Opinion
CV166033956S
03-06-2017
Allison Morin v. Athena Health Care
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
Peter E. Wiese, J.
I
Procedural History
The plaintiff's four-count complaint alleges the following facts. The plaintiff was a Certified Nurse's Assistant (CNA) at the defendant's Countryside Manor facility in Bristol, Connecticut. In February 2015, the plaintiff witnessed Mr. Salza, the husband of a Countryside patient, enter and take articles from, the linen closet. Because this conduct violates Countryside's internal policies regarding sanitation and infection control protocols, the plaintiff approached Salza to explain the importance of mitigating the spread of infection to other patients. At that time, Salza responded by immediately threatening to get a gun and shoot everyone. The plaintiff subsequently filed a report with Countryside's management, notified Countryside's administrator, and filed a report with Bristol Police. Thereafter, Countryside's management discouraged her from testifying in the related court proceedings, to the extent that the plaintiff ultimately chose not to participate in said proceedings.
Mr. Salza, while identified in the complaint, is not named as a defendant to this action.
Approximately six months later, on July 4, 2015, the plaintiff confronted a second individual, Brenda Arroyo, regarding unauthorized entrance into the linen closet. The plaintiff explained the dangers of infection, and importance of infection management. The plaintiff then offered to retrieve any articles needed from the linen closet. Arroyo responded with a heated verbal confrontation toward the plaintiff, threatening to do everything she could to have the plaintiff fired. On July 6, 2015, the plaintiff received a phone call from her supervisor informing her that she had been suspended. On November 9, 2015, the plaintiff filed a complaint with Connecticut's Commission on Human Rights and Opportunities (CHRO). The plaintiff received her release of jurisdiction notice on April 14, 2016.
Ms. Arroyo, while identified in the complaint, is not named as a defendant to this action.
The plaintiff's complaint alleges a claim for common-law wrongful termination in the first count; statutory wrongful termination under General Statutes § § 31-51q and 31-51m in the second count; intentional infliction of emotional distress in the third count; and, negligent infliction of emotional distress in the fourth count.
General Statutes § 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, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages."
General Statutes § 31-51m, Connecticut's " whistleblower statute, " provides, in relevant part: " (b) No employer shall discharge, discipline or otherwise penalize any employee because (1) the employee . . . verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . . (c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred."
On August 11, 2016, the defendant filed its motion to strike all counts of the plaintiff's complaint, along with a memorandum in support. The plaintiff filed her objection and memorandum in opposition on September 19, 2016, arguing that the enumerated causes of action are sufficiently alleged. The parties argued their respective positions at short calendar on November 7, 2016.
II
DISCUSSION
" The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
A. First Count
The first count of the plaintiff's complaint alleges a claim of common-law wrongful termination, and that she was discriminated against in violation of her first amendment right. The defendant moves to strike the first count on the ground that it is precluded because the plaintiff has an available statutory remedy pursuant to General Statutes § 31-51q, which she alleges in the second count. The defendant also argues that the first and second counts rely upon the same underlying facts. In her memorandum in opposition, the plaintiff asserts her right to plead an alternative cause of action, because Connecticut's Supreme Court recognizes a common-law cause of action for wrongful termination, so long as it is derived from an important public policy. In this case, the plaintiff argues that the important public policy is the prevention of infection within the health care industry. The plaintiff also argues that she was terminated for reporting the threat of violence to the police and planning to testify about it.
Connecticut's Supreme Court has " recognized that it is a general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will." (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). The Supreme Court also " recognized a common-law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 159.
" A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis in original; internal quotation marks omitted.) Id., 159-60. See also Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985) (claim for common-law wrongful termination " adequately enforceable through statutory remedies did not warrant judicial recognition of an independent cause of action"); Campbell v. Plymouth, 74 Conn.App. 67, 81, 811 A.2d 243 (2002) (same).
General Statutes § 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." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778-79, 734 A.2d 112 (1999). Courts have held that a wrongful discharge claim premised on a violation of free speech is precluded by the alternative remedy provided by § 31-51q. See Horton v. Windham Community Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV-06-4006020-S, (March 29, 2007, Hurley, J.T.R.) (holding common-law wrongful discharge claim precluded by claim under General Statutes § 31-51q); King v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV-10-6015682-S, (June 20, 2011, Lager, J.) (concluding common-law wrongful termination claim and free speech claim under General Statutes § 31-51q shared same causal relationship and plaintiff could not simultaneously pursue common-law claim when statutory claim provides remedy).
In the present case, the first count of the plaintiff's complaint alleges that she was discriminated against for exercising her first amendment right to free speech and that this cause of action derives from the important public policy of infection management. The first count also alleges that the plaintiff was terminated for reporting the threat of violence to the police and that the defendant later prevented her from testifying in the court proceedings that followed. In the second count, the plaintiff alleges a statutory claim for wrongful termination in violation of General Statutes § 31-51q, which protects her exercise of free speech. Additionally, both counts rely upon the same set of facts.
Because § 31-51q is an adequate statutory remedy for the plaintiff's free speech claim, the first count must be stricken to the extent that it is premised on speech related to infection management. Nevertheless, the first count of the plaintiff's complaint also alleges that she was wrongfully terminated because she filed a police report and was prohibited from testifying about the matter by the defendant. These two allegations possibly involve General Statutes § 31-51m as opposed to § 31-51q. General Statutes § 31-51m(a)(1) and (2), in relevant part, bars terminating an employee for reporting " a violation or a suspected violation of any state or federal law" and bars termination when " the employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or court action." The defendant has not briefed the extent to which these two claims are premised on free speech nor has it moved to strike the first count on the ground that it is precluded by General Statutes § 31-51m. Therefore the motion to strike is granted only to the extent that it is premised upon a violation of her right to free speech related to infection management.
B. Second Count
In the second count, the plaintiff alleges a statutory wrongful termination claim in violation of General Statutes § § 31-51q and 31-51m. The defendant moves to strike the second count, arguing: (1) that the complaint fails to allege a legally sufficient claim under § 31-51q; (2) the claim under § 31-51m, Connecticut's " whistleblower statute" is untimely because the claim was filed more than ninety days after the plaintiff's date of discharge; and (3) the complaint fails to allege a prima facie case under § 31-51m. The plaintiff argues that her claim is timely given that any available administrative remedy would be inadequate as such remedy would not provide an appealable final decision. Along these lines, the plaintiff argues that the complaint filed with the CHRO could have provided meaningful relief, and therefore, her claim was timely filed within ninety days of obtaining her release of jurisdiction notice. The plaintiff further argues that she has sufficiently alleged facts to sustain a cause of action and has put the defendant on notice as to her claims under General Statutes § 31-51.
General Statutes § 31-51m Claim
The court will first address whether the plaintiff's claim under General Statutes § 31-51m, Connecticut's " whistleblower statute, " is time barred. Connecticut's " whistleblower statute" allows " [a]ny employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later . . ." General Statues § 31-51m(c). A whistleblower claim pursuant to General Statutes § 31-51m was not previously available at common law; therefore " [w]here, however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived." (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). Because this issue implicates the court's subject matter jurisdiction, the court will treat this portion of the motion to strike as a motion to dismiss.
On occasion, our appellate courts have stated that in the context of statutes that create rights of action that are unavailable at common law, it is proper for parties to raise a statute of limitations issue in a motion to strike. See, e.g., Greco v. United Technologies Corp., 277 Conn. 337, 344, 890 A.2d 1269 (2006) (" It is undisputed that the defendants properly raised the limitation period of § 52-555 in a motion to strike"); Forbes v. Ballaro, 31 Conn.App. 235, 624 A.2d 389 (1993) (citing this circumstance as one of " two limited circumstances" in which it would " allow the use of a motion to strike"). These statements notwithstanding, it is an issue of subject matter jurisdiction, as it " is a substantive and jurisdictional prerequisite which may be raised at any time, even by the court sua sponte, and may not be waived." (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987); see also Federal Deposit Ins. Co. v. Hillcrest Associates, 233 Conn. 153, 171, 659 A.2d 138 (1995) and cases cited therein. Because an issue of subject matter jurisdiction may be raised at any time, it can be raised in a motion to strike, but the court will apply the procedural principles applicable to a motion to dismiss.
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a: cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
In order for an administrative proceeding to toll the statute of limitations within General Statutes § 31-51m(c), the plaintiff must demonstrate that the administrative remedy pursued is able to provide " 'meaningful relief, ' otherwise litigation is merely postponed." (Internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 82, 811 A.2d 243 (2002). For the purposes of § 31-51m, " meaningful relief" was held to be the remedies provided by the statute: " reinstatement of . . . previous job, payment of back wages and reestablishment of employee benefits, as well as the possibility of court costs and reasonable attorneys fees." (Internal quotation marks omitted.) Id.
A release from jurisdiction notice from an administrative agency does not eliminate the requirement that the agency proceeding must provide meaningful relief. Gwozdz v. Genesis Physician Services, United States District Court, Docket No. 13CV317 (AWT), (D.Conn. March 11, 2014); Sowell v. DiCara, Superior Court, judicial district of Waterbury, Docket No. CV-12-6016087-S, (May 22, 2013, Roche, J.); Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-03-4007847-S, (January 31, 2008, Ripley, J.T.R.) . For claims within its jurisdiction, the CHRO can provide similar meaningful relief and remedies to those sought under General Statutes § 31-51m. See id. The CHRO, upon finding a discriminatory employment practice, may order, inter alia, the hiring or reinstatement of any individual, with or without back pay, restoration to a labor organization, damages, and attorneys fees. See General Statutes § 46a-86(b), (c). The CHRO award of back pay may also include pre- and postjudgment interest. Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 143-44, 827 A.2d 659 (2003).
There is no appellate authority addressing whether a claim to the CHRO on matters outside of its jurisdiction would toll the statute of limitations. Nevertheless, " where a plaintiff brings a § 31-51m whistleblower claim in combination with a discriminatory employment practice claim that is within the jurisdiction of the CHRO, the limitation period under § 31-51m is tolled during the pendency of the CHRO proceeding because the plaintiff could obtain 'meaningful relief' from the CHRO; this is because the fact that the plaintiff could obtain 'meaningful relief' from the CHRO makes the CHRO's final determination a 'final administrative determination.' (Internal quotation marks omitted.) Gwozdz v. Genesis Physician Services, supra, United States District Court, Docket No. 13CV317 (AWT). See also Sowell v. DiCara, supra, Superior Court, Docket No. CV-12-6016087-S (administrative remedy sought from CHRO for disability discrimination claim intertwined with whistleblower claim could provide meaningful relief for § 31-51m complaint through award of back pay); Daconto v. Trumbull Housing Authority, supra, Superior Court, Docket No. CV-03-4007847-S (administrative remedy sought from CHRO for, inter alia, wrongful termination and harassment claims intertwined with claim for violation of § 31-51m could provide meaningful relief through award of reinstatement).
In the present case, the plaintiff's complaint does not explicitly state what type of claim was brought before the CHRO in her attempt to exhaust administrative remedies. The complaint alleges: " On or about 11/9/15 Mrs. Morin filed a complaint with the Connecticut Commission on Human Rights and Opportunities." Additionally, the plaintiff has attached the CHRO's release of jurisdiction letter to her complaint. This form letter refers to the plaintiff's " discrimination" claim. Read in the light most favorable to the plaintiff, it can be inferred from the complaint and the release letter that the plaintiff brought a discrimination claim before the CHRO that was within its jurisdiction. At oral argument, the defendant stated that it had received a letter from the CHRO " dismissing" the plaintiff's claim, but no such letter has been submitted in support of the defendant's motion. Based upon the existing record, the court cannot conclude that the plaintiff did not toll the statute of limitations by bringing her claim before the CHRO. Accordingly, the motion to dismiss is denied.
General Statutes § 31-51m Claim
The defendant also argues that the plaintiff fails to allege a prima facie case under General Statutes § 31-51m. The plaintiff counters that she has sufficiently alleged facts to sustain a cause of action, and has put the defendant on notice under General Statutes § 31-51m.
Based upon the court's reading of the plaintiff's complaint, along with a close examination of the statute, the court concludes that a prima facie case pursuant to § 31-51m is sufficiently alleged. Put simply, the plaintiff's complaint alleges that the defendant terminated her for filing a police report and prevented and/or obstructed her from testifying against Mr. Salza in court proceedings. General Statutes § 31-51m(a)(1) and (2), in relevant part, bars terminating an employee for reporting " a violation or a suspected violation of any state or federal law" and bars termination when " the employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or court action." Accordingly, the motion to strike is denied as to this ground.
General Statutes § 31-51q Claim
The second count simultaneously alleges a discrimination claim under General Statutes § 31-51q, which provides employees with a statutory remedy after termination resulting from exercise of their first amendment rights. The defendant argues that the plaintiff's complaint fails to allege that exercise of her first amendment rights did not " substantially or materially interfere with the plaintiff's job performance or the working relationship with the plaintiff's employer"; a necessary component to a claim under the statute. In her memorandum in opposition, the plaintiff argues that her claim under § 31-51q is sufficiently pleaded, as such an allegation is inferred.
" In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [he] was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that [he] was fired 'on account of' [his] exercise of such rights; and (3) that [his] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [his] bona fide job performance or with [his] working relationship with [his] employer." (Internal quotation marks omitted.) Sierra v. State, Superior Court, judicial district of Hartford, Docket No. CV-00-0803588-S, (June 4, 2001, Beach, J.) (29 Conn.L.Rptr. 734, 736), accord Cassidy v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. No. CV-10-6010807-S, (July 27, 2011, Domnarski, J.).
In the present case, the complaint does not allege facts that the plaintiff's exercise of protected speech did not substantially or materially interfere with her job performance or with her working relationship with her employer. Such facts are required to support a claim under General Statutes § 31-51q. Accordingly, for all of the reasons stated, the motion to strike the second count must be denied as to the plaintiff's claim under General Statutes § 31-51m, and granted as to the plaintiff's claim under General Statutes § 31-51q.
C. Third Count
In the third count of her complaint, the plaintiff alleges that the defendant intentionally inflicted emotional distress when it terminated her for reporting a crime, and, thereafter, prevented her from testifying. In its motion to strike, the defendant argues that the conduct alleged in the plaintiff's complaint does not meet the high burden of extreme and outrageous conduct, and that the complaint merely sets forth unsubstantiated conclusions of law. In her memorandum in opposition, the plaintiff generally repeats the allegations in the third count of her complaint.
" 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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
" 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.) Id., 443.
" 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.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568-69, 922 A.2d 280 (2002), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). " [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. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., 569. " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
In the present case, the plaintiff alleges in the third count that the defendant fired her for filing a police report and for wanting to testify against Mr. Salza because he threatened to return with a gun and shoot everyone. Given the seriousness of Mr. Salza's alleged threat, the defendant's alleged reasons for termination could amount to extreme and outrageous conduct. Accordingly, construing the complaint in the manner most favorable to sustaining its legal sufficiency, the plaintiff has alleged a claim of intentional infliction of emotional distress, and the motion to strike must be denied as to the third count.
D. Fourth Count
In the fourth count, the plaintiff alleges that the defendant negligently inflicted emotional distress by terminating her employment for reporting a crime, that preventing her from testifying in the judicial process as a witness would foreseeably cause emotional distress, and that terminating the plaintiff for upholding company policy would also foreseeably cause severe emotional distress. In its motion to strike, the defendant argues that the plaintiff's negligent infliction of emotional distress claim is precluded as a matter of law, as Connecticut courts recognize such a claim in the employment context only with respect to conduct occurring during the termination of employment. The defendant further argues that the plaintiff's negligent infliction of emotional distress claim, as alleged, is insufficient. In her opposition, the plaintiff recites the counts of her complaint.
" [I]n 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." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, supra, 101 Conn.App. 571. In the context of claims against individual employees, the Supreme Court in Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002) stated that " negligent infliction of emotional distress in the employment context arises only when it is based upon unreasonable conduct of the defendant in the termination process." (Internal quotation marks omitted.) Individuals " 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. " Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means ending, not the conduct which causes the ending." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 772, 54 A.3d 221 (2012). The Appellate Court has applied these principles where the claim for negligent infliction of emotional distress was against the employing institution. Tracy v. New Milford Public Schools, supra, 101 Conn.App. 570-73; Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 597-98, 711 A.2d 747 (1998), citing Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
" The [ Perodeau ] court stated that employees should expect that some experiences in the employment relationship will be quite stressful, and that business decisions ought not be made on the basis of fear of being sued. Where the employment relation is ongoing, the chilling effect is significant. Where the relationship is in the process of termination, however, the threat of a lawsuit is not likely improperly to influence the conduct of others. The court wanted to avoid a torrent of unjustified actions, and recognized that few jurisdictions allow unfettered actions for negligent infliction of emotional distress in the employment context." Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV-01-0806951S, (September 25, 2002, Beach, J.) (33 Conn.L.Rptr. 206, 207-08).
Perodeau 's holding does not extend to claims of intentional infliction of emotional distress. " [B]ecause recovery for intentional infliction of emotional distress, unlike that for negligent infliction of emotional distress, requires an intent to cause injury . . . the safety interest of employees in being protected from intentional infliction of emotional distress is greater than the safety interest of employees in being protected from negligent infliction of emotional distress . . . Consequently, the policy concerns expressed by the Perodeau court are not readily applicable to claims of intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 757, 829 A.2d 68 (2003).
In the present case, the plaintiff's complaint does not allege facts supporting conduct occurring in the termination of her employment. The conduct alleged here--her speech involving infection management, her filing of the police report, and her prohibition from testifying--is the conduct that allegedly caused the termination but does not pertain to the termination event itself. For this reason, the motion to strike must be granted as to the fourth count.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted as to counts one, in part, two, in part, and four. The defendant's motion to strike is denied as to count three.
SO ORDERED.