Opinion
No. CV 09-6006222
November 5, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This case arises out of the termination of the plaintiff's employment. The defendants, Utopia Home Care, Inc. and Utopia Assisted Living Services, Inc. (Utopia), move to strike all five counts of the plaintiff's complaint on the following grounds: (1) As to count one alleging wrongful discharge, the plaintiff has statutory remedies available that preclude a common-law wrongful discharge claim; (2) as to count two, alleging a violation of General Statutes § 31-51q, the plaintiff has failed to plead all the elements of such a claim; (3) as to count three, alleging defamation, the plaintiff fails to allege either the identity of the recipient of the defamatory statements or that her reputation has been damaged; (4) as to count four, alleging negligent infliction of emotional distress, the alleged conduct is not alleged to have occurred during the course of the plaintiff's termination; and (5) as to count five, alleging intentional infliction of emotional distress, the alleged facts do not set forth conduct that is extreme and outrageous. For the reasons set forth herein, Utopia's motion to strike is granted as to count one, and denied as to counts two, three, four and five.
The court notes that while the plaintiff's summons names both Utopia Home Care, Inc. and Utopia Assisted Living Services, Inc. as defendants in this action, and the caption on the plaintiff's complaint similarly contains the names of both entities, the allegations of the complaint name only Utopia Home Care, Inc., and identifies that party as the "defendant" or "Utopia." All of the plaintiff's references to "the defendant" throughout the complaint are singular. Nevertheless, the motion to strike at issue was purportedly filed on behalf of both entities, and apparently reads the allegations of the plaintiff's complaint as against both entities. Therefore, the court assumes that the entities are closely related to one another and refers to them collectively, and singularly, as "Utopia" throughout this memorandum.
Utopia's motion to strike and the memorandums of law submitted by both parties refer to the plaintiff's "second revised complaint." However, the court file and docket entries indicate that only one complaint has been filed in this action. Therefore, the court treats the initial complaint in this action, filed by the plaintiff on December 14, 2009, and titled "complaint," as the operative complaint and refers to it as "the complaint."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . A motion to strike . . . consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
While "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
I WRONGFUL TERMINATION
"Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity . . . [Connecticut appellate courts] have recognized an exception to that rule, however, where an employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . . In such cases, the plaintiff may have a common-law cause of action against the employer. In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), however, [the Appellate Court] further narrowed that cause of action by holding that [the] . . . public policy exception to the at-will doctrine is available only in cases in which there are no other available remedies and permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated . . ."
"In Burnham v. Karl Gelb, P.C., [ 252 Conn. 153, 159-62, 745 A.2d 178 (2000)], our Supreme Court explicitly affirmed [the Appellate Court's] decision in Atkins and further held that because [General Statutes] § 31-51m(c) provides a statutory cause of action for employees who are terminated for `whistleblowing,' the public policy exception does not apply. Section 31-51m, therefore, provides the exclusive remedy for such employees and precludes any common-law actions in either tort or contract." (Citations omitted; emphasis in original; internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002).
In the present case, the plaintiff has alleged a claim for wrongful termination as well as a violation of § 31-51q on essentially the same set of facts. The plaintiff concedes that Burnham stands for the proposition that if there is a statutory remedy for a particular type of wrongful conduct, a common-law action for wrongful discharge based on that conduct is precluded. Nevertheless, the plaintiff argues that her wrongful termination claim should survive Utopia's motion to strike because she should be allowed to plead her wrongful termination claim in the alternative to her statutory claims.
In Campbell, our Appellate Court faced a similar argument while reviewing a trial court's granting of a motion to strike a wrongful termination claim on the ground that it was precluded by the availability of a statutory remedy. See Campbell v. Plymouth, supra, 74 Conn.App. 74. The court upheld the trial court's granting of the motion to strike, stating: "The plaintiff . . . is incorrect in asserting that he was `wrongfully deprived of his right to plead in the alternative.' Connecticut does allow plaintiffs to plead inconsistent yet otherwise valid causes of actions together in the same complaint, thereby allowing plaintiffs to pursue alternative remedies or theories of relief . . ."
"In this action, however, we are not faced with choosing between valid yet conflicting theories of recovery. As previously explained, the law is clear. A common-law approach to a claim of wrongful discharge is barred as long as a remedy has been made available to address the particular public policy concerns. The question is not whether the statutory cause of action remains viable as to a particular plaintiff. The fact that a remedy later becomes unavailable due [to] the running of a limitation period does not mean that there was no remedy available and therefore a common-law cause of action arises.
"In the present case, the plaintiff raises the public policy disfavoring discharge of employees who are `whistle-blowers.' That concern is addressed in § 31-51m, which creates a cause of action to protect such employees. Because the legislature has made a remedy available under that statute, the courts do not need to recognize a common-law exception to the at-will employment doctrine. The court, therefore, did not prevent the plaintiff from pleading in the alternative, but simply did not allow him to plead an invalid alternative." (Citations omitted.) Id., 75-76.
Based on Campbell and the plaintiff's own concessions, § 31-51q, as alleged in count two, provides a remedy for the alleged improper conduct contained in count one. That a statutory remedy exists for certain alleged conduct precludes the plaintiff from stating a legally sufficient claim for common-law wrongful termination based on that conduct. Therefore, count one is legally insufficient to state a claim on which relief can be granted. See Campbell v. Plymouth, supra, 74 Conn.App. 77 ("[t]he plaintiff's complaint alleged sufficient facts from which the court could construe the nature of the causes of action pleaded and whether they were legally sufficient. The court correctly decided that count two was precluded by count one and, therefore, failed to state a claim on which relief could be granted").
II GENERAL STATUTES § 31-51q
Section 31-51q provides, in relevant part: "Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge . . ."
The plaintiff alleges in count two, paragraph 33, that "during the course of her employment [by Utopia], when the plaintiff reported standard of care violations to the Connecticut department of public health, she was exercising rights protected by the first amendment to the United States constitution and article first, §§ 3, 4 and 14 of the Connecticut constitution." The plaintiff alleges in paragraph 34 that her "termination and subsequent reporting to the state [by Utopia] was in retaliation for her exercise of such rights." In addition, in paragraph 35 of her complaint, the plaintiff alleges that the "exercise of her First Amendment and state constitutional rights did not materially interfere with her bona fide job performance or her working relationship with Utopia."
Utopia argues that the plaintiff has failed to allege that she was either disciplined or discharged, as required by § 31-51q, because of the exercise of her constitutional rights. Paragraph 35 of count two, however, alleges that "the plaintiff's termination and subsequent reporting to the state was in retaliation for her exercise of such rights." Our Supreme Court has stated that § 31-51q "protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution." (Emphasis added.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). Therefore, the plaintiff has sufficiently alleged that she was discharged "on account of the exercise" of her constitutional rights.
Utopia also argues that the plaintiff's allegations are legally insufficient under § 31-51q because they allege facts that "substantially or materially interfere[d] with the employee's bonafide job performance or the working relationship between the employee and the employer . . ." See General Statutes § 31-51q.
The plaintiff alleges in her complaint that she is a registered nurse and provided home nursing care while employed by Utopia. She also alleges that during her employment she was assigned as a primary nurse for two patients at a facility owned by a customer of Utopia. It is further alleged that while working at the facility, the plaintiff observed standard of care violations related to the patients at the facility, including poor nutrition, poor hygiene, lack of safety and neglect. The plaintiff allegedly reported those violations to her supervisor, and later, to the department of mental health and addiction services. It was due to that report that the plaintiff alleges she was terminated in violation of § 31-51q.
Utopia specifically argues that the plaintiff's complaints about the alleged standard of care violations at the customer's facility interfered with her bona fide job performance and the working relationship between the parties because the plaintiff's complaints placed in jeopardy Utopia's relationship with its customer. Utopia further contends that it "had a right to expect their employee to refrain from actions that would injure their economic well being."
In support of its arguments, Utopia refers to our Supreme Court's statement that "[a]s a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question. The legislature made its intention in that respect clear by stating expressly, in § 31-51q, that the statute provides a cause of action only against discharge for expressions of opinion that do `not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer . . .' The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999).
The plaintiff alleges that, while providing a service to a customer of her employer, she observed and later reported allegedly wrongful or illegal conduct by that customer to a state agency responsible for regulating such conduct. It may be true that Utopia's business relationship with their customer was impacted negatively as a result of the reporting of violations by the plaintiff. But if that effect were enough to make the statute inapplicable to the plaintiff's allegations, the statute would always be inapplicable to a set of facts involving an employee's observation of wrongful or illegal conduct by an employer's customer, because an employee's reporting of that wrongful or illegal conduct would, to some extent, always have a negative impact on the employer's business relationship with that customer.
Such a reading of § 31-51q does not comport with our Supreme Court's expression of the intent of the statute. Indeed, the facts alleged herein involve the exact kind of "expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen" to which our Supreme Court has decided this statute applies. See Cotto v. United Technologies Corp., supra, 251 Conn. 17. Further, whether the plaintiff's claimed protected activity "materially or substantially interfered" with her working relationship with Utopia or her bona fide job performance raises a question of fact that cannot be resolved on a motion to strike. Therefore, count two sufficiently states a claim pursuant to § 31-51q upon which relief may be granted.
III DEFAMATION
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009).
"`[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint sets forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.' (Internal quotation marks omitted.) Winters v. Concentra Health Services, Superior Court, judicial district of New Haven, Docket No. CV 07 5012082 (March 5, 2008, Thompson, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98 0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) ("[a] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom"). Connecticut courts require that a plaintiff must plead a defamation case with specificity because `[t]here are a number of special defenses . . . that may be appropriate, depending on the nature of the statements alleged to have been made.' Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) ( 40 Conn. L. Rptr. 565, 570). If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses." Avitabile v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5012806 (June 4, 2010, Adams, J.).
Utopia argues that the complaint fails to allege to whom the defamatory statements were made. Paragraph 41 of count three alleges that the allegedly defamatory statements were made "to the state of Connecticut department of public health." At least one Superior Court decision has explicitly concluded that an allegation that a defendant published a statement to a government agency was sufficient to satisfy the third element of a prima facie case of defamation. See Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018766 (February 21, 2007, Weise, J.) (an allegation that the defendant published a statement to the department of labor held to be sufficient). The court finds that paragraph 41 contains a sufficient allegation of publication to withstand a motion to strike.
Utopia also argues that the plaintiff has failed to allege that the plaintiff's reputation has been damaged as a result of the defamatory statements. Paragraph 45 of count three alleges that "as a result of the defamation, the plaintiff suffered and will continue to suffer emotional distress, and personal and professional humiliation." Paragraph 46 alleges that "as a further result of the defamation, the plaintiff has lost income from her professional practice, and she will continue to lose such income in the future."
In Abbott v. ABCO Welding Industrial Supply, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 5026588 (November 10, 2009, Wagner, J.T.R.), the court concluded that the plaintiff sufficiently pleaded facts sufficient to satisfy the fourth element of a claim for defamation by alleging that as a result of the defendant's publication of a letter to a potential employer, the potential employer rescinded its offer of employment to the plaintiff. In Parnoff v. Mooney, Superior Court, judicial district of Fairfield, Docket No. CV 04 4001683 (October 21, 2008, Hiller, J.), the court held: "Since statements such as accusing an attorney of unethical behavior could certainly cause injury to one's professional reputation, the plaintiff has pleaded facts sufficient to establish . . . a cause of action in defamation." See Law Offices of Frank N. Peluso, P.C. v. Cotrone, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000599 (September 23, 2009, Pavia, J.) (citing Parnoff and quoting the same).
Based on the above cases, because the plaintiff has alleged in count three that: (1) Utopia falsely stated that the plaintiff failed to meet the standard of professional nursing; (2) that the plaintiff suffered professional humiliation; and (3) that the plaintiff has lost income from her professional practice and will continue to lose such income in the future; the plaintiff has sufficiently alleged that her reputation has suffered injury as a result of alleged defamatory statements. Therefore, the plaintiff has sufficiently stated a claim of defamation upon which relief may be granted.
IV NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (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 . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).
Utopia argues that the plaintiff's negligent infliction of emotional distress claim is legally insufficient because it focuses upon conduct occurring during the course of the employment relationship, and not unreasonable conduct during the termination of her employment. The plaintiff responds that all of Utopia's alleged misconduct was part of the process of terminating the plaintiff.
Initially, the court notes that Utopia relies on Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), for the proposition that to sufficiently allege negligent infliction of emotional distress in the employment context, a plaintiff must base his or her claim on conduct occurring during his or her termination. In Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), however, the Supreme Court explained that Parsons does not stand for that proposition.
In Parsons, our Supreme Court stated that "negligent infliction of emotional distress in the employment context arises only where it is `based upon unreasonable conduct of the defendant in the termination process.' Morris v. Hartford Courant Co., [ 200 Conn. 676, 682, 513 A.2d 66 (1986)]. 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.' Madani v. Kendall Ford, Inc., 312 Or. 198, 204, 818 P.2d 930 (1991)." Parsons v. United Technologies Corp., supra, 243 Conn. 88-89.
In Perodeau, the Supreme Court discussed its decisions in Morris and Parsons and concluded that "read together, Morris and Parsons merely stand for the proposition that, in cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. The dispositive issue in each case was whether the defendant's conduct during the termination process was sufficiently wrongful that the `defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm' . . ."
"The defendants concede that neither Morris nor Parsons stands for the proposition that a termination is a prerequisite for an employment-related negligent infliction of emotional distress claim, but, relying in part on a number of cases that have imposed that limitation, they urge this court to adopt that bright line rule in this case." (Citations omitted.) Id., 751.
The court then discussed several cases cited by the defendants "for the proposition that a termination is a prerequisite for a claim for negligent infliction of emotional distress in an employment setting . . ." Id., 754. The court concluded, however, that in each of those cases, "the court had provided no independent policy reasons for its conclusions, instead relying exclusively on our decisions in Morris and Parsons. As we already have indicated, however, that is a misreading of those decisions." (Emphasis added.) Id., 754. Therefore, the court concluded that Morris and Parsons do not stand for the proposition that a termination is a prerequisite for a claim for negligent infliction of emotional distress in the employment context.
While the Supreme Court's discussion of Morris and Parsons in Perodeau does not quite render its statement in Parsons that "negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process;" Parsons, supra, 243 Conn. 88; mere dicta, it does clarify that in making that statement in Parsons, the court intended only to emphasize that when a plaintiff's negligent infliction of emotional distress claim is based only on conduct by an employer during the process of terminating that plaintiff, the plaintiff must show that such conduct was unreasonable.
Notwithstanding the Supreme Court's limitation of its holding in Parsons, in Perodeau, the court, for public policy reasons, formally adopted the bright-line rule that a termination is a prerequisite for a claim for negligent infliction of emotional distress. The court stated that "for . . . policy reasons, the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high;" Perodeau v. Hartford, supra, 259 Conn. 762; and concluded "that an individual municipal employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Id., 762-63; see also Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 554, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008) ("only if the manner of termination of an at will employee is unreasonable, outrageous or egregious will the tort of negligent infliction of emotional distress lie in such context"); O'Connor v. Board of Education, 90 Conn.App. 59, 69-70, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005) ("the [trial] court properly dismissed the plaintiff's claim for negligent infliction of emotional distress because the claim did not arise out of the termination of the plaintiff's employment"). Therefore, while the Supreme Court concluded that certain public policy considerations "outweigh the interests of persons subject to such behavior in the workplace in being compensated for their emotional injuries" during an ongoing employment relationship, employees could be compensated for emotional injuries involving a termination of employment because "the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees." Perodeau v. Hartford, supra, 259 Conn. 755-58.
"[A]ccording to Perodeau, a threshold issue that a court must determine in each case in which there is a claim for negligent infliction of emotional distress [in the employment context] is whether the plaintiff has alleged misconduct by the defendant during the termination process." Nargi v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 98 0419562 (February 4, 2004, Licari, J.). This is precisely the issue disputed by the parties in the present case, as Utopia argues that the plaintiff has not alleged conduct in the termination process, while the plaintiff argues that Utopia's alleged conduct during the employment relationship and after the date of termination was all part of Utopia's termination process. Although Perodeau does not address the issue of emotional distress alleged against a former employer post-termination, it is reasonable to conclude that the policy concerns expressed by the court fall away when the employee is no longer in a position to use the threat of a lawsuit to influence his or her employer and fellow employees. See Michaud v. Farmington Community Insurance Agency, Superior Court, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) ( 33 Conn. L. Rptr. 206); Daconto v. Housing Authority, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 4007847 (January 31, 2008, Ripley II, J.T.R.) (based on Perodeau, the court ignores allegations of conduct occurring during the plaintiff's employment and considers only allegations of conduct occurring during and after the termination process); Hoydic v. Genesco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 07 5003291 (April 10, 2008, Levin, J.) (granting the defendants' motion to strike because there were no facts alleging that the defendants "did anything to the plaintiff during, or after the termination process"); Nargi v. Yale University, supra, Superior Court, Docket No. CV 98 0419562 (granting the defendants' motion for summary judgment because "the conduct complained of occurred only during the course of his employment and not after his termination"). These decisions are consistent with Perodeau's conclusion, for public policy reasons, that a terminated employee can bring a claim for negligent infliction of emotional distress against his or her former employer for unreasonable conduct during the termination process. See Perodeau v. Hartford, supra, 259 Conn. 758. In keeping with these decision, there is no reason to think that those same public policy reasons, which do not prevent recovery for injuries stemming from the process of termination, i.e., the end of any ongoing employment relationship, would prevent recovery for injuries stemming from conduct occurring after termination, as such conduct would be even further removed from any ongoing employment relationship. Therefore, the court concludes that allegations of misconduct during and after the termination process are sufficient to support a claim for negligent infliction of emotional distress in the employment context.
Although count four contains allegations of misconduct by Utopia and its employees throughout the employment relationship with the plaintiff, much of the alleged misconduct by Utopia and its employees occurred in connection with the request by an executive vice president, at the time of the plaintiff's termination, that the plaintiff recreate certain paperwork pertaining to patients known as medical administration records. The plaintiff alleges that despite the fact that she had already turned in this paperwork, and brought that fact to the attention of her supervisor on more than one occasion, she was required to recreate the paperwork in order to receive her final paycheck. She also alleges that it was difficult to recreate this paperwork without access to patient records, and that Utopia and its employees refused to grant her access to those records.
The plaintiff further alleges that despite these demands made by Utopia and its employees both pre- and post-termination concerning this paperwork, the defendants continually frustrated the plaintiff's efforts to comply by denying her access to the patient records necessary to properly complete this task. Although her employment was terminated as of October 4, 2007, many of these allegations relate to conduct of the defendants which occurred after that date. For example, despite Utopia and its employees' refusal to allow the plaintiff a meaningful opportunity to review and correct her paperwork, Utopia is alleged to have reported the existence of inaccuracies in the plaintiff's paperwork to a state licensing board on November 6, 2007.
Because the plaintiff alleges that she was required to recreate the medical administration records at the time of her termination, and as a condition of receiving her final paycheck, and because much of the alleged misconduct by Utopia and its employees in count four involved the submission of those medical administration records and the plaintiff's attempt to review them and verify their accuracy, the court concludes that the plaintiff has sufficiently alleged that the unreasonable conduct that gave rise to the alleged emotional distress occurred during and after the termination process. Therefore, count four is legally sufficient to state a claim of negligent infliction of emotional distress.
V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . 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 . . ."
"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.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
The conduct must be "of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous." (Citation omitted; internal quotation marks omitted.) Stancuna v. Schaffer, supra, 122 Conn.App. 492.
The plaintiff argues in her memorandum in opposition to the motion that Utopia "deliberately undertook a systematic and all encompassing campaign to intimidate, punish and terminate the plaintiff for exercising her constitutional rights." She further argues that Utopia's alleged misconduct amounting to extreme and outrageous conduct includes: Removing records from patient charts and then asking the plaintiff for the missing records; reducing the plaintiff's case load and barring her from working at the customer's workplace where she observed the alleged standard of care violations; pre-dating a six-month evaluation so as to appear that the plaintiff received it six months prior to when she actually received it; requiring, as a condition of receipt of her last paycheck, that the plaintiff recreate paperwork she had already completed and submitted to her supervisor while withholding access to patient records necessary for completion of that paperwork; creating employee counseling reports and falsely stating that the plaintiff had refused to sign the reports, when, in fact, the plaintiff had never seen the reports; and making false and defamatory statements to the department of public health about the plaintiff's work for Utopia as a registered nurse.
Based on the foregoing allegations, a reasonable fact finder could conclude that the conduct of Utopia toward the plaintiff was extreme or outrageous. Therefore, the plaintiff has adequately set forth a claim of intentional infliction of emotional distress.
CONCLUSION
Accordingly, for all the foregoing reasons, Utopia's motion to strike is granted as to count one and denied as to counts two, three, four and five.