Dixon v. Keystone House, Inc.
Filing
49
ORDER granting 18 Defendant's Partial Motion to Dismiss. See attached memorandum of decision. If Plaintiff wishes to file an amended complaint re-pleading count six and/or count seven, Plaintiff must file a motion for leave to amend, supported by a memorandum of law and attaching the proposed amended complaint, on or before 10/21/2014. Signed by Judge Vanessa L. Bryant on 09/30/14. (Rock, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD DIXON, Plaintiff,
v.
KEYSTONE HOUSE, INC., Defendant.
:
:
:
:
:
:
:
CIVIL ACTION NO.
3:13-CV-01152-VLB
September 30, 2014
MEMORANDUM OF DECISION GRANTING DEFENDANT’S PARTIAL MOTION TO
DISMISS [DKT. 18]
I.
Introduction
The Plaintiff, Edward Dixon (“Dixon”), brings this action against Defendant
Keystone House, Inc. (“Keystone”) alleging the following counts: (1)
discriminatory termination based on disability in violation of Title I of the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”); (2)
discriminatory termination based on perceived disability in violation of the ADA;
(3) unlawful termination of employment based upon a disability in violation of the
Connecticut Fair Employment Practices Act, Connecticut General Statute §§ 46a60, et seq. (“CFEPA”); (4) unlawful termination of employment based upon
perceived disability in violation of CFEPA; (5) unlawful termination in retaliation
for exercising workers’ compensation rights in violation of Conn. Gen. Stat. § 31290a; (6) wrongful discharge in violation of public policy to provide employees
with a safe workplace pursuant to Conn. Gen. Stat. § 31-49; (7) negligent
misrepresentation; and (8) intentional infliction of emotional distress. Keystone
has moved to dismiss counts six, seven, and eight pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be granted. For the
reasons that follow, the Motion to Dismiss is GRANTED as to each of the
challenged counts.
II.
Factual Background
The following facts and allegations are taken from Dixon’s Amended
Complaint. Keystone is a not for profit organization that provides psychiatric
rehabilitation services to adults with mental illness. [Dkt. 14-1, ¶ 3]. Keystone
operates a group home in Norwalk where it provides support services to clients
residing in the home. Id. at ¶ 6. Beginning around March 2010, Dixon began work
as an employee for Keystone House. Id. As a full-time Community Support
Specialist, Dixon provided counseling to Keystone’s clients at the Norwalk group
home. Id.
On January 7, 2011, a client residing at the group home became agitated,
ran around threatening to throw a five-gallon jug out a window, and then
assaulted Dixon. Id. at ¶ 8. The client repeatedly struck Dixon in the face and head
and threw Dixon into a door and up a few hallway steps. Id. At some point during
the attack Dixon was knocked unconscious. Id. Dixon awoke from his
unconsciousness when he was outside and was transported by ambulance to a
hospital for medical treatment Id. at ¶ 8–9.
Seventeen days after the attack, Dixon returned to work and informed his
supervisors that he had severe migraines as a result of the attack. Id. at ¶ 11.
Dixon’s supervisors told him to seek medical attention and take the necessary
time to heal. Id. Keystone’s human resources manager told Dixon that Keystone
2
“did not provide workers’ compensation insurance or benefits because it was a
not for profit organization." Id. The human resource manager told Dixon that
Keystone would reimburse him for his medical treatment related to the attack. Id.
In the following months, Dixon’s migraines became worse and increased in
frequency. Id. at ¶ 12. He developed dizziness, vertigo, and blurry vision and he
reported the increasing severity of the migraines to his supervisor. Id. In the
spring and early summer of 2011, Dixon was diagnosed with depression, posttraumatic headaches and post-traumatic stress disorder resulting from the attack.
Id. at ¶ 14. In August 2011, Dixon informed his supervisor, Keystone’s executive
director, and Keystone’s human resource manager that he was receiving medical
treatment for migraines, depression, and anxiety disorders that resulted from the
attack. Id. at ¶ 15. After Dixon expressed concern about the costs of co-pays,
Dixon was again told that Keystone did not have workers’ compensation benefits
because it was a not for profit organization, and that it was the hospital’s fault for
releasing Dixon’s attacker from the psychiatric unit too soon. Id. For the rest of
2011, Dixon continued to receive medical treatment for depression, anxiety
disorders, post-traumatic headaches, and post-traumatic stress disorder. Id. at ¶
16. He took time off from work as needed to receive medical treatment and heal,
and he always informed Keystone when he would be absent. Id. at ¶ 17.
In March of 2012, Dixon retained a lawyer and filed a claim for workers’
compensation benefits. Id., Count Five ¶ 22. On April 3, 2012, Keystone
terminated Dixon’s employment, informing him it was for his excessive tardiness
and absenteeism. Id. at ¶ 18.
3
Dixon filed a Complaint in Connecticut Superior Court Judicial District of
Fairfield at Bridgeport on July 23, 2013. [Dkt. 1-1, at 3]. Following removal,
Keystone filed a Motion to Dismiss Count Six; in response Dixon filed an
Amended Complaint that added counts seven and eight to the original six counts,
and then Keystone filed the instant Motion to Dismiss counts six, seven, and
eight. [Dkts. 13, 14, 18].
III.
Standard of Review
“‘To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. United States, 678 F.3d 147, 152 (2d Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed
factual allegations, “[a] pleading that offers ‘labels and conclusions' or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
4
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “The plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
IV.
Discussion
a. Count Six: Failure to Provide a Safe Workplace in Violation of § 31-49
Count Six of Plaintiff’s complaint purports to assert a claim under
Connecticut General Statute § 31-49, which requires employers to provide
employees with a safe workplace and competent coworkers.1 Defendant argues
correctly that section 31-49 itself does not create a private cause of action. See
Perille v. Raybestos-Manhattan-Europe, Inc., 494 A.2d 555, 556 (Conn. 1985).
However, Connecticut courts have recognized two occasions when an employee
may invoke section 31-49 in a suit against his or her employer. First, the
requirement to provide a safe workplace, as embodied by section 31-49, has been
used as a standard for duty in common law negligence claims to recover for
emotional distress. See Perille, 494 A.2d at 556. Second, employees have used
1
Conn. Gen. Stat. § 31-49 (2014) states: “It shall be the duty of the master to
exercise reasonable care to provide for his servant a reasonably safe place in
which to work, reasonably safe appliances and instrumentalities for his work and
fit and competent persons as his collaborators and to exercise reasonable care in
the appointment or designation of a vice-principal and to appoint as such viceprincipal a fit and competent person. The default of a vice-principal in the
performance of any duty imposed by law on the master shall be the default of the
master.”
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the requirement in wrongful discharge claims to show that an employer
contravenes the “public policy” of section 31-49 by terminating an employee for
refusing to work in unsafe conditions. Parsons v. United Technologies Corp.,
Sikorsky Aircraft Div., 700 A.2d 655, 664 (Conn. 1997). Count Six as currently
pleaded is ambiguous as to whether it attempts to assert a direct claim under
section 31-49, a claim for negligence, a claim for wrongful discharge, or all three.
The ambiguity in Count Six begins with its title: “Defendant’s Failure To
Provide Plaintiff With a Safe Workplace and Fit and Competent Co-Workers In
Violation of Conn. Gen. Stat. 31-49,” [Dkt. 14-1]. This title suggests that Plaintiff
is bringing a direct claim under section 31-49, which as noted above, is
impermissible because section 31-49 does not provide a private cause of action.
The ambiguity continues in the body of Count Six, which includes
allegations that could be read to support a negligence claim as well as allegations
that could be read to support a wrongful discharge claim. In regards to
negligence, the body of Count Six states that Keystone has a “duty” to provide its
employees with a safe workplace, and that Keystone “breached its duty,” and that
the breach caused Dixon’s termination [Id., Count Six, ¶¶ 21, 24, 28]. However, the
Court notes that the word “negligence,” or any variant of the word, is not found in
the allegations of Count Six. In regards to wrongful discharge, as an example,
paragraphs 28 and 30 do not seek damages for the physical injuries sustained on
the job, but rather for the emotional distress and financial loss caused by Dixon’s
termination. [Dkt. 14-1, Count Six ¶ 28, 30].
6
Dixon attempts to clarify Count Six in his Memorandum in Opposition of
the Motion to Dismiss, stating that “the issue in Count Six is not the injury
caused by the unsafe workplace, but rather, the fact that Plaintiff was wrongfully
discharged as a result of Defendant’s negligence.” [Dkt. 21, at 9]. This does little
to resolve the ambiguity of Count Six, and further, a complaint cannot be
amended by a party’s brief. See, e.g., Natale v. Town of Darien, No. CIV.
3:97CV583, 1998 U.S. Dist. LEXIS 2356, at *10 n. 2 (D. Conn. Feb. 26,
1998)(“[Plaintiff] can not amend his complaint in a memorandum of law.”)(citation
omitted); cf. Alki Partners, L.P. v. Windhorst, 472 F. App'x 7, 9 (2d Cir. 2012)
(noting that “plaintiff cannot amend the complaint through an appellate brief”)
(citations omitted). Plaintiff now appears to explicitly deny that Count Six
contains a claim for negligence. In his opposition to Defendant’s supplemental
memorandum in support of its motion to dismiss, Plaintiff asserts “it is not the
physical injury Plaintiff sustained in January 2011 that is at issue in Count Six,
but rather, the fact that Plaintiff was wrongfully discharged. . . .” [Dkt. 45 at 3.]
Because Plaintiff cannot amend his complaint in a memorandum, and because
Plaintiff’s attempt to remove ambiguity are thus unsuccessful, dismissal is
warranted pursuant to Rule 8 of the Federal Rules of Civil Procedure, which
allows the Court to dismiss a complaint that is “so confused, ambiguous, vague,
or otherwise unintelligible that its true substance, if any, is well disguised.”
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citation omitted).
In the interest of clarity the Court will consider below the substantive
challenge to Plaintiff’s claim for wrongful discharge. Because Plaintiff denies
7
that Count Six is a claim for negligence, the Court will address only the claim for
wrongful discharge. If Plaintiff seeks leave to assert a section 31-49 negligence
claim in an amended complaint, the Court notes that Connecticut’s workers’
compensation exclusivity provision bars a claim seeking damages for workplace
physical injuries and emotional distress arising from workplace physical injuries;
however a plaintiff may bring a claim for emotional distress that does not arise
from physical injury or occupational disease. See Perodeau v. City of Hartford,
792 A.2d 752, 762-63 (Conn. 2002); see also Rosario v. J.C. Penney, 463 F. Supp.
2d 228, 233 (D. Conn. 2006) (“[T]he WCA does not bar an action to recover for
emotional distress-type claims.”) (citing Perodeau, 792 A.2d at 763).
(1) Wrongful Discharge
To the extent that Count Six is a claim for wrongful discharge pursuant to
section 31-49, Plaintiff must rely on an exception to the at-will employment
doctrine. The general rule in Connecticut is that an employer may terminate an atwill employee for no reason or any reason at all without facing a liability in tort.
Sheets v. Teddy's Frosted Foods, Inc., 427 A.2d 385, 386 (Conn. 1980).
Connecticut courts have crafted an exception to the at-will employment rule that
permits a claim for wrongful discharge against an employer if a discharge
“contravenes a clear mandate of public policy.” Id. at 387. The exception is a
narrow one and courts “should not lightly intervene to impair the exercise of
managerial discretion or to foment unwarranted litigation.” Burnham v. Karl and
Gelb, P.C., 745 A.2d 178, 182 (Conn. 2000) (internal quotation marks omitted).
8
To survive a motion to dismiss a claim of wrongful discharge, the
employee must plead facts that plausibly show (1) that the employee’s discharge
contravened a public policy, and (2) that the employee was otherwise without a
remedy, and “permitting the discharge to go unredressed would leave a valuable
social policy to go unvindicated.” Burnham, 745 A.2d at 182 (internal quotation
marks omitted).
Plaintiff has failed to show that his termination contravenes the public
policy established by section 31-49. The Connecticut Supreme Court has held
that section 31-49 establishes a public policy meriting an exception to the
employment at-will doctrine when an employee refuses to work in an unsafe
workplace and the employee has no other available statutory remedy. Parsons,
700 A.2d at 664. In Parsons, the court held that a civilian employee working for a
defense contractor on a nonmilitary project could bring a claim for wrongful
discharge when he was terminated for refusing a work assignment that would
have required him to travel to a military base in Bahrain during Operation Desert
Shield, a time when the United States Department of State had cautioned against
non-essential travel to Bahrain. Parsons, 700 A.2d at 663. The Connecticut
Supreme Court held that section 31-49, as well as a portion of the Connecticut
Occupational Safety and Health Act, embody a public policy that “gives a
Connecticut employee a cause of action for wrongful discharge against an
employer transacting business in Connecticut if the employee is discharged for
refusing to work under conditions that pose a substantial risk of death, disease
9
or serious physical harm and that are not contemplated within the scope of the
employee's duties.” Parsons, 700 A.2d at 663.
Here there is no allegation that Plaintiff’s workplace continued to be
dangerous after January 2011, or that Plaintiff was fired for refusing to work in a
dangerous workplace. Plaintiff does not allege that he was terminated because of
a refusal to work in dangerous conditions, but rather alleges in Count Six that
“Dixon was told that he was terminated as a result of his excessive tardiness and
absenteeism.” [Compl. Count Six ¶ 28.] Plaintiff argues that the Court should rely
on Gonzalez v. Lecoq Cuisine Corp., No. FBTCV136037490S, 2014 Conn. Super.
LEXIS 1245 (Conn. Super. Ct. May 16, 2014). However, that case is
distinguishable, as the plaintiff in that case resigned from work when faced with
the prospect of continuing sexual harassment. Cf. Perez v. Bridgeport Hosp., No.
CV126009423S, 2012 Conn. Super. LEXIS 1957, at *6 (Conn. Super. Ct. Aug. 3,
2012) (distinguishing Parsons on the grounds that plaintiff did not allege that he
was terminated for refusing to work under dangerous conditions). Gonzalez is
consistent with Parsons in that the Gonzalez plaintiff’s refusal to work in a
harassing environment was similar to the Parsons plaintiff’s refusal to work in a
war zone. The Gonzalez court found that the company had caused the plaintiff
“foreseeable damages.” 2014 Conn. Super. LEXIS 1245, at *23; see also Moreno
v. ABM Secs., Inc., No. CV126029357, 2013 Conn. Super. LEXIS 1386, at *12
(Conn. Super. Ct. June 18, 2013) (denying defendant’s motion for summary
judgment on plaintiff’s section 31-49 wrongful discharge claim where plaintiff
resigned from work after she was assigned to work with a co-worker who had
10
previously assaulted her because “[t]he danger posed to an employee by an
unstable co-worker may be sufficiently serious in exceptional cases to satisfy the
objective standard established in Parsons.”); Anderson v. United Way, Inc., No.
NNHCV116017085, 2011 Conn. Super. LEXIS 3323, at *6-12 (Conn. Super. Ct. Dec.
27, 2011) (denying motion to strike plaintiff’s section 31-49 wrongful discharge
claim where plaintiff alleged that she was terminated for disobeying her
employer’s instructions where plaintiff feared that complying with the
instructions would expose her to risk of physical harm).
In addition to his failure to plead facts that plausibly show that his
termination contravened a public policy, it also appears that Plaintiff has failed to
show that he was otherwise without a remedy. In counts one through five of the
Complaint, Plaintiff asserts multiple claims of discriminatory termination under
both federal and state anti-discrimination statutes. To the extent that Plaintiff’s
section 31-49 wrongful termination claim seeks a remedy for a wrongful
termination arising from the injuries suffered in January 2011, it would appear
that Plaintiff has, and is pursuing, other remedies.
Given the ambiguity of Count Six, Dixon’s disavowal of a section 31-49
negligence claim, and Dixon’s failure to successfully plead a section 31-49
wrongful discharge claim, the Motion to Dismiss Count Six is GRANTED. If
Plaintiff wishes to file an amended complaint that alleges an unambiguous claim
under section 31-49, Plaintiff must file a motion for leave to amend, supported by
a memorandum of law and attaching the proposed amended complaint, within 21
days of this ruling.
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b. Count Seven: Negligent Misrepresentation.
Keystone also moves to dismiss the claim of negligent misrepresentation
for failure to state a claim on the grounds it is barred by the Workers’
Compensation Act. [Dkt. 18-1, Def.’s Mem. 33]. Connecticut has adopted the claim
of negligent misrepresentation from section 552 of the Restatement (Second) of
Torts (1979), which states: “One who, in the course of his business, profession or
employment . . . supplies false information for the guidance of others in their
business transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise reasonable
care or competence in obtaining or communicating the information.” Craine v.
Trinity College, 791 A.2d 518, 544 (Conn. 2002) (internal quotation marks omitted).
“Even an innocent misrepresentation of fact may be actionable if the declarant
has the means of knowing, ought to know, or has the duty of knowing the truth.”
Id. (internal quotation marks omitted).
Dixon alleges that Keystone made at least two misrepresentations. First,
that Keystone “repeatedly” told Dixon he could take time off from work without
any repercussions to recover from his personal injuries. [Dkt. 14-1, Count Six ¶
26, Count Seven ¶, 29]. Dixon argues he relied on the statements when he took
time off to seek medical attention and rest in the latter half of 2011 and into 2012.
Id. ¶¶ 16, 17. However, the only date Keystone is alleged to have made the
representation is January 24, 2011, which is two weeks after the attack and fifteen
months before Dixon was terminated. In the weeks after the attack it is unlikely,
and not alleged, that either party foresaw Dixon’s long-term struggle with
12
physical and emotional pain. Indeed, Dixon pleads that he received an annual
employee evaluation in which he was told that he “consistently exceeds
expectations” and at which it was noted that his time and attendance were good.
[Dkt. 14-1, Facts ¶ 13]. Dixon has not plead that the January 2011 statement was
a blank check that continued to excuse him from work more than a year after it
was made and therefore Dixon has not plead sufficient factual matter to state a
claim for negligent misrepresentation.
Dixon alleges a second misrepresentation, stating Keystone informed him
that the organization “did not provide workers’ compensation insurance or
benefits because it was a not for profit organization.” [Dkt. 14-1 ¶ 11]. The
Complaint does not say whether Keystone in fact had workers’ compensation
coverage, and thus Dixon has not plead facts to show a false statement. The
Complaint could also be interpreted as alleging that Keystone informed Dixon
that he had no rights to workers’ compensation because Keystone was a not for
profit, but it is not clear. Therefore, Dixon has plead insufficient facts to show a
claim for relief on this second alleged misrepresentation.
There being inadequate facts plead for both alleged misrepresentations,
Keystone’s Motion to Dismiss count seven is GRANTED for failure to state a
claim upon which relief can be granted. If Plaintiff wishes to file an amended
complaint that alleges facts adequate to state claim of negligent
misrepresentation, Plaintiff must file a motion for leave to amend, supported by a
memorandum of law and attaching the proposed amended complaint, within 21
13
days of this ruling. If multiple misrepresentations are alleged in an amended
complaint, each alleged misrepresentation should be plead as a separate count.
Keystone’s argument, that a claim for negligent misrepresentation is
barred by the exclusivity provision of the Worker’s Compensation Act, [Dkt. 18-1,
Def.’s Mem. 33], is applicable if the alleged damage is an injury or occupational
disease arising out of and in the course of employment. However, as noted
above, workers’ compensation exclusivity does not bar claims for compensation
for emotional impairment unrelated to physical injuries or occupational disease,
nor does the exclusivity provision bar actions for damages arising from an
employee’s termination, see, e.g., Fulco v. Norwich Roman Catholic Diocesan
Corp., 609 A.2d 1034, 1038-39 (Conn. App. 1992) (finding that the trial court
improperly held that plaintiff’s claim for emotional distress arising from his
discharge from employment was barred by the exclusivity provision of the
Workers’ Compensation Act). If Dixon pleads that a negligent misrepresentation
was the cause of his termination, then the exclusivity provision of the Workers’
Compensation Act would not apply. See Craine, 791 A.2d at 544 (affirming claim
for negligent misrepresentation when professor lost her job for a lack of scholarly
publication when she was told by her employer that she would retain her position
if she devoted her time to original research). If Dixon pleads that a negligent
misrepresentation caused physical injuries arising out of and in the course of
employment, then the Workers’ Compensation Act may bar his claim. See, e.g.,
Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 91 (D. Conn. 2006).
c. Count Eight: Intentional Infliction of Emotional Distress
14
Keystone also moves to dismiss Count Eight, arguing that it fails to state a
claim upon which relief can be granted because Keystone’s actions were not
extreme and outrageous. [Dkt. 18, Def.’s Mem. 35–36]. To prevail on a claim of
intentional infliction of emotional distress, a plaintiff must prove:
(1) that the actor intended to inflict emotional distress, or 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.
Appleton v. Bd. of Educ. of the Town of Stonington, 757 A.2d 1059, 1062 (Conn.
2000). Extreme and outrageous conduct goes “beyond all possible bounds of
decency, [is] 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!’” Id. at 1062 (quoting 1 Restatement
(Second), Torts § 46, comment (d), p. 73 (1965)).
“[I]n assessing a claim for intentional infliction of emotional distress, the
court performs a gatekeeping function. . . . [T]he court is to determine whether
the allegations of a complaint . . . set forth behaviors that a reasonable fact finder
could find to be extreme and outrageous.” Hartmann v. Gulf View Estates
Homeowners Ass'n, Inc., 869 A.2d 275, 278 (Conn. App. Ct. 2005). The court does
not perform a finding of fact, but rather makes an assessment as a matter of law
whether the alleged conduct fits the criteria required to establish a claim of
intentional infliction of emotional distress. Id. “Only where reasonable minds
disagree does it become an issue for the jury.” Appleton, 757 A.2d at 1062. In
15
Appleton, the Court held that it was not extreme and outrageous when the
defendant principal was alleged to have questioned the plaintiff teacher’s
competency and vision, made condescending comments, required two
psychological evaluations of plaintiff, criticized plaintiff in front of colleagues,
and called plaintiff’s daughter to tell her the plaintiff was acting strange. Id. at
1063.
Even in the absence of extreme and outrageous conduct by the employer,
an employee’s termination can cause severe stress and anxiety. To put in
prospective the level of conduct considered extreme and outrageous, even
terminations that are illegal have not exceeded the threshold. See e.g., Campbell
v. Town of Plymouth, 811 A.2d 243, 252 (Conn. App. Ct. 2002) (holding that the
defendant-employer’s conduct was not extreme and outrageous when defendant
repeatedly harassed the plaintiff-employee to submit erroneous and fraudulent
reporting information to a state agency, and then fired employee for not doing
so); Allen v. Egan, 303 F. Supp. 2d 71, 78 (D. Conn. 2004) (holding that
employment discrimination is illegal but is not per se extreme and outrageous).
It is the conduct that must be extreme and outrageous; “wrongful
motivation by itself does not meet the standard.” Perez-Dickson v. City of
Bridgeport, 43 A.3d 69, 101 (Conn. 2012). In cases where a plaintiff has
successfully pled extreme and outrageous conduct, there often is an element of
public ridicule, obscene language, or insulting comments. See Campbell, 811
A.2d at 252 (citation omitted).
16
Dixon alleges that Keystone committed extreme and outrageous conduct
by providing an employee suffering from physical pain and mental stress with
false information about workers’ compensation, telling the employee he may take
time off from work but expecting that the employee would be terminated for doing
so, and then terminating the employee when he took time off. [Dkt. 14-1, Count
Eight ¶ 11, 15, 29]. As discussed above with regards to negligent
misrepresentation, Dixon has not plead sufficient facts to support a claim that he
could have justifiably relied on Keystone’s encouragement to take time off from
work. As noted above, Dixon alleges that he received a positive employee
evaluation on March 31, 2011, approximately two months after he alleges he was
told to take to take the necessary time to heal, in which his time and attendance
were noted as good. Plaintiff does not allege that after he returned to work he
was given carte blanche permission to be absent at will again. Even if Dixon
plead dates in 2012 leading up to his termination that Keystone encouraged him
to take time off from work, the conduct is not extreme or outrageous as a matter
of law. Keystone’s conduct did not go “beyond all possible bounds of decency,”
nor is it “utterly intolerable in a civilized community.” See Appleton, 757 A.2d at
1062. Although not dispositive, none of Keystone’s personnel are even alleged to
have insulted, embarrassed, or publicly ridiculed Dixon.
The Complaint does not plead sufficient enough factual matter to
constitute extreme and outrageous conduct. Therefore, Keystone’s Motion to
Dismiss Count Eight is GRANTED for failure to state a claim upon which relief
can be granted.
17
V.
Conclusion
For the above reasons, Keystone’s Motion to Dismiss counts six, seven,
and eight is GRANTED. If Plaintiff wishes to file an amended complaint repleading count six and/or count seven, Plaintiff must file a motion for leave to
amend, supported by a memorandum of law and attaching the proposed
amended complaint, within 21 days of this ruling.
IT IS SO ORDERED.
________/s/____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 30, 2014
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