Opinion
No. CV07-5008889S
August 2, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (#102)
On January 29, 2007, the plaintiff, Andrew Rodican, filed a six-count complaint against the defendants, Heartcare Associates of Connecticut, LLC (Heartcare), Jack Hauser, M.D., Connecticut Weight Wellness, LLC, Samuel Hahn, M.D., and Ricardo Cordido, M.D., alleging the following facts in counts two, three and four. In February of 2005, the plaintiff was employed by Heartcare. At that time, the plaintiff approached Hauser, a member of Heartcare, with the idea of opening a weight loss clinic. Between February 2005, and January 2006, the plaintiff spent personal time developing a bariatric weight loss program and a business plan. Throughout the developmental stage of the weight loss clinic, Hauser assured the plaintiff that the plaintiff would be a "partner" in the program, having a percentage of ownership and a share in the business's proceeds.
The weight loss clinic, known as Connecticut Weight and Wellness, LLC, opened in January 2006. The defendants offered the plaintiff a contract of employment and equity ownership on July 11, 2006, which the plaintiff refused to sign because it differed from previous discussions of the agreement. On July 25, 2006, the defendant terminated the plaintiff's employment without cause. At the time of the plaintiff's termination, he was in the process of closing on the purchase of a home. The defendants terminated the plaintiff with the intent of disrupting the closing. As a result of being fired within days of the closing, the plaintiff suffered severe emotional distress, a consequence of which the defendants knew or should have known.
Count one of the complaint sounds in breach of contract. Count two alleges wrongful discharge. Counts three and four allege intentional and negligent infliction of emotional distress, respectively. Counts five and six allege defamation. On March 15, 2007, the defendants filed a motion to strike counts two, three and four on the ground that the counts fail to state legally sufficient causes of action. The defendants submitted a memorandum of law in support of the motion. On April 30, 2007, the plaintiff filed a memorandum in opposition and the defendant filed a reply to the plaintiff's memorandum on June 8, 2007. The court heard the parties in oral argument on July 2, 2007.
The plaintiff conceded the legal insufficiency of count four at oral argument. This memorandum therefore discusses only the defendants' motion to strike counts two and three.
"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). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged . ." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
A. Count Two: Wrongful Termination
The defendants move to strike count two on the ground that the complaint fails to state a legally sufficient claim for wrongful termination because the plaintiff does not allege that his discharge violated public policy. In support of the motion, the defendants argue that under Connecticut law, employers may fire at-will employees for any reason, except one that is violative of public policy. Because the complaint alleges neither that the plaintiff was employed under contract nor that the defendants' actions violated any public policy, the defendants contend it fails to state a claim for wrongful discharge.
The plaintiff counters arguing that Hauser's oral representations created an implied contract between the plaintiff and the defendants which should be recognized by the court. The plaintiff further argues that the Connecticut Supreme Court has recognized the existence of an implied covenant of good faith and fair dealing in employment contracts in the case of Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984).
"In Sheets v. Teddy's Frosted Foods, Inc., [ 179 Conn. 471, 475, 427 A.2d 385 (1980)], [the Supreme Court] recognized . . . a common law cause of action in tort for discharges if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Internal quotation marks omitted.) Morris v. Hartford Courant Company, 200 Conn. 676, 678-79, 513 A.2d 66 (1986). In evaluating such claims, the court should "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." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 77, 700 A.2d 655 (1997). The Supreme Court has "repeatedly . . . underscored [its] 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 . . ." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002). "[T]he right to recover in tort for wrongful discharge extends only to employees at will." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987).
In paragraphs eleven and twelve of count one of the complaint, incorporated by reference into count two, the plaintiff alleges: "At all times during the developmental stage, Defendant Dr. Jack Hauser assured the Plaintiff that Plaintiff would be a `partner' in this endeavor and would share in the proceeds of the business. At various times the Plaintiff and Defendant Hauser discussed Plaintiff's remuneration and a percentage ownership interest in the weight loss clinic known as Connecticut Weight and Wellness." However, nowhere does the plaintiff allege expressly or by reasonable reference that there was a meeting of the minds over essential contract terms. He refused to sign the proposal presented by the defendants. Such absence is fatal to the plaintiff's claim that a contract existed between the parties. The plaintiff has done no more than allege that he was an at-will employee. Accordingly, count two is stricken. The plaintiff has failed to allege that the defendants violated any statutory or constitutional provision or that they violated any public policy in terminating his employment, a necessary element for a claim of wrongful discharge. See Parsons v. United Technologies Corp., supra, 243 Conn. 77.
Even if the court were to conclude, which it does not, that the paragraphs relied upon by the plaintiff sufficiently alleged an oral contract count two would be stricken on the ground that recovery for the tort of wrongful discharge is not available to employees under contract but only to at-will employees. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 211 n. 1. In his memorandum in opposition, the plaintiff argues that the "oral representations of Dr. Hauser have created an implied contract herein that should be recognized by the court." In paragraph nineteen of count one of the complaint, the plaintiff refers to "the terms agreed to between the Plaintiff and Dr. Jack Hauser." The plaintiff does not incorporate this paragraph into count two, however.
In his memorandum in opposition, the plaintiff argues that the motion to strike count two should be denied because the Supreme Court has recognized the existence of an implied covenant of good faith and fair dealing in employment contracts. In Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 572, the court stated: "Although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves `impropriety . . . derived from some important violation of public policy.' Sheets v. Teddy's Frosted Foods, Inc., supra, 475."
Having concluded that the plaintiff has alleged no more than at-will status, he cannot avail himself of such implied covenant which in any event he has not alleged. Under any common sense reading of count two the plaintiff clearly relies on a claim of wrongful discharge.
B. Count Three: Intentional Infliction of Emotional Distress
The defendants move to strike count three on the ground that the plaintiff has failed to state a claim for intentional infliction of emotional distress because the acts alleged do not constitute extreme and outrageous conduct, an element of the tort. In support of the motion, the defendants argue that our Supreme Court has considered even more egregious allegations insufficient to state a claim for intentional infliction of emotional distress.
In opposition, the plaintiff contends that a determination of whether conduct is extreme and outrageous may only be made "after the evidence is concluded." He cites to Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 597 A.2d 846 (1991) as an example of the Superior Court refusing to strike a plaintiff's claim of intentional infliction of emotional distress.
The plaintiff also cites for the same purpose Brunelle v. Reuters Analytics, Inc., Superior Court, judicial district of Hartford, Docket No. CV 97 0566808 (January 29, 1998, Rittenband, J.) ( 21 Conn. L. Rptr. 365). Brunelle dealt with an allegation of negligent, but not intentional, infliction of emotional distress, and so is not pertinent to the plaintiff's claims in count three.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2000).
"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! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). 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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
The plaintiff's argument that evidence must be concluded prior to a determination of whether conduct alleged in the complaint is extreme and outrageous is an incorrect statement of the law. The Appellate Court has recently recounted the proper role of the trial court in considering intentional infliction of emotional distress claims: "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280 (2007). Only if reasonable minds could disagree does the issue of whether the alleged behavior is extreme and outrageous become a jury question. Id., 568-69.
For the purposes of this motion to strike, therefore, the court must determine whether a reasonable factfinder could find that the behavior alleged in the present case rises to the level of extreme and outrageous conduct. In Mellaly v. Eastman Kodak Co., supra, 42 Conn.Sup. 20-21, the plaintiff alleged that the defendant, the plaintiff's supervisor, taunted and harassed the plaintiff about the plaintiff's alcoholism, urging him to drink although the supervisor knew the plaintiff had been sober for eleven years. The plaintiff further alleged that the defendant "indiscriminately yelled and screamed at the plaintiff regarding his recovery from alcoholism, telling the plaintiff no one cares about the plaintiff's recovery . . ." Id., 21. The complaint also alleged the defendant harassed the plaintiff away from work and frequently threatened the plaintiff with the loss of his job. Id. The court denied the defendant's motion to strike the claim, finding the issue of whether the defendant's conduct was extreme and outrageous to be a issue for the trier of fact. Id.
In Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000), the plaintiff, a school teacher, alleged that the defendant "`made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read'; telephoned the plaintiff's daughter, representing that the plaintiff `had been acting differently' and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign." Though acknowledging that the occurrences in question may have been distressing and hurtful to the plaintiff, the Supreme Court found that they did not constitute extreme and outrageous conduct as a matter of law. Id.
The Appellate Court in Petitte v. DSL.net, Inc., 102 Conn.App. 363 (2007) considered a claim of intentional infliction of emotional distress in the context of employment. The defendant employer had offered the plaintiff an at-will position. Id., 365. Subsequent to the offer, but prior to beginning work for the defendant, the plaintiff resigned from his former company. Id. On the day the plaintiff was to begin his new position, approximately two weeks before Christmas, the defendant rescinded its offer, subsequently citing information obtained from the plaintiff's references as the reason. Id., 365-66. The plaintiff was unable to return to his former employment. Id., 366.
The plaintiff brought a claim against the defendant for intentional infliction of emotional distress, alleging: "The defendant knew that the distress of being deprived of a means of livelihood . . . coming on the eve of Christmas, for a man with two small children, might result in illness, depression, despondency or bodily harm." (Emphasis in original; internal quotation marks omitted.) Petitte v. DSL.net, Inc., supra, 102 Conn.App. 375. The Appellate Court affirmed the trial court's decision, finding that the alleged conduct was insufficient to state a claim for intentional infliction of emotional distress. Id., 377.
The conduct alleged by the plaintiff in the present case is similarly insufficient to state a claim for intentional infliction of emotional distress. The defendant's actions cannot be said to be "beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443. Further, the defendants' actions here were not as severe as those in Mellaly v. Eastman Kodak Co., supra, 42 Conn.Sup. 17, or even Appleton v. Board of Education, supra, 254 Conn. 205.
Similar to the defendant in Petitte v. DSL.net, Inc., supra, 102 Conn.App. 363, the defendants here are alleged to have terminated the plaintiff's employment with knowledge of the potential financial consequences to the plaintiff. The plaintiff further alleges that the defendants discharged him with the intention of disrupting his pending home purchase. Our Supreme Court has said that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002). The plaintiff cites no case law, nor has the present research discovered any, to support the proposition that termination of an employee, done with the intention of causing some future economic consequence to the employee, is extreme and outrageous behavior.
For these reasons, the defendants' motion to strike count three is also granted.