Opinion
No. CV08 5005693S
May 13, 2010
MEMORANDUM OF DECISION
The defendants, Charlotte Russe, Inc. (Russe) and Carla DeCarvalho, have moved to strike counts two-A and two-B, which contain allegations of intentional infliction of emotional distress, counts three-A and three-B, which contain allegations of negligent infliction of emotional distress, and count four, which contains allegations of tortious interference.
The plaintiff, Melissa Winner, alleges that she was employed by Russe and became the senior associate store manager of its Milford, Connecticut store. She alleges that she suffered a work-related injury, filed a workers' compensation claim, and took medical leaves of absence. She claims that after returning to work, DeCarvalho, who was her supervisor, accused her of faking the injury, called her useless, suggested she should quit, mocked her injury, told her she was under investigation and would be fired, assigned her work beyond her known restrictions, and assigned her to work more than twenty hours per week. The plaintiff also alleges that both defendants changed the terms and conditions of her employment by changing her hours and putting her on a performance improvement plan. She also alleges that she received several "unwarranted and unjustified letters of warning" and was terminated for creating a hostile work environment.
The defendants have now filed a motion to strike and a memorandum of law attacking the counts alleging intentional infliction of emotion distress, negligent infliction of emotional distress, and tortious interference. The plaintiff filed an objection and a memorandum of law in opposition, and, in response, the defendants filed a reply memorandum of law.
Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[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).
The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
Intentional Infliction of Emotional Distress
The plaintiff contends that counts two-A and two-B must be stricken because they do not allege conduct sufficiently severe to constitute a claim for intentional infliction of emotional distress.
To set forth a claim of intentional infliction of emotional distress, a plaintiff must plead facts sufficient to establish four elements: "(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). Thus, "[l]iability 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!" (Citation omitted; internal quotation marks omitted.) Id., 443. "It is also well-settled that whether a defendant's conduct is sufficient to satisfy the requirement that the conduct be extreme and outrageous is at the outset a question for the court to decide. Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000)." Pinckney v. Miss Porter's School, Inc., Superior Court, judicial district of New Britain, Docket No. CV 08 5009273 (March 30, 2009, Tanzer, J.).
In Pinckney v. Miss Porter's School, Inc., supra, Superior Court, Docket No. CV 08 5009273, Judge Tanzer provided a helpful summary of decisions examining whether particular allegations were sufficient to set forth claims for intentional infliction of emotional distress in the employment context: "In Dollard v. Board of Education, 63 Conn App. 550, 551 n. 2, 777 A.2d 714 (2001), the plaintiff, a school psychologist, was supervised by three individual defendants. The complaint alleged that the individual defendants jointly engaged in a concerted plan to force the plaintiff to resign her employment or become so distraught that they would have a basis for discharging her. The plaintiff alleged that defendants hypercritically examined every detail of her professional and personal conduct; transferred her to a school where she did not want to be assigned and secretly hired someone to replace her; publicly admonished plaintiff for chewing gum, being late, and being disorganized and not using her time well; and placed her under intensive supervision. The complaint alleged that defendants forced plaintiff to resign. The Appellate Court affirmed the trial court's granting of defendant's motion to strike, finding that these allegations were not sufficiently extreme and outrageous.
"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 Appellate Court affirmed the granting of a motion to strike. There the plaintiff alleged that he was required to report for duty when he was under a physician's care, and was recommended for discipline when he failed to report; that a person in authority falsely accused the plaintiff of serious misconduct and of endangering a patient's life. The court found such allegations insufficiently outrageous.
"In Carnemolia v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, [cert. denied, 263 Conn. 913, 821 A.2d 768] (2003), the court summarized the essential 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 request[ed] 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 emotion[al] upset.' Id., 332-33. Nevertheless, the court found such allegations insufficient to satisfy the requirements of pleading a case of intentional infliction of emotional distress. The court noted that while the conduct may have been `distressful or hurtful,' it was not outrageous. Id., 333 . . . See also Schmidt v. Housing Authority . . . Superior Court, judicial district of New Britain, Docket No. 06 5001979 (October 4, 2007, Shapiro, J.) (motion to strike granted where defendants made false and misleading statements that the plaintiff 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; repeatedly republished the same untrue and misleading representations; spread rumors and innuendos about her; and caused the plaintiff to be terminated from her employment; withheld and hid information from her, created pretexts for investigati[ng] and terminating her, and demanded that she report to work while she was disabled and on approved leave). See also Crane v. Northwestern [Connecticut] Young Men's Christian . . . Superior Court, judicial district of Litchfield . . . [Docket No. CV 04 4001019] [May 25, 2005, Bozzuto, J.] (defendants spoke and/or published defamatory statements about plaintiff's capabilities as a swim coach, and maliciously contacted plaintiff's other employer); Langer v. Mail Delivery Courier Services, Inc., Superior Court, judicial district of Fairfield . . . Docket No. CV 05 4008535 [February 9, 2006, Hiller, J.] ([allegations that] defendants made statements in front of plaintiff's daughter that plaintiff was a thief and a liar, and that customers smelled alcohol on his breath, that customers hated him, and that he was a useless cheat, loafer and common drunkard . . . were insufficient to support a claim of intentional infliction of emotional distress)." Pinckney v. Miss Porter's School, Inc., supra, Superior Court, Docket No. CV 08 5009273. Returning now to the allegations at issue in counts two-A and two-B of the plaintiff's complaint, the court finds that even when it views them in a light most favorable to the plaintiff, the defendants' alleged conduct does not rise to even the level of conduct found insufficient to support an intentional infliction of emotional distress claim in the cases described above. Nothing alleged satisfies the requirement of conduct so atrocious that it exceeds all bounds of decency and is utterly intolerable in a civilized society. Therefore, the motion to strike is granted as to counts two-A and two-B.
Negligent Infliction of Emotional Distress
The defendants next move to strike counts three-A and three-B, which both assert causes of action for negligent infliction of emotional distress. The defendants argue these counts fail to set forth allegations of conduct that are legally sufficient to constitute a cause of action for this tort. The negligent acts alleged in these counts are: "(a) terminating [and participating in the termination of the plaintiff] following her return from a medical leave of absence necessitated by a work related injury for a pretextual reason, when [the defendants] knew or should have known this reason was false; [and] (b) falsely accusing [the plaintiff] during the termination process of creating a hostile environment when [the defendants] knew or should have known that this was false and that, in fact, [the] [d]efendants' had created a hostile environment towards [the plaintiff] because of her work related injury and/or because she had a workers' compensation claim."
Under Connecticut law, "negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . Accordingly . . . [t]he mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002). There must be "evidence that the manner of the plaintiff's termination from employment was different . . . from the usual termination of employment or that it was done in [a] way that would cause . . . more than the normal upset that would result from any termination of employment." (Internal quotation marks omitted.) Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 480-81, 714 A.2d 1261 (1998).
In Perodeau v. Hartford, supra, 259 Conn. 762-63, our Supreme Court ruled that a person "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." When determining the period of time that constitutes the termination of employment, "[l]anguage such as conduct in the `discharge process' is not used; such language perhaps would contemplate a more expansive time frame [than is relevant]. Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means the ending, not the conduct which causes the ending." Michaud v. Farmington Community, Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 806951 (September 25, 2002, Beach, J.) ( 33 Conn. L. Rptr. 206, 208).
In the instant case, the plaintiff does not allege any unreasonable conduct in the discrete act of termination. All of her allegations center on events that were part of a continuation of her employment, or assert that the defendants provided a false reason for her termination as a pretext for the actual cause of her dismissal, her work-related injury and subsequent workers' compensation claim. Again, allegations of events that occurred in the context of the continuation of employment may not be used to support a claim for negligent infliction of emotional distress. Perodeau v. Hartford, supra, 259 Conn. 762-63. Furthermore, an allegation of improperly motivated termination for discriminatory reasons, without more, is insufficient to establish a prima facie case of negligent infliction of emotional distress. See Miner v. Cheshire, 126 F.Sup.2d 184, 198 (D.Conn. 2000), and cases cited therein. Thus, there is no allegation made against either defendant of conduct transgressing the bounds of socially tolerable behavior in the discrete act of terminating the employment, and counts three-A and three-B are therefore legally insufficient as pleaded. The motion to strike, as it pertains to counts three-A and three-B, is therefore granted.
Tortious Interference
In count four, which is directed solely at DeCarvalho, the plaintiff alleges that DeCarvalho was, at all times material to the complaint, the manager of the store where the plaintiff worked, and that she tortiously interfered with plaintiff's employment contract by making false, malicious and defamatory statements about her and/or requiring her subordinates and co-workers to write similar statements. She alleges that these actions were taken for improper purposes and were motivated by personal feelings and animosity towards the plaintiff, all of which was unrelated to the legitimate business interests of DeCarvalho's employer, Russe. The defendants contend that count four is legally insufficient as pleaded because, as an agent of Russe, DeCarvalho could not have tortiously interfered with her principal's contractual relationship unless she was acting outside the scope of her employment. The defendants assert that no such allegation is made in count four.
One who is a party to the contract or business relationship itself cannot tortiously interfere with the contract. Appleton v. Board of Education, 53 Conn.App. 252, 267, 730 A.2d 88 (1999), rev'd in part on other grounds, 254 Conn. 205, 757 A.2d 1059 (2000). "An agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract. Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Sup. 725, 733 (D.Conn. 1979). An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. Id. In Vassardakis v. Parish, 36 F.Sup. 1002, 1004-05 (S.D.N.Y. 1941), the court held that an officer or employee actuated solely by self-interest could be held liable in tort for inducing his principal to dismiss another employee. Still later, the court in Bradkin v. Leverton, 32 N.Y.App. Div.2d 1057, 1058, 303 N.Y.S.2d 1020 (1969), stated that tort liability should be swiftly imposed whenever an officer, director, employee or stockholder induces a breach of contract for private benefit or to satisfy personal feelings against a third party. The Connecticut rule as enunciated in Bowman relied on Bradkin." Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 60-61, 480 A.2d 610 (1984).
The court has reviewed the allegations made in count four. In it, the plaintiff alleges that DeCarvalho, in taking the charged interfering measures, was acting in her own interest for improper purposes, and was motivated by personal feelings and animosity towards the plaintiff that were unrelated to a legitimate business interest of Russe. The court finds that these allegations are sufficient to state a claim of tortious interference, and the motion to strike, as it pertains to count four, is therefore denied.
Conclusion
For the foregoing reasons, the defendants' motion to strike is granted as to counts two-A, two-B, three-A and three-B. It is denied as to count four.