Bruce Churchill v. Farmington Woods Master Association, Inc. Golf Club et al. (2013)

MEMORANDUM OF DECISION

The plaintiff, Bruce Churchill, brings this action against the defendant, Susan Menson, and others arising from his employment with and termination from one of the defendants, Farmington Woods Master Association, Inc. The defendant Menson has moved to strike counts four (negligent infliction of emotional distress), five (intentional infliction of emotional distress), and six (defamation) of the November 7, 2012 amended complaint claiming that they fail to state a claim upon which relief may be granted.   The court grants the motion as to count five and denies it as to counts four and six.

“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);  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2 650 A.2d 153 (1994);  see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007);  Hollister v. Thomas, 110 Conn.App. 692, 698, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).  “It is fundamental that in 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Citation omitted;  internal quotation marks omitted.)   Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292–93, 842 A.2d 1124 (2004).   Although a motion to strike, “admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

A. Negligent Infliction of Emotional Distress

The defendant asserts that the fourth count, asserting a claim of negligent infliction of emotional distress, must be stricken because the plaintiff has failed to allege that any unreasonable conduct occurred during the termination process.   The plaintiff counters that he has sufficiently pleaded the elements of a negligent infliction of emotional distress claim and that the circumstances leading to his termination support an inference that his termination was unreasonable.   In addition, he asserts in his allegations that the defendant knew that the plaintiff had held the same position for twenty-five years, that his position provided his only source of income, and that he would have difficulty finding another position because he had never held another position and was close to retirement when he was terminated, are sufficient to support his claim for negligent infliction of emotional distress.   The plaintiff also alleges that the defendants defamed him.

“In general, to prevail on [a negligent infliction of emotional distress] claim, a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress.”  Olson v. Bristol–Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).

“The mere termination of employment, even where it is wrongful, is ․ not, by itself, enough to sustain a claim for negligent infliction of emotional distress.”  (Internal quotation marks omitted.)  Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 72, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005).  “[T]o prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process treated an unreasonable risk of emotional distress.”  Olson v. Bristol–Burlington Health District, supra, 87 Conn.App. 5. Thus, “[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, 259 Conn. 729, 751, 792 A.2d 752 (2002).   Conduct during the termination process is actionable.   Davis v. Manchester Health Center, Inc., supra, 88 Conn.App. 73.   Allegations of a targeted campaign to provoke or justify a plaintiff's termination in the final months of employment are sufficient to withstand a motion to strike.   See, e.g., Murphy v. MRM Consulting, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 11 6010937 (July 11, 2012, Adams, J.T.R.) (collecting cases).

The court finds that the amended complaint sufficiently alleges conduct that occurred during the termination process.   The plaintiff alleges that defendant's conduct “[commenced] in late 2007 and [continued] through his termination on August, 28, 2009 ․” that the defendants engaged in “a conspiracy and plan to terminate” his employment, and that the conduct in which the defendant engaged was all part of “an ongoing campaign” that led to his eventual termination.   More specifically, the plaintiff alleges the following relevant facts in support of this claim:  (1) “After twenty-four years of successfully performing his duties, with little or no supervision, [the plaintiff] suddenly found his every action being monitored, questioned and criticized”;  (2) “[d]espite satisfactory or better performance of his duties as a[g]olf [p]rofessional, in late 2007, [the plaintiff] was notified that his salary for 2008 would be reduced by more than twenty (20%) percent ․ and his weekly hours would be increased ․”;  and (3) his vacation days would be cut in half and he was “inundated with emails ․ nitpicking every aspect of his job.”  “While [such] incidents, either standing alone or in the aggregate may not ultimately persuade the fact finder, they are sufficient to withstand a motion to strike.”  (Internal quotation marks omitted.)  Murphy v. MRM Consulting, Inc., supra, Superior Court, Docket No. CV 11 6010937.

Consequently, the motion to strike count four is denied.

B. Intentional Infliction of Emotional Distress

The defendant asserts that the plaintiff's intentional infliction of emotional distress claim is insufficient because the alleged conduct does not rise to the level of extreme and outrageous conduct.   The plaintiff argues that the complaint sufficiently alleges that the defendants deliberately engaged in a campaign to intimidate and, subsequently, terminate the plaintiff's employment and that the defendants' alleged conduct is sufficiently outrageous to “arouse the resentment of any fair minded member of the community ․”In order for the plaintiff to prevail in a case for liability ․ [alleging intentional infliction of emotional distress], four elements must be established.   It must be shown:  (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.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).

“As to the character of the behavior, extreme and outrageous conduct is understood to mean 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.”  (Internal quotations marks omitted.)  Olson v. Bristol–Burlington Health District, supra, 87 Conn.App. 7. “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, supra, 304 Conn. 527.   Furthermore, even where “the defendants were wrongfully motivated in subjecting the plaintiff to [the alleged] conduct, wrongful motivation by itself does not meet the standard for intentional infliction of severe emotional distress;  rather, it is the act itself which must be outrageous.”   (Internal quotation marks omitted.)  Id., 528.

In the ongoing employment relationship context, “[i]t 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.”  Perodeau v. Hartford, supra, 259 Conn. 757.   “That is simply an unavoidable part of being employed.”  Id. “[W]hen the employment relationship is ongoing, [public policy] ․ [outweighs] the interests of persons subject to such behavior in the workplace in being compensated for their emotional injuries.”  Id., 758.   This does not mean, however, “that persons in the workplace should expect to be subject to conduct that transgress[es] the bounds of socially tolerable behavior ․” (Citations omitted;  internal quotation marks omitted.)  Id., 757.

Connecticut courts have examined intentional infliction of emotional distress claims brought by employees alleging ongoing campaigns of harassment on several occasions.   In Perez–Dickson, the plaintiff, a school principal, brought an intentional infliction of emotional distress claim against the defendants, the city board of education and two public school administrators, alleging that the defendants “engaged in a campaign of harassment, discrimination and retaliation directed against [her] ․” (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, supra, 304 Conn. 491.   The Perez–Dickson court found that, because the “only evidence of severe emotional distress that the plaintiff presented ․ is that she became frightened and choked up upon being told that her career might be in jeopardy,” the conduct complained of was not so extreme and outrageous as to meet the high threshold required for an intentional infliction of emotional distress claim.  Id., 529.   In Gillians v. Vivanco–Small, 128 Conn.App. 207, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011), the plaintiff, a social worker and the steward of a labor union, filed an intentional infliction of emotional distress claim against her employer alleging that, in retaliation for a grievance she filed against the defendants in her capacity as the union steward, the defendants, as part of a conspiracy, became hostile towards her and “for the first time, gave her a negative performance evaluation and threatened her with demotion and termination of her employment.”  Id., 209.   The Gillians court noted that, while it is troubling that the defendants allegedly engaged in a conspiracy to terminate the plaintiff's employment, “[a] concerted effort to remove an employee, however, does not necessarily constitute outrageous conduct” required for an intentional infliction of emotional distress claim.   Id., 213.

Similarly, in Dollard v. Board of Education, 63 Conn.App. 550, 777 A.2d 714 (2001), the Appellate Court, relying on Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), held that, even where the defendants engage in conduct engineered to force the plaintiff to resign, such conduct as overly criticizing the plaintiff's work performance and placing her under intensive supervision is no more extreme and outrageous than the conduct alleged in Appleton, which was “not so atrocious as to exceed all bounds usually tolerated by decent society, [and the defendants'] conduct [was] insufficient to form the basis of an action for intentional infliction of emotional distress.”  (Citation omitted;  internal quotation marks omitted.)   Dollard v. Board of Education, supra, 63 Conn.App. 555.

In the present case, the plaintiff alleges that the defendant engaged in “a deliberate campaign ․ to create a hostile and demeaning work environment so offensive and intimidating that he would be forced to quit,” that the defendants defamed him and reduced his annual salary, increased his weekly work hours and did not renew his employment contract despite never receiving notice of any previous deficiencies in his work performance and that the defendants conspired to engage in a pattern of harassment.   Such allegations are insufficient to constitute extreme and outrageous behavior in an employment context, and therefore the plaintiff has failed to state a claim upon which relief may be granted as to count five.

Accordingly, the motion to strike is granted as to count five.

C. Defamation

The defendant argues that count six of the complaint is insufficient because it fails to specify that the defendant Menson made the defamatory statements and to whom she made them.   The plaintiff counters that his defamation claim contains the required specificity because it identifies the individuals who made the statements, the content of the statements and to whom the statements were made.

“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.”  (Internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).

Here, the plaintiff alleges that the defendants, including Menson, made oral and written defamatory statements about him, and published those statements to third persons including other employees.   The statements included that the plaintiff was “fired because he sexually harassed a younger female employee, which Kevin Sivavec overheard two couples discussing on or about August 31, 2009 at the J. Gilbert's restaurant in Glastonbury, CT as well as the statements made to the Farmington Woods golf Committee which ultimately lead to his termination.”   The plaintiff claims that the statements were false, and that these statements injured his reputation.   The court finds that these allegations are sufficient to state a defamation claim against the defendant.   See Matthew v. Kensington Square Apartments, Superior Court, judicial district of New Haven, Docket No. CV12–040739 (April 28, 2008, Devlin, J.) [36 Conn. L. Rptr. 904].

Citing nonbinding Superior Court cases, the defendant asserts that much more specificity is required in a defamation claim, and asserts that the complaint fails to indicate which individual made the statement and to whom.   The court disagrees.   The complaint alleges that Menson and others made the defamatory statements to third parties.   This allegation is sufficient to allege a cause of action for defamation and, in particular, to assert that Menson made the statements to third parties.   Whether the plaintiff can prove that all of these individuals, including Menson, actually made these statements to third parties is not the issue before the court on a motion to strike.¹

Thus, the motion to strike count six is denied.

CONCLUSION

For the foregoing reasons, the motion to strike counts four and six is denied.   The motion to strike count five (intentional infliction of emotional distress) is granted.

So ordered.

Cobb, J.

FOOTNOTES

FN1. A request to revise could have been utilized to separate out the claims against this individual defendant, but was not.   See Practice Book § 10–35;  see also Rowe v. Godou;  209 Conn. 273–79, 550 A.2d 1073 (1988) (noting that the defendant could have cured any confusion created by joining multiple defendants in a single count by filing a request to revise which, if complied with, would have allowed the defendants to “move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities”)..  FN1. A request to revise could have been utilized to separate out the claims against this individual defendant, but was not.   See Practice Book § 10–35;  see also Rowe v. Godou;  209 Conn. 273–79, 550 A.2d 1073 (1988) (noting that the defendant could have cured any confusion created by joining multiple defendants in a single count by filing a request to revise which, if complied with, would have allowed the defendants to “move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities”).

Cobb, Susan Quinn, J.