Samuela Mikhael v. H.S. Eagle Road Associates, LLC
-- October 20, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 107 DATED JUNE 28, 2010
I FACTS AND PROCEDURAL HISTORY
The plaintiff, Samuela Mikhael, brings this action against the defendants, H.S. Eagle Road Associates, Northeast Casual Food LLC, Casual Food LLC and Robert Henschel. In her revised complaint filed November 19, 2009, the plaintiff alleges the following facts.
On or about February 15, 2007, the plaintiff was hired by the defendants, who operated Houlihan's Bar & Grill Restaurants throughout Connecticut. Following completion of her training, the plaintiff was stationed in the Glastonbury location to work as a floor manager. While working at the Glastonbury location, the general manager, Tim Ashby, continuously asked the plaintiff to go for drinks after work, propositioned the plaintiff and asked the plaintiff to go on dates. The plaintiff complained to management about these requests, but Ashby was never disciplined.
In July 2007, the plaintiff was moved to the Danbury location of Houlihan's Bar & Grill. While the plaintiff was working at the Danbury location, she noticed that the general manager of the Danbury location, David Doxie, made offensive comments directed towards women who were either customers or employees. The plaintiff was offended by the comments and advised Doxie to stop. Doxie continued to make the comments despite the plaintiff's objections. At one point, Doxie approached the plaintiff from behind in her office and placed both of his hands upon her breasts. Subsequent to this incident, the plaintiff complained to the head of operations for the defendants, Dean Marino.
At or around the same time, the plaintiff also advised upper management that Doxie was drinking alcoholic beverages while working and that staff members may have been using drugs in the restaurant. Doxie was suspended for one week, after which he returned to work at the Danbury location. On February 23, 2008, the plaintiff was offered the position of assistant general manager at the Stamford location. On February 24, 2008, the plaintiff, after speaking with her brother, learned that Henschel, a principal and owner of H.S. Eagle Road Associates, LLC and Northeast Casual Food, LLC, spoke with her brother about her employment. Henschel told the plaintiff's brother that the plaintiff had used illegal drugs, including cocaine, while working at the Danbury location. Henschel also advised the plaintiff's brother that there was a tape recording which depicted the plaintiff's purse being opened and cocaine spilling out onto the manager's desk. When the plaintiff confronted Henschel about the conversation with her brother, Henschel terminated her employment.
Accordingly, in counts one through six, the plaintiff states the following claims against H.S. Eagle Road Associates, LLC and Northeast Casual Foods, LLC: (1) violation of General Statutes § 46a-60 and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; (2) discrimination on the basis of sex in violation of General Statutes § 46a-60 and Title VII; (3) hostile work environment in violation of Title VII and General Statutes § 46a-60; (4) wrongful discharge; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress. Counts seven and eight state the following claims against Robert Henschel: (7) violation of General Statutes § 46a-60(a)(4); (8) defamation.
On March 11, 2010, the defendants filed a motion to strike the fourth, sixth and eight counts of the plaintiff's revised complaint, as well as a memorandum of law in support of their motion. The plaintiff filed a memorandum of law in opposition to the defendants' motion on April 15, 2010. On April 29, 2010, the defendants filed a reply memorandum. The court heard this matter at short calendar on June 28, 2010.
“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.” R.K. Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). 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.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted). Id.
A. Wrongful Discharge
The defendant argues that count four should be stricken because the plaintiff has an adequate statutory remedy available to her. Since the plaintiff has already asserted claims of discrimination and wrongful termination under both state and federal law, these claims would permit the plaintiff to recover all damages caused by her termination. The plaintiff concedes that if there is an adequate statutory remedy for the allegations utilized to support the claim of wrongful discharge, then an action for wrongful termination must be stricken. Nevertheless, if the statutory remedies available to the plaintiff do not relate to the specific conduct and allegations supporting a wrongful termination, or they are inadequate, the claim is legally sufficient. Moreover, a cause of action for wrongful termination will stand if the termination violates public policy. The plaintiff contends that she has alleged a violation of public policy by indicating in count four that the conduct of the defendants was in retaliation for her complaining about consumption of alcohol and drug use by fellow employees, violating Connecticut's public policy against drug use in the work place.
As a general rule, an employer is free to terminate an at-will employee's employment with impunity. Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471,427 A.2d 385 (1980), our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges “a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) Id., at 475. In such cases, the plaintiff may have a common-law cause of action against the employer. Campbell v. Plymouth, supra, 74 Conn.App. 74. The public policy exception, however, is to be construed narrowly. Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).
In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: “A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” (Emphasis added; internal quotation marks omitted.) Id., at 648; see also Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 159-60.
In this case, the plaintiff alleges that she was terminated in retaliation her complaints about consumption of alcohol and possible drug use by the employees. However, this court concludes that because the plaintiff has a remedy under her claims of discrimination and wrongful termination under both state and federal law, she is not “otherwise without [a] remedy,” Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn.App. 648. See, e.g., Good v. Goodway Technologies Corp., Superior Court, judicial district of Fairfield, Docket No. 325462 (September 27, 1996, Hartmere, J.) (“cases make clear that the existence of a statutory remedy, regardless of its scope, will bar a common law wrongful discharge claim”); Dais v. Laidlaw Transit, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 146079 (March 29, 1996, Ryan, J.) (16 Conn. L. Rptr. 392) (“Superior Courts have consistently held that a cause of action for wrongful termination exists only when a discharge violates public policy and the employee is otherwise without a statutory remedy”); Deura v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 140029 (April 10, 1995, D'Andrea, J.) (14 Conn. L. Rptr. 49) (public policy against discrimination that plaintiff invokes, in part, through § 46a-60(a)(1) is protected by statutory remedies and therefore cannot support an action in wrongful discharge). Thus, the defendant's motion to strike count four is granted.
B. Negligent Infliction of Emotional Distress
The defendants argues that count six is barred by Connecticut law and should be stricken because without some unreasonable conduct in the termination process a claim for negligent infliction of emotional distress in the employment context should fail. The plaintiff responds to the defendants' position by arguing that the termination process, as described in the allegations, was wrongful. On February 23, 2008, the plaintiff was offered a position of assistant general manager. At or around the same time, the plaintiff discovered that the Henschel had made statements to her brother regarding her alleged use of illegal drugs while at work. Immediately thereafter, the plaintiff contacted Henschel to confront him about the statements made to the plaintiff's brother, during which time Henschel terminated the plaintiff.
“To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: (1) that the [defendant] 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.) Davis v. Davis, 112 Conn.App. 56, 65, 962 A.2d 140 (2009).
Our Supreme Court in Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002), held that a employer is not 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.” In reviewing negligent infliction of emotional distress in the employment context, “[t]he dispositive issue ․ [is] whether the defendant's conduct during the termination process was sufficiently wrongful such 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.” (Emphasis in original; internal quotation marks omitted.) Id., at 751. “Accordingly, 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 ․ The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.” (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
In the present case, count six does not allege any unreasonable conduct in the discrete act of termination. All of the allegations center on the events that led up to the plaintiff's termination and were therefore part of a continuation of her employment. 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. Thus, there is no allegation made against the defendants of conduct transgressing the bounds of socially tolerable behavior in the discrete act of terminating the plaintiff's employment, and count six is legally insufficient as pleaded and must therefore be stricken.
The defendant argues that count eight, a claim for defamation, is insufficient and should be stricken for two reasons: first, the claim alleges nothing about the plaintiff's reputation nor whether her reputation suffered any injury as a result of the allegedly defamatory statements; second, the revised complaint does not identify any allegedly defamatory statements. The plaintiff responds to the defendants' position by arguing that she has clearly alleged defamation by Henschel. Specifically, the plaintiff argues that she has stated and alleged that Henschel advised her brother that the plaintiff was utilizing illegal drugs such as cocaine and had proof. Furthermore, the plaintiff alleges that these statements were slanderous per se and have caused her to suffer humiliation, anxiety, emotional distress, loss of her reputation and interference with her family relationship.
“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ 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.” Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009).
“[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.” (Internal quotation marks omitted.) Winters v. Concentra Health Services, Superior Court, judicial district of New Haven, Docket No. CV 07 5012082 (March 5, 2008, Thompson, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 980486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) (“[a] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom”). Connecticut courts require that a plaintiff must plead a defamation case with specificity because “[t]here are a number of special defenses ․ that may be appropriate, depending on the nature of the statements alleged to have been made.” Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 02 0097138 (December 16, 2005, Beach, J.) (40 Conn. L. Rptr. 565, 570). If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses.
In the present case, the plaintiff alleges that Henschel, in the course of his discussion with the plaintiff's brother, made false statements regarding the plaintiff's drug use. Furthermore, the plaintiff alleges that her reputation has suffered and she has sustained emotional distress, humiliation, anxiety and interference with her family relationship. These allegations are sufficiently specific and adequately state that Hensehel made false statements that disparaged the plaintiff's reputation. Accordingly, the defendants' motion to strike count eight is denied.
For the foregoing reasons, the court grants the motion to strike as to counts four and six. The court denies the motion to strike as to count eight.
Marano, Richard M., J.