Opinion
No. CV03-0519118S
August 12, 2003
MEMORANDUM OF DECISION
On January 14, 2003, the plaintiff, Antoinetta Scirocco, filed a nine-count complaint against the defendants, Liberty Travel, Inc., and Michael DeMattia, alleging discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes §§ 46a-60 (a) (counts one through five), breach of contract (count six), breach of the implied covenant of good faith and fair dealing (count seven), promissory estoppel (count eight) and negligent infliction of emotional distress (count nine).
Presently before the court is the defendants' motion to strike counts seven, eight and nine of the complaint. The defendants move to strike count seven, the breach of the implied covenant of good faith and fair dealing claim, on the ground that the plaintiff has a statutory remedy available to her and therefore the claim is improper. (Motion to Strike, ¶ 1.) The defendants move to strike count eight, the promissory estoppel claim, on the ground that the plaintiff failed to plead a breach of promise or a promise upon which the plaintiff reasonably could have relied. ( Id., ¶ 2.) The defendants move to strike count nine, the negligent infliction of emotional distress claim, on the ground that the conduct alleged in the complaint is neither extreme nor outrageous. ( Id., ¶ 3.)
"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." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "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). In reviewing a motion to strike, the court must "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." CT Page 9041-c (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002).
Count Seven (Breach of Implied Covenant of Good Faith)
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992); see also Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 567 (" Connecticut has long recognized the doctrine of good faith and fair dealing in the performance of contractual obligations"). "An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contact under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." Share America, Inc. v. Ernst Young, Superior Court, judicial district of Waterbury, Docket No. 150132 (July 2, 1999, Sheldon, J.).
The defendants argue that count seven should be stricken because a claim for breach of the implied covenant of good faith and fair dealing in the context of an employment termination cannot stand unless the termination violated an important public policy and there is no other remedy available at law. (Defendants' Memorandum, pp. 5-6.) As support for their argument, the defendants cite Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Magnan, however, applies only to at-will employees. The plaintiff in the present action has alleged the existence of an employment contract, which provided for termination of her employment "for cause." Specifically, the complaint alleges: "During her professional employment as Branch Manager, Mrs. Scirocco was covered by an employment agreement with the Defendant . . . which, among other rights, privileges and benefits, provided for termination of employment for cause." (Complaint, Count Six, ¶ 33.) Thus, although it is true that "an at-will employee may not . . . challenge his dismissal beyond the situation where the reason for his discharge involves impropriety . . . derived from some important violation of public policy;" Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 572; the plaintiff has alleged sufficient facts indicating the existence of a contract with terms other than at-will employment. Accordingly, the defendants' motion to strike count seven is denied. CT Page 9041-d
Count Eight (Promissory Estoppel)
Count eight of the plaintiff's complaint incorporates the allegations contained in count one. Count one alleges in relevant part that "by agreement with Mr. DeMattia, Mrs. Scirocco scheduled her maternity leave to begin on October 19, 2001 and her return to work on January 14, 2002. Mrs. Scirocco signed the proper Family and Medical Leave Act forms reflecting such dates of her maternity leave . . . Due to medical problems associated with her pregnancy, Mrs. Scirocco began her maternity leave on October 5, 2001, instead of the date originally scheduled, October 19, 2001. On November 28, 2001, Mrs. Scirocco received a letter from Liberty Travel Human Resources . . . which rescinded the agreement she had with the Defendants regarding her January 14, 2002 return to employment from maternity leave. The letter stated that her maternity leave would expire after twelve (12) weeks on December 28, 2001. It stated, `Failure to return on the designated date will be considered a voluntary resignation.'. . . Mrs. Scirocco told Mr. DeMattia that she could not return to work prior to January 14, 2002 because she did not have day care for her baby available prior to that date. She explained that she had made arrangements with her mother-in-law, who owned a day-care center, to care for her baby but she did not have an opening at her facility until January 14, 2002." (Complaint, Count One, ¶¶ 10, 18-20, 25.) Count eight further alleges that the plaintiff "justifiably and in good faith relied upon that promise that her maternity leave would end . . . on January 14, 2002" and that "[t]he Defendant had reason to expect that [she] would rely upon that promise." ( Id., Count Eight, ¶¶ 34-35.)
The defendants argue that count eight should be stricken because the plaintiff's reliance on the initial return date was unreasonable in light of the November 28, 2001 letter adjusting the return date to December 28, 2001. (Defendants' Memorandum, p. 11.) The court agrees.
"Section 90 of the Restatement Second states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all . . . Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say CT Page 9041-e something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Citations omitted; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 162-63, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Chotkowski v. State, 240 Conn. 246, 268, 690 A.2d 368 (1997). "Estoppel rests on the misleading conduct of one party to the prejudice of the other." Brzezinek v. Covenant Ins. Co., 74 Conn. App. 1, 8, 810 A.2d 306 (2002).
Assuming, arguendo, that the maternity leave dates originally discussed by Mr. DeMattia and the plaintiff constituted a promise from Liberty Travel, Inc. to the plaintiff to grant her leave for those precise dates, count eight still fails to state a claim of promissory estoppel. A person who claims estoppel "must show that [she] has exercised due diligence to know the truth, and that [she] not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Chotkowski v. State, supra, 240 Conn. 268. The plaintiff, however, admits in her pleadings that she received a letter on November 21, 2001, informing her that her maternity leave would expire on December 28, 2001. The plaintiff cannot, therefore, claim an essential element of the cause of action, namely that she did not know the true state of affairs. Accordingly, the court grants the defendants' motion to strike count eight.
Count Nine (Negligent Infliction of Emotional Distress)
Finally, the defendants move to strike the plaintiff's claim for negligent infliction of emotional distress on the ground that the defendants' alleged conduct was neither extreme nor outrageous. (Defendants' Memorandum, p. 8.) The plaintiff counters that the defendants have confused the elements of intentional infliction of emotional distress for negligent infliction of emotional distress. (Plaintiff's Memorandum, p. 14.) The court agrees with the plaintiff.
"[A] defendant is not liable for emotional distress unless the defendant, or its agents or servants, should have realized that its conduct involved an unreasonable risk of causing the distress, and from the facts known to it, or its agents, should have realized that the distress, if it were caused, might result in illness or bodily harm." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, CT Page 9041-f 398 A.2d 1180 (1978). "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 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 . . . This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). "[T]he plaintiff has a more difficult burden when the defendant's state of mind is intentional, rather than negligent. Put another way, where the defendant's state of mind is purposefully to inflict emotional distress on the plaintiff, the plaintiff may not recover unless the defendant's conduct in pursuance of that intent is also extreme and outrageous; but where the defendant did not have such a malevolent state of mind, but merely was negligent, the plaintiff may recover without having to prove that the conduct engaged in by the defendant was extreme and outrageous." Id., 452 (Borden, J., concurring).
Thus, under Carrol v. Allstate Ins. Co. and Montinieri, a plaintiff need only allege that the defendants knew or should have known that their conduct involved an unreasonable risk of causing emotional distress and that such emotional distress in fact occurred. The plaintiff has met these minimal requirements by alleging the following: "In March 2001, when [the plaintiff] informed . . . DeMattia that she was pregnant and needed a maternity leave of absence, she indicated that her physician had placed her in a high risk category due to her medical condition and that she should avoid high stress. [The plaintiff] was concerned about her health and the health of her unborn child and she suffered extreme emotional distress from Mr. DeMattia's constant harassment and pressure that she accept a demotion . . . as well as [from] Liberty Travel's failure to investigate and take remedial action on her formal written charge of harassment 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." (Complaint, Count Nine, ¶¶ 33-34, 36.)
For the foregoing reasons, the defendants' motion to strike counts CT Page 9041-g seven and nine of the complaint is denied; the court grants the defendants' motion to strike count eight.
Henry S. Cohn, Judge