MEMORANDUM OF DECISION MOTION TO STRIKE #115

ARNOLD, JUDGE.

The plaintiff has moved to strike the Eleventh Count of the defendant's Counterclaim dated October 9, 2002 for the reason that it fails to state a claim upon which relief may be granted. Specifically, the plaintiff claims that the defendant has failed to set forth a claim for the intentional infliction of emotional distress.

The plaintiff alleges that on or about August 26, 2001, the plaintiff entered into a written employment agreement with the defendant, Todd Howell d/b/a Winter Ridge L.L.C. Pursuant to the terms of said agreement, the plaintiff was hired by the defendant for a period of no less than three years and was to perform certain job functions as specified in the agreement, for which the plaintiff was to be compensated on a biweekly basis.

On or about March 11, 2002, the plaintiff alleges that the defendant unilaterally terminated the employment contract without cause, and subsequent thereto, the plaintiff filed his action in court. The plaintiff's action alleges that the defendant breached the employment contract and further alleges various claims of misrepresentation and violation of the Connecticut Unfair Trade Practices Act.

On October 11, 2002, the defendant filed his answer and affirmative defenses to the plaintiff's claims, as well as, a multi-count counterclaim alleging inter alia, breach of contract, misrepresentation, conversion and intentional infliction of emotional distress. The Eleventh Count of the defendant's counterclaim, to which this motion to strike is directed, is the count alleging intentional infliction of emotional distress. In said Eleventh Count the defendant realleges claims of breach of contract, misrepresentation, and conversion. The defendant in addition alleges that the plaintiff subjected the defendant to "massive financial expense" by improperly incurring debt for the defendant in the amount of $50,765.69 from a "supplier," as well as, a claim that the plaintiff Burr referred to the defendant Holland, who is of African-American descent as CT Page 7547-ep a "nigger." The defendant claims that the plaintiff's actions as described were "extreme and outrageous" and were intentional. The defendant claims that the actions of the plaintiff were likely to cause the defendant emotional distress and that the emotional distress was "severe." The defendant alleges that his reputation in the business community was damaged, and that he suffered embarrassment and annoyance.

I

The court first reviews the legal standards regarding a 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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).

Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the [plaintiff] has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). The legal sufficiency of a count which alleges the intentional infliction of emotional distress may be tested by a motion to strike. Dollard v. Board of Education, 63 Conn. App. 550, 551 n. 2, 777 A.2d 714 (2001).

The legal standard for intentional infliction of emotional distress is well settled and set forth in Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000), wherein the court stated: "In CT Page 7547-eq order for the plaintiff to prevail for 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 was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted). See also, Chasin-Hoxley v. New Haven Jewish Community Council, Superior Court, judicial district of New Haven at New Haven, Docket No. CV01-0454743 (September 19, 2002) (Arnold, J.). The plaintiff argues that the defendant in the present matter has failed to plead the requisite elements of the second and fourth prongs of the Appleton standard, in that the defendant has failed to allege that the plaintiff's behavior was extreme and outrageous, and that the defendant has failed to identify how or in what manner the emotional distress was severe.

"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991). "Whether a defendant's conduct is sufficient to satisfy, the requirement that it be extreme and outrageous is initially a question for the court to determine." Bell v. Board of Education, 55 Conn. App. 400, 410, 739 A.2d 321 (1999). "Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, supra. "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 a basis for an action based upon intentional infliction of emotional distress." Id. at 210-11.

"It is clear that individuals in the workplace should reasonably expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflicts and the like." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002). "Individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluation, both formal CT Page 7547-er and informal, decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance, and disciplinary or investigatory action arising from actual or alleged employee misconduct." Id.

A review of case law demonstrates that certain allegations have been deemed not to be extreme and outrageous conduct. In Stepney v. Devereaux Foundation, Superior Court, judicial district of Litchfield, Docket No. 65885 (November 1, 1995) (Pickett, J.), the court struck the plaintiff's claim that alleged the defendant "yelled at, screamed at and used abusive and foul language to try to dissolve the plaintiff from seeking benefits under the Workers' Compensation Act." Similarly, in Scandura v. Friendly Ice Cream Corporation, Superior Court judicial district of Hartford, Docket No. 529109 (July 5, 1994) (Hennessey, J.), the plaintiff alleged that her supervisor engaged in extreme and outrageous conduct "by making her furnish daily sales projections for the restaurant she managed, disallowing her from taking a scheduled vacation for which she had made airline reservations, and ridiculing her `unjustifiably . . . often obscenely,' and in a manner which insulted her integrity, both before and after he learned that she suffered from a medical condition that made her particularly susceptible to emotional distress."

"[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain an action. The court looks to the specific facts and circumstances of each case in making its decision . . . However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility . . . [T]hose cases in the employment context that have granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior, are more often those that allege little more than that the plaintiff was terminated without just cause." (Citations omitted; internal quotation marks omitted.) Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 377376 (October 29, 1999, Licari, J.); Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. 509752 (April 10, 2002) (Quinn, J.), 32 Conn. L. Rptr. 72. The plaintiff's claims regarding breach of contract, misrepresentation, conversion and the like, do not meet the level of extreme and outrageous conduct.

However, the question remains whether the racial, and/or ethnic slur specifically alleged was extreme and outrageous conduct. Cases decided in different states in the United States were reviewed in a Superior Court CT Page 7547-es decision by Corradino, J. See, Denault v. CT. General Life Ins. Co., Superior Court, judicial district of Ansonia/Milford at Milford, No. CV 95-0050418 (June 29, 1999, Corradino, J.); discussion of employment discrimination and remarks regarding employee's sexual preferences. Several Connecticut Superior Court cases have found racial slurs, or comments about national origin to be extreme and outrageous conduct. See, Torres v. Armstrong, Superior Court, judicial district of New Haven at New Haven, No. CV 99-0427057 (Sept. 6, 2001, Levine, J.); Denault v. CT General Life Ins. Co., supra; Cummings v. D'Oyen, Superior Court, judicial district of Fairfield at Fairfield, No. CV 94-318310S, (May 3, 1996, Ballen, J.); Broadnax v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, CV00-412193 (May 16, 2000, Levin, J.); Leone v. New England Communications, supra, 32 Conn. L. Rptr. 72.

"In considering whether such conduct is extreme or outrageous, the court notes that there is a strong public policy expressed by statute in our state prohibiting discrimination on the basis of race, sex or national origin. General Statutes § 46a-58 (a) provides: `It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person in deprivation of any rights privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, blindness of physical disability.' These comments, if alleged with other facts in the context of a discrimination case, would be adequate to state such a cause of action. The United States Supreme Court has stated that '[a]n action to redress racial discrimination may also be likened to an action for defamation or intentional infliction of emotional distress. Indeed the contours of the latter tort are still developing, and it has been suggested that under the logic of the common law development of a law of insult and indignity, racial discrimination might be treated as a dignatory tort.'" Curtis v. Loether, 415 U.S. 189, 196, n. 10, 94 St.Ct. 1005, 39 L.Ed.2d 260 (1974). Leone v. New England Communications, supra, Superior Court, judicial district of New Britain, Docket No. 509752 (April 10, 2002) (Quinn, J.).

The facts alleged in the defendant's counterclaim are that plaintiff "referred" to the defendant as a "nigger." The defendant has not claimed that the actions of the plaintiff are a case of employment discrimination. What is unclear when reading the entire counterclaim is whether the plaintiff ever used this slur in the defendant's presence, and whether this was a single act or was repeated on several occasions over a period of time. On any occasion, an alleged racial slur of "nigger" is harmful and hurtful. If, in fact, the plaintiff did utter the CT Page 7547-et slur, it appears to have been isolated in the context of a heated breakdown of a business relationship between the parties, which is not claimed to have been racially motivated. The defendant has not alleged any pattern of racially motivated conduct by the plaintiff. The conduct described in the Eleventh Count of the defendant's counterclaim while distressing and hurtful, is less than "extreme" and "outrageous" in nature. Dollard v. Board of Education, 63 Conn. App. 550, 777 A.2d 714 (2001); Muniz v. Kravis, 59 Conn. App. 704, 710, 757 A.2d 1207 (2000); Chieffalo v. Norden Systems, Inc., 49 Conn. App. 474, 714 A.2d 1261 (1998).

While this court does not endorse or condone the behavior of the plaintiff, as alleged by the defendant in his counterclaim, especially in light of our strong public policy against discrimination, it is not so outrageous or atrocious to meet the standard of unacceptability required for the tort of intentional infliction of emotional distress. "This tort must be strictly policed to avoid turning ordinary life and its insults and ignorant behavior into an endless and uncontrollable pool for litigation." Denault v. Ct. General Life Ins. Co., supra.

As the plaintiff's alleged conduct does not rise to the level of the extreme and outrageous conduct required to meet the second prong of the four-prong test required to maintain an action for the intentional infliction of emotional distress, the court need not decide whether the defendant suffered severe emotional distress. See Appleton v. Board of Education, supra, 254 Conn. 205.

Accordingly the motion to strike the Eleventh Count of the Defendant's Counterclaim is hereby granted.

THE COURT

By Arnold, J. CT Page 7547-eu