Brittany Thibault v. The Barkhamsted Fire District et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE

The defendants move to strike counts one, two, three and seven of the complaint.   The plaintiff objects to the motion.   The motion to strike is granted as to counts one, two and three.   The motion to strike count seven is denied.   The court orders the plaintiff to file an amended complaint that sufficiently defines the issues in dispute relative to count seven.

I

PROCEDURAL AND FACTUAL HISTORY

On February 13, 2013, the plaintiff, Brittany Thibault, filed a seven-count complaint, alleging that she was a member of defendant Riverton Volunteer Fire Company, Inc. (“RVFC”) when her membership was suspended indefinitely on September 26, 2012.   She claims that she was advised in a letter that an executive session of the RVFC would proceed on October 2, 2012, that the session would address the reasons for her suspension, and that she was encouraged to attend the meeting.   She contends that she wrote a letter dated September 30, 2012, asking the board of directors (“the board”) to continue the meeting because she was “unable to attend” the scheduled meeting.¹  On October 8, 2012, the RVFC advised the plaintiff, in a letter, that the board had voted unanimously to expel her from the RVFC for various reasons.

In count one, the plaintiff alleges that she was deprived of her due process rights, under article first, § 10, of the Connecticut constitution, by the board's action.   The plaintiff also alleges that her expulsion was due partly to a board finding that she had criticized other members of the fire company on social media.   In count two, the plaintiff claims that the board's decision denied her freedom of expression, a right guaranteed under article first, §§ 4, 5 and 14, of the Connecticut constitution.   Count three seeks a declaratory judgment, pursuant to General Statutes § 52–29, asserting that “there is an actual controversy within the jurisdiction of the Superior Court [and][d]eclaratory and injunctive relief will effectively adjudicate the rights of the parties.”

Count seven alleges that defendants Larry Gillen and Keith Archer are liable to the plaintiff for “battery and intentional infliction of emotional distress.”   The complaint alleges that Gillen and Archer are members of the board, and that Gillen is the fire chief of the RVFC. The plaintiff claims that she was subjected to inappropriate and suggestive remarks of a sexual nature made by Gillen.   The complaint further alleges that Archer “grabbed the teenage plaintiff's buttocks and after she slapped him he made comment [sic] regarding her breasts.”   The plaintiff claims that she was removed from the RVFC in retaliation for complaints she made regarding Gillen and Archer.

On April 30, 2013, the defendants, the RVFC, The Barkhamsted Fire District, Lawrence Gillen, Tina Gillen ² and Keith Archer,³ moved to strike counts one, two, three and seven of the complaint.   They supported their motion with a memorandum of law.   The plaintiff objected to the motion on July 11, 2013, and supported her objection with a memorandum of law.   This matter came before the court at short calendar and was heard on September 16, 2013.   Issues arose during oral argument that the court asked the parties to address in supplemental briefs.   The plaintiff filed her supplemental brief on September 20, 2013;  the defendants filed their reply on September 30, 2013.

II

PARTIES' ARGUMENTSADefendants' Position

The defendants argue that count one is defective because article first, § 10 of the Connecticut constitution does not provide a private cause of action.⁴  Similarly, the defendants argue that count two should be stricken because it relies on the provisions of article first, §§ 4, 5 and 14, of the Connecticut constitution, which also do not provide for a private cause of action.⁵  With regard to count three, which seeks a declaratory judgment based on the allegations in the first count, the defendants argue that since count one is defective, the third count is necessarily defective and should be stricken.   Finally, the defendants argue that count seven should be stricken because the facts alleged in that count are not “extreme or outrageous” and do not rise to the level of intentional infliction of emotional distress.

B

Plaintiff's Position

The plaintiff acknowledges that the claim in her first count is “atypical” in that it does not allege that a statute is unconstitutional, but rather, her cause of action rests solely on the constitution.   She contends that article first, § 10, of the Connecticut constitution is substantially the same as the due process clause of the fourteenth amendment to the United States Constitution, and that no court has held that article first, § 10, does not provide a private right of action for a procedural due process violation.   With regard to the second count, she argues that our Supreme Court has held that an employer may not discharge an employee based upon that employee's exercise of rights under article first, §§ 4, 5 and 14, of the Connecticut constitution.   The plaintiff's memorandum does not address the motion to strike the third count of the complaint.   The plaintiff opposes the motion to strike the seventh count, arguing that she has alleged the four elements necessary for an intentional infliction of emotional distress claim.   She also states that the defendants do not address the “battery” component of the seventh count.

III

DISCUSSIONAMotion to Strike Standard

Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

“[W]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

B

Analysis1Count One—Denial of Due Process

The defendants argue that article first, § 10, of the Connecticut constitution does not provide a private cause of action to any litigant.   In contrast, the plaintiff argues that “[n]o Connecticut court has held that article first, § 10, of the Connecticut constitution does not provide a private right of action for a procedural due process violation.”   She argues that the defendants' reliance on Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998), is misplaced as Binette merely supports a motion to strike the plaintiff's prayer for money damages.

In Binette, our Supreme Court stated that, under appropriate circumstances, “article first, § 10, may ․ embody a private cause of action for pre–1818 ‘fundamental’ common-law rights.”  Binette v. Sabo, supra, 244 Conn. 28–29 n.9. However, the court did not find that such a cause of action existed under the facts of that case, concluding, instead, that “[a]rticle first, § 10 ․ does not itself create new substantive rights but, instead, protects access to our state's courts.”  Id., 30.   The court did, however, recognize a Bivens ⁶ cause of action for damages under article first, §§ 7 and 9, of the Connecticut Constitution.  Id., 41.   It did so because “the legislature has neither prohibited the creation of a constitutional tort action to remedy an unlawful search and seizure, nor has it crafted a meaningful alternative remedy for the constitutional violation.”   Id., 43.   The court emphasized the sharp focus of its decision, stating that “our decision to recognize a Bivens type remedy in this case does not mean that a constitutional cause of action exists for every violation of our state constitution.”  Id., 47;  see Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 333, 627 A.2d 909 (1993) (owners of real property, challenging a decision by a planning and zoning commission, could not bring a damages action under article first, § 8, of the Connecticut constitution because the property owners failed to establish that a damages action for the violation of rights similar to due process rights existed at common law in 1818).

In Binette v. Sabo, supra, 244 Conn. 48, our Supreme Court provided guiding principles for reviewing a claim, like the plaintiffs, that seeks recognition of a cause of action for an alleged violation of a state constitutional provision.   The court explained that such claims “must be determined on a case-by-case basis ․ The factors to be considered include:  the nature of the constitutional provision at issue;  the nature of the purported unconstitutional conduct;  the nature of the harm;  separation of powers considerations and the other factors articulated in Bivens and its progeny;  the concerns expressed in Kelley Property Development, Inc.;   and any other pertinent factors brought to light by future litigation.”  Id.

Unlike the plaintiff in Binette, the plaintiff in the present case does not assert that she can establish that a damage action to redress rights, analogous to the constitutional rights that she claims were violated by the defendants, existed at common law prior to 1818.   See Binette v. Sabo, supra, 244 Conn. 31.   Thus, she has failed to respond to the concerns expressed in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 314.   Article first, § 10, of the Connecticut constitution states that “[a]ll courts shall be open” and that every person “for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”   As such, it promises that the courts are open for any person to bring a cause action “for an injury” to his person, property or reputation;  it does not create a cause of action for every injury to person, property or reputation, especially where other remedies exist.   In the present case, the plaintiff advances claims under General Statutes § 31–290a and for slander.   The allegedly unconstitutional conduct at the center of the plaintiff's claim is that she was denied due process by the board because they voted to expel her from the RVFC at a meeting which she alleges she was unable to attend.   The alleged harm is that the plaintiff is no longer a member of a volunteer fire department.

Taking the foregoing Binette factors into consideration, this court concludes that, under the circumstances of this case, it should not recognize a cause of action for alleged violations of article first, § 10, of the Connecticut constitution.   The motion to strike the first count is granted.

2

Count Two—Freedom of Speech

The second count of the complaint incorporates the allegations of the first count and also alleges that the plaintiff was expelled from the RVFC because she criticized other members of the fire company on social media.   Such an action, she claims, constitutes a denial of freedom of expression that is guaranteed to her by article first, §§ 4, 5 and 14 of the Connecticut Constitution.⁷  In contrast, the defendants argue that none of these sections creates a private cause of action.   The plaintiff relies upon Leydon v. Greenwich, 257 Conn. 318, 777 A.2d 552 (2001), and Li v. Canberra Industries, 134 Conn.App. 448, 39 A.3d 789 (2012), for her argument that the Connecticut constitution does, indeed, provide her with a remedy and that liability can arise when an employer discharges an employee “on account of the exercise” of the rights guaranteed by article first, §§ 4, 5 and 14, of the Connecticut constitution.

An analysis of the defendants' motion to strike count two must begin with an understanding of what the plaintiff does and does not allege in that count.   Count two alleges that the plaintiff was denied the freedom of expression, guaranteed to her by our state constitution, when she was expelled from the RVFC for criticizing other members of the fire company on social media.   However, unlike the plaintiff in Leydon v. Greenwich, supra, 257 Conn. 318, the plaintiff here does not claim that a town ordinance, or any other legislative action, violated her state constitutional right to engage in protected expressive activity.   Moreover, the plaintiff also does not allege that she was expelled in violation of General Statutes § 31–51q, which makes an employer liable for discharging an employee due to the employee's exercise of certain constitutional rights.

In Li v. Canberra Industries, supra, 134 Conn.App. 457, Li's employment was terminated because she allegedly “[criticized] her coworkers and supervisors for improper and illegal activities within the company.”   The Appellate Court held that such conduct may implicate the provision of General Statutes § 31–51q, which states that “[a]ny employer ․ who subjects any employee to ․ discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such ․ discharge ․” Id.

In the present case, count two is not based on General Statutes § 31–51q or any other statute.   Instead, the plaintiff claims that article first, §§ 4, 5 and 14, of the Connecticut Constitution, alone, give rise to her cause of action.   In Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012), our Supreme Court evaluated a claim in which the plaintiff, a senior staff pathologist, expressed concern about a diagnostic test marketed by the defendant.   The plaintiff was terminated and brought a claim based on, inter alia, General Statutes § 31–51q, alleging that his termination was the product of his exercise of free speech guaranteed by the United States and Connecticut Constitutions.  Id., 594–97.   Our Supreme Court found, ab initio, that General Statutes § 31–51q “creates a statutory cause of action for damages against ‘[any employer’ for ‘any employee’ who has been subjected to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States [c]onstitution or section 3, 4 or 14 of article first of the [c]onstitution of the state ․ On its face, the statute extends the protection of federal and state constitutional rights in two respects.   It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers ․ [T]he protections of § 31–51q [are] not limited to speech on public property but, rather, [extend] to employee speech in the private workplace as well.”  (Citation omitted;  internal quotation marks omitted.)  Id., 599.

The issue presented to this court is whether, in the absence of a claim brought pursuant to General Statutes § 31–51q, the plaintiff can bring a claim based solely on article first, §§ 4, 5 and 14, of the Connecticut Constitution.   The courts that have considered such an argument have consistently rejected it, concluding that “[s]ince the legislature has created an adequate statutory remedy in § 31–51q which affords the protections of Article I § 4, the court does not find that there exists a separate constitutional claim for the violation of free speech.”   Smith v. Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07–CV–98–0070792–S (July 14, 2000, Bishop, J.);   see McKiernan v. Amento, Superior Court, judicial district of New Haven, Docket No. CV–01–0453718–S (October 2, 2003, Gilardi, J.);   Hankard v. Avon, Superior Court, judicial district of Hartford, Docket No. CV–96–0565611–S (June 22, 1999, Hale, J.).⁸

This court is mindful of our Supreme Court's warning against lightly recognizing a new constitutional cause of action:  “[e]stablished wisdom counsels us to exercise self-restraint so as to eschew unnecessary determinations of constitutional questions.”  (Internal quotation marks omitted.)  Schumann v. Dianon Systems, Inc., supra, 304 Conn. 620.   Pursuant to the foregoing principle, and for the reasons stated in those decisions declining to recognize a separate constitutional claim for the violation of free speech, the defendants' motion to strike count two is granted.

3

Count Three—Declaratory Judgment

The defendants argue that the third count, seeking a declaratory judgment pursuant to General Statutes § 52–29, is dependent upon the allegations of the first count.   The plaintiff did not respond to this argument in her memorandum of law.   However, at oral argument, the plaintiff agreed that count three is dependent on count one.   Since the court grants the motion to strike count one, count three must also be stricken.   The motion to strike count three is granted.

4

Count Seven—Intentional Infliction of Emotional Distress

“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) 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.)  Carrol v. Allstate Ins. Co., 262 Conn. 433, 442–43, 815 A.2d 119 (2003).  “Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ 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!”  (Citations omitted;  internal quotation marks omitted.)  Id., 443.  “Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483, 527, 43 A.3d 69 (2012).

In the present case, the defendants rely on a series of cases in which offensive conduct was held insufficient to support claims of intentional infliction of emotional distress.   However, in those cases, unlike the present case, allegations of sexual harassment were not at the core of the intentional infliction of emotional distress claims.   Nonetheless, the defendants correctly note that our Supreme Court has found it to be significant when the alleged infliction of emotional distress arose in the employment context.⁹  In fact, our Supreme Court has held that claims of even negligent infliction of emotional distress must be viewed differently when they arise in the employment context.   The court has explained that “[f]irst, in an ongoing employment relationship, employees 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.   All of this conduct would contribute to a less vigorous and less productive workplace.   We conclude that such a pervasive chilling effect outweighs the safety interest of employees in being protected from negligent infliction of emotional distress.   In cases involving a termination of employment, on the other hand, the employee can no longer use the threat of a lawsuit to influence the conduct of his employer and fellow employees.

“Second, in light of the inherently competitive and stressful nature of the workplace and the difficulties surrounding proof of emotional distress, extending the tort of negligent infliction of emotional distress to ongoing employment relationships would open the door to spurious claims.   We recognize that the line that we draw in the present case is somewhat arbitrary.   This court previously has been willing to draw lines limiting liability, however, when [t]here are fears of flooding the courts with spurious and fraudulent claims;  problems of proof of the damage suffered;  exposing [potential defendants] to an endless number of claims;  and economic burdens on industry ․ We conclude that, although the rule that we adopt in this case may allow some legitimate emotional injuries to go uncompensated, the social costs of allowing such claims would outweigh the social benefits.”  (Citations omitted;  internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 758–59, 792 A.2d 752 (2002).

A claim for negligent infliction of emotional distress is more easily established than a claim for intentional infliction of emotional distress.   Compare Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345–46, 398 A.2d 1180 (1978) with Perez–Dickson v. Bridgeport, supra, 304 Conn. 527.   Thus, Perodeau must necessarily stand for the proposition that a plaintiff claiming intentional infliction of emotional distress in the employment context must meet a high threshold to establish extreme and outrageous conduct.   For example, in Jacobson v. International Tours & Events, LLC, Superior Court, judicial district of New Haven, Docket No. CV–09–5029826–S (July 11, 2011, Fischer, J.), the president of the defendant company made sexually suggestive comments to the plaintiff office manager;  he discussed pornographic magazines in the plaintiff's presence;  he told a fifteen-year-old employee that she was “hot;” and he repeatedly engaged in unwanted touching of the plaintiff, including slapping her buttocks with paperwork, kissing her, resting his chin on her head, putting his hand under her sweater, pulling her hair and tickling her cheeks.   The court found this conduct to be offensive, rude, and/or unprofessional, but insufficient to support a claim for intentional infliction of emotional distress, and granted the defendant's motion for summary judgment.  Id.;  see Majewski v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV–03–0406893–S (January 20, 2005, Arnold, J.) (intentional infliction of emotional distress claim stricken even though plaintiff alleged that defendant hugged and kissed her on multiple occasions, questioned her sexual orientation, made romantic and/or sexual advances towards her and took adverse employment actions against her when she responded negatively).

This court concludes that the principles expressed in Perodeau v. Hartford, supra, 259 Conn. 758–59 apply with equal force in the present case.   Indeed, the fire service, regardless of whether it is voluntary association, is dedicated to performing a lifesaving function.   It is imperative that firefighters maintain a competitive relationship with each other;  that they promote the goals of the fire service vigorously;  that they freely report improper and illegal conduct;  and that they make frank evaluations and employment decisions, all without the unreasonable fear of lawsuits.

Notwithstanding the high bar that exists when a plaintiff alleges intentional infliction of emotional distress in the employment context, the plaintiff in the present case has alleged the essential elements of an intentional infliction of emotional distress claim.   She alleges that the conduct of Gillen, the RVFC chief and therefore her superior, involved “numerous, inappropriate and suggestive remarks of a sexual nature ․ accompanied by ogling and improper gestures.”   The plaintiff also claims that she was a teenager when the alleged conduct occurred and that she made complaints about it, resulting in her termination.   Much, however, is unclear regarding the alleged incidents.   For example, the complaint does not specify how often the conduct occurred;  it does not recite Gillen's alleged remarks;  nor does it identify the degree of age disparity between the plaintiff and Gillen.   Furthermore, with regard to Archer, the complaint does not identify whether there was a superior/subordinate relationship between the plaintiff and Archer;  whether there was a prior (or ongoing) personal relationship between the plaintiff and Archer;  or whether there is an age differential between them.   It also does not identify whether the incident was isolated or part of a pattern, nor does it specify the comment allegedly made by Archer.   Indeed, it does not even state when or where the alleged incident took place.

The cases analyzing claims of intentional infliction of emotional distress make clear that, there are few, if any, bright lines to assist a trial court in carrying out its gatekeeping function.   On the contrary, the analysis of such claims is always highly fact-specific.   In Cortazar v. Staples the Office Superstore, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–12–6013930–S (December 12, 2012, Genuario, J.), the court considered a motion to strike a claim of intentional infliction of emotional distress involving a supervisor who frequently referred to the plaintiff as having “big boobs” and a “big ass;” consistently told the plaintiff when he needed to use the restroom and then told her to “think about it;” frequently told the plaintiff something to the effect of “my ass is itchy, can you scratch it;” and inappropriately touched the plaintiff several times, including massaging her shoulders and neck, and pressing his body up against her.   The court denied the defendant's motion to strike, concluding that “[i]n this procedural context the court will decline to hold that a pattern of alleged sexually offensive conduct including, inter alia, a male supervisor ordering a female subordinate to expose her breast to him, cannot as a matter of law constitute such extreme and outrageous conduct sufficient to support a cause of action for intentional infliction of emotional distress.”  Id.

The facts that are alleged in this case, as opposed to the details about the incidents that are not alleged, make it impossible at this stage of the proceedings to conclude that the plaintiff has failed to allege intentional infliction of emotional distress.¹⁰  Therefore, the court will not strike the seventh count on the basis that it fails to allege intentional infliction of emotional distress.

However, this court cannot ignore that there are additional issues which warrant revision to the seventh count.   As the plaintiff notes in her memorandum of law, the seventh count alleges battery against both Gillen and Archer.   What she does not note is that it fails to allege the elements of battery.   See Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975) (elements of battery).   Further, the seventh count appears to allege conduct that could constitute battery by Archer, alone, yet Gillen is also named in the seventh count.¹¹  This court concludes that the seventh count does not sufficiently and clearly define the issues in dispute.   To the extent that the plaintiff wishes to pursue her claims of intentional infliction of emotional distress and battery against Gillen and Archer, the court hereby orders the plaintiff to file an amended complaint that separates the claims against Gillen and Archer into separate counts.  Practice Book 10–1.   Any such amended complaint must be filed within thirty days of the date of this ruling.

IV

CONCLUSION

For all of the foregoing reasons, the defendants' motion to strike counts one, two and three is granted.   The motion to strike count seven is denied.   The court orders the plaintiff to file an amended complaint that sufficiently defines the issues in dispute relative to count seven, as directed in this ruling.

So ordered.

BY THE COURT,

John A. Danaher, III, J.

FOOTNOTES

FN1. The complaint does not allege whether the plaintiff's letter was delivered in a timely manner.   At oral argument, the plaintiff stated that she did not appear at the meeting on October 2, 2012, because she was attending classes at the time.   See Compl.   Count One, ¶ 19e..  FN1. The complaint does not allege whether the plaintiff's letter was delivered in a timely manner.   At oral argument, the plaintiff stated that she did not appear at the meeting on October 2, 2012, because she was attending classes at the time.   See Compl.   Count One, ¶ 19e.

FN2. Count five, alleging slander, is directed at Tina Gillen.   The defendants are not seeking to strike count five..  FN2. Count five, alleging slander, is directed at Tina Gillen.   The defendants are not seeking to strike count five.

FN3. The plaintiff alleges that the RVFC is a subdivision of the Barkhamsted Fire District;  Larry Gillen is the RVFC fire chief;  and both Keith Archer and Larry Gillen are members of the board..  FN3. The plaintiff alleges that the RVFC is a subdivision of the Barkhamsted Fire District;  Larry Gillen is the RVFC fire chief;  and both Keith Archer and Larry Gillen are members of the board.

FN4. Article first, § 10, of the Connecticut constitution provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”.  FN4. Article first, § 10, of the Connecticut constitution provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

FN5. Article first, § 4, of the Connecticut constitution provides “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”   Article first, § 5, of the Connecticut constitution provides that “[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press.”   Article first, § 14, of the Connecticut constitution provides that “[t]he citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by petition, address or remonstrance.”.  FN5. Article first, § 4, of the Connecticut constitution provides “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”   Article first, § 5, of the Connecticut constitution provides that “[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press.”   Article first, § 14, of the Connecticut constitution provides that “[t]he citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by petition, address or remonstrance.”

FN6. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct 1999, 29 L.Ed.2d 619 (1971) (finding a cause of action for damages when a federal agent, acting under color of his authority, engages in unconstitutional conduct)..  FN6. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct 1999, 29 L.Ed.2d 619 (1971) (finding a cause of action for damages when a federal agent, acting under color of his authority, engages in unconstitutional conduct).

FN7. See n.5, supra..  FN7. See n.5, supra.

FN8. These courts rejected claims brought pursuant to article first, § 4. The principle that led to the result in those cases applies in this case, regardless of the fact that the plaintiff purports to rely upon article first, §§ 4, 5 and 14..  FN8. These courts rejected claims brought pursuant to article first, § 4. The principle that led to the result in those cases applies in this case, regardless of the fact that the plaintiff purports to rely upon article first, §§ 4, 5 and 14.

FN9. The plaintiff, herself, takes the position that, even though she had been a member of a volunteer fire department, her status was that of an “employee.”.  FN9. The plaintiff, herself, takes the position that, even though she had been a member of a volunteer fire department, her status was that of an “employee.”

FN10. The court is aware that the defendants previously filed a request that the plaintiff revise her complaint to more specifically allege the basis for her claims in count seven, and that this court sustained the plaintiff's objection to that request, concluding that the plaintiff is not required to plead evidence.   Although additional facts would have been of assistance in analyzing the sufficiency of the “intentional infliction of emotional distress” claims in count seven, the divergent conclusions reached by various courts that have addressed similar fact patterns convince this court that only after significant discovery is completed will the court be in a position to determine whether count seven states a viable cause of action..  FN10. The court is aware that the defendants previously filed a request that the plaintiff revise her complaint to more specifically allege the basis for her claims in count seven, and that this court sustained the plaintiff's objection to that request, concluding that the plaintiff is not required to plead evidence.   Although additional facts would have been of assistance in analyzing the sufficiency of the “intentional infliction of emotional distress” claims in count seven, the divergent conclusions reached by various courts that have addressed similar fact patterns convince this court that only after significant discovery is completed will the court be in a position to determine whether count seven states a viable cause of action.

FN11. The defendants requested that the seventh count be revised to state separate claims against Gillen and Archer.   This court sustained the objection to that request to revise, a decision that the court recognizes was erroneous..  FN11. The defendants requested that the seventh count be revised to state separate claims against Gillen and Archer.   This court sustained the objection to that request to revise, a decision that the court recognizes was erroneous.

Danaher, John A., J.