Opinion
No. CV01 0454400 S
May 12, 2003
MEMORANDUM OF DECISION MOTION TO STRIKE
The defendant has filed a motion to strike the second, third and fourth counts of the plaintiff's revised complaint dated July 24, 2002. The basis for the motion to strike is that the second, third and fourth counts are legally insufficient in that the plaintiff fails to make appropriate claims through which relief can be granted. Additionally, it is argued that the fourth count is barred by the applicable 90-day statute of limitations contained in General Statutes § 31-51m (c).
In the plaintiff's memorandum of law in opposition to the motion to strike, the plaintiff has agreed that the motion to strike the second and fourth counts of the Revised Complaint may be granted by the court. The first count of the Revised Complaint alleges a breach of the express contract related to the plaintiff's assignment to FreshNet and her subsequent return to the American Payment Systems, Inc. The motion to strike is not directed to the first count. The third count repeats the allegations of the first count and claims that said alleged conduct of the defendant constitutes negligent infliction of emotional distress. The plaintiff opposes the motion to strike the third count, arguing that the plaintiff has validly stated a claim for the negligent infliction of emotional distress.
By way of background to this matter, the plaintiff's action was commenced by writ, summons and complaint dated August 9, 2001, bearing a return date of September 18, 2001. In the revised complaint the plaintiff alleges that she had a working relationship with various subsidiaries or companies she claims are associated with the defendant. Plaintiff alleges she was assigned to work at FreshNet, Inc., at the time that she was working for American Payment Systems. She worked for FreshNet from January 11, 1999 until July 2, 1999 when she returned to American Payment Systems. She claims that at the time there was a contract between American and each employee assigned to FreshNet, which essentially indicated that upon termination of that assignment, the employee could return to American. However, if their prior position at American or a similar position was not available, the employee could take a lesser position, but they would retain their present pay level and benefits. Once a position became available that was comparable to the employee's former position at American, the employee could apply for the position, and if accepted, they would move into that position. The employee could then retain their current level of pay or receive the salary of the new position, whichever was higher. However, if a position was offered which the company deemed to be comparable to the employee's former position and the employee refused to accept it, the employee's rate of pay would be adjusted to the rate of pay at their current lower level.
The plaintiff claims that when she ended her assignment with FreshNet and returned to American, she was assigned to a position that was lower than the position she had held at American, prior to her assignment to FreshNet. The plaintiff further claims that the defendant failed to promote the plaintiff to comparable positions which were within her previous skill and experience levels. She claims that the defendant offered her a position as a "Implementation Coordinator," but the plaintiff deemed this to be a lower position that would not involve an increase in salary or benefits, and would require the plaintiff to travel fifty percent of the time. This position would also require the plaintiff to report through a chain of command that the defendant knew would be distasteful to the plaintiff. The defendant, however, claimed that this offer of a new position complied with its contractual obligations to the plaintiff. The plaintiff declined the position and was notified by the defendant that the defendant no longer considered itself bound by the contract.
The plaintiff also alleges that thereafter, the defendant informed the plaintiff and other female employees that they were expected to take turns sitting at American's front desk to greet arrivals and to act as a receptionist. The plaintiff claims that the defendant announced that it wanted the "image" projected by a female receptionist. When the plaintiff continued to protest all of the above mentioned conduct of the defendant, her employment was terminated on April 23, 2001.
I
"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).
II
For a discussion of whether the defendant's conduct, during the plaintiff's ongoing employment and subsequent termination from her employment by the defendant, constitutes sufficient grounds for a claim of negligent infliction of emotional distress, the court reviews Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002). Our Supreme Court in Perodeau v. Hartford, supra, held that a employer is not liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment. In reviewing negligent infliction of emotional distress in the employment context "[t]he dispositive issue . . . [is] whether the defendant's conduct during the termination process was sufficiently wrongful such 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." (Emphasis in original; internal quotation marks omitted.) Id., 751. "Accordingly, negligent 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 wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997); Selander v. Soundview Technology Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV02 0189753 (Feb. 10, 2003) (Adams, J.); 2003 Ct. Sup. 2085. Parsons v. United Technologies Corp., supra, 243 Conn. 66, stands for the proposition that a wrongful termination is not, in and of itself, a sufficient basis for a claim of negligent infliction of emotional distress. Perodeau v. Hartford, supra, 259 Conn. 750. 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., 751; Parsons v. United Technologies Corp., supra, 243 Conn. 88; 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).
It is clear that individuals in the context of an ongoing employment relationship reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, 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. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like.
Thus, it 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. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed.
Perodeau v. Hartford, supra, 259 Conn. 757.
When the employment relationship is ongoing, the Perodeau court found that public policy outweighs the interests of persons subject to such behavior in the workplace in being compensated for their emotional injuries. "The societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high." Id., 762. The court in Perodeau concluded, therefore, that an individual municipal employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, distinguished from conduct occurring in the termination of employment. Id., 762-63.
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must demonstrate that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in bodily harm or illness. Tang v. Bou-Fakhreddine, 75 Conn. App. 334, 340, 815 A.2d 1276 (2003); Shaw v. Shell Oil Products Co., 119 F. Sup.2d 62, 70 (D. Conn. 2000); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 341, 398 A.2d 1180 (1978). A review of the plaintiff's revised complaint leads this court to conclude that the allegations of the third count are insufficient on their face to make out a valid claim of negligent infliction of emotional distress during the ongoing employment relationship or the plaintiff's termination process.
Accordingly, the motion to strike the third count of the plaintiff's revised complaint is hereby granted.
THE COURT
By Arnold, J.