Samuel Albino v. Orca, Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

PROCEDURAL HISTORY AND FACTS

The plaintiff, Samuel Albino, alleges he was wrongfully terminated by his employer, Orca, Inc. and its president and director, Gregory Goguen, on November 14, 2008.   The plaintiff filed a charge of discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO) on March 19, 2009.   On November 20, 2009, the plaintiff obtained a release of jurisdiction from CHRO and filed this action.

The defendants, Orca, Inc. and Gregory Goguen seek to strike two of the six counts of the plaintiff's revised amended complaint.   Count Five sounds in intentional infliction of emotional distress.   Count Six sounds in negligent infliction of emotional distress.   The plaintiff has filed an opposition to the motion to strike.   Both parties were afforded oral argument.

LEGAL STANDARD

“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) “[F]or the purpose of 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).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health ins.   Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

“A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009);  see also Practice Book § 10-39 (addressing motion to strike).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).

In addition, it is well settled that “[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ․” (Internal quotation marks omitted.)  Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).   As a result, “[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009);  Practice Book § 10-20 (complaint “shall contain a concise statement of the facts constituting the cause of action”).   Yet “․ if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact or issue is not fatal to his claim unless it results in prejudice to the defendant.”  Machado v. Hartford, 292 Conn. 364, 370 n. 7, 972 A.2d 724 (2009).

Sturm v. Harb Development, LLC, 298 Conn. 124, 130-31, 2 A.3 859 (2010).

“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).

ANALYSIS

I. Intentional Infliction of Emotional Distress

In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (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 plaintiffs distress;  and (4) that the emotional distress sustained by the plaintiff was severe.  Stancuna v. Schaffer, 122 Conn.App. 484, 491-92, 998 A.2d 1221 (2010).

As to the Fifth Count, sounding in intentional infliction of emotional distress, the defendants assert that the plaintiff has failed to allege “extreme and outrageous” conduct on the part of the defendants.   The plaintiff asserts that his allegations are legally sufficient.

“Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.   It is the intent to cause injury that is the gravamen of the tort.   In 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.  (Internal citations and punctuation omitted.)  Id. at 492.

“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.”  (Internal quotation marks and citations omitted.)  Id. at 492-93.

In Count Five of the complaint supporting the claim of intentional infliction of emotional distress, the plaintiff alleges the following conduct on the part of one or both of the defendants:  the defendants required the plaintiff to work “off the clock” without compensation, ¶¶ 10-13;  the defendants questioned the validity of the plaintiff's workers' compensation claim and circulated false information that his injury occurred elsewhere, ¶¶ 14-17;  the defendants made unreasonable demands and made sarcastic and disparaging remarks to the plaintiff while he was on light duty restrictions, ¶¶ 18-23;  the defendants made the plaintiff operate a “small cans machine” and hired two other individuals to do the plaintiff's regular job duties, even though he was cleared to perform them, ¶¶ 24-28, 30;  the defendants isolated the plaintiff from other employees and subjected him to “hyper scrutiny,” ¶ 29;  the defendants terminated the plaintiff for lack of work, assigning other employees to operate the “small cans machine,” the basis of such termination being false, pretextual and discrimination against the disabled. ¶¶ 31-36.

As of the date of this memorandum of decision, Stancuna is the most recent Connecticut Appellate opinion concerning the court's role as gatekeeper as to the level of egregious behavior necessary to sustain a claim of intentional infliction of emotional distress.   In Stancuna, the trial court granted a motion to strike, inter alia, a count sounding in intentional infliction of emotional distress, wherein the plaintiff claimed that the defendant's attorney had an ex parte conversation with a judge who subsequently recused himself from further proceedings.   The appellate court held that such allegations did not reach the articulated standard of extreme and outrageous behavior.  Id. at 493.

As to intentional infliction of emotional distress claims, there are numerous opinions in which the trial courts have employed their gate-keeping function concerning behaviors of defendants in a wide variety of factual situations.   The parties have cited many of these.   However, because of the vast range of circumstances under which such claims can be made, and the necessarily individual assessment required to be conducted by the trial court depending on the presented circumstance, the instructional value of these opinions to each other is limited.   This court has, therefore, restricted its review of these appellate and trial opinions to those circumstances involving work situations so as to gauge the level of behavior necessary to sustain a claim.

In Appleton v. Board of Education, the defendants allegedly made condescending comments to the plaintiff in front of her colleagues, questioned her vision and ability to read, told her daughter that she “had been acting differently” and should take a few days off from work, telephoned the police and had her escorted out of the building.   The plaintiff was subjected to two psychiatric examinations at the request of the board, was forced to take a suspension and was ultimately forced to resign.  254 Conn. 205, 211, 757 A.2d 1059 (2000).   The Supreme Court reversed the Appellate Court, holding that these actions were not so atrocious as to exceed all bounds usually tolerated by decent society.   Id. at 212.

In Sgro v. World Wrestling Entertainment, Inc., Docket No. CV10-6003367 S, Superior Court, judicial district of Ansonia-Milford at Derby (December 16, 2010, Doherty, J.), the court found that an allegation of insubordination as a pretext for dismissal was an insufficient basis for a claim of intentional infliction of emotional distress and granted the motion to strike the claim.

In Tomby v. Community Renewal Team, Inc., United States District Court, D.Conn., Docket No. 3:09-cv-l596 (CFD) (December 15, 2010), Judge Droney dismissed a count of intentional infliction of emotional distress in a matter in which one of the plaintiffs alleged discrimination based on race and that the defendants told clients and other employees that she was not trustworthy, refused to investigate her complaints of a hostile work environment, harassed her with excessive emails and audits of her work and called her into work for audits after her work day had ended.   Such conduct did not rise to the level of intentional infliction of emotional distress.

In Morse v. Connecticut Community, Superior Court, judicial district of Windham at Putnam, Docket No. CV09 5005371 S (September 15, 2010, Riley, J.), the plaintiff, Amie Morse, alleged that the defendant employer stated in its Annual Summary that “Amie” had a “relapse and then went to jail.”   The court opined that this did not meet the threshold and granted the motion to strike.

In Gillians v. Vivanco-Small, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST CV 05 5000253 S (Mar. 2, 2010, Tierney, J.T.R.), the plaintiff alleged that after she filed a labor grievance, the defendants retaliated by engaging in a pattern of harassment and intimidation, falsely accusing the plaintiff of poor job performance, engaging in a pattern of harassment and intimidation, falsely accusing the plaintiff of racial and/or sexual bias, by threatening demotion of job position, by threatening employment termination, by demoting the plaintiff, by terminating the plaintiff's employment, and by creating a hostile work environment to the plaintiff.   The court found these allegations did not meet the threshold and granted summary judgment.

These are the several reported and unreported opinions filed within the last six months holding that the level of conduct sufficient to meet the threshold of “atrocious conduct” is very high.   Taking the allegations of the plaintiff in this complaint as true, the court finds that the conduct of the defendants does not rise to the threshold required to maintain an action against them for intentional infliction of emotional distress.   The motion to strike Count Five of the complaint is granted.

II. Negligent Infliction of Emotional Distress

To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (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.   Thus, 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.

The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm.   In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.

(Internal citations omitted;  internal punctuation and quotation marks omitted.)  Stancuna, supra at 490.

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).   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.

As to the Sixth Count, sounding in negligent infliction of emotional distress, the defendants assert that “there are no allegations at all about any conduct during the plaintiff's termination of employment.   The plaintiff responds that the termination process encompassed a broad period of time, essentially from the time the plaintiff was forced to work on the “small cans machine” upon his return to work through his termination.

First, the court looks to the allegations of the complaint to determine if this cause of action has been sufficiently pleaded and finds it has not.   While the plaintiff has alleged that the defendants' conduct “created an unreasonable risk of causing emotional distress to Plaintiff's rights,” ¶ 39, the plaintiff has failed to allege that the defendants' 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.   A plaintiff is not “entitled to damages for emotional distress unless the [plaintiff can establish] that the defendant knew or should have known that [the defendants'] conduct gave rise to an unreasonable risk of causing emotional distress that might result in illness or bodily harm.”   Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 445, 782 A.2d 87 (2001);  Roach v. Ivari International Centers, Inc., 77 Conn.App. 93, 103, 822 A.2d 316 (2003).

Additionally, the plaintiff has failed to allege that the defendants acted negligently.  “[O]ne facet of a claim for negligent infliction of emotional distress is a showing of negligence.”  Del Core v. Mohican Historic Housing Associates, 81 Conn.App. 120, 127, 837 A.2d 902 (2004).

Even if the allegations of the cause of action were sufficiently pleaded, the plaintiff offers no authority in support of his claim that the termination process can be so broad in time as to encompass a period of months as alleged in the plaintiff's complaint.   Such a claim appears to be a continuing employment relationship, rather than the termination process.   The time period asserted by the plaintiff begins “shortly after being placed on light duty,” ¶ 23.a. which was July 31, 2008, ¶ 18, and the date of termination, November 14, 2008, ¶ 31.   This is a three and one-half month period of time.   The plaintiff has asserted no allegations that actions on the date of termination caused distress.

The Supreme Court has declined to extend application of negligent infliction of emotional distress to actions or omissions occurring within the context of a continuing employment relationship, as distinguished from actions or omissions occurring in the context of termination of employment.  Perodeau, supra at 748-49.  “[W]hen the employment relationship is ongoing, the public policies ․ outweigh the interests of persons subject to such behavior in the workplace in being compensated for their emotional injuries.”  Id. at 758.   “We conclude that, although the rule we adopt in this case may allow some legitimate emotional injuries to go uncompensated, the social costs of allowing such claims would outweigh the social benefits.”  Id. at 759.

The plaintiffs' allegations are insufficient to sustain a claim of negligent infliction of emotional distress.   The defendants' motion to strike the Sixth Count is granted.

ORDER

The defendants' motion to strike the Fifth and Sixth Counts of the plaintiff's revised amended complaint is granted.

Robert B. Young, Judge

Young, Robert E., J.