Opinion
No. CV 065002796
July 9, 2009
MEMORANDUM OF DECISION
On March 24, 2006, the plaintiff, Colonna Dichello, filed a three-count complaint against the defendant, her employer, The Marlin Firearms Company. Previously, this court (Zoarski, J.T.R.), dismissed count one, alleging violation of the Connecticut Fair Employment Practices Act, for lack of subject matter jurisdiction; and struck count three, alleging intentional infliction of emotional distress, for legal insufficiency. Therefore, only count two of the plaintiff's complaint, which alleges negligent infliction of emotional distress, remains. For the reasons discussed below, the court finds that the defendant is entitled to summary judgment on this claim.
The plaintiff was employed by the defendant as a machine operator from January 22, 1996 to July 16, 2004. On April 9, 2003, the plaintiff complained to the defendant's management that she was being sexually harassed by a co-worker, Michael Dzienis. The North Haven police department conducted an investigation of the incident in April 2003. As a result, the plaintiff and Dzienis were separated by defendant's management. Because Dzienis' job was department specific, the plaintiff was transferred to another department. On January 14, 2004, the plaintiff approached her foreman to complain of Dzienis' presence in her new department. The foreman allegedly responded "I don't care what Mike does." The plaintiff left to go see her therapist. Starting January 20, 2004, the plaintiff took a medical leave of absence. On July 16, 2004, the defendant notified her by letter that her employment was terminated. At this point, the plaintiff had exhausted her twenty-six weeks of medical leave permitted by the defendant, which was outlined in the employee handbook.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendant filed its motion for summary judgment on May 16, 2008, along with a memorandum in support, contending that it is entitled to summary judgment because there is no evidence that it engaged in unreasonable conduct in the termination process. Under Connecticut law, the defendant argues, the plaintiff may only pursue a negligent infliction of emotional distress claim, in the employment context, when there is evidence of unreasonable conduct during the termination process. Because the plaintiff was terminated by letter after exhausting her medical leave, the defendant claims that it is entitled to summary judgment.
The plaintiff filed her memorandum in opposition on November 12, 2008, arguing that this court should consider the totality of the circumstances surrounding the plaintiff's termination. The plaintiff claims that recent decisions have looked beyond the actual termination procedures, to events leading up to and contributing to the actual termination, when deciding whether to grant motions for summary judgment. If this court were to adopt this approach, the plaintiff contends that there are genuine issues of material fact in dispute, making summary judgment inappropriate. The defendant filed its reply on December 11, 2008.
In order to succeed on a claim for negligent infliction of emotional distress, a plaintiff must plead and prove that a defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress, which might result in illness or bodily harm. See Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); see also Morris v. Hartford Courant Co., 200 Conn. 676, 683-84, 513 A.2d 66 (1986). The Supreme Court in Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002), adopted a bright line rule that a plaintiff may not maintain a claim of "negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." The Court reasoned that if such claims were permitted, "employees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions . . . on the basis of fear of suit rather than business needs and desires." Id., at 758.
To support her argument that this court should consider the totality of the circumstances the plaintiff relies on the Appellate Court's decision in Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 73, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). In Davis, the plaintiff, a pregnant certified nursing assistant, was asked to work in a wing of the defendant's nursing facility that required the lifting and moving patients who were almost fully immobile. Id., 63-64. When she expressed concerns that such duties would endanger the health of her unborn child, a supervisor told her to deal with it or leave the premises. Id., 64. The plaintiff chose to leave the premises, but returned the next day to meet with the director of nursing, who told her that the defendant would investigate and get back to her. Id., 65. Later that day, although the plaintiff made several calls to the facility to beg for her job and once again to explain that she had left because she was afraid for her unborn child, she was informed that her employment was terminated. Id.
In addressing the plaintiff's negligent infliction of emotional distress claim, the Court in Davis stated: "Viewing the totality of the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined that the defendant engaged in unreasonable conduct during the process of terminating the plaintiff's employment. Forcing the plaintiff to choose between her own health and well-being and that of her unborn child, and her continued employment, especially in light of the substantial evidence of other available and suitable work stations, was patently unreasonable. This case is not one in which the defendant's employees were merely rude during the termination process. This is a case in which the plaintiff reasonably believed that she would suffer physical harm if she worked on the wing on which her supervisor insisted she work." (Emphasis added.) Id., 73.
The plaintiff argues that courts have been "expanding the scope" of examination when considering conduct during the "termination process." She argues that this court should consider the circumstances surrounding her decision to take medical leave on January 20, 2004, as part of her actual termination on July 16, 2004. There is, however, no legal support for such a broad interpretation of the termination process. This court agrees with the reasoning of Judge Beach in Michaud v. Farmington Community Ins. Agency, when he discussed the contours of termination. "Termination means the ending, not the conduct which causes the ending. When one analyzes the policy reasons underlying Perodeau, one sees that conduct taking place within the employment relationship, even if wrongful and providing the basis for the claim of unlawful discharge, cannot provide the factual predicate for the emotional distress claim. If the actual termination is conducted wrongfully, then the action may lie. If the termination could be said to permeate the entire course of employment, then the reasoning of Perodeau would be hollow indeed." Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV 01 0806951 (September 25, 2002, Beach, J.) ( 33 Conn. L. Rptr 206, 208).
Additionally, in Davis v. Manchester Health Ct., the case upon which the plaintiff primarily relies, the termination process occurred within a two-day period and the events upon which the plaintiff based her negligent infliction of emotional distress claim occurred a day prior to her ultimate termination. Davis v. Manchester Health Center, Inc., supra, 88 Conn.App. 65. In contrast, in the instant matter, the plaintiff took medical leave on January 20, 2004 to treat anxiety and depressive disorders, which she claims were exacerbated by her co-worker and the inaction of her foreman on January 14, 2004. The plaintiff however, did not receive a letter of termination until six months after this date, on July 16, 2004.
Generally, the courts have refused to expand the scope of inquiry in the manner the plaintiff suggests. See, Tracy v. New Milford Public Schools, 101 Conn.App. 560, 572, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007), (The court expressly rejected the plaintiff's claim for negligent infliction of emotional distress when he alleged that the cause of his emotional distress occurred almost one full year prior to his discharge.); and O'Connor v. Board of Education, supra, CT Page 11787 90 Conn.App. 61-62, 69-70 (The plaintiff's claim was dismissed when it arose out of circumstances surrounding the defendant's placement of the plaintiff on sick leave and not in conjunction with the termination of his employment.) Rather, Connecticut courts require, in the employment context, that the alleged conduct giving rise to the plaintiff's claim of negligent infliction of emotional distress occur contemporaneously with the actual termination. See Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 3-6, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (claim improperly stricken when, in the course of terminating plaintiff's employment, supervisor unreasonably accused the plaintiff of falsifying records, egregious misconduct and deliberate indifference to the health of students under her care).
In the present case, there is no dispute that the plaintiff received a letter that notified her of her termination six months after she took medical leave. There is also no dispute that the letter stated: "Due to the nature of the position you occupied, and that fact that you have not worked since January 20, 2004, with no foreseeable return, we can no longer hold that position open for you. We are, therefore, placing you on inactive status effective immediately." There is no claim that the termination letter, itself, or the manner in which it was sent or delivered was either unusual or unreasonable. Therefore, there is no dispute that there is no evidence of unreasonable conduct during the termination process. This court declines the plaintiff's invitation to consider events occurring more than six months prior to her actual termination as being part of her termination process. Accordingly, this court finds that the defendant is entitled to judgment on the remaining count.