Julia Rice v. Ryders Health Management, Inc. (2016)

decision to set aside a verdict entails the exercise of a broad legal discretion ․ that, in the absence of clear abuse, we shall not disturb.”  (Citations omitted;  internal quotation marks omitted.)  Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).

RULING RE DEFENDANTS' MOTIONS TO SET ASIDE VERDICT;  MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTIONS FOR REMITTITUR

These consolidated cases were employment litigation actions wherein the plaintiff, Julia Rice, sued her former employers, Ryders Health Management, Inc. (“Ryders”), Mystic Manor Nursing & Rehabilitation Center, LLC (“Mystic”), and company officials Martin Sbriglio and Kenneth Kopchik, for, inter alia, wrongfully terminating her from employment as an occupational therapist at Mystic on April 27, 2010.  The purported justification for her termination was a complaint, made by a patient with dementia and memory deficits, that Rice had billed her for a 15–minute treatment not provided.  The case was tried to a jury on eleven counts against the four defendants.  Proceedings occurred on October 20, 21, 22, 23, 27, 28, 29, 30 and November 3, 4, 5 and 6, 2015.  The jury rendered its verdict on November 6, 2015, in favor of the plaintiff against both Ryders and Mystic, but only on certain counts.  The jury awarded $100,000.00 non-economic damages against Ryders, plus $15,000.00 for lost earnings against both Ryders and Mystic, plus punitive damages to be calculated by the court.¹  The jury also rendered a verdict for Rice on the defendant, Ryder's, counterclaim for refund of certain tuition payments.  Pending before the court are the defendants' motions to set aside the verdict;  motions for judgment notwithstanding the verdict and motions for remittitur.  For the following reasons, the motions are denied.  Therefore, in the case against Ryders, judgment shall enter in favor of the plaintiff and against the defendant, Ryders, as to Counts Three, Four, Nine and Twelve.  Judgment enters in favor of Ryders on Count Seven.  In the case against Mystic, judgment shall enter in favor of the plaintiff and against the defendant, Mystic, as to Counts Three, Four and Eight.  Judgment enters in favor of Mystic on Count Seven.  As to Count Eleven against Sbriglio, judgment enters in favor of the defendant Sbriglio.  As to Count Twelve against Kopchick, judgment enters in favor of the defendant Kopchick.  All other of the plaintiff's claims were either withdrawn or not pursued.  As to the defendant, Ryder's, counterclaim, judgment shall enter in favor of Rice. In total, damages are awarded in favor of the plaintiff in the amount of $115,000.00.

I

General Statutes § 52–228b and Practice Book § 16–35 provide for motions to set aside the verdict and for new trials to remedy erroneous jury verdicts.  The standard of review governing such motions is well settled.  “The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․ Ultimately, [t]he

A motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict made during the trial.  Accordingly, the standards are the same.  Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001).  “A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion ․ In reviewing the trial courts decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ․ While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Motions for Remittitur are available under General Statutes § 52–216a.  The statute provides, in pertinent part, as follows:

If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.

General Statutes § 52–216a.

In applying this rule, our Supreme Court has long held that the assessment of damages is “peculiarly within the province of the jury, whose determination will be set aside only when it appears that the sum awarded is plainly excessive and exorbitant.”  Rutkowski v. Connecticut Light & Power Co., 100 Conn. 49, 55, 123 A. 25 (1923).  To warrant setting a verdict aside on this ground, the court must find that the verdict “so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.”  Briggs v. Becker, 101 Conn. 62, 66 124 A. 826 (1924);  accord, Gilliard v. Van Court Property Management Services, Ltd., 63 Conn.App. 632, 644, 777 A.2d 745 (2004);  see, generally, R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (3rd Ed., 2003) § 196(b).

“[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits.”  Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).  “Litigants have a constitutional right to have factual issues resolved by the jury ․ This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded ․ The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.”  (Citation omitted;  internal quotation marks omitted.)  Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929 (1999).  “Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury.”  (Citation omitted;  internal quotation marks omitted.)  Childs v. Bainer, 235 Conn. 107, 112, 663 A.2d 398 (1995).

In ruling on a Motion for Remittitur, the court should not act as the seventh juror with absolute veto power.  Whether the court would have reached a different result is not itself decisive.  “The court's proper function is to determine whether the evidence, viewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict.”  (Citation omitted.)  Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984).

II

The jury in these cases heard the testimony of Kenneth Kopchick, Martin Sbriglio, Richard Rice, Julia Gwen Rice, Kellie Kulick, John Ropiak, Patricia Gromshak and Martha Robarge.  It also reviewed numerous correspondence, e-mails, records and other types of documents admitted as exhibits in the case.

The jury could have reasonably found as follows:  The plaintiff, “Gwen” Rice, is an occupational therapist with a special interest in long-term patients at nursing homes that qualify for Medicare Part B payments.  The defendant, Mystic, is one of several health care facilities started by the Sbiglio family many years ago.  Mystic cares for long-term patients as well as short-term patients that qualify for Medicare Part A payments.  Ryders is a separate business organization, also started by the Sbiglio family, that provides certain personnel and management services to the Sbiglio nursing homes.  Rice worked at a Sbiglio family facility in 1999, called Greentree Manor, where she met the defendant, Kopchick, who was an administrator.  In 2003–04, an outside company was hired to manage Greentree Manor.  Rice had a professional disagreement with the new operator, believing that it was not servicing the long-term patients adequately, and she quit to work for a competitor.

In 2007, the plaintiff received a telephone call from Kellie Kulick, a new administrator at Mystic, telling her that Mystic needed an occupational therapist.  After receiving assurances that management has changed, she agreed to work at Mystic on a per diem basis.  After working on a per diem basis for some time, the plaintiff later talked with Kulick about taking a full-time occupational therapist position.  They discussed the programs that the plaintiff was running in her current position at Groton Regency, they discussed her interest in long-term patients who qualify for Medicare Part B payments, and her urinary continence program.  Rice also discussed the full-time position with Kopchik.  The plaintiff told Kulick and Kopchik of her need for repayment of a tuition payment that she received from a prior employer, as she was working toward earning a master's degree.  Kopchik undertook to obtain the tuition payment from Ryders.  They also discussed that her pay rate would be at $40.00 per hour, with opportunities for raises, and specifically that her pay would be raised to $50.00 per hour once her continence program began running successfully.  That rate would have made her the highest paid employee at Mystic.  She was repeatedly assured that it was the policy of the companies that she had a job as long as she satisfactorily performed her job, and Mr. Sbriglio confirmed that was the company policy.  She was also assured that staffing would be adequate to service the long-term nursing home patients, and that management would not interfere with her development, implementation and delivery of necessary occupational therapy programs and services, unlike her earlier experience when she worked at Greentree Manor.

On February 1, 2008, Rice signed off on a letter from a Ryders/Mystic director of human resources offering her the job and tuition reimbursement of $10,792.  That offer was subject to a five year work commitment with the stipulation that all tuition monies would be repaid to Ryders/Mystic should either party need to break the agreement.  The letter further stated, “This letter is not intended as a contract of employment for any length of time nor is it intended to alter the nature of the at-will employment relationship.”  Later, on February 11, 2008, she signed a “Services Agreement” again obligating her to a term of employment for 5 years and tuition reimbursement subject to repayment.  The agreement also specified Rice's services and pay rate in a job description, and it contained a provision where both parties agreed that if either failed to comply in any material respect with the covenants, conditions and agreements applicable to it or breached in any material respect any of the representations or warranties made in the agreement, then that party would be in default and remedies would be available.

The employment proceeded generally as both sides expected, at first.  Plaintiff developed and implemented procedures for an occupational therapy program at Mystic, more staff were hired to service the long term care patients, and the plaintiff developed her continence program.  Supervisors were pleased with the program and, in fact, sought to have Rice implement the continence program at additional Sbriglio facilities and, eventually, wanted it in all facilities.  Rice received two favorable performance evaluations and a merit raise to $41.60 per hour.

Starting in December 2009, the plaintiff began having personality conflicts with two other therapists at Mystic and she complained that they were improperly double billing by jointly working with clients.  Both sides began complaining about each other and Kulick had to intervene.  In March 2010, the plaintiff was close to receiving her master's degree and was looking for another salary increase.  She sent a job inquiry to a competitor of the defendants, ostensibly to obtain salary information, but her activity came to Kulick's attention.  The plaintiff was given a disciplinary warning for using the company computer for personal matters.  After she received the warning, the plaintiff again complained to Kulick about her co-workers' double billing.

With respect to the incident that became the basis for the termination of the plaintiff, the evidence showed that on April 22, 2010, the plaintiff made an entry in her daily activity records for 15 minutes of shoulder range of motion therapy for a patient identified as SA.² SA had dementia and short-term memory deficits.  SA complained to Kulick that the treatment had not been provided.  Kulick reported the matter to Ryders, and Ropiack investigated with specific instructions from Sbiglio to be sure that if he was going to terminate the plaintiff, that he could prove grounds for termination.  Ropiack interviewed SA, reviewed the records, and, in collaboration with Kulick and others, gave notice to the plaintiff that she was being terminated on April 27, 2010.  The notice stated, “Resident made a complaint re:  no OT treatment.  Investigation completed found no treatment occurred and Resident was billed for 15 mins.  There have been past suspicions by supervisor & therapy staff.  Inappropriate billing.  Termination w/ no rehire @ other Ryders facility.”  Plaintiff was given the notice at a meeting with Ropiak and others.  She was allowed to collect her belongings and escorted out of the facility.  Ropiak testified that they could not prove “that this truly happened or not” so they erred on the side of caution.  Rice was terminated, and her billing to Medicare was retracted so that the company could not be accused of fraudulent billing.  Suspicion was deemed sufficient reason to terminate the plaintiff.

At the end of the trial, the plaintiff dropped certain claims, but pursued the following claims against the defendants:  As to Ryders, she sought damages under Count Three (breach of implied in fact contract) Count Four (breach of implied covenant of good faith and fair dealing), punitive damages on Count Four, Count Seven (fraudulent misrepresentation), punitive damages on Count Seven, Count Nine (wrongful discharge), punitive damages on Count Nine, and Count Twelve (negligent infliction of emotional distress).  As to Mystic she sought damages under Count Three (breach of implied in fact contract), Count Four (breach of implied covenant of good faith and fair dealing), punitive damages on Count Four, Count Seven (fraudulent misrepresentation), punitive damages on Count Seven, Count Eight (wrongful discharge) and punitive damages on Count Eight.  As to Sbriglio she sought damages under Count Eleven (fraudulent misrepresentation) and punitive damages as to Count Eleven.  As to Kopchick she sought damages under Count Twelve (fraudulent misrepresentation) and punitive damages as to Count Twelve.  The defendant, Ryders sought damages against the plaintiff for refund of the tuition reimbursement in a counterclaim.

The jury's verdict was as follows:  As to Ryders, the jury rendered a verdict for the plaintiff on Count Three (breach of implied in fact contract), Count Four (breach of implied covenant of good faith and fair dealing) and Count Nine (wrongful discharge) and Count Twelve (negligent infliction of emotional distress).  It also voted to allow an award of punitive damages under Counts Four and Nine. Similarly, as to Mystic, it rendered a verdict for the plaintiff on Count Three (breach of implied in fact contract), Count Four (breach of implied covenant of good faith and fair dealing) and Count Eight (wrongful discharge).  It also voted to allow an award of punitive damages under Counts Four and Eight.  Verdicts were rendered for the defendants on all other claims.  The jury awarded the plaintiff $100,000.00 for the negligent infliction of emotional distress against Ryders, and $15,000.00 for lost earnings from April 27, 2010 to the end of trial for the breach of the implied in fact contract and for damages on any other claims where liability was found against Ryders and Mystic.  As to the Ryder's counterclaim for return of the tuition payment, the jury rendered a verdict for Rice.

III

The defendants present three main issues in their post-trial motions.  They are discussed and resolved seriatim:

A. Whether the Letter That the Plaintiff Signed on February 1, 2008 Offering Her Employment and Indicating That the Letter Was Not Intended to Alter the Nature of the At–Will Employment Relationship, Precluded the Jury From Finding an Implied in Fact Contract.

Defendants argue that the verdict of the jury, finding that the defendants breached an implied in fact contract with the plaintiff, should be set aside because the terms of her employment were reduced to writing in a letter of hire, and that letter did not include any limitation on the at-will employment relationship.  The court does not agree.  There was evidence of other agreements between the parties, and the plaintiff proved that those agreements were breached.

With respect to the implied in fact contract claims in the case, the court instructed the jury as follows:

The first claim is contained in Count Three of the plaintiff's amended complaint.  In Count Three, the plaintiff alleges a breach of implied in fact contract formed by words, actions and conduct.  She alleges that the defendant's agents, by their words, actions and conduct, made the following contractual commitments with the plaintiff:  (1) that it would pay her compensation in return for services;  (2) it would not implement or allow policies that undermined professional standards applicable to the plaintiff;  (3) it agreed to limits on the grounds available to end the parties contract by agreeing that it would not end the contract because plaintiff strove to maintain a high quality of patient care;  (4) it agreed to limits on the ground available to end the parties' contract by agreeing that it would not end the contract because the plaintiff opposed policies or practices that undermined the quality of patient care;  (5) it agreed to limits on the grounds available to end the parties contract by agreeing that it would not end the contract because plaintiff insisted that the Occupational Therapy Program that Ryders was proposing that she plan, organize develop and direct be maintained in accordance with current statutes, regulation and guidelines governing nursing facilities;  (6) it agreed that it hire additional Occupational Therapy staff in sufficient numbers and of sufficient skill, knowledge and values needed to ensure that the quality of care would be maintained at expected and required levels;  and (7) that once plaintiff had developed and established new revenue generating programs for Ryders, her monetary compensation would be increased commensurate with the value of the new programs to Ryders and the effort and expertise she had employed in creating and establishing those programs.  She alleges that she performed, but the defendant breached its implied contract.

The basic elements of a cause of action for breach of implied in fact contract are:  formation, performance, breach and damages.  Whether a contract is styled express or implied involves no difference in the legal effect, but lies merely in the mode of assent.  A true implied in fact contract can only exist where there is no express one.  An implied contract is one which is inferred from the conduct of the parties though not expressed in words.  Although both express contracts and contracts implied in fact depend on actual agreement, it is not fatal to the finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognize the existence of contractual obligations.

If you find, by a preponderance of the evidence, that the plaintiff has proven an implied in fact contract and a breach by the defendant, you must determine if the defendant had cause for the termination.

Defendant argues that it acted within its rights to terminate the plaintiff from employment.

The defendant claims that the plaintiff was an at-will employee.  An at-will employee may be terminated at any time, with or without cause, in the sole discretion of the employer, except if it amounts to a wrongful discharge, as I will instruct you on later.  However, it is possible for an employer to make promises or representations to employees.  These promises and representations have to be more than general statements.  But if the promises are clear and definite in content, they may create a contract which limits the employer's rights of termination.

For there to be a contractual promise, there must be a meeting of the minds.  This means that both parties must intend the same contractual obligation.

An employer that wishes to protect itself from an employee's claim of contract can avoid using language that might be construed as a contracted promise, or can state an appropriate disclaimer of any intention to make a contract.

Defendant argues that the plaintiff was terminable at will.  If you do not find a contract by a preponderance of the evidence, you will stop your consideration of Count Three at this point, and your verdict on Count Three will be for the defendant.

Alternatively, the defendant argues that if you find, by a preponderance of the evidence, that any promises were made constituting an enforceable contract, then defendant retained the right to terminate her for cause.  Therefore, if you find such an implied in fact contract in the instant case, you must next go on to examine the evidence as whether the defendant had cause to terminate the plaintiff.  The law recognizes that business management has the right to exercise discretion in the conduct of its business.  Thus, where an employer is permitted to terminate an employee for cause, it only means that the employer may not act arbitrarily or capriciously or in bad faith

Jury Instructions, para. 10(a).

On these issues, the jury answered interrogatories finding that the plaintiff proved, by a preponderance of the evidence, that there was an implied in fact contract between the plaintiff and the defendants which limited the grounds for termination of her employment, and that the defendants acted without sufficient ground or reason in the termination of the plaintiff.

In the instant case, the court is not persuaded that the letter of February 1, 2008, preserved an at-will employment relationship between the parties and that precluded the jury from considering an implied contract limiting grounds for termination.  That is because the letter was superseded by the later signed Services Agreement which contained new language providing for defaults and remedies for any failure by the employer to comply in any material respect with the covenants, conditions and agreements applicable to it.  Defendants do not contend that the Services Agreement contained all the terms of the plaintiff's employment contract or that it superseded any prior or subsequent oral representations that might be made to the plaintiff.

An implied contract is an agreement between the parties which is not expressed in words but which is inferred from acts and conduct of the parties.  Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974).  All employer-employee relationships not governed by express contracts involve some type of implied contract of employment.  Torosyan v. Bochringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995);  Burns v. RBS Securities, Inc., 151 Conn.App. 451, 457, 96 A.3d 566 (2014).

Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like.  Thus, “[a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.”  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987).

Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties.  Id. “Accordingly, to prevail on the ․ count of his complaint [that] alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause.  [Id.], 212 n.2;  Therrien v. Safeguard Mfg. Co., [180 Conn. 91, 94–95, 429 A.2d 808 (1980) ] ․ Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.  As an inference of fact, it is not reversible [error] unless the [trier of fact] could not reasonably have arrived at the conclusion that it reached.  Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274–75, 439 A.2d 314 (1981).”  (Citations omitted;  internal quotation marks omitted.)  Coelho v. Posi–Seal International, Inc., 208 Conn. 106, 112–13, 544 A.2d 170 (1988);  see also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 198, 520 A.2d 208 (1987) (whether employment manual becomes term of implied contract of employment is question of fact).

In the instant case, it was a question of fact as to whether the claimed representations and conduct of the parties created an implied contract of employment which limited the grounds for termination of employment.  The jury found that it did, and that the defendants' actions were not in compliance with their agreements, and that they acted without sufficient ground or reason in the termination of the plaintiff.  Its determination had a sufficient basis in the evidence and was authorized by law.  Therefore, the verdict cannot be set aside or otherwise reversed on this ground.

B. Whether There Was Any Evidence Sufficient to Support the Jury's Verdict as to the Plaintiff's Claims for Breach of Implied Covenant of Good Faith and Fair Dealing, Wrongful Discharge, Negligent Infliction of Emotional Distress or for Punitive Damages.

On these points, the defendants argue that there was no basis for the jury to find for the plaintiff with respect for her claims for breach of implied covenant of good faith and fair dealing, wrongful discharge, negligent infliction of emotional distress or for punitive damages.  The court believes there was evidence sufficient to support the claims.

On the issue of breach of implied covenant of good faith and fair dealing, the court instructed the jury as follows:

In Count Four, the plaintiff alleges a breach of its covenant of good faith and fair dealing implied in its implied in fact contract with the plaintiff.  The defendant denies that it breached a contract and denies that it did not act in good faith.

You will consider this claim only if you find there was an enforceable implied in fact contract between the parties and that the defendant breached that contract.

Every contract contains an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other party to receive the benefits of the contract.  The concept is essentially a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.  The covenant cannot be applied to achieve a result contrary to the clearly expressed terms of the contract between the parties.

Here, if you find there was a contract and that the defendant breached its contract, the defendant had an obligation to exercise good faith when enforcing the provisions.  You must decide whether the defendant fulfilled that obligation to exercise good faith.

Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.

Good faith and fair dealing mean an attitude or state of mind denoting honesty of purpose and freedom from intention to defraud.  It means being faithful to one's duty and obligation under the contract.

Good faith is defined as the opposite of bad faith.  If the defendant engaged in bad faith you must find that it did not fulfill the covenant.  Bad faith generally implies a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties.  Bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose.  Bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.

Jury Instructions, supra.

On this point, the jury specifically found that the plaintiff proved, by a preponderance of the evidence, that the defendants breached the implied covenant of good faith and fair dealing implied by law in the implied in fact contract, and that she proved that the defendants acted without sufficient ground or reason in the termination of the plaintiff.  See Jury Interrogatories.  Defendants argue that, during trial, “the plaintiff offer[ed] no evidence of malice or evil intent;  she simply offers her accusations.”  The court is not persuaded.  First, proof of malice or evil intent is not the standard for finding a breach of the implied covenant of good faith and fair dealing.  See De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 582 (2004) (bad faith test);  Sidorova v. East Lyme Board of Education, 158 Conn.App. 872, 892, 122 A.3d 656 (2015) (dishonest purpose or sinister motive test).  Moreover, the jury was apparently persuaded, based on the evidence, of plaintiff's theme that the defendants had intentionally misused a dubious accusation from a patient for the ulterior purpose of ridding themselves of an expensive employee who was causing them trouble by complaining of double billing by other employees.  That, it could have fairly concluded, was proof of bad faith qualifying as grounds for a breach of the implied covenant of good faith and fair dealing.

Similarly, defendants argue that there was no evidence of wrongful termination, other than plaintiff's accusation.  On this point, the court charged as follows:

Count Nine alleges wrongful discharge in violation of public policy.  In order to state a cause of action for common-law wrongful termination for violation of public policy, a plaintiff must prove that the defendant terminated the plaintiff for reasons that contravene an important public policy.  The defendant denies that the termination was wrongful.

Ordinarily, in the absence of a specific agreement to the contrary, employment in Connecticut is considered to be at will, which means that either the employer or the employee may terminate employment at any time, and for any reason.  However, if an employee can prove a demonstrably improper reason for dismissal, which means a reason whose impropriety is derived from some violation of an important public policy, then the employment termination would be a violation of law.

In the instant case, the plaintiff alleges that she informed the defendant that certain other employees and policies of the defendant were contrary to certain important public policies and that the defendant discharge the plaintiff for raising those issues.  The court instructs you that the public policies cited by the plaintiff involved in this case were important.  It will be your task to decide whether the defendant's conduct contravened those important public policies.

Jury Instructions, supra.

Connecticut has long recognized a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involves impropriety derived from some important violation of public policy.  Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.ed 385 (1980).  On this point, the jury found that the plaintiff proved, by a preponderance of the evidence, that the plaintiff complained to employees and agents of the defendant about improper patient treatment or billing practice and that she proved that her termination from employment was in violation of an important public policy of the State of Connecticut.  Jury Interrogatories.  Defendants argue that, during trial, there was no evidence of a motive for termination in violation of public policy, only plaintiff's accusation.  Again the court is not persuaded.  There can be no doubt that fraudulent billing by nursing homes is against public policy.  Defendants do not claim otherwise.  In fact, during trial, defendants' witnesses emphasized that even an unproven claim of Medicare fraud was an existential threat because the mere claim could cause a wide-scale, business-blocking search and seizure of their office records by government regulators.  And there can be no doubt that plaintiff proved that she had complained of double billing by employees.  The jury was apparently persuaded, based on the evidence, of plaintiff's theme that the defendants had intentionally misused a dubious accusation from a patient for the ulterior purpose of ridding themselves of an expensive employee who was causing them trouble by complaining of double billing by other employees.  That sufficiently supported the claim of wrongful termination.

Likewise, with respect to the jury's finding of grounds for an award of punitive damages, defendants claim the evidence was insufficient.  On this point, the jury was charged as follows:

The plaintiff has also requested that punitive damages be awarded.  These damages, however, are not awarded as a matter of right, but rather as a matter of discretion, to be determined by you after you consider all of the evidence.  In order to be eligible for punitive damages, plaintiff must prove by a preponderance of the evidence that the defendant acted with reckless indifference to her rights, or that the violation was intentional or wanton.  Punitive damages are damages awarded not to compensate the plaintiff for any injury or losses but to punish the defendant for outrageous conduct and to deter it and others like it from similar conduct in the future.  Punitive damages may be awarded for conduct that is outrageous, because of the defendant's reckless indifference to the rights of others or an intentional and wanton violation of those rights.  You may award punitive damages only if you unanimously find, from facts established by a preponderance of the evidence, that the conduct of the defendant was, in fact, outrageous.  Punitive damages are limited to the costs of litigation, including attorneys fees, less taxable costs;  but, within that limitation, the extent to which they are awarded is in the sole discretion of the decider.  Punitive damages may be awarded under the fraudulent misrepresentation counts and wrongful discharge in violation of important public policy counts.  Punitive damages may be awarded tinder the breach of implied covenant of good faith and fair dealing counts, but only if you find a violation of an important public policy.  If you find that punitive damages should be awarded, you should indicate so on the verdict form.  The amount will be calculated by the court in a later, separate proceeding.

Jury Instructions, supra.

On this point, the jury found for the plaintiff with respect to qualification for punitive damages on the breach of implied covenant of good faith and fair dealing count and wrongful termination count.  See Verdict Form. Defendants argue that the evidence in this case was not sufficient to support a finding of a malicious intent to injure the plaintiff.  The court is not persuaded.  Proof of malice is grounds for an award of punitive damages, but it is not the only ground.  See Welch v. Durand, 36 Conn. 182, 185 (1896).  In the instant case, as previously found, the jury was apparently persuaded, based on the evidence, of plaintiff's theme that the defendants had intentionally misused an implausible accusation from a patient for the ulterior purpose of ridding themselves of an expensive employee who was causing them trouble by complaining of double billing by other employees.  There was evidence of that in the case, and its proof justified a belief that the defendants' conduct was outrageous, because of the defendants' reckless indifference to the rights of others or an intentional and wanton violation of those rights, and, therefore, sufficient justification for an award of punitive damages.

Additionally, defendants argue that the finding of negligent infliction of emotional distress against the defendant, Ryders, must be set aside because there was no evidence of emotional distress arising from “unreasonable conduct in the termination process.”  Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997).  They argue that they employed no unreasonable procedures in terminating the plaintiff in this case, and that the plaintiff's disagreement with the justification for termination was not grounds for a negligent infliction of emotional distress cause of action.  However, earlier in the case, the court (Cosgrove, J.) concluded that plaintiff's claims of the defendants' alleged conduct, of encouraging employees to bring false charges against the plaintiff in an effort to terminate her employment, raised a triable issue as to whether the defendants engaged in unreasonable conduct in the termination process.  See Memorandum of Decision, Doc. No. 126.00 in Rice v. Ryders Health Management, Inc., Superior Court, Judicial District of New London, No. CV 11–6008602 (June 18, 2012, Cosgrove, J.).  This court finds that Judge Domnarski's decision was not clearly erroneous, nor would it work a manifest injustice if followed.  Thus, that decision was the law of the case.  See Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).  Accordingly, the jury was instructed as follows:

Count Twelve alleges negligent infliction of emotional distress.  To prevail on a claim of negligent infliction of emotional distress, a plaintiff is required to prove that (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, 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.  The defendant denies that it inflicted any emotional distress.

In order to state a claim for negligent infliction of emotional distress, the plaintiff must prove that the actor should have foreseen that its behavior would likely cause emotional distress likely to lead to illness or bodily harm.

Emotional distress can be inflicted negligently if the conduct of the defendant is so unreasonable that it can lead to illness or bodily harm.  This means the conduct must be more than normally upsetting.  The defendant is not liable for the normal distress and hurt feelings that result whenever anyone loses employment.  Simply being terminated from employment, even if that termination was wrongful or a breach of implied in fact contract, is not sufficient to cause the negligent infliction of emotional distress.  Conduct which is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis of a claim of emotional distress.  There must be evidence that the manner of the plaintiff's termination from employment was different from the usual termination of employment or that it was done in any way that would cause anything more than the normal upset that would result from any termination of employment.

Jury Instructions, supra.

In the instant case, the jury specifically found for the plaintiff on the negligent infliction of emotional distress claim.  See Supplemental Jury Verdict Form. The jury was apparently persuaded by the plaintiff's theme that the defendant, Ryders, was deceitful in luring her away from her previous employer, and then causing employees to bring dubious charges against her to get rid of her once she had developed the programs Ryders wanted.  There was evidence of such activity, and that was sufficient to prove the claim of negligent infliction of emotional distress.

C. Whether a Remittitur Should be Ordered Concerning the Award of Damages for Emotional Distress.

On this point, defendants argue that the $100,000.00 award for negligent infliction of emotional distress against Ryders is contrary to law and not supported by proof.  They argue that the mere termination of employment is not by itself enough to sustain a claim for negligent infliction of emotional distress because every termination causes stress.  Since the plaintiff did not distinguish between the stress caused by loss of employment from the stress caused by her belief that the explanation that she was given for her termination was false, the award must be set aside or reduced.  They argue that her stress was due to the termination based on medical records that indicated that plaintiff's stress was due to “lost job” and that her stress was reduced when she began “working full time” again.  Defendants do not suggest what the reduction should be.

The court is not persuaded that plaintiff's evidence of stress was indistinguishable from the fact of her termination.  She testified that after the events she was devastated, in shock, numb, confused.  She was in disbelief that this happened.  She testified that she was accused of fraud and that was the worst thing one could be accused of in her line of work.  She testified how the stigma followed her in job interviews whenever she listed Ryders on her resume, and that she could not get a new job until she took Ryder's off her resume.  She testified how the events caused her medical symptoms, and how she is still being treated for depression and anxiety.  He husband testified as to how her personality has changed permanently;  that she is no longer a trusting, caring, happy-go-lucky person and that he will never get his whole wife back again.  Thus the distress was caused by the employment situation, not the termination.  See, e.g., Crochiere v. Board of Education of the Town of Enfield, 227 Conn. 333, 349, 630 A.2d 1027 (1993), disavowed on other grounds, Discuillo v. Stone & Webster, 242 Conn. 570, 580 n.10, 698 A.2d 873 (1997).  In sum, the court finds sufficient evidence to justify the jury's award on the point and finds that the size of the award was not illegal under the applicable standards.

IV

For all of the foregoing reasons, the defendants' motions are denied.  Therefore, in the case against Ryders, judgment shall enter in favor of the plaintiff and against the defendant, Ryders, as to Counts Three, Four, Nine and Twelve.  Judgment enters in favor of Ryders on Count Seven.  In the case against Mystic, judgment shall enter in favor of the plaintiff and against the defendant, Mystic, as to Counts Three, Four and Eight.  Judgment enters in favor of Mystic on Count Seven.  As to Count Eleven against Sbriglio, judgment enters in favor of the defendant Sbriglio.  As to Count Twelve against Kopchick, judgment enters in favor of the defendant Kopchick.  All other of the plaintiff's claims were withdrawn or not pursued.  As to the defendant, Ryder's, counterclaim, judgment shall enter in favor of the plaintiff, Julia Rice. In total, damages are awarded in favor of the plaintiff in the amount of $115,000.00.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. To date, there has been no request by the plaintiff for an assessment of punitive damages..  FN1. To date, there has been no request by the plaintiff for an assessment of punitive damages.

FN2. The name of the patient was not disclosed to protect the privacy of the patient and confidentiality of medical records..  FN2. The name of the patient was not disclosed to protect the privacy of the patient and confidentiality of medical records.

Vacchelli, Robert F., J.