Steven F. Avitable v. II LLC (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (113.00)

I. FACTS

The plaintiff, Steven F. Avitabile, brings this wrongful discharge lawsuit against the defendants, 1 Burr Road Operating Company II, LLC, d/b/a Westport Health Care Center and Healthbridge Management, LLC (Healthbridge).   In his amended complaint filed February 5, 2010, the plaintiff alleges the following facts.   Between the period July 7, 2008, and February 20, 2009, he was employed as an activity director at the Westport Health Care Center.   Before the commencement of his employment, the plaintiff was offered the position as activity director and the “Westport Health Care Center ․ agreed to pay plaintiff an hourly rate of $20.00 per/hr and provide insurance coverage for Plaintiff.”   The amended complaint alleges that this conduct by the parties amounted to an oral contract of employment.   On March 2, 2009, the plaintiff was fired from this position.   According to his employer, the reason for the termination was the plaintiff's failure to report a statement of suicidal ideation, which was a violation of the Westport Health Care Center's policy.   The plaintiff, however, alleges that he “was never provided a copy of the Defendant's policies, nor was such a policy contained in the Plaintiff's job description.”   Consequently, the plaintiff contends that he was unlawfully and wrongfully discharged from his employment without just cause.

Furthermore, the plaintiff alleges that employees of the Westport Health Care Center made false oral and written statements, which were published to third parties, indicating that the plaintiff engaged in “unprofessional and inappropriate conduct at work,” including the plaintiff's failure to report the statement of suicidal ideation.   As a result of this conduct, the plaintiff alleges that he suffered lost wages and benefits, as well as severe emotional distress, humiliation and mental anguish.   Accordingly, in counts one through five, the plaintiff states the following claims against the Westport Health Care Center:  (1) wrongful discharge;  (2) breach of contract;  (3) negligent infliction of emotional distress;  (4) intentional infliction of emotional distress and (5) defamation.   Counts six through ten allege the same causes of action against Healthbridge, which is the parent company of the Westport Health Care Center.   The plaintiff contends that Healthbridge is liable to him because it “knew or ought to have known of the activities of its subsidiary ․”

On February 5, 2010, the defendants filed a motion to strike all ten counts of the plaintiff's amended 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 March 15, 2010, which attaches a copy of the Westport Health Care Center's code of conduct.¹  On March 26, 2010, the defendants filed a reply memorandum.   The court heard this matter at short calendar on March 29, 2010.

II. DISCUSSION

“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).   In 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).   Therefore, “[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-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   Nevertheless, “[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, supra, 262 Conn. 498.   When deciding a motion to strike, 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).

WRONGFUL DISCHARGE

First, the defendants move to strike counts one and six ² for wrongful discharge on the ground that the plaintiff fails to allege that his termination violated an important public policy.   The defendants argue that none of the allegations of the amended complaint are sufficient to override the general rule of employment at-will, and, therefore, the defendants had the absolute right to terminate the plaintiff's employment.   In response, the plaintiff contends that he properly alleges that he was fired in violation of an important public policy, and, as a result, he can state a claim for wrongful discharge under Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980).   Moreover, the plaintiff argues that his amended complaint alleges that he was wrongfully discharged in violation of an implied employment contract.

“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.   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 ․ [Despite this general rule, in Sheets v. Teddy's Frosted Foods, Inc., the Connecticut Supreme Court] sanctioned a common-law cause of action for wrongful discharge 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.)  Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002).  “In evaluating [wrongful discharge] claims, [courts] look to see whether the plaintiff has ․ alleged that his discharge violated any explicit statutory or constitutional provision ․ or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.”  (Internal quotation marks omitted.)  Id., 699.  “[T]he public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one ․ Consequently, [Connecticut courts] 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.)  Id., 701.  “The determination of what constitutes a public policy is a question of law for the court to decide,” and can be made by the court on a motion to strike.   Padula v. Weston Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 06 4014462 (March 18, 2008, Hiller, J.) (45 Conn. L. Rptr. 202, 203), citing Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997).

The plaintiff alleges in counts one and six that he was “unlawfully, wrongfully, without just cause and in bad faith discharged ․ from his position as activity director” because agents and employees of the Westport Health Care Center alleged that he failed “to timely report a statement of suicidal ideation in violation of a policy ․ but the Plaintiff was never provided a copy of the Defendant's policies, nor was such a policy contained in the Plaintiff's job description.”   The amended complaint does not allege that the plaintiff's termination violated any statutory or constitutional mandates.   Therefore, in order to state a claim for wrongful discharge under Sheets and its progeny, the plaintiff must demonstrate that his termination violated a judicially conceived notion of public policy.   In his memorandum of law, the plaintiff argues that firing an employee “for violating a policy, which was never provided to him ․ is certainly behavior that the general public would disapprove of.   Therefore, plaintiff's allegations, as pled, give rise to a cause of action for wrongful discharge in violation of an important public policy ․” The plaintiff does not provide any case law that supports this proposition.

In cases where a plaintiff has failed to cite to any applicable statutory or constitutional provisions, the Connecticut Supreme Court has narrowly construed the public policy exception to the general rule of at-will employment.   See, e.g, Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 804, 734 A.2d 112 (1999) (plaintiff could not prevail on claim that public policy required employers to provide flexible schedules for working mothers because there was no statutory mandate for such an accommodation);  Carbone v. Atlantic Richfield Co., 204 Conn. 460, 468-70, 528 A.2d 1137 (1987) (employee who claimed that he was terminated for failing to obtain accurate information regarding competitors' pricing practices failed to allege facts sufficient to support claim that his termination violated public policy);  Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 293 (1986) (“[a] false but negligently made accusation of criminal conduct as a basis for dismissal is not a demonstrably improper reason for dismissal” when the employer has no statutory obligation to investigate the truth of the accusation).   If our Supreme Court has determined that terminating a working parent's employment rather than providing a modified work schedule and firing an employee following a negligently investigated allegation of criminal conduct are not violations of an important public policy, then this court finds the facts of the present case do not satisfy the Sheets standard.   The plaintiff merely alleges that he was discharged for his failure to report a suicidal ideation of a patient, which was a violation of an employment policy that he was never told about.   Even if the plaintiff was not told by his employer that it was company policy to report a patient's suicidal ideation, common sense dictates that an employee at a health care facility should intervene or at least inform his employer when a patient expresses a desire to commit suicide.

The plaintiff also argues that he can maintain a cause of action for wrongful discharge because he alleges that he was fired in violation of an implied employment contract.   In his memorandum of law, the plaintiff argues that an implied employment contract was established because the defendants offered the plaintiff employment at the Westport Health Care Center and the defendants agreed to pay the plaintiff an hourly rate and provide insurance coverage.   The plaintiff also argues that when he accepted employment with the defendants, he agreed to perform his duties in accordance with the defendants' code of conduct, wherein the defendants agreed only to terminate the plaintiff's employment for good cause.   In their reply memorandum, the defendants argue that the plaintiff fails to allege sufficient facts to establish an employment contract.   Moreover, the defendants argue that the Westport Health Care Center code of conduct is not mentioned in the amended complaint, and that, even if it were referenced, this document does not provide an adequate basis for the plaintiff's position that he could only be fired for good cause.

Before analyzing the substantive legal arguments of the parties, the following should be noted.   First, the defendants are correct in their assertion that the Westport Health Care Center code of conduct is neither referenced in the text, nor attached to the amended complaint.   As the court is limited to the allegations of the complaint when ruling on motion to strike, the contents of this document cannot be considered by the court.   Second, the plaintiff does not explicitly allege that there was an employment contract between the parties until count two.   Consequently, neither count one nor count six actually allege that the plaintiff's employment was subject to a contract.   Nevertheless, even if the plaintiff had directly alleged that there was a contract between the parties in counts one and six, counts two and seven lack the factual predicate for sufficiently pleading an implied employment contract.   Therefore, as will be demonstrated below, the amended complaint fails to allege that the plaintiff had a contract with his employer indicating that he could only be fired for just cause.

“Pursuant to traditional contract principles ․ the default rule of employment at will can be modified by the agreement of the parties ․ Accordingly, to prevail on the ․ count of his complaint [that] [a]lleges] the existence of an implied agreement between the parties, the plaintiff [has] the burden of proving by a fair preponderance of the evidence 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.”  (Citation omitted;  internal quotation marks omitted.)   Torosyan v. Boehringer Ingelheim, Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).  “The rules governing contract formation are well settled.   To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ If the minds of the parties have not truly met, no enforceable contract exists.”  (Internal quotation marks omitted.)  Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).  “[T]o survive a motion to strike, the allegations [of breach of an employment contract] must include ․ specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims [he] had with the defendant.”  (Internal quotation marks omitted.)   Dubowsky v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 03 0522892 (April 13, 2006, Shapiro, J.).

In paragraph six of counts one and six, the plaintiff alleges that the Westport Health Care Center “by and through its agents/employees offered the Plaintiff, Steven F. Avitabile, a position as activity director, at Westport Health Care Center and agreed to pay plaintiff an hourly rate of $20.00 per/hr and provide insurance coverage for Plaintiff.”   Counts two and seven allege that “[a]s a result of said actions of the parties, an oral contract of employment was created [and][i]mplied in said employment contract was and is a covenant that the Defendant, [Westport Health Care Center], would act in good faith and fair dealing that said Defendant would not discharge Plaintiff, but for good cause.”   With these allegations, it is apparent that the plaintiff has only alleged that the defendants offered the plaintiff paid employment and health insurance, and the amended complaint labels this agreement a contract stating that the plaintiff would only be terminated for just cause.   There are no facts alleged in the amended complaint indicating that the defendants undertook a contractual commitment only to terminate the plaintiff's employment for just cause.   If the court were to conclude that an agreement to compensate the plaintiff and provide insurance benefits was sufficient to establish an implied employment contract stating that the employee could only be terminated for just cause, then nearly all full-time employment would create a contractual obligation on the part of the employer.   Such an outcome would virtually render the doctrine of at-will employment meaningless.   In this case there is a complete absence of allegations to support altering the employment relationship from “at will” to contractual.   The mere passage of time is insufficient by itself to transform an “at will” relationship to something else.   The defendants' motion to strike counts one and six is granted.

II

BREACH OF CONTRACT

The defendants move to strike counts two and seven, breach of contract, on two grounds.   First, the defendants argue that these counts are legally insufficient because the plaintiff fails to allege the elements necessary to establish an oral or written employment contract between the parties.   Second, to the extent that these counts can be construed as claims for breach of the implied covenant of good faith and fair dealing, the defendants contend that the plaintiff does not allege that the defendants acted with a dishonest purpose or sinister motive.   The plaintiff counters that counts two and seven do allege that there was a contract between the parties.   Furthermore, the plaintiff argues that he sufficiently alleges that the defendants' malfeasances were committed in bad faith because he was discharged for alleged violations of an employment policy that he was never provided and that this fact “should be sufficient for the court to imply from his allegations that the defendants conduct was motivated by bad faith.”

It is unclear precisely which cause of action that the plaintiff is attempting to allege in counts two and seven.   Although the heading of these counts states “breach of contract,” paragraph ten indicates that the plaintiff believes that the defendants breached the implied covenant of good faith and fair dealing.   Accordingly, the court will analyze the elements of both causes of action.

As stated previously, the plaintiff fails to allege the existence of an implied employment contract between the parties.   For this reason, the plaintiff cannot maintain a cause of action for breach of contract.   Furthermore, the plaintiff's failure to allege a contract means that any claim for breach of the implied covenant of good faith and fair dealing is legally insufficient.   Under Connecticut law, “every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  (Emphasis added;  internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 563, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).   Without the allegation of an underlying contract, there can be no claim for breach of the implied covenant of good faith and fair dealing.   See, e.g., Chase Home Finance v. Albert, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 07 5004615 (June 3, 2008, Moran, J.T.R.) (holding that the defendant's actions “could not constitute a breach of the covenant of good faith and fair dealing because no contract was in existence at the time”).   The existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.  Hoskins v. Titan Value Equities Group, 252 Conn. 789, 793, 749 A.2d 1144 (2000).   For both of these reasons, the court grants the motion to strike counts two and seven.³

III

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Next, the defendants move to strike counts three and eight, negligent infliction of emotional distress, on the ground that the plaintiff fails to allege any wrongful conduct committed by the defendants during the termination process.   In their memorandum of law, the defendants analogize the present matter to a number of Superior Court cases wherein the court determined that the alleged conduct did not meet the standard for a claim of intentional infliction of emotional distress in the employment law context.   Specifically, the defendants contend that the plaintiff neither alleges sufficiently wrongful conduct nor that the alleged malfeasances occurred during the termination process.   In response, the plaintiff argues that he sufficiently pleads a claim for negligent infliction of emotional distress because he alleges that the stated reason for his wrongful discharge was that he violated a company policy that was never provided to him.   Finally, the defendants' reply memorandum contends that the plaintiff misunderstands the phrase “termination process.”   The defendants argue that termination process is limited to the precise time when the plaintiff was actually fired.

The elements of a negligent infliction of emotional distress have been clearly stated.  “[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process ․ [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.   The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior ․ The dispositive issue ․ [is] whether the defendant's conduct during the termination process was sufficiently wrongful 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.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 750-51, 792 A.2d 752 (2002).

In order for a plaintiff to sustain a claim for negligent infliction of emotional distress in an employment case, the plaintiff must demonstrate “that the manner of the plaintiff's termination from employment was different ․ from the usual termination of employment or that it was done in any way that would cause ․ more than the normal upset that would result from any termination of employment.”  Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 481, 714 A.2d 1261 (1998).  “Termination means the ending, not the conduct which causes the ending.   When one analyzes the policy reasons underlying Perodeau, one sees that conduct taking place within the employment relationship, even if wrongful and providing the basis for the claim of unlawful discharge, cannot provide the factual predicate for the emotional distress claim.   If the actual termination is conducted wrongfully, then the action may lie.   If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed.”   Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) (33 Conn. L. Rptr. 206, 208).   For this reason, “Connecticut courts require, in the employment context, that the alleged conduct giving rise to the plaintiff's claim of negligent infliction of emotional distress occur contemporaneously with the actual termination.”   Dichello v. Marlin Firearms Co., Superior Court, judicial district of New Haven, Docket No. CV 065002796 (July 9, 2009, Robinson, 1) (48 Conn. L. Rptr. 253, 255).

In counts three and eight, the plaintiff alleges three reasons as to why the defendants should be held liable for negligent infliction of emotional distress.   First, the plaintiff alleges that the defendants discharged the plaintiff without just cause.   As clearly established by Perodeau, the mere termination of employment, even if wrongful, is insufficient to state a claim for negligent infliction of emotional distress.   Second, the plaintiff alleges emotional distress stemming from the defendants' false accusations that he violated company policies.   The amended complaint fails to give any time frame as to when these alleged statements occurred, and, therefore it is unclear when the defendants made these alleged denunciations in relation to the ending of the plaintiff's employment.   Nevertheless, a close examination of the amended complaint reveals that the plaintiff is alleging that he was wrongfully terminated because of these false accusations that he violated his employer's protocols.   Accordingly, it is apparent that with this allegation, the plaintiff is alleging a malfeasance that caused his termination as opposed to one that occurred during the termination process.   Finally, the plaintiff alleges that defendants stated that the plaintiff “engaged in unprofessional and inappropriate conduct at work, including failing to timely report a statement of suicidal ideation in violation of employment policy.”   Once again, the amended complaint is unclear as to when these statements were made.   Furthermore, as a matter of law, such actions should not qualify as conduct that transgresses the bounds of socially tolerable behavior.   See, e.g., Martin v. PARCC Health Care, Inc., Superior Court, judicial district of Fairfield, DocketNo.   CV 054010900 (November 7, 2008, Hiller, J.) (granting motion to strike negligent infliction of emotional distress claim when employee alleged that employer called her work “sub-par”);  Battistoni v. Lakeridge Tax District, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002223 (June 17, 2008, Morano, J.) (granting motion to strike negligent infliction of emotional distress claim when employee alleged that the employer called him “incompetent, inept, inexperienced, and inattentive”).   Accordingly, for all of these reasons, the court grants the defendants' motion to strike counts three and eight.

IV

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The defendants also move to strike counts four and nine, intentional infliction of emotional distress, on the ground that the plaintiff fails to allege any conduct that could establish the “extreme and outrageous” element of this tort.   Specifically, the defendants argue that allegations that:  (1) an employee was fired without just cause;  (2) the defendants falsely accused the plaintiff of violating company policies and (3) the defendants incorrectly stated that the plaintiff engaged in unprofessional and inappropriate conduct are insufficient to state a cause of action for intentional infliction of emotional distress.   In response, the plaintiff argues that his amended complaint alleges sufficiently extreme and outrageous behavior such that counts four and nine can survive a motion to strike.

“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 ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).   “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.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2006).   Furthermore, the Connecticut Supreme Court has clearly held that “[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially intolerable behavior.”  (Internal quotation marks omitted.)  Perodeau v. Hartford, supra, 259 Conn. 750.

The plaintiff's sole allegations of extreme and outrageous behavior in counts four and nine are that:  (1) he was wrongfully discharged;  (2) the defendants falsely accused the plaintiff of violating the defendants' policies and (3) the defendants incorrectly stated that the plaintiff engaged in unprofessional and inappropriate conduct, including the failure to report a statement of suicidal ideation in violation of an employment policy.   When determining whether these allegations are sufficient to rise to the level of extreme and outrageous behavior, it is instructive to look at examples from Connecticut's appellate courts.   For instance, the Appellate Court has determined that the following conduct on the part of an employer was not sufficiently extreme and outrageous in order for a plaintiff to state a claim for intentional infliction of emotional distress:  (1) subjecting an employee to discipline without a proper investigation;  (2) defaming the employee and subjecting him to intimidation and (3) conspiring with another employee to engage in harassing conduct that was “wilful, wanton and malicious” towards the plaintiff employee.  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 562, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

In another case, the Connecticut Supreme Court held that:  (1) an employer making condescending comments in front of the employee's colleagues regarding her ability to read and see;  (2) telephoning an employee's daughter to tell her that the plaintiff “had been acting differently” and should take some time off from work;  (3) forcing the employee to leave the building via a police escort and (4) subjecting an employee to two psychiatric examinations was not extreme and outrageous behavior as a matter of law.  Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000);  see also Dollard v. Board of Education, 63 Conn.App. 550, 552, 774 A.2d 714 (2001) (allegations that “the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position ․ [where] [t]he defendants carried out their plan by hypercritically examining every small detail of [the plaintiff's] professional and personal conduct” did not rise to the level of “extreme and outrageous”).   The court finds the allegations in the present case to be far less egregious than the allegations in the above cited cases, and therefore, the court grants the motion to strike these counts.

V

DEFAMATION

The defendants next move to strike counts five and ten, defamation, on the ground that the amended complaint “does not allege what defamatory statements, if any were made, why they were made, or to whom they were made.”   In their memorandum of law, the defendants argue that Connecticut law requires that a plaintiff plead a defamation claim with this level of specificity and that the plaintiff has failed to do so in the present case.   The plaintiff responds to the defendants' position by arguing that his allegations are more than sufficient enough to satisfy the pleading requirements for defamation.   Specifically, the plaintiff argues that he alleges that the defendants “falsely stated that plaintiff engaged in unprofessional and inappropriate conduct at work” and that these statements were made in an open public form.   The plaintiff also points out that the defendants' argument that the plaintiff engaged in unprofessional and inappropriate conduct at work was the crux of the defendants' public argument at the State of Connecticut Employment hearing.”   The plaintiff contends that the names of the precise parties who heard these statements can be obtained through discovery.

“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.”  (Internal quotation marks omitted.)   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 98 0486346 (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 paragraph twelve of count one, which is incorporated by reference into counts five and ten, the plaintiff alleges that the defendants “by and through its employees/agents, made oral and written statements, which were published to third parties, including that the Plaintiff engaged in unprofessional and inappropriate conduct at work, including failing to timely report a statement of suicidal ideation in violation of employment policy.   Such statements were false.”   The body of count five further alleges that:  (1) “[t]hese statements identified the Plaintiff to third parties”;  (2) “[t]he statements were made in public to third parties in an open forum” and (3) “[t]he Plaintiff's reputation has suffered injury as a result of the statements.”   If construed in a light most favorable to the plaintiff, these allegations do import the substance of the alleged defamatory statements, in that the plaintiff is alleging that agents or employees of the defendant stated that the plaintiff engaged in unprofessional and inappropriate conduct at work.

Nevertheless, the plaintiff fails to allege the precise identity of the alleged speaker or the audience, and when these statements were made.   The plaintiff only alleges that the speakers were agents or employees of Westport Health Care Center and that these alleged defamatory statements were made “in public to third parties in open forum.”   Such allegations are insufficiently specific to meet the standard for pleading a defamation claim.   See, e.g, Maisano v. Congregation Or Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden J.) (47 Conn. L. Rptr. 152, 156) (granting motion to strike defamation count when the plaintiff merely alleged that the defamatory statements were made “publicly”).   Although the plaintiff's memorandum of law argues that the audience was members of a “State of Connecticut Employment Hearing,” these allegations are found nowhere in the amended complaint.   When ruling on a motion to strike, the court is limited to the allegations of the complaint, which fails to allege defamation with the requisite specificity.   Therefore, the court grants the motion to strike counts five and ten.

IV

COUNTS AGAINST HEALTHBRIDGE

Finally, the defendants move to strike counts six through ten against Healthbridge on the ground that a parent company cannot be held liable for the acts of its subsidiary.   As it has already been submitted that these counts should be stricken because the plaintiff fails to allege any legally sufficient claims against the Westport Health Care Center, and the factual allegations against Healthbridge are the same, it is not necessary for the court to examine this argument.   Nevertheless, in order to be comprehensive, this memorandum will address the issue.   In their memorandum of law, the defendants argue that the plaintiff's only allegation of liability against Healthbridge is based on the fact that Healthbridge is the parent company of the Westport Health Care Center, and there are no facts alleged to overcome the presumption that a parent company is not liable for the acts of its subsidiary.   The plaintiff responds that Healthbridge can be held liable under the theory of piercing the corporate veil and that the plaintiff should be allowed to conduct discovery to determine whether Healthbridge is legally responsible for the Westport Health Care Center's conduct.

“[I]t is a fundamental principle of corporate law that the parent corporation and its subsidiary are treated as separate and distinct legal persons even though the parent owns all the shares in the subsidiary and the two enterprises have identical directors and officers.   Such control, after all, is no more than a normal consequence of controlling share ownership ․ Furthermore, the separate corporate entities or personalities of affiliated corporations will be recognized, absent illegitimate purposes, unless:  (a) the business transactions, property, employees, bank and other accounts and records are intermingled;  (b) the formalities of separate corporate procedures for each corporation are not observed ․ (c) the corporation is inadequately financed as a separate unit from the point of view of meeting its normal obligations ․ (d) the respective enterprises are not held out to the public as separate enterprises;  (e) the policies of the corporation are not directed to its own interests primarily but rather to those of the other corporation.”   (Citation omitted;  internal quotation marks omitted.)  SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232-33, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S.Ct. 2839, 115 L.Ed.2d 1008 (1991).

In counts six through ten, the sole allegation against Healthbridge is that:  “HEALTHBRIDGE, as the parent company to [the Westport Health Care Center], knew or ought to have known that said activities of its subsidiary, [the Westport Health Care Center] would cause damage to the plaintiff and therefore is liable for said activities and damages.”   There is no allegation in the amended complaint that Healthbridge was directly involved in the termination of the plaintiff's employment.   Moreover, the plaintiff fails to allege any of the factual scenarios as outlined in SFA Folio Collections, Inc. that would allow a parent company to be liable for the activities of its subsidiary.   Although the plaintiff is correct that the precise relationship of a parent company to its subsidiary is often best determined during discovery, the plaintiff makes no allegations that would allow a fact finder to overcome the general rule of non-liability on the part of a parent company.   Counts six through ten against Healthbridge are legally insufficient and are stricken.

III. CONCLUSION

For all of the reasons stated above, the court grants the defendants' motion to strike in its entirety.

SUPERIOR COURT JUDGE

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. “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).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Accordingly, the court cannot consider the document that is attached to the plaintiff's memorandum of law in opposition to the present motion to strike..  FN1. “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).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Accordingly, the court cannot consider the document that is attached to the plaintiff's memorandum of law in opposition to the present motion to strike.

FN2. Count one states a wrongful discharge claim against the Westport Health Care Center and count six alleges the same cause of action against Healthbridge.   In count six, the plaintiff incorporates all of the factual allegations from count one, and further alleges that Healthbridge, as the parent company to the Westport Health Care Center, is liable because it knew or ought to have known of the activities of its subsidiary.   The rest of the counts against Heathbridge (counts seven through ten), also incorporate the factual allegations of the corresponding cause of action against the Westport Health Care Center.   As the factual allegations against both defendants are exactly the same, this memorandum will refer to them jointly as “the defendants,” and discuss the claims against both defendants simultaneously..  FN2. Count one states a wrongful discharge claim against the Westport Health Care Center and count six alleges the same cause of action against Healthbridge.   In count six, the plaintiff incorporates all of the factual allegations from count one, and further alleges that Healthbridge, as the parent company to the Westport Health Care Center, is liable because it knew or ought to have known of the activities of its subsidiary.   The rest of the counts against Heathbridge (counts seven through ten), also incorporate the factual allegations of the corresponding cause of action against the Westport Health Care Center.   As the factual allegations against both defendants are exactly the same, this memorandum will refer to them jointly as “the defendants,” and discuss the claims against both defendants simultaneously.

FN3. Having determined that counts two and seven are legally insufficient due to the plaintiff's failure to allege a contract between the parties, it is unnecessary to examine the defendants' argument that the plaintiff fails to allege a dishonest purpose or sinister motive..  FN3. Having determined that counts two and seven are legally insufficient due to the plaintiff's failure to allege a contract between the parties, it is unnecessary to examine the defendants' argument that the plaintiff fails to allege a dishonest purpose or sinister motive.

Adams, Taggart D., J.