Opinion
No. CV 01 0455245 S
January 7, 2004
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The defendant has filed a motion for summary judgment pursuant to Practice Book § 17-44 et seq. directed at the plaintiff's third amended complaint, wherein the plaintiff alleges a claim for the intentional infliction of emotional distress. Specifically, the defendant argues that the plaintiff cannot establish that any emotional distress that she allegedly suffered was severe; was caused by the defendant's conduct; or that the defendant's behavior toward the plaintiff, who was the defendant's employee, was extreme and outrageous.
A procedural summary of the facts reveals that the plaintiff worked for the defendant from approximately September 30, 1997 to August 28, 1998, first as a cashier and then as a night manager at the defendant's retail convenience store in Wallingford, Connecticut. The plaintiff was terminated from her employment as an at-will employee on August 28, 1998. The reason given for her termination was a violation of the defendant's policies regarding shortages of cash and inventory. The plaintiff was aware of these policies and understood that if she did not follow the "cash policies" she could face disciplinary measures and/or termination. From October 3, 1997 through August 24, 1998, the plaintiff received numerous warnings involving cash shortages and missing inventory from various supervisors, including Robert Hart, Robert Esposito and John Anderson. Many of these warnings could be construed as "blanket warnings" issued to all workers when a shortage of money or inventory was found and the responsible employee could not be determined. Despite these warnings the plaintiff continued to receive positive job evaluations, pay raises and a promotion to store manager on June 20, 1998. Positive performance evaluations were given to the plaintiff by Mr. Esposito, the supervisor whom the plaintiff claims was responsible for her subsequent termination.
The plaintiff was terminated from her employment with the defendant on August 28, 1998, allegedly as a result of a cash loss occurring during a prior shift of the plaintiff's. The defendant claims that Mr. Esposito instructed Mr. Anderson to terminate the plaintiff after Anderson informed Esposito that once again, a plaintiff was short of monies on her shift. Based upon the plaintiff's prior cash shortage and inventory warnings, Esposito concurred in Anderson's recommendation that the plaintiff be terminated and Esposito instructed Anderson to terminate the plaintiff. The plaintiff was informed that she was being terminated for a $20 cash shortage. The plaintiff commenced crying and left the defendant's store.
Approximately three months after her discharge from employment, the plaintiff received a telephone call from Anderson. Anderson, who no longer worked for the defendant informed the plaintiff that Anderson had been instructed by Esposito to take $20 out of the plaintiff's cash accounts to make it look like the plaintiff once again had a cash shortage. Anderson was instructed by Esposito to then fire the plaintiff, and if Anderson refused to do this, Esposito would, in turn, fire Anderson. Anderson also informed the plaintiff that she was entitled to a check for the sum of $75, but that Esposito informed Anderson that the plaintiff had agreed to give this check to the defendant company to partially reimburse it for monies the plaintiff had allegedly taken. The plaintiff never spoke to Esposito regarding this matter and Esposito denies making this statement to Anderson.
The plaintiff commenced this action by filing a three-count complaint on August 21, 2001, alleging wrongful termination, intentional infliction of emotional distress and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). Subsequently, in response to a motion to strike all three counts of an amended complaint, the court (Booth, J.), granted the motion to strike the wrongful termination and CUTPA counts, but denied the motion as it pertained to the intentional infliction of emotional distress count, finding that:
[a]s pleaded the plaintiff alleges not a mere mistake by the defendant, but, in fact, active participation in a conspiracy to make her appear dishonest. If the plaintiff can prove her conspiracy theory, the Court has little difficulty in seeing the conduct complained of as exceeding all bounds usually tolerated by a decent society of a nature which is especially calculated to cause mental distress of a very serious kind.
White v. Thornton Oil Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0455245S (July 12, 2002) (Booth, J.) ( 32 Conn. L. Rptr. 505).
The plaintiff is claiming the infliction of severe emotional distress in that her firing by the defendant has worsened her pre-existing condition involving chronic headaches; that she could not look for further employment, as she was too ashamed to list the defendant as a reference; that she suffered shame with her family members; that other activities were limited due to emotional distress; that the loss of wages and benefits caused her emotional distress; and that the harm to her good name and reputation caused her emotional distress.
The defendant disagrees and argues that while the court found that plaintiff has sufficiently pleaded a cause of action for the intentional infliction of severe emotional distress, the evidence consisting of deposition testimony, affidavits and other documentation reveals that any emotional distress claimed by the plaintiff was not severe and was not caused by the defendant's termination of the plaintiff. Rather, if it exists at all, the plaintiff's emotional distress was caused by other aspects of her life, including a pre-existing propensity for headaches and severe illnesses and injuries suffered by the plaintiff's husband and mother respectively during the relevant time frame. Additionally the defendant claims that it is "undisputed" that the material facts reveal that the defendant's conduct toward the plaintiff was insufficient to establish the "extreme and outrageous" requirement of an intentional infliction of emotional distress claim.
The court first reviews the standard of law regarding motions for summary judgment. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). Issues of credibility are within the exclusive realm of the trier of fact, and therefore, cannot be resolved by summary judgment. Battistoni v. Weather King Products, 41 Conn. App. 555, 564 (1996). The trial court must view the evidence in a light most favorable to the non-movant. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984); Kinne v. DeBasse, 35 Conn. App. 349, 352 (1994). If an opposing party submits contradicting affidavits or explains deposition testimony, the motion for summary judgment may be denied. Mechanics Savings Bank v. Waller, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No.CV91-0500701S (March 13, 1995) (Corradino, J.) ( 14 Conn. L. Rptr. 129).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
As an initial matter, the courts set forth the standard of review and legal principles in determining whether a plaintiff may maintain an action for intentional infliction of emotional distress, the plaintiff must establish four elements. "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." CT Page 514 Heim v. California Federal Bank, 78 Conn. App. 351, 365, 828 A.2d 129 (2003); Carnemolla v. Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); Benton v. Simpson, 78 Conn. App. 746, 828 A.2d 620 (2003).
The court agrees with the decision regarding the motion to strike rendered by the court in this case, White v. Thornton Oil Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0455245S (July 12, 2002) (Booth, J.) ( 32 Conn. L. Rptr. 505), in that "[a]s pleaded the plaintiff alleges not a mere mistake by the defendant, but, in fact, active participation in a conspiracy to make her appear dishonest. If the plaintiff can prove her conspiracy theory, the Court has little difficulty in seeing the conduct complained of as exceeding all bounds usually tolerated by a decent society of a nature which is especially calculated to cause mental distress of a very serious kind." White v. Thornton Oil Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0455245S (July 12, 2002) (Booth, J.). The defendant's former employee Anderson, in a sworn affidavit, accuses the defendant of a plot initiated by its employee Esposito to remove money from the plaintiff's cash envelope to make it appear that the plaintiff was $20 short in her cash receipts for the day. This shortage was to be used as a reason to terminate her employment. If the accusations are true, this activity can be found to be outrageous, exceeding all bounds of decency normally tolerated by a decent society. This was not just a mere termination of employment. This sort of calculated and atrocious behavior, if true, is the type which can inflict serious mental distress on a terminated employee such as the plaintiff; It goes beyond workplace insults and bad manners. Heim v. California Federal Bank, 78 Conn. App. 351, 365, 828 A.2d 129 (2003); Carnemolla v. Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); see also Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). If Esposito's actions in plotting to terminate the plaintiff's employment are true, it is conduct that is more egregious than the rough and tumble of everyday life. Whelan v. Whelan, 41 Conn. Sup. 519, 522, 588 A.2d 251, 252, 3 Conn. L. Rptr. 135 (1991).
A review of the plaintiff's affidavit reveals that she was initially unable to treat with a psychologist or psychiatrist due to a lack of health insurance to pay the costs of said treatment. She has since been evaluated by a psychiatrist, Jerome Schnitt, M.D. She complains of emotional harm and mental suffering, aggravation of a pre-existing medical condition, severe embarrassment and humiliation, as well as harm to her reputation and good name. Dr. Schnitt concludes that the plaintiff has suffered severe emotional trauma as a result of her termination from Thornton Oil, and she has yet to recover. Dr. Schnitt concludes that the actions of the defendant's employee Esposito in terminating the plaintiff's employment was causally linked to the depressive illness suffered by the plaintiff. Diagnosed depression by a licensed psychiatrist is more than mere fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. Restatement (Second) of Torts § 46, comment (j) (1965).
A review of the allegations presented to the court in the complaint, and the materials submitted to the court in support of and opposition to the motion for summary judgment, leads the court to find that the plaintiff has established genuine issues of material fact regarding the four necessary elements required to maintain an action for intentional infliction of emotional distress. See DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807, 828 (1991); see also, Heim v. California Federal Bank, 78 Conn. App. 351, 365, 828 A.2d 129 (2003); Carnemolla v. Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); Benton v. Simpson, 78 Conn. App. 746, 828 A.2d 620 (2003). Accordingly the motion for summary judgment is denied.
THE COURT BY ARNOLD, JUDGE.