Opinion
No. CV 01-0456879 S
July 16, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendants Connecticut Yankee Council, Inc. (Yankee Council) and Pam Sugrue have moved to strike Counts One though Ten of the plaintiff's Third Revised Complaint, dated November 25, 2003.
The defendants argue that Count One, a tort claim for wrongful termination, should be stricken because the plaintiff has failed to identify the explicit statutory, constitutional or judicially conceived notion of public policy allegedly violated by his termination. Moreover, the grounds advanced by the plaintiff in support of his claim that he was wrongfully discharged, being that he was fired on false accusations of wrongful conduct, and without the benefit of a complete investigation of those charges, do not amount to a violation of any public policy recognized by Connecticut.
Regarding Count Two, defendants argue that the plaintiff's claim that his termination allegedly violated the due process clause of the Connecticut Constitution, fails as a matter of law because the due process clause provides no avenue of redress when the conduct complained of involves the actions of a private citizen. The due process clause, the defendants argue, is only applicable when the conduct at issue is a state action, and neither the Yankee Council nor Sugrue are alleged to be state actors.
Count Three purports to state a claim for interference with custodial rights. The defendants argue that to state a claim for interference with custodial rights, the plaintiff must allege "an extralegal taking of custody." Thus, plaintiff must allege that the Yankee Council abducted his son, and the plaintiff has not done so.
Counts Four and Nine are defamation claims. The defendants argue that the plaintiff has failed to identify an unprivileged publication of a defamatory statement. The plaintiff has not alleged that any alleged defamatory statement was communicated to anyone other than those to whom the defendants were privileged to communicate this information.
Count Five is a claim for the intentional infliction of emotional distress. The defendants argue that the plaintiff fails to allege conduct attributable to the Yankee Council that was extreme and outrageous.
In Count Six the plaintiff alleges a claim for the negligent infliction of emotional distress. The defendants argue that the plaintiff has failed to identify unreasonable conduct attributable to the Yankee Council that occurred during the termination process. The plaintiff's allegations in the defendants' opinion do not allege that the plaintiff was terminated in a particularly humiliating or egregious manner.
The plaintiff has alleged a claim for false imprisonment in Count Seven. The defendants argue that the plaintiff must allege that his liberty was restrained under the threat of present force, against his will and that the plaintiff has failed to do so.
Count Eight sounds in negligent hiring, supervision, training and retention. The defendants claim that in order for the plaintiff to sufficiently plead a cause of action for negligent hiring, training, retention or supervision, the plaintiff is required to allege that the Yankee Council was on notice of its employee's alleged propensity to engage in the wrongful conduct at issue, and, despite this notice, took no action. The defendants argue that the plaintiff has failed to allege these necessary elements, as the plaintiff's Count Eight is devoid of allegations demonstrating that Yankee Council was on notice of its employee's alleged propensity to slander others. Further, Count Eight is deficient because a claim for negligent hiring, training, retention or supervision will only lie when the conduct at issue is criminal, violent or otherwise similarly wrongful.
The plaintiff in Count Ten alleges a tortious interference with a business expectancy/contractual relation. The defendants state that a claim such as this, will not lie when the alleged interference is an agent of the defendant employer. The rule in Connecticut, argues the defendants, is that an agent may not be charged with having interfered with a contract of the agent's principle absent an allegation that the agent acted outside the scope of her authority or for personal gain. Count Ten, it is claimed, is devoid of any allegations.
A factual summary reveals that the plaintiff was employed by the defendant Yankee District Council of the Boy Scouts of America as a program specialist from September 1, 2000 to July 19, 2001. Defendant Pam Sugrue is alleged to have been a volunteer with the Yankee Council.
On July 17, 2001, the plaintiff, while supervising children at a camp organized by the Yankee Council, noticed that his minor son was involved in an altercation with another child attending a camp maintained by the defendant Yankee Council. The plaintiff grabbed his son's arm, shook him, and verbally reprimanded his son, warning him that his behavior was unacceptable. Because this act of discipline occurred in the presence of the other small children (Cub Scouts), the defendant Sugrue told the plaintiff not to discipline his child in the presence of the other children. A brief verbal exchange ensued between the plaintiff and Sugrue.
Two days later, on July 19, 2001, the plaintiff alleges that his supervisor, Charles Bossert, requested that the plaintiff meet with him and Chris Harvey, a representative of the Yankee Council, to discuss the incident of July 17, 2001. During this meeting in Harvey's office, the plaintiff alleges that Harvey accused him of abusing the plaintiff's son. The plaintiff responded by stating that he had a parental right to determine how to discipline his own son. Harvey then informed the plaintiff that the plaintiff had violated the Boy Scout policy concerning child abuse. After disputing the existence of such a policy, the plaintiff left Harvey's office.
The plaintiff later returned that day to Harvey's office accompanied by his wife. He informed Harvey that he was an ordained minister, and that the defendants' accusations that he abused his child were "deeply hurtful, slander and caused him great pain and distress." The plaintiff's wife then demanded that Harvey specify the particular Boy Scout policy that the plaintiff had violated, and specify the exact misconduct that the plaintiff had allegedly engaged in. The plaintiff alleges that Harvey refused to comply with this request or to discuss the matter at all.
After leaving Harvey's office, the plaintiff alleges that he went to see Doug Krofina, the Scout Executive Director for the Yankee Council. Krofina notified the plaintiff that the plaintiff was terminated as a direct result of physically disciplining his minor child in the presence of the other Cub Scouts. The plaintiff alleges that Krofina refused to further investigate or discuss the matter.
Upon leaving Krofina's office, the plaintiff states that he proceeded back to the camp to pick up the Cub Scouts to bring them back to their parents' homes. The plaintiff claims that representatives of the Yankee Council surrounded his car and prevented him from leaving the Yankee Council premises with the Cub Scouts, who had been attending the camp. Soon after, at the request of the Yankee Council, four police cars arrived at the scene. After investigating the situation and speaking with the parents of the affected children, the police allowed the plaintiff to transport the children home, with the permission of the children's parents.
The plaintiff also alleges that the defendants, thereafter, "purported to file" a report with the Department of Children and Families concerning the physical discipline that the plaintiff inflicted on his son on July 17, 2001.
The standards for the granting of a motion to strike are well-settled. "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 shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
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).
I WRONGFUL TERMINATION
The plaintiff's Count One is a tort claim for wrongful termination. He does not allege that the terms of his employment were that he was to be employed for a definite period of time. Accordingly, he is deemed to be an employee at will. Morris v. Hartford Courant, Co., 200 Conn. 676, 678, 513 A.2d 66 (1986); Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426 (1959). "[T]he right to recover in tort for wrongful discharge extends only to employees at will." Tomlinson v. Board of Education, 226 Conn. 206, 212, 629 A.2d 333 (1993).
Sheets v. Teddy's Frosted Food, Inc., 179 Conn. 471, 427 A.2d 385 (1980), recognized that it is a "general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will." Id. 474; see, e.g., Somers v. Cooley Chevrolet Co. "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 reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002); see also Boucher v. Godfrey, 119 Conn. 622, 627, 178 A. 655 (1935) (Connecticut expressly adopts doctrine of employment at will). Consequently, in the absence of an employment contract, or an illegal discriminatory motive, an employer has the right to terminate an employee at any time without liability. Cweklinsky v. Mobil Chemical Company, 267 Conn. 210, 226, 837 A.2d 759 (2004).
Sheets, supra, "recognized a common-law cause of action in tort for the discharge of an at-will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." Carbone v. Atlantic Richfield Co., 204 Conn. 460, 466-67, 528 A.2d 1137 (1987), quoting Sheets v. Teddy's Frosted Foods, Inc., supra, 475. In interpreting this exception, the courts have taken a narrow view. 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. We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000); Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997).
In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), the court recognized a limitation on the public policy exception to the at-will doctrine. The court concluded: `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 added; internal quotation marks omitted.) Id., 648; Burnham v. Karl Gelb, P.C., supra, at 159-60. The court in Sheets v. Teddy's Frosted Foods, Inc., supra, at 477-78 warns, however, that courts should proceed cautiously in their consideration of whether a public policy violation exists. "The issue then becomes the familiar common-law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not. We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Id., at 478.
Later cases test and define the limits of an important violation of public policy. Because of the vagueness that inheres in the concept of public policy, Morris v. Hartford Courant Co., supra at 680; the court must make an analysis of employee claims in such cases. Faulkner v. United Technologies Corp., 240 Conn. 576, 588-89, 693 A.2d 293 (1997).
"The 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); see also Selander v. Soundview Technology Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, No. CV02 0189753 (Feb. 10, 2003, Adams, J.).
"The cases in which the court has found public policy violations provide a basis to determine its boundaries. See Sheets v. Teddy's Frosted Food, Inc., supra, 179 Conn. 471 (defendant discharged for calling attention to employer's violations of Connecticut Uniform Food, Drug and Cosmetic Act.); Burnham v. Karl Gelb, P.C., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 537069 (January 9, 1995, Blue, J.) ( 13 Conn. L. Rptr. 258) (discharge of employee in retaliation for reporting OSHA and civil rights violations violates public policy); Weeks v. Office of Urban Affairs, Superior Court, judicial district of New Haven at New Haven, Docket No. 339298 (September 13, 1994, Martin, J.) ( 12 Conn. L. Rptr. 388) (discharge of employee in retaliation of employee's reporting of defendants' inaccurate figures to state and federal agencies are a violation of public policy)." Backert v. Bic Corporation, Superior Court, judicial district of Fairfield, No. CV 00 0376394 (Aug. 9, 2002; Doherty, J.); Apicella v. Driver Logistic Services, Superior Court, judicial district of New Haven at New Haven, No. CV 01 0450101 S (Aug. 19, 2002, Arnold, J.) (employer discharged employee for allegedly failing a statutorily mandated drug test, when employer knew that employee had, in fact, passed the drug test). However, in Morris v. Hartford Courant Co., supra, our Supreme Court, held that an accusation of criminal conduct does not derive from an important violation of public policy and denied the plaintiff's requested relief.
While the plaintiff alleges that he was never shown the specific Boy Scouts policy that he purportedly violated, he has failed to allege a violation of any explicit statutory or constitutional provision in Count One. Further, he has not alleged in Count One, the contravention of any judicially conceived notion of public policy. It does not violate public policy for an employer to deprive an employee the opportunity to explain himself prior to termination. Morris v. Hartford Courant, supra, 200 Conn. 680; Carbone v. Atlantic Richfield Company, supra, 204 Conn. 468; Carnemolla v. Walsh, supra, 75 Conn. App. 329. Therefore, Count One is ordered stricken.
II VIOLATION OF THE DUE PROCESS CLAUSE
In Count Two, the plaintiff claims that the actions of the Yankee Council violated his due process rights under the Connecticut Constitution. More specifically, the plaintiff alleges that the Yankee Council, a private entity, terminated him without "any hearing or appeal of his dismissal . . . in the manner of an oppressive state or governmental entity."
Fourteenth amendment to the federal constitution and article first, § 8, of the state constitution.
The due process clauses of the federal and state constitutions can be violated only by conduct of the state, as they do not restrict the actions of private persons or entities. Dutch Point Credit Union v. Caron Auto Works, 36 Conn. App. 123, 130, 648 A.2d 882 (1994); State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990). State action is "an essential requirement for the invocation of the due process clauses of both our federal and state constitutions." Savage v. Aronson, 214 Connecticut 256, 284, 571 A.2d 696 (1990). The due process clause "erects no shield against merely private conduct, however discriminatory or wrongful." Hanif v. Asylum Hill, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 0392658 (March 10, 1993, Wagner, J.) ( 8 Conn. L. Rptr. 499), citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982).
Accordingly, Count Two is ordered stricken, as the defendant Yankee Council is a private entity and cannot be considered a state created organization.
III INTERFERENCE WITH CUSTODIAL RIGHTS
In Count Three, the plaintiff alleges that the defendant Yankee Council "interfered with Plaintiff's parental rights and his interests with respect to rearing his child . . ." As a result of "Defendant's interference with Plaintiff's custody rights," the plaintiff alleges increased concern for his child's well-being and the infliction of emotional distress.
"In Marshak v. Marshak, [ 226 Conn. 652, 628 A.2d 964 (1993)], our Supreme Court recognized, for the first time, the tort of custodial interference." Bouchard v. Sundberg, 80 Conn. App. 180, 201, 834 A.2d 744 (2003). "A factual predicate for any tort related to custodial interference is the unlawful custody of the child. Id. quoting Marshak v. Marshak, supra, 226 Conn. 666; see also Zamstein v. Marvasti, supra, 240 Conn. 549, 566, 692 A.2d 781 (1997).
There are no allegations in the plaintiff's Count Three that the Yankee Council or its agents, servants, and employees abducted the plaintiff's son or attempted to induce the child to leave his father. Thus, having concluded that the defendants' acts did not rise to the level of an extralegal taking of custody as required for the tort of intentional interference of custodial rights, Count Three is hereby ordered stricken.
IV DEFAMATION CT Page 11163
Counts Four and Nine are claims sounding in defamation. Count Four is directed to the Yankee Council and Sugrue. Count Nine is virtually identical to Count Four, but is directed only to the defendant Sugrue. The plaintiff argues that the Yankee Council's agents and representatives, Krofina and Harvey, stated to the plaintiff and his wife that the plaintiff had physically abused his son. The Yankee Council then communicated and published this information to the Department of Children and Families. The plaintiff feels that these statements disparaged him in a way that was particularly harmful to his professional reputation as a scout leader and as an ordained minister, who has spent years trying to build scouting in the Greater New Haven Area. See QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001), citing 3 Restatement (Second), supra, § 559 ("[a] communication is defamatory if it tends to so 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"). The plaintiff further argues that any privilege that the defendants might enjoy is forfeited if the defendants made the statement about the plaintiff with actual malice) knowing of its falsity or reckless disregard as to its truth. Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 662 A.2d 89 (1995).
The defendants argue that an unprivileged publication occurs only when the defamatory statement is communicated to someone other than the plaintiff. See Raye v. Wesleyan University, Superior Court, Judicial District of Middlesex at Middletown. No. CV-02-0098865-S (Apr. 10, 2003, Aurigemma, J.). No action for defamation exists if the defendant publishes the defamatory statements to only the plaintiff. Cweklinsky v. Mobil Chemical Company, 267 Conn. 210, 217, 837 A.2d 759 (2004). Therefore, any claim for defamation based on the statements made to the plaintiff only on July 19, 2001, during the investigation of the incident fails as a matter of law.
Second, the defendants argue that statements published during an intra-company investigation of misconduct are generally privileged, and cannot be construed as a defamatory statement. Torosyan v. Boehringer Ingelheim Pharm., Inc., supra, 234 Conn. 1.
Third, the defendants argue that communications concerning the perpetration of an alleged criminal act made to the proper recipient of this information are privileged and cannot be construed as a defamatory publication. Moriarty v. Lippe, 162 Conn. 371, 387 n. 2 (1972).
The court begins its analysis with a brief review of the common-law tort of defamation. 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 . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001), quoting 3 Restatement (Second), Torts § 559, p. 156 (1977); see also Cweklinsky v. Mobil Chemical Company, supra, 267 Conn. 216.
A cause of action for defamation requires four essential elements: (1) a false statement of fact; (2) unprivileged publication of the statement; (3) publication caused by negligent or intentional conduct; and (4) injury to reputation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984); Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995); see also Raye v. Wesleyan University, supra, Superior Court, Judicial District of Middlesex at Middletown. No. CV-02-0098865-S (Apr. 10, 2003, Aurigemma, J.).
"Whether a communication is made upon an occasion of privilege is a question of law . . ." Alexandru v. Dowd, 79 Conn. App. 434, 439, 830 A.2d 352 (2003). See 3 Restatement (Second), supra, § 619, p. 316; see also McManus v. Sweeney, 78 Conn. App. 327, 334, 827 A.2d 708 (2003). "In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published . . . The privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged." (Citation omitted; internal quotation marks omitted.) McManus v. Sweeney, supra, 78 Conn. App. 335-36.
Connecticut recognizes two types of privilege: absolute privilege and conditional privilege. Menge v. Cafero, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 128522 (January 9, 1995, Karazin, J.). "The effect of an absolute privilege in a defamation action is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." Kelley v. Bonney, 221 Conn. 549, 565, 606 A.2d 693 (1992). "The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). See also, Smith v. Rosenstein Barnes, Superior Court, judicial district of Fairfield at Bridgeport No. CV95 032 66 98 S (May 4, 2000, Skolnick, J.). Thus, publication of defamatory words may be under an absolute privilege, or under a qualified or conditional privilege. Under the former there is no liability, although defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State. It is only the qualified or conditional privilege that may be abused or lost by malice, improper motive, or bad faith.
In his memorandum of law, the plaintiff argues that the Yankee Council representatives Krofina, Harvey and the defendant Sugrue stated to the plaintiff, his wife and the Department of Children and Families, that the plaintiff had physically abused his son. A review of the 28 paragraphs of Count Four alleges that on July 19, 2001, the accusation of child abuse was communicated directly to the plaintiff by Chris Harvey of the Yankee Council. The plaintiff then returned to Harvey's office with his wife. The complaint does not reveal if the allegations of child abuse were again repeated by Harvey in the presence of the plaintiff's wife, as it is alleged that Harvey refused to discuss the matter. While the Milford Police were called to the scene to prevent the plaintiff from transporting children home in his car, the complaint does not specify that the allegations of child abuse were discussed with the police, or whether the police were called only to prevent the plaintiff from removing the children from the camp site. The complaint only alleges that the "Milford Police then called the parents of the boy scouts who had been entrusted to Plaintiff, and informed them of what had happened." The complaint does allege that the "defendants purported to file with the Department of Children and Families a `false report' alleging that the plaintiff had abused his son . . ." The plaintiff has not alleged that the statements were made with actual malice, but rather, that the defendants statements were "false and defamatory" and that the "defendants knew or should have known that these statements were false . . ." The court must determine, therefore whether statements to the plaintiff only and to the DCF were privileged.
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, CT Page 11174 208 Conn. 161, 170, 544 A.2d 1185 (1988).
As to the statements to the plaintiff, outside the presence of any third party, privilege attaches. Cweklinsky v. Mobil Chemical Company, 267 Conn. 210, 217 (2004) 837.
As to the report of suspected child abuse "purportedly" sent to the DCF, absolute privilege would attach by virtue of General Statutes § 17a-101e(b) which states:
The court also notes General Statutes § 17a-101e(c) which states:
(c) Any person who knowingly makes a false report of child abuse or neglect pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, shall be fined not more than two thousand dollars or imprisoned not more than one year or both.
(b) Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 shall be immune from liability civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect. (Emphasis added.)
The plaintiff has not sufficiently pleaded facts that would show actual malice, improper or malicious motives, hatred, spite, ill will or a reckless disregard for the truth by the defendants when they reported the incident to the DCF. Torosyan v. Boehringer Ingelheim Parmaceuticals, Inc., supra, 234 Conn. 29. See also, Bleich v. Ortiz, 196 Conn. 498, 493 A.2d 236 (1985).
In addition to the immunity provided the defendants as set forth in § 17a-101e(b), the defendants had a conditional privilege to report the alleged child abuse to the DCF, whose job it is to process a claim of child abuse. See Moriarty v. Lippe, supra, 162, Conn. 387 n. 2. General Statutes § 17a-101a states that it is the public policy of the state to make children safe and to require the reporting of suspected child abuse, so that such reports can be investigated and so that services can be provided by the DCF and social agencies. Obviously, not all reports of suspected child abuse turn out to be true upon investigation or rise to the level that requires further action by the state. However, the defendant, while claiming the accusations are false, has not pleaded malice or improper motives by the Yankee Council in submitting this report of alleged child abuse. A reading of Count Four does not sufficiently allege that the defendants have abused an absolute privilege. Accordingly, for the reasons set forth, Counts Four and Nine claiming defamation are hereby stricken.
General Statutes § 17a-101(a) states:
(a) The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.
V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In Count Five, the plaintiff alleges that the Yankee Council intentionally inflicted emotional distress upon the plaintiff in connection with the termination of the plaintiff. The plaintiff's claim is focused on his allegations that the Yankee Council terminated him on false information and failed to properly investigate the claim of child abuse. The plaintiff alleges in Count Five that as a result of this incident, he is treating with a psychiatrist because of his emotional condition.
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 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). The plaintiff's complaint interpreted in a favorable light would meet the first, third and fourth criteria for the purposes of defeating a motion to strike. The court, however, must analyze the defendant's conduct to determine whether the conduct, as alleged in the complaint, was "extreme and outrageous," as required by the second criteria.
"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." Id.; 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, 254 Conn. 210.
"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 conflict 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 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.
The plaintiff has not alleged conduct by the defendant that meets the standards for intentional infliction of emotional distress. The actions he alleges in his complaint are his termination and the defendant's report of child abuse to the DCF. Pursuant to the holdings in Appleton v. Board of Education, supra, 254 Conn. 205, and Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), the defendant's actions cannot be deemed to meet the demanding standard of "extreme and outrageous." "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Parsons v. United Technologies Corp., supra, 243 Conn. 89 (quoting Madani v. Kendall Ford, Inc., 312 Or. 198, 204, 818 P.2d 930 (1991)).
The court, additionally, has found that the defendants had an absolute privilege in reporting suspected child abuse to the DCF, and would have immunity in civil proceedings for doing so, pursuant to the aforementioned General Statutes § 17-101e(b). That absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous. See Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986); see also Alexandru v. Strong, 81 Conn. App. 68, 82 (2004) 837 A.2d 875 (2004) (applying absolute privilege to statements made in the course of judicial proceedings and affirming trial court's granting of summary judgment on claim of intentional infliction of emotional distress). Therefore, the plaintiff's Fifth Count is also ordered stricken.
VI NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The Sixth Count alleges that the defendant negligently inflicted emotional distress upon the plaintiff. In the employment context an action for negligent infliction of emotional distress may be based only on the employer's unreasonable conduct in the termination process. Perodeau v. Hartford, supra, 259 Conn. 762-63; Morris v. Hartford Courant Co., supra, 200 Conn. 681-82. The emphasis is on whether the manner of termination was unreasonable, not on whether the termination itself was unreasonable. Perodeau v. Hartford, supra, 259 Conn. 744; Morris v. Hartford Courant Co., supra, 200 Conn. 683-84.
"[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 . . . [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 distress, if it were caused, might result in illness or bodily harm." (Citations omitted; internal quotation marks omitted.) Gregoire v. Newlonbro, Superior Court, judicial district of Waterbury at Waterbury, No. CV-03-0178933 S (Oct. 31, 2003, Matasavage, J.), quoting, Perodeau v. Hartford, supra, 259.
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process. 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. The mere act of firing an employee, even if wrong-fully motivated, does not transgress the bounds of socially tolerable behavior." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88-89 (1997).
The dispositive issue was whether the defendant's conduct during the termination process was sufficiently wrongful that the "defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm." Id.; Morris v. Hartford Courant Co., supra, 200 Conn. 683; Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
The court finds that the complaint fails to allege sufficient facts to conclude that the defendant should have realized that its conduct in terminating the plaintiff involved an unreasonable risk of causing emotional distress, illness or bodily harm. There are no allegations of wrongful conduct in the termination process itself, other than allegations that the defendant refused to investigate or give the plaintiff an opportunity to explain himself. Accordingly, Count Six is ordered stricken.
VII FALSE IMPRISONMENT
In Count Seven, the plaintiff alleges that the Yankee Council, through it agents, employees and representatives "stopped, detained and caused the Plaintiff to be interrogated by the Milford Police," intending that the plaintiff be confined. The plaintiff, therefore claims he was falsely imprisoned. The court disagrees.
"[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another . . . A person is not liable . . . unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it . . . Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases." (Citations omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31-32, 727 A.2d 204 (1999).
"Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability . . . To prevail . . . the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992).
The events complained of by the plaintiff occurred after the plaintiff attempted to leave the Yankee Council's camp with children attending the camp, after the plaintiff's employment with the Yankee Council had been terminated. The Yankee Council's actions were not to prevent the plaintiff from leaving, but rather, to prevent him from leaving with the children who had been entrusted into the care of the Yankee Council. The plaintiff could have left, but not with the children. The complaint itself reads that representatives of defendant Yankee Council "surrounded Plaintiff's car" and "intended to confine him and to prevent him from leaving the premises with the boy scouts in his charge." (Emphasis added.)
The allegations of Count Seven are insufficient as a matter of law to allege false imprisonment and Count Seven is ordered stricken.
VIII
Count Eight purports to state a claim for negligent supervision and retention against the Yankee Council, in that the Yankee Council was negligent in the hiring, training and supervision of its volunteer, the defendant Pam Sugrue. The plaintiff argues that Sugrue was a volunteer for Yankee Council at the time of the July 17, 2001 incident, which the defendant failed to investigate before terminating the plaintiff. The plaintiff in his memorandum of law states, "Defendant Sugrue lied expressly in her deposition testimony in this case. Notwithstanding her obvious, demonstrably perjured testimony, the defendant's CYC's (Yankee Council) Chief Executive still continued her employment with the defendant up to the present." "His was a failure to do due diligence, and a continuing violation of his said duty, all to the plaintiff's enduring detriment." The plaintiff then goes on to state that the employer is vicariously liable to third persons for the negligent acts of the contractor. The plaintiff is arguing that the court should consider this situation analogous to that of an employer's liability for the acts of an independent contractor.
Once again, the court can only consider the pleadings contained in the complaint itself and not argument and conclusions contained in the plaintiff's memorandum of law.
A review of the allegations contained in Count Eight reveals bare allegations that the defendant was negligent in the hiring, training and supervision of Sugrue, and that the defendant owed a duty of care to the plaintiff. Additionally, the plaintiff concludes that the defendant should have known that its failure to adequately train and supervise Sugrue could reasonably be expected to cause injury and did, in fact, cause injury to the plaintiff.
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn. App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee); Roberts v. Circuit-Wise, Inc., 142 F. Sup.2d 211, 214 (D.Conn. 2001) (in negligent supervision action, plaintiff must plead and prove that she suffered an injury due to the defendants failure to supervise an employee whom the defendant had duty to supervise)." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn. App. 186, 191, 842 A.2d 1177 (2004).
Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of forseeability. "The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 754; DeMaria v. Country Club of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, No. CV02 39 26 21 S (Jan. 17, 2003, Thim, J.); see also, Doe v. Abrahante, Superior Court, judicial district of New Haven, Docket No. CV97 0403111 (April 28, 1998, Licari, J.) ( 22 Conn. L. Rptr. 65, 66); Doe v. Bradley Memorial Hospital, Superior Court, judicial district of New Britain at New Britain, No, CV 01 0509999 (Jul. 24, 2003, Bryant, J.). "It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm." Knicrumah v. Albany City School District, 241 F. Sup.2d 199, 211 (N.D.N.Y. 2003).
It is an open issue whether Connecticut recognizes a claim for negligent retention. See Doe v. Abrahante, Superior Court, judicial district of New Haven, Docket No, CV 97 0403111 (April 28, 1998, Licari, J.) ( 22 Conn. L. Rptr. 65, 66).
"The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. `Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?' This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn. App. 194, quoting Gutierrez v. Thorne, supra, 13 Conn. App. 500.
The court finds that Count Eight fails to sufficiently allege facts that the Yankee Council had notice of defendant Sugrue's alleged propensity to engage in the conduct that the plaintiff claims was wrongful. Count Eight, as well, does not spell out what conduct of Sugrue was, in fact, wrongful on July 17, 2001. Additionally, the truthfulness or untruthfulness of the defendant Sugrue during her deposition testimony at a date after this action was filed, is irrelevant and is insufficient to sustain the plaintiff's claim regarding her negligent hiring, supervision and training by the defendant Yankee Council on the date of the incident, July 17, 2001. Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 112 n. 3, 585 A.2d 1263 (1991).
IX INTERFERENCE WITH AN EXPECTANCY
Count Ten is directed toward the defendant Sugrue and purports to state a claim for "Interference with an Expectancy." In support of this claim, the plaintiff alleges that Sugrue's act of reporting to Yankee Council executives that the plaintiff physically disciplined his child in the presence of other cub scouts tortiously interfered with his employment relationship with the Yankee Council.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct." Collum v. Chapin, 40 Conn. App. 449, 452, 671 A.2d 1329 (1996); Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988); Hart, Nininger Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 629, 548 A.2d 758 (1988). The plaintiff must identify how the conduct was tortious. Finnucane v. Dandio, Superior Court, judicial district of New Haven at New Haven, Docket No. 366182 (May 28, 1997, Gray, J.). This requires the plaintiff "plead and prove at least some improper motive or improper means." Id., quoting Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983).
Generally, an agent cannot be charged with having interfered with a contract of an agent's principal. Appleton v. Board of Education, 53 Conn. App. 252, 267, 730 A.2d 88 (1999), rev'd in part on other grounds, 254 Conn. 205, 212-14, 757 A.2d 1059 (2000). An exception to this rule exists when the agent acts outside the scope of their authority for personal gain. Id. quoting Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 168, 714 A.2d 21 (1998), cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).
The plaintiff does not allege that Sugrue was acting outside the scope of her authority. The plaintiff only alleges that Sugrue told the plaintiff not to discipline his child in front of the other cub scouts, and that she reported his behavior to the executives of the Yankee Council. The plaintiff as well, has not alleged that Sugrue was acting for personal gain or malice.
Thus, Count Ten is devoid of any allegations that would sustain an action for tortious interference with a contract or an expectancy. Count Ten is hereby ordered stricken.
X CONCLUSION AND ORDERS
For the reasons set forth herein, the court finds that the plaintiff in Counts One through Ten has failed to adequately state claims upon which any relief can be granted. Accordingly, the court hereby grants the defendants' motion to strike, dated January 15, 2004, orders that Counts One through Ten are stricken.
THE COURT
By: Arnold, J.