Janice C. Beauregard v. BTC LLC (2013)

MEMORANDUM OF DECISION

MOTION TO STRIKE

On February 8, 2013, the plaintiff, Janice Beauregard, filed a nine-count complaint against the defendant, BTC West Hartford d/b/a Bow Tie Criterion Cinemas at Blue Back Square (BTC), located in West Hartford, Connecticut.

In her revised complaint, the plaintiff alleges the following facts.   She is a seventy-one year old female who suffers from osteoporosis and arthritis.   Because of these physical disabilities, she is a member of a protected class under state and federal law.   As her mobility is substantially impaired, she requires the use of a walker or cane and must sit frequently.   In November 2007, she began working for the defendant as a part-time box office assistant.   After she was hired, she informed the defendant that she required an accommodation for her disability and presented a physician's note to the defendant in support of her request.   The plaintiff's request was granted and she received permission to have a chair in the box office and to have use of a chair when she was working at the concession stand, entranceway doors, and within the individual theaters when movies were showing.

On September 10, 2009, a new manager, Mr. Reed, took away the accommodation granted to the plaintiff, harassed her, and treated her in a disparate manner.   The withdrawal of the accommodation caused the plaintiff to experience pain and an increased risk of injury should she fall.   On January 19, 2010, she filed a formal complaint with the defendant's corporate office, stating that she was being improperly denied a reasonable accommodation.   The next day, she met with several individuals from the defendant's corporate office.   As a result of the meeting, she was allowed to use a walker instead of a cane and was also allowed to have a chair at the entrance door to the box office.   She was not, however, permitted to use a chair at any other location where she worked within the theaters.

On January 29, 2010, the plaintiff testified on behalf of Eileen Geary, a former employee of the defendant, at an unemployment hearing.   From January 29, 2010 to March 5, 2010, the defendant escalated its harassment and denied additional requests to reinstate her prior accommodation.   On March 5, 2010, the plaintiff filed her first complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), claiming that she was continuously denied reasonable accommodation by Reed and that she was being retaliated against for complaining to the defendant's corporate office.

In June 2010, the plaintiff and the defendant signed a confidential settlement agreement and release, which provided in part that the plaintiff would be provided a chair or stool in close proximity to the work stations to which she was assigned and also that she be permitted to sit down periodically as her physician determined to be appropriate.   The plaintiff provided an updated physician's letter to Reed, which stated that she required the use of a rolling walker with a seat at the box office and requested that the defendant honor the previous request for accommodations as stipulated in the agreement.   The defendant, however, provided only partial accommodations, which failed to meet her needs and expectations.   Specifically, the defendant provided a defective chair and did not place it close enough to the plaintiff for her to utilize.

In response, the plaintiff used her own personal rolling walker, which had a seat, to sit where Reed originally placed the defective chair.   Reed then called the plaintiff at her home, accusing her of breaking the agreement.   After explaining to him that her physician submitted an accommodation request to use the walker, Reed allowed her to use it, but required that the walker be kept three feet away from the box office, which prevented the plaintiff from utilizing it while working in the box office.

On July 9, 2010, the plaintiff's CHRO complaint was closed and withdrawn.   On July 16, 2010, her employment was terminated based on an anonymous customer complaint, dated July 6, 2010.   The defendant purposely and knowingly waited for the CHRO investigation to be withdrawn and closed before terminating the plaintiff ten days after the alleged customer complaint was filed The defendant's manager did not conduct any investigation into the alleged customer complaint despite the defendant's history for investigating incidents of employee rudeness, and did not consult human resources, nor allow the plaintiff the opportunity to inquire or discover more details of the allegations against her.   The defendant did not allow the plaintiff to view the videotape that identified her as the subject of the customer complaint.   The videotape was quickly recorded over and no longer exists.   Despite no investigation, the manager's memorandum to the plaintiff states that an investigation was conducted and that she was in direct violation of the defendant's written policies.   The plaintiff denies the allegations made in the customer complaint.   As a result of the defendant's conduct, the plaintiff sustained financial injuries and physical pain and suffering.

On May 20–21, 2013, the defendant filed a motion to strike the third, fourth, sixth, seventh, eighth, and ninth counts of the plaintiff's revised complaint on the grounds that they each fail to state a claim upon which relief can be granted to which the plaintiff filed an objection and an opposition memorandum.   The matter was heard at short calendar on September 9, 2013.

Legal Standard—Motion to Strike

“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).  “[I]t 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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)   Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).  “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).   This court takes “the facts to be those alleged in the complaint ․ and construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013) “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn 240, 252, 990 A.2d 206 (2010).

I

COUNT THREE—WRONGFUL TERMINATION

In the third count, the plaintiff incorporates paragraphs 1 through 66.   The plaintiff alleges that her “discharge involved impropriety derived from some important violation of public policy,” that it “violated explicit statutory and constitutional provisions,” and “contravene[d] judicially conceived notions of public policy.”   As a result of the defendant's conduct, the plaintiff sustained financial and physical injuries.

The defendant seeks to strike the third count on the grounds that (1) the cause of action of common-law wrongful termination is unavailable because a statutory remedy exists;  (2) the plaintiff fails to allege any facts that demonstrate what public policy was violated;  and (3) the plaintiff fails to allege or identify the statutory and constitutional provision that the defendant allegedly violated.   The plaintiff counters that the defendant's discharge of the plaintiff violated the public policy of prohibiting discharge of an employee who files a complaint, thereby exercising her free speech rights afforded under the federal or state constitution to report her employer's discriminatory practices.

“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.   Employment at will grants both parties the right to terminate the relationship for any reasons or no reason, at any time without fear of legal liability.   Beginning in the late 1950s, however, the courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge ․ Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy ․ In doing so, [our Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees.”  (Citations omitted;  internal quotation marks omitted.).   Joyner v. Simkins Industries, Inc., 111 Conn.App. 93, 97–98, 957 A.2d 882 (2008).

“In interpreting this exception, we note our adherence 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 ․ This narrow public policy exception allowing a common-law wrongful discharge action by an employee who can prove a demonstrably improper reason for dismissal is an attempt to balance the competing interests of employer and employee ․ The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability.   Employee job security, however, is protected against employer actions that contravene public policy ․ Accordingly, the employee has the burden of proving a violation of important public policy ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 306, 802 A.2d 800 (2002).

“A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer.   The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.”  (Emphasis in original;  internal quotation marks omitted.)  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159–60, 745 A.2d 178 (2000).

“Judges of the Superior Court, interpreting those guidelines, have consistently held that a plaintiff may recover under a theory of wrongful discharge, notwithstanding other statutory avenues of recovery, where the basis of the wrongful discharge claim is a public policy for which the plaintiff is without remedy.   See, e.g. Trimboli v. Von Roll Isola USA, Inc., Superior Court, judicial district of New Haven, Docket No. CV–09–4037507–S (August 3, 2010, Wilson, J.) (50 Conn L Rptr. 399, 400) (denying a motion to strike where wrongful discharge claim was based on public policy of preserving employees' physical welfare and safety while additional § 31–51q claim was based on public policy of protecting employees' free speech);  Fedor v. New Samaritan Corp., Superior Court, judicial district of New Haven, Docket No. CV–07–4026586–S (June 9, 2008, Cosgrove, J.) (45 Conn. L. Rptr. 714, 718) (denying motion to strike plaintiff's wrongful discharge claim notwithstanding additional allegation of a violation of § 31–51q);  Mirto v. Laidlaw Transit, Inc., Superior Court, judicial district of New Haven, Docket No. CV–334231 (April 21, 1993, Stanley, J.) (9 Conn. L. Rptr. 19, 21) (denying motion to strike wrongful discharge claim based on the public policy of providing reasonable and desirable transportation to public schools notwithstanding additional allegation of a violation of § 31–51q).   Conversely, where the plaintiff asserts a claim for wrongful discharge based on public policy grounds for which the plaintiff does have a statutory remedy, judges of the Superior Court have consistently stricken claims for wrongful discharge.”   Godbout v. Watson Foods, Inc., Superior Court, judicial district of New London, Docket No. CV–09–5013548–S (January 25, 2011, Cosgrove, J) [51 Conn. L. Rptr. 328].

In the present case, the plaintiff's claim for wrongful termination is based on allegations incorporated from the first count.   Viewing the allegations in the light most favorable to the plaintiff, the only potential violation of public policy ascertainable is a claim asserting retaliation against her for filing a complaint with the defendant's corporate office, filing a complaint with the CHRO and for testifying at an unemployment hearing on behalf of a co-worker.   The violation of public policy against retaliation is pursued in two additional counts as causes of action pursuant to statute.   In the second count, the plaintiff pursues a cause of action for the defendant's alleged discrimination under §§ 46a–60(a)(4).¹  In the fourth count, the plaintiff pursues a cause of action for the defendant's alleged retaliation under § 31–51q for expressing her protected rights under the first amendment of the federal constitution and equivalent provision in the state constitution.

Because the second and fourth counts individually assert claims of retaliation pursuant to statute, the plaintiff is not without remedy for the defendant's alleged violation of public policy.   Further, if the plaintiff intended to assert additional violations of public policy beyond the second and fourth counts, any such claims cannot be determined because the plaintiff fails to specify what statutory and constitutional provisions were violated by the defendant in connection with her discharge.

Accordingly, the plaintiff's claim for common-law wrongful termination is legally insufficient under the public policy exception inasmuch as the plaintiff pursues two distinct statutory remedies for the defendant's alleged retaliation in the second and fourth counts.   Therefore, the motion to strike the third count of the complaint is granted.

II

COUNT FOUR—GENERAL STATUTES § 31–51q

In the fourth count, the plaintiff incorporates paragraphs 1 through 10 and 27 through 66 of the first count.   The plaintiff alleges she was exercising her first amendment rights under the federal constitution or equivalent provision of the state constitution when she testified at a coworker's unemployment hearing.   As a result, the plaintiff alleges she was disciplined and fired for exercising such rights.

The defendant seeks to strike the fourth count on the grounds that (1) the plaintiff fails to plead facts identifying not only what she specifically testified about at the hearing, but also that her testimony touched on a matter of public concern, and (2) the plaintiff fails to allege facts to support her allegation that her termination was connected to the testimony that she gave at the unemployment hearing.   The plaintiff counters that her allegations satisfy the Pickering ² three-prong test in that (1) testimony regarding discriminatory practices is not part of her responsibilities;  (2) the plaintiff's formal complaints regarding the defendant's discriminatory practices against her and her testimony constitute a public concern regarding an employer's discrimination against a disabled employee;  and (3) as the defendant's discriminatory practices are prohibited by General Statutes § 46a–60(a)(4), the defendant's interest does not outweigh the plaintiff's interest.   In addition, the plaintiff alleges that the defendant only stated part of the Pickering test and that the defendant failed to apply the complete test to the facts in the revised complaint.

“Section 31–51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees' exercise of enumerated constitutionally protected rights.”  D'Angelo v. McGoldrick, 239 Conn. 356, 360, 685 A.2d 319 (1996).  General Statutes § 31–51q provides in relevant part:  “[a]ny employer ․ who subjects any employee to discipline or 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 discipline or discharge ․”

Section 31–51q protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution ․ Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters.”  (Citations omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn 766, 778, 734 A.2d 112 (1999).   See also Connick v. Myers, 461 U.S. 138, 147–49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (extending constitutional protection to statements regarding pressure on public employees to work for political candidates not of their choice, but not to statements regarding internal office procedures).

“It is well settled that internal employment policies are not a matter of public concern.”  Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 783.  Section 31–51q “should not be construed so as to transform every dispute about working conditions into a constitutional question.”  Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999).   Therefore, “[t]he issue to be addressed is not simply whether the subject matter of the employee's complaint touches on a matter of public concern generally;  the issue is whether acting as he did, an employee was acting as a citizen attempting to speak out on a public issue, or whether the employee was attempting to resolve a private dilemma relating to employment.”  (Internal quotation marks omitted.)   Jeffress v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV–96–0386866–S (August 28, 1997, Silbert, J.).

“Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court.”  Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777.  “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ․ An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community ․” (Citations omitted;  internal quotation marks omitted.)   Schumann v. Dianon Systems, Inc., 304 Conn. 585, 602, 43 A.3d 111 (2012).   See also Matthews v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV–11–6019959–S (May 31, 2013, Peck, J.) [56 Conn. L. Rptr. 262].

In the present case, the plaintiff does not specify what she testified about in the hearing, nor does she allege that her testimony at the unemployment hearing concerned the defendant's alleged discriminatory acts.   The plaintiff argues in her memorandum of opposition that her protected activity includes not only her testimony at the unemployment hearing, but also her complaint filed with CHRO on March 5, 2010.   Despite construing the complaint in a manner most favorable to sustaining its sufficiency, the plaintiff does not allege in the third count, nor in the incorporated paragraphs of the first count, that the March 5, 2010 complaint filed with the CHRO constituted an exercise of her federal or state constitutional rights.   Therefore, only the testimony provided at the unemployment hearing is analyzed as to whether it constitutes protected activity.

Without the content, form, and context of the plaintiff's testimony at the unemployment hearing, it cannot be determined whether the plaintiff was acting as a citizen attempting to speak out on a matter of public concern, or whether she was attempting to resolve a private dilemma relating to her employment.   Accordingly, the plaintiff has failed to sufficiently plead that her testimony was a matter of public concern pursuant to § 31–51q.   Therefore, the motion to strike the fourth count is also granted.

III

COUNT SIX—BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

In the sixth count, the plaintiff incorporates paragraphs 1 through 69 of the first count and paragraphs 70 through 85 of the fifth count.   She further alleges that the defendant breached the covenant of good faith and fair dealing by discharging the plaintiff in violation of public policy.   The defendant seeks to strike the sixth count on the ground that the plaintiff fails to allege any facts demonstrating that the defendant's reason for her discharge was prompted by some sinister motive or dishonest purpose or moral obliquity.   The defendant specifically argues that the plaintiff does not allege that the customer complaint was false, nor does she deny working at the theater that night.   The plaintiff counters that (1) the delivery of the handbook constituted an offer, which the plaintiff accepted;  (2) the defendant has a progressive disciplinary policy which was not utilized when the defendant terminated the plaintiff;  (3) the defendant breached the employment contract when it discriminated against the plaintiff, which was expressly prohibited by the handbook;  and (4) the defendant discharged the plaintiff in retaliation for her complaint to the CHRO in violation of public policy.

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  (Internal quotation marks omitted.)  Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 713, 41 A.3d 1077 (2012).  “The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term.”   (Internal quotation marks omitted.)  TD Bank, N.A. v. J & M Holdings, LLC, 143 Conn.App. 340, 348, 70 A.3d 156 (2013).

“In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566–72, 479 A.2d 781 (1984), the Supreme Court addressed the applicability of the implied covenant of good faith and fair dealing in the employment context.   In the employment context, the implied covenant of good faith and fair dealing is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.   The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.”   Colonna v. Baran Institute of Technology, Inc., Superior Court, judicial district of Hartford, Docket No CV–09–4042637–S (March 31, 2011, Peck, J).

“Although [the Supreme Court endorses] the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties.   Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right.   Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction.   We see no reason ․ to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety ․ derived from some important violation of public policy.”   (Emphasis added;  internal quotation marks omitted.)  Id. “[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.”  (Emphasis omitted.)   Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002).

“[T]he mere providing of a personnel policy and procedure manual to an employee does not convert an at-will employee to a contract employee.”   (Internal quotation marks omitted) Brule v. Nerac Corp., Superior Court, judicial district of Hartford, Docket No. CV–04–085023811–S (December 23, 2008, Shapiro, J.).   In order “[t]o survive a motion to strike, the allegations must include ․ specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims she had with the defendant.”  (Internal quotation marks omitted.)  Id.

In the present case, the plaintiff does not plead sufficient facts demonstrating that the defendant agreed to be bound by some specific form of actual contractual commitment.   The relevant paragraphs in the revised complaint do not identify the terms of an express contract by which the parties agreed that the plaintiff was anything other than an at-will employee.   Further, the plaintiff does not incorporate the handbook into the revised complaint by attaching it to the complaint or clarify what is contained in the handbook in support of her allegation that the handbook constituted an express contract between the parties.   Without specific factual allegations concerning the formation and terms of the express contract the plaintiff claims to have had with the defendant via the employee handbook, the plaintiff's claim for breach of the covenant of good faith and fair dealing is legally insufficient.   Therefore, the motion to strike the sixth count is also granted.

IV

COUNT SEVEN—INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In the seventh count, the plaintiff incorporates paragraphs 1 through 69 of the first count.   The plaintiff further alleges that the defendant intended to inflict emotional distress on her and knew or should have known that emotional distress and/or physical injury was a likely result of its conduct.   In addition, the plaintiff alleges the defendant's wrongful conduct was extreme and outrageous because it involved a deliberate campaign to harass, intimidate, and create emotional distress for her.

The defendant seeks to strike the seventh count on the grounds that (1) the plaintiff fails to identify any specific conduct that serves as a basis for her claim;  (2) the plaintiff fails to show how the defendant's alleged conduct was intentional towards her or how the defendant knew that emotional distress was likely to occur as a result of its conduct;  and (3) the plaintiff failed to allege any type of conduct by the defendant that is either intentional or extreme.   The plaintiff counters that she sufficiently plead facts to support a cause of action for 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.)  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).  “All four elements must be established to prevail on a claim for intentional infliction of emotional distress.”  Muniz v. Kravis, 59 Conn.App. 704, 708–09, 757 A.2d 1207 (2000).

“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!  ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).

“[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).

In the present case, the plaintiff does not specify which conduct is alleged to be extreme and outrageous.   Therefore, the plaintiff does not sufficiently demonstrate the second element required for a claim of intentional infliction of emotional distress.   Even assuming the court considers the paragraphs incorporated from the first count to be allegations of conduct at issue, the plaintiff's allegations are not sufficiently extreme or outrageous enough to satisfy the second element required for a claim of intentional infliction of emotional distress.   The defendant's alleged conduct, as described in the incorporated paragraphs 1 through 69, may have been distressful and hurtful to the plaintiff, but it is not so atrocious so as to exceed all bounds usually tolerated by decent society.   Accordingly, the plaintiff's claim is insufficient as a matter of law to form the basis of an action for intentional infliction of emotional distress.   Therefore, the defendant's motion to strike the seventh count is also granted.

V

COUNT EIGHT—NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In the eighth count, the plaintiff incorporates paragraphs 1 through 69 of the first count.   The plaintiff further alleges that the defendant's conduct caused an unreasonable risk of causing the plaintiff emotional distress, that the distress was foreseeable and severe, and that the plaintiff sustained injury as a result of the defendant's conduct.   The defendant seeks to strike the eighth count on the grounds that (1) the plaintiff does not allege that the defendant's conduct in terminating the plaintiff was unreasonable;  (2) the plaintiff does not set forth sufficient facts that would demonstrate that her distress was foreseeable;  and (3) the plaintiff does not allege that her alleged distress was due to her termination.

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm and (4) the defendant's conduct was the cause of the plaintiff's distress ․ Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”   (Citation omitted;  internal quotation marks omitted.)  Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e, emotional distress likely to lead to illness or bodily harm” (Citation omitted;  internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).  “This part of the ․ test essentially requires that the fear or distress experienced by the plaintiff's 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.”   Carrol v. Allstate Ins. Co., supra, 262 Conn. 447.  “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 ․ [T]he conduct must transcend merely insulting behavior and, only where the court determines reasonable minds can disagree, does it become a question of fact for the jury.”  (Citation omitted;  internal quotation marks omitted.)   Rice v. Ryders Health Management, Inc., Superior Court, judicial district of New London, Docket No. CV–11–6008602–S (June 18, 2012, Cosgrove, J).

“[I]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 [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.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 571–72, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

“In determining what constitutes unreasonable conduct in the termination process, courts have generally held that a termination involving inconsiderate, humiliating, or embarrassing action is unreasonable.   See Leniart v. C & S Distributors, Inc., Superior Court, judicial district of Hartford, Docket No. CV–92–516354–S (January 21, 1994, Corradino, J.).   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 ․ In addition, terminations occurring in private meetings are generally not considered unreasonable.   See id. (private meeting announcing an immediate dismissal, followed by a public escort from the premises not unreasonable).   Failing to respond to employee complaints is also not considered unreasonable.   See Miner v. Cheshire, 126 F.Sup.2d 184, 198–99 (2000).”  (Citation omitted;  internal quotation marks omitted.)   Cortazar v. Staples the Office Superstore, Superior Court, judicial district at Stamford–Norwalk at Stamford, Docket No. CV–12–6013930–S (December 12, 2012, Genuario, J.).

In the present case, the plaintiff's allegations do not sufficiently demonstrate how the defendant's conduct created an unreasonable risk of causing the plaintiff's distress or how the plaintiff's distress may have been foreseeable.   Further, the plaintiff fails to allege facts that the termination itself involved conduct that was inconsiderate, humiliating, or embarrassing.   While the termination of the plaintiff has been alleged to have been wrongful, by itself, such a termination is not enough to sustain a claim for negligent infliction of emotional distress.   Accordingly, the plaintiff's claim for negligent infliction of emotional distress is insufficient as a matter of law.   Therefore, the defendant's motion to strike the seventh count is also granted.

VI

COUNT NINE—DEFAMATION

In the ninth count, the plaintiff incorporates paragraphs 1 through 69 of the first count.   The plaintiff further alleges that (1) a manager, Mr. Reed, shared details regarding the plaintiff's protected activity, including information about her disabilities and terms of her settlement agreement with the defendant and with various employees;  (2) the same manager made comments regarding the plaintiff's disability, protected activity, and prior settlement agreement;  (3) a co-employee overheard “various” managers maligning the plaintiff, calling her names, and discussing her confidential medical information and protected activity;  and (4) the same co-employee overheard another manager referring to the plaintiff as “evil.”   In addition, the plaintiff alleges that the statements were made orally, were false, made with malice, and were not privileged.   Finally, the plaintiff alleges that as a result of the foregoing conduct by the defendant, she suffered financial injury, physical pain and suffering, emotional distress and loss of enjoyment of life's activities.   The defendant seeks to strike the ninth count on the grounds that the plaintiff fails to allege that Reed made false statements of fact or sufficient facts to show that the defendant's employees made defamatory statements.

“Defamation is comprised of the torts of libel and slander.   Defamation is that which tends to injure reputation in the popular sense;  to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him ․ Slander is oral defamation ․ Libel ․ is written defamation.”  Lowe v. Shelton, 83 Conn.App. 750, 765, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).  “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Citations omitted;  internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).

“[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed;  a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom.   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.”  (Internal quotation marks omitted.)   Winters v. Concentra Health Services, Superior Court, judicial district of New Haven, Docket No. CV–07–5012082–S (March 5, 2008, Thompson, J.);   see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV–98–0486346–S (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) (“[a] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom”).   Connecticut courts require that a plaintiff must plead a defamation case with specificity because “[t]here are a number of special defenses ․ that may ․ be appropriate, depending on the nature of the statements alleged to have been made.”   Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Complex Litigation Docket No. X04–CV–02–0097138–S (December 16, 2005, Beach, J.) (40 Conn. L. Rptr. 565, 570).

“If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses.”   Mikhael v. H.S. Eagle Road Ass'n, LLC, Superior Court, judicial district of Danbury, Docket No. CV–09–5008287–S (October 20, 2010, Marano, J).  “To prevail on a common-law defamation claim, a plaintiff must prove that the defendant published false statements about her that caused pecuniary harm ․ To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.”  Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 795.

In the present case, the plaintiff's allegations do not sufficiently demonstrate a cause of action for defamation.   First, the plaintiff does not specify to whom Reed made his comments about the plaintiff, nor does the plaintiff plead with specificity what was said.   Second, the plaintiff does not specify which managers her co-worker overheard, nor does she specify what they allegedly said about her.   Third, a co-employee's statement that she overheard a manager refer to the plaintiff as “evil” is not an objective fact;  rather, it is a report of the statement of an opinion.   Finally, the plaintiff does not demonstrate how these allegedly defamatory statements damaged the plaintiff's reputation or how these defamatory statements led to pecuniary loss Therefore, the defendant's motion to strike the ninth count is also granted.

CONCLUSION

For all the foregoing reasons, the motion to strike to the third, fourth, sixth, seventh, eighth, and ninth counts of the revised complaint, on the grounds that each of these counts fails to state a claim, is hereby granted.

Peck, J.

FOOTNOTES

FN1. General Statutes § 46a–60(a)(4) provides in part:  “It shall be a discriminatory practice in violation of this section ․ For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83 or 46a–84.”.  FN1. General Statutes § 46a–60(a)(4) provides in part:  “It shall be a discriminatory practice in violation of this section ․ For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83 or 46a–84.”

FN2. The Pickering factors are articulated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct 1731, 20 L.Ed 2d 811 (1968)..  FN2. The Pickering factors are articulated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct 1731, 20 L.Ed 2d 811 (1968).

Peck, A. Susan, J.