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finding that claim of denial of training opportunities, insulting behavior, and differential treatment in the workplace did not constitute extreme and outrageous behavior
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CIVIL ACTION NO. 3:00-CV-2301 (JCH).
October 1, 2001
The plaintiff, Mario Javier ("Javier"), brings claims against the defendants, Engelhard Corporation, Barry Perry, Frank Gerlando, Bill Willen, Marc Froning, and Elaine Strock pursuant to 42 U.S.C. § 1981a and 42 U.S.C. § 2000a, et seq (Title VII) and the Connecticut Fair Employment Practices Act ("CFEPA"), § 46a-60, et seq. The plaintiff also asserts claims for intentional and negligent infliction of emotional distress. The plaintiff alleges that the defendants have subjected him to unlawful employment practices, including denying him training, failing to promote him and terminating his employment, on the basis of his national origin and in retaliation for his protest of their wrongful conduct.
Defendant Barry Perry ("Perry") seeks dismissal on all claims brought against him on the grounds that the court lacks personal jurisdiction over him and on the grounds that the plaintiff has failed to state a claim against him. The defendants, Frank Gerlando, Bill Willen, Marc Froning and Elaine Strock ("employee defendants"), seek dismissal of the claims against them brought under Title VII and CFEPA, on the grounds that they can not be held personally liable under either the federal or state statute. Finally, Engelhard Corporation and the employee defendants seek dismissal of the intentional and negligent infliction of emotional distress claims on the grounds that the facts alleged do not state such claims.
The plaintiff objects that the defendants failed to seek a pre-filing conference as required by the court's "Order on Pretrial Deadlines" effective as of the filing of this action. The court has since ceased this practice and anyone calling chambers to schedule such a conference is advised that it is not necessary.
For the reasons stated below, the court GRANTS Perry's motion to dismiss (Dkt. No. 21) and GRANTS in part and DENIES in part Engelhard and the employee defendants' motion to dismiss (Dkt. No 24).
I. FACTS
Taking the allegations in the amended complaint as true, Javier has set out the following facts. Engelhard Corporation is a company headquartered in New Jersey, with a facility located in East Windsor, Connecticut. Barry Perry is the CEO of Engelhard Corporation and Frank Gerlando was the General Manager of the Connecticut facility during the time Javier worked for the company. During the same time period, Bill Willen was employed as a Technical Manager at the Connecticut location, Marc Froning was a Materials Manager, and Elaine Strock was employed as a Materials Engineer
Javier was hired by Engelhard Corporation as a temporary worker in the position of laboratory technician in December of 1997. In February of 1998, based on verbal promises of promotion, Javier accepted a permanent position with the company. In March and April of 1998, Javier was denied an opportunity to participate in a training program. In August of 1998, Strock allegedly told Javier that he was "a burden to the lab and to the company" and that his personal problems were not a concern to the company. When Javier attempted to offer his suggestions to Froning, he was told to "bite his lips." Throughout 1998 and 1999, Javier was excluded from trainings.
Javier also alleges that he was excluded from a list of company accomplishments and that his picture was not included in a report on new employees. In addition, white employees hired after him were promoted above him. While his evaluation in 1998 was very positive, Javier reports that he continued to get insulted by other employees. In March of 1999, Froning said to Javier that "you foreigners are taking jobs away from us."
In March of 1999, Javier received a letter of termination from the company. On June 11, 1999, Javier filed charges with the Equal Employment Opportunity Commission ("EEOC") and the Connecticut Commission on Human Rights and Opportunities ("CCHRO"). Javier received a Right to Sue Letter from the EEOC on September 4, 2000 and received a release from the CCHRO on July 9, 2000. Javier filed a claim in this court on December 1, 2000. Javier filed an Amended Complaint on January 5, 2001.
The court notes that the first complaint was not served on any of the defendants. Javier served the defendants with the Amended Complaint.
II. DISCUSSION
A. Standards of Review
A motion to dismiss filed pursuant to Rule 12(b)(6) can only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering such a motion, the court must accept the factual allegations in the complaint as true, and all inferences must be drawn in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). A Rule 12(b)(6) motion to dismiss cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. (quotation omitted). "[B]ald assertions and conclusions of law will not suffice to state a claim . . . ." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citations omitted).
Defendant Perry also seeks dismissal under 12(b)(2), on the grounds that the court does not have personal jurisdiction over him for purposes of this complaint. A district court has broad discretion in deciding how to proceed with a motion to dismiss for lack of personal jurisdiction, including conducting an evidentiary hearing. CutCo Indus. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). The plaintiff ultimately bears the burden of establishing, either at an evidentiary hearing or at trial, that the court has personal jurisdiction over the defendants.Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir. 1996). Where, as here, the issue is addressed in a motion, without the benefit of an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Bank Brussels Lambert v. Fiddler Gonzales Rodriguez, 171 F.3d 779, 784 (2d Cir.). Allegations in the pleadings and affidavits "are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party." A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
The court notes first that this motion to dismiss was timely filed as it was filed by Perry within 90 days of the filing of the Amended Complaint.
1. Personal Jurisdiction
Perry is a resident of New Jersey. Therefore, personal jurisdiction can be asserted over Perry only when (1) the federal court has jurisdiction under the forum state's laws; and (2) an assertion of jurisdiction under the circumstances of the case comports with the requirements of due process. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir. 2000).
Turning to the first prong of the inquiry, Connecticut has two long-arm statutes, Conn. Gen Stat. §§ 52-59b and 33-929. Section 33-929 relates only to foreign corporations and is inapplicable to Perry. Section 52-59(b)(a), however, is applicable and reads in pertinent part:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . ., who . . . (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53-451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state.
Javier simply alleges that Perry transacted business in the State of Connecticut and is, therefore, reached by the long-arm statute. Javier has presented no allegations regarding Perry committing a tortious act in the state such that the court would have personal jurisdiction. In his declaration, Perry states that he had no involvement in any decision related to Javier's employment with the company. Perry's Decl. at ¶ 6-10.
The relevant inquiry when interpreting the phrase "transacts any business" is the personal contacts of an agent or director of a company in the forum state. Jurisdiction over a director or CEO does not automatically emanate from jurisdiction over the company itself. Mozes v. Welch, 638 F. Supp. 215, 223 (D. Conn. 1986). Javier has made no showing that Perry's personal contacts with the state are such that this court could extend jurisdiction. In Perry's Declaration he states that he does not transact business in Connecticut as an individual and any Business he did in Connecticut while CEO of Engelhard involved his duties as a corporate officer. Perry's Decl. at ¶ 5. While the court has jurisdiction over the company itself, that is not enough under Connecticut's long-arm statute to extend jurisdiction to Perry merely because he is an officer. See id.; see, also, Hagar v. Zaidman, 797 F. Supp. 132, 137 (D.Conn. 1992) (finding no personal jurisdiction over a corporate officer where any business he transacted in Connecticut was on behalf of his company). Because the court does not have personal jurisdiction over Perry, the court grants Perry's motion to dismiss.
B. Engelhard Corporation, Gerlando, Willen, Froning and Strock's Motion to Dismiss
The court notes that the claims against Perry could have been dismissed on the alternative ground that Javier has failed to state a claim against this defendant as he is not named in any of the allegations in the complaint. Fed.R.Civ.P. 12(b)(6); See also Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (holding that when a complaint alleges no specific acts of a defendant the complaint is properly dismissed, even if the complaint is brought by a pro se complainant).
Again, the court notes at the outset that this motion was timely filed, having been filed within 90 days of the filing of the Amended Complaint.
1. Individual Liability Under Title VII
The employee defendants seek dismissal of Javier's Title VII claims, brought against them in their capacities as employees of Engelhard. The Second Circuit has held that supervisors or individuals cannot be held personally liable under Title VII. Wrighten v. Glowski, 232 F.3d 119, 119 (2d Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). Therefore, Javier cannot assert his Title VII claims against the employee defendants.
2. Individual Liability Under the CFEPA
The employee defendants also seek dismissal of the claims brought against them under CFEPA on the grounds that individuals cannot be held liable under the statute. The Connecticut Supreme Court has not addressed this issue and there has been a split among the lower courts. Compare Walters v. Homestaff Health Care, No. CV 950146961S, 1996 WL 88058 (Conn.Super.Ct. Feb.8, 1996) (finding the vice-president of a firm not liable in his individual capacity under the plain meaning of C.G.S. § 46a-60(a)(8) because he was not an "employer") and Martinez-Duffy v. DeJesus, No. CV 940545193S, slip op. (Conn.Super.Ct. May 1, 1996) (holding that a high school principal is a supervisor, not employer, and therefore not individually liable under the CFEPA), with Lueneburg v. Mystic Dental Group, No. CV 535839, 1996 WL 456967 (Conn.Super.Ct. Aug.1, 1996) (interpreting the CFEPA to allow supervisory employees to be held individually liable).
The question of whether individual employees can be held liable under the Connecticut Fair Employment Practices Act ["CFEPA"] Conn. Gen. Stat. § 46a-60(a)(1) has been certified to the Connecticut Supreme Court by this court. See Perodeau v. City of Hartford, No. 99cv00807 (AHN) (D.Conn. Nov. 11, 2000) (endorsement granting motion to certify question). In light of the likely imminent decision on point, the court denies the defendants' motion to dismiss the CFEPA claims against the employee defendants without prejudice to renewal, pending the decision of the Connecticut Supreme Court.
3. Intentional Infliction of Emotional Distress
The employee defendants and Engelhard Corporation seek dismissal of Javier's claim for intentional infliction of emotional distress. The defendants argue that Javier has not stated, on the face of his complaint, allegations which meet the standards of this type of claim.
In order to assert a claim for intentional infliction of emotional distress, the plaintiff must establish four elements: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a likely result of his conduct; (2) that the conduct was extreme or outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the distress suffered by the plaintiff was severe. Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986); see also Miner v. Town of Cheshire, 126 F. Supp.2d 184 (D.Conn. 2000).
"Liability for intentional infliction of emotional distress requires conduct that is so extreme and outrageous that it goes beyond all possible bounds of decency, is regarded as atrocious, is utterly intolerable in a civilized society, and is of a nature that is especially calculated to cause, and does cause, mental distress of a very serious kind." Miner, 126 F. Supp.2d at 194. Routine employment action, even if made with improper motivations, do not constitute extreme or outrageous behavior. In addition, Connecticut courts have held that "insults, verbal taunts, threats, indignities, annoyances, petty oppressions or conduct that displays bad manners or results in hurt feelings do not support a claim for intentional infliction of emotional distress." Id. at 195 (citations omitted).
Javier's claims against Engelhard and the employee defendants for intentional infliction of emotional distress are that he was not advanced along with other new employees and was eventually terminated, he was subjected to various insults, he was not allowed to participate in trainings and was not included in company publications. While such actions were no doubt hurtful to Javier, these actions do not, as a matter of law, support a claim for intentional infliction of emotional distress. The employment actions taken against Javier may have been unlawfully motivated but, by themselves, do not constitute extreme and outrageous behavior. The Connecticut courts have held that the insults and indignities are not enough to support such a claim. Therefore, the court finds that Javier has not stated a claim for intentional infliction of emotional distress and grants the defendants' motion as to that claim.
4. Negligent Infliction of Emotional Distress
The defendants also seek dismissal of Javier's claims for negligent infliction of emotional distress. The defendants argue that Javier must demonstrate that the defendants engaged in unreasonable conduct in the termination process.
In order to state a claim for negligent infliction of emotional distress, a plaintiff must allege "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it was caused, might result in illness or bodily harm." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978). The Connecticut Appellate Court has further required that negligent infliction of emotional distress claims plead outrageous or extreme conduct. Muniz v. Kravis, 59 Conn. App. 704, 709 (2000) ("The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous."); see also Johnson v. Chesebrough-Ponds, Inc., 1996 WL 734043 at *3 (2d Cir. 1996).
This court has recently held that claims of negligent infliction of emotional distress are not limited to conduct in the termination process. Munck v. New Haven Savings Bank, No. 3:01-cv-772 (D.Conn. September 17, 2001). However, even if the court looks beyond the termination, Javier's claim fails on the same grounds as his claim for intentional infliction of emotional distress. The court finds that the conduct of Engelhard and its employees was not extreme and outrageous. Therefore, the court grants defendants' motion to dismiss as to that claim.
III. CONCLUSION
The court grants Perry's motion to dismiss (Dkt. No. 21) on the grounds that the court does not have personal jurisdiction over the defendant and because the plaintiff has failed to state a claim against this defendant. The court grants in part the motion to dismiss by Engelhard Corporation, Gerlando, Willen, Froning, and Strock (Dkt. No. 24). The court grants the motions on the grounds that the individual employees named cannot be held liable under Title VII and that the plaintiff has failed to state a claim for either intentional or negligent infliction of emotional distress. The court denies the motion, without prejudice to renew, as to the claims brought under CFEPA, pending the Connecticut Supreme Court's ruling on the issue of individual liability.
SO ORDERED