Alicia Maher v. The Norwalk Hospital Association et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS AND MOTION TO STRIKE

INTRODUCTION AND FACTUAL SUMMARY

The plaintiff commenced this action against her former employer Norwalk Hospital Association (Norwalk Hospital) and her former supervisor Jacqueline a/k/a Vicenta Gomez (Gomez) alleging Count One:  wrongful termination in violation of Conn. Gen.Stat. 46a–60(1), Count Two:  violation of Connecticut Fair Employment Practice Act Conn. Gen.Stat.46a–60(5) as to both Norwalk Hospital and Gomez and Count Three:  negligent infliction of emotional distress as to both defendants.   The defendants, Norwalk Hospital Association and Gomez,¹ have both moved to strike count three, alleging negligent infliction of emotional distress against them.   The defendant Gomez has moved to dismiss count two which as pleaded only applies to her.

In her three-count complaint, the plaintiff alleges the following facts.   The plaintiff, who is Caucasian and was born in the United States, began working for Norwalk Hospital in 1981 as a typist in the medical records department and continuously received satisfactory or more than satisfactory annual performance reviews.   At some point in 2010, Gomez, the office manager for the medical records department, who is of Dominican descent, told the plaintiff that the plaintiff's name came up in the deposition of a former coworker, Miriam Alvarez.   The deposition was part of a discrimination suit by Alvarez against Gomez and Norwalk Hospital.   Plaintiff alleges that Gomez then falsely accused the plaintiff of helping Alvarez in some manner related to Alvarez's lawsuit.   After that time, Gomez treated plaintiff poorly, ignoring her requests for time off, bullying the plaintiff and taking work responsibilities away from her.   In response, the plaintiff complained to Gomez's supervisor, Paul Gaudio, about Gomez's treatment of her.   On December 15, 2010, the plaintiff was terminated without warning for “creating a hostile work environment.”

The plaintiff alleges that Norwalk Hospital's reason for her termination was a pretext for discrimination based on the plaintiff's national origin and was in retaliation for purportedly assisting Alvarez with her discrimination lawsuit.   She alleges that she filed a complaint with the Commission on Human Rights and Opportunities (CHRO) on June 13, 2011, and complied with all jurisdictional requirements prior to bringing the suit in the present case.   In counts one and two, the plaintiff alleges that she was fired because of her national origin and the fact that her name came up in another discrimination lawsuit, violations of General Statutes § 46a–60(1) as against Norwalk Hospital and of General Statutes § 46a–60(5) as against Jacqueline Gomez.   In count three, the plaintiff alleges negligent infliction of emotional distress against both defendants.   On February 14, 2013, the defendants simultaneously moved to dismiss all counts against Jacqueline Gomez because the plaintiff failed to name her as a defendant in the CHRO complaint and moved to strike count three because the plaintiff failed to allege sufficient conduct related to her termination which would be likely to create a risk of emotional distress.   The plaintiff responded that the defendants failed to submit authenticated documents or affidavits demonstrating that Jacqueline Gomez was not named in the commission complaint and that she alleged unreasonable conduct leading up to her termination and during her termination.   The matter was heard at short calendar on March 25, 2013.

APPLICABLE LAW

1. Motion to Dismiss Count Two as to Defendant Gomez

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429, 829 A.2d 801 (2003).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).

“[T]he claim of failure to exhaust administrative remedies, which implicates subject matter jurisdiction ․ should be raised by a motion to dismiss pursuant to Practice Book § 10–31.”  Paul v. New Haven, 48 Conn.App. 385, 388 n.2, 710 A.2d 798 (1998).  “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”   (Internal quotation marks omitted.)  Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).  “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)  Id.

“[B]efore a document may be considered by the court in support of a motion ․ there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents ․ may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”   (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).  “The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.”   Conn.Code Evid. § 9–1(a).  “The distinctive characteristics of an object, writing or other communication, when considered in conjunction with the surrounding circumstances, may provide sufficient circumstantial evidence of authenticity.”   Conn.Code Evid. § 9–1(a), commentary.  “The requirement of authentication as a condition precedent to admitting into evidence a record ․ is satisfied by evidence that (A) the record, report, statement or data compilation authorized by law to be recorded or filed in a public office has been recorded or filed in that public office ․” Conn.Code Evid. § 9–3.  “A copy of a writing, recording or photograph is admissible to the same extent as an original unless (A) a genuine question is raised as to the authenticity of the original or the accuracy of the copy, or (B) under the circumstances it would be unfair to admit the copy in lieu of the original.”   Conn.Code Evid. § 10–2.

The defendants claim that Gomez was never a party to the CHRO action and that therefore the plaintiff failed to exhaust administrative remedies before bringing an action in the Superior Court.   The plaintiff responds that she alleged in the complaint that she complied with all jurisdictional requirements and that the defendants have not presented credible evidence to dispute that assertion.   In support of the motion to dismiss Gomez has submitted a copy of the complaint which the plaintiff filed with the CHRO. This complaint signed by plaintiff and her attorney names the Norwalk Hospital Association as the sole respondent.

The following general background regarding the jurisdiction and procedures governing matters before the CHRO as provided by statute is relevant to the court's determination of the issues before it.

General Statutes § 46a–56 specifies that the commission shall have the power to “[i]nvestigate and proceed in all cases of discriminatory practices as provided in this chapter ․” General Statutes § 46a–60 then defines discriminatory employment practices, including “[for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so.”  General Statutes § 46a–60(a)(5).  General Statutes § 46a–100 provides in pertinent part that “[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a–82 and who has obtained a release from the commission in accordance with section 46a–83a or 46a–101, may also bring an action in the superior court ․” General Statutes § 46a–101(a) provides that “[n]o action may be brought in accordance with section 46a–100 unless the complainant has received a release from the commission in accordance with the provisions of this section.”   The court in Hayes v. Yale–New Haven Hospital, 82 Conn.App. 58, 59 n.2, 842 A.2d 616 (2004), affirmed the trial court's ruling that it lacked subject matter jurisdiction over the claim alleging discrimination, but not over other claims, including negligent infliction of emotional distress, where an employee failed to obtain a release from the commission.   See Hayes v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 96 0393656 (May 10, 2001, Devlin, J.) [30 Conn. L. Rptr. 165].

In the present case, the plaintiff is bringing claims in the superior court against Gomez for discrimination under General Statutes § 46a–60(5) and for negligent infliction of emotional distress under common law.   Only the statutory action alleging a discriminatory practice could be brought in the CHRO. Therefore, the court has subject matter jurisdiction over the negligent infliction of emotional distress claim regardless of whether the plaintiff filed a claim with the commission.

With respect to her claim for discrimination under General Statutes 46a–60(5) the plaintiff is required to demonstrate that she exhausted administrative remedies regarding her discrimination claim.   The plaintiff alleged that she followed all jurisdictional requirements.   The defendants disputed this claim by providing a copy of the plaintiff's commission complaint, in which the only party listed as respondent is Norwalk Hospital.   The plaintiff objects that the defendants have submitted no affidavits in support of their motion, and that because the CHRO complaint is not certified the court cannot rely upon it to establish the grounds for a motion to dismiss.   Review of the complaint indicates that it contains the plaintiff's signature and her attorney's signature verifying that the plaintiff signed it before submitting it to the CHRO. It also contains a date stamp from the CHRO. The court therefore concludes that there are sufficient circumstantial indications of the document's authenticity to rely upon it for purposes of deciding the motion to dismiss.   In addition, it is the plaintiff who bears the burden of proving the prerequisite that she has exhausted the administrative process as to the parties she claims to have acted in a discriminatory fashion toward her.   In this case the plaintiff has not presented any documents of her own to affirmatively demonstrate that she filed a claim against Gomez with the CHRO. Finally, the court notes that the plaintiff does not specifically allege that she filed a complaint against Gomez, but rather merely alleges that she complied with all jurisdictional requirements before the CHRO. It is fundamental that a plaintiff bears the burden of proving that the court has subject matter jurisdiction.   The plaintiff has failed to meet this burden.   For the reasons stated above which establish that the plaintiff has not presented evidence that she made a claim against Gomez before the CHRO and that the CHRO released said claim, the court grants the defendant Gomez's motion to dismiss the second count of the complaint.

II. Motion to Strike Count Three as to Both Defendants

“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] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (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);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).  “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).

The defendants argue that count three should be stricken because only conduct incident to a termination, rather than ongoing conduct in the workplace, can give rise to a claim for negligent infliction of emotional distress, and the plaintiff has not alleged sufficient conduct at the time of termination to support a cause of action for negligent infliction of emotional distress.   The plaintiff responds that conduct leading up to a termination can form the basis of a cause of action for negligent infliction of emotional distress and that when the conduct leading up to the termination starts is an issue for the trier of fact.

In addition to pleading facts which establish that the defendants' conduct occurred at the time of termination of plaintiff's employment to maintain a claim for negligent infliction of emotional distress, the plaintiff must also allege that the employer engaged in unreasonable conduct which created an unreasonable risk of foreseeable harm.”[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm ․ [This] test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable.   Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.”   (Citations omitted, internal quotation marks omitted.)  Carrol v. Allstate Ins. Co., 262 Conn. 433, 446–47, 815 A.2d 119 (2003).  “[A]n essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous.   A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm.   Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior.”  Olson v. Bristol–Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).

“[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.”  (Internal quotation marks omitted.)  Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997).   The Supreme Court reasoned in Perodeau v. Hartford, 259 Conn. 729, 757–58, 792 A.2d 752 (2002), 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 ․ [E]mployees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions such as demotions, promotions and transfers on the basis of fear of suit rather than business needs and desires ․ [In addition,] extending the tort of negligent infliction of emotional distress to ongoing employment relationships would open the door to spurious claims.”  “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.”  (Internal quotation marks omitted.)  Parsons v. United Technologies Corp., supra, 243 Conn. 88–89.

“[T]he language of Perodeau itself is restrictive.   The holding is phrased narrowly:  The tort is maintainable only for ‘conduct occurring in the termination of employment.’   Language such as conduct in the ‘discharge process' is not used;  such language perhaps would contemplate a more expansive time frame.   Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination.   Termination means ending, not the conduct which causes the ending.”  Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 772, 54 A.3d 221 (2012) (holding that plaintiff's allegations of conduct amounting to constructive termination were not conduct in the termination process and granting summary judgment).   “If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed.”   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).

“Our Supreme Court has considered the normal expectations of individuals in the context of an ongoing employment relationship.   It is clear that such individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal;  decisions related to such evaluations, 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.   In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like.”  (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 572–73, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).   In Tracy v. New Milford Public Schools, Id., the Appellate Court upheld the trial court's granting of a motion to strike where the defendants terminated the plaintiff on May 7, 2001;  denying his request to enroll in a computer course on March 19, 2001, denying his transfer request on April 9, 2001, and denying him a promotion on November 1, 2000 were not clearly “part of the process by which the defendants terminated the plaintiff's employment.   They appear to be nothing more than ordinary personnel decisions any employee might encounter in an ongoing employment relationship.”

An example of negligent infliction of emotional distress is demonstrated in Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 73, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005).   In that case, the court considered that the plaintiff was pregnant at the time of her firing and the day before had refused her supervisor's order to change her work location out of concern for the health of her unborn child as part of the conduct occurring in the termination of employment.   When affirming the lower court's judgment of negligent infliction of emotional distress the court stated that “[v]iewing the totality of the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined that the defendant engaged in unreasonable conduct during the process of terminating the plaintiff's employment.   Forcing the plaintiff to choose between her own health and well-being and that of her unborn child, and her continued employment ․ was patently unreasonable.”  Id. In Olson v. Bristol–Burlington Health District, supra, 87 Conn.App. 3, the court considered the defendant's false accusations at a predisciplinary conference the week before her termination, and the defendant's knowledge that the plaintiff suffered from multiple sclerosis, in finding that the lower court improperly granted a motion to strike the plaintiff's negligent infliction of emotional distress claim.

As noted above, although the employer's conduct need not rise the level of extreme and outrageous as required to maintain a claim for intentional infliction of emotional distress, nevertheless a claim for negligent infliction of emotional distress requires a showing of conduct which qualifies as unreasonable in the termination setting.  “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 ․ [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.”  (Internal quotation marks omitted.)   Murphy v. MRM Consulting, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 6010937 (July 11, 2012, Adams, J.T.R.), citing Battistoni v. Lakeridge Tax District, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002223 (June 17, 2008, Marano, J.).   In Martin v. PARCC Health Care, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4010900 (November 6, 2008, Hiller, J.), “[t]he plaintiff's only allegation of arguably unreasonable conduct during the termination procedure [was] that the defendant accused the plaintiff of sub-par work ․ Without any claim of more egregious conduct, [the] plaintiff [could not] state a claim for negligent infliction of emotional distress ․” On the other hand, “[c]olorable claims for negligent emotional distress have been found where ․ false allegations were made by a defendant in the course of an investigation into the plaintiff's conduct at work.”   Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. CV 08 5007926 (February 20, 2009, Tanzer, J.).  “[W]hether the defendant's conduct of encouraging employees to bring false charges against the plaintiff in an effort to terminate her employment constitutes unreasonable conduct ․ is a question of fact for the jury.   Accordingly, the defendant's motion to strike ․ is denied.”  (Citations omitted, internal quotation marks omitted.)   Rice v. Ryders Health Management, Inc., Superior Court, judicial district of New London, Docket No. CV 11 6008602 (June 18, 2012, Cosgrove, J.).

In the present case, the plaintiff's allegations include ignoring the plaintiff's requests for time off, bullying her, taking responsibilities away, falsely accusing her of helping Ms. Alvarez, and ultimately terminating her without notice.   The plaintiff does not specifically allege when these incidents occurred in relation to the termination or in what way they were unreasonable in the context of her employment.   Several of these actions by their nature are likely to occur over the course of the employment relation rather than at the time of termination.   Unfortunately, it is impossible to tell from the plaintiff's complaint when these incidents allegedly occurred or how they were sufficiently unreasonable to meet the legal standard for pleading negligent infliction of emotional distress.   This court has previously held that allegations of false accusations which led to the plaintiff's termination are sufficient for a claim of negligent infliction of emotional distress to withstand a motion to strike in Andino v. Jewish Home for the Elderly of Fairfield County, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 12 6024134 (January 11, 2013, Sommer, J.).   Unlike the plaintiff in Andino, however, in the present case the plaintiff does not specify the manner in which the false accusations were part of the termination process, or the severity of the false accusations.

Therefore, because termination without notice by itself is not sufficient to allege negligent infliction of emotional distress and the plaintiff has not alleged that other conduct she complains of was part of the termination process or described such conduct to support her claim that it was unreasonable, the court grants the motion to strike the third count of the complaint.

SOMMER, J.

FOOTNOTES

FN1. Jacqueline Gomez is also known as Vicenta Gomez..  FN1. Jacqueline Gomez is also known as Vicenta Gomez.

Sommer, Mary E., J.