Opinion
No. CV02 039 57 25 S
August 16, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Alexsander Reznitsky, is a former employee of the defendant Phoenix Systems Integration LLC. He filed the present action after the defendant allegedly terminated an employment agreement. Before this court is the defendant's motion to strike all counts of plaintiff's revised complaint.
In the first count of the revised complaint the plaintiff alleges that the defendant offered the plaintiff a position "for an indefinite period of time." The plaintiff further alleges that he notified his employer of environmental conditions that could result in the failure of defendant's computer systems. He further alleges that in August 2000 he was terminated without warning. (Count 1, ¶¶ 4, 8, 9, 11.) The plaintiff concludes that these actions "served to breach the contract of employment that existed . . ." (Count 1, ¶ 15.)
In the second count of his complaint, the plaintiff repeats all of the underlying allegations, and further alleges that the defendant breached a covenant of good faith and fair dealing insofar as the defendant: (a) failed to implement discipline policies and rules in a fair and consistent manner; (b) failed to provide adequate support and administrative staff; (c) failed to abide by its own policy manual; (d) provided the plaintiff with no guidance; and (e) terminated the plaintiff under false pretenses. (Count 2, ¶¶ 24.)
In the third count of the revised complaint the plaintiff alleged that he relied upon the defendant's express written representations, the policies and procedures set forth in Count 2. (Count 3, ¶ 14.) The plaintiff next alleges that he relied upon an implied employment contract as outlined in the policies and procedures set forth in Count 2. (Count 4, ¶ 14.) In the fifth count of his complaint the plaintiff alleges that the defendant engaged in negligent misrepresentation. (Count 5, ¶ 14.) In the final count of his complaint the plaintiff alleges that the defendant's conduct resulted in emotional distress. (Count 6, ¶ 14).
I. Standard of Review
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "What is necessarily implied [in an allegation] need not be expressly alleged. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 593 A.2d 293 (1997); Greenleaf v. Ames Department Stores, No. CV93 0526824S, Superior Court, Judicial District of Hartford/New Britain at Hartford (January 27, 1995, Corradino, J.).
II. Legal Analysis (a) Breach of Contract
In the first, third and fourth counts of his complaint, the plaintiff alleges that the defendant breached an at-will employment contract. In Connecticut, absent a contract to the contrary an employer and employee have an at-will employment relationship. An express contract is a contract whose terms and conditions are expressed in actual words. An implied contract "is an agreement between the parties which is not expressed in words but which is inferred from the acts and the conduct of the parties," Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406 (1974). Both types of contract depend on an actual agreement or the undertaking of an actual contract commitment, D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211-12 n. 2.
The plaintiff has alleged that he had an at-will employment contract. Consequently, in order to withstand a motion to strike the plaintiff must allege that the defendant's conduct violated an important public policy. Thibodeau v. Design Group One Architects, 64 Conn.App. 573, 577, 781 A.2d 373 (2001), reversed on other grounds, 260 Conn. 691, 802 A.2d 731 (2002).
Beginning in the late 1950s . . . courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge. Certain employer practices provoked public disfavor, and unlimited employer discretion to fire employees eventually yielded to a more limited rule.
Following that trend, [the Connecticut Supreme Court], in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy . . . In doing so, [the Court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . In evaluating claims, [the courts] look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy . . .
(Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, 260 Conn. 691, 698-99, 802 A.2d 731 (2002).
The public policy exception is limited. "The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy . . . Accordingly, the employee has the burden of proving a violation of important public policy." (Citations omitted; internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 306, 802 A.2d 800 (2002).
The plaintiff failed to address any of these critical thresholds. Contrary to the assertions in his brief in opposition to the motion to strike, the plaintiff has not alleged in his revised complaint that the employer agreed that his employment would not be terminated except in a specified manner. Similarly he has not alleged that the parties reached an agreement concerning progressive discipline or that the employer represented that progressive discipline would be a condition of the plaintiff's employment. The plaintiff's bare assertion that there was a policy manual is insufficient. Furthermore the plaintiff's allegations contain no statement of the public policy he must allege to overcome a motion to strike.
"[R]epresentations [made in a personnel policy], under appropriate circumstances, may give rise to an express or implied contract between employer and employee." Finley v. Aetna Life Casualty Co., 202 Conn. 190, 198, 520 A.2d 208 (1987), overruled on other grounds, Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993). However, there must be some evidence of the contract. "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties . . . The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract." (Internal quotation marks omitted.) Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 596, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).
Having failed to allege in his complaint the facts that would state a cause of action in either express or implied contract, the plaintiff has simply failed to plead the causes of action that he now relies upon. Therefore the motion to strike the first, third and fourth counts of this revised complaint is granted. See Haight v. Kidd Company, No. CV 98 0167178, Superior Court, Judicial District of Stamford/Norwalk at Norwalk (September 20, 1999, Karazin, J.).
(b) Breach of Covenant of Good Faith and Fair Dealing
In the second and fifth counts of this complaint the plaintiff suggests that the employee handbook and oral representations created rights the violation of which constituted a breach of the covenant of good faith and fair dealing. However her allegations, even if accepted, do not constitute a basis for finding a violation of the covenant of good faith and fair dealing. Nor do they constitute express or implied representations.
"[I]n every contract of employment is a covenant of good faith and fair dealing in the contractual relationship." Doherty v. Sullivan, 29 Conn.App. 736, 742, 618 A.2d 56 (1992). In the context of employment-at-will, breach of the covenant of good faith and fair dealing is limited to situations where the discharge of an at-will employee is found to violate public policy. Id., 743. "In the absence of a public policy violation, there is no breach of the implied covenant of good faith and fair dealing." Doherty; see also Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Stated in another manner, the covenant of good faith and fair dealing does not apply to an at-will employment. Carbone v. Atlantic Richfield Co., 204 Conn. 460, 470, 528 A.2d 1137 (1987).
In the present case, the plaintiff alleges that he was an at-will employee. He cannot now change the terms of his employment. See Foster v. Massachusetts Life Insurance, No. Civ 3:02CV1433 (PCD) (D.Conn. April 14, 2004).
[J]ust because a plaintiff believes certain provisions constitute a contract does not bind the defendant without evidence that the defendant actually intended to be bound by such a contract. This is especially true in cases, such as the present, where the plaintiff can supply only conclusory statements that he had relied upon the employment handbook. Conclusory allegations will not create a genuine issue of material fact. Because there is no evidence that the defendant intended to be bound by the progressive discipline policy contained in its employee handbook, the plaintiff cannot prevail on his claim that there is a factual dispute concerning an implied contract.
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). "An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." Share America, Inc. v. Ernst Young, Superior Court, judicial district of Waterbury, Docket No. 150132 (July 2, 1999, Sheldon, J.).
Viewing the plaintiff's allegations in a light most favorable to withstanding this attack, the actions complained of "are neither sufficiently promissory nor sufficiently definite to support contractual liability," D'Ulise-Cupo, 202 Conn. at 214. The motion to strike the second and fifth counts of this complaint is granted.
(c) Negligent Infliction of Emotional Distress
In the final count of his complaint the plaintiff alleges negligent infliction of emotional distress. "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." Morris v. Hartford Courant Co., 200 Conn. 676, 681-82, 513 A.2d 66 (1986)." "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 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." Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003).
Insofar as the plaintiff bases his claim in this count on his discharge without cause or warning and the failure by the defendant to discuss her discharge there is no basis for this claim. To establish this claim the plaintiff would have to show the plaintiff's actions in this regard were "unreasonable," see Morris, 200 Conn. at 275. "[N]egligent 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." Parsons v. United Technologies Corp., supra, 243 Conn. 66, 88, 700 A.2d 655 (1997). See also Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).
"It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, demurrer or otherwise." Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970).
The defendants' motion to strike is granted as to all counts.
DEWEY, J.