Debra L. Papapietro v. Kimberly R. Charles et al (2010)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE AND MOTION FOR JUDGMENT OF NONSUIT, # 113

This matter is before the court concerning the defendant's motion to strike the plaintiff's fifth complaint, dated May 7, 2010, in its entirety, as well as the defendants' request for nonsuit.   After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.

I

FACTS

On November 21, 2009, the plaintiff filed a complaint against the defendants, Kimberly R. Charles, Danielle A. Cranin, Jason Bernstein, John R. Wildhack, David S. Berson, and Leah B. LaPlaca, all employees of ESPN Productions, Inc. (hereinafter “ESPN”) ¹ On January 27, 2010, the defendants filed a request to revise, followed by the plaintiff filing an amended complaint on February 4, 2010.   The defendants then filed a request to revise the amended complaint on February 17, 2010, and the plaintiff filed her second revised complaint on February 22, 2010.   A motion to strike was filed on March 4, 2010, and granted by the court after oral argument on March 22, 2010.  (Pittman, J.).   The plaintiff followed up with a new complaint on March 23, 2010, (hereinafter “March 23 complaint”), and the defendants filed a second motion to strike on April 7, 2010.   After oral argument, the court granted the motion to strike on April 26, 2010, finding that the plaintiff had failed to allege sufficient facts to support claims of intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, and negligent retention.  (Swienton, J.) The complaint that the defendants are seeking the court to strike in its entirety is now the fifth complaint in this action. (hereinafter “May 7 complaint”).

The plaintiff is self-represented.   The May 7 complaint is broken down into seven counts.   The first count is titled “Background,” and contains a summary of the plaintiff's allegations, but does not set forth any specific cause of action.   The remaining counts make certain allegations against one of the six individual defendants:  Count Two-against Kimberly Charles, Intentional infliction of emotional distress;  Count Three-against Danielle Cranin, Negligent infliction of emotional distress;  Count Four-against Leah LaPlaca, Defamation;  Count Five-against Jason Bernstein, Defamation and Negligent infliction of emotional distress;  Count Six-against David Berson, Negligent infliction of emotional distress and negligent retention;  and Count Seven-against John Wildhack, Negligent infliction of emotional distress and negligent retention.   The plaintiff concluded her complaint with a section entitled, “Summary,” in which she makes conclusory statements regarding each cause of action she has asserted as well as claiming that ESPN is legally responsible for the actions of all defendants under the theory of respondeat superior.   (See footnote 1 of this opinion.)

This action arose out of the plaintiff's temporary employment assignment at ESPN. She was not an employee of ESPN, but was employed by an employment agency, assigned to work at ESPN to fill in for one of their permanent full-time employees who was out on maternity leave.   She worked at ESPN from November 17, 2008, until January 14, 2009, when her assignment ended due to the ESPN employee returning from maternity leave.   During her time at ESPN, her position was as an executive assistant, with various administrative duties such as answering the telephone, printing, and copying.   She alleges that due to the actions of the defendants she suffered severe emotional distress, resulting in physical pain, and that her “good [work competence] and personal integrity reputations were defamed.”  (Complaint, Count One-Background).   The actions of the defendants allegedly have something to do with a purported “sabotage” of the plaintiff's work, involving some possible, at best, bad office behavior.   The plaintiff also alleges that because of the actions and statements of the defendants, she suffered emotional and physical injuries.

II

DISCUSSIONA. Motion to Strike

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).  “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.)  Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)   Eskin v. Castiglia, 253 Conn. 516, 523, 753 A.2d 927 (2000).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 588.   In deciding a motion to strike, “the role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

Intentional Infliction of Emotional Distress (Kimberly Charles)

“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 ․ 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 ․ 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!’  ․ 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.”  (Emphasis added;  citations omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 210-11, 757 A.2d 1059 (2000).  “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

None of the factual allegations in the plaintiff's complaint against Charles establishes extreme and outrageous conduct.   The court previously found the facts in the March 23 complaint insufficient to state a claim for intentional infliction of emotional distress.²  The plaintiff has added to those allegations that on approximately six (6) occasions during the time she worked at ESPN, Charles used a “sarcastic tone” and asked the plaintiff if she was having any computer problems.  (May 7 complaint, p. 13.)

The facts alleged, even if true, fall far short of the extreme and outrageous conduct to support a claim for intentional infliction of emotional distress.

Negligent infliction of emotional distress (Danielle Cranin, Leah LaPlaca, Jason Bernstein, David Berson and John Wildhack)

The cause of action for negligent infliction of emotional distress in the employment context only rises where it is based on the defendant's wrongful conduct during the termination process.  Percodeau v. City of Hartford, 259 Conn. 729, 752, 792 A.2d 752 (2002).   Second, the “wrongful” conduct of the defendant must transgress the bounds of socially tolerable behavior.  Id., 757.   In addition, the plaintiff must prove that the defendant:  (1) should have realized that his conduct involved an unreasonable risk of causing distress to the plaintiff;  and (2) should have realized that the distress, if caused, might result in illness or bodily harm.

None of the alleged conduct of the defendants occurred during the termination process.   The court previously found that there were insufficient facts to sustain a claim for negligent infliction of emotional distress, and the May 7 complaint does not set forth any further facts to support such a cause of action.

Defamation (Leah LaPlaca and Jason Bernstein)

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 ․” Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).   To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendants 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.  Id.

As noted several times in this decision, the court previously found that the plaintiff failed to allege sufficient facts in the March 23 complaint to sustain this cause of action.   As to LaPlaca, the only allegation which was added to the May 7 complaint was a statement from LaPlaca to an employee relations manager addressing a problem that occurred in the workplace.   As to Bernstein, the plaintiff adds to the May 7 complaint an allegation regarding an e-mail that Bernstein sent to the same employee relations manager regarding the plaintiff's position at ESPN.³ The statement is insufficient to make a claim for defamation.

Although the plaintiff alleges that her relationship with the Superior Group is presently “unhealthy and unfruitful,” and that she has not been able to secure further contract assignments at ESPN through other staffing agencies, she fails to establish that the statements of LaPlaca are the cause of these challenges.

Negligent retention

The court previously found that the facts plead in the March 23 complaint did not support a claim for negligent retention, and the plaintiff has not alleged any new facts in her May 7 complaint.   Therefore, the court again finds that the plaintiff has failed to allege sufficient facts to support such a claim.⁴

B. Motion for Nonsuit

General Statutes § 52-119 provides:  “Parties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be.”   See also, Practice Book § 10-18.   The defendants are requesting that the court grant their motion for nonsuit, arguing that the plaintiff has been given ample opportunity to allege sufficient facts in support of her claims and is still unable to do so.   In fact, this is the fifth complaint that the plaintiff has filed, and the third complaint subject to a motion to strike.

At oral argument on April 26, 2010, at which the plaintiff was present, the court found that the facts the plaintiff was alleging do not support claims for intentional infliction of emotional distress, negligent infliction of emotional distress, defamation or negligent retention, and struck the March 23 complaint in its entirety.   The plaintiff, to her credit, took the advice of the court and attempted to comply with the General Statutes as well as the Practice Book in framing her complaint.   The court is cognizant of the fact that the plaintiff is representing herself, and is not a trained lawyer.   She is quite capable of articulating detailed factual allegations.   However, it would appear that these facts simply do not give rise to the causes of actions and claims made by the plaintiff.   A judgment of nonsuit is appropriate.

III

CONCLUSION

For the reasons stated, the court grants the motion to strike the complaint in its entirety, and grants the motion for nonsuit in favor of the defendant.   Judgment of nonsuit for the defendant shall enter.

Swienton, J.

FOOTNOTES

FN1. Although the plaintiff's caption indicates that ESPN Productions, Inc., is the first named defendant, and references are made throughout the file by both the plaintiff and the defendants that ESPN is a defendant in this action, there is nothing in the file to indicate that proper service was made at any time on ESPN Productions, Inc..  FN1. Although the plaintiff's caption indicates that ESPN Productions, Inc., is the first named defendant, and references are made throughout the file by both the plaintiff and the defendants that ESPN is a defendant in this action, there is nothing in the file to indicate that proper service was made at any time on ESPN Productions, Inc.

FN2. Those facts alleged by the plaintiff were that Charles “intentionally neglected to fill out paperwork” so that she could get past security;  “canceled the plaintiff's print requests,” “took the plaintiff's printed documents from the printer,” “ignored the plaintiff's requests for phone coverage so that she could use the Ladies Room,” and “would pretend she did not hear the plaintiff when the plaintiff asked her questions.”   She also alleged that Charles “intentionally neglected to allow her access to the online schedules,” and that once she had access her reservations were deleted.   Plaintiff also claimed that Charles used Cranin's computer to “sabotage an Australian Open Schedule notice” by going into Bernstein's calendar and sending a second notice “using her own style, so that the recipients received at least two different notices” and “created an extra erroneous Staff Schedule” which the plaintiff had to delete..  FN2. Those facts alleged by the plaintiff were that Charles “intentionally neglected to fill out paperwork” so that she could get past security;  “canceled the plaintiff's print requests,” “took the plaintiff's printed documents from the printer,” “ignored the plaintiff's requests for phone coverage so that she could use the Ladies Room,” and “would pretend she did not hear the plaintiff when the plaintiff asked her questions.”   She also alleged that Charles “intentionally neglected to allow her access to the online schedules,” and that once she had access her reservations were deleted.   Plaintiff also claimed that Charles used Cranin's computer to “sabotage an Australian Open Schedule notice” by going into Bernstein's calendar and sending a second notice “using her own style, so that the recipients received at least two different notices” and “created an extra erroneous Staff Schedule” which the plaintiff had to delete.

FN3. The e-mail stated, “Jeff- Third email.   This one reinforces the role Danielle [Cranin] plays (not as an assistant) that was made clear to [the plaintiff].”  (May 7 complaint, p.9.).  FN3. The e-mail stated, “Jeff- Third email.   This one reinforces the role Danielle [Cranin] plays (not as an assistant) that was made clear to [the plaintiff].”  (May 7 complaint, p.9.)

FN4. The court recognizes that a claim for negligent retention has not been recognized by the appellate courts.   A negligent retention claim requires that the plaintiff must “plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff, and that the employer failed to take action.”   Faggio v. Brown, Superior Court, judicial district of Middlesex, Docket No. X04 CV 54003488 (June 12, 2007) [43 Conn. L. Rptr. 643].   “Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability.”   Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 010456879 (July 16, 2004)..  FN4. The court recognizes that a claim for negligent retention has not been recognized by the appellate courts.   A negligent retention claim requires that the plaintiff must “plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff, and that the employer failed to take action.”   Faggio v. Brown, Superior Court, judicial district of Middlesex, Docket No. X04 CV 54003488 (June 12, 2007) [43 Conn. L. Rptr. 643].   “Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability.”   Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 010456879 (July 16, 2004).

Swienton, Cynthia K., J.