Id. In upholding the trial court's grant of summary judgment, the Appellate Court explained that "[a]lthough the alleged actions of the defendants, if proven, could understandably upset and distress the plaintiff, the behaviors do not meet the high threshold required to sustain a claim based on intentional infliction of emotional distress." Id. The court went on to state: "The most troubling allegation is that the defendants vindictively conspired to terminate the plaintiff's employment. A concerted effort to remove an employee, however, does not necessarily constitute outrageous conduct; see, e.g., Dollard v. Board of Education, 63 Conn.App. 550, 552-55, 777 A.2d 714 (2001) (conduct not outrageous where supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her); nor does a wrongful motivation necessarily render a termination outrageous. See Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (mere act of terminating employee, even if wrongfully motivated, does not transgress bounds of socially tolerable behavior). Reading the allegations in the light most favorable to the plaintiff, the defendants' conduct, albeit distressing to her, did not exceed all possible bounds of decency. See, e.g., Appleton v. Board of Education, [ 254 Conn. 205, 210-12, 757 A.2d 1059 (2000)] (conduct not outrageous where supervisors made condescending comments about plaintiff in front of colleagues, subjected her to two psychiatric examinations, telephoned her daughter to say plaintiff was acting differently and should take time off, asked police to escort her from school and suspended her employment)." Id.
In the present case, although the plaintiff's complaint alleges harassment, humiliation, and endless pointless driving, she presents no evidence which raises a genuine issue as to whether the defendants' conduct was extreme and outrageous. In her affidavit, the plaintiff attests only to CTHI's failure to provide her with a specific phone number and line, a computer, a specific sized work space, specific office supplies, new business cards, a new identification card, and a cell phone, as well as to the one incident where the plaintiff was required to drive from West Hartford to Greenwich. Moreover, like in Gillians v. Vivanco-Small, supra, the plaintiff's allegations that the individual defendants conspired together to engage in a pattern of harassment and infliction of emotional distress in order to ingratiate themselves with the upper levels of the chain of command do not rise to the level of being extreme or outrageous.
There is no genuine issue of material fact that the defendants' actions were not extreme or outrageous and the plaintiff's affidavit does not raise a genuine issue of material fact on this issue. Accordingly, the summary judgment is granted as to count six.
III CONCLUSION
There are no genuine issues of material fact and the defendants' motion for summary judgment as to the plaintiff's entire complaint is granted.
Moreover, the defendants moved for summary judgment on the counterclaim, which sought a declaratory judgment that under the settlement agreement the plaintiff released all of her claims against the defendants. The defendants' motion for summary judgment on the counterclaim is granted but limited only to the claims brought in counts one, two and four as there is no genuine issue of material fact as to the preclusive effect of the settlement agreement's release of claims provision as to those counts only.