Opinion
No. CV05 4003197-S
May 12, 2006
MEMORANDUM OF DECISION
FACTS
On May 24, 2005, the plaintiff, Sister Ann Noonan, filed a four-count complaint against the defendants, Miller Memorial Community, Inc. (Miller Memorial), and James Batten. Count one sounds in age discrimination, count two in sex discrimination, count three in negligent infliction of emotional distress and count four in intentional infliction of emotional distress. The plaintiff alleges the following:
Miller Memorial is a non-stock corporation. Miller Memorial hired the plaintiff in 1976 as its administrator. Batten is the president of Miller Memorial. That in May 2003, her title was changed to Vice President, Services and Director of Nursing, though this was not a promotion. At around the same time, Brandon Munson, a thirty-two-year-old white male, replaced the plaintiff as administrator. In August 2003, the plaintiff served as acting administrator while Munson was on his honeymoon. During this time, she learned of several incidents of residents claiming they were missing money or property. The plaintiff instituted investigations in compliance with Miller Memorial's policies. The investigations were ongoing when Munson returned from his honeymoon. That on August 26, 2003, Batten gave the plaintiff without any warning, a prepared letter of severe reprimand for failing to treat the incidents as theft and for failing to call the police. The plaintiff, however, alleges that she had not received a report of the internal investigation concluding that the incidents were thefts. The plaintiff alleges that the reprimand was unreasonable. Miller Memorial ceased to recognize the plaintiff's credentials as a licensed nursing home administrator and would not call upon her again to function as acting administrator. The plaintiff was also prohibited from further using Miller Memorial to pursue continuing education credits for license renewal and would no longer have license renewal fees paid by Miller Memorial. In addition, the plaintiff's salary would be decreased. The plaintiff filed a grievance with Miller Memorial, which Batten denied.
The plaintiff further alleges that between October 6, 2003, and October 20, 2003, when she was away on vacation, the defendants searched her office to find a key. During the search, a small, unloaded, antique pistol was found in a box. The plaintiff alleges that she took the pistol from a prior resident of Miller Memorial years before and that the resident told her the pistol was inoperable. The resident later died and the plaintiff forgot about the pistol.
The plaintiff also alleges that subsequent to finding the gun, the defendants offered her the option of a significant demotion or termination, that she rejected the demotion, was terminated on or about November 18, 2003 and that she was replaced as director of nursing by a younger, less qualified and less experienced person. Prior to August 26, 2003, the plaintiff had never been reprimanded, disciplined or received a negative evaluation. Further, the plaintiff was performing the essential functions of her position when she was fired. The plaintiff alleges that Miller Memorial's actions constitute discriminatory practice with malice or with reckless indifference to the plaintiff's rights and that she was discriminated against because of her age and sex in violation of General Statutes § 46a-60 et seq.
On or about January 20, 2004, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). The plaintiff requested and received a release from the CHRO on or about February 22, 2005. The plaintiff alleges that Miller Memorial's actions caused and continues to cause the plaintiff to suffer damages in the form of lost wages, benefits and other attendant rights, privileges and conditions of employment and damage to reputation, as well as consequential damages in the form of emotional distress.
The plaintiff also alleges that both defendants acted in an unreasonable manner regarding its decision to demote and to terminate her and that both defendants should have known that emotional harm would result. The plaintiff finally alleges that both defendants' actions were extreme and outrageous and both defendants intended, or acted recklessly or acted in a deliberate disregard of the high degree of probability that emotional distress to the plaintiff would follow.
On August 5, 2005, the defendants filed a motion to strike accompanied by a memorandum of law. On November 8, 2005, the plaintiff filed a memorandum of law in opposition. On March 27, 2006, the matter was heard on short calendar. On March 29, 2006, the plaintiff filed a supplemental memorandum of law in opposition and on April 5, 2006, the defendants filed a response to the plaintiff's supplemental memorandum of law.
DISCUSSION I COUNTS ONE AND TWO AGAINST BATTEN-SUBJECT MATTER JURISDICTION AND IDENTITY OF INTEREST EXCEPTION
At short calendar and in his supplemental memorandum of law, Batten argues that the plaintiff failed to name him as a respondent in her complaint to the CHRO and, therefore, the plaintiff has not exhausted her administrative remedies against him. Batten also argues that the "identity of interest" exception to failing to name an individual in a CHRO complaint only applies where the plaintiff files the CHRO complaint without the assistance of an attorney. Batten argues that an attorney did assist the plaintiff in filing her complaint with the CHRO and the exception does not apply and therefore, cannot bring a civil action against him.
The plaintiff argues in her memorandum that the identity of interest exception does apply and that she satisfies the four criteria of the exception. She argues, therefore, that she did not fail to exhaust her administrative remedies and she can bring a civil action against Batten.
The defendants' motion to strike implicates subject matter jurisdiction and, therefore, the court will apply the motion to dismiss standard to this issue. "When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The exhaustion of administrative remedies doctrine implicates subject matter jurisdiction. Flanagan v. Commission on Human Rights Opp., 54 Conn.App. 89, 91 (1999). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545 (2003). Although the defendant's motion to strike is the improper vehicle to assert lack of jurisdiction over the subject matter of this case, the court is nonetheless required to address the issue of subject matter jurisdiction as it is necessarily implicated by the defendant's motion. Westbrook v. Savin Rock Condominiums Assoc., Inc., 50 Conn.App. 236, 242 (1998) ("Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction."); Manifold v. Ragaglia, 94 Conn.App. 103, 117 (2006) ("[T]he subject matter jurisdiction requirement . . . may be raised by . . . the court sua sponte, at any stage of the proceedings . . .").
Batten argues that the identity of interest exception does not apply because the plaintiff was represented by counsel at the time she filed her complaint with the CHRO. In Malasky v. Metal Products Corporation, 44 Conn.App. 446, cert. denied, 241 Conn. 906 (1997), the court concluded that the plaintiff had exhausted her administrative remedies with the CHRO despite her failure to name the individual defendant as a complainant in her CHRO complaint. The court found that the plaintiff satisfied the four criteria of the identity of interest exception but also expressly considered the fact that the plaintiff was not represented by counsel when she filed her complaint with the CHRO. Id., 455-56. In Duncan v. Junior Achievement, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0335878 (October 15, 1999, Skolnick, J.) ( 28 Conn. L. Rptr. 269), the court stated that "[a]s a threshold matter, [the identity of interest] exception only applies where [the] plaintiff is not represented by counsel." (Internal quotation marks omitted.) Id. The court determined that the identity of interest exception did apply because the plaintiff alleged in his complaint that he was not represented by counsel at the time he filed his complaint with the CHRO. Id. In Sedlak v. Bic Corp. Lotto, Superior Court, judicial district of New Haven, Docket No. CV 92 0328128 (August 26, 1993, Zoarski, J.), the court explained the reasoning behind applying the identity of interest exception to plaintiffs who were not represented by counsel when filing their complaint with the CHRO. The court stated that "[b]ecause [employment discrimination] charges are generally filed by parties not versed in the vagaries of . . . jurisdictional and pleading requirements, we have taken a flexible stance in interpreting [these requirements] so as not to frustrate [the purpose of § 46a-60] . . ." (Internal quotation marks omitted.) Id.
In the present case, the identity of interest exception does not apply. The plaintiff alleges in her civil complaint: "[T]he plaintiff filed a complaint of discrimination with the [CHRO], alleging discrimination . . . The plaintiff requested and received a release of jurisdiction from the [CHRO] . . ." Unlike the plaintiff in Duncan, the plaintiff in the present case does not allege that she was not represented by counsel when she filed her complaint with the CHRO moreover, the court cannot simply infer from the allegations the fact that the plaintiff was not represented. Because the plaintiff has not met the threshold requirement of the exception, her failure to name Batten as a complainant to the CHRO thus cannot be excepted and equates to a failure to exhaust her administrative remedies against Batten. Therefore, counts one and two as to Batten are dismissed because the court does not have subject matter jurisdiction.
The defendants also argue that the plaintiff's claim against Batten should be dismissed because there is no individual liability for discrimination under the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq., pursuant to Perodeau v. City of Hartford, 259 Conn. 729, 743 (2002), and because the plaintiff does not specifically claim that she brings the first and second counts against Batten. The court does not need to consider these arguments given the resolution of the issue.
II COUNT THREE IN NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
"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). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual finding by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotations omitted.) Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
The defendants file their motion to strike on the ground that the plaintiff does not allege unreasonable conduct in the termination process. The defendants argue they are not liable because they searched the plaintiff's desk during an ongoing employment relationship, not during the termination process. The defendants argue further that there are no allegations addressing the day the plaintiff was actually terminated and that the mere termination of employment is not enough to sustain a claim for emotional distress. Finally, the defendants argue that the plaintiff's allegations are deficient of any facts demonstrating that the termination process would have caused more than the normal upset associated with any involuntary termination.
The plaintiff counters that considering all the allegations of the complaint, including the plaintiff's age, length of time she had worked with Miller Memorial and the fact that she always performed her job satisfactorily without ever receiving a reprimand, the foregoing conduct by the defendants in the termination process from the point of August to November was clearly unreasonable and created a risk of emotional distress, which, in fact, did occur.
To bring a claim of negligent infliction of emotional distress in the employment context, the plaintiff must allege 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.) Perodeau v. Harford, 259 Conn. 729, 749 (2002). "[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in [t]he termination process . . . Accordingly . . . the mere termination of employment, even where 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." (Citation omitted; internal quotation marks omitted.) Id., 750. "The dispositive issue . . . [is] 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." (Emphasis in original; internal quotation marks omitted.) Id., 751.
The plaintiff makes passing reference to Cameron v. St. Francis Hospital and Medical Center, 56 F.Sup.2d 235 (D.Conn. 1999), for the proposition that she sufficiently alleged a several month long termination process starting in August with the letter of reprimand. Upon closer examination, Cameron undermines the plaintiff's position. In Cameron, the plaintiff alleged that he was notified in December of 1996 of his pending termination but was not actually terminated until September 30, 1997. Id., 241. The plaintiff further alleged that during this period he was treated in a manner that was humiliating, embarrassing and inconsiderate. Id. The court concluded that the allegations were legally sufficient to survive a motion to strike.
In the present case, it is implied from the allegations that the plaintiff first had notice of the possibility of termination at the end of October 2003, when she was given the choice between demotion or termination. The plaintiff's allegations of conduct occurring before that time, therefore, cannot support the plaintiff's claim. Further, unlike the plaintiff in Cameron, the plaintiff in the present case does not allege any conduct on the part of the defendants during the approximately twenty days before she was actually terminated.
The plaintiff's primary reliance on Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, cert. granted, 273 Conn. 914 (2005) (certification limited to issue of "[w]hether the Appellate Court applied the correct legal standard to the negligent infliction of emotional distress claim"), to support her claim is misplaced. In Olson, the plaintiff, a nurse, alleged that during a disciplinary hearing she was falsely accused of intentionally falsifying a student's medical record, intentionally violating standard nursing practices and attempting to conceal her error. Id., 3. Most importantly, the plaintiff further alleged that in the course of her termination, just a few days after the disciplinary hearing, the defendant "unreasonably accused the plaintiff of falsifying records, egregious misconduct and deliberate indifference to the health of students under her care" when the defendant knew or should have known that the plaintiff's medical condition caused the errors. Id. The court concluded that the plaintiff's allegations were sufficient.
Unlike the plaintiff in Olson, the plaintiff in the present case does not specifically allege that the letter of reprimand was part of the termination process. Also unlike the plaintiff in Olson, the plaintiff in the present case does not allege that any unreasonable conduct took place on or after the date she was notified that she might be terminated. Therefore, the plaintiff's count three is legally insufficient and is stricken. See CT Page 8891 Streater v. Maier, Superior Court, judicial district of New Haven, Docket No. CV 03 0473265 (June 16, 2004, Skolnick, J.) (Defendant's verbal abuse of plaintiff in front of other employees and offensive and disorderly conduct toward plaintiff occurred before plaintiff was terminated and, therefore, was conduct occurring during an "ongoing, albeit tumultuous and seemingly unpleasant period of employment" Plaintiff also did not plead that abuse was part of targeted campaign intended to lead to termination.); Lucas v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 01 0454400 (May 12, 2003, Arnold, J.) (Individuals during ongoing employment relationship reasonably should expect to endure routine employment-related conduct, formal and informal performance evaluations involving transfer and demotion and disciplinary or investigatory action arising from alleged misconduct. Mere demotion or denied advancement, although likely distressing, is an unavoidable part of employment. Allegations of employer's breach of contract by refusing to place plaintiff in certain positions and offer of seemingly lower level positions was not clearly during termination process and not clearly unreasonable.).
One of the plaintiff's allegations comes close to signifying a termination process that begins in August with the letter of reprimand, but falls short. The plaintiff alleges that "taking the acts set forth above to demote and subsequently terminate the plaintiff, the defendants acted in an unreasonable manner." Even a reading of this allegation that is favorable to the plaintiff cannot correct its insufficiency. The court cannot necessarily imply from this allegation the fact that all of the defendant's unreasonable conduct constituted the termination process.
Finally, even if the court implies that the defendants' search of the plaintiff's desk and the subsequent ultimatum between demotion or termination constitutes the termination process, the plaintiff's complaint is still insufficient. In an appeal from a judgment in favor of the plaintiff, the court in Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, cert denied, 273 Conn. 936 (2005), held that "[f]orcing the plaintiff to choose between her health and wellbeing and that of her unborn child, and her continued employment, especially in light of the substantial evidence of other available and suitable work stations, was patently unreasonable." Id., 73. The court noted that this was a case in which the plaintiff reasonably believed she would suffer physical harm if she worked on the wing on which her supervisor insisted she work. Id. Given the court's holding, it is clear that the employer's ultimatum of continued employment or termination constituted the termination process. In the present case, the allegation that the plaintiff's desk was searched and that she was forced to choose between part-time work and termination does not rise to the level of the egregious conduct in Davis. Therefore, the plaintiff fails to sufficiently allege unreasonable conduct during the termination process.
Although the defendants did not argue this point, the court notes that the plaintiff fails to allege that the defendants' conduct exposed her to the risk of illness or bodily harm. Failure to make such allegation is alone grounds for granting the motion to strike. Morris v. Hartford Courant Co., 200 Conn. 676, 684 (1986) (defendant's motion to strike granted because "plaintiff did not allege that the emotional distress caused by the defendant's conduct exposed him to the risk of illness or bodily harm").
III COUNT FOUR IN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendants argue that the plaintiff's allegations that she was disciplined without warning, issued a penalty far in excess of what was reasonable and terminated because a gun was found in her desk do not constitute extreme and outrageous conduct as a matter of law.
The plaintiff counters that the court performs a gate-keeper function when addressing claims of intentional infliction of emotional distress. The court must determine as a matter of law whether the alleged behavior fits the criteria required for intentional infliction of emotional distress. The plaintiff's allegations, taken as a whole, do not constitute facts that are sufficient to make a claim of 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 . . ." (Internal quotation marks omitted.) Carrot v. Allstate Ins. Co., 262 Conn. 433, 442-43 (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.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 243.
The plaintiff's allegations are legally insufficient to satisfy the requirement that the defendants' conduct was extreme and outrageous. The Appellate Court has affirmed the dismissal of claims involving more egregious conduct. In Carnemolla v. Walsh, 75 Conn.App. 319, 331-33, cert. denied, 263 Conn. 913 (2003), the employer accused the plaintiff, who had never before been accused of a crime, of embezzling company funds and pushed her to sign a resignation and release letter. Id., 332. The court concluded that, as a matter of law, the defendant's conduct was not extreme and outrageous. Id. In Campbell v. Town of Plymouth, 74 Conn.App. 67, 78-79 (2002), the court affirmed the striking of the plaintiff's claim that he was forced to sign false documents and that he was repeatedly asked about his personal beliefs and attitudes. The court noted that intentional infliction claims that have been sustained contain some allegation of public ridicule, but that the plaintiff had not alleged such ridicule. Id., 79. In the present case, the plaintiff does not allege conduct that is more egregious than the conduct that the courts in Carnemolla and Campbell rejected as extreme and outrageous. Further, like the plaintiff in Campbell, the plaintiff in the present case does not allege any public ridicule. Finally, the plaintiff does not present a case that would cause an average person to exclaim "outrageous!" The defendants' motion to strike as to count four is granted because the plaintiff does not allege conduct that is extreme and outrageous.
CONCLUSION
For the foregoing reasons, counts one and two as to Batten are dismissed because the plaintiff did not exhaust her administrative remedies with the CHRO against Batten. Counts three and four are stricken in their entirety because the plaintiff does not allege conduct on the part of the defendants that was either unreasonable during the termination process or extreme and outrageous.