Tracey Dean v. Liberation Programs, Inc. et al. (2013)

MEMORANDUM OF DECISION

On May 31, 2013, the plaintiff, Tracey Dean, filed a four-count complaint sounding in defamation, wrongful discharge, and negligent infliction of emotional distress against the defendants, Liberation Programs, Inc. (Liberation), and Maggie Young (Young).   In her complaint, the plaintiff alleges the following facts.

Liberation provides drug and alcohol treatment services in lower Fairfield County.   Young was a program director for Liberation, and she supervised the plaintiff, who was employed there as a certified addiction counselor.   During her employment, the plaintiff expressed various concerns to Young that Young ignored or dismissed.¹

In April 2011, the plaintiff reported an incident to a private whistle-blower hotline sponsored by Liberation.   The incident allegedly involved a confrontation between a Liberation client and an employee, after which Young allegedly ignored the plaintiff's stated concerns regarding employee safety.   The hotline indicated that a report would be sent to Liberation on April 28.   On May 2, Young confronted the plaintiff and falsely accused her of breaching confidentiality and violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in regard to the incident.   On May 20, 2011, although Young was aware that it was the plaintiff's birthday, she terminated the plaintiff, forbade her from collecting her belongings, and had her escorted from the building.   The plaintiff claims that Young told her she was being terminated for “[failure] to maintain the confidentiality of a client's records” and “[providing] improper client treatment and follow up.”   The plaintiff claims that she was actually terminated in retaliation for her repeated expression of concerns regarding Liberation's conduct of its business.   The plaintiff claims that, following her termination, Young “spoke of and published the statements about [the plaintiff's] termination to co-workers, other employees,” and the management of Liberation, which statements were false, malicious, retaliatory, and “slanderous per se and libel per se.”

In the complaint, the plaintiff alleges claims for defamation against Liberation and Young in counts one and two, respectively;  a claim for wrongful discharge against Liberation in count three;  and a claim for negligent infliction of emotional distress against Liberation in count four.

On July 17, 2013, the defendants filed a motion to strike each count of the complaint and a supporting memorandum of law.   The plaintiff filed a memorandum in opposition to the motion to strike on August 28, 2013.   The matter was heard at short calendar on September 3, 2013.

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 (2003).  “[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17 (2011).   Thus, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Santorso v. Bridgeport Hospital, 308 Conn. 338, 349 (2013).   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.”  (Internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 694 (2000).   Accordingly, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Santorso v. Bridgeport Hospital, supra, 349.   “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350 (2013).

Counts One and Two:  Defamation

The defendants move to strike counts one and two on the ground that they are not pleaded with sufficient specificity.   The defendants argue that apart from identifying Young as the speaker, the complaint does not contain the other required particulars for a cause of action for defamation, including what Young allegedly said, when, and to whom.   In her opposition to the motion to strike, the plaintiff raises both procedural and substantive objections.

The plaintiff first claims that a request to revise, not a motion to strike, is the proper procedural vehicle by which to challenge a failure to plead a defamation claim with particularity.   The plaintiff also argues that she has stated legally sufficient claims for defamation by alleging that Young made false statements to the plaintiff's coworkers regarding her inability to maintain client confidentiality and properly treat clients.   The plaintiff argues that under the intracorporate communication doctrine, she has adequately pleaded the publication element of a prima facie claim for defamation by alleging that Young published defamatory statements to the plaintiff's coworkers and Liberation's other employees and management.   In her opposition to the motion to strike, the plaintiff also contends that confidentiality concerns preclude her from alleging the specific statements Young allegedly made or the identities of the employees to whom they were made.

With respect to the plaintiff's procedural argument, “[t]he Appellate Court ․ has explicitly stated that a party need not file a request to revise when a complaint is legally insufficient.”   Ruiz v. State, Superior Court, judicial district of New Haven, Docket No. CV–10–5033492–S (May 16, 2011, Woods, J.) (citing JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 130–31 (2008) (“[T]he defendants claim that instead of filing a motion to strike, the plaintiff should have filed a request to revise [to address whether the counterclaim was legally insufficient].   We disagree ․ [A] motion to strike was the proper procedural vehicle to test the sufficiency of the defendants' counterclaim”)).   Accordingly, the court finds that the motion to strike the first and second counts is properly before the court.

The court will next consider the merits of the defendants' motion.  “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.”  (Internal quotation marks omitted.)   Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28 (2009).   Here, the defendants contend that the plaintiff's allegations are insufficiently specific to satisfy the first and third elements of a claim for defamation.

Although the Connecticut appellate courts have not addressed the precise issue of what a plaintiff is required to plead to satisfy the first element of a defamation claim, the judges of the Superior Courts agree that “[a] claim of [defamation] must be plead[ed] with specificity, as the precise meaning and choice of words employed is a crucial factor in any evaluation of falsity.   The allegations should set forth facts ․ sufficient to apprise the defendant of the claim made against him ․ [A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom ․” (Internal quotation marks omitted.)   Weissman v. Koskoff, Koskoff & Bieder, P.C., Superior Court, judicial district of Hartford, Docket No. CV–10–6012922–S (January 19, 2011, Sheldon, J.), aff'd, 136 Conn.App. 557 (2012).  “Although there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity ․ A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.”  (Citation omitted;  internal quotation marks omitted.)   Evans v. Bridgeport, Superior Court, judicial district of New Haven, Docket No. CV–11–6019042–S (January 2, 2013, Zemetis, J.).   Regarding the first element of a defamation claim, judges of the trial court have agreed that “[i]n defamation actions especially, words count, and a premium is placed on the precise words employed.   In addition, requiring the plaintiff to specifically plead the precise defamation facilitates the use and disposition of pretrial dispositive motions and a determination of whether the alleged defamation is privileged.”  (Internal quotation marks omitted.)   Michel v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 11–6015195 (March 7, 2011, Levin, J.).

Several Superior Courts have considered the degree of specificity necessary to establish the first element of a defamation claim.   In Wilcox v. Webster Ins., Superior Court, judicial district of New Haven, Docket No. CV–07–5010093–S (March 26, 2008, Robinson, J.), the plaintiffs summarized a number of misrepresentations that the defendants' employees allegedly made to state and local law enforcement that placed the plaintiffs at risk of criminal prosecution.   In its decision granting the motion to strike, the court stated that “while the general subject of the three particular ‘misrepresentations' [is] summarized, the actual statements alleged to have been made are not provided.   While this court does not agree with the reasoning of some trial courts, that exact quotes or close to exact quotes must be provided in order to state a claim for defamation, more specific information about the alleged statements must be provided.”   The court found that “the allegations are devoid of any indication of a time and place when and where the misrepresentations were made.  [I]t is impossible to ascertain ․ precisely when in time the alleged misrepresentations were uttered.”  Id. See also Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV–03–0479556 (March 31, 2004, Skolnick, J.) (granting motion to strike where plaintiff merely alleged defendant made false statements “that [he] had acted recklessly during the term of his employment contract and had engaged in misconduct in connection with his employment”).

In Tax Data Solutions, LLC v. O'Brien, Superior Court, judicial district of New Haven, Docket No. CV–10–6016263–S (February 6, 2013, Zemetis, J.), the court concluded that “[it is sufficient that] the plaintiff has pleaded the subject matter of the statements.”   In that case, the plaintiff alleged “that the defendant made defamatory and false statements ․ that the plaintiff had fraudulently attempted to receive payment for investigative accounts that were conducted by city employees.”  (Internal quotation marks omitted.)  Id. The court denied the defendant's motion to strike “although the plaintiff has not identified the exact language allegedly used by the defendant in defaming the plaintiffs.”  Id. See also Forgione v. Bette, Superior Court, judicial district of Waterbury, Docket No. CV–04–4001099–S (June 2, 2005, Gallagher, J.) (“It would be unreasonable to require a verbatim reproduction of all allegedly defamatory statements made because to do so would bar nearly every claim for defamation, excepting those where the third party to whom the relevant statements are made knows that they are about to hear defamatory statements and is ready with recorder in hand”);  cf.   Lamson v. Farrow, Superior Court, judicial district of New Haven, Docket No. CV–08–4029172–S (January 10, 2012, Young, J.) (53 Conn. L. Rptr. 298, 300) (denying motion to strike where plaintiff specifically identified recipients and alleged that defendant stated plaintiff was “having affairs”).   In Tax Data Solutions, LLC, the court also determined a plaintiff is not required to plead when the defamatory statements were made if the plaintiff alleges “what defamatory statements were made generally, by whom the statements were made, and to whom the statements were made.”  Id.

In the present case, the plaintiff alleges only that Young “spoke of and published the statements about termination” to others and that the statements “were false, made with malice and in retaliation ․ [and] are slanderous per se and libel per se.”   In her complaint the plaintiff has not alleged Young's precise statement, nor has she alleged, even generally, what defamatory statements were made.   The court agrees with the defendants that the plaintiff has not sufficiently alleged the first element of a defamation claim.

When more than one ground for striking a pleading is asserted, Practice Book § 10–43 requires the court to “specify in writing the grounds upon which that decision is based.”   Accordingly, the court will also consider the defendants' claim of legal insufficiency with respect to the third element of a defamation claim (publication to a third person).   With regard to that element, the Supreme Court has stated:  “Although intracorporate communications once were considered by many courts not to constitute ‘publication’ of a defamatory statement, that view has been almost entirely abandoned, and we reject it here.”  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27–28 (1995).  “[P]ursuant to the doctrine of intracorporate communication—the element of publication may be satisfied where the statement about the [employee] [has] been communicated among the [employee's] supervisors and [has] been included in the [employee's] personnel file.”  (Internal quotation marks omitted.)  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 544 n.23 (1999).

In Wilcox, the court held that the plaintiffs' “[claims] that these allegedly defamatory misrepresentations were made by employees of [the defendant] to Connecticut state and local law enforcement agencies, with no further identifying information ․ are not concrete and sufficient enough to withstand a motion to strike.”  (Internal quotation marks omitted.)   However, in Churchill v. Farmington Woods Master Assn., Inc., Golf Club, Superior Court, judicial district of New Britain, Docket No. CV–11–6010999–S (July 1, 2013, Cobb, J.), the court denied the defendant's motion to strike where the plaintiff alleged that the defendant published statements about the plaintiff's termination to “third persons including other employees.”  Id. The court stated:  “The complaint alleges that [the defendant] 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 [the defendant] made the statements to third parties.”  Id. “[T]he identification of a particular group has been determined to be sufficient in the context of a motion to strike.”  Tax Data Solutions, LLC, supra, Superior Court, Docket No. CV–10–6016263–S.   See also Mendez v. Utopia Home Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV–09–6006222–S (November 5, 2010, Peck, J.);   Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV–05–4018766–S (February 21, 2007, Wiese, J.).

In the present case, the plaintiff alleges that Young made the false statements about the plaintiff's termination to the plaintiff's co-workers and Liberation's other employees and management.   Although the plaintiff does not identify individual recipients of the statements, she alleges that they were made to an ascertainable group.   The court finds that the allegations regarding the identity of the persons to whom the statements were made are sufficiently specific.

The motion to strike counts one and two is granted.

Count Three:  Wrongful Discharge

In its motion to strike count three, Liberation first argues that the complaint violates Practice Book § 10–3(a) because the plaintiff has failed to identify a specific statute as the source of the public policy that her termination violated.

Liberation also moves to strike count three on the ground that the plaintiff's claim for wrongful discharge is legally insufficient because her factual allegations fail to suggest that her termination violated a public policy.

Finally, Liberation argues that the existence of a number of statutory remedies precludes the plaintiff from recovering under the common-law theory of wrongful discharge.   First, Liberation claims that the Occupational Safety and Health Act (OSHA) expressly prohibits an employer from retaliating against an employee who complains about workplace safety and gives such employee a remedy.   Second, Liberation claims that its alleged retaliation against the plaintiff for blowing the whistle on its double billing of Medicaid would give the plaintiff a claim under General Statutes § 31–51q, which protects the free speech of private sector employees who speak out on matters of public concern.   Finally, Liberation contends that the existence of a statutory remedy under the Fair Employment Practices Act's anti-retaliation provision, General Statutes § 46a–60(a)(4), would bar the plaintiff from a wrongful discharge claim that she was terminated for her objection to working alone on the male unit, which could be construed as a claim of third-party sexual harassment.

In her opposition to the motion to strike, the plaintiff asserts that there is no statutory remedy for an employee who questions management regarding violations of confidentiality under HIPAA.   The plaintiff also argues that Connecticut's whistle-blower statute, General Statutes § 31–51m, does not protect an employee who reports workplace violations of the law to nonpublic entities, such as the whistle-blower hotline that Liberation provided to its employees.

With respect to Liberation's first argument, the Appellate Court has held:  “Although Practice Book § 10–3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory.”  Spears v. Garcia, 66 Conn.App. 669, 675–76 (2001), aff'd, 263 Conn. 22 (2003).  “[A]lthough a plaintiff should plead a statute in a complaint ․ failing to do so will not necessarily bar recovery as long as the [defendant is] sufficiently apprised of the applicable statute during the course of the proceedings.”  (Emphasis omitted;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., 142 Conn.App. 756, 767, cert. granted, 310 Conn. 908 (2013).

Here, the plaintiff alleges that Liberation terminated her “in violation of public policies and the laws of the State of Connecticut that relate to workplace safety;  healthcare;  funding, drug and alcohol treatment provided to clients;  and confidentiality rules and laws including HIPAA.”   Construing the allegations in the complaint “broadly and realistically, rather than narrowly and technically,” as the court is required to do in this context;  Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350;  the court finds that these allegations are sufficient to put the defendants on notice that the plaintiff's complaint is premised on its alleged violation of HIPAA.   Accordingly, the plaintiff's failure to identify the statute by number is not a defect fatal to her cause of action.

With regard to public policy violation supporting an exception to the common-law employment-at-will doctrine, our Supreme Court “[adheres] to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one ․ Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy.”  (Citations omitted internal quotation marks omitted.)   Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701 (2002).   “[T]he employee has the burden of pleading and proving that [the] dismissal occurred for a reason violating public policy.”  Morris v. Hartford Courant Co., 200 Conn. 676, 679 (1986).  “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, supra, 699.  “[F]or 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, cert. denied, 204 Conn. 802, 803 (1987).

Violation of the patient privacy provisions of HIPAA has been recognized as a violation of an important public policy.   For example, in Russo v. Healthwise Medical Associates, Superior Court, judicial district of Tolland, Docket No. CV–06–5000272–S, (November 16, 2006, Sferrazza, J.) (42 Conn. L. Rptr. 343, 343), the plaintiff brought a claim for wrongful discharge against her employer on the ground that “retaliatory discipline for complaining about breach of confidentiality of patient records contravenes the strong, public [policy] evinced by ․ HIPAA.”  Id. In its decision denying the employer's motion to strike, the court stated that “[i]f the plaintiff's assertions that [the employer] terminated [her] because she complained about a valid breach of patient confidences are true, the first count would set forth a proper ․ claim of wrongful discharge.”  Id.;  see also St. Fleur v. R.C. Bigelow, Inc., supra, Superior Court, Docket No. CV–06–5004575–S (“The defendant does not appear to dispute that ․ HIPAA in fact [embodies] expressions of public policy sufficient to warrant an exception to the at-will employment doctrine.   That policy is indeed embodied by the [statute]”).

Liberation correctly points out that an employee whose termination violates a strong public policy nevertheless cannot sue under the common-law doctrine of wrongful discharge if a sufficient statutory remedy exists.  Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 159–65 (2000).   In Russo v. Healthwise Medical Associates, Superior Court, judicial district of Tolland, Docket No. CV–06–5000272–S (November 16, 2006, Sferrazza, J.) (42 Conn. L. Rptr. 343, 343), the court considered the scope of the statutory remedy set forth in General Statutes § 31–51m, the whistle-blower statute.   The court noted:  “In [Burnham] our Supreme Court held that an employee, who has been discharged by an employer against strong public policy, cannot sue under the common law ․ if sufficient statutory recourse exists ․ That decision further noted that § 31–51m provides just such a remedy.”  (Citation omitted.)   Nevertheless, § 31–51m “protects employees who report violations of law occurring in the workplace ‘to a public body’ from retaliatory discipline or discharge.   A ‘public body’ is defined in § 31–51m(a)(4) to mean a public or federal agency.   Complaints to nonpublic entities ․ fail to qualify for refuge under that whistle-blower statute.”  Id.

Liberation also claims that the plaintiff has potential statutory remedies under §§ 31–51q and 46a–60(a)(4).   However, in her complaint the plaintiff does not allege that Liberation violated her right to free speech or that she complained of a discriminatory employment practice.  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  St. Fleur v. R.C. Bigelow, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–06–5004575–S (April 16, 2007, Hiller, J.) (denying motion to strike where facts were insufficient to determine whether plaintiff employee's speech was made in course of her duties or was on matter of public concern).

A fair reading of the complaint does not disclose any allegations of a public policy violation for which there is a statutory remedy.   The public policy identified in the complaint is the protection of privacy of patient information under HIPAA.   There is no statutory remedy available under HIPAA.  “It is well settled that HIPAA does not create a private right of action.”   Salatto v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV–09–5032170–S (October 6, 2010, Robinson, J.) (50 Conn. L. Rptr. 729, 731).   Considering the allegations of the complaint it is by no means apparent that the plaintiff had any statutory remedy that would preclude her common-law claim of discharge based on a violation of a public policy.

In the present case, the plaintiff alleges that Liberation terminated her in retaliation after she questioned Young and other managers about client treatment, admissions, billing, employee safety, and HIPAA violations, and that this retaliatory termination violated Connecticut laws and policies “and confidentiality rules and laws including HIPAA.”   The plaintiff also alleges that she contacted a whistle-blower hotline provided by Liberation Programs to report the April 2011 patient-employee confrontation and documented her concerns in staff meeting minutes and case notes, “which would have come to the attention of administration.”   As in Russo, the plaintiff has alleged that Liberation terminated her employment in retaliation for her complaints that Liberation breached patient confidentiality and that this contravenes the public policy embodied by HIPAA.   Construing the allegations in the light most favorable to the plaintiff, she has set forth a public policy violation sufficient to sustain a claim for wrongful discharge.   Her common-law claim is not barred by either HIPAA, which does not provide a statutory remedy, or § 31–51m, which is inapplicable to these facts because the-plaintiff lodged her complaint with a private entity.   Accordingly, the court denies the motion to strike count three.

Count Four:  Negligent Infliction of Emotional Distress

Finally, Liberation moves to strike count four on the ground that the complaint does not contain sufficient factual allegations to show that it engaged in unreasonable conduct in the process of terminating the plaintiff.   Liberation argues that neither its allegedly improper motivation for terminating the plaintiff nor its decision to escort her from its premises without allowing her to collect her belongings constitutes unreasonable conduct.   The plaintiff counters that it is for the fact finder, and not for a court ruling on a motion to strike, to determine whether her allegations, in the aggregate, establish unreasonable conduct.   In addition, the plaintiff argues that the defendant's decision to wait until her birthday to terminate her constitutes unreasonable conduct, in and of itself.

“In 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 [distress] 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.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 410 (2005).

As to the element at issue, “negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process.”  (Internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 750 (2002). “[l]n cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress.   The dispositive issue in each case was 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 ․” (Emphasis in original;  internal quotation marks omitted.)  Id., 751.

“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.)   Maher v. Norwalk Hospital Assn., Superior Court, judicial district of Bridgeport, Docket No. CV–13–6032493–S (June 28, 2013, Sommer, J.).   Conversely, an employer's allegations against the employee that are not “of ethical misconduct, but merely of being incompetent, inept, inexperienced, and inattentive,” are not sufficient to establish unreasonable conduct in the termination process.   Battistoni v. Lakeridge Tax District, Superior Court, judicial district of Litchfield, Docket No. CV–07–5002223–S (June 17, 2008, Marano, J.).  “[B]eing escorted off the premises by security is insufficient for a claim of negligent infliction of emotional distress.”   Id. (citing Parsons v. United Technologies Corp., 243 Conn. 66, 89 (1997)).

As to the proper role of a court considering a motion to strike a claim for negligent infliction of emotional distress, the court in Noonan v. Miller Memorial Community Home, Inc., 50 Conn.Sup. 367, 372 (2007), stated that where the plaintiff has pleaded both the elements of a claim for negligent infliction of emotional distress and the supporting facts, “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.   That ․ is ultimately a question reserved for the fact finder.”  Id. In its decision denying the motion to strike, the court emphasized that the plaintiff first “clearly and specifically alleged the elements necessary to sustain a cause of action for negligent infliction of emotional distress” by “[alleging] that the [employer's] conduct during the termination process was unreasonable and that the [employer] should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm.”  Id. After settling forth the elements of the claim, “[t]he plaintiff ․ also set forth a series of actions by the [employer], which, if credited by the fact finder, are sufficient to support the elements ․” Id., 373.

With regard to an employer's decision to terminate an employee on a particular day, in Russo v. Knights of Columbus, Superior Court, judicial district of New Haven, Docket No. CV–07–5014504–S (December 4, 2008, Licari, J.), the court granted the defendant's motion to strike a claim for negligent infliction of emotional distress brought by an in-house tax attorney whom the defendant fired on “tax day,” April 15.   The court stated that “the defendant's conduct in terminating the plaintiff's employment on April 15 instead of another day, cannot, as a matter of law, be considered sufficiently wrongful so as to create an unreasonable risk of causing emotional distress that could result in illness or physical harm.”  Id. “While this date may carry some significance for employees engaged in tax related professions, it cannot be considered any more unreasonable a termination date than April 14, the day before ‘tax day,’ or April 16, the day after.   To permit the plaintiff's claim to go forward on this ground would mean endorsing its logical—and untenable—implication:  that employees in tax related professions could never be terminated on April 15, or an employer would risk being sued.”  Id.

It is noted that, although the plaintiff has not specifically alleged that Liberation's conduct during the termination process was unreasonable, she does allege a series of actions by Liberation.   The court must determine whether those alleged actions are legally sufficient to support the plaintiff's claim.   The plaintiff alleges that Young accused her of a breach of confidentiality on May 2, 2011;  Young then waited until May 20, which she knew was the plaintiff's birthday, to terminate her;  the plaintiff was escorted from the building and forbidden from gathering her things;  and Young told Liberation's employees and management that the plaintiff was terminated for breaching confidentiality and inadequately treating clients.

With respect to the timing of the discharge, the plaintiff's birthday may carry emotional significance to her, but Young's decision to terminate her on that day nevertheless cannot be considered unreasonable in and of itself.   In addition, merely escorting the plaintiff from Liberation's premises does not rise to the level of humiliating conduct.   Moreover, “a claim for negligent infliction of emotional distress must be based on the defendant's conduct, as opposed to its motive or intent ․” Tomick v. United Parcel Service, Inc., 135 Conn.App. 589, 606, cert. denied, 305 Conn. 919, 920 (2012).

Finally, Young's statements regarding the reasons for the plaintiff's termination, although allegedly false, accuse the plaintiff of shortfalls in her work performance and not of intentional or unethical conduct.  “Although these accusations may be insulting, to be unreasonable for the purpose of negligent infliction of emotional distress, [the employer's] behavior must transcend mere insulting behavior.”  Battistoni v. Lakeridge Tax District, supra, Superior Court, Docket No. CV–07–5002223–S.   The court finds that the plaintiff has failed to sufficiently allege the elements of a cause of action based on negligent infliction of emotional distress and, accordingly, grants the motion to strike count four.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. The plaintiff alleges that she expressed concerns about the following:  (1) that Young had breached patient confidentiality by speaking to a client's family member about the client's treatment, contrary to the client's expressed wishes;  (2) that Young had asked the plaintiff and other non-medical staff to distribute medication to clients;  (3) that Liberation's admission of certain clients may have been inappropriate “due to [their] particular mental health issues ․ in relation to other clients”;  (4) that the plaintiff did not feel comfortable performing a building sweep of the all-male residential unit alone because the residents tended to walk around unclothed;  and (5) that Liberation was possibly double billing Medicaid for particular clients' services..  FN1. The plaintiff alleges that she expressed concerns about the following:  (1) that Young had breached patient confidentiality by speaking to a client's family member about the client's treatment, contrary to the client's expressed wishes;  (2) that Young had asked the plaintiff and other non-medical staff to distribute medication to clients;  (3) that Liberation's admission of certain clients may have been inappropriate “due to [their] particular mental health issues ․ in relation to other clients”;  (4) that the plaintiff did not feel comfortable performing a building sweep of the all-male residential unit alone because the residents tended to walk around unclothed;  and (5) that Liberation was possibly double billing Medicaid for particular clients' services.

Tobin, David R., J.T.R.