Jodie Esposito v. Children's Dental Care, P.C. et al. (2011)

RULING ON MOTION FOR SUMMARY JUDGMENT (# 105.00)

The plaintiff, Jodie Esposito, commenced this action against the defendants, Children's Dental Care, P.C. and Dr. Jenny Federman, by way of complaint dated July 27, 2009, in five counts.   The first, second and fourth counts are brought against Children's Dental Care, P.C. as the employer of the plaintiff, Jodie Esposito.   The third count is directed at both defendants and the fifth count is against Dr. Federman.   The first and second counts are brought pursuant to the Connecticut Fair Employment Practices Act (CFEPA), namely General Statutes § 46a-60(a) asserting a violation of General Statutes § 46a-60(a)(1)(8, ABC) as well as a violation of General Statutes § 46a-60 by creating a hostile work environment.   The third count is against Children's Dental Care, P.C. and Jenny Federman and is based upon intentional infliction of emotional distress.   The fourth count is negligent infliction of emotional distress by Children's Dental Care, P.C. The fifth count is a claim asserting violation of General Statutes § 46a-60a(4) as against Dr. Federman in that Dr. Federman, in her individual capacity, retaliated against the plaintiff relative to the protected activity of objecting to a hostile work environment, sexual harassment and comments made by Dr. Federman.

The defendants filed the instant motion for summary judgment on September 21, 2010, asserting that with respect to the counts arising out of CFEPA (first, second and fifth), the plaintiff has failed to allege facts sufficient to support her claims and plaintiff's deposition testimony failed to support her claims.   With respect to the claims for intentional and negligent infliction of emotional distress, the defendants argue that the plaintiff has failed to allege facts sufficient to support such claims.

I. Counts Arising Under CFEPA.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).   The court, having reviewed the voluminous amount of material submitted in connection with this motion, finds that there are substantial questions of fact underlying all of these claims, particularly with regard as to whether the incidents alleged created a hostile work environment and whether the plaintiff was terminated from her employment in retaliation for her complaints about her working conditions.   For the foregoing reasons, the defendants' motion for summary judgment as to counts one, two and five is hereby DENIED.

II. Counts for Intentional and Negligent Infliction of Emotional Distress.

As to the claim for intentional infliction of emotional distress, “[i]n 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.”  (Citations omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 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).   This court cannot find the allegations of the third count of the plaintiff's complaint sufficient to meet the test of extreme and outrageous conduct.

As to the claim for negligent infliction of emotional distress, “in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 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.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).   To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).

As to the first and second elements, they “essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable.   Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.”   (Internal quotation marks omitted.)  Larobina v. McDonald, supra, 274 Conn. 410.

The court finds that the fourth count of the plaintiff's complaint does little more than recite the generic language provided by the Supreme Court in Carrol.   There are no specific facts alleged pertaining to the plaintiff's distress and thus, it is impossible to tell whether it could be reasonable, given the defendant's conduct.

Although it is clear that neither of these two counts would survive in the context of a motion to strike, the defendants raise the sufficiency of the plaintiff's allegations in the context of a motion for summary judgment.   In that respect, our Supreme Court recently concluded “that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading ․ If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law ․” (Citations omitted;  internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).   This court is aware that “[i]n reading the complaint we follow the modern trend, which is to construe pleadings broadly and realistically, rather than narrowly and technically ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient ․” (Internal quotation marks omitted.)  Edwards v. Tardiff, 240 Conn. 610, 620, 692 A.2d 1266 (1997).   However, given the allegations of the complaint and the deposition testimony of the plaintiff, and being mindful of the court's duty as a “gatekeeper,” this court cannot fathom how, given an opportunity to amend, these counts could survive a challenge to their legal sufficiency.   For the foregoing reasons, the defendants' motion for summary judgment as to counts three and four is hereby GRANTED.

Michael G. Maronich, Judge

Maronich, Michael G., J.