Opinion
No. CV06-5002349
August 22, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #126
FACTS
On August 15, 2006, the plaintiff, Mamie Parker, filed a five-count complaint against the defendant, The Price Chopper, Inc. The action arises out of the defendant's alleged wrongful termination of the plaintiff, a worker in its seafood department. The plaintiff filed this action after the Commission on Human Rights and Opportunities dismissed her claim. She has alleged the following causes of action: wrongful termination (count one); breach of implied contract (count two); intentional infliction of emotional distress (count three); negligent infliction of emotional distress (count four); and negligent retention of an employee (count five). On December 14, 2007, the defendant moved for summary judgment as to counts two, three, four and five. The defendant has submitted a memorandum of law in support of its motion, excerpts from the deposition of the plaintiff, a copy of its Store Associates' Handbook, a copy of the plaintiff's termination form and a copy of a complaint made by the plaintiff against a fellow employee, Luis Rivera. On May 27, 2008, the plaintiff filed a memorandum of law in opposition. The defendant filed a reply on May 27, 2008. The court heard argument at short calendar on May 27, 2008.
The first count was dismissed by the court, Upson, J., on March 5, 2007.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
I.
The defendant moves for summary judgment on count two on the ground that there is no genuine issue as to the breach of implied contract because the claim is based on an employee handbook that contained a disclaimer. The plaintiff argues that whether the terms of the employee manual give rise to an implied contract is a determination for the jury even when there is a disclaimer contained within the employee handbook.
Upon hiring the plaintiff, the defendant provided the plaintiff with an employee handbook with the following disclaimer: "Nothing contained in this handbook should be interpreted as a guarantee of continued employment, but rather that employment . . . is on an at-will basis." It further contained language that "[a]ny written or oral statement to the contrary . . . should not be relied upon . . ."
"There is a substantial body of Connecticut state and federal court decisions granting summary judgment in cases where the personnel manual at issue in a breach of contract claim contains an express disclaimer." Davis v. Liberty Mutual Ins., 218 F.Sup.2d 256 (D.Conn. 2002). See also, Aponte v. Alinabal, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4003670 (May 29, 2008, Levin, J.).
The defendant's motion for summary judgment on the second count is granted.
II.
The defendant moves for summary judgment on count three on the ground that the plaintiff failed to state a claim for intentional infliction of emotional distress against the defendant because the alleged facts do not constitute extreme and outrageous conduct as a matter of law. The plaintiff argues that, construing the evidence in the light most favorable to her, she has alleged facts sufficient to support her claim for intentional infliction of emotional distress.
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 . . . 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 . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.
(Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"[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).
In Appleton, the plaintiff, a schoolteacher, was publicly subjected to condescending comments by the school's principal, was escorted off school grounds by the police, was required to undergo two psychiatric evaluations at the request of the board of education and was forced to resign. Appleton v. Board of Education, supra, 254 Conn. 211. Nevertheless, the Supreme Court concluded that the defendant's actions did not constitute extreme and outrageous conduct for purposes of an intentional infliction of emotional distress claim and affirmed the trial court's decision granting summary judgment on this claim. Id., 214.
Also, in Carrol v. Allstate Insurance Co., 262 Conn. 433, 437, 815 A.2d 119 (2003), the plaintiff, the insured, brought an action against his insurer for the intentional infliction of emotional distress arising from the insurer's treatment of him during its investigation following the fire. The plaintiff presented evidence that the defendant conducted a poor investigation, its investigator's determination that the fire was arson was impulsive as well as that he may have been biased against the plaintiff, an African-American. Id., 441. The plaintiff testified that he overheard one of the inspectors say, "the son of a bitch is mine," upon learning that the homeowner was black; that he was harassed by the defendant's frequent requests for personal information and by the recurrent inspections of the house; and that the plaintiff felt like a criminal because of the offensive questions posed to him during the interviews insinuating criminal behavior. Id. Nonetheless, the court ruled that the conduct exhibited was not sufficient for reasonable minds to conclude that the defendant's conduct was extreme and outrageous. Id., 444.
In the present case, the plaintiff alleged that her coworker, Rivera, threatened her, cursed at her and directed racial slurs at her. The decisive question before the court is whether, viewing the evidence in the light most favorable to the plaintiff, a reasonable finder of fact could interpret the defendant's conduct towards the plaintiff to be extreme and outrageous behavior. The court finds that the defendant's conduct does not rise to the level of outrageousness. Yelling at someone and even belittling them in front of customers while certainly not appropriate, is not the sort of extreme and outrageous behavior that would lead an average member of the community to exclaim, "Outrageous!"
The defendant's motion for summary judgment on count three is granted.
III.
The defendant moves for summary judgment on count four, the negligent infliction of emotional distress claim, on the ground that there is no genuine issue of material fact because the distressing conduct, if any, did not arise out of the plaintiff's termination. The plaintiff counters that there is a genuine issue of material fact as to whether the alleged negligent infliction of emotional distress arose from her termination of employment. She argues that it is for a jury to decide if there was a causal link between her registration of a complaint and the reduction of her hours and her "callous dismissal" after following all procedures required in registering a complaint.
A cause of action for negligent infliction of emotional distress requires the plaintiff to plead and prove "that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). "An individual making an emotional distress claim must show that a reasonable person would have suffered emotional distress . . . that . . . might result in illness or bodily harm . . . as the result of the defendant's conduct." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 755, 792 A.2d 752 (2002). "[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88. "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." (Internal quotation marks omitted.) Id., 88-89. An employer "may not be found 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." Perodeau v. Hartford, supra, 259 Conn. 762-63. The act of termination alone is not considered extreme and outrageous.
The plaintiff remembers very little of what was said during her termination. She was not escorted from the premises by the police. She was not called names by her superiors. There were no comments made about her race or gender. Any interaction that could be deemed to be extreme and outrageous occurred before the plaintiff's termination.
The defendant's motion for summary judgment on count four is granted.
IV.
The defendant moves for summary judgment on count five on the ground that negligent retention cannot be demonstrated due to the fact that there were no previous complaints and the plaintiff failed to sufficiently report the incidents. The plaintiff counters that there is a genuine issue of material fact as to the defendant's knowledge of Rivera's propensity such that it should be held liable for negligent retention when the defendant should have foreseen that an employee like Rivera, who had violated its own anti-discrimination policy, should not have been retained.
"The claim of negligent retention has been recognized by the Superior Court, but not by the appellate courts of the state." Baker v. Spinney, Superior Court, judicial district of Windham, Docket No. CV 07 5001737 (June 2, 2008, Booth, J.). Negligent retention requires a plaintiff to "plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff; and that the employer failed to take action." Faggio v. Brown, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4003488 (June 12, 2007, Beach, J.) ( 43 Conn. L. Rptr. 643). "Little distinguishes negligent retention from negligent supervision . . . One difference is the necessity, in order to prove a negligent retention claim, that some behavior of the employee come or should have come to the attention of the employer during the course of employment, which behavior may logically lead to the sort of injury suffered by the plaintiff." (Emphasis added.) Id.
Based on the evidence presented, there seem to be no facts supporting the plaintiff's negligent retention claim. Of the four alleged incidents between the plaintiff and Rivera, only three were reported by the plaintiff to her supervisor and only the last one contained racial and discriminatory language used by Rivera. It was this final incident, reported on July 28, 2004, that the defendant would first have knowledge of the propensities of Rivera. There is no evidence of any further threats or misconduct against the plaintiff after this report. The lack of future threats or misconduct would seem to indicate that the defendant took action.
The defendant's motion for summary judgment on count five is granted.
CONCLUSION
The defendant's motion for summary judgment is granted as to counts two, three, four and five of the plaintiff's complaint.