John Neron v. Jeffry Cossette et al. (2012)

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE

This matter comes before the court for consideration of the Motion to Strike (# 104) filed by the defendant, Jeffry Cossette, and the Motion to Strike (# 105) filed by the defendant, William Glass.   The court heard oral argument at short calendar on January 23, 2012.

I. FACTS

The operative complaint at issue is the plaintiff's fifteen-count revised complaint, dated June 13, 2011 and filed as an “Amended Complaint,” ¹ wherein the plaintiff, John Neron, alleges multiple causes of actions against each of the defendants, Jeffry Cossette and William Glass.   Specifically, in separate counts of his revised complaint, the plaintiff claims a cause of action in tort against each of the defendants sounding in defamation, unreasonable intrusion upon the seclusion of another, the appropriation of the other's name or likeness, unreasonable publicity given to the other's private life, publicity that unreasonably places the other in a false light before the public, intentional infliction of emotional distress and negligent infliction of emotional distress.   The plaintiff alleges an additional claim against Cossette for tortious interference with a business relationship.

It is alleged that Neron was an employee of Bozzuto's, Inc., when on April 22, 2009, Cossette “maliciously stated” to Glass, then a manager at Bozzuto's, that Neron had been forced to previously resign from the Meriden Police Department on the day that he was going to be terminated.   Knowing that the plaintiff was a Bozzuto employee and with intent to damage his employment relationship, Cossette recklessly stated that Neron had been the subject of many internal investigations, direct rules violations, and dereliction of duty complaints, and that he had been arrested for domestic violence.   Further, Neron alleged that Cossette had “falsely and maliciously stated” to Glass that Neron had been the subject of many sexual harassment complaints and had been labeled by the police department as a woman stalker and had threatened a female state's attorney administrative assistant.

Because the same analysis applies in part to both motions to strike, the court renders the following decision as to each motion.

II. STANDARD OF REVIEW

“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).  “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).   As a result, “[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]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

A. COSSETTE'S MOTION TO STRIKE (# 104)

The defendant, Cossette, moves to strike counts three, four, five and six.   The plaintiff, through counsel, agreed at short calendar to the striking of counts four, five and six of the revised complaint but has objected to striking count three, which claims an unreasonable intrusion upon the seclusion of another.

1. Count Three:  Unreasonable Intrusion Upon the Seclusion of Another

The defendant moves to strike count three on the ground that it fails to allege sufficient facts necessary to complete the tort of unreasonable intrusion upon the seclusion of another and because it fails to allege an actual intrusion upon the plaintiff, physical or otherwise.   In particular, the defendant maintains that since the plaintiff does not allege facts regarding how Cossette obtained the information that was communicated to Glass, the plaintiff does not allege the necessary element that he “physically intruded into a place in which the plaintiff had secluded himself, used his senses to oversee or overhear his private affairs, or any form of examination of the plaintiff's private concerns.”

The plaintiff counters that Connecticut trial courts have held that such claims of sexual assault or misconduct, whether involving private or public conduct, can support a claim for invasion of privacy and that an allegation of physical contact is not necessary to successfully state a claim in tort for the unreasonable intrusion upon the seclusion of another.   The plaintiff contends this cause of action may be based upon allegations that the defendant made statements about the plaintiff's sex life when Cossette stated that the plaintiff “had been the subject of many sexual harassment complaints” and “had been labeled a woman stalker,” which constitutes the sort of “sexually-related innuendo” that intrudes on a person's private affairs or concerns and that would be highly offensive to a reasonable person.²

The defendant counters that courts have found that the intrusion element was satisfied only in those cases where a defendant had engaged in unwanted physical contact and that in the case at hand the plaintiff fails to allege any such necessary allegations.   Further, Cossette argues that there is no authority for the proposition that general statements about the plaintiff's sex life are sufficient to establish such an intrusion but, rather, only highly personal questions or demands made directly to the plaintiff (emphasis added) may be regarded as an intrusion of psychological solitude.   In this regard, Cossette contends that because count three merely alleges a conversation between two individuals, neither of whom is the plaintiff, there was no unreasonable intrusion upon seclusion.

“[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone ․ The four categories of invasion of privacy are set forth ․ as follows:  (a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the other's name or likeness;  (c) unreasonable publicity given to the other's private life;  or (d) publicity that unreasonably places the other in a false light before the public.”  (Citations omitted;  internal quotation marks omitted.)  Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).

“The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category:  an unreasonable intrusion upon the seclusion of another ․ The Supreme Court, however, has often adopted the Restatement when adjudicating an invasion of privacy claim ․ and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another.”  (Citations omitted;  internal quotation marks omitted.)   Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV 06 5005107 (July 20, 2009, Wilson, J.).

The Restatement has set forth that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”   3 Restatement (Second), Torts § 652B, p. 378 (1977).  “[Unreasonable intrusion upon seclusion] does not depend upon any publicity given to the person whose interest is invaded or to his affairs.   It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.”   3 Restatement (Second), supra, § 652B, comment (a), p. 378.  “The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home.   It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires.   It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents ․” 3 Restatement (Second), supra, § 652B, comment (b), pp. 378–79.

In Gleason, the court considered whether the alleged publication of a newspaper article that chronicled many of the events of the plaintiff's life could constitute a claim for unreasonable intrusion upon seclusion.  Gleason v. Smolinski, supra, Superior Court, Docket No. CV 06 5005107.   Relying on the authority from the Restatement set forth above, the court concluded that such an allegation is not legally sufficient to sustain such a cause of action because it is “concerned with the methods used when obtaining private information, rather than its subsequent dissemination.”  (Emphasis added.)   Id.

A number of decisions of the Superior Court have concluded that a claim for unreasonable intrusion upon seclusion may be based upon particular types of offensive statements.   Oftentimes such statements are coupled with unwanted physical contact.   See Gallagher v. Rapoport, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) (19 Conn. L. Rptr. 474, 475) (allegations of repeated and offensive touching of plaintiff's body as well as sexual demands sufficient to state claim for unreasonable intrusion upon seclusion);  Schwartz v. Royal, Superior Court, judicial district of Hartford, Docket No. CV 95 0553218 (May 20, 1996, Hennessey, J.) (“The defendant's alleged grabbing, hitting the buttocks of, and constant staring at the chest of, the plaintiff would, if proven, amount to an intrusion upon the private affairs or seclusion of the plaintiff”).

Nevertheless, “an allegation of physical contact is not necessary to successfully state a claim for invasion of privacy via an unreasonable intrusion upon the seclusion of another.”  Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 99 0066603 (February 4, 2000, Nadeau, J.) (26 Conn. L. Rptr. 368).  “[H]ighly personal questions or demands by a person ․ may be regarded as an intrusion on psychological solitude or integrity and hence an invasion of privacy.”   (Internal quotation marks omitted.)  Id.;  see also W. Prosser & W. Keeton, Torts (5th Ed. Sup.1988) § 177, p. 121.   In Bonanno, the court concluded that “the plaintiffs' allegations about the defendant's supposed comments regarding plaintiffs' sex life, appearance, and values are highly offensive and adequately suffice in setting forth [a cause of action for unreasonable intrusion upon seclusion].”  Bonanno v. Dan Perkins Chevrolet, supra, 26 Conn. L. Rptr. 368;  see also Guccione v. Paley, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002943 (June 14, 2006, Trombley, J.) (defendant's alleged actions and comments to plaintiff concerning her religious and sexual practices support cause of action for unreasonable intrusion upon seclusion);  Slowick v. Morgan Stanley & Co., Superior Court, judicial district of New London, Docket No. CV 05 4003860 (February 21, 2006, Jones, J.) (defendant's alleged sexually suggestive actions, personal questions about plaintiff's physical appearance and comments about sex support cause of action for unreasonable intrusion upon seclusion).   In Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06 4022391 (November 28, 2006, Robinson, J.), however, the court concluded that insinuations by the defendant that the plaintiff was carrying on an extra-marital affair and that the plaintiff had a reputation as a womanizer were “too imprecise to base an intrusion upon seclusion cause of action ․”

In the case at hand, the allegations contained in the revised complaint are concerned more with the dissemination of information rather than the methods used when obtaining such information, as was the case in Gleason v. Smolinski, supra, Superior Court, Docket No. CV 06 5005107.

While a number of decisions of the Superior Court have concluded that a claim for unreasonable intrusion upon seclusion may be based upon particular types of offensive statements, such statements are often coupled with unwanted physical contact, directed at the plaintiff him or herself and/or concern “highly personal questions or demands ․ regarded as an intrusion on psychological solitude or integrity ․” as was the case in Bonanno v. Dan Perkins Chevrolet, supra, 26 Conn. L. Rptr. 368.

In the present case however, there are no allegations of unwanted physical contact by Cossette or any allegations that he made any statements directly to the plaintiff.   While the plaintiff argues that the statements concern sensitive personal information, including allegations of sexual harassment, the plaintiff fails to cite, nor is it submitted that there is any authority, that such statements made to a third party may constitute a claim for unreasonable intrusion upon seclusion.   Rather, a number of cases cited by the plaintiff concern instances wherein the defendant engaged in unwanted physical contact.   See, i.e., Gallagher v. Rapoport, supra, 19 Conn. L. Rptr. 475;  Schwartz v. Royal, supra, Superior Court, Docket No. CV 95 0553218.

The court also finds that the alleged statements in the present case are more “imprecise” and are akin to the insinuations made by the defendant in Kindschi and, likewise, do not support a cause of action for unreasonable intrusion upon seclusion.   See Kindschi v. Meriden, supra, Superior Court, Docket No. CV 06 4022391.

For the above reasons, the court finds that the allegations in the revised complaint fails to allege sufficient facts necessary to complete the tort of unreasonable intrusion and therefore grants Cossette's motion to strike count three of the revised complaint.   Further, because plaintiff's counsel conceded at time of argument that counts four, five and six are insufficient, the court orders them to be stricken.

II

GLASS'S MOTION TO STRIKE (# 105)

The plaintiff, through counsel, also conceded at short calendar to striking counts eight, nine and ten of the revised complaint but objected to striking counts seven, twelve and fourteen, which claim an unreasonable intrusion upon the seclusion of another, the intentional infliction of emotional distress and the negligent infliction of emotional distress, respectively.

1. Count Seven:  Unreasonable Intrusion Upon the Seclusion of Another

The defendant Glass argues, as did Cossette, that the plaintiff has failed to allege facts constituting an unreasonable intrusion upon seclusion because there is no allegation of a physical intrusion of any kind by Glass into the plaintiff's solitude or private concerns nor is there any allegation that Glass used mechanical aids to personally intrude into the plaintiff's private place.

In count seven of his revised complaint, the plaintiff alleges that Glass maliciously published the statements made by Cossette by putting that and other information in the plaintiff's personnel file.

In this regard, Glass contends that the information alleged to have been published in the plaintiff's personnel file by Glass or stated to two other individuals at Bozzuto's is a public record and does not concern the plaintiff's private affairs and that there is no liability for examination of a public record.

The relevant legal authority for this cause of action has been set forth previously and is equally applicable to the allegations set forth in count seven as against defendant Glass.   Much like the allegations set forth in count three against Cossette, such allegations are concerned with the dissemination of information rather than the methods used when obtaining such information, and as such are legally insufficient to constitute an unreasonable intrusion upon seclusion.

2. Count Twelve:  Intentional Infliction of Emotional Distress

The defendant Glass argues that count twelve of the revised complaint fails to allege actions so “extreme and outrageous” as to establish a claim for intentional infliction of emotional distress in that the allegations, when viewed against a standard of outrageous behavior outside the bounds of decency and cases applying this standard, the allegations set forth in the plaintiff's revised complaint fall far short.

“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) 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) the conduct was extreme and outrageous;  (3) the defendant's conduct was the cause of the plaintiff's distress;  and (4) the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).  “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 ․ [I]t is the intent to cause injury that is the gravamen of the tort ․” (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).  “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.”   (Citation omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, supra, 210–11.

“[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.”  (Internal quotation marks omitted.)   Cassotto v. Aeschliman, 130 Conn.App. 230, 235, 22 A.3d 697 (2011).   At the outset, “[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.”  Appleton v. Board of Education, supra, 254 Conn. 210.  “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, supra, 101 Conn.App. 569.  “Only where reasonable minds disagree does it become an issue for the jury.”  Appleton v. Board of Education, supra, 210.   As a result, a number of decisions of the Superior Court have indicated that “[t]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain [a cause of action for intentional infliction of emotional distress].   The court looks to the specific facts and circumstances of each case in making its decisions.”   Michel v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 11 6015195 (March 7, 2011, Levin, J.).

In determining whether Glass's conduct was extreme and outrageous as alleged in count twelve, the plaintiff specifically alleges conduct occurring in the employment context.³  Our Supreme Court has “recognized that emotional distress and anxiety are an unavoidable aspect of daily life, especially in the workplace context:  [I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.”  (Internal quotation marks omitted.)   Hearn v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.), quoting Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002).   For example, employees “reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal;  decisions related to such evaluation, such as those involving transfer, demotion, promotion and compensation;  similar decisions based on the employer's business needs and desires, independent of the employee's performance;  and disciplinary or investigatory action arising from actual or alleged employee misconduct.”  (Emphasis added.)  Perodeau v. Hartford, supra, 757.

In Appleton, our Supreme Court concluded that allegations that one of the defendants, a principal at the school where the plaintiff worked, “made condescending comments to [the plaintiff] in front of [her] fellow colleagues questioning [her] vision and ability to read;  telephoned the plaintiff's daughter, representing that the plaintiff had been acting differently and should take a few days off from work;  and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car” did not constitute extreme and outrageous conduct.  (Internal quotation marks omitted.)  Appleton v. Board of Education, supra, 254 Conn. 211.

Relying on Appleton, our Appellate Court has often concluded that alleged false statements or accusations made in the employment context do not rise to the level of extreme and outrageous conduct.   For example, in Bator v. Yale–New Haven Hospital, 73 Conn.App. 576, 577, 808 A.2d 1149 (2002), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006), the plaintiff alleged, inter alia, that a supervisor falsely accused the plaintiff of endangering a patient's life.   Our Appellate Court concluded that “the plaintiff's complaint [failed] to allege conduct that exceeds all bounds usually tolerated by decent society ․” (Internal quotation marks omitted.)  Id. Furthermore, in Carnemolla v. Walsh, 75 Conn.App. 319, 332–33, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), our Appellate Court concluded that the defendants' conduct, as a matter of law, did not constitute extreme and outrageous conduct where the defendants accused the plaintiff of embezzling company funds and requested that she sign documents that purportedly were resignation and release forms.   More recently, in Cassotto v. Aeschliman, supra, 130 Conn.App. 235, the plaintiff alleged, inter alia, that the defendant “falsely reported to others, whose identities are unknown to the plaintiff, that the plaintiff engaged in outbursts and irrational behavior.”   Our Appellate Court concluded that such an allegation did not rise to the level of extreme and outrageous conduct.  Id., 236–38.

Nevertheless, decisions of the Superior Court appear “to be divided on the issue of whether making false accusations regarding unlawful or criminal behavior can constitute extreme and outrageous conduct.”  Kontos v. Laurel House, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5001408 (January 17, 2007, Adams, J.) (42 Conn. L. Rptr. 709).  “The content and context of the alleged false statements are material considerations ․” Caballero v. Valverde, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6007139 (October 11, 2011, Matasavage, J.).

For example, extreme and outrageous conduct “may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests ․” Zulawski v. Stancil, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 5000203 (July 14, 2006, Hartmere, J.) (41 Conn. L. Rptr. 646, 648) (reasonable minds could differ as to whether allegations that defendant principal “falsely and maliciously accused the plaintiff of sexually harassing a group of high school boys” is extreme and outrageous [internal quotation marks omitted] ).  “Such position or relation may be that of an employer or supervisor at work ․” (Internal quotation marks omitted.)   Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.) (reasonable minds could differ over whether allegations constitute extreme and outrageous conduct where plaintiff alleged that defendant supervisor “had a history of abusive conduct towards her, culminating in her termination during which [the defendant] screamed at and berated her, stood over her chair threateningly, thereby preventing her from getting up, and falsely declared that she was terminated for insubordination” [internal quotation marks omitted] );  see also Baricko v. Chesebrough–Pond's USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.) (plaintiff's proof in count four raises genuine issue of whether false sexual harassment allegations made by workplace supervisor for purpose of discrediting employee rises to level of extreme and outrageous conduct).

Furthermore, “[p]laintiffs have ․ been successful in establishing claims for intentional infliction of emotional distress where they have alleged that they were forced to suffer public ridicule ․” Knight v. Southeastern Council on Alcoholism and Drug Dependency, Superior Court, judicial district of New London, Docket No. CV 01 0557182 (September 21, 2001, Hurley, J.T.R.);   see Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV 03 0472301 (January 11, 2005, Corradino, J.) [38 Conn. L. Rptr. 533] (denying defendants' motion for summary judgment where allegations of humiliating, vulgar remarks by plaintiff's new boss were not denied, were made “in a setting that exposed her to ridicule ․ given the fact that the hearers were people she had to work with on an apparently regular basis” and were combined with an element of physical intimidation);  Ferraro v. The Stop & Shop Supermarket, Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.) (denying defendant's motion for summary judgment where plaintiff alleged that he suffered harassment by defendant supervisor that was public, continuous, extreme and unrelenting, which included an incident where defendant allegedly threw piece of meat at plaintiff).   In Knight, however, the court concluded that the plaintiff failed to allege that she was subjected to public humiliation constituting extreme and outrageous conduct where she alleged that the defendant discriminated against her, retaliated against her for reporting the discrimination and wrongfully terminated her.  Knight v. Southeastern Council on Alcoholism and Drug Dependency, supra, Superior Court, Docket No. CV 01 0557182;  see also Fogarty v. Forman School, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002940 (March 10, 2011, Roche, J.) (allegations that defendant systematically traumatized plaintiff by way of demeaning, harassing, insulting and berating plaintiff on regular basis and by yelling at plaintiff in front of students did not contain public ridicule that rose to level where other courts have denied motion to strike).

Moreover, “[i]n the context of levying false accusations of unlawful behavior generally, our courts have noted that the cases distinguish between situations where a person merely accuses another of fraudulent or dishonest activity as opposed, for example, to actively encouraging or trying to bring about a false prosecution.”  Caballero v. Valverde, supra, Superior Court, Docket No. CV 11 6007139;  see also Hearn v. Yale–New Haven Hospital, supra, Superior Court, Docket No. CV 02 0466339 (“Accusations to the police leading to an arrest are substantially more egregious than claims of poor job performance or that the plaintiff was utilizing her breasts in a sexually provocative manner.”  [Internal quotation marks omitted] ).

In Caballero, the defendants filed a counterclaim in which they alleged that the plaintiff “falsely accused their twelve-year-old son of rubbing against her in an inappropriate manner, causing them severe emotional distress and mental anguish.”  (Internal quotation marks omitted.)  Caballero v. Valverde, supra, Superior Court, Docket No. CV 11 6007139.   In concluding that such an allegation does not fit “the criteria required to establish a claim against the plaintiff premised on intentional infliction of emotional distress” the court noted that “the plaintiff was not the employer or otherwise alleged to have been in a position of authority over the defendants, nor is it alleged that the false accusation was made publicly or in the course of encouraging a false prosecution.”  Id. In Kontos v. Laurel House, Inc., supra, 42 Conn. L. Rptr. 710, the plaintiff alleged, inter alia, that the defendants “falsely accused him of sexual harassment.”   In concluding that such allegations do not rise to the level of extreme and outrageous conduct, the court noted that such allegations “are less egregious than those of the plaintiff in Appleton, in which the court upheld the granting of summary judgment in favor of the defendants on the plaintiff's intentional infliction of emotional distress claim” because the plaintiff did not allege “that he was subjected to similarly invasive conduct at the time of his termination.”  Id., 710–11.   The court further noted that the plaintiff failed to allege that the defendants informed anyone else of the accusations.  Id., 711.

In this case, the plaintiff alleges that Glass maliciously published statements made by Cossette in the plaintiff's personnel file and falsely and maliciously published the assertion that he had received complaints from other individuals about, inter alia, feeling “uncomfortable” in the plaintiff's presence and the assertion that “if [the plaintiff] was willing to misrepresent the truth about his past ․ that he is willing to misrepresent the truth about other incidents occurring within and around Bozzuto's.”   Furthermore, the plaintiff alleges that Glass had also maliciously stated to two other individuals at the offices of Bozzuto's that he had information that the plaintiff had lied on his employment application, that the plaintiff did not retire from the Meriden police department and that other individuals had complained “that the plaintiff was making them uncomfortable and that he was strange and creepy.”

These allegations fail to set forth extreme and outrageous conduct.   Our Appellate Court has routinely concluded that allegations of false statements or accusations made in the employment context, such as accusations of endangering a patient's life;  Bator v. Yale–New Haven Hospital, supra, 73 Conn.App. 577;  embezzling funds;  Carnemolla v. Walsh, supra, 75 Conn.App. 332–33;  or engaging in outbursts and irrational behavior;  Cassotto v. Aeschliman, supra, 130 Conn.App. 235;  did not rise to the level of extreme and outrageous conduct.   Two recent decisions of the Superior Court have also found, more specifically, that allegations of false accusations of sexual harassment failed to constitute extreme and outrageous conduct.   See Caballero v. Valverde, supra, Superior Court, Docket No. CV 11 6007139;  Kontos v. Laurel House, Inc., supra, 42 Conn. L. Rptr. 709.   While, a number of decisions of the Superior Court have noted that extreme and outrageous conduct “may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other”;  Zulawski v. Stancil, supra, 41 Conn. L. Rptr. 646;  it bears noting that in Kontos, the court granted the defendant's motion to strike where the alleged accusations of sexual harassment were made by the executive director where the plaintiff worked.   See Kontos v. Laurel House, Inc., supra, 709.

Furthermore, while “[p]laintiffs have ․ been successful in establishing claims for intentional infliction of emotional distress where they have alleged that they were forced to suffer public ridicule”;  Knight v. Southeastern Council on Alcoholism and Drug Dependency, supra, Superior Court, Docket No. CV 01 0557182;  such allegations have often included an element of harassment coupled with physical intimidation.   See Oppenheim v. Gruell, supra, Superior Court, Docket No. CV 03 0472301;  Ferraro v. The Stop & Shop Supermarket, Co., supra, Superior Court, Docket No. CV 96 0388031.   No such allegations of harassment or physical intimidation have been set forth in the plaintiff's revised complaint.   Moreover, there has been no allegation of an attempt on the part of Glass to bring about a false prosecution.

3. Count Fourteen:  Negilgent Infliction of Emotional Distress

Defendant Glass moves to strike count fourteen for the reason that the plaintiff's allegations occurred outside the termination process and are therefore insufficient to state such a claim in the employment context.   The plaintiff contends that his claim is not within the employment context and argues that the cases cited by Glass are inapplicable, most notably because such cases “arise in the employment context and have no relevance whatsoever to the present case in which the plaintiff has alleged that [Glass] has maliciously placed false and defamatory statements in the personnel file.”

“[I]n order to state [a claim for negligent infliction of emotional distress], the plaintiff has the burden of pleading that the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm ․ Accordingly, 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 ․ 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.)  Parsons v. United Technologies Corp., 243 Conn. 66, 88–89, 700 A.2d 655 (1997).   Therefore, “[t]he 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.”  (Emphasis in original;  internal quotation marks omitted.)  Perodeau v. Hartford, supra, 259 Conn. 751.   In this regard, our Supreme Court has concluded that “an individual municipal employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Id., 762–63.   Subsequently, our Appellate Court concluded that “Perodeau applies regardless of whether the defendant is an individual or a government entity.   The policy rationale of Perodeau focuses on the importance of preserving stability in the workplace and not on the identity or status of the defendant.”  O'Connor v. Board of Education, 90 Conn.App. 59, 69, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005).

Therefore, a claim for negligent infliction of emotional distress may not be asserted in the employment context absent an allegation that such emotional distress arose out of the termination process.   In count fourteen, the plaintiff sets forth allegations that arise in the employment context but fails to allege any conduct that occurred in the termination process or that he was terminated at all.⁴

CONCLUSION

For the foregoing reasons, the court grants the defendant Cossette's motion to strike counts three, four, five and six of the plaintiff's revised complaint, and grants defendant Glass's motion to strike counts seven, eight, nine, ten, twelve and fourteen of the plaintiff's revised complaint.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. The plaintiff labeled this complaint as an “Amended Complaint.”   This complaint, however, is more properly labeled as a “Revised Complaint” because it was filed in response to Cossette's request to revise, dated June 3, 2011, and Glass's request to revise, dated June 10, 2011;  see Practice Book § 10–37(a);  and without filing a request for leave to file an amendment.   See Practice Book § 10–60(a).   The court will hereafter refer to the pleading as the “revised complaint.”.  FN1. The plaintiff labeled this complaint as an “Amended Complaint.”   This complaint, however, is more properly labeled as a “Revised Complaint” because it was filed in response to Cossette's request to revise, dated June 3, 2011, and Glass's request to revise, dated June 10, 2011;  see Practice Book § 10–37(a);  and without filing a request for leave to file an amendment.   See Practice Book § 10–60(a).   The court will hereafter refer to the pleading as the “revised complaint.”

FN2. The plaintiff also argues that the instant case is an ideal vehicle to explicitly recognize a new cause of action for violation of privacy in an employee's file pursuant to General Statutes § 31–128a et seq.   The court need not address this argument as the plaintiff has failed to allege such a cause of action in the revised complaint and because it is outside the parameters of Cossette's motion to strike..  FN2. The plaintiff also argues that the instant case is an ideal vehicle to explicitly recognize a new cause of action for violation of privacy in an employee's file pursuant to General Statutes § 31–128a et seq.   The court need not address this argument as the plaintiff has failed to allege such a cause of action in the revised complaint and because it is outside the parameters of Cossette's motion to strike.

FN3. While the plaintiff argues that this case does not occur in the employment context, such an argument is without merit and in contradiction to the allegations in the revised complaint.   In particular, the plaintiff alleges that he was an employee at Bozzuto's and that Glass was a manager at Bozzuto's.   The allegations set forth against Glass concern his actions at Bozzuto's including allegations that he published statements in the plaintiff's personnel file and made statements to two other individuals while at his place of employment..  FN3. While the plaintiff argues that this case does not occur in the employment context, such an argument is without merit and in contradiction to the allegations in the revised complaint.   In particular, the plaintiff alleges that he was an employee at Bozzuto's and that Glass was a manager at Bozzuto's.   The allegations set forth against Glass concern his actions at Bozzuto's including allegations that he published statements in the plaintiff's personnel file and made statements to two other individuals while at his place of employment.

FN4. While the plaintiff argues that this case does not occur in the employment context, such an argument is without merit and in contradiction to the allegations in his revised complaint.   See footnote 5..  FN4. While the plaintiff argues that this case does not occur in the employment context, such an argument is without merit and in contradiction to the allegations in his revised complaint.   See footnote 5.

Markle, Denise D., J.