Opinion
No. CV 02-0466339 S
April 2, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (# 120)
The plaintiff, Debra Hearn, filed a fourteen-count complaint against the defendants, Yale-New Haven Hospital and its employees Randall Johnson, Sally Gill, Susan Sheehan, John Strathy and Paul DiCono, on July 7, 2002. In response to the defendants' request to revise, the plaintiff filed a thirteen-count revised complaint sounding in breach of contract, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and defamation on May 26, 2004, in which she alleges the following facts. At all times relevant hereto, she was employed by the hospital as a registered nurse in the neurosurgical intensive care unit, and her performance ratings were satisfactory. In June or July of 1999, defendant Gill began to make humiliating comments about the size and shape of the plaintiff's breasts, including loudly singing in front of other staff and patients "here comes miss perky breasts, here comes miss perky breasts." Around October 10, 1999, the plaintiff told Gill to stop making such comments, to no avail. Around October 29, 1999, the plaintiff met with her nurse manager, defendant Sheehan, and complained about Gill's conduct. Sheehan told her to write a complaint letter, which the plaintiff wrote and placed in Sheehan's mailbox, but Sheehan took no action and Gill continued to belittle and humiliate the plaintiff. Gill's conduct incited another nurse, Robin Wigan, to join in commenting on the plaintiff's body.
Around December 21, 1999, the plaintiff was summoned to Sheehan's office in connection with allegations of sexual harassment that defendants DiCono and Strathy had levied against her. DiCono and Strathy had not filed written complaints. The substance of their allegations was that the plaintiff was "utilizing her breasts in a sexually provocative manner and that [her] manner of speech and use of her hands indicated that she had `no concept of personal space.'" In the meeting, Sheehan subjected the plaintiff to a "screaming tirade" and berated her for "sticking [her] boobs in their face[s]." DiCono's and Strathy's complaints went through the hospital's conflict resolution program and were determined to be meritless; nevertheless, Sheehan did not discipline either complainant and made a note in the plaintiff's personnel file that the plaintiff had engaged in sexual harassment. At this point, the plaintiff again raised the issue of Gill's distressing conduct; Sheehan said she would address it in a meeting but once more failed to take action. Instead, around February 4, 2000, the plaintiff was admonished that her abdomen was exposed when she wrote on an assignment board and her underwear was exposed when she stooped to empty a patient's catheter, even though her style of dress was substantially or actually identical to that of other nursing staff.
Some time later, around June 13, 2000, the plaintiff was asked to meet with Nan Bornet, the hospital's acting nurse manager, and Joyce Potter, manager of the hospital's seventh floor. Potter noted that "it looked bad in [the plaintiff's] book" that she had more than one conflict resolution. This distressed the plaintiff because she believed the resolution process to be confidential. She was then threatened that she "would be under written warning and during that time [her] life would be hell," which she understood to be a threat that the hospital, which was sponsoring her attempt to adjust her status as Canadian citizen and resident alien in the United States, would withdraw its sponsorship. She was ultimately told to stay home for two days with pay, which she did, although she has yet to be paid for this time. Two days later, she was again told to meet with Bornet and Potter. They informed her that certain medical residents had made complaints about the plaintiff's work performance, although they provided no documentation in support and would not divulge the names of her accusers. Bornet and Potter again asked her to resign; when she refused, she was told that her employment was terminated. The plaintiff later learned that defendant Johnson, a junior resident in her department, wrote a "to whom it may concern" letter in which he made false and defamatory allegations with respect to the plaintiff's nursing abilities. She acquired the letter from the hospital's human resources department. As a result of the continuing harassment and ill-treatment by the individual defendants, the plaintiff suffered severe emotional distress, required medical attention and care for anxiety and stress, and felt compelled to have her breast size surgically reduced. The plaintiff claims that the hospital was negligent in hiring, training and supervising its employees, that the harassment perpetrated by the defendants caused her emotional distress, and that the statements made by Johnson, DiCono and Strathy were defamatory and led to her losing her job.
Neither Bornet or Potter is a party to this action, but the plaintiff has argued that the hospital is vicariously liable for the emotional distress they caused her to suffer.
Count one, for breach of contract, is not currently at issue. Count two is for "negligent hiring, training and supervision" against the hospital. Count three is for intentional infliction of emotional distress against the hospital on a theory of vicarious liability. Counts four and six are for negligent infliction of emotional distress against the hospital and Johnson, respectively. Count five alleges defamation against Johnson. Counts seven, eight, nine, ten and twelve allege intentional infliction of emotional distress against Johnson, Gill, Sheehan, DiCono and Strathy, respectively. Counts eleven and thirteen allege defamation against DiCono and Strathy, respectively.
On August 29, 2005, the defendants filed the present motion to strike on the grounds that an employee cannot maintain an action for negligent hiring against her employer and, at any rate, the plaintiff has not alleged foreseeability, that the statements made by Johnson, DiCono and Strathy were not defamatory, and that none of the conduct the plaintiff claims caused her emotional distress was extreme and outrageous. They attached a memorandum of law thereto. On September 27, 2005, the plaintiff filed a memorandum in opposition.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint;" (internal quotation marks omitted) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); however, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "[A] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The defendants move to strike counts two through thirteen. The plaintiff has conceded that counts four and six, sounding in negligent infliction of emotional distress, do not state a claim upon which relief may be granted and those counts are therefore stricken. The remaining counts will be addressed in turn.
A. Count two: Negligent hiring, training and supervision
The defendants argue that claims for negligent hiring, training and supervision are only available to members of the general public, and do not lie between an employee and an employer. They also contend that, even if an employee could assert such claims against her employer, it is a necessary prerequisite that a plaintiff allege that her employee's tortious conduct was foreseeable, which the plaintiff has not done.
The plaintiff counters that the authority cited by the defendants for the proposition that an employee cannot maintain an action for negligent hiring, training and/or supervision against her employer has been overturned by more recent case law. She also points out that she has alleged that she complained of the individual defendant's conduct numerous times but the hospital took no action to prevent further such incidents, which supports her claims of negligent training and supervision.
At oral argument, the plaintiff stopped just short of conceding her claim of negligent hiring, admitting that she had not alleged that the hospital could have foreseen the complained-of conduct prior to hiring Sheehan, Bornet or Potter.
1. Negligent hiring
Generally, an employer will be liable in "any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). The defendants argue that an employee cannot maintain an action for negligent hiring against her employer. The authority they provide, however, does not support this argument. Nonetheless, the defendant is correct — and the plaintiff admits — that she has not alleged sufficient facts to support her claim of negligent hiring, since "[i]n the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct." Burban v. Hill Health Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0446764 (December 12, 2006, Robinson, J.) (Internal quotation marks omitted.) "The test that is often applied in determining whether there exists a duty to use care is . . . 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, 82 Conn.App. 186, 194, 844 A.2d 224 (2004). The plaintiff has not alleged any facts, beyond a bald allegation that the hospital "should have known" of its employee's potential for tortious conduct before hiring them, that support her claim of negligent hiring. See Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498 ("[A] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged"); see also Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.) (striking count for negligent hiring for failure to allege that employer knew of employee's propensity for tortious conduct). Therefore, her claim of negligent hiring is insufficient as a matter of law.
In Rutter v. Harris, Superior Court, judicial district of Hartford, Docket No. CV 91 0503195 (July 16, 1992, Wagner, J.) ( 7 C.S.C.R. 1051) [ 7 Conn. L. Rptr. 117], the court cited Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 757 (1988), for the proposition that "our Appellate Court has implicitly recognized the existence of the negligent hiring doctrine where injuries are sustained by a member of the general public as opposed to an employee of the employer." Rutter v. Harris, supra, 7 C.S.C.R. 1051. This doctrine, however, was adopted from the Restatement (second) of Torts, and only contemplates situations in which a third person sues a principal for the negligence of its independent contractor. The holding in Ray that an employee of an independent contractor cannot sue the principal who hired the independent contractor does nothing to limit the more general tort of negligent hiring set forth in Shore v. Stonington, supra, 187 Conn. 155, and does not expressly speak to the related but distinct claims of negligent training or supervision. Although the defendant, in its reply brief, suggests that under Shore a "negligent hiring claim can only be brought by a third party"; id., 155; "third party" is not necessarily exclusive of co-employees. Indeed, in Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978), one of the foreign cases the court in Shore found persuasive, the Maryland Supreme Court noted that "in hiring and retaining someone, an employer owes a duty to his other employees and to the general public to use reasonable care." (Emphasis added.) Id., 164.
2. Negligent training and supervision
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, supra, 82 Conn.App. 191; see also Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988) (negligent supervision recognized as direct action against employer where vicarious liability could not be maintained). The majority of Superior Court decisions considering the issue have "required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury." Companions Homemakers, Inc. v. Pogasnik, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04 0834592 (June 7, 2005, Wagner, J.T.R.).
The defendants did not address the claims of negligent training or supervision in their brief, but adapted their arguments with respect to negligent hiring at oral argument, maintaining that an employee cannot bring an action for negligent training or supervision against her employer, and that the plaintiff has not alleged that the tortious conduct was foreseeable. Research reveals no authority for their position that an employee cannot bring such claims against her employer; see footnote 4 of this opinion. Furthermore, in contrast to the negligent hiring claim, the plaintiff has alleged facts which, construed liberally, support claims for negligent training and supervision. "In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." Companions Homemakers, Inc. v. Pogasnik, supra, Docket No. CV 04 0834592; see also Faggio v. Brown, Superior Court, judicial district of Middlesex, complex litigation docket, Docket No. X04 CV 05 4003488 (May 17, 2006, Beach, J.). Ultimately, the elements for negligent supervision are nearly the same as those for negligent hiring, the only difference being at what point the defendants became aware of the actor's propensity for tortious conduct. See Elbert v. Connecticut Yankee Council, Inc., supra, Docket No. CV 01 0456879 ("Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability").
The plaintiff has alleged that she repeatedly complained of several defendants' tortious conduct on a number of occasions to various supervisory figures, that the hospital failed to follow the appropriate disciplinary procedures in response to her complaints as required by its personnel policy and procedure manual and failed to adequately train its employees, and that no action was taken to curb the conduct. This provides a factual basis for the claim that continued tortious conduct was foreseeable by the hospital and sufficiently states a claim for negligent supervision.
It is unclear whether a claim of negligent supervision is distinct from one of negligent training — or even, for that matter, negligent hiring. See, e.g., Faggio v. Brown, supra, Docket No. X04 CV 05 4003488 (allegations that the defendant "failed to train [the offending employee]" to perform a variety of tasks fell within the rubric of a negligent supervision claim). The plaintiff in Faggio had alleged "negligent hiring, negligent retention and negligent supervision" within the first count. The court commented that "[i]t could be argued that the [first] count really alleges only negligence as to the employer, and that the defendant was negligent in three separate ways. In any event, the defendant has not complained that three separate causes of action were alleged in one count." The present defendant has not complained on these grounds either; nevertheless, as will be discussed, there is no reason why the plaintiff's negligent hiring allegation should not be stricken.
The Superior Court is split as to how much or how little of a single count may be stricken. Some have held that a paragraph may be stricken only if it fully alleges a complete cause of action, otherwise the proper vehicle to attack it is a request to revise. Others have held that portions of sentences may be stricken, see, e.g., Law Office of Norman Voog v. Stevens, Superior Court, judicial district of Danbury, Docket No. CV 02 0347140 (December 17, 2004, Shay, J.) ( 38 Conn. L. Rptr. 433) (holding that portions of a count may be stricken even if they do not purport to set forth an entire cause of action). The court in Stevens reasoned that the phrase "any portion" of Practice Book § 10-45 contemplates striking single sentences or portions thereof from a complaint since "[w]hen some of the allegations contained in a count are sufficient to set forth the cause of action, the court is not permitted to strike the entire count." (Internal quotation marks omitted.) Id., 434. Likewise, the court in Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV 04 0104110 (December 22, 2004, Silbert, J.) ( 38 Conn. L. Rptr. 439), opined that "[It is not the case] that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint, . . . the proper course for the court is to strike those allegations only and to order the defendants to file an amended apportionment complaint that omits the [insufficient] allegations. The legally cognizable allegations of the complaint thus remain intact, the invalid ones are stricken, confusion is avoided, and the case may proceed on its proper course." Id., 440. See also Doe v. Abrahante, Superior Court, judicial district of New Haven, Docket No. CV 97 040311 (April 28, 1998, Licari, J.) ( 22 Conn. L. Rptr. 65) (granting motion to strike as to negligent hiring but not as to negligent retention, both of which were contained within the same paragraph).
Other cases have held to the contrary, that only full paragraphs of a count may be stricken, and only when they attempt to set forth independent causes of action. These cases usually hold that a request to revise is the appropriate vehicle to address multiple causes of action within a single count. Nevertheless, the reasoning in Cook v. Stender, supra, Docket No. CV 04 0104110, is most persuasive, especially since the plaintiff has admitted that she has not alleged foreseeability as is required. Therefore, the motion is granted insofar as count two alleges "negligent hiring."
See, e.g., Cantoni v. Xerox Corp., Superior Court, judicial district of Hartford, Docket No. CV 98 0582705 (February 3, 1999, Fineberg, J.) ( 24 Conn. L. Rptr. 38), aff'd on other grounds, 251 Conn. 153, 740 A.2d 796 (1999); Zimmerman v. Connecticut College, Superior Court, judicial district of New London, Docket No. 544623 (July 2, 1998, Handy, J.); Geremia v. DeMartino, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059619 (December 11, 1998, Flynn, J.) ( 23 Conn. L. Rptr. 520).
B. Counts three, seven, eight, nine, ten, and twelve: Intentional infliction of emotional distress CT Page 15674
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Carroll v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).The defendant's only contention with respect to the intentional infliction of emotional distress counts is that none of the conduct complained of was extreme and outrageous. The plaintiff maintains that she has pleaded conduct sufficiently outrageous to support a claim for intentional infliction of emotional distress, arguing that only where reasonable minds could not disagree may the court decide whether alleged conduct is extreme and outrageous rather than sending it to a jury. She argues that sexually explicit comments have been held to constitute extreme and outrageous conduct in the workplace, as have false accusations of sexual harassment; furthermore, extreme and outrageous conduct may arise from abuse of a position that gives the actor actual or apparent authority over another or power to affect her interests.
"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 . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." Hartmann v. Gulf View Estates Homeowners Assn., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). "Liability [for intentional infliction of emotional distress] 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!" (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
Courts have recognized that emotional distress and anxiety are an unavoidable aspect of daily life, especially in the workplace context: "[I]t is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002). "Such individuals reasonably should expect to be subject to other vicissitudes of employment such as workplace gossip, rivalry, personality conflict and the like." Id. Whether conduct is extreme or outrageous is highly fact dependent and unique to each case. A review of the relevant appellate authority, however, reveals that a defendant's conduct must be quite egregious for there to be liability for intentional infliction of emotional distress. See, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003) (no extreme and outrageous conduct by defendant insurance company, which had refused to pay out on plaintiffs' homeowners policy after a fire destroyed their home when defendant determined, upon investigation, that the fire was caused by arson, even though plaintiff produced experts testifying that defendant's investigation was cursory and inadequate, and all evidence pointed to accident as opposed to arson, in addition to racially discriminatory comments by insurance investigators); Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), (no extreme and outrageous conduct where plaintiff teacher's competency as teacher was questioned, she was put on leave of absence and required to undergo various psychological examinations before she was forced into an agreement whereby she would resign, and that her supervisors made condescending remarks to her in front of her colleagues, called her daughter at home to express concerns about the plaintiff, and had the police escort her out of the building to her car); Barber v. Mulrooney, 61 Conn.App. 108, 762 A.2d 520 (2000) (plaintiff ended a voluntary sexual relationship with her supervisor, who continued to pursue her with sexual propositions and unwanted contact; court found for plaintiff on sexual harassment count though not intentional infliction count because conduct not extreme and outrageous).
1. Counts seven, ten and twelve as to Randall Johnson, Paul DiCono and John Strathy
The plaintiff argues that the Superior Court has held that false accusations of misconduct made to a person's employer are extreme and outrageous. The three cases cited, however, involve factual situations distinguishable from the present one. In Grant v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 99 0430454 (March 27, 2003, Licari, J.), although the court stated that "[a] jury could reasonably find that a false accusation that [the plaintiff] was using Yale property to have a liaison with a female friend during working hours transgresses the bounds of socially tolerable behavior . . ." this was with respect to the plaintiff's claim for negligent infliction of emotional distress; the intentional infliction count was stricken. Moreover, the criticism of the plaintiff here simply does not approach the level of aggravated moral turpitude and employment abuse this court found present in the accusations in that case. In Mauzy v. Robinson, Superior Court, judicial district of New Haven, Docket No. CV 01 0452658 (November 26, 2001, Thompson, J.), the plaintiff alleged that the defendant "maliciously made false accusations against him which resulted in him being arrested by the Branford Police . . . [The defendant was also] harassing her, visiting her place of employment and stating that `she'll talk with me when she hears from my attorney . . .' and that the plaintiff had repeatedly and on numerous occasions called her house in the early morning hours." Id. Accusations to the police leading to an arrest are substantially more egregious than claims of poor job performance or that the plaintiff was "utilizing her breasts in a sexually provocative manner." Finally, in Baricko v. Chesebrough-Pond's United States Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.T.R.), the court considered the issue of "whether false sexual harassment allegations made by a workplace supervisor for the purpose of discrediting an employee [rose] to the level of extreme and outrageous conduct." (Emphasis added.) Id. There, the plaintiff alleged that the supervisor had fabricated such charges which had not been made by any fellow employees at all.
According to the plaintiff's complaint, DiCono and Strathy complained that the plaintiff was "utilizing her breasts in a sexually provocative manner" and that she "had no concept of personal space"; moreover, they were not her supervisors but her peers. Courts have found that accusations more grievous than these do not rise to the level of extreme and outrageous conduct. See Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003) (defendant accusing plaintiff of embezzlement not extreme and outrageous); see also Kontos v. Laurel House, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001408 (January 17, 2007, Adams, J.) [ 42 Conn. L. Rptr. 709] (granting motion to strike counts alleging intentional infliction of emotional distress arising from, inter alia, defendant supervisor's falsely charging plaintiff with sexual harassment of a coworker); Elbert v. Connecticut Yankee Council, Inc., supra, Docket No. CV 01 0456879 (allegations that employer submitted false complaint of child abuse to DCF not sufficiently extreme and outrageous to support claim for intentional infliction of emotional distress). Johnson's comments are not specifically alleged, but as presented, even viewed in a light most favorable to the plaintiff, cannot be viewed as anything more than comments derogatory of her performance at work. This type of criticism as to all three of these defendants falls far short of the sort of conduct that "exceeds all bounds usually tolerated by decent society." Valentine v. LaBow, supra, 95 Conn.App. 448; see also Perodeau v. Hartford, supra, 259 Conn. 757 ("Individuals reasonably should expect to be subject to routine employment-related conduct, including . . . disciplinary or investigatory action arising from actual or alleged employee misconduct"). Therefore, the defendant's motion is granted as to counts seven, ten, and twelve.
But see Strode v. Hamden, Superior Court, Docket No. CV 99 0432459 ("[r]easonable minds could disagree on the issue of whether an employee's filing of a false accusation that he was assaulted by a coworker satisfies the extreme and outrageous conduct element of cause of action for intentional infliction of emotional distress"; Olivas v. DeVivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV99 0335908 (February 28, 2001, Hiller, J.) ("[t]he Plaintiff's allegations go beyond the fact that he was fired and include the circumstances surrounding the Defendant's accusations of theft and forgery. Reading the complaint broadly . . . these allegations . . . could amount to extreme and outrageous conduct"). However, unlike either of these cases the alleged accusations here clearly do not rise to the level of claims of blatant criminal misconduct.
2. Count eight as to Sally Gill
"Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 211. "The courts appear to agree that mere insults or verbal taunts do not rise to the level of extreme and outrageous conduct even when they include obnoxious activity like threats, insults or taunts . . . Something more than mere verbal taunts are required." Lucuk v. Cook, Superior Court, judicial district of Ansonia-Milford, Docket No. CV95 0050210 (February 11, 1998, Corradino, J.) [ 21 Conn. L. Rptr. 377]. The plaintiff has pointed to cases suggesting that sexually explicit comments can rise to this level. See Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) ( 32 Conn. L. Rptr. 72); Majewski v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 03 0406893 (May 23, 2006, Arnold, J.); Miller v. Edward Jones Co., 355 F.Sup.2d 629 (D.Conn. 2005). In these cases, however, the plaintiff had also alleged additional or categorically different conduct distinguishing them from the present case.
In Leone, for example, the plaintiff had alleged sexual discrimination based on his sexual orientation in addition to sexually charged comments. Although the court noted that "certain other Connecticut Superior Court cases have found . . . sexually explicit comments to be extreme and outrageous conduct in the employment context"; it cited no authority for this proposition, and further research reveals none. In Majewski, the plaintiff teacher alleged persistent sexual advances from her principal, including sexual contact, and retaliation when she refused to acquiesce — and, in fact, the defendant's motion to strike was granted.
Research reveals no decisions having held that allegations of sexually explicit comments, by themselves, are sufficient to withstand a motion to strike. Indeed, sexually charged behavior worse than that alleged against Gill has been held insufficient in a number of cases; see, e.g., CT Page 15678 Morrissey v. Yale University, 268 Conn. 426, 844 A.2d 853 (2004) (defendant's failure to prevent or deal with comments by employee and her boyfriend about plaintiff's weight and failure to procreate because nobody would want to copulate with her held not extreme and outrageous; court also noted claims against employee and boyfriend, though not at issue, would probably not survive a motion to strike); Presley v. Pepperidge Farm, Inc., 356 F.Sup.2d 109 (D.Conn. 2005) (male supervisor telling female employee she had nice legs, that friendship with men at work could bring her financial gain, rubbing her hands and saying she `made him nervous' and telling her he wanted to have `threesome' with her and colleague not extreme and outrageous); Ericson v. Meriden, 113 F.Sup.2d 276 (D.Conn. 2000) (male coworker's viewing of videotape with sexual content while at work, comments made to female plaintiff while watching and retaliatory conduct against her when she reported him held not extreme and outrageous). While Gill's alleged conduct goes further than mere "bad manners," it does not rise to the level of outrageousness contemplated by Connecticut law. Therefore, the motion to strike is granted as to count eight.
3. Count nine as to Susan Sheehan
In intentional infliction of emotional distress claims, "the extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991), citing 1 Restatement (Second) Torts § 46, comment (e). "The extreme and outrageous character of the conduct may [also] arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." Mellaly v. Eastman Kodak Co., supra, 42 Conn.Sup. 20, citing 1 Restatement (Second) of Torts § 46 comment (1).
Such "position or relation" may be that of an employer or supervisor at work; see, e.g., Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV 03 0472301 (January 11, 2005, Corradino, J.) ( 38 Conn. L. Rptr. 533) (conduct by supervisor that was verbally abusive held to be extreme and outrageous); Anastasio v. Knights of Columbus, Superior Court, judicial district of New Haven, Docket No. CV 97 0396806 (May 21, 1998, Silbert, J.) (supervisor stated "that a superior should be the `enemy' of his subordinates," verbally abused plaintiff employee and took adverse actions against him without reason); Cucuel v. Fayed, Superior Court, judicial district of Fairfield, Docket No. CV 94 315420 (February 28, 1997, Levin, J.) (plaintiff's supervisors had enticed him away from his position as police officer and then terminated his employment); Watt v. Ford Consumer Finance Co., Superior Court, judicial district of Fairfield, Docket CV 95 323572 (July 31, 1996, Hauser, J.) (defaming a former employee could be extreme and outrageous, in part because, as his employer, defendant had `special relationship' with him).
Particularly relevant to the present case, where false claims of sexual harassment are alleged, is Zulawski v. Stancil, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 000203 (July 14, 2006, Hartmere, J.) [ 41 Conn. L. Rptr. 646], wherein the court denied a motion to strike an intentional infliction of emotional distress count because reasonable minds could differ as to whether the conduct of the defendant school principal, who suspended the plaintiff for five days for "sexually harassing" a group of boys without a chance to defend herself or with any evidence against her, was extreme and outrageous. See also Baricko v. ChesebroughPond's United States Co., supra, Docket No. CV 97 0395642 (defendant supervisor's alleged invention of sexual harassment allegations made by other employees against plaintiff could be considered extreme and outrageous).
The plaintiff has alleged that Sheehan failed to take action to prevent other employees from harassing her after promising to do so, subjected the plaintiff to a "screaming tirade" in connection with the false sexual harassment allegations, entered a charge of sexual harassment in the plaintiff's file after an investigation found the claims meritless, and of admonishing the plaintiff for flaunting her body even though she knew the plaintiff to be sensitive on that topic. While perhaps not overtly egregious, individually, these facts, viewed collectively and in a light favorable to the plaintiff, could lead reasonable minds to differ as to whether Sheehan's conduct was extreme and outrageous. Therefore, the defendant's motion is denied as to count nine.
4. Count three as to Yale-New Haven Hospital
Count three implicates the hospital on a theory of vicarious liability based on the conduct of its employees. Therefore, if any of the intentional infliction counts against individual employees survive the motion to strike, the third count must as well. Since count nine against Sheehan is still viable, the hospital remains subject to liability. The motion to strike is denied as to count three.
The court also notes that, although the plaintiff has not named Bornet or Potter as defendants, she argues that their actions subject the hospital to liability for intentional infliction of emotional distress as well. The court need not consider this claim at this time since Sheehan's potential liability is sufficient to implicate the hospital and warrants denial of the motion to strike.
CT Page 15680
C. Counts five, eleven, and thirteen: Defamation
The defendants finally assert that the plaintiff's defamation claims are deficient because the plaintiff has not alleged that she suffered pecuniary harm. Furthermore, they argue, the alleged defamatory statements were not published, were merely opinions rather than statements of fact, and the plaintiff has not laid out the defamatory statements with specificity as is required by Connecticut law. The plaintiff contends that she has alleged that the defendants made defamatory statements attacking her skill and integrity in the course of her profession or business, which constitutes defamation per se; therefore, she is not required to plead specific damages."A defamatory statement is defined as a communication that tends to harm the reputation of another [so] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
Defamation is "actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Moriarty v. Lippe, 162 Conn. 371, 384, 294 A.2d 326 (1972); see also Toroysyan v. Boebringer Ingleheim Pharmaceuticals, Inc., 234 Conn. 1, 35, 662 A.2d 89 (1995) ("[T]he defendant falsely had charged the plaintiff with improper conduct and lack of integrity in the performance of his professional duties and that the purpose of the defamatory statement had been to effectuate the plaintiff's discharge. The defamation, therefore, amounted to defamation per se").
As to the defendants' argument that the plaintiff has not alleged pecuniary harm, it is noted that she has alleged that the defamatory statements were directed towards her skill or integrity in her profession of nursing: specifically, Johnson's statements questioned her abilities as a nurse, and DiCono's and Strathy's impugned her integrity by suggesting sexual misconduct. See Matthew v. Kensington Square Apartments, Superior Court, judicial district of New Haven, Docket no. CV 02 0470739 (April 28, 2004, Devlin, J.) ( 36 Conn. L. Rptr. 904) (false oral statement that supervisor engaged in sexual harassment in the workplace actionable per se). Thus, the statements were defamatory per se, and she need not allege special damages. Lowe v. Shelton, 83 Conn.App. 750, 766, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).
In any event, the plaintiff has alleged that the defamatory statements caused her to lose her job, which is sufficient to satisfy the damages element of the claim.
The defendants also contend that the statements were not published. In Toroysyan v. Boehringer Ingleheim Pharmaceuticals, Inc., supra, 234 Conn. 1, the Supreme Court established what later became known as the "intracorporate publication doctrine." The court held that communication by one employee to another could constitute "publication" for the purposes of a defamation claim. Id., 28, following 3 Restatement (Second) of Torts § 577 (1) ("The communication within the scope of his employment by one agent to another agent of the same principal is a publication not only by the first agent but also by the principal and 2 this is true whether the principal is an individual, a partnership or a corporation"). In Toroysyan, the alleged defamatory statement was communicated among the plaintiff's supervisors and entered in his personnel file. See also Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 849, 863 A.2d 735 (2004) (defamatory statements communicated by plaintiff's supervisor to two other employees who worked at the company's corporate headquarters, and the director of human relations; this sufficient to satisfy publication requirement under intracorporate publication doctrine). In the present case, Johnson's letter was obtained from the hospital's personnel files and was known to at least several of the plaintiff's supervisors; DiCono's and Strathy's allegations of sexual harassment were relayed to the plaintiff's immediate supervisor and went through the hospital's grievance procedures. These communications establish publication for the purposes of the defamation claim.
The defendants next argue that their statements were opinions and not facts. The latter are the proper subject of a defamation action; the former are not. See Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111 n. 4, 438 A.2d 1317 (1982) ("As a general rule, the defense of truth applies to statements of fact . . . while the privilege of fair comment applies to expressions of opinion"). "A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Citations omitted; internal quotation marks omitted.) Id., 111. Ultimately, "[t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." Id., 112. "Where the court cannot reasonably characterize the allegedly libelous words as either fact or opinion because, for example, innuendo is present, this becomes an issue of fact for the jury . . ." Id., 112 n. 5.
In the present case, the court cannot, as alleged, determine whether the defamatory statements were facts or opinions because the plaintiff has not specified exactly what the objectionable statements are. This is the basis for the defendant's third attack on the defamation counts; they argue that under Connecticut's fact-pleading paradigm, to state a claim for defamation, the false statements must be expressly stated in the complaint. "A complaint alleging defamation must specifically state the alleged libelous statement." Lyons v. Nichols, Superior Court, judicial district of Fairfield, Docket No. CV 94 0312019 (May 13, 1999, Stevens, J.), aff'd, 63 Conn.App. 761, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001); see also 2500 SS Limited Partnership v. White, Superior Court, judicial district of Fairfield, Docket No. 328934 (August 19, 1996, Levin, J.) ( 17 Conn. L. Rptr. 449) (nonsuiting plaintiff for failure to comply with court's order to specifically state defamatory statements in complaint). In White, the court recognized that there was no appellate authority in Connecticut with respect to whether a plaintiff claiming defamation must lay out the specific statements in the complaint, but was persuaded by the rationale behind the federal rules of civil procedure, which do have such a requirement. In essence, the specificity requirement is geared towards "appris[ing] the defendant of the claims against him and . . . permit[ting] the defendant to file a responsive pleading;" id., 451; moreover, "[i]n defamation actions especially, words count, and a premium is placed on the precise words employed . . . [R]equiring the plaintiff to specifically plead the precise defamation facilitates the use and disposition of pretrial dispositive motions and a determination of whether the alleged defamation is privileged." Id., 450-51.
The present plaintiff's complaint sets forth the gravamen of the allegedly defamatory statements, but as presented, the court cannot determine whether the statements were facts or opinions absent allegations of the precise statements made. Therefore, the motion to strike is granted as to counts five, eleven and thirteen.