Opinion
No. CV06-5001328S
August 15, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114
This action arises out of the termination of an employment relationship between the plaintiff, Raizy Wilk, and the defendants, Kent Luman, Abbott Terrace Health Center, Inc. (Abbott), and Athena Health Care Associates, Inc. (Athena). On March 12, 2006, the plaintiff filed a seventeen-count complaint. In response to several requests to revise, the plaintiff filed a twenty-nine-count second amended complaint on January 26, 2007, which is the operative complaint in the present action. Therein, she alleges the following facts.
in September 2005, the plaintiff interviewed for a social worker position at Abbott Terrace Health Center, a skilled nursing and rehabilitation facility owned and operated by Abbott and Athena. Luman, the administrator of Abbot possessing hiring and firing responsibilities, conducted the interview and behaved in a manner calculated to instill fear and discomfort in the plaintiff, making inappropriate comments and jokes. He also represented that the position included a certain hourly pay. The defendants were aware that the plaintiff was a well respected teacher and social work intern at various private schools, but that her decision to leave teaching was based on a desire to work with the elderly and to pursue a doctorate in clinical psychology. Luman offered her the position by phone on September 28, 2005, although the terms were substantially less favorable than those he represented in the interview. She accepted, based largely on assurances by Luisa Jones, head of Abbott's social services department, that the position would require very limited involvement with Luman.
The plaintiff began working as a social worker on October 3, 2005, and was given a document entitled "Abbott Terrace Health Center Personnel Manual," which characterized her as an at-will employee, able to be terminated "for any reason." It also stated that staff should be encouraged to bring any problems or concerns to the attention of upper management, including Luman and Athena, and that "at no time should [an employee] fear that voicing a concern or putting it in writing will adversely affect [her] job."
On October 9, 2005, the plaintiff was told that her annual salary would be reduced by thousands of dollars. She spoke to Luman later that day, who stated that his budget could allow for no more than the reduced salary. She then told him she would be leaving because she could not work for less than she was offered; Luman then took out a calculator and, after a few seconds, said he found a way to reinstate the hourly rate she had previously accepted.
In mid-November 2005, the plaintiff was told by Louise Bozzuto, assistant director of nursing for Abbott, that representatives of Athena would be visiting Abbott to seek information from employees and that Bozzuto had already filed a formal complaint against Luman. Bozzuto encouraged the plaintiff to relate any negative experiences with Luman. The representatives from Athena visited in mid-December 2005, during which visit Luisa Jones told the plaintiff that all of the department heads had had negative experiences with Luman, and she was again encouraged to relate her own negative experiences to the Athena representatives. The plaintiff did so during a meeting with the social workers, nurses and representatives, at which she also learned that many other employees had negative experiences with Luman as well.
The plaintiff, in early December, informed Luman that she wished to take time off in late January to attend her brother's wedding overseas; he replied that she should not take the days off until after Abbott's annual regulatory survey but that otherwise she could confidently purchase tickets. The survey occurred between January 9 and 11, 2006; afterwards, Judith Hyland, director of social work administration for Athena, congratulated the plaintiff for the survey's success and told her she could attend her brother's wedding without concern. On January 12, 2006, however, Jones asked the plaintiff about her travel plans, then left the room and returned, falsely claiming that Luman had called the plaintiff in to voice his displeasure at her intention to take time off.
On January 16, 2006, the plaintiff entered Luman's office to discuss her travel plans; Luman insisted that Jones be present and the door be closed. When the plaintiff restated her intention to travel abroad, Luman began to scream at and berate the plaintiff, castigate her lest she interrupt his harangue, and lean above her threateningly, trapping her in her chair. She told him that she felt unsafe and requested the presence of Abbott's administrative assistant, which only prompted Luman to point his finger very close to her face and demand that she surrender her key and badge and order Jones to escort her from the building. On the same day, Abbott published a termination evaluation form with Jones' signature indicating "insubordination" as the reason for the plaintiff's termination, even though, as reflected in her personnel record, she never engaged in conduct amounting to insubordination.
As a result of this conduct, the plaintiff saw a physician for severe distress and anxiety. Because she was pregnant — a fact she informed her coworkers of in early January, — she was advised not to take necessary medicine, increasing her anxiety. She ultimately developed a stress-induced and likely permanent thyroid condition caused or exacerbated by the defendants' conduct. She seeks damages for medical bills, lost wages and benefits, and emotional distress.
On March 12, 2007, the defendants moved to strike counts one, three, four (recklessness against Luman, Athena and Abbott, respectively), five, six (wrongful termination against Abbott and Athena, respectively), seven through nine (breach of implied contract against Luman, Abbott and Athena, respectively), ten through twelve (promissory estoppel against Luman, Abbott and Athena, respectively), thirteen (assault against Luman), fifteen through seventeen (defamation against Luman, Abbott and Athena, respectively), eighteen through twenty (intentional misrepresentation against Luman, Abbott and Athena, respectively), twenty-one through twenty-three (negligent misrepresentation against Luman, Abbott and Athena, respectively), twenty-four (intentional infliction of emotional distress against Luman), twenty-five (negligent infliction of emotional distress against Luman) twenty-eight and twenty-nine (vicarious liability against Athena and Abbott, respectively). They filed a memorandum of law in support. The plaintiff filed an objection and memorandum in opposition on May 22, 2007.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint that has been stricken and . . . 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." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). "[A] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A. Recklessness: Counts one, three and four
The defendants move to strike counts one, three and four on the grounds that the plaintiff has not alleged a conscious choice of action by any defendant. They argue that the standard is more than that a person "knew or should have known" of the risk of harm and more than a failure to maintain a "reasonable degree of watchfulness," which is, at best, all the plaintiff has alleged. The plaintiff counters that the defendants need not have known their conduct would cause certain harm, merely that it "involved a highly substantial degree of risk."
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
"[W]illful, wanton, or reckless 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." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003). "Connecticut courts have not established a specific rule to help determine whether . . . particular conduct constitutes recklessness. Rather, whether the conduct is in fact reckless is a question of fact to be determined by a jury." (Citations omitted; internal quotation marks omitted.) Mackey v. Renz, Superior Court, judicial district of Fairfield, Docket No. CV 03 0407469 (April 4, 2005, Gilardi, J.) Nevertheless, the mere fact that "recklessness" is alleged is not itself sufficient to withstand a motion to strike; "simply using the word reckless or recklessness is not enough." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 170-71, 884 A.2d 12 (2005). "There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint [of recklessness] should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . A specific allegation setting out the conduct that is claimed to be reckless . . . must be made." (Internal quotation marks omitted.) Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958). "[N]ot only must [the plaintiff] support his legal conclusion of reckless and wanton misconduct with particular allegations of fact as to the defendant's complained-of conduct, but the conduct itself, as described in the complaint, must be of such a nature as logically and reasonably to support that legal conclusion." (Emphasis added.) Dezhbod v. Robichaud, Superior Court, judicial district of Waterbury, Docket No. CV 03 0178474 (October 27, 2003, Alvord, J.)
In Foxworth v. Juliano, Superior Court, judicial district of Hartford, Docket No. CV 93 0524237 (November 3, 1993, Sheldon, J.), the plaintiff sued for injuries sustained in a motor vehicle accident, alleging, in separate counts, both negligence and recklessness. The court granted the defendant's motion to strike the recklessness count, noting that "[t]he deficiency in the plaintiff's recklessness count arises not from the mere fact that she has repeated certain of her allegations of negligence in that count, but from the nature of that conduct as she has described it." Id.; see also Dezhbod v. Robichaud, supra, Docket No. CV 03 0178474 (involving a similar situation and conclusion). In East Greyrock, LLC v. OBC Associates, Inc., Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08 CV 04 4002173 (February 7, 2006, Adams, J.) ( 40 Conn. L. Rptr. 859), the court granted a motion to strike a claim of recklessness in the disposal of hazardous waste because the plaintiff had only alleged that the defendant "knew or should have known" that the waste material was being dumped.
The present plaintiff has failed to state facts sufficient to give rise to a claim of recklessness with respect to Luman. Even if he was aware that the plaintiff was pregnant at the time and that his verbal assault might distress her, berating an employee while terminating them is hardly "an extreme departure from ordinary care" or "a situation where a high degree of danger is apparent." Matthiessen v. Vanech, supra, 266 Conn. 833. Like the conduct of the defendants in Foxworth v. Juliano, supra, Docket No. CV 93 0524237, or East Greyrock, LLC v. OBC Associates, Inc., supra, Docket No. X08 CV 04 4002173, Luman's conduct, as alleged, does not amount to more than a claim for negligence. Therefore, the motion to strike is granted as to count one.
The plaintiff's claim of recklessness with respect to the corporate defendants is premised upon different conduct, that of having knowledge that Luman had a tendency to engage in "extreme and outrageous conduct" towards other employees and yet not intervening. These claims must also fail. Knowledge that employees have had negative experiences with a particular supervisor is not knowledge that a "high degree of danger is apparent" from that supervisor's conduct. Therefore, the motion to strike is granted as to counts three and four against Athena and Abbott, respectively.
The case cited by the plaintiff, Walsh v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0137269 (September 18, 2000, Wiese, J.) ( 28 Conn. L. Rptr. 183), is distinguishable. In Walsh, the plaintiff, a ninety-three-year-old resident of Abbott, had been the recipient of threats by his roommate, who suffered from "organic brain syndrome," "adjustment disorder and cognitive disorder." Although the staff knew of this, they did nothing in response to the threats, and the plaintiff was assaulted by his roommate, causing injuries. The court denied the defendant's motion to strike a count of recklessness against Abbott. Specific threats by a mentally imbalanced individual, however, present a far more egregious, specific and likely danger than an abrasive or even verbally abusive supervisor, which is the only basis for the plaintiff's allegations of recklessness as to Athena and Abbott.
B. Wrongful termination: Counts five and six
The defendants next move to strike counts five and six, alleging wrongful termination against Abbott and Athena, respectively, on the ground that the plaintiff has failed to allege a public policy violation for which she was without legal remedy. They argue that, as an at-will employee, the plaintiff must prove that her termination meets the narrow public policy exception to the doctrine that an at-will employee can be fired for any reason or no reason at all. The plaintiff counters that, since the defendants conceded that "numerous statutes prohibit unlawful retaliation" in the workplace, they implicitly agree that a public policy violation has occurred.
"As a general rule, an employer is free to terminate an at-will employee's employment with impunity." Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003). There is a narrow exception to this rule, however; the Supreme Court has "recognized a public policy limitation on the traditional employment at-will doctrine . . . in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy." (Citations omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997). "Under the [public policy] exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy. 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." Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). The court's "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 . . . Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002).
The present plaintiff, enlisting the defendant's own argument that "numerous statutes prohibit unlawful retaliation," contends that her termination, being in retaliation for her complaints about Luman, violates a public policy against retaliatory termination of employment. Neither party has specified which statutes prohibit such conduct. The plaintiff's allegation in counts five and six that "[i]t is the public policy of the state of Connecticut for employees not to be terminated for retaliatory reasons," unsupported by any legal authority, is insufficient to establish the foundation for such a public policy. Therefore, the motion to strike counts five and six is granted.
C. Breach of implied contract: Counts seven, eight and nine
The defendants move to strike counts seven through nine for breach of implied contract on the ground that the plaintiff has not alleged that the defendants "agreed, either by words or conduct, to undertake a contractual commitment to discharge the plaintiff only for good or just cause." Moreover, the defendants argue, the plaintiff was an employee of Abbott, not Luman or Athena; therefore, she could not conceivably impute an implied contract to Athena or Luman. The plaintiff responds by arguing that the defendants' personnel manual provided that she could only be fired for a "reason." Since "insubordination" was only a pretextual reason, the plaintiff contends, the defendants really fired her for no reason and, therefore, breached the agreement embodied in the personnel manual.
As previously noted, "contracts of permanent employment, or for an indefinite term, are (generally] terminable at will . . ." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 14, 662 A.2d 89 (1995). "Accordingly, to prevail on the . . . count of [a] complaint [that] alleged the existence of an implied agreement between the parties, the plaintiff ha[s] the burden of proving . . . that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause." (Citations omitted; internal quotation marks omitted.) Id., 15.
Contrary to the plaintiff's position, the term "any reason" in the context of the personnel manual, in concert with her characterization as an "at-will" employee, can only be read to mean "any reason or no reason at all." The reading urged by the plaintiff unreasonably contorts the plain meaning of the phrase, which does not purport to set forth any contractual obligations or promises whatsoever. Even indulging the plaintiff's contention arguendo, the personnel manual does not state that the employer must specify the reason for the termination. That it might have specified a false one ("insubordination") does not prohibit it from terminating her for any other possible reason, as it was free to do. Therefore, the motion to strike is granted as to counts seven, eight and nine.
See Thibodeau v. Design Group One Architects, Inc. supra, 260 Conn. 697-98 ("[employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability").
D. Promissory estoppel: Counts ten, eleven and twelve
The defendants move to strike counts ten through twelve, sounding in promissory estoppel, on the ground that the plaintiff has failed to allege any clear and definite promise on the defendants' parts or reliance by the plaintiff on such promise, if any. They argue that the statement in the personnel manual that "at no time should [an employee] fear that voicing a concern . . . will adversely affect [her] job" is not clear; moreover, the plaintiff could not have reasonably relied upon it. The plaintiff retorts that the statement in the manual is a clear and definite promise, and that her reliance on it in expressing her problems with Luman was reasonable.
"[U]nder the doctrine of promissory [estoppel, a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all . . .
"Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendent Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003). Thus, promissory estoppel liability is based on "action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . ." (Citation omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).
The sole basis for the promissory estoppel claims is the statement in the personnel manual that "at no time should [an employee] fear that voicing a concern or putting it in writing will adversely affect [her] job." There is no allegation that Luman had any hand in drafting the personnel manual or that he made any such representations to her. There is thus no "clear and definite promise" attributable to him that the plaintiff could have relied upon. Therefore, the motion to strike is granted as to count ten.
Athena and Abbott, however, allegedly published and distributed the personnel manual to employees, and may be held liable for the statements contained therein. The defendants cite Rotzal v. Jewish Home for the Elderly, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412065 (May 26, 2006, Rodriguez, J.) ( 41 Conn. L. Rptr. 462), in support of their argument that the promises were not clear and definite. In Rotzal, a nurse employed by a nursing home was allegedly terminated in retaliation for reporting to her supervisors that certain other employees were administering substandard care to residents. She claimed that this termination contravened a provision of her employee handbook that "she would not be retaliated against if she reported suspected violations of law, regulation, standard, procedure or policy." Id., 464. The court reasoned that this language "[did] not demonstrate a clear commitment on the part of Jewish Home to discharge Rotzal only for cause. Rotzal has also failed to sufficiently plead facts showing her detrimental reliance on any alleged representations made."
This court does not find this reasoning persuasive. Construing the facts most favorably to the plaintiff, there is no reason the defendants should not expect the plaintiff to rely on the alleged statement in the personnel manual; indeed, it is possible the statements are a quality control measure upon which the defendants would prefer the plaintiff rely. The defendants also cite Perry v. SBC/SNET, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 085367 (September 12, 2005, Moran, J.T.R.), for the same proposition. In Perry, however, the court specifically noted that the plaintiff had not alleged specific statements or promises, nor did he allege the existence of an employee manual or handbook containing the promises.
This court finds more persuasive the reasoning in Holt v. Home Depot USA, Inc., United States District Court, Case No. 3:00CV1578 (D. Conn., January 22, 2004), in which the court refused to set aside a jury verdict for the plaintiff on a promissory estoppel claim where the plaintiff had relied on statements in an employee manual that he would not be terminated for making use of the defendant's open door policy. See also Gaudio v. Griffin Health Services Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 91 035730 (December 19, 1991, Sequino, J.) [ 5 Conn. L. Rptr. 785] ( 8 C.S.C.R. 235) (denying motion to strike where plaintiff alleged reliance on statements in employee manual that grievance and discipline policies and procedures would be followed before termination), aff'd in relevant part, rev'd on other grounds, 249 Conn. 523, 733 A.2d 197 (1999). In the present case, the plaintiff has alleged that she relied on the statements in her employee manual that "voicing a concern . . . [would not] adversely affect [her] job." A jury could find that this amounts to a clear and definite promise upon which the defendants should expect the plaintiff to reasonably rely. Therefore, the motion to strike is denied as to counts eleven and twelve.
E. Assault: Count thirteen
The defendants move to strike count thirteen for assault against Luman, on the ground that the facts alleged do not establish that Luman reasonably caused her imminent fear of harmful or offensive contact. They argue that words do not amount to assault, and that the apprehension must be aroused in the mind of a reasonable person; the conduct alleged, however, would not do so. The plaintiff counters that the question of whether a reasonable person would have feared harm is a question of fact that cannot be determined by a motion to strike.
"A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another." Dewitt v. John Hancock, 5 Conn.App. 590, 594, 501 A.2d 768 (1985). While no physical contact is required, the "apprehension must be one which would be normally aroused in the mind of a reasonable person." (Emphasis added.) Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06 4022391 (November 28, 2006, Robinson, J.). "Mere words . . . do not amount to an assault." American Progressive Life Health Ins. Co. v. Better Benefits, LLC, Superior Court, judicial district of New Haven, Docket No. 471359 (September 10, 2003, Blue, J.) ( 35 Conn. L. Rptr. 435, 437) (specific threats, over the phone, of physical harm to plaintiff and his family insufficient to state claim for assault).
A person's behavior must create a fear of imminent harm from an objective standpoint, and even violent behavior accompanied by threats has been held insufficient to state a claim for assault absent some clear implication of imminent harm. See Kindschi v. Meriden, supra, Docket No. CV 06 4022391 (defendant's alleged conduct including verbal threats, slamming doors and throwing objects around room insufficient to state claim for assault); Engle v. Bosco, Superior Court, judicial district of New Britain, Docket No. CV 05 4006996 (September 14, 2006, Robinson, J.) (constant verbal abuse, spitting in plaintiff's face and foaming at mouth insufficient to state claim for assault). The present plaintiff has alleged that Luman "screamed at" and "berated" her while "lean[ing] above her in a threatening manner thereby trapping her in her chair" and "point[ing] his finger very close to her face." While this was no doubt distressing to the plaintiff, what little Connecticut case law there is addressing the legal sufficiency of civil assault claims suggests that these allegations are insufficient to give a "reasonable person" apprehension of imminent harm. See, e.g., Kindschi v. Meriden, supra, Docket no. CV 06 4022391. The motion to strike count thirteen is granted.
The only case cited by the plaintiff in support of its argument, Arnold v. Thermospas, Inc., 49 Conn.Sup. 103, 107-08, 863 A.2d 250 (2004), did not involve a claim of assault at all but one of intentional infliction of emotional distress, and is irrelevant to the plaintiff's assault claim.
F. Defamation: Counts fifteen, sixteen and seventeen
The defendants move to strike counts fifteen through seventeen for defamation on the grounds that the plaintiff has not alleged that they made any false statements, and that even if she had, she has failed to allege publication to a third party. The only possible "publication," the defendants claim, was the statement of "insubordination" made in the plaintiff's personnel file, and this is insufficient because it was not made to any third party. The plaintiff counters that false statements in an employee's personnel file are sufficient to establish "publication" for the purposes of a defamation action.
"To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). The defendants' sole challenge to the plaintiff's claims of defamation in counts fifteen through seventeen is that the alleged defamatory statements were never "published."
While the grounds on the face of the motion assert that there was no false statement alleged, the defendants did not brief this argument at all; therefore, it is considered abandoned. Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned").
In Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 1, the Connecticut Supreme Court adopted what has since become known as the "intracorporate publication doctrine," whereby internal communications within a company may constitute "publication" for the purposes of a defamation claim. Id., 28, citing 3 Restatement (Second) of Torts § 577(1) ("The communication within the scope of his employment by one agent to another agent of the same principal is a publication not only by the first agent but also by the principal and this is true whether the principal is an individual, a partnership or a corporation"). In Torosyan, the alleged defamatory statement was communicated among the plaintiff's supervisors and entered in his personnel file, which conduct the court held sufficient to state a claim for defamation. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 27-28; see also Sidiropoulos v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 03 0401830 (January 9, 2004, Wolven, J.) (" Torosyan . . . holds that placing a defamatory statement in an employee's personnel file, or communicating it to the employee's supervisor, or to agents of the principal, constitutes `publication' in a defamation action").
The plaintiff has alleged that a termination evaluation form, placed into her personnel file, cited "insubordination" as the grounds for her termination. She further alleges that she did not engage in conduct that could be called insubordinate, and that Luman intentionally, recklessly and maliciously labeled her conduct as such. Therefore, she has sufficiently alleged that Luman published a false statement about her, and the motion to strike counts fifteen through seventeen is denied.
It is not entirely clear from the complaint exactly who proclaimed her to be insubordinate. The plaintiff alleges that the termination evaluation form was "signed by Ms. Jones; " however, she also alleged that "the term insubordination was intentionally, knowingly, maliciously, and recklessly published although Luman knew that such term is false . . .; " carrying at least the implication that the statement was authored or promoted by Luman. At any rate, whether it was Luman or some other agent of the corporate defendants, they also may be liable for the alleged defamation.
G. Intentional and negligent misrepresentation: Counts eighteen through twenty-three
The defendants next move to strike counts eighteen through twenty, alleging intentional misrepresentation, and twenty-one through twenty-three, alleging negligent misrepresentation, on the ground that the plaintiff has alleged no false statement by the defendants with respect to her ability to be terminated only for a "reason." They argue that it is immaterial, even if true, that "insubordination" was not the real reason for her termination. The plaintiff, in response, again points to her reliance on the personnel manual's statement that employees could be terminated "for any reason" and that the reason given, in fact, was false; therefore, she concludes, she was fired for no reason and the representation in the personnel policy manual was false.
"A cause of action for intentional misrepresentation is essentially a claim of fraud." Martinez v. Zovich, 87 Conn.App. 766, 778, 867 A.2d 149 (2005). "The essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." (Internal quotation marks omitted.) Updike, Kelley, Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).
Connecticut "has long recognized liability for negligent misrepresentation . . . [E]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1979): `One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.' " (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 217-18. Therefore, a crucial element of both torts is the conveyance of false information by the defendant.
Despite the plaintiff's contention, this court need not engage in an esoteric parsing of the term "insubordination" or its application to her. She has alleged no false statement by the defendants, an essential element of both intentional and negligent misrepresentation. As discussed above, "any reason" in the context of an at-will employment relationship simply means "any or no reason." The plaintiff's allegations, even construed liberally, do not indicate that this statement was in any way false. Therefore, she has failed to state claims for negligent and intentional misrepresentation, and the motion to strike is granted as to counts eighteen through twenty-three.
H. Intentional infliction of emotional distress: Count twenty-four
The defendants move to strike count twenty-four against Luman on the ground that the conduct alleged by the plaintiff was not extreme and outrageous. The plaintiff counters that screaming, berating and leaning over a person in a threatening manner can be sufficiently extreme and outrageous to constitute 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 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.) Carroll v. Allstate Ins. Co., 262 Conn. 433, 442-43, 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 . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
Only the most egregious conduct has been held to meet the "extreme and outrageous" element: "Liability [for intentional infliction of emotional distress] 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!" (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
In the workplace context, the threshold is even higher: "[I]t 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). In Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), for example, the plaintiff teacher's competency was questioned, and she was put on a leave of absence and required to undergo various psychological examinations before she was forced into an agreement whereby she would resign. Her supervisors made condescending remarks to her in front of her colleagues, called her daughter at home to express concerns about her, and had the police escort her out of the building to her car. The court held that this was not "extreme and outrageous" such that it supported her claim of emotional distress.
Nevertheless, it has also been held that "[t]he extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991), citing 1 Restatement (Second) of Torts § 46 comment (f). Such "position or relation" may be that of an employer or supervisor at work; see, e.g., Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV 03 0472301 (January 11, 2005, Corradino, J.) ( 38 Conn. L. Rptr. 533) (conduct by supervisor that was verbally abusive held to be extreme and outrageous); Anastasio v. Knights of Columbus, Superior Court, judicial district of New Haven, Docket No. CV 97 0396806 (May 21, 1998, Silbert, J.) (supervisor stated "that a superior should be the `enemy' of his subordinates," verbally abused plaintiff employee and took adverse actions against him without reason); Cucuel v. Fayed, Superior Court, judicial district of Fairfield, Docket No. CV 94 315420 (February 28, 1997, Levin, J.) (plaintiff's supervisors had enticed him away from his position as police officer and then terminated his employment); Watt v. Ford Consumer Finance Co., Superior Court, judicial district of Fairfield, Docket CV 95 323572 (July 31, 1996, Hauser, J.) (defaming a former employee could be extreme and outrageous, in part because, as his employer, defendant had `special relationship' with him).
Moreover, while allegations of physical contact often preclude the granting of a motion to strike an emotional distress claim; Arnold v. Thermospas, Inc., 49 Conn.Sup. 103, 107, 863 A.2d 250 (2004) ("A review of the cases addressing the definition and parameters of extreme and outrageous conduct in intentional infliction of emotional distress cases reveals that courts do not typically strike claims or grant judgments where physical contact has occurred"); at least one Superior Court decision has held that physical threats or intimidation admit of the same analysis. Id., 108.
The plaintiff has alleged that Luman had a history of abusive conduct towards her, culminating in her termination during which he screamed at and berated her, stood over her chair threateningly, thereby preventing her from getting up, and falsely declared that she was terminated for "insubordination." Coming from her supervisor, reasonable minds could differ over whether this constitutes extreme and outrageous conduct. See Benton v. Simpson, 78 Conn.App. 746 (2003) (supervisor told employee plaintiffs they were a "cancer" and constantly berated and swore at them, banging on file cabinets; court upheld finding of emotional distress); Strode v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 99 0432459 (November 8, 2002, Zoarski, J.) ("[r]easonable minds could disagree on the issue of whether an employee's filing of a false accusation that he was assaulted by a coworker satisfies the extreme and outrageous conduct element of cause of action for intentional infliction of emotional distress") Ferraro v. The Stop Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.) ("[a] job supervisor's false accusation of lying, made in the presence of one of the plaintiff's fellow employees, is sufficiently extreme and outrageous to warrant submitting the case to the jury") (citation omitted; internal quotation marks omitted); Centi v. Lexington Health Care Center, Superior Court, judicial district of New Haven, Docket No. CV 96 0383535 (May 1, 1997, Licari, J.) (defendant supervisor set unrealistic goals for plaintiff, came to her house unannounced one day, changed her assignments, and gave her a pretextual reason for termination). Therefore, since the only basis for the motion to strike as to the intentional infliction of emotional distress claim was that Luman's conduct was not extreme and outrageous, the motion is denied as to count twenty-four.
I. Negligent infliction of emotional distress: Count twenty-five
The defendants next move to strike count twenty-five for negligent infliction of emotional distress on the ground that the plaintiff has failed to allege unreasonable behavior by any defendant in the course of the termination process. They argue that, in the employment context, Connecticut law only permits a claim of negligent infliction of emotional distress for conduct occurring during the termination process, and that in the present case, the plaintiff has not alleged any conduct during the termination process that bore an unreasonable risk of causing her emotional distress. The plaintiff maintains that the opposite is true.
"[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." (Internal quotation marks omitted.) Carroll v. Allstate Ins. Co., supra, 262 Conn. 433. In the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress. Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997). Parsons also, however, "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. Moreover, only conduct surrounding the termination itself, and not during the ongoing employment relationship, is actionable. Id., 762-63.
As discussed above, the plaintiff has stated a valid claim for intentional infliction of emotional distress; therefore, she has sufficiently pleaded that "that the actor . . . knew or should have known that emotional distress was the likely result of his conduct." Carroll v. Allstate Ins. Co., supra, 262 Conn. 443. This is essentially the basis for a claim of negligent infliction of emotional distress. Importantly, the conduct she has complained of also comprised the termination process, occurring in the meeting with Luman during which she was fired and entailed in the stated "reason" for her termination. Therefore, she has also stated a claim for negligent infliction of emotional distress, and the motion to strike is denied as to count twenty-five.
J. Vicarious liability: Counts twenty-eight and twenty-nine
Finally, the defendants move to strike counts twenty-eight and twenty-nine on the grounds that the underlying counts against Luman on which liability for the corporate defendants is premised fail to state claims for relief, the plaintiff already alleged claims for negligence against the corporate defendants individually in counts twenty-six and twenty-seven, and the corporate defendants cannot be vicariously liable for the intentional acts of Luman. Accordingly, they argue that counts twenty-six and twenty-seven are duplicative. Furthermore, they argue that the conduct complained of was outside the scope of Luman's employment, a necessary prerequisite to the extension of liability for an employee's intentional torts to an employer. The plaintiff counters that acts of an employee are in furtherance of the employer's business if it is "so closely connected with what the servant is employed to do . . . that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." Luman's conduct in terminating the plaintiff, she argues, was part and parcel of his job, and, therefore, the corporate defendants may be held liable for all damages resulting therefrom.
"Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business . . . [P]ublic policy . . . requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject . . . [I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500-01, 656 A.2d 1009 (1995). "[Respondeat superior applies] to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." (Internal quotation marks omitted.) Id., 505.
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further the master's business . . . [although] there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).
1. Counts one, seven, ten, thirteen, eighteen, and twenty-one
Because the above counts have been stricken as to Luman, there is nothing for which the corporate defendants can be liable. Consequently, those portions of counts twenty-eight and twenty-nine alleging liability for the conduct alleged in counts one, seven, ten, thirteen, eighteen, and twenty-one are stricken.
2. Count two: Negligence
The defendants argue that the plaintiff has already alleged negligence against Abbott and Athena for the conduct of Luman in counts twenty-six and twenty-seven, and, therefore, that portion of counts twenty-eight and twenty-nine alleging vicarious liability for Luman's negligence are duplicative. This argument misconstrues the gravamen of the plaintiff's claims. Counts twenty-six and twenty-seven state claims for negligent supervision and retention against Athena and Abbott, respectively, and are legally distinct from the claims of vicarious liability for the negligent acts of Luman presented by counts twenty-eight and twenty-nine. Thus, they are not duplicative of counts twenty-six and twenty-seven. The motion to strike counts twenty-eight and twenty-nine is denied with respect to the claim of negligence in count two.
3. Count fourteen: False imprisonment
The defendants contend that Luman's alleged conduct occurred outside the scope of his employment because it would "not in any way promote Athena or Abbott's business." Since, however, the complained-of conduct occurred during Luman's termination of the plaintiff, a task allegedly part of his job, whether the conduct occurred "within the scope of his employment" is a question of fact that cannot be decided at the present time. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207; see also Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997) (defendant religious institution could be liable for actions of agent priest in engaging in sexual relations with plaintiff, who had been seeing him for "pastoral, spiritual and psychological counseling") Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967) (defendant store could be liable for employee's physical beating of a patron who had blown a straw wrapper on the floor). Therefore, the motion to strike counts twenty-eight and twenty-nine is denied with respect to the claim of false imprisonment in count fourteen.
4. Count fifteen: Defamation
Count fifteen alleges defamation against Luman for citing "insubordination" as the reason for the plaintiff's termination. Counts sixteen and seventeen, however, allege defamation against Abbott and Athena, respectively, for the exact same reasons; that is, the publication of the false claim that she was terminated for insubordination. Therefore, counts twenty-eight and twenty-nine, insofar as they assert claims for defamation based on respondeat superior, are duplicative of counts sixteen and seventeen, as Luman's acts are entailed in the allegations of counts sixteen and seventeen. The motion to strike counts twenty-eight and twenty-nine is thus granted as it relates to the defamation claim of count fifteen.
A corporation, after all, cannot act on its own but only through its agents. Ceci v. National Indemnity Co., 225 Conn. 165, 171, 622 A.2d 545 (1993). It matters not whether the agent of publication was Luman or some other employee; the corporate defendants may be liable for any of their agents' defamatory statements. See 3 Restatement (Second) of Torts § 577(1) ("The communication within the scope of his employment by one agent to another agent of the same principal is a publication not only by the first agent but also by the principal and this is true whether the principal is an individual, a partnership or a corporation"). That defamation is alleged generally against the corporate defendants in counts sixteen and seventeen but "vicariously" for the specific acts of Luman in counts twenty-eight and twenty-nine is of no consequence.
5. Count twenty-four: Intentional infliction of emotional distress
The plaintiff has sufficiently stated a claim for intentional infliction of emotional distress against Luman. As noted above, since the complained-of conduct occurred during Luman's termination of the plaintiff, a task allegedly part of his job, whether the conduct occurred "within the scope of his employment" is a question of fact that cannot presently be decided. Therefore, the motion to strike counts twenty-eight and twenty-nine is denied with respect to intentional infliction of emotional distress.
6. Count twenty-five: Negligent infliction of emotional distress
The defendants have not challenged the count of vicarious liability on the negligent infliction count on any basis other than that the underlying claim is defective. However, as noted above, the plaintiff has sufficiently stated a claim for negligent infliction of emotional distress against Luman, and the alleged tortious conduct occurred while he was on the job. The motion to strike counts twenty-eight and twenty-nine is denied with reference to count twenty-five for negligent infliction of emotional distress.
CONCLUSION
In summary, the defendants' motion to strike is granted as to counts one, three through ten, thirteen, eighteen through twenty-three, and those portions of counts twenty-eight and twenty-nine relating to the claims set forth in counts one, seven, ten, thirteen, fifteen, eighteen and twenty-one. The motion to strike is denied as to counts eleven, twelve, fifteen through seventeen, twenty-four, twenty-five, and those portions of counts twenty-eight and twenty-nine relating to counts two, fourteen, twenty-four and twenty-five.