Opinion
No. CV 05-4018766-S
February 21, 2007
MOTION TO STRIKE #104
I Procedural History
On November 18, 2005, the plaintiff, Cynthia Milne, filed a seven-count complaint against her former employer, the defendant, Filene's, Inc., alleging violations of General Statutes § 46a-60, wrongful termination, breach of implied contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, defamation, and false light invasion of privacy. In her complaint, the plaintiff alleges that the defendant harassed her about her physical disability, falsely accused her of workplace theft, and made a false statement to the department of labor that she is a thief.
According to the defendant's answer, its proper name is Federated Retail Holdings, Inc. d/b/a Filene's.
On March 6, 2006, the defendant filed a motion to strike counts three (breach of implied contract), five (intentional infliction of emotional distress), six (defamation), and seven (false light invasion of privacy) of the plaintiff's complaint along with a supporting memorandum. The defendant has moved to strike count three of the plaintiff's complaint on the ground that any implied contract between it and the plaintiff did not limit its right to terminate the plaintiff's employment at any time, with or without cause. The defendant has moved to strike count five of the plaintiff's complaint on the ground that the conduct the plaintiff alleges in her complaint was not extreme and outrageous. And the defendant has moved to strike counts six and seven of the plaintiff's complaint on the ground that it is absolutely immune from liability because it gave the relevant statements as part of a department of labor investigation. On September 6, 2006, the plaintiff filed a memorandum in opposition. The matter was heard at short calendar on October 30, 2006.
II
CT Page 3219
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000).A COUNT THREE (BREACH OF IMPLIED CONTRACT)
In count three of her complaint, the plaintiff alleges that the defendant, in not objecting to her working only six hours per day as a result of a doctor's orders, undertook a commitment to accept her employment limitations, and thereafter breached this implied contract by wilfully and maliciously harassing her and accusing her of workplace theft. The defendant has moved to strike count three of the plaintiff's complaint on the ground that any implied contract between it and the plaintiff did not limit its right to terminate the plaintiff's employment at any time, with or without cause.
In order to state a cause of action for breach of implied contract, the plaintiff must plead that she and the defendant entered into a contract, that she performed her part of the contract, that the defendant breached its duties as supplied by the contract, and that as a result, she suffered damages. See Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004) ("the elements for a common law breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages"). (Internal quotation marks omitted.)
The defendant has not attacked the plaintiff's complaint for failing to plead facts sufficient to support the elements of contract formation, the plaintiff's own performance, or damages. Instead, in its motion to strike and its memorandum of law, the defendant focuses exclusively on whether it has breached the terms of the alleged contract. The defendant has, however, mischaracterized the terms of the contract that the plaintiff alleges were breached. The defendant argues that it can terminate the plaintiff for no reason or any reason despite the implied contract allegedly existing between them. That the defendant cannot terminate the plaintiff without cause is not, however, the basis of the plaintiff's breach of implied contract claim. While it is difficult to extract the basis the plaintiff's breach of implied contract claim from count three of her complaint, the crux of her claim is NOT that the defendant terminated her from her employment in breach of an implied contract not to do so, but that the defendant acted contrary to its representations that it would accept her employment limitations by harassing her about her limitations and accusing her of theft in breach of such implied contract.
The defendant has attacked count three of the plaintiff's complaint improperly. The defendant argues that the plaintiff fails to allege facts sufficient to support the existence of a duty not to terminate her without just cause. At no point in count three, however, does the plaintiff allege the existence of any such contract term. She has not alleged in count three of her complaint that she was discharged without cause. She alleges only that she was harassed about her physical limitations and accused of workplace theft in violation of an implied commitment made by the defendant to respect such limitations.
The defendant has moved to strike count three of the plaintiff's claim on the ground that the defendant never agreed not to terminate her without just cause. The plaintiff's breach of implied contract claim is, however, not based on her termination. Rather, it is based on alleged harassment about a disability and accusations of work place theft. Therefore, the defendant's motion to strike count three of the plaintiff's complaint is denied.
B COUNT FIVE (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)
In count five of her complaint, the plaintiff alleges that the defendant refused to allow her time off to see her doctor and falsely accused her of theft, and as a result, she suffered severe emotional distress. The defendant has moved to strike count five of the plaintiff's complaint on the ground that the conduct which the plaintiff has alleged does not amount to extreme and outrageous conduct necessary to support a cause of action for intentional infliction of emotional distress.
"[F]or 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." (Emphasis added; internal quotation marks omitted.) Bombalicki v. Pastore, 71 Conn.App. 835, 839-40, 804 A.2d 856 (2002).
"Liability [for intentional infliction of emotional distress] 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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"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." (Emphasis added; internal quotation marks omitted.) Bombalicki v. Pastore, supra, 71 Conn.App. 839-40.
The conduct that the plaintiff alleges the defendant committed in count five of her complaint includes essentially two things: one, that the defendant did not give the plaintiff time off to attend a doctor's appointment due to a personnel shortage, and two, that the defendant called her to human resources to answer questions regarding suspected workplace theft. These claims do not amount to conduct that is 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."
Other courts have rejected claims of emotional distress in wrongful discharge actions in which the defendant's alleged conduct was more specific and egregious than in this case. The following cases are illustrative. In Dollard v. Board of Education, 63 Conn.App. 550, 777 A.2d 714 (2001), the Appellate Court ruled against the plaintiff who alleged that the defendants hypercritically scrutinized every aspect of her work and personal life, publicly admonished her, and organized a plan to force her to resign. In Appleton v. Board of Education, supra, 254 Conn. 211, the Supreme Court did not find extreme or outrageous conduct where the defendant subjected the plaintiff to condescending comments and psychiatric evaluations, had the plaintiff escorted off the defendant's premises by police and forced the plaintiff to resign. In Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the Appellate Court found that it was insufficient that the plaintiff, a "devoted mother and employee, and honest person who had never been accused of a crime," was confronted by the defendants, was accused of embezzling company funds, and was requested to sign documents that purportedly were resignation and release forms, and that a coworker resigned after observing the way in which the plaintiff was treated. And in Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), the Supreme Court found that a defendant who made "repeated demands and inquiries into [the plaintiff's] personal beliefs and attitudes," and harassed him into signing false grant documents did not conduct itself in a manner that was beyond the bounds of socially tolerable behavior. In so finding, the court stated that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Id.
The facts as alleged in count five of the plaintiff's complaint are insufficient to support a cause of action for intentional infliction of emotional distress as no reasonable person could believe that the conduct of the defendant was extreme and outrageous. Employers make personnel decisions every day and some of them inconvenience employees. In this case, the defendant made a decision not to allow the plaintiff time off to see a doctor on a particular day because of a personnel shortage. While this decision may have been inconsiderate of the plaintiff's medical needs, it was not outrageous.
As for the defendant's investigation into suspected workplace theft, an employer has a right to conduct an investigation when it believes that an employee is engaged in unlawful conduct in the workplace. This is not to say, however, that the manner in which the investigation into workplace theft is conducted could not be extreme and outrageous. In this case, the plaintiff has only alleged that the defendant conducted this investigation by having the plaintiff come to the human resources office to answer questions about possible workplace theft. The plaintiff has plead no facts indicating that the employer's investigation was in any way out of the ordinary or unreasonable under the circumstances.
The plaintiff has failed to plead facts sufficient to establish that the defendant's conduct was extreme and outrageous. Therefore, the defendant's motion to strike count five of the plaintiff's complaint is granted.
C COUNTS SIX AND SEVEN (DEFAMATION AND FALSE LIGHT INVASION OF PRIVACY)
In count six of her complaint, the plaintiff alleges that the defendant included a false statement in her employment record and to the department of labor that she had committed theft in the course of her employment, causing damage to her reputation. In count seven of her complaint, the plaintiff alleges that this wilful and malicious publication painted a false picture of her as a thief, causing her humiliation and embarrassment. The defendant has moved to strike counts six and seven of the plaintiff's complaint on the ground that it is absolutely immune from liability because it gave the relevant statements as part of a department of labor investigation.
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. See QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001); W. Prosser W. Keeton, Torts (5th Ed) § 113 (1984). The plaintiff has satisfactorily pleaded each of these elements. Specifically, in count six of her complaint, the plaintiff pleads that the defendant published a statement to the department of labor, that this statement identified the plaintiff by name, that the statement was in fact false and made the plaintiff out to be a thief, and that this conduct by the defendant caused damage to the plaintiff's reputation.
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." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001), quoting Restatement (Second) of Torts § 559 (1977).
To establish a prima facie case of false light invasion of privacy, the plaintiff must show "(a) the false light in which [she] was placed would be highly offensive to a reasonable person, and (b) the [defendant] had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed." Restatement (Second) of Torts § 652E (1977); see Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 438 A.2d 1317 (1982). The plaintiff has satisfactorily pleaded each of these elements. Specifically, in count seven of her complaint, the plaintiff pleads that the defendant placed the plaintiff in a false light, that the defendant's conduct was "wanton, wilful, and malicious," that the plaintiff suffered humiliation and embarrassment as a result of the defendant's conduct, and that publication of this false information would be highly offensive to a person of ordinary sensibilities.
Although the plaintiff's complaint contains allegations sufficient to support a cause of action for both defamation and invasion of privacy, the defendant argues that any statements it made in writing to the department of labor concerning the plaintiff are absolutely privileged. "The effect of an absolute privilege in a defamation action . . . is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously . . ." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). "[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition." (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 566, 606 A.2d 693 (1992).
"The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not . . . It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character." (Internal quotation marks omitted.) Id., 566. In addition, the court previously has delineated several factors that assist in determining whether a proceeding is quasi-judicial in nature. These factors include whether the body has the power to: "(1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties." Id., 567.
In Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986), the court determined that the employment security division of the labor department acts in a quasi-judicial capacity when it handles claims for unemployment compensation and that the statements made by an employer during this process concerning its grounds for dismissal are absolutely privileged and thus cannot serve as a basis for a suit for defamation. In so holding, the court stated that "the dictates of public policy require that an employer involved in an unemployment compensation proceeding be able to state candidly his or her reasons for terminating an employee as long as the employer's statement bears a reasonable relation to the purpose of the proceeding. Otherwise employers might be reluctant to respond to the employment security division at all or their reply might be colored by fear of subsequent litigation or liability." Id., 250-51. It further stated that "[o]fficials of the employment security division have subpoena powers and undoubtedly could have compelled the defendant to attend and testify at the plaintiff's hearing . . . There is no doubt that her testimony under those circumstances would have been absolutely privileged. It seems incongruous then to accord less than an absolute privilege to her statement which was elicited by the administrative agency for use at the same hearing. The absolute privilege would serve the same purpose in both instances." (Citation omitted.) Id., 251. This same rationale applies equally to the plaintiff's claim of invasion of privacy. See Alexandru v. Dowd, 79 Conn.App. 434, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003) ("[w]e conclude that the court properly determined that the defendant was entitled to an absolute privilege . . . and, thus, the court properly granted the defendant's motion for summary judgment as to the plaintiff's claims alleging libel, slander, invasion of privacy, and intentional infliction of emotional distress"). (Emphasis added.)
Any statements made by the defendant to the department of labor concerning the plaintiff's termination, if made at the request of the department of labor and directly related to its handling of the plaintiff's claim for unemployment compensation, are absolutely privileged and cannot serve as the basis for the plaintiff's suit for defamation or invasion of privacy. It would be inappropriate, however, for the court to strike the plaintiff's claim for relief in counts six and seven of her complaint at this time. While the statements about the plaintiff that the defendant allegedly made to the department of labor may well be privileged, it is impossible to tell this from the plaintiff's complaint alone. The court is bound by the facts as alleged in the plaintiff's complaint. See Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004) ("[w]here the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied"). The facts in the plaintiff's complaint say nothing about the circumstances surrounding or the reasons for the defendant's statements to the department of labor. It is therefore impossible for this court, based only on the facts in count six and seven of the plaintiff's complaint, to find that the defendant is absolutely immune. Therefore, the defendant's motion to strike counts six and seven of the plaintiff's complaint is denied.
III CONCLUSION
For the grounds stated herein, the defendant's motion to strike the plaintiff's complaint is granted as to count five and denied as to counts three, six, and seven.