Opinion
No. HHB CV 06 5001979 S
October 4, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#128)
The court heard oral argument concerning the defendants' motion to strike at the short calendar on August 20, 2007. After review of the parties' submissions and consideration of their arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.
I BACKGROUND
In the fourteenth, fifteenth, and sixteenth counts of her second revised complaint (#116) (complaint), the plaintiff, Elaine C. Schmidt, sets forth allegations of the intentional infliction of emotional distress against three individuals, in connection with her former employment as the executive director of the Housing Authority of the City of Bristol (BHA). The plaintiff seeks to hold liable defendants Brian S. Suchinski, a member of the BHA Board of Commissioners (Board); Gary M. Schaffrick, the Chairman of the Board; and Thomas E. Policki, a BHA employee.
For ease of reference, the court refers to these three defendants collectively as the "movants."
She alleges that Suchinski had intended to terminate the plaintiff's employment contract with the BHA, but that he and others missed an April 2004 deadline to provide a termination notice, causing Suchinski to publicly express his displeasure at a BHA meeting. She further alleges that Suchinski began meeting with BHA employees in order to encourage them to come to him with negative information concerning her.
The plaintiff also alleges that Policki was hostile toward her because she was critical of his work performance. She asserts that Policki and Suchinski held a series of meetings and created a false and misleading statement (Exhibit A to the complaint) concerning her conduct and statements regarding the hiring of a part-time summer employee, which Suchiuski brought to Schaffrick, after which Suchinski and Schaffrick constituted themselves as an investigatory committee. She also alleges that they published to the public and the press false or misleading statements (Exhibit B, dated August 10, 2004, entitled "Findings of the Investigation regarding Executive Director Schmidt"), which, although they did not consult with witnesses, including the plaintiff, allegedly substantiated the charges in Exhibit A. In addition, she alleges that they published another false and misleading statement to the public in attendance at an August 10, 2004 Board meeting (Exhibit C).
In summary, the alleged false and misleading statements included that the plaintiff had violated a drug-free workplace policy; intentionally hired a known drug user; engaged in a conspiracy to hide drug usage by using a masking agent to foil drug testing; and that she had wrongfully taken her personnel file. See complaint, fourteenth, fifteenth, and sixteenth counts, paragraphs 34-35. In addition, the plaintiff alleges that the defendants repeatedly republished the same untrue and misleading representations which are contained in Exhibits A, B, and C; spread rumors and innuendos about her; and caused the plaintiff to be terminated from her employment.
As to Suchinski and Schaffrick, she also alleges that they withheld and hid information from her, made outrageous and unfair demands on her, created pretexts for investigating and terminating her, and ignored communications from her attorney and her medical providers. In addition, she alleges that they demanded that she report to work while she was disabled and on approved leave in order to meet with the Board, under harsh and threatening conditions. Also, she asserts that they delayed her pension payments and refused to return her personal property. See complaint, fourteenth and fifteenth counts, paragraphs 36-37.
The plaintiff also alleges conduct by a former Board chairman, including that, in June 2003, he sent her a sexually oriented email. That individual is not a party to this matter. Also, she alleges that the Board sustained her complaint about his conduct. See complaint, fourteenth, fifteenth, and sixteenth counts, pars. 4-5.
In their motion to strike, the movants contend that the challenged counts are legally insufficient because the plaintiff has not alleged facts supporting her legal conclusions that the defendants' conduct was extreme and outrageous. In response, the plaintiff argues that she has alleged that she was treated in an extreme and outrageous fashion, including widely public humiliation.
II STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
III DISCUSSION
The four required elements of a claim for the intentional infliction of emotional distress are: "(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! 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
"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 . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Thus, the legal sufficiency of a count which alleges the intentional infliction of emotional distress may be tested by a motion to strike. See Dollard v. Board of Education, 63 Conn.App. 550, 551 n. 2, 777 A.2d 714 (2001).
The Supreme Court has explained that the employment relationship itself necessarily involves certain normal expectations of individuals about conduct, which may involve emotional distress. "It is clear that such individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, 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. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002).
As a whole, the conduct described in the challenged counts is less than "extreme" and "outrageous" in nature. Berry v. Loiseau, 223 Conn. 786, 614 A.2d 414 (1992), cited by the plaintiff, presented facts significantly more serious than those alleged here. There, the plaintiff-employee "was subjected to repeated physical abuse by [a company vice president], including being punched and choked." Id., 793. No factual allegations are set forth here concerning violence or threatened violence. Also absent are allegations against the movants involving "racial, ethnic, religious and sexual slurs." Leone v. New England Communications Corp., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72).
The conduct alleged in the challenged counts is equivalent to that which was deemed insufficient to sustain a claim for the intentional infliction of emotional distress in recent appellate decisions. For example, Dollard v. Board of Education, supra, concerned allegations bearing some similarity to those involved here, including public criticisms. "The plaintiff was employed as a school psychologist by the defendant board of education of the town of Orange (board), and was supervised by the defendants Patricia Miller, Nicholas Tirozzi and John Kowal . . . In 1998 and early 1999, the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position or to become so distraught that they would have a colorable basis for terminating her employment. The defendants carried out their plan by hypercritically examining every small detail of her professional and personal conduct. Specifically, the defendants transferred the plaintiff to a school where she did not want to be assigned and then secretly hired someone to replace her at the school from which she had been transferred. The defendants also publicly admonished the plaintiff for chewing gum, being habitually late, being disorganized and not using her time well. Finally, the defendants unnecessarily placed the plaintiff under the intensive supervision of a friend of Tirozzi. The defendants ultimately forced the plaintiff to resign." (Footnote omitted.) Id., 63 Conn.App. 552-53.
The Appellate Court affirmed the trial court's granting of a motion to strike. "The court properly struck the plaintiff's claim of intentional infliction of emotional distress because the plaintiff did not plead facts that support her allegation that the defendants' conduct was extreme and outrageous." Id., 63 Conn.App. 554.
Similarly, in Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 808 A.2d 1149 (2002), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006), the plaintiff's allegations against his employer included 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." Id., 73 Conn.App. 577. They also included, as do the plaintiff's allegations here, that a person in authority falsely accused him of serious misconduct. "The plaintiff alleged further that . . . a supervisor falsely accused the plaintiff of endangering a patient's life." Id. The Appellate Court stated, "[T]aking the facts together or in isolation, we cannot say that this 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." (Internal quotation marks omitted.) Id., 579.
Subsequently, in Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), another employment case, which involved, as do the claims here, allegations of serious misconduct against the plaintiff employee, the Appellate Court summarized the alleged facts: "[t]he plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling company funds and requested that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotional upset." Id., 332-33.
After summarizing the allegations in Dollard v. Board of Education, supra, and Appleton v. Board of Education, supra, the court affirmed the granting of summary judgment as to the intentional infliction of emotional distress claim, stating, "[a]lthough the conduct alleged in this case may have been distressful or hurtful to the plaintiff, it was not outrageous or extreme." Id., 75 Conn.App. 333.
The plaintiff's presentation does not address these recent Appellate Court decisions. The plaintiff refers the court to various Superior Court decisions, most of which predate Dollard v. Board of Education, supra, and Bator v. Yale-New Haven Hospital, supra, and all of which predate Carnemolla v. Walsh, supra. For example, in her response to the motion (#138), page 8, she cites Ferraro v. Stop Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.), 2000 Conn.Super. LEXIS 1404, and several Superior Court cases referred to therein. Each of these decisions was rendered before the Appellate Court decisions discussed above.
Also, the facts in Ferraro v. Stop Shop Supermarket Co., supra, are clearly distinguishable from those alleged here, since they involved allegations of physical violence. There, the plaintiff, a meat cutter, alleged that his supervisor publicly harassed him, swore at him, and ridiculed him. He also alleged that, on one occasion, while the plaintiff had a knife in his hand, his supervisor threw a piece of meat at the plaintiff, causing him distress by the likelihood that he would sustain a severe injury by being cut with the knife. See id., *2-3. The court stated that "most of the actions cited by the plaintiff do not, at least individually, rise to the level of extreme and outrageous conduct. It is, however, troubled by the allegation that [the supervisor] threw a piece of meat at him while the plaintiff was working at the cutting table with a knife." Id., *17-*18. Here, in contrast, as stated above, no allegations of physical violence are involved.
The plaintiff also cites Johnson v. Teamsters Local 599, 102 F.3d 21 (1st Cir. 1996). There, it was alleged that, after various union members threatened the plaintiff's life and subjected him to racist epithets, and guards escorted him to and from work, and watched over his home, he left his employment. See id., 23-24. After his departure, a union officer drove by his home several times a day for a period of three weeks. The court concluded that the officer's conduct was extreme and outrageous since he knew that the plaintiff had just resigned after working "in a viciously hostile work environment." Id., 25. Here, in contrast, there are no allegations of racial epithets, physical threats or stalking.
The allegations here include claims that the defendants concocted false and malicious accusations that the plaintiff failed to do her job properly. These claims of false accusation amount to behavior equivalent to the concerted plan to sabotage the plaintiff which the Appellate Court found to be legally insufficient in Dollard v. Board of Education, supra. They fall within the wrongful, yet not extreme and outrageous, conduct which one may expect to encounter in an employment relationship. See Perodeau v. Hartford, supra, 259 Conn. 757 (it is to be expected that an employee will be subject to "disciplinary or investigatory action arising from actual or alleged employee misconduct"). (Emphasis added.) Thus, the allegation that the plaintiff was required to meet with the Board as part of its investigation of the charges of misconduct made against her, even though she was on disability leave (see plaintiff's response to the motion to strike, page 12), does not rise to the actionable level.
Likewise, her allegations of public humiliation in connection with allegations concerning her employment performance are insufficient. In Crane v. Northwestern CT Young Mens Christian Assoc., Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 04 4001019 (May 25, 2005, Bozzuto, J.), which arose out of claimed injuries and losses allegedly sustained by the plaintiff as a result of being fired from her job as a swim coach at the YMCA, the plaintiff alleged that defendants spoke and/or published statements via letter and email to the parents of the members of the swim team she coached saying that she was "combative and ineffective." (Internal quotation marks omitted.) She alleged that the defendants "intentionally caused her emotional distress by speaking and/or publishing defamatory statements about her capabilities as a swim coach to the parents of the members of the swim team she coached . . . [She] allege[d] that [a] defendant . . . willfully and maliciously contacted her other employer seeking a swim coach recommendation with knowledge that she was the only swim coach at that facility and with knowledge that such inquiry would cause the plaintiff's employer to question why she was terminated from her coaching position at [the] . . . YMCA." Id.
The court concluded, "[c]ourts have placed a very high burden on those claiming extreme and outrageous conduct . . . While the statements and actions of the defendants may have been rude, inappropriate and potentially harmful to the plaintiff's career as a swim coach, their behavior does not rise to the level of extreme and outrageous conduct." (Citation omitted.) Id.
Similarly, in granting a motion to strike in Langer v. Mail Delivery Courier Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4008535 (February 9, 2006, Hiller, J.), the court summarized the alleged statements made by two of the defendants to and about the plaintiff, in front of his daughter, shortly after his employment was terminated: "[plaintiff] was a thief, a liar . . . Oh yeah, yeah, [plaintiff] is a b___, many customers smelled strong alcohol odor on his breath in the daytime . . . He was a useless cheat, a loafer, a common drunkard . . . I am glad [plaintiff] is gone for good, customers hated him, because he was a no good b___ . . . True, [plaintiff] was a thief, who always complained too much, and took my money." (Expletives deleted; internal quotation marks omitted.)
The court concluded, "In making these statements the defendants insulted the plaintiff, called him names and made vague, unsubstantiated claims against him. Nevertheless the conduct cannot be described as `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.' Carrol v. Allstate Ins. Co., supra, 262 Conn. 443." Id. The movants' conduct and statements, as alleged here, likewise do not rise to that level.
The plaintiff has not alleged facts to show that any meeting was conducted in an outrageous manner. She has not alleged facts to support the conclusion that she was required to meet with the Board under "harsh and threatening conditions." See complaint, fourteenth and fifteenth counts, paragraph 36.
Likewise insufficient are the plaintiff's allegations as to how she was treated concerning her alleged disability. In Pudim v. Colella, Docket No. 3:04 CV 1579 (PCD), 2004 WL 2750315 (D.Conn., November 22, 2004), *3, the court, in denying a motion to dismiss, described the plaintiff/public elementary school teacher's allegations, which included that she suffered from a physical disability of one hand. "[R]equiring [p]laintiff to submit lesson plans and daily reflections, and to correct and evaluate student work while out on long-term sick leave, although potentially excessive and uncalled for, was not so atrocious as to exceed all bounds usually tolerated by decent society." In contrast, "[d]efendants' requirement that [p]laintiff's work be handwritten was new and unique compared to those imposed upon other teachers employed by the Seymour Board of Education and rather than failing to accommodate [p]laintiff's disability, [d]efendant created a unique situation to exploit it." Id.
Here, the plaintiff has not alleged facts showing that the movants created a unique situation in order to exploit her alleged disability. Concerning her disabled status, there is no allegation that the plaintiff was taunted or that any action was taken intentionally due to her disability.
In plaintiff's response to the motion to strike, page 12, she asserts that she was forced to return from a disability leave to be interrogated. The plaintiff provides no specific allegation as to any movant's knowledge of how responding to the investigation at a particular time would have impacted her disability.
Also, the plaintiff's vague allegations that Suchinski and Schaffrick withheld and hid information from her, made outrageous and unfair demands on her, and ignored communications from her attorney and her medical providers, are presented without supporting factual allegations. The plaintiff's other allegations of wrongful conduct, such as delaying pension benefits and refusing to return her personal property, also do not rise to the extreme and outrageous level.
In summary, as a whole, the plaintiff's factual allegations do not amount to the atrocious and utterly intolerable behavior which is necessary to support this cause of action. The conduct alleged is insufficient as a matter of law to meet the standard of extreme and outrageous conduct, which is required in order to sustain a claim for the intentional infliction of emotional distress.
CONCLUSION
For the foregoing reasons, the movants' motion to strike the fourteenth, fifteenth, and sixteenth counts of the complaint is granted.
It is so ordered.