Opinion
No. NNH CV09 5029826 S
July 11, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #122
I FACTS
The plaintiff, Loren Jacobson, commenced the present action by service of process against the defendants, International Tours and Events, LLC (International), and its chief executive officer and president, Charles Rosenay (Rosenay), on June 5, 2009. The seven-count complaint alleges the following facts. The plaintiff started her employment with International in July 2007. Throughout her employment, she was subjected to sexually oriented comments on a daily basis from Rosenay and other male employees of his businesses, even though she complained to Rosenay. The plaintiff was also subject to almost daily sexually oriented physical contact initiated by Rosenay and other male employees of his businesses. Other female employees of International and certain of Rosenay's other businesses were also sexually harassed by Rosenay and certain of his male employees. The plaintiff was forced to resign, due to the extremity of the hostile work environment and the sexual harassment that she encountered.
The seven counts of the complaint are as follows. Counts one and two are against International and Rosenay, respectively, and both sound in violation of the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-60 et seq. (the Act). Counts three and four are against International and Rosenay, respectively, and both sound in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Counts five and six are against International and Rosenay, respectively, and both sound in intentional infliction of emotional distress. Finally, count seven is against Rosenay and sounds in assault.
The present action was removed to federal court by the defendants on June 30, 2009. The defendants filed the present motion in federal court on June 1, 2010. The plaintiff in turn filed her opposition to the motion on June 23, 2010. The defendants then filed a reply memorandum on July 6, 2010. In its December 15, 2010 decision, the court, Hall, J., granted the motion with respect to counts three and four, on the ground that Title VII did not apply to International and Rosenay due to the number of International's employees; declined to exercise supplemental jurisdiction over the remaining counts of the complaint; and remanded them back to state court. The plaintiff subsequently filed its opposition with the present court on March 24, 2011. The court heard the matter at short calendar on May 2, 2011. During oral argument, the court asked the parties to provide supplemental memoranda citing decisions in which cases had been remanded back to state court after they had been removed to federal court. The defendants thereafter filed a supplemental memorandum on May 11, 2011.
II DISCUSSION A The Legal Standard
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and therefore, cannot refute evidence properly presented to the court . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
B The Parties' Arguments
The defendants move for summary judgment on the following grounds. They move for summary judgment on counts one and two on the ground that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact that International does not qualify as an "employer" under the Act, since it had less than three employees at all times relevant to the present action. In the alternative, there is no genuine issue of material fact about whether the plaintiff's work environment could objectively or subjectively be viewed as hostile. This is partly because the plaintiff herself partook in sexually oriented conversations and used profanity and sexually oriented language during her employment with International. The defendants also argue that they are entitled to a judgment as a matter of law on counts one and two because they may raise the defense that they exercised reasonable care in preventing and correcting any sexual harassment and that the plaintiff, in contrast, did not act reasonably when she waited several months before she made her first complaint. The defendants move for summary judgment on counts five and six because the conduct upon which the plaintiff bases her intentional infliction of emotional distress causes of action is not "extreme and outrageous" as a matter of law. Finally, the defendants move for summary judgment on count seven on the ground that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether Rosenay ever performed an overt act evidencing a corporeal threat to the plaintiff. The defendants' reply memorandum repeats and elaborates upon these arguments.
The plaintiff opposes the present motion for the following reasons. First, a jury would be compelled to conclude that Rosenay assaulted the plaintiff if it credited her testimony. Second, the defendants may not rely upon the plaintiff's conduct to defend themselves in the present action. Third, the evidence, when viewed in the light most favorable to the plaintiff, is sufficient for the plaintiff to make a prima facie case for her hostile work environment causes of action. Finally, the conduct that the plaintiff has put at issue qualifies as "extreme and outrageous" for the purpose of supporting the plaintiff's intentional infliction of emotional distress cause of action.
C Additional Facts
The following facts are not in dispute. Rosenay and Daniel Levine were members of International. Rosenay was also International's president. Melissa Rosenay was Rosenay's wife and handled human resources matters for International. The plaintiff was employed by International as an office manager. She shared an office with Justin Rehm, who was not employed by International. Rehm was instead employed by Boppers DJs, LLC (Boppers). The plaintiff was told that International shared office space with Boppers.
"Under local federal court rule 56(a)(1), the movant for summary judgment must file a statement which sets forth material facts supported by the evidence. The opponent is required to respond by admitting or denying the facts. The facts set forth herein are those admitted by the plaintiff in district court . . . [S]ee Provencher v. Enfield, 283 Conn. 772, 792 (2007) (factual allegations in pleadings are considered judicial admissions); Edmands v. CUNO, Inc., 277 Conn. 425, 454, 892 A.2d 938 (2006) (an admission in a pleading dispenses with proof) . . ." Palmer v. New Britain General Hospital, Superior Court, judicial district of New Haven, Docket No. CV 05 4011575 (October 15, 2009, Keegan, J.).
The plaintiff first complained of inappropriate verbal and physical conduct at International on March 10, 2008, when she complained to Rosenay of Rehm's conduct. Rosenay spoke to Rehm within one or two days of the plaintiff's complaint. On March 25, 2008 and March 28, 2008, the plaintiff sent e-mails to Melissa Rosenay in which she complained of Rehm and Rosenay's conduct. Melissa Rosenay investigated the plaintiff's complaints and concluded that they could not be substantiated. From March 10, 2008 to May 19, 2008, the plaintiff made no complaints of inappropriate physical conduct and one complaint of inappropriate verbal conduct, involving a sexually oriented comment made by Rehm that was not directed towards her. The plaintiff resigned from her position at International on May 19, 2008.
The plaintiff alleges that the following incidents are the factual basis for the present action. Pl.'s Local Rule 56 Statement; Def.'s Ex. K. In October and December 2007, Levine discussed his sexual history with the plaintiff and spoke of her breasts on multiple occasions. In November and December 2007 and February 2008, Rosenay made sexually suggestive comments to the plaintiff and in the plaintiff's presence, viewed and discussed a pornographic magazine with several employees, told a fifteen-year-old employee that she was "hot" and discussed his genitalia with Rehm. In March 2008, Rosenay told the plaintiff that he would be okay with her going out with a DJ from Boppers, if she wanted to do so. The plaintiff took issue with Rosenay's statement and expressed her feelings to Rosenay verbally and through e-mail. Additionally, Rosenay slapped the plaintiff's buttocks with paperwork and kissed her on the neck between July and October 2007; rested his chin on her head and put his hand under her sweater in December 2007; pulled her hair, tickled her cheeks and put his hands around her neck in January 2008; and kissed her in March 2008. In February and March 2008, Rehm told the plaintiff to vacuum the office rug because she was "the only one in the room with a vagina"; made derogatory and sexually explicit comments to the plaintiff and in the plaintiff's presence; and discussed his genitalia with Rosenay. Additionally, between July and October 2007, Rehm pressed the front of his body against the back of the plaintiff's body.
The defendants deny but nonetheless refer to the plaintiff's allegations in order to argue that they are entitled to summary judgment regardless of whether or not the plaintiff's allegations are true.
D Counts One and Two: Violation of the Connecticut Fair Employment Practices Act
In counts one and two, the plaintiff alleges in relevant part: "The sexual harassment and sexually hostile working environment to which the plaintiff was subjected were so extreme that eventually the plaintiff was forced to resign from the company." Pl.'s Complaint ¶ 9. The court therefore reads counts one and two to allege that the defendants violated the act because they constructively discharged and sexually harassed the plaintiff by creating a hostile work environment. General Statutes § 46a-60(a)(8) provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent . . . to harass any employee . . . on the basis of sex. `Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." General Statutes § 46a-51(10) defines the term "employer" in relevant part as "any person or employer with three or more persons in his employ . . ." See also Thibodeau v. Design One Group Architects, LLC, 260 Conn. 691, 802 A.2d 731 (2002).
A plaintiff may allege that the creation of a hostile work environment in violation of the Act caused her constructive discharge. See, e.g., Hoydic v. Genesco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 075003291 (April 10, 2008, Levin, J.). "Constructive discharge occurs when an employer renders an employee's working conditions so difficult and intolerable that a reasonable person would feel forced to resign . . . A claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." (Citations omitted; internal quotation marks omitted.) Seery v. Yale-New Haven Hospital, 17 Conn.App. 532, 540, 554 A.2d 757 (1989).
"Subdivisions (1) and (8) of § 46a-60(a) prohibit an employer or its agents from discharging, discriminating against or harassing an employee on the basis of sex." Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998). "To establish a claim of hostile work environment, the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ."
"A plaintiff pursuing a hostile work environment claim must establish a basis, rooted in common law agency principles, on which to hold an employer liable for the conduct of its employees . . . The law is clear that an employer may not stand by and allow an employee to be subjected to a course of [sexual] harassment by co-workers . . . Accordingly, an employer will be held liable for harassment perpetrated by employees if the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it . . . The standard is essentially a negligence one . . . and reasonableness . . . depends among other things on the gravity of the harassment alleged . . . the severity and persistence of the harassment . . . and the effectiveness of any initial remedial steps . . . and the nature of the work environment . . . and the resources available to the employer . . . Whether an employer has fulfilled its responsibility [to take reasonable steps to remedy a discriminatory work environment] is to be determined upon the facts in each case." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 166-68.
"`In [ Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)] and [ Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)], [the courts held] that an employer is strictly liable for supervisor harassment that culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment . . . But when no tangible employment action is taken . . . the employer may raise [a special] defense to liability, subject to proof by a preponderance of the evidence: The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.' Hercun v. Miller Auto, Superior Court, judicial district of New Haven, Docket No. CV 03 0193641 (October 19, 2005, Wilson, J.); Esposita v. Bargain News, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 05 5002247 (September 5, 2006, Rodriguez, J.) (same); see also Brittell v. Dept. of Correction, [ supra, 247 Conn. 166 n. 30] (same); Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) (`And under the second element, proof that an employee has unreasonably failed to use the employer's complaint procedure normally suffices to satisfy the employer's burden')." Samuels v. Dept. of Public Health, Superior Court, judicial district of New Haven, Docket No. CV 10 6011434 (December 1, 2010, Wilson, J.).
The court begins by addressing the issue of whether International was an "employer" under the Act at all times relevant to the present action. Again, the Act provides in relevant part that an "employer" is "any person or employer with three or more persons in such person's or employer's employ . . ." General Statutes § 46a-51(10). It also provides that an "employee" is "any person employed by an employer but shall not include any individual employed by such individual's parents, spouse or child, or in the domestic service of any person . . ." General Statutes § 46a-51(9). The defendants argue that International had no more than two employees at all times relevant to the present action, because Rosenay, his wife and Levine do not qualify as "employees" under the Act. The individuals whom the plaintiff believes were employees of International at all times relevant to the present action are herself, the Rosenays, Levine and a woman named Kelley Adinolfi. Def.'s Ex. B at 45. The issue is whether Rosenay and Levine qualify as "employees" under the Act, because Melissa Rosenay was an "individual employed by such individual's spouse" and therefore does not qualify as an "employee" under the Act. The defendants argue that Rosenay and Levine do not qualify as "employees" under the Act because they are members of International. Rosenay is also International's president. In support of their argument, the defendants cite to two decisions from other jurisdictions. They have not cited, however, and the court has not found, any Connecticut state or federal court decisions that support their proposition.
In Rentz v. Cartwright Ltd. Partnership, Superior Court, judicial district of Windham, Docket No. CV 04 0072318 (November 23, 2004, Foley, J.) ( 38 Conn. L. Rptr. 338), the court was presented with the issue of whether the plaintiff could allege that the individual co-defendant aided and abetted the corporate co-defendant in its violation of the Act (General Statutes § 46a-60(a)(5)), where the individual co-defendant was the owner and president of the corporate co-defendant. The court concluded that the plaintiff could do so and elaborated: "It is a well-established principle of corporate law that the `employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.' Cedric Kushner Promotions, LTD. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001); Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) (basic tenet of American corporate law is that corporation and its shareholders are distinct entities); 18 Am.Jur.2d Corporations § 44 (2004) (corporate owner/employee, who is natural person, is distinct from corporation).
"General Statutes § 33-602(19), the definitions provision of the Connecticut Business Corporation Act, defines a `person,' inter alia, as an individual and an entity. Section 33-602(11) includes corporate officers within the definition of `employee.' Positions within a corporation `may be considered to be held by "officers" and not be mere employees — such as president, vice president, or certain managers.' 18B Am.Jur.2d, Corporations § 1169 (2004). In § 46a-51(9) of the [Act], `employee' is defined as `any person employed by an employer' excluding employment by an individual's parent, spouse or child. In § 46a-51(14), a `person' is defined as `one or more individuals, partnerships, associations, corporations, limited liability companies, [and] legal representatives . . .' In light of the plain language of the statute and the basic tenets of corporate law, this court finds that Cartwright, the limited partnership and the corporation are persons as defined by § 46a-51(14), and further, Cartwright is an employee of the limited partnership and/or corporation. It can, therefore, be reasonably deduced that the limited partnership and/or the corporation is Cartwright's employer." Rentz v. Cartwright Ltd. Partnership, supra, 38 Conn. L. Rptr. 340-41.
The court in the present action is persuaded by the Rentz court's approach to the issue of whether an officer and/or owner of a business entity may be considered an "employee" under the Act. The court also notes that the record is unclear about the exact nature of Rosenay and Levine's involvement with International at all times relevant to the present action, thus creating genuine issues of material fact about whether they qualify as "employees" under the Act. Given the persuasiveness of the Rentz court's approach, along with the existence of factual issues and the lack of authority for the defendants' proposition, the court concludes that the defendants are not entitled to a judgment as a matter of law on the basis that International was not an "employer" under the Act at all times relevant to the present action.
The court next addresses the issue of whether the defendants may avail themselves of the affirmative defense provided by Ellerth and Faragher, because the plaintiff has not alleged that the defendants' sexual harassment resulted in a tangible employment action taken against her. In Esposita v. Bargain News, LLC, supra, Superior Court, Docket No. CV 05 5002247, the court was faced with the same issue in the same procedural posture. It denied the defendant's motion for summary judgment for the reason that the defendant failed to establish the second element of the defense. It held that "it is up to the moving party to prove that there is no genuine issue of material fact that the plaintiff's inaction was unreasonable." Id. The defendant failed to do so where it relied upon the fact that the plaintiff never filed a formal complaint, because there was evidence that the plaintiff had previously made informal complaints about isolated incidents, to no avail.
In the present action, the plaintiff first complained of being sexually harassed in March 2008, even though she alleges that she was first sexually harassed in July 2007. Def.'s Ex. B at 263; Pl.'s Complaint ¶¶ 6, 7. The defendants also direct the court's attention to the plaintiff's admission that she did not feel as if she "could not come to [Melissa Rosenay] if there was an issue to discuss." Def.'s Ex. B at 211. These two facts, without more, do not sufficiently prove that the plaintiff's inaction was unreasonable. There may have been extenuating circumstances that occasioned the plaintiff's delay, despite her expressed lack of discomfort with Melissa Rosenay. The defendants bear the burden of disproving the existence and/or the significance of such circumstances. Because they have not met their burden, they have not established the applicability of the affirmative defense and therefore may not rely upon it in moving for summary judgment.
The court now considers whether the plaintiff's work environment may be viewed as objectively and subjectively offensive, based on the evidence submitted by the parties. The defendants argue that the plaintiff's work environment may not be viewed as objectively offensive because the conduct upon which she bases her sexual harassment causes of action was not severe or pervasive enough to have altered the conditions of her employment. They likewise argue that the plaintiff's work environment may not be viewed as subjectively offensive because the plaintiff herself engaged in sexually oriented communications and used profanity and sexually oriented language, during work hours and with work resources. They cite only to federal decisions in support of their propositions.
The defendants specify the following acts and communications in their Local Rule 56(a)(1) Statement. To the extent the plaintiff denies these acts and communications, she does so to dispute the manner in which the defendants have presented them, not to deny their occurrence. The plaintiff used profanity. She told her co-workers and officemates about the sexually oriented behavior and requests she encountered during her previous work experience in the entertainment industry. She spoke of her breast augmentation. She showed a tattoo on her lower abdomen to Rehm. She told Rehm that she earned extra money by cutting hair, sometimes while wearing lingerie, and, once, by giving a body massage. She wrote and disseminated communications containing profanity and/or sexually oriented language on the Internet and through e-mail, during her work day and with her work computer.
Despite the authority to which the defendants cite, their reliance upon evidence of the plaintiff's conduct to mitigate the subjective offensiveness of the defendants' conduct is still subject to § 4-3 of the Connecticut Code of Evidence, which provides in relevant part: "Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury . . ."
Although these decisions are factually and legally applicable to the present motion, they are not binding upon the court and/or dispositive of the issues before it. "`In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60.' Brittell v. Dept. of Correction, [ supra, 247 Conn. 164]. `Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject.' (Internal quotation marks omitted.) State v. Commission on Human Rights Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). `Consequently, on occasion, we have interpreted our statutes even more broadly than their federal counterparts, to provide greater protections to our citizens, especially in the area of civil rights.' Commission on Human Rights Opportunities v. Savin Rock Condominium Ass'n., Inc., 273 Conn. 373, 386 n. 11, 870 A.2d 457 (2005)." Slowik v. Morgan Stanley Co., Inc., Superior Court, judicial district of New London, Docket No. 4003860 (August 15, 2006, Hurley, J.T.R.).
"It is often difficult to assess the sufficiency of facts underlying a hostile-work-environment claim on summary judgment." (Internal quotation marks omitted.) Regan v. Wesleyan University, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002808 (September 8, 2009, Bear, J.). The present action is no exception. Despite the defendants' evidentiary submissions and legal arguments, genuine issues of material fact remain that warrant the denial of the present motion. See Rosado v. Unger Enterprises, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5019642 (June 3, 2011, Gilardi, J.T.R.). The court cannot, for example, discern from the record how the defendants' alleged conduct affected the conditions of the plaintiff's work environment, such that it may address whether the defendants' alleged conduct was "sufficiently severe or pervasive." Genuine issues of material fact likewise remain about whether the plaintiff perceived the defendants' conduct to be offensive, even though the defendants have put the plaintiff's verbal conduct at issue, because the plaintiff alleges that the defendants' sexual harassment was both physical and verbal in nature.
The court's analysis here in no way constitutes its acceptance of the defendants' argument that the plaintiff's alleged verbal conduct precludes her from claiming that the defendants' alleged verbal conduct was offensive. Rather, the court's analysis here only serves to establish that the defendants' argument is an insufficient basis for them to demonstrate that there is no genuine issue of material fact and that they are therefore entitled to a judgment as a matter of law.
Furthermore, the present motion does not address the plaintiff's allegation that she was constructively discharged from her position at International due to the defendants' conduct, in violation of the Act. Pl.'s Complaint ¶ 9; Pl.'s Local Rule 56 Statement ¶¶ 40, 43. A defendant who files a motion for summary judgment bears the burden of "negat[ing] each claim as framed by the complaint. It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850-51, 939 A.2d 1249 (2008). In Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 4007847 (January 31, 2008, Ripley, J.T.R.), the court denied a motion for summary judgment on a count sounding in gender discrimination, retaliation and sexual harassment in violation of the Act, where the motion did not address the retaliation claim contained in the count. The court in the present action likewise concludes that the defendants' failure to address the constructive discharge claim contained in counts one and two is tantamount to their failure to meet their burden on summary judgment with respect to these counts.
For the foregoing reasons, the court denies the defendants' motion for summary judgment on counts one and two of the plaintiff's complaint.
Because the court denies the present motion on counts one and two, it need not respond to the defendants' argument that they are entitled to a judgment as a matter of law because, inter alia, there is no genuine issue of material fact about whether Rehm's conduct can be imputed to them, since they provided a reasonable means for the plaintiff to complain about such conduct. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (employer not liable for harassment by individual who is not claimant's supervisor unless "`the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it'"); Brittell v. Dept. of Correction, supra, 247 Conn. 168 (same). To accept the defendants' argument would be to grant the present motion only on the parts of counts one and two that are based upon Rehm's conduct. "There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." (Internal quotation marks omitted.) Pray v. Crystal Mall, LLC, Superior Court, judicial district of New London, Docket No. CV 07 5002405 (December 10, 2009, Peck J.). The court sees no reason to deviate from the majority view in the present action and therefore declines to do so.
E Counts Five and Six: Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [the 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 a 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." (Internal quotations marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). "All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2002).
"[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 . . . 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 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." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"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!'" Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004). "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." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991).
"In the employment context, `[s]imple employer mistreatment, in and of itself, is insufficient to establish extreme and outrageous conduct.' Stepney v. Devereaux Foundation, Superior Court, judicial district of Litchfield, Docket No. 0065885 (November 1, 1995, Pickett, J.). `Employees often find the conditions of their employment to be unpleasant and even unjustifiable, but there is a distinction between the ordinary indignities of the workplace and truly atrocious conduct.' (Emphasis in original; internal quotation marks omitted.) Rizzo v. New Haven Register, Superior Court, judicial district of New Haven, Docket No. CV 02467267 (October 7, 2005, Martin, J.); see also Nelson v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 01 0455318 (April 5, 2005, Blue, J.) ( 39 Conn. L. Rptr. 69)." Bickford v. Phoenix Life Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 04 4001177 (May 3, 2007, Stengel, J.). "In the workplace context, the threshold [for extreme and outrageous conduct] is even higher: [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." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc., Superior Court, judicial district of New Haven, Docket No. CV 106012901 (April 28, 2011, Burke, J.). "Although conduct alleged to be sexual harassment and/or discrimination on the basis of a plaintiff's protected status often gives rise to a claim of IIED, the coexistence of the two claims does not establish that sexual harassment and/or discrimination is per se extreme and outrageous." Sangan v. Yale University, Case No. 3:06cv587 (D.Conn. September 15, 2006).
In Majewski v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 03 0406893 (January 20, 2005, Arnold, J.), the plaintiff alleged that the defendant hugged and kissed her on multiple occasions, initiated sexually oriented conversations with her, made romantic and/or sexual advances towards her and took adverse employment actions against her when she responded negatively. The court struck the count of the plaintiff's complaint sounding in intentional infliction of emotional distress on the ground that these allegations were legally insufficient to state cognizably "extreme and outrageous" conduct. In coming to its conclusion, the court noted "the decisions of the superior courts where alleged sexual conduct, sexual contact and unwanted touching were determined not to be `extreme and outrageous.' See Daigenault v. Consolidated Controls, Superior Court, judicial district of Danbury, Docket No. CV 99 0334518 (June 11, 2002, Doherty, J.) (unwanted shoulder massage and hugs); Gur v. Nemeth-Martin Personnel Consulting, Superior Court, judicial district of Danbury, Docket No. CV 98 0331188 (March 20, 2001, Adams, J.) (the use of double entendres, word play, jokes, conversations and gestures in sexual context; viewing pornography within the view of other workers; single incident of graphic verbal reference to a homosexual act and a women's sexual act; single incident of sexually explicit word)." Majewski v. Bridgeport Board of Education, supra, Superior Court, Docket No. CV 03 0406893.
The court then noted decisions in which courts had concluded that allegations of sexually oriented conduct and language were legally sufficient to state intentional infliction of emotional distress causes of action. It determined: "[I]n those cases the acts relating to sexual conduct were much more continuous and constant . . . 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) (constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff's computer, and insulting comments on his sexual preference); Lin v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 96 0384551 (August 25, 1998, Hartmere, J.) (supervisors subjected employee to daily acts of sexual assault and battery, threatening statements and termination after employee reported this conduct)." Majewski v. Bridgeport Board of Education, supra, Superior Court, Docket No. CV 03 0406893.
The court in the present action agrees with the defendants that the conduct upon which the plaintiff bases counts five and six is neither extreme nor outrageous as a matter of law. Again, the conduct upon which the plaintiff bases counts five and six includes eight instances of physical contact that she found objectionable and the use of profanity and sexually oriented language in her presence, some of which was not directed towards her. The court concludes that the evidence before it, even when viewed in the light most favorable to the plaintiff, does not demonstrate that the defendants engaged in "extreme and outrageous" conduct, such that they may now be found liable for intentionally causing the plaintiff's severe emotional distress. "These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the precedents to which we referred previously." Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000). The defendants' alleged conduct, however offensive, rude and/or unprofessional it may be have been, cannot reasonably be characterized as "go[ing] beyond all possible bounds of decency," "atrocious" and "utterly intolerable in a civilized community." See, e.g., Gillians v. Vivanco-Small, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 5000253 (March 2, 2010, Tierney, J.T.R.) (citing cases in which courts have and have not characterized workplace conduct as "extreme and outrageous"). For the foregoing reasons, the court grants the defendants' motion for summary judgment on counts five and six of the plaintiff's complaint.
F Count Seven: Assault
"Relying on section 21 of the Restatement (Second) of Torts, the Appellate Court has defined a `civil assault' as `the intentional causing of imminent apprehension of harmful or offensive contact in another.' Dewitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594, 501 A.2d 768 (1985). 1 Restatement (Second) of Torts, section 21 (1965). In order to be held liable under section 21 `it is necessary that the actor intend to inflict a harmful or offensive bodily contact upon the other or a third person or put him in apprehension of such contact. Unless he acts with such intent, the actor is not liable for an assault . . .' Id., comment f to section 21. Although no actual contact is required, the action must be of `such a nature as to excite an apprehension of battery' and that apprehension `must be one which would be normally aroused in the mind of a reasonable person.' W. Prosser W. Keeton, Torts, section 10, pp. 43-44 (5th ed. 1984). An assault `cannot be accomplished by words alone. There must be an overt act evidencing some corpor[e]al threat.' D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts, section 6, p. 8 (3rd ed. 1991)." (Internal quotation marks omitted.) Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06 4022391 (November 28, 2006, Robinson, J.). "An assault has been defined as any attempt with force or violence to do corporeal offense to another, coupled with the present apparent ability to complete that act. An assault is sometimes referred to as an inchoate battery. Assault does not require a touching, but merely a threat or gesture." Stewart v. Kapustinski, Superior Court, judicial district of New Britain, Docket No. CV 06 5001200 (February 25, 2008, Trombley, J.).
The court grants the present motion with respect to count seven. As the defendants argue and demonstrate in their pleadings, the evidence, even when viewed in the light most favorable to the plaintiff, is wholly devoid of any express or implied reference to an overt act performed by Rosenay that evidences an attempt to intentionally cause imminent apprehension of harmful or offensive contact in the plaintiff. The acts upon which the plaintiff bases her assault cause of action are instances of offensive contact, not attempts to cause the plaintiff to apprehend offensive contact. The defendants have therefore met their initial burden on summary judgment. The plaintiff, however, has not done likewise. In her memorandum, the plaintiff simply enumerates the alleged acts upon which she bases her assault cause of action and states: "Unquestionably, if the jury credits the plaintiff's testimony, defendant Rosenay assaulted the plaintiff many times." She cannot establish a genuine issue of material fact with mere factual and legal assertions; she must also submit evidence to support such assertions. Because she has not done so, and because there is no genuine issue of material fact on the record about whether Rosenay ever performed an overt act that evidences an attempt to intentionally cause imminent apprehension of harmful or offensive contact in the plaintiff, the defendants are entitled to a judgment as a matter of law on count seven.
III CONCLUSION
For the foregoing reasons, the court grants the defendants' motion for summary judgment on counts five through seven of the plaintiff's complaint and denies the motion with respect to counts one and two.