Sandra Lee Baker v. The Hawthorne Inn, Inc. et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, # 127

After the court granted the defendants' motion to strike counts in the plaintiff's first revised complaint of December 22, 2009, the plaintiff filed a subsequent revised complaint dated April 16, 2010.¹  The defendants now seek to strike counts three and four of the plaintiff's revised complaint dated April 16, 2010, (Complaint), which concerns the employment of the plaintiff, Sandra Lee Baker, by the defendant, The Hawthorne Inn, Inc., and Glenna Grelak.²  The complaint alleges that the plaintiff was discriminated against based upon her age and sex, causing her to suffer injury and damages as a result of the conduct of the defendants.   The first and second counts of the complaint are claims of age and sex discrimination brought against Hawthorne Inn and Grelak, respectively;  the third and fourth counts are claims of intentional infliction of emotional distress brought against Hawthorne Inn and Grelak, respectively.   The defendants have moved to strike counts three and four for failure to state a legally sufficient cause of action as to each of these counts.

The plaintiff alleges the following in her complaint.   The plaintiff, a sixty-four-year-old woman, has been employed by Hawthorne Inn as a waitress for approximately twenty-one years.   At some point in 2007, her hours were reduced, while the hours of other, younger employees were increased, and new wait staff hired to perform some of the functions formerly done by the plaintiff.   Baker was repeatedly told by Grelak that she could not perform her job due to her age.   Also, Grelak and other employees of Hawthorne Inn began making derogatory statements to the plaintiff regarding her age and sex.   In the plaintiff's second revised complaint, she gives examples of such conduct:  she was told to “take some pills,” told that she was “over medicated,” had a male co-worker open his pant button and zipper after a confrontation with her, and addressed using terms such as being equated with female dogs or female reproductive organs by co-workers.   Although the management of the Hawthorne Inn had knowledge that these discriminatory statements were made, no remedial action was taken.   As a result, she claims she has lost wages, benefits, and suffered emotional distress.

I

DISCUSSION

“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).  “[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).

Counts Three and Four-Intentional Infliction of Emotional Distress

The defendants have moved to strike counts three and four on the ground that the plaintiff has failed to sufficiently plead a claim for intentional infliction of emotional distress.   The defendants argue that although the complaint added new allegations of conduct by the defendants, the plaintiff has yet to allege conduct that could be considered “extreme and outrageous” by a reasonable trier of fact.

“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 gate keeping 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).

“There is no bright line rule to determine what constitutes extreme and outrageous conduct ․ The court looks to the specific facts and circumstances of each case in making its decision.   However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility ․ [T]hose cases in the employment context that have granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior are more often those that allege little more than that the plaintiff was terminated without just case.”  (Internal quotation marks omitted.)  Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002) (32 Conn. L. Rptr. 72).

The plaintiff continues to rely on cases where the allegations of intentional infliction of emotional distress are premised upon discrimination against an individual based on a protected class status, and cites Caesar v. Hartford Hospital, 46 F.Supp.2d 174 (D.Conn., 1999).   In that case, the plaintiff made allegations of disparate treatment based on race, national origin, age, or retaliation, and gave as examples of discriminatory employment practices more liberal allowances of smoking breaks for white nurse's aides than black nurse's aides, racially discriminatory comments, different treatment for white and black aides participating in various programs, and more vigilant investigations into patient complaints alleging abuse of non-white aides.   The court denied the motion to strike the count of intentional infliction of emotion distress because the plaintiff had alleged conduct that could be reasonably deemed to be extreme and outrageous.³

Although most of the Connecticut cases which involve intentional infliction of emotional distress do not deal with discrimination or conduct related to age or sex discrimination, but rather based on comments concerning race, religion, or ethnicity, the plaintiff in this case is in two statutorily protected classes under anti-discrimination law.   See, General Statutes § 46a-60(a).   While there are no cases which address emotional distress based upon age or sex discrimination, the court can see no reason why the court cannot apply the reasoning of the cases which deal with race, religion, or ethnicity.   However, the ultimate inquiry is still whether the conduct alleged is extreme and outrageous.

The courts in several Connecticut cases have looked to the perpetrator of the comments or actions towards an employee based on his or hers race, religion, ethnicity and considered whether they were extreme and outrageous conduct.   See, Leone v. New England Communications, supra, 32 Conn. L. Rptr. 72, (where owners of a company referred to an employee as “dago, wop, Father Sarducci or Gimabroni,” and made offensive comments to the employee about homosexuality and his sexual performance.   The court found the conduct to “go beyond all bounds of decency in denying the motion to strike);  Monahan v. Bausch, Superior Court, judicial district of Fairfield, Docket No. CV 91 0280862 (September 11, 1991) (where the plaintiff's supervisor made “disparaging remarks about their religion and ethnic backgrounds,” and harassed and humiliated them.   The court found the conduct alleged to be sufficiently extreme and outrageous and denied the motion to strike);  and Savage v. Andoh, Superior Court, judicial district of New Haven at New Haven, Docket No. 075015657 (April 11, 2008) [45 Conn. L. Rptr. 493] (where the court denied the defendant's motion to strike where the complaint alleged that the defendant, a faculty member and chair of Southern Connecticut State University's Department of Economics and Finance, made derogatory and antisemitic remarks about the plaintiff who was Jewish and a professor of the same department).

The defendant argues that the plaintiff's reliance on Monahan v. Bausch, and Savage v. Andoh is misplaced, since the crux of those cases deal with conduct and derogatory comments that are specifically directed to the plaintiff's race or ethnicity and not that the conduct rises to the level of extreme and outrageous solely because the person engaging in the conduct is in a position of authority over the plaintiff.   However, these cases as well as cases from other jurisdictions share the common thread in the employment context, where the tormentor was the employee's supervisor, who made the derogatory and offensive comments.  (See, Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Milford, Docket No. CV 95 0050418 (June 29, 1999), for a review of cases from other jurisdictions in which courts have found the authoritative position of the defendant to be an important consideration in determining whether the conduct is extreme and outrageous).

The examples of conduct specifically alleged in the complaint are that she was subjected to arbitrary discipline, told that the cooks hate her, asked to resign, informed that nobody liked her, threatened with reduced hours, denied opportunity to shift-swap, told to retire, and told to go on social security, as well as the conduct set forth above.   Some of this conduct was in fact done by the plaintiff's direct supervisor, Grelak.   And despite the plaintiff's reports of these incidents, no disciplinary action was taken against any of the persons by the defendants.

These new allegations rise to a new level not previously found in the prior complaint, and while the level of public discourse has coarsened, these comments and conduct are far beyond the merely insulting or bad manners which courts have found do not rise to a level to survive a motion to strike.   The plaintiff's allegations regarding her age and sex, in conjunction with the other allegations of the complaint, are such that reasonable people could disagree as to whether the conduct was so outrageous and intolerable as to go beyond the bounds of decency, and are sufficient to withstand a motion to strike.

II

CONCLUSION

For the foregoing reasons, the defendants' motion to strike counts three and four is denied.

Swienton, J.

FOOTNOTES

FN1. The court struck counts against both defendants of negligent infliction of emotional distress, intentional infliction of emotion distress, as well as counts of age discrimination and sex discrimination as to the defendant, Grelak, only.   See, Memorandum of Decision re:  Motion to Strike, # 105, April 6, 2010 (Swienton, J.)..  FN1. The court struck counts against both defendants of negligent infliction of emotional distress, intentional infliction of emotion distress, as well as counts of age discrimination and sex discrimination as to the defendant, Grelak, only.   See, Memorandum of Decision re:  Motion to Strike, # 105, April 6, 2010 (Swienton, J.).

FN2. The complaint alleges that Glenna Grelak is a director and president of the defendant, The Hawthorne Inn, Inc., as well as performing the duties of a manager of the Hawthorne Inn restaurant where the plaintiff is employed.  (Complaint ¶¶ 3, 6.).  FN2. The complaint alleges that Glenna Grelak is a director and president of the defendant, The Hawthorne Inn, Inc., as well as performing the duties of a manager of the Hawthorne Inn restaurant where the plaintiff is employed.  (Complaint ¶¶ 3, 6.)

FN3. The plaintiff again cites Davis v. City of Hartford, 601 F.Sup.2d 488 (D.Conn., 2009), where an African American female paraprofessional alleged intentional infliction of emotional distress based upon offensive conduct by her employer and supervisor.   Examples of the conduct on which the plaintiff based her claims of emotional distress consisted of her supervisor's refusal to stop a white teacher's harassment of the plaintiff and minority students;  comments that the supervisor did not know who the plaintiff could have received excellent evaluations;  sarcastic question as to whether the plaintiff could read;  statement implying that the plaintiff “must be engaged in some illegal activity to earn money;” poor evaluations of the plaintiff and threatening to give negative evaluations in the future;  etc.  “Viewing these incidents in the aggregate, a jury could find that all this takes on new and more extreme meaning when considering that [the authority figure] is white and [the plaintiff] is black.   The court cannot conclude that no jury could hear this evidence ․ and find that [the defendant's] actions were outrageous.”  Id. 495..  FN3. The plaintiff again cites Davis v. City of Hartford, 601 F.Sup.2d 488 (D.Conn., 2009), where an African American female paraprofessional alleged intentional infliction of emotional distress based upon offensive conduct by her employer and supervisor.   Examples of the conduct on which the plaintiff based her claims of emotional distress consisted of her supervisor's refusal to stop a white teacher's harassment of the plaintiff and minority students;  comments that the supervisor did not know who the plaintiff could have received excellent evaluations;  sarcastic question as to whether the plaintiff could read;  statement implying that the plaintiff “must be engaged in some illegal activity to earn money;” poor evaluations of the plaintiff and threatening to give negative evaluations in the future;  etc.  “Viewing these incidents in the aggregate, a jury could find that all this takes on new and more extreme meaning when considering that [the authority figure] is white and [the plaintiff] is black.   The court cannot conclude that no jury could hear this evidence ․ and find that [the defendant's] actions were outrageous.”  Id. 495.

Swienton, Cynthia K., J.