Sylvia Davis v. LLC (2010)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (No. 105)

The motion to strike now before the court attacks three counts-Counts Two, Three, and Four-of a multicount complaint arising out of the defendants' termination of the plaintiff's employment.   The motion was filed on June 10, 2010 and argued on November 22, 2010.   The complaint is somewhat confusingly drafted, but-construing the pleading in the light most favorable to the pleader-some portions of it can withstand the motion to strike, while others cannot.   The counts in question will be reviewed in order.

Count Two

Count Two alleges negligent infliction of emotional distress.   It is well established that “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.”  Perodeau v. City of Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).  (Internal quotation marks and citation omitted.)   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.”  Id., at 751.  (Emphasis in original;  internal quotation marks, brackets, and citations omitted.)

The plaintiff's complaint alleges that the defendants “terminated Davis's employment on or about October 31, 2008 falsely claiming to Davis and others that Benchmark was terminating Davis for stating in [her supervisor]'s presence that she ‘hated’ her position, although Davis did not make any such statement.”   The complaint additionally states that, whatever she may have said, the plaintiff found her work to be “burdensome.”   No other factual allegation immediately related to the termination process is stated in Count Two.

While the conduct attributed to the defendant is not commendable, it is difficult to see how, given the fact that the plaintiff found her work to be “burdensome,” a statement that she had said that she “hated” her job would involve an unreasonable risk of emotional distress and resulting illness or bodily harm.

The motion to strike Count Two must be granted.

Count Three

Count Three alleges intentional infliction of emotional distress.   This count incorporates an allegation not made in Count Two. Count Three alleges that the defendants “publically stat[ed] to Davis's co-workers and patient's families that Davis was suspended ․ upon the Defendants publically escorting Davis out of the building upon suspending her immediately prior to terminating her employment.”   This allegation is confusing because it seemingly conflates two different events-the plaintiff's suspension and her later termination-but at this stage it must be read in the light most favorable to the plaintiff.

It is common ground that conduct, to be the subject of a successful action for intentional infliction of emotional distress must be such “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!”  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 570, 922 A.2d 1116, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).  (Internal quotation marks and citation omitted.)   While an average member of the community could understand the necessity to tell coworkers and possibly even patients that an employee had been suspended or terminated, it would be very difficult for an average person to perceive any necessity for imparting this information to “patient's families.”   Looked at in the light most favorable to the plaintiff, this could be construed as a gratuitous rubbing of salt in the wound.   The allegation involving “patient's families” takes this case out of the ordinary and allows Count Three to survive a motion to strike.

Count Four

Count Four confusingly pleads two different causes of action-invasion of privacy and negligence per se.   Both causes of action arise out of an alleged violation of the personnel files act, Conn. Gen.Stat. §§ 31-128a, et seq.   Count Four alleges that, “Defendants gave publicity to the fact that they were suspending Davis when they escorted Davis out of their facility upon suspending her, and publically stated to Davis's co-workers and clients' family that Davis was suspended.”   The plaintiff claims that the actions just described violated the provision of the personnel files act that, “No individually identifiable information contained in the personnel file of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee.”  Conn. Gen.Stat. § 31-128f.

Sec. 31-128f does not prohibit disclosure to persons “employed” by the employer in question.   Statements made to “Davis's co-workers” do not, consequently, run afoul of the statute in question.

Statements made to a “clients' family” are potentially problematic, but the complaint, as drafted, falls short of alleging a violation of § 31-128f as to this alleged publication as well.  “Personnel file” is a term of art meaning “papers, documents and reports.”  Conn. Gen.Stat. § 31-128a(5).   The complaint does not allege dissemination of papers, documents, or reports.

The plaintiff's theory seems to be that, once information is contained in a personnel file, the substance of that information may not be conveyed to a non-employee even if the speaker's knowledge derives from independent observation rather than from the contents of the file.   This theory is dubious in light of Miron v. University of New Haven Police Department, 284 Conn. 35, 48, 931 A.2d 847 (2007), which draws just such a distinction.   But even if such a distinction were inappropriate, the personnel files act cannot possibly apply unless the information is already contained in the plaintiff's personnel file at the time of its dissemination.

As described in the complaint, the suspension and the dissemination here occurred more or less simultaneously.   There is no allegation that the plaintiff's personnel file contained anything about the suspension at the time of the dissemination.   Under these circumstances, no violation of the personnel files act has been pleaded.   Count Four cannot stand.

The motion to strike is granted as to Counts Two and Four. It is denied as to Count Three.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.