Nancy Coccagna v. Henderson Global Investors (North America), Inc. (2011)

MEMORANDUM OF DECISION MOTION TO STRIKE

The plaintiff, Nancy Coccagna, has filed a five-count amended complaint against the defendant, Henderson Global Investors (North America), Inc. The counts as alleged are as follows:  violation of General Statutes § 31–290a (count one);  negligent infliction of emotional distress (count two);  intentional infliction of emotional distress (count three);  wrongful discharge of employee in violation of public policy (count four);  and wrongful termination, breach of the covenant of good faith and fair dealing (count five).

In support of her complaint, the plaintiff alleges the following underlying facts:  The plaintiff is a fifty-five-year-old white female who was employed by the defendant as a data base analyst sometime prior to October 2010.   On or about March 2010, the plaintiff filed a workers' compensation claim for an injury she suffered while working for the defendant.   The plaintiff and the defendant were working to “reconfigure her work ergonomics” when the defendant terminated her employment in October 2010.

Pending before the court is the defendant's motion to strike counts two, three, four, and five of the amended complaint.   The issues have been fully briefed by counsel and oral argument was held at short calendar on October 3, 2011.

“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).  “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., 240 Conn. 576, 588, 693 A.2d 293 (1997).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff] 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.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

I

Negligent Infliction of Emotional Distress (Count Two)

The defendant argues that count two must be stricken because a claim for negligent infliction of emotional distress must be based on the employer's conduct during the process of termination and not on the basis of a wrongful discharge alone.   The plaintiff counters that she has pled that the defendant's conduct during the termination process itself was unreasonable.

As a general rule, to prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove:  “(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).   However, in the context of employment, there is an additional requirement.  “In Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997) ․ [the court] ․ concluded 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 ․ Accordingly, [the court] concluded that the 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.”   (Citations omitted;  internal quotation marks omitted;  emphasis added.)   Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002).

There must be “evidence that the manner of the plaintiff's termination from employment was different ․ from the usual termination of employment or that it was done in [a] way that would cause ․ more than the normal upset that would result from any termination of employment.”  (Internal quotation marks omitted.)  Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 480–81, 714 A.2d 1261 (1998);  see also 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) (“Termination means the ending, not the conduct that causes the ending.   When one analyzes the policy reasons underlying Perodeau [v. Hartford ], 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”).   Because the amended complaint is devoid of allegations related to the termination process and the manner of termination, the plaintiff has failed to state a legally sustainable claim of negligent infliction of emotion distress.   Therefore, the motion to strike count two must be granted.

II

Intentional Infliction of Emotional Distress (Count Three)

The defendant next argues that count three alleging intentional infliction of emotional distress must be stricken because the plaintiff fails to allege that the defendant engaged in any extreme and outrageous conduct.   The defendant also repeats the argument made as to count two.

“[T]o prevail in a case for liability under a theory of intentional infliction of emotional distress, the plaintiff must plead and prove four elements.   It must be shown:  (1) that the [defendant] 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.”   (Internal quotation marks omitted.)  Wilson v. Jefferson, 98 Conn.App. 147, 159–60, 908 A.2d 13 (2006).   As to the second element, “[w]hether 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 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.”   (Citation omitted;  internal quotation marks omitted.)  Id., 160;  see also Little v. Yale University, 92 Conn.App. 232, 239–40, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

Although the plaintiff alleges that the defendant's conduct was unreasonable and wilfull.   These allegations do not rise to the level of extreme and outrageous conduct required to sustain an intentional infliction of emotional distress claim.   Further, count three suffers from the same deficiency as to count two in that the conduct alleged is not related to the termination process itself and the manner of termination.   Consequently, count three must be stricken because for either or both of these reasons, it fails to state a legally sustainable claim of intentional infliction of emotion distress.

III

Wrongful Discharge in Violation of Public Policy (Count Four)

The defendant asserts that the fourth count must be stricken because the existence of the statutory remedy, contained in § 31–290a, alleged in count one precludes the plaintiff from bringing a common-law wrongful discharge claim.   The plaintiff counters that there is Superior Court authority which allows the plaintiff to bring both claims and that the statutory remedy provided by § 31–290a is inadequate.

“In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), we recognized that it is a general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will ․ In Sheets, however, this court recognized a common-law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy ․ In interpreting this exception, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one ․ We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.”  (Citation omitted;  internal quotation marks omitted;  emphasis in original.)  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158–59, 745 A.2d 178 (2000).

In this case, the plaintiff alleges in count one that she was terminated for filing a workers' compensation claim in violation of General Statutes § 31–290a.¹  In count four, the plaintiff relies on the same allegations and asserts a claim for wrongful discharge in violation of public policy on the basis that the defendant unlawfully discharged the plaintiff in violation of the public policy embodied in § 31–290a.   The Supreme Court has unambiguously stated:  “The existence of [a] statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of [the same statute].   See Atkins v. Bridgeport Hydraulic Co., [5 Conn.App. 643,] 648, 501 A.2d 1223 (1985) (plaintiff can bring wrongful discharge claim only when she is ‘otherwise without remedy’ [internal quotation marks omitted] ).”  Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 162;  see also Rocha v. Rotha Contracting Co., Superior Court, judicial district of Hartford, Docket No. CV 09 4045428 (May 19, 2011, Aurigemma, J.) (“In the more recent case of Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 167, 745 A.2d 178 (2000), the court made clear that the existence of a statutory remedy precludes a plaintiff from prevailing on a common-law cause of action for wrongful discharge”).   Because § 31–290a provides a statutory remedy for employees who are discharged for filing a workers' compensation claim and the plaintiff has alleged that the very same conduct in count four gives rise to a common-law wrongful discharge claim, she has failed to allege a claim upon which she may be entitled to legal relief.

Although the plaintiff argues in the alternative that the statutory remedy provided in § 31–290a is inadequate because it does not allow damages for emotional distress and that there is Superior Court authority allowing both claims under this circumstance, the court rejects this argument.   In Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 164–65, the Supreme Court stated:  “There is nothing in Atkins v. Bridgeport Hydraulic Co. ․ to suggest that a statutory remedy must be equivalent to a potential common-law cause of action for wrongful termination in order for the common-law cause of action to be precluded.   Rather, the court in Atkins relied upon Wehr v. Burroughs Corp., 438 F.Sup. 1052 (E.D.Pa.1977), aff'd in relevant part, 619 F.2d 276 (3d Cir.1980), in which the court wisely stated that, in interpreting the public policy exception, ‘sound policy dictates that the statutory remedial scheme be adhered to since we can presume that the legislature would have provided additional relief in the statute if it thought it was necessary.’   “ “It is not the plaintiff's preference for a particular remedy that determines whether the remedy ․ is adequate.”  (Internal quotation marks omitted.)   Hunt v. Prior, 236 Conn. 421, 434, 673 A.2d 514 (1996).   In addition, to the extent that the plaintiff's prayer for relief includes a demand for judgment against the defendant for damages that are not allowed by § 31–290a(b), that portion of her prayer must be stricken as well.

IV

Breach of Covenant of Good Faith and Fair Dealing (Count Five)

The defendant moves to strike the fifth count on the grounds that the plaintiff has failed to allege any facts that demonstrate that the plaintiff was anything other than an at-will employee.   The plaintiff counters that she has alleged facts sufficient to state that the plaintiff was wrongfully terminated and the defendant breached the covenant of good faith and fair dealing by terminating the plaintiff for exercising her rights by filing a workers' compensation claim.

In the fifth count, the plaintiff appears to combine two causes of action:  wrongful termination and “breach of good faith covenant and fair dealing.”   She alleges both that she was “wrongfully terminated” and that “[t]he defendant breached the duty to act in good faith and fair dealing in the elimination of plaintiff's position while [s]he was facing medical problems and exercising his statutory rights to file claims to h[er] injury and illness.”   In any event, the plaintiff has failed to state a claim as to count five for the same reasons articulated by the court in rejecting count four.

In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566–72, 479 A.2d 781 (1984), the Supreme Court addressed the applicability of the implied covenant of good faith and fair dealing in at-will employment context.   As stated therein, the implied covenant of good faith and fair dealing is “a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.   The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.”   Id., 567.  “Although [the Supreme Court endorses] the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties.   Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right.   Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction.   We see no reason ․ to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety ․ derived from some important violation of public policy.”  (Emphasis added;  internal quotation marks omitted.)  Id., 572;  see also Colonna v. Baran Institute of Technology, Inc., Superior Court, judicial district of Hartford, Docket No. 09 4042637 (March 31, 2011, Peck J.).

The traditional rule in Connecticut governing employment at-will contracts of permanent employment, or employment for an indefinite term, is that such contracts are terminable at will of either party without regard to cause.   See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 225, 837 A.2d 759 (2004).   The doctrine of wrongful discharge is a narrow exception to this rule.   See Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 159.   This narrow exception only applies when the plaintiff alleges facts sufficient to establish wrongful discharge in violation of public policy.   See Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980).   The plaintiff's wrongful termination claim in the fifth count is nothing more than a reiteration of count four.   Thus, for the reasons discussed previously, the wrongful termination claim in count five must be stricken.

CONCLUSION

Accordingly, for all the foregoing reasons, the defendant's motion to strike count two, three, four and five of the amended complaint is hereby granted.

Peck, J.

FOOTNOTES

FN1. General Statutes § 31–290a provides:  “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.“(b) Any employee who is so discharged or discriminated against may either:  (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge.   The court may also award punitive damages.   Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court;  or (2) file a complaint with the chairman of the Workers' Compensation Commission alleging violation of the provisions of subsection (a) of this section.   Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded.   The hearing shall be held in the workers' compensation district where the employer has its principal office.   After the hearing, the commissioner shall send each party a written copy of his decision.   The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged.   Any employee who prevails in such a complaint shall be awarded reasonable attorneys fees.   Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”.  FN1. General Statutes § 31–290a provides:  “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.“(b) Any employee who is so discharged or discriminated against may either:  (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge.   The court may also award punitive damages.   Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court;  or (2) file a complaint with the chairman of the Workers' Compensation Commission alleging violation of the provisions of subsection (a) of this section.   Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded.   The hearing shall be held in the workers' compensation district where the employer has its principal office.   After the hearing, the commissioner shall send each party a written copy of his decision.   The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged.   Any employee who prevails in such a complaint shall be awarded reasonable attorneys fees.   Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

Peck, A. Susan, J.