Opinion
No. CV 03-0478651 S
October 5, 2004
MEMORANDUM OF DECISION
On June 10, 2003, the plaintiff, Jennifer Ranciato, filed a five-count complaint against her former employer, Saxe Doernberger Vita, P.C., a law firm in Hamden, Connecticut. In the first count of the complaint the plaintiff alleges a violation of the Connecticut Fair Employment Practices Act; in count two a violation of sex discrimination pursuant to Title VII of the Civil Rights Act of 1964; in count three a claim of retaliation and constructive discharge; in count four a claim of intentional infliction of emotional distress; and in count five a claim of negligent infliction of emotional distress.
On June 1, 2004, the defendant moved for summary judgment with respect to the plaintiff's claims for intentional infliction and negligent infliction of emotional distress. In its memorandum of law in support of the motion, the defendant argues that the evidence relied upon by the plaintiff to support of her claims for intentional infliction and negligent infliction of emotional distress is insufficient to entitle the plaintiff to relief, and, that it is entitled to judgment as a matter of law. Specifically, the defendant argues that its actions were not sufficiently extreme and outrageous, and as such the plaintiff cannot maintain a cause of action for intentional infliction of emotional distress. The defendant further argues that its actions took place during the course of the plaintiff's employment, and thus she cannot maintain a claim for negligent infliction of emotional distress. The defendant has attached to its memorandum of law the plaintiff's affidavit in support of her complaint to the Connecticut Commission on Human Rights and Opportunities (CHRO), filed on August 13, 2002.
On June 15, 2004, the plaintiff filed her memorandum of law in opposition to the defendant's motion for summary judgment. The plaintiff argues in her memorandum that there are genuine issues of material fact as to whether the defendant's conduct was extreme and outrageous and whether the defendant's conduct was unreasonable during the termination process. The plaintiff has attached to her memorandum her deposition testimony and the affidavit of a witness.
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
In her complaint, the plaintiff alleges that she was employed by the defendant law firm from August 6, 2001, until she was fired on August 14, 2002. The plaintiff alleges that beginning in the fall of 2001 and continuing until her termination, her immediate supervisor and one of the partners, Tracy Alan Saxe (Saxe), subjected the plaintiff to frequent abusive and harassing treatment. The plaintiff complains that Saxe openly expressed disdain for women and frequently made derogatory and sexist comments about her which the plaintiff alleges were aimed at insinuating promiscuity on the part of the plaintiff. She claims further that the defendant was aware of the actions of Saxe but did nothing to address the situation.
In her deposition, the plaintiff points out specific instances of abuse from Saxe. For instance, on November 9, 2001, while on a business trip in Texas, Saxe and the plaintiff were checking into their hotel when a passing gentleman said hello to the plaintiff. Saxe then made a comment to the plaintiff which she took as being derogatory and implying promiscuity. The plaintiff did not challenge Saxe or tell him that she thought that his comment was inappropriate. Later that month, on the evening of November 28, 2001, while again on business in Texas, Saxe and the plaintiff were entertaining clients. One of the clients was teasing the plaintiff and asking her if she wanted to go to a strip club with them. Saxe and others "laughed raucously" and the plaintiff was insulted and embarrassed by the remarks. The next day, Saxe and the same client made a fake phone call to the plaintiff who was at the hotel, inquiring as to what she was wearing at the time. The plaintiff heard Saxe laughing in the background. The plaintiff testified that she was humiliated by the incident.
The plaintiff further testified that sometime in December of 2001, she went out to lunch with some of the members of the firm including Saxe. One of the managers of the restaurant, who has submitted an affidavit attesting to these facts, recognized the plaintiff and said to her that it was strange to see her there during the day, since she went to the restaurant occasionally, but only at night. In response to the manager's comment, Saxe laughed and exclaimed loudly, "Oh, it's strange to see you with your shirt on," again insinuating promiscuity on the part of the plaintiff. The plaintiff testified that she was extremely humiliated by the comment, and couldn't eat her lunch. Upon return to the office, the plaintiff stated that she left for the day.
The plaintiff also testified to an occurrence in January 2002. At a firm meeting Saxe noted that the firm needed to hire a computer consultant. When the plaintiff said, "I know this guy," Saxe responded to her by saying, "You know some guy" and laughed. The plaintiff felt that once again Saxe was implying that she was promiscuous, and responded with an expletive to Saxe, to which he did not respond. The plaintiff testifies that Saxe made similar insinuations several times throughout her employment. The plaintiff also testified that the defendant gave her more burdensome work assignments than other similarly situated male employees at the firm. The plaintiff alleges that Saxe and other attorneys at the firm would tease her about how she was going to have to work certain weekends when some other associates would not.
Finally, the plaintiff alleges that on June 19, 2002, she made a verbal complaint about the ongoing treatment to Saxe and another principal of the firm. The next day, the defendant conducted an impromptu review of the plaintiff and gave her a raise of $5,500. The plaintiff testified that, despite this, the principals told her that she had no future with the firm. Over the next few months the plaintiff claimed that the defendant removed her name from files she was working on, and subjected her to other retaliatory treatment, such as excluding her from office lunches, and ignoring her emails regarding her cases.
On August 14, 2002, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). She left a copy of the complaint with Jeffrey Vita, a principal of the defendant. Later that day Vita entered the plaintiffs' office and fired her. While she was packing up her office, the plaintiff testified that Vita would occasionally reenter her office and make her feel uncomfortable. The plaintiff was frightened by Vita's demeanor and anger and felt that he was "badgering" her by sticking his head in her office and making "little comments."
The defendant moves for summary judgment on the ground that the testimony presented by the plaintiff is insufficient to support a claim for intentional infliction or negligent infliction of emotional distress. The defendant argues in its memorandum of law in support of its motion that the fact that the plaintiff was the victim of disparate treatment and was subject to crude behavior of a sexual nature does not support her claims. The defendant further argues that the plaintiff's allegations that the defendant failed to take corrective measure with respect to the harassing nature of the plaintiff's employment, and allegedly retaliated against the plaintiff for speaking out against the treatment, does not give rise to a genuine issue of material fact that would bar judgment from being entered on behalf of the defendant.
In addition, with respect to the plaintiff's claim for negligent infliction of emotional distress, the defendant argues that the acts complained of by the plaintiff occurred during an ongoing employment relationship between the plaintiff and the defendant, and not during the termination process, so that as a matter of law the plaintiff's claim must fail. Furthermore, the defendant argues that the actions of Vita during the time that the plaintiff was clearing out her office, do not rise to the level of egregious behavior required to support the negligent infliction of emotional distress claim.
Count Four — 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 mast 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.
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). Summary judgment may be granted if "no reasonable jury could conclude that an average member of the community would find the defendant's conduct to have been extreme and outrageous." Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
In Appleton, the offending conduct included: condescending remarks made in front of colleagues questioning the plaintiff's basic skills, communications with the plaintiff's daughter representing that the plaintiff was acting differently which warranted a few days absence from work, telephoning the police who then escorted the plaintiff from the building to her car, subjecting the plaintiff to two psychiatric examinations, a forced suspension and leave of absence, and finally, a forced resignation. Appleton v. Board of Education, supra, 254 Conn. 211. Yet the court found that such conduct on behalf of the defendants was not extreme or outrageous.
In Gur v. Nemeth-Martin Personnel Consulting, Inc., Superior Court, judicial district of Danbury, Docket No. CV98 0331118, (March 20, 2001, Adams, J.), the plaintiff alleged that she suffered emotional distress as a result of the defendants' extreme and outrageous conduct with respect to the use of double entendres, word play and jokes, conversations, gestures and teasing in a sexual context. The plaintiff also alleged that the defendant allowed the use of the internet to view pornography during work hours, within open view of all workers, and alleged that at the workplace there were constant graphic verbal references made to sexual acts. Viewing the facts in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor, the court therein concluded that the conduct complained of did not rise to the level required, as a matter of law, to establish the basis for the claim of intentional infliction of emotional distress.
Furthermore, in Miner v. Cheshire, 126 F.Sup.2d 184, 195 (D.Conn. 2000), the court recognized that, "Connecticut courts hold that insults, verbal taunts, threats, indignities, annoyances, petty oppressions or conduct that displays bad manners or results in hurt feelings do not support a claim for intentional infliction of emotional distress." In that case the plaintiff claimed that the employer, the town, refused to take action to protect the plaintiff and other women from sexual harassment, refused to take action to protect the plaintiff from a male employee's aggressive, offensive, and hostile conduct, reprimanded the plaintiff for asserting her rights to be free from sexual harassment, and forced the plaintiff to resign her position a second time in retaliation for exercising of her rights. Id., 193-94. As a matter of law, when applying the "stringent standards" developed in the state's courts, the court found that these acts were not sufficiently extreme or outrageous to support a claim of intentional infliction of emotional distress. Id., 195.
"Courts have set a high threshold that must be met in order to find that specific conduct is extreme and outrageous." Troy v. Precision Computer Services, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 00 0082592 (May 14, 2001, Agati, J.). "Mere insults or verbal taunts do not rise to the level of extreme and outrageous conduct even when they include obnoxious activity like threats, insults or taunts." (Internal quotation marks omitted.) Ferraro v. Stop Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.). "As noted in Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002), albeit in the context of negligent infliction of emotional distress, `individuals reasonably should expect to be subject to . . . vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like.'" (Internal quotation marks omitted.) McKiernan v. Amento, Superior Court, judicial district of New Haven, Docket No. CV 01 0453718 (October 2, 2003, Gilardi, J.).
There is no question that the acts of which the plaintiff complains if proven were crude, obnoxious, boorish, inappropriate and insensitive, committed in an atmosphere supposed to be dominated by professionalism. While these alleged acts were upsetting and embarrassing to the plaintiff, they do not rise to the level required to sustain a legally sufficient claim for intentional infliction of emotional distress. Accordingly, the defendant's motion for summary judgment is granted as to count four.
Count Five — Negligent Infliction of Emotional Distress
In count five, the plaintiff incorporates the allegations set forth in count four, describing the behavior of Saxe and the defendant toward her. In addition, to set out the claim of negligent infliction of emotional distress, the plaintiff alleges that the defendant knew or should have known that the failure to take any corrective measures whatsoever in response to the plaintiff's complaint about discriminatory conduct by Saxe was likely to cause the plaintiff to suffer emotional distress. See Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 344-46, 398 A.2d 1180 (1978).
In its memorandum of law in support of the motion for summary judgment, the defendant argues that the conduct complained of by the plaintiff is insufficient to maintain a claim for negligent infliction of emotional distress. It asserts that the behavior arose during the course of the plaintiff's employment, and that Connecticut only recognizes negligent infliction of emotional distress when the actual termination process of an employee has been conducted in an unreasonable manner. The plaintiff argues in opposition that the defendant's conduct was part of a process leading to her termination, and thus the cause of action of negligent infliction of emotional distress is proper.
The Supreme Court in Perodeau v. Hartford supra, 259 Conn. 762-63, held that an employer is not 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. In reviewing negligent infliction of emotional distress in the employment context "[t]he dispositive issue . . . [is] whether the defendant's conduct during the termination process was sufficiently wrongful such 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.
"Accordingly, negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997) "Thus, Parsons stands for the proposition that a wrongful termination is not, in and of itself, a sufficient basis for a claim of negligent infliction of emotional distress." Perodeau v. Hartford, supra, 259 Conn. 750.
The plaintiff has not produced sufficient evidence showing that her negligent infliction of emotional distress claim arose during the process of her termination. On the contrary, all of her allegations took place during an ongoing, albeit tumultuous and unpleasant period of employment. Likewise, the plaintiff has not produced sufficient evidence that the abuse she was caused to suffer during her period of employment was part of a targeted campaign intended to lead to her termination. Finally, the plaintiff has produced scant evidence which would suggest that her actual termination was carried out in a manner in which "the defendant should have realized that [its] conduct involved an unreasonable risk of causing emotional distress and that such distress . . . might result in bodily harm or illness." Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 340, 815 A.2d 1276 (2003). The actions of Vita, while the plaintiff was cleaning out her office, do not rise to the requisite level of severity. Conduct occurring in the termination of employment contemplates situations in which either a plaintiff is removed from the actual premises of employment in an unreasonable manner or is dealt with in an unreasonable manner during a period of time in which his or her termination of employment is pending. See, e.g. Shackles v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. CV 565313 (December 1, 2003, Hurley, J.T.R.) (negligent infliction of emotional distress claim proper when employer fires employee after assuring employee that she would be allowed to return to work after sustaining injuries).
Because the plaintiff has submitted evidence of inappropriate behavior which occurred during an ongoing course of employment, and not to sufficiently wrongful conduct that occurred during her actual termination, her claim for negligent infliction of emotional distress is legally insufficient as a matter of law, and the motion for summary judgment as to count five is also granted.
Thompson, J.