Marlene Woods v. The Connection, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, NO. 106

I

FACTS

On August 16, 2011, the plaintiffs, Marlene Woods and Dorothy Martin, filed a revised ten-count complaint against the defendant, The Connection, Inc., alleging wrongful discharge, defamation, invasion of privacy by false light, intentional infliction of emotional distress and negligent infliction of emotional distress.¹  The revised complaint alleges the following facts.   As of March 2011, Woods was employed by the defendant as a recovery counselor and Martin was employed by the defendant as a part-time case manager.   In late March 2011, the defendant began an investigation into a theft complaint.   Approximately one week later, Woods was placed on administrative leave based on allegations that client food stamps and client money were being spent by staff.   She was then called in for an impartial interview, which she attended in late March 2011.   Tanya Hill, who was employed by the defendant as a program manager, attended the meeting to record the minutes.   Although Martin had not been put on administrative leave, she was also required to attend an impartial interview on or about April 1, 2011, at which Hill was again present to record the minutes.

On or about April 7, 2011, Woods received a phone call from the defendant's vice president of human resources, advising her that her employment had been terminated for the violation of company policy and procedure and for the misuse of client funds.   Woods subsequently received a termination letter, dated April 7, 2011, indicating that her employment “was terminated and that ‘as a result of an internal investigation’ regarding ‘staff misuse of client funds,’ which included ‘interviews with clients, staff’ and ‘an accounting of client funds,’ the ‘scope of [her] involvement’ was ‘clearly illustrated.’  “ (Revised Complaint, ¶ 23.)   Martin received the same termination letter as Woods, also dated April 7, 2011.

Approximately one week after the plaintiffs were terminated, Hill told Wanda Jofre, a former employee of the defendant, that the plaintiffs had been “fired for stealing client food stamps and funds.”  (Revised Complaint, ¶ 72.)   This conversation occurred in the parking lot of one of the defendant's buildings.   Jofre then repeated Hill's statements to Sharon Brown, a former employee of the defendant who was also terminated for misuse of client funds.   The plaintiffs have never received documentation of client or staff interviews, an accounting of funds or evidence corroborating the allegations of theft.   The defendant has never reported the theft to the department of social services, the attorney general or the police department.

On September 21, 2011, the defendant filed a motion to strike all ten counts of the plaintiffs' revised complaint and a memorandum of law in support of the motion.²  On October 24, 2011, the plaintiffs filed an objection to the motion to strike, a memorandum of law and printed pages from the department of social services' website.   The defendant filed a reply memorandum on December 6, 2011.

II

DISCUSSION

“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).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [The court is] limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

A

Wrongful Discharge

The defendant moves to strike counts one and two of the plaintiffs' revised complaint on the ground that both counts fail to allege conduct that could constitute a violation of an established public policy.   Specifically, the defendant argues that the plaintiffs have failed to identify a statute or constitutional provision that would indicate an important public policy.   The defendant further argues that, although the plaintiffs allege they were terminated based on false accusations of theft, under Morris v. Hartford Courant Co., 200 Conn. 676, 513 A.2d 66 (1986), false accusations of criminal conduct do not violate an important public policy.   In its reply memorandum, the defendant argues that the public policy outlined by the plaintiffs' brief is irrelevant to the plaintiffs' termination, and the statutes listed in the plaintiff's brief should not be considered as they were not included in the revised complaint.

The plaintiffs counter that, although no statute was specifically violated, General Statutes §§ 17b–7a, 17b–25a, 17b–79, 17b–99 and 17b–102 reflect a strong public policy against welfare fraud.³  The plaintiffs argue in their memorandum that the defendant “circumvented its obligation to report the fraud to the [s]tate, placed the blame on the [p]laintiffs and wrongfully terminated their employment in order to avoid its own potential liability with the [d]epartment of [s]ocial [s]ervices.”  (Plaintiffs' Memorandum of Law, pg. 8.) The plaintiffs assert that the defendant's decision to conduct an internal investigation instead of reporting the fraud to the state was a violation of public policy.   The plaintiffs further counter that Morris is inapplicable because (1) that case dealt with an alleged negligent investigation, (2) that plaintiff failed to allege that the defendant knew the accusations were false, and (3) that plaintiff did not address any public policy.   The plaintiffs argue that, in the present situation, they have alleged that the violation of public policy was not a negligent investigation but rather the failure to report the theft to the state, they have alleged that the defendants knew the accusations of theft were unsubstantiated and they have identified a relevant public policy.

Connecticut recognizes an exception to the general rule of at-will employment to permit a common-law cause of action for wrongful discharge “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.”   (Emphasis in original.)  Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980).  “Under the exception, the employee has the burden of pleading and proving that [the] dismissal occurred for a reason violating public policy.”  Morris v. Hartford Courant Co., supra, 200 Conn. 679.  “In evaluating claims, [w]e look to see whether the plaintiff has ․ alleged that his discharge violated any explicit statutory or constitutional provision ․ or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.”  (Internal quotation marks omitted.)  Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 699, 802 A.2d 731 (2002).

The plaintiffs asserted in their memorandum that the defendant violated an important public policy by not reporting the alleged thefts to the state, the department of social services or the police.  “The public policy of discouraging fraud generally is firmly rooted in our common law ․” (Internal quotation marks omitted.)  Board of Education v. Local 566, Council 4, AFSCME, 43 Conn.App. 499, 505, 683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997).   Wrongful discharge based on a violation of the public policy against fraud has been found where the employee was terminated after refusing to participate in the fraud;  see e.g., Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997);  or the employee was terminated after disclosing the employer's fraud.   See e.g., Schmidt v. Yardney Electric Corp., 4 Conn.App. 69, 492 A.2d 512 (1985).   The employer must actually violate the public policy;  the employee's subjective belief that a violation may have occurred or will occur is not enough.   See Fenner v. Hartford Courant Co., 77 Conn.App. 185, 822 A.2d 982 (2003).

Additionally, “for a discharge to be actionable, there must be more than an incidental effect on public policy.   The defendant's reason for discharging the plaintiff must contravene public policy.”  (Emphasis in original.)  Battista v. United Illuminating Co., 10 Conn.App. 486, 497–98, 523 A.2d 1356 (1987).   In Russo v. Knights of Columbus, Superior Court, judicial district of New Haven, Docket No. CV 07 5014504 (December 4, 2008, Licari, J.), the plaintiff was terminated from his employment as the defendant company's attorney after informing the defendant that he believed the company's handling of tsunami relief funds violated the law.   The plaintiff cited to 18 U.S.C. §§ 1341 and 1343, arguing that they “reflect a public policy against using interstate methods of communications to obtain money or property by means of false or fraudulent pretenses.”  (Internal quotation marks omitted.)  Id. Although the court agreed that there exists a strong public policy against fraud, it found that “the connection between the public policy against fraud and the plaintiff's termination is too attenuated to support his claim of wrongful discharge ․” Id.

Alternatively, the plaintiffs argue that the violation of public policy was the defendant's failure to report the alleged theft to the department of social services.   The relevant statutes highlighted by the plaintiffs, however, do not create such an obligation.   Although there are incentives to reporting vendor fraud;  see General Statutes § 17b–102;  vendors are only required to “notify the commissioner within thirty days after the date of employment or conviction, whichever is later, of the identity, interest and extent of services performed by any person convicted of a crime involving fraud in the Medicare program ․” General Statutes § 17b–99(b).  The revised complaint also fails to allege an objective instance of fraud;  the plaintiffs allege that they did not misuse funds but have not alleged that a specific instance of fraud actually occurred.   In their memorandum they argue that because they did not misuse the funds, and the defendant has not reported the fraud, the defendant is likely still committing fraud.   This is not presented in the revised complaint, however, and is at most only a subjective belief that the defendant has violated the public policy against fraud.

Additionally, the plaintiffs fail to allege any nexus between this violation and the reason for their discharge.   Although the plaintiffs argue in their memorandum that the defendant circumvented an obligation to report by conducting an internal investigation, the revised complaint is void of any allegation that the plaintiffs were terminated in order for the defendant to avoid its own liability and, viewing the complaint in favor of sustaining its legal sufficiency, the court cannot infer such a situation has been alleged.   Even if the defendant's failure to report violated the public policy against fraud, the connection between that violation and the plaintiffs' discharge is too attenuated to support a cause of action for wrongful discharge.   The defendant's motion to strike counts one and two is granted.

B

Defamation

The defendant next moves to strike counts three and four of the plaintiffs' revised complaint on the ground that both counts fail to allege Hill made any statements that were false and fail to allege any conduct that is attributable to the defendant.   Specifically, the defendant argues that the statements made by Hill in the parking lot truthfully reflect the language in the plaintiffs' termination letters, i.e. that the plaintiffs were terminated for their misuse of client funds.   The defendant further argues that, even if Hill's statements could be considered false, the plaintiffs have not alleged that the defendant is liable under a theory of respondeat superior.   Specifically, the plaintiffs fail to allege that Hill's statements were made in the scope of her employment;  rather, the allegations amount to only “out-of-work gossip.”   In its reply memorandum, the defendant argues that truth is a defense to defamation so long as the gist of the statement is truthful.   Additionally, Hill's presence on company property does not mean that she was acting within the scope of her employment.

The plaintiffs counter that Hill stated that the plaintiffs were terminated for stealing, which is defamation per se.   In addition, the termination letter only stated that the plaintiffs were “involved” with the “misuse of client funds” and listed violations of agency policy as the reason for termination.   The plaintiffs argue that Hill's statement that they were fired for stealing is different from the statement made in the termination letter that they were fired for misuse and, therefore, is false.   The plaintiffs further counter that they have alleged that Hill was employed by the defendant and was on the defendant's property when she made the statement.   The plaintiffs argue that the defendant need not approve or know of the employee's actions to be responsible under the theory of respondeat superior, and whether Hill's statements were made in the scope of her employment is a question of fact.

1

False Fact

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Citations omitted;  internal quotation marks omitted.)  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).  “An accusation that someone is guilty of theft would fit the definition of a defamatory statement, which is defined as a communication that tends to harm the reputation of another, thereby lowering her in the estimation of the community or deterring third persons from associating or dealing with her.”  Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 848, 863 A.2d 735 (2005).

“Although it is true that for a claim of defamation to be actionable, the statement must be false ․ and under the common law, truth is an affirmative defense to defamation ․ the determination of the truthfulness of a statement is a question of fact for the jury.   As a defense, truth provides protection against liability, but not against the expense and inconvenience of being sued.”  Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 228–29.   The plaintiffs have alleged that Hill stated that the plaintiffs had been fired for stealing and, therefore, have sufficiently alleged a defamatory statement.   In addition, the plaintiffs have alleged that the statement was false.   Whether the statement is true is an affirmative defense to be considered by the jury, and not a question of law which may be decided by a motion to strike.

2

Respondeat Superior

“[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  (Emphasis omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).  “We have long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business ․ But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.”  (Citations omitted;  internal quotation marks omitted.)   A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).

“[S]cope of employment ․ is not synonymous with the phrase ‘during the period covered by his employment.’  Id., 209–10.  “While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ․ that does not end the inquiry.   Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business ․ Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.”  (Internal quotation marks omitted.)  Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997).

In White v. Wal–Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV 06 6000345 (May 1, 2007, Wagner, J.T.R), the plaintiff filed suit after the defendant's employees made humiliating and degrading comments to her regarding her physical appearance as she stood in a layaway line.   The court noted that the plaintiff had sufficiently alleged that the employee's actions were within the scope of their employment;  she had alleged that the “employees were at all times performing company duties ․ because they were handling managerial duties of dealing with a customer complaint and injury at the time.”  Id. Conversely, in Gilbert v. Parker X–Ray Solution Service, Inc., Superior Court, judicial district of Hartford, Docket No. CV 08 5019513 (August 26, 2008, Bentivegna, J.), the plaintiff sued his former employer after being subjected to verbal abuse by his co-workers.   The court found that “[t]he nature of the behavior alleged in the complaint cannot be said to be in furtherance of the defendant's business.   Unless the coworkers' actions against the plaintiff were motivated by a purpose to serve a principal, the principal is not liable.”  (Internal quotation marks omitted.)  Id.

The plaintiffs allege that Hill was an employee of the defendant, a participant in the impartial interviews and made her statements regarding the plaintiffs' termination in the defendants' parking lot.   These facts, viewed in favor of the plaintiffs, are legally sufficient to allege liability under the doctrine of respondeat superior.   Whether the essential elements of this cause of action can be sustained with adequate proof is not properly before the court when evaluating a motion to strike.   The defendant's motion to strike counts three and four is denied.

C

False Light Invasion of Privacy

The defendant moves to strike counts five and six of the plaintiffs' revised complaint on the ground that both counts fail to allege statements that were false.⁴  As previously discussed in the context of the defamation counts, the plaintiffs have sufficiently pled that Hill's statements were false.   The plaintiffs have alleged that the termination letter stated that they were fired for involvement in the misuse of funds and that they were terminated under false pretenses.   The plaintiffs further allege that Hill stated that they were fired for stealing and that theses statements were false.   As the defendant moved to strike these counts only on the ground that the plaintiffs failed to allege false statements, the motion to strike counts five and six of the plaintiffs' revised complaint be denied.   See Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001) (trial court may only consider grounds specified in motion).

D

Intentional Infliction of Emotional Distress

The defendant moves to strike counts seven and eight of the plaintiffs' revised complaint on the ground that both counts fail to allege conduct that is extreme and outrageous.   The defendant argues that the investigation and termination of the plaintiffs, as well as Hill's comments regarding the reason for the plaintiffs' termination, do not rise to the level of extreme or outrageous.   The plaintiffs counter that they have alleged that they were fired even though the defendant could not corroborate the accusations of theft and did not notify the police.   Additionally, the defendant publicized a false statement accusing the plaintiffs of a crime of moral turpitude.   The plaintiffs assert that this conduct meets the standard of extreme and outrageous.

“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 plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping 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.”  (Citation omitted;  internal quotation marks omitted.)   Gillians v. Vivanco–Small, 128 Conn.App. 207, 211, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011).  “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, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000).

In reviewing intentional infliction of emotional distress claims in relation to employment and termination of employment cases, the Appellate Court, in Gillians v. Vivanco–Small, supra, 128 Conn.App. 212–13, noted that an “investigation into the plaintiff's job performance ․ even if unfounded, does not satisfy the articulated standard.   See, e.g., Tracy v. New Milford Public Schools, 101 Conn.App. 560, 567–70, 922 A.2d 280 (conduct not outrageous where supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007) ․ A concerted effort to remove an employee ․ does not necessarily constitute outrageous conduct;  see, e.g., Dollard v. Board of Education, 63 Conn.App. 550, 552–55, 777 A.2d 714 (2001) (conduct not outrageous where supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her);  nor does a wrongful motivation necessarily render a termination outrageous.   See Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (mere act of terminating employee, even if wrongfully motivated, does not transgress bounds of socially tolerable behavior).”

In the present case, the plaintiffs fail to allege conduct that is extreme and outrageous.   The conduct alleged by the plaintiffs falls well short of even the type of conduct that the Appellate Court has found not to be extreme and outrageous.   The plaintiffs refer to the defendant's failure to produce evidence that corroborates the theft and the plaintiffs' subsequent termination based on those unsubstantiated allegations.   An improper investigation, wrongfully motivated termination or defaming statement, however, does not satisfy the standard of “extreme and outrageous.”   The motion to strike counts seven and eight of the plaintiffs' revised complaint is granted.

E

Negligent Infliction of Emotional Distress

The defendant moves to strike counts nine and ten of the plaintiffs' revised complaint on the ground that both counts fail to allege conduct during the actual termination process that transgressed the bounds of socially acceptable behavior.   The defendant argues that the investigation which led to the plaintiffs' termination cannot support a negligent infliction of emotional distress claim.   Additionally, the phone call informing the plaintiffs of their termination and the subsequent letter were routine, and the statement made by Hill was mere workplace gossip, all of which are acceptable social behavior in the workplace.

Relying on Olson v. Bristol–Burlington Health District, 87 Conn.App. 1, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005), the plaintiffs counter that false accusations of willful misconduct are sufficient for a negligent infliction of emotional distress claim.   Additionally, the plaintiffs argue that Hill's statement intentionally perpetuated a falsehood about the plaintiffs, which transgresses the bounds of socially tolerable behavior.   The defendant counters in its reply memorandum that Olson is inapplicable because the employee in that case had a debilitating disease and was first accused of willful misconduct during her termination meeting.   In addition, Hill's comment was made approximately a week after the plaintiffs were terminated and her statement cannot be attributed to the defendant because it was not made in the scope of her employment.

“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, [t]he 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.”   (Citation omitted;  internal quotation marks omitted.)  Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).

A claim of negligent infliction of emotional distress cannot arise “out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Perodeau v. Hartford, 259 Conn. 729, 762–63, 792 A.2d 752 (2002).  “[N]egligent 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.”  (Citation omitted;  internal quotation marks omitted.)  Parsons v. United Technologies Corp., 243 Conn. 66, 88–89, 700 A.2d 655 (1997).  “Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination.   Termination means the ending, not the conduct which causes the ending.”   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, 208).

“Unreasonable conduct [for the purposes of pleading negligent infliction of emotional distress] has been interpreted by the [S]uperior [C]ourts as conduct performed in an inconsiderate, humiliating or embarrassing manner ․ Courts have found that unreasonable conduct in the employment termination context could be based on knowingly making false claims about the plaintiff's intentional conduct in connection with the firing ․ interrogating a plaintiff for several hours on three separate occasions, escorting him off the premises by armed security guards in view of his coworkers and publicly announcing that he was terminated for a breach of business ethics ․ and falsely accusing the plaintiff of using the defendant's property to have a liaison with a female friend during working hours ․ [Moreover], falsely accusing a plaintiff of misconduct or publicizing false reasons for a plaintiff's termination to other employees may be sufficiently unreasonable conduct to support a claim for negligent infliction of emotional distress.”  (Emphasis added;  internal quotation marks omitted.)   Battistoni v. Lakeridge Tax District, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002223 (June 17, 2008, Marano, J.).⁵

This court has previously stated that “a motion to strike is not the proper forum to determine whether the facts alleged in the complaint will be proven at trial.   Indeed, the court is obligated to assume the truth of the facts asserted.   Nor is it the proper forum to rule, as a matter of law, whether the termination process began and ended on certain dates.   That is a peculiarly factual matter entrusted to the judgment of the jury.   Finally, and most critically, it is not the province of the court, in ruling on a motion to strike, to determine whether the constellation of facts alleged by the plaintiff, constitutes the type of conduct that is sufficiently wrongful that the defendants should have realized it would involve an unreasonable risk of causing the plaintiff emotional distress.”  Noonan v. Miller Memorial Community Home, Inc., 50 Conn.Sup. 367, 372, 928 A.2d 626 (2007).   The plaintiffs have alleged that they each received a letter stating that they were terminated because of their involvement in staff misuse of client funds, and that the defendant's accusations of theft were false.   The revised complaint, therefore, alleges false accusations of misconduct during the termination process and is sufficient to state a claim for negligent infliction of emotional distress.

Accordingly, the defendant's motion to strike counts one, two, seven and eight is granted;  the motion to strike counts three, four, five, six, nine and ten is denied.

SO ORDERED.

ROBERT L. HOLZBERG, JUDGE

FOOTNOTES

FN1. Counts one and two allege wrongful discharge, counts three and four allege defamation, counts five and six allege invasion of privacy by false light, counts seven and eight allege intentional infliction of emotional distress and counts nine and ten allege negligent infliction of emotional distress, with the odd counts brought by Woods and the even counts brought by Martin..  FN1. Counts one and two allege wrongful discharge, counts three and four allege defamation, counts five and six allege invasion of privacy by false light, counts seven and eight allege intentional infliction of emotional distress and counts nine and ten allege negligent infliction of emotional distress, with the odd counts brought by Woods and the even counts brought by Martin.

FN2. The grounds for striking each count will be set forth as necessary..  FN2. The grounds for striking each count will be set forth as necessary.

FN3. The plaintiffs submitted pages from the department of social services website in support of their position that there exists a strong public policy against welfare fraud.  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   These documents, therefore, will not be considered..  FN3. The plaintiffs submitted pages from the department of social services website in support of their position that there exists a strong public policy against welfare fraud.  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   These documents, therefore, will not be considered.

FN4. “[A] false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed ․ This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is ․ The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true ․ and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.”  (Citations omitted;  internal quotation marks omitted.)  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982)..  FN4. “[A] false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed ․ This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is ․ The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true ․ and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.”  (Citations omitted;  internal quotation marks omitted.)  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982).

FN5. “[F]or ․ policy reasons, the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high.”  Perodeau v. Hartford, supra, 259 Conn. 762.   However, conduct from the termination of employment can sustain such a claim because “the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees.”   Id., 758.   Although the Supreme Court has “not address[ed] the issue of emotional distress alleged against a former employer post-termination, it is reasonable to conclude that the policy concerns expressed by the court fall away when the employee is no longer in a position to use the threat of a lawsuit to influence his or her employer and fellow employees.”   Mendez v. Utopia Home Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 6006222 (November 5, 2010, Peck, J.).   Therefore, some Superior Court decisions have found conduct following the employee's termination sufficient to support an emotional distress claim.   See id.   The plaintiffs assert that Hill's statement, which occurred a week after the plaintiffs' termination, constitutes unreasonable conduct that transgressed the bounds of socially tolerable behavior.   As previously discussed, however, Hill's statement cannot be attributed to the defendant and, therefore, will not be considered..  FN5. “[F]or ․ policy reasons, the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high.”  Perodeau v. Hartford, supra, 259 Conn. 762.   However, conduct from the termination of employment can sustain such a claim because “the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees.”   Id., 758.   Although the Supreme Court has “not address[ed] the issue of emotional distress alleged against a former employer post-termination, it is reasonable to conclude that the policy concerns expressed by the court fall away when the employee is no longer in a position to use the threat of a lawsuit to influence his or her employer and fellow employees.”   Mendez v. Utopia Home Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 6006222 (November 5, 2010, Peck, J.).   Therefore, some Superior Court decisions have found conduct following the employee's termination sufficient to support an emotional distress claim.   See id.   The plaintiffs assert that Hill's statement, which occurred a week after the plaintiffs' termination, constitutes unreasonable conduct that transgressed the bounds of socially tolerable behavior.   As previously discussed, however, Hill's statement cannot be attributed to the defendant and, therefore, will not be considered.

Holzberg, Robert L., J.