Opinion
No. CV06-4014462 S
October 16, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE #102
The defendants, Weston Board of Education (WBOE) and Lynn Pierson (Pierson) have moved to strike all ten counts of the plaintiff's complaint dated December 12, 2005, bearing a return date of January 24, 2006. Pierson, at all times relevant to the complaint, was the "Superintendent of the Weston Board of Education" and has been sued in her individual capacity.
The initial nine counts of the complaint are filed as to the WBOE alleging a breach of contract; breach of an implied contract; breach of the covenant of good faith and fair dealing; failure to pay wages, pursuant to General Statutes § 31-71; unjust enrichment; wrongful termination pursuant to § 31-71; wrongful termination for intentionally or recklessly making false allegation of criminal activity; wrongful termination for "violation of public policy," and; negligent infliction of emotional distress, respectively. Count Ten against the defendant Pierson alleges negligent infliction of emotional distress.
I Brief Summary of Claims
The plaintiff is a former employee of the WBOE who was terminated from his employment on December 18, 2002. The plaintiff had been employed by the WBOE since 1981, either as an independent contractor or an employee. At the time of his termination, the plaintiff held the position of Supervisor of Buildings and Grounds, and had so held this position since 1999.
The plaintiff claims that he was entitled to certain retirement benefits upon the termination of his employment, and the defendant in its manner of terminating the plaintiff, has breached its agreement to provide those benefits. The plaintiff additionally claims that he was wrongfully terminated, which has prevented him from collecting those benefits, and that the reckless and false allegations made against him in order to terminate his employment, violate public policy. As a result of the defendants' alleged actions, the plaintiff claims he has suffered emotional distress.
Plaintiff claims he was entitled to: (1) a lump-sum payment of accumulated unused sick leave to a maximum of 60 days; (2) payment of earned and unused vacation; and retirement benefits, including his eligibility to maintain his health insurance benefits.
II Standard of Law Re Motion to Strike
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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 omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185. (1988) . . . A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
Ordinarily a claim that an action is barred by the lapse of the statute of limitations must be pleaded by a special defense and not raised by a motion to strike. Practice Book § 10-50; Mac's Car City, Inc. v. DiNigris, 18 Conn.App. 525, 528, 559 A.2d. 712 (1989). A motion to strike may be used to raise the defense of the statute of limitations when the parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the statute of limitations. Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956).
III
Counts One Through Five and Count Nine
The defendants seek to strike Counts One through Five claiming that they are beyond the applicable statutes of limitation, as more fully set forth in General Statutes §§ 52-596 and 52-584. Counts One through Five sound in allegations of breach of contract, breach of implied contract, breach of the covenant of good faith and fair dealing, failure to pay wages earned (General Statutes § 31-71 et seq.), and unjust enrichment. Count Nine is a claim for negligent infliction of emotional distress.
General Statutes § 52-596 reads as follows:
No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558.
General Statutes § 52-584 reads in relevant part as follows:
No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The defendants claim that § 52-596 applies to the plaintiff's claim pursuant to § 31-71, as well as the breach of contract, breach of covenant and unjust enrichment claims. They argue that the plaintiff's allegations are claims for payment for remuneration for employment and are subject to a two-year statute of limitations set forth in § 52-596. As the plaintiff was terminated on December 18, 2002, and his action was brought three years later, these claims should be stricken. As to Count Nine, the claim of negligent infliction of emotional distress is subject to the limitation of action language of § 52-584. The defendants argue that Count Nine should also be stricken.
The plaintiff in response, alerts the court that Count Four (failure to pay wages earned brought pursuant to § 31-71) and Count Nine (negligent infliction of emotional distress) are withdrawn and will not be resurrected in an Amended Complaint to be filed following oral argument on the subject motion to strike. A review of the file on this date reveals that Counts Four and Nine have not been withdrawn and no amended complaint has been filed, to date. However, based on the representations of counsel and based on the fact that the plaintiff's memorandum of law offers no argument objecting to the striking of Counts Four and Nine, the court orders that Counts Four and Nine be stricken.
Oral argument on this motion to strike occurred on June 27, 2006.
As to Counts One, Two, Three and Five, the plaintiff argues that the applicable statute of limitation is more properly set forth in General Statutes § 52-576 which governs contract actions. Section 52-576(a) reads in relevant part as follows:
(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . .
In the present case, the plaintiff was terminated from his employment on December 18, 2002. The plaintiff claims thereafter, he was deprived of his retirement benefits. The present action was commenced by way of the subject writ, summons and complaint, all dated December 12, 2005. Service of process was effectuated on the defendants' agent for service of process on December 13, 2005. The matter, bearing a return date of January 24, 2006, was returned to court on January 18, 2004. The plaintiff argues that while the claim for damages which he seeks may be based on calculations based on his wages, that, in itself, does not mandate that his breach of contract claim be governed by § 52-596. For example, the plaintiff argues that he has brought a cause of action for a tort for wrongful termination for which the statute of limitations is three years pursuant to General Statutes § 52-577. Nonetheless, the damages the plaintiff seeks for the breach of contract are the same he seeks for the wrongful termination. While damages may be based upon the plaintiff's wages, it does not restrict the plaintiff's claim to one of "payment of remuneration for employment periodically."
Count Seven is a claim for wrongful termination.
Sec. 52-577 reads as follows:
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
To determine the applicable statute of limitations, the court must look to the complaint. "To determine the applicable statute, the nature of the claim has to be examined, which means that the court has to look at the pleadings, that is, the complaint. In doing so the court . . . must give that interpretation to the pleadings which is most favorable to the non-moving party." LeStrange v. Korowotny, Superior Court, judicial district of Ansonia-Milford, No. CV94 04 69 29S (Nov. 4, 1997, Corradino, J.) 21 Conn. L. Rptr. 5, citing Amodio v. Cunningham, 182 Conn. 80, 82 (1980).
An examination of Counts One and Two instructs the court that the claims revolve around pension benefit claims by the plaintiff. In order to qualify for the pension plan as an employee of the WBOE, the plaintiff alleges he was required to belong to the State of Connecticut "MERF B Pension Plan," and that he, in fact made payments to this plan by way of payroll deductions. The plaintiff claims he achieved vesting rights in this plan after five years, and that at the time of his termination, he was, in fact, vested. The vesting in this plan also entitled the plaintiff to receive medical benefits immediately and a retirement allowance upon reaching the voluntary retirement age of fifty-five. The plaintiff additionally alleges that the WBOE has a policy or practice of providing retirement benefits to terminated employees who were otherwise eligible, and despite this policy or practice, the defendant WBOE has refused and/or failed to honor its commitment to provide the benefits to the plaintiff, who was otherwise eligible to receive his retirement benefits.
Having examined the claims in Counts One and Two, the court finds that the plaintiff's claims fall within § 52-576(a), the six-year statute of limitations for actions sounding in breach of contract. Counts One and Two will not be stricken for reasons of that they are beyond the statute of limitations.
Count Three is an action alleging a breach of the covenant of good faith and fair dealing. This count is also governed by General Statutes § 52-576(a). "[A] claim brought pursuant to a contract, alleging a breach of the implied covenant of good faith and fair dealing, sounds in contract because [e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement . . . To constitute a breach of [that duty], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. Such a claim is therefore subject to the six year contract statute of limitations as provided in § 52-576." (Internal citation omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 610, 894 A.2d 335 (2006), citing Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005). Count Three will not be stricken for reasons of the statute of limitations.
Count Five alleges unjust enrichment. The defendants ask that it be stricken because the plaintiff alleges the existence of an express contract. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) (In order to prevail on a claim for unjust enrichment, the plaintiff must prove that he has no remedy under a contract for recovery). The plaintiff concedes that, while he may file an alternative pleading stating a claim for unjust enrichment in the same cause of action as a breach of contract claim, he has failed to plead his unjust enrichment claims in a separate count. The plaintiff has agreed to amend his complaint to clearly set out a separate unjust enrichment claim, excluding any allegations of an express contract.
As stated herein, an amended complaint has not been filed to date, and nor has Count Five been withdrawn. Thus, the court orders that Count Five be stricken.
IV Counts Six, Seven and Eight CT Page 19036
Count Six alleges wrongful discharge for a violation of public policy for failing to pay wages pursuant to General Statutes 31-71. Count Seven alleges wrongful termination for a violation of public policy for intentionally or recklessly making false allegations of criminal activity. Count Eight alleges similar allegations of wrongful discharge as stated in Counts Six and Seven and further states that "[t]he plaintiff claims he is otherwise without remedy and permitting his discharge to go unredressed would leave a valuable social policy to go unvindicated."The defendants move to strike each of these counts for being legally insufficient in that the plaintiff has not alleged that his dismissal from employment with the WBOE contravened either any explicit statutory or constitutional provisions or any judicially recognized public policy. See, Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986); see also, Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997).
In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the Connecticut Supreme Court "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 the dismissal, a reason whose impropriety is derived from some important violation of public policy." Burnham v. Karl Gelb, P.C., 252 Conn. 153, 158, 745 A.2d 178 (2000) (emphasis in original), quoting Sheets v. Teddy's Frosted Foods, supra at 475.
In interpreting this exception, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.
(Citation omitted; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159, quoting, Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997).
The defendants argue in addition, that Count Six fails to state a legally sufficient cause of action for wrongful discharge because Connecticut does not recognize a cause of action for wrongful discharge where the employee has a statutory remedy available.
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.
Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985), quoting, Wehr v. Burroughs Corporation, 438 F.Sup. 1052, 1054 (E.D.Pa. 177). The existence of a statutory remedy precludes a wrongful discharge claim. Atkins v. Bridgeport Hydraulic Co., supra at 648; Burnham v. Karl Gelb, P.C., supra, 252 Conn. 162-63.
A. Count Six
The plaintiffs argue that while not necessarily based upon any explicit statutory or constitutional provision, an employer should not be able to fabricate a story of criminal conduct to relieve itself of paying out certain benefits to an employee, who otherwise would be able to collect those benefits. The plaintiff claims that these are the facts set forth in his complaint, and the court must construe the complaint in a light most favorable to the plaintiff.
In Count Six the plaintiff alleges he was wrongfully terminated in violation of public policy for failing to pay wages pursuant to General Statutes § 31-71 et seq. He alleges that as a result of the WBOE not allowing him to resign, he is not able to collect pension and retirement benefits in violation of § 31-71. The defendants argue that Count Six fails to allege that the dismissal was in violation of an important public policy, and additionally, the plaintiff has a statutory remedy available. General Statutes § 31-71a(3) defines wages as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation." "Wages are defined in the statutes . . . and the definition conforms to the classic or dictionary definition. Wages are payment for services on a weekly, daily or hourly basis or by the piece." The American Heritage Dictionary (2d Ed. 1991). Morales v. Pentec, Inc., 57 Conn.App. 419, 428-29 (2000) 749 A.2d 47 (2000). "The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991)." (Internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 804, 609 A.2d 1034 (1992); appeal dismissed 226 Conn. 404, 672 A.2d 931 (1993); see also, General Statutes 1-2z.
Sec. 1-2z. Plain meaning rule.
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The statutory definition of "wages" as used in § 31-72 is limited on its face and makes no mention of fringe benefits such as pension or medical benefits. "It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated . . . [T]he plain language of §§ 31-72 and 31-71a(3) indicates that the term wages in § 31-72 does not include pension and medical benefits." (Internal citations and quotation marks omitted.) Morales v. Pentec, Inc., 57 Conn.App. 419, 428-29. See also, Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 27 Conn.App. 800 (The term wages in 31-72 did not include fringe benefits, including accrued vacation pay).
Sec. 31-72. Civil action to collect wage claim, fringe benefit claim or arbitration award reads in relevant part as follows:
When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.
The defendants have brought this count pursuant to § 31-71 et seq. Pension and medical benefits are not included within a civil action brought pursuant to § 31-72. Section 31-72 does allow an action where an employer fails to compensate an employee in accordance with section 31-76k, the plaintiff does not specifically allege a violation of § 31-76k, but rather states that the defendants have violated § 31-71 et seq. Count Six alleges a loss of wages, loss of pension and retirement benefits. In paragraph 11 of Count Six the plaintiff alleges he was entitled to a "lump-sum payment of accumulated, yet unused sick leave; earned and unused vacation; and retirement benefits, including his eligibility to maintain his health insurance benefits." The court in interpreting Count Six most favorably to the plaintiff, could construe this language to include an action under § 31-76k.
Sec. 31-76k. Payment of fringe benefits upon termination of employment.
If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-7i, inclusive.
Nonetheless, the plaintiff has conceded previously, herein, that actions pursuant to § 31-71 are subject to a two-year limitation of actions as set forth in § 52-596. Therefore, Count Six must be analyzed strictly in terms of a tort action for wrongful discharge and not as a statutory action for collection of wages and/or benefits pursuant to § 31-71 et seq. However it is important to note that in determining the issues of the wrongful discharge as a violation of public policy, the plaintiff had a right to a statutory action had he timely pursued an action pursuant to § 31-76k for fringe benefits for accrued and unused vacation and days.
See discussion in Section III herein.
The plaintiff claims that he was falsely accused of criminal conduct. A reading of Count Six states that the plaintiff was summoned to a meeting with the defendant Pierson who was Superintendent of Schools where he "denied false accusations that were made against him." Shortly thereafter he received a letter from Pierson notifying him that he was terminated due to "poor work performance" and "for having made threatening statements."
Count Six contains fifty-five paragraphs, but nowhere in the complaint does the plaintiff claim that his dismissal/termination was a violation of public policy. He only claims that he is not able to collect his pension and retirement benefits in violation of § 31-71 et seq. He does not set forth any facts alleging he was somehow punished or retaliated against for engaging in conduct that promotes public policy. See Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 471, 477. The fact that he has alleged that he was falsely accused of making threatening statements does bring his complaint for wrongful discharge within the parameters of a violation of public policy as set forth in Sheets, supra, 475. "A false but negligently made accusation of criminal conduct as a basis for dismissal is not a demonstrably improper reason for dismissal and is not derived from some important violation of public policy." (Internal citations and quotation marks omitted.) Id. Accordingly, Count Six is ordered stricken.
B. Count Seven
Count Seven alleges the plaintiff's employment was terminated in violation of a public policy against intentionally or recklessly making false allegations of criminal activity. The defendants again rely on the decision in Morris v. Hartford Courant Co., supra, 200 Conn. 676, which is discussed, herein, in relation to Count Six. The plaintiffs continue to maintain that the allegations of threatening are allegations of criminal conduct and are violative of a valuable public and social policy. The complaint does not allege that a criminal complaint was filed by Pierson. Rather, the complaint alleges that the defendant was terminated for poor job performance and "threatening statements." The plaintiffs argue that the decision in Morris is not definitive because while the Morris court did consider a negligent false accusation of criminal conduct, it did not consider whether a false statement made knowingly or recklessly would have created a viable cause of action. The plaintiffs, however, offer no legal authority for their own position.
The court rejects the plaintiff's argument because the plaintiff has not alleged sufficient facts of intentional reckless behavior by the defendants in accusing the plaintiff by a letter from Pierson, of threatening behavior. "[I]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks and internal citations omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 115-16, 891 A.2d 106 (2006). Count Seven is ordered stricken.
C. Count Eight
Count Eight is an allegation titled, "Wrongful Termination-Violation of Public Policy." It is similar, if not identical to the claims the plaintiff set forth in Counts Six and Seven. The plaintiff has not alleged what public policy is clearly contravened in this case. For the reasons discussed regarding Counts Six and Seven, Count Eight is also ordered stricken.
V. Count Ten
Count Ten is an allegation of intentional infliction of emotional distress, and it is brought solely against the defendant Pierson. The plaintiffs argue that the events leading up to the plaintiff's termination and the manner in which he was terminated were intolerable, hostile, extreme, outrageous and in excess of all bounds usually tolerated by decent society. Specifically, the plaintiff alleges that Pierson, "acting beyond her power as Superintendent, made the conditions upon which the plaintiff was terminated absolutely intolerable with her false accusations, manner of interrogation and hostile environment." He also alleges that knowing of the plaintiff's medical condition, behavior was "calculated to cause the plaintiff mental distress."
The plaintiff alleges that Pierson knew of the plaintiff's medical history of anxiety, depression, heart palpitations and high blood pressure. Given this information the defendant knew or should have known that her conduct would create an unreasonable risk of causing distress. The plaintiff further claims as a result of the defendant's actions, he suffered emotional distress, including but not limited to: anxiety, high blood pressure, heart palpitations, loss of sleep, loss of concentration and resulting fatigue.
In order for the plaintiff to prevail in a case for liability under the 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 a 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. Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000); Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).
"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." Id.; Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). "Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, supra, 254 Conn. 210.
"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 a basis for an action based upon intentional infliction of emotional distress." Id., at 210-11.
"It is clear that individuals in the workplace should reasonably expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflict and the like." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002). "Individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluation, both formal and informal, decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance, and disciplinary or investigatory action arising from actual or alleged employee misconduct." Id.
Alleged occurrences, although they may be distressing, do not necessarily constitute extreme and outrageous conduct for the purposes of an intentional infliction of emotional distress claim. Appleton v. Board of Education, supra, 254 Conn. 211. In Dollard v. Board of Education, 63 Conn.App. 500, 552, 777 A.2d 714 (2001), the plaintiff alleged that the defendants orchestrated a plan to force her to resign. As part of the alleged plan, the defendants hypercritically scrutinized every aspect of the plaintiff's work and personal life, and ultimately forced her to resign. The court held that the conduct was not extreme and outrageous as a matter of law and granted the defendant's motion to strike. Id. at 554.
In Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 577, 808 A.2d 1149 (2002) the complaint alleged that the plaintiff was employed by the defendant as a respiratory therapist in February 1989. During the course of his employment, the defendant's agents, servants and employees subjected him to abusive and disparate treatment. Specifically, the plaintiff alleged, among other things, that his supervisor once scheduled him to report for duty when he was under a physician's care. When the plaintiff failed to report as scheduled, the supervisor recommended that he be disciplined. The plaintiff alleged further that he received less compensation than other, less experienced employees in his position. When a nurse accused the plaintiff of being rude to her, a supervisor falsely accused the plaintiff of endangering a patient's life. One of his supervisors suggested that the plaintiff seek psychiatric help when he complained about his schedule and assignments. Another of his supervisors recommended that the plaintiff attend anger management classes after he had a confrontation with a nurse. When the plaintiff complained about a change in his monthly rotation assignment, he was given a written warning. Following another verbal altercation with a nurse about a patient's care, the plaintiff's supervisor gave him a final written warning for violence. The plaintiff further alleged that as a result of the alleged disparate treatment he received in the defendant's employ, he suffered severe emotional distress that he could no longer endure and resigned on March 28, 2001. The defendant filed a motion to strike the plaintiff's complaint. Id. at 577-78. The Appellate Court held that this conduct was not extreme or outrageous. Id. at 579.
The court has also reviewed the Connecticut Appellate Court's decision in Muniz v. Kravis, 59 Conn.App. 704, 757 A.2d 1207 (2000) where the defendants were officers of the defendant Weatherstone Corporation. The business of the corporation was carried on at a location referred to as Weatherstone, where business partners, colleagues and associates of Kravis were entertained. The plaintiff was an employee of the defendants, as was her husband. They worked as a butler and cook at Weatherstone. Their employment compensation included a salary and the use of a private apartment on the premises of Weatherstone, in which they and their minor daughter resided. At all relevant times, the plaintiff performed her duties in a satisfactory manner. Id. at 706
In July 1993, an armed security guard working for the defendants came to the plaintiff's apartment to notify the plaintiff and her husband that their employment with the defendants was terminated, effective immediately, and that they must vacate the apartment within twenty-four hours. At the time of the notification, the plaintiff was en route to Spain to take a vacation with her daughter. Id. at 506-07. Her husband was at the apartment recovering from a planned and scheduled medical surgery performed the previous day. One month prior to this notification, the defendants represented to the plaintiff that her job was not threatened by an impending legal separation or dissolution of the defendants' marriage. In reliance on this representation, the plaintiff did not seek other employment or housing. As a result of the defendants' conduct, the plaintiff suffered a loss of income and earnings, economic losses such as loss of lodging and food and emotional distress and anguish. Id. at 507. The Appellate Court affirmed the trial court's granting of a motion to strike the count alleging the intentional infliction of emotional distress for the reason that the plaintiff failed to establish that the defendant's conduct was extreme and outrageous. Id. at 509; See also, Cox v. Keystone Carbon Co., 861 F.2d 390, 396 (3d Cir. 1988) (employee's termination on day he returned to work after triple bypass surgery did not constitute extreme and outrageous conduct); Freeman v. Kansas State Network, Inc., 719 F.Sup. 995, 1000 (D.Kan. 1989) (termination of plaintiff's employment three days after she gave birth and on the day she returned home from hospital did not constitute extreme and outrageous conduct).
A review of Appleton v. Board of Education, supra, 53 Conn.App. 252 and the cases which have since followed, leads this court to rule that the actions of Pierson, as alleged in Count Ten were not extreme and outrageous as a matter of law. Accordingly, Count Ten, alleging intentional infliction of emotional distress as to the defendant Pierson, is ordered stricken.
See also, Carnemolla v. Walsh, 75 Conn.App. 319, 332, 815 A.2d 1251 (2003).
VI Summary
For the reasons stated herein, the defendants' motion to strike Counts One, Two and Three is denied. The motion to strike is granted as to Counts Four, Five, Six, Seven, Eight, Nine and Ten.