Groth v. Grove Hill Medical Center, P.C.
Filing
40
ORDER granting 22 Motion to Dismiss. Please see Attached Ruling and Order. Signed by Judge Robert N. Chatigny on 7/15/15. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRIANNE GROTH,
Plaintiff,
v.
GROVE HILL MEDICAL CENTER,
P.C.,
Defendant.
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Case No. 3:14-CV-01563 (RNC)
RULING AND ORDER
Plaintiff Brianne Groth brings this action against her
former employer, Grove Hill Medical Center, P.C. ("Grove Hill"),
alleging that it discriminated against her on the basis of a
disability, failed to accommodate her disability and retaliated
against her for opposing this unlawful conduct, in violation of
the Americans with Disabilities Act (ADA) and Connecticut Fair
Employment Practices Act (CFEPA).
The amended complaint also
asserts state law claims for intentional infliction of emotional
distress, negligent infliction of emotional distress, breach of
the covenant of good faith and fair dealing, and violation of the
Connecticut Unfair Trade Practices Act.
The defendant has moved
to dismiss under Federal Rule of Civil Procedure 12(b)(6).1
For
reasons that follow, the motion is granted.
1
This is Grove Hill's second motion to dismiss. After it
filed its first motion (ECF No. 12), Groth amended her complaint
(ECF No. 16). Grove Hill then brought this motion on the same
grounds as the first.
1
I. Background
The amended complaint alleges the following.
In October
2012, plaintiff was hired as a receptionist at Grove Hill, a
medical center located in New Britain.
to wear a wireless earpiece.
Groth's work required her
At some point - just when is not
clear - the earpiece caused her to develop an abscess behind her
ear.
The abscess required medical attention, including a visit
to the emergency room.
Groth informed the office manager, Gloria Irizarry, of the
difficulty caused by the earpiece.
Other employees responded to
Groth's complaint with "an escalation of abusive and hostile
treatment."
Groth was "exposed to loud swearing and abusive
language, as well as violent conduct that was directed at her."
ECF No. 16, at 3.
Groth tried to find a way to do her job
without using the earpiece, but her employer demanded that she
continue to wear it.
Id. at 3.
In May 2013, Groth received a written warning from Grove
Hill.
The grounds for the warning were that she had (1) failed
to wear the earpiece; (2) used a cellphone; (3) "wandered;" and
(4) failed to properly address patient cancellations.
Id.
Groth
determined "that she was being treated unfairly" and "made an
appointment with the Human Resources person to address the
written warning."
Id.
On May 23, when Groth was en route to an appointment with
2
Human Resources, she was confronted by Irizarry.
Irizarry said
that Grove Hill's deposits, for which Groth was responsible, were
short.
Groth denied the accusation.
It was "obvious" to Groth
that Irizarry had accosted her with an eye toward intimidating
her and delaying the meeting with Human Resources.
Id. at 4.
Groth managed to get away from Irizarry and proceeded to the
meeting, where she spoke with Human Resources Manager Laura
D'Avanzo.
Groth and D'Avanzo "reviewed, in detail, the warning
received by the plaintiff and the issues that were the subject of
the plaintiff's write-up . . . as well as the hostility issues in
the workplace that the plaintiff was experiencing."
Id.
A week later, Groth received a call from Grove Hill.
She
was informed that a committee had been formed to investigate her
complaint.
In addition, she was offered a position that would
permit her to work out of a different office.
Just four hours
later, however, Groth received word that she had been suspended.
Her status was soon altered from "suspended" to "paid leave."
Then, on June 10, she was fired.
Two hours after informing Groth
of her termination, Grove Hill explained its decision: an audit
of her computer revealed that she had accessed a patient file
without authorization.
Id. at 5.
II. Discussion
A Rule 12(b)(6) motion tests a complaint's legal
sufficiency.
To withstand such a motion, "a complaint must
3
contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955, 167 L.Ed.2d 929 (2007)).
occurs in two steps.
Review under Rule 12(b)(6)
First, the court must separate the
complaint's well-pleaded factual allegations from its legal
conclusions.
Well-pleaded facts are accepted as true and viewed
in the light most favorable to the plaintiff.
Id.
"Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements," must be disregarded.
Id.
Second, the
court must determine whether the well-pleaded facts in the
complaint support a plausible inference that the plaintiff is
entitled to relief.
Id.
This standard "is not akin to a
'probability requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Twombly, 550 U.S. at 556).
Id. (quoting
A complaint containing facts "that
are 'merely consistent with' a defendant's liability . . . 'stops
short of the line between possibility and plausibility of
entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
A. Count One: ADA and CFEPA
Plaintiff alleges that Grove Hill discriminated against her
because of her disability - the abscess caused by the earpiece and failed to accommodate her condition, in violation of both the
4
ADA and CFEPA.
She also asserts that Grove Hill violated the
antiretaliation provisions of these statutes.
Grove Hill argues
that Groth has failed to state a claim for discrimination or
failure to accommodate because she has not plausibly alleged that
she has a disability and that she has failed to state a claim for
retaliation because she has not plausibly alleged that she
engaged in any protected activity.
I agree.
1. Discrimination and Failure to Accommodate Under the ADA and
CFEPA
To adequately plead a claim of discrimination under the ADA,
plaintiff must allege that Grove Hill is covered by the ADA; she
has or was regarded by Grove Hill as having a disability within
the meaning of the ADA; she was qualified to perform the
essential functions of her job, with or without reasonable
accommodation; and she suffered an adverse employment action
because of her disability or perceived disability.
City of New York, 422 F.3d 47, 56 (2d Cir. 2005).
Capobianco v.
To adequately
plead a failure-to-accommodate claim, plaintiff must allege that
she has a disability within the meaning of the statute; Grove
Hill is covered by the statute and had notice of her disability;
she was able to perform the essential functions of her job with
reasonable accommodation; and Grove Hill refused to provide such
an accommodation.
McBridge v. BIC Consumer Prods. Mfg. Co.,
Inc., 583 F.3d 92, 97 (2d Cir. 2009).
Each ADA claim, then, requires plaintiff to plausibly allege
5
that she has a disability.
Under the ADA, a plaintiff has a
disability if she suffers from "a physical or mental impairment
that substantially limits one or more of [her] major life
activities" or is regarded as suffering from such an impairment.
Capobianco, 422 F.3d at 56.
Grove Hill argues that plaintiff
fails to allege that her impairment, an infection caused by
wearing the earpiece, limited a major life activity.
I agree.
As far as the complaint alleges, Groth's impairment affected
her only insofar as it prevented her from wearing the earpiece,
which Grove Hill required her to wear in order to perform her
duties as a receptionist.
An impairment that affects a
plaintiff's ability to work in only a narrow range of jobs does
not qualify as a disability under the ADA.
See Giordano v. City
of New York, 274 F.3d 740, 747–48 (2d Cir. 2001) ("The inability
to perform a single, particular job does not constitute a
substantial limitation in the life activity of working."
(internal quotation marks and citations omitted)); Wernick v.
Fed. Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996)
("An impairment that disqualifies a person from only a narrow
range of jobs is not considered a substantially limiting one.");
Curcio v. Bridgeport Bd. of Educ., 477 F. Supp. 2d 515, 521 (D.
Conn. 2007) ("[T]o trigger the ADA's protection, the impairment
must significantly restrict the plaintiff's ability to perform
either a class of jobs or a broad range of jobs in various
6
classes . . . ." (internal quotation marks and citations
omitted)).
Assuming the abscess prevented the plaintiff from
wearing the ear piece, she has not alleged that she had a
disability under the ADA.
See Wegner v. Upstate Farms Co-op.,
Inc., 560 Fed. Appx. 22 (2d Cir. 2014)(plaintiff not disabled
because, although his inability to lift disqualified him from
working as a truck driver for his former employer, it was
"insufficient to show that he [was] disqualified from truck
driving positions generally."
Id. at 24; see also Martinsky v.
City of Bridgeport, 814 F. Supp. 2d 130, 144 (D. Conn. 2011)
(plaintiff's anxiety disorder, which precluded him from working
for the Bridgeport Police Department but did not prevent him from
working in law enforcement generally, was not a disability).
Plaintiff’s claim also faces a second hurdle: nothing in the
complaint indicates that her ear trouble was anything more than
transitory.
Although the 2008 amendments to the ADA and
accompanying regulations have made clear that short-term
impairments can qualify as disabilities if they are sufficiently
severe, see, e.g., 29 C.F.R. § 1630.2(j)(1)(ix) (app), an
impairment's duration is still relevant in assessing whether it
is disabling.
See De La Rosa v. Potter, 427 Fed. Appx. 28 (2d
Cir. 2011) ("A temporary impairment lasting only a few months is,
by itself, too short in duration . . . to be substantially
limiting."); Kruger v. Hamilton Manor Nursing Home, 10 F. Supp.
7
3d 385, 389 (W.D.N.Y. 2014) ("Generally, short term, temporary
restrictions are not substantially limiting and do not render a
person disabled under the ADA."); Zick v. Waterfront Comm'n of
N.Y. Harbor, No. 11 Civ. 5093 (CM), 2012 WL 4785703, at *5
(S.D.N.Y. Oct. 4, 2012) ("Plaintiff's broken leg is simply not an
injury considered a 'disability' under the ADA.").
Plaintiff’s
allegations offer virtually no information about how long her
impairment lasted.
The amended complaint alleges that she began
working in October 2012 and received a warning concerning her
failure to wear the earpiece in May 2013, but it provides no
information about the duration of her medical trouble or the
likelihood that it would persist over time.2
Its well-pleaded
facts indicate only that at one time, her use of the earpiece
caused inflammation and infection.
From such limited factual
matter I cannot plausibly infer that Groth's impairment was
disabling.
For this reason too her ADA discrimination and
failure to accommodate claims must be dismissed.
Plaintiff’s allegations also fall short of stating a claim
for relief under CFEPA.
CFEPA, like the ADA, provides causes of
action for discrimination and failure to accommodate, and like
the ADA it requires a plaintiff to prove that she suffers from a
2
The complaint states that the condition of Groth's ear
"worsened over time" but says nothing about how long this period
of time lasted. Even if I can infer from the May warning that
Groth's ear had not healed at that time, I have no information
about when her trouble began.
8
disability.
The state statute does not oblige a plaintiff to
establish that her impairment substantially affects a major life
activity, but it does require that the impairment be "chronic."
The courts have defined "chronic" to mean "marked by long
duration or frequent recurrence" or "always present or
encountered."
Conn. 2009).
Logan v. SecTek, 632 F. Supp. 2d 179, 184 (D.
In Setkoski v. Bauer, No. HHDCV116023082, 2012 WL
2044805 (Conn. Super. May 10, 2012), for example, the plaintiff
alleged that she had missed three months of work due to anemia, a
serious condition requiring surgery and a blood transfusion.
Because the plaintiff failed to allege that "her condition [was]
continuing or [would] require medication or additional procedures
in the future," she did not state a claim under CFEPA.
Id. at 3.
Similarly, pregnancy complications requiring an employee to miss
two months of work have been held to fall short of disabling.
Kucharski v. Cort Furniture Rental, 536 F. Supp. 2d 196, 202 (D.
Conn. 2007), rev'd on reconsideration on other grounds, 594 F.
Supp. 2d 207.
And in Wanamaker v. Westport Bd. of Educ., 899 F.
Supp. 2d 193, 213 (D. Conn. 2012), the plaintiff alleged that she
was required to miss a month or two of work because she suffered
from transverse myelitis.
Because she pled "no other facts
indicating that [her] condition [was] chronic," the court granted
the defendant's motion to dismiss her CFEPA claim.
Here, the allegations in the amended complaint do not permit
9
the plausible inference that the abscess was "marked by long
duration or frequent recurrence" or "always present or
encountered."
Indeed, plaintiff does not allege that the abscess
required her to miss significant time from work.
Accordingly, the claims under the ADA and CFEBA will be
dismissed without prejudice.
If plaintiff can plausibly allege
facts supporting an entitlement to relief under either statute,
she may do so in an amended complaint.
2. Retaliation Under the ADA and CFEPA
To state a claim for retaliation under the ADA, a plaintiff
must allege that: "(1) she engaged in an activity protected by
the ADA; (2) the employer was aware of this activity; (3) the
employer took an adverse employment action against her; and (4) a
causal connection exists between the alleged adverse action and
the protected activity."
Caskey v. Cnty. of Ontario, 560 Fed.
Appx. 57, 58 (2d Cir. 2014).
way.
CFEPA claims are analyzed the same
Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 90 (D.
Conn. 2006).
"Protected activity" is action taken "to protest or
oppose statutorily prohibited conduct."
Rolfe v. Lawrence &
Mem'l Hosp., No. 3:10 Civ. 80 (RNC), 2013 U.S. Dis. LEXIS 140400,
at *14–15 (D. Conn. Sept. 30, 2013).
The conduct opposed by the
plaintiff need not actually be prohibited by the ADA (or CFEPA),
but the plaintiff must hold a "good faith, reasonable belief that
the underlying employment practice [is] unlawful under the
10
statute."
Id.
Here, the question is whether plaintiff ever voiced
opposition to a practice she thought was unlawful under the ADA.
An employee "opposing" unlawful conduct must make it clear that
she believes the employer's conduct is discriminatory.
A
generalized criticism of an employment practice made without
reference to discrimination will not do.
See Saviano v. Town of
Westport, No. 3:04 Civ. 522 (RNC), 2011 U.S. Dist. LEXIS 112722,
at *14 n.8 (D. Conn. Sept. 30, 2011) ("Grievances are not
generally considered protected activity when they fail to mention
discrimination.").
It is insufficient to complain of conduct out
of which a discrimination claim later arises; the complaint
itself must put the employer on notice that the employee is
complaining about discrimination.
In Manoharan v. Columbia Univ.
Coll. of Physicians & Surgeons, 842 F.2d 590 (2d Cir. 1988), for
example, the plaintiff alleged that he had been fired after
criticizing Columbia University for practicing racial
discrimination in hiring.
But the plaintiff's complaints about
hiring had not alleged unlawful discrimination.
They alleged
only that Columbia was not abiding by its internal affirmative
action program.
The Second Circuit therefore affirmed the
district court's conclusion that the plaintiff had not opposed
any unlawful practice.
Id. at 594; see also Lewis v. Conn. Dep't
of Corrs., 355 F. Supp. 2d 607, 617 (D. Conn. 2005) ("[T]he union
11
grievance . . . did not explicitly allege racial discrimination
and thus could not be considered protected activity . . . .");
McDowell v. Home Depot, U.S.A., Inc., No. 3:02 Civ. 1294D, 2004
WL 594101, at *8 (N.D. Tex. March 9, 2004) ("[A plaintiff who
opposes unlawful activity] must communicate to her employer her
reasonable concerns that the employer has acted or is acting in a
manner that is unlawful.").
Here, plaintiff does not plausibly allege that she
communicated anti-discrimination concerns to Grove Hill.
She
states that she made an appointment with Human Resources to
"address the issuance of the written warning," which was
predicated in part on her failure to wear the earpiece.
16, at 3.
ECF No.
She also states that during the meeting she "reviewed"
the warning "in detail" and discussed "hostility issues" she was
experiencing.
Id. at 4–5.
But she does not allege that she told
Grove Hill she was concerned about discrimination.3
In the
absence of an allegation that she voiced such a concern, her
claim is insufficient.
Accordingly, the ADA and CFEPA
retaliation claims will be dismissed without prejudice.
3
Groth also argues that in ¶ 9 of her complaint, she alleges
that she told her employer her condition was disabling. This
argument is unavailing. Advising an employer about one's
disability can put the employer on notice of the disability and
therefore bear on a discrimination claim. But Groth's
retaliation claim requires her to show that she went to her
employer with a complaint about its unlawful conduct, not that
she told her employer she was disabled.
12
B. Count Two: IIED
Defendant argues that plaintiff’s IIED claim should be
dismissed because 1) she has failed to allege sufficient
emotional distress, and 2) she has failed to allege extreme and
outrageous conduct.
I agree with the second argument.
A plaintiff states a claim for IIED if she alleges: "(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."
Murray v. Bridgeport
Hosp., 40 Conn. Supp. 56, 62 (Conn. Super. 1984).
Liability
attaches only when the defendant's conduct is so extreme as to
"exceed[] all bounds usually tolerated by decent society."
Petyan v. Ellis, 200 Conn. 243, 253 (1985) (superseded by statute
on other grounds).
Grove Hill first argues that Groth has failed to plausibly
allege severe emotional distress.
I disagree.
Groth alleges
that Grove Hill's conduct caused her to suffer "anxiety,
depression, sleeplessness, nausea, headaches, and stress."
No. 16, at 9.
ECF
Courts in this district have deemed similar
allegations sufficient at the pleadings stage.
Craig v. Yale
Univ. Sch. of Med., 838 F. Supp. 2d 4, 12 (D. Conn. 2011)
13
(denying defendant's motion to dismiss when plaintiff alleged
"severe emotional and psychological distress; trauma;
sleeplessness; loss of appetite . . . and damage to his selfesteem and sense of self-worth").
I do agree with Grove Hill, however, that Groth has failed
to allege extreme and outrageous conduct required to support a
claim for intentional infliction of emotional distress.
None of
the conduct described in the complaint, alone or in combination,
suffices under this tort's rigorous standard.
Starting with the allegations relating to Grove Hill's
behavior in firing Groth, none sets out sufficiently outrageous
behavior.
That Grove Hill terminated Groth's employment with a
retaliatory motive, even if true, is not enough to state a claim:
"when the defendant is an employer, the court looks to the
employer's conduct, not the motive behind the conduct, to
determine if it was extreme or outrageous."
Sarojak v. Metallics
Group, No. 3:03 Civ. 1050 (DJS), 2004 U.S. Dist. LEXIS 21126, at
*7 (D. Conn. Oct. 7, 2004) ("It is immaterial that Metallics may
have acted out of a desire for retribution, because motive does
not factor into the court's inquiry.").
Similarly, the allegation that Grove Hill fabricated an
explanation for Groth's dismissal (namely, her unauthorized
access of a patient record) is insufficient.
The Connecticut
Appellate Court has held that employers levying very serious
14
accusations against employees – more serious than the accusation
here – did not act "outrageously."
See, e.g., Carnemolla v.
Walsh, 815 A.2d 1251, 1260–61 (Conn. App. 2003) (affirming grant
of summary judgment when employee was accused of embezzling
company funds and dismissed); Bator v. Yale-New Haven Hosp., 808
A.2d 1149, 1150–51 (Conn. App. 2002) (affirming grant of motion
to strike IIED claim when the plaintiff, a therapist, alleged
that a supervisor had "falsely accused him of endangering a
patient's life").
The Superior Court "appears to be divided on
the issue of whether making false accusations regarding unlawful
or criminal behavior" qualifies as outrageous conduct, Kontos v.
Laurel House, Inc., No. CV065001808S, 2012 WL 429624, at *3
(Conn. Super. Jan. 17, 2007), but no case has been cited or found
that recognizes a claim based on an accusation of non-criminal
conduct when the accusation was directed to the plaintiff alone
(rather than being publicized).
The Superior Court, too, has
regularly dismissed claims that allege accusations far more
serious than the one here.
See, e.g., id. at *1, *5 (dismissing
the plaintiff's IIED claim, which alleged that his employer
falsely accused him of sexual harassment and summarily terminated
his employment).4
4
One unpublished case holds that an employer who accused an
employee of lying behaved sufficiently outrageously, but the
accusation was made in the presence of other employees. Ferraro
v. Stop & Shop Supermarket, No. CV960388031 (Conn. Super. May 24,
2000). Here, there is no allegation that Grove Hill publicized
15
As for the conduct in which Grove Hill engaged before firing
the plaintiff, it likewise fails to meet the stringent standard
of extreme and outrageous conduct.
Groth alleges that she was
exposed to "loud swearing and abusive language," but "yelling at
a coworker and using foul, harsh and insulting language . . . is
not . . . extreme and outrageous behavior."
Burke v. State Dep't
of Children & Families, No. MMXCV0650000409S, 2010 WL 797286, at
*3 (Conn. Super. 2010).
Groth also alleges that Grove Hill
treated her "in a degrading and hostile fashion" during her
employment, but this assertion is so devoid of factual content as
to be little more than a label.
Groth advances one more allegation that requires discussion.
Her complaint states that after she notified her employer about
her difficulty in wearing the earpiece, she was "exposed to . . .
violent conduct that was directed at her."
ECF No. 16, at 3.
Physical violence or the threat of it can qualify as outrageous
conduct.
See Russo v. City of Hartford, 184 F. Supp. 2d 169, 192
(D. Conn. 2002).
But the formulation "exposed to . . . violent
conduct that was directed at her" is so lacking in meaning as to
fail to put the defendant on notice of what is alleged.
What,
exactly, is "violent conduct," and what does it mean to "direct"
the reason for Groth's termination.
16
violent conduct at another person?5
Without knowing more, the
Court cannot adequately evaluate the claim, and the defendant
probably cannot identify the incident or incidents to which Groth
refers.
Groth fails to identify any case law tending to undermine
these conclusions.
She relies exclusively on Karlen v. Westport
Bd. of Educ., No. 3:07 Civ. 309 (CFD), 2010 WL 3925961, at *19
(D. Conn. Sept. 30, 2010), which, she says, stands for the
proposition that "deliberate actions taken by an employer could
constitute intentional infliction of emotional distress."
No. 30, at 16.
ECF
Noting that Grove Hill "did take deliberate
actions to affect the Plaintiff's position and her well-being,"
she asserts that her complaint survives under Karlen.
argument is unconvincing.
This
It is true that an employer's
deliberate actions can give rise to IIED liability, but those
actions must be extreme and outrageous as well as deliberate.
No
precedent supports the conclusion that the actions pleaded in the
complaint were extreme and outrageous, so Groth's IIED claim will
be dismissed without prejudice.
C. Count Three: NIED
To state a claim for NIED, "the plaintiff has the burden of
5
It is worth noting that the plaintiff's initial complaint
alleged that she was "exposed to . . . violent conduct." ECF No.
1-1, at 4. In response to the defendant's first motion to
dismiss, she amended the complaint by adding "that was directed
at her."
17
pleading 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."
Menard v. People's Bank, No. CV970544627S, 1998 WL
177536, at *3 (Conn. Super. Apr. 6, 1998).
An employee's claim
for NIED cannot be predicated on employer conduct that occurred
in the context of a continuing employment relationship.
Yale Univ., 331 F. Supp. 2d 94, 98 (D. Conn. 2004).
Urie v.
Nor can it
be predicated on "the mere act of firing an employee," even if
done with ill motive.
Parsons v. United Tech. Corp., 700 A.2d
655, 667 (Conn. 1997).
The focus, rather, is on the manner in
which the firing is carried out.
If it is accomplished in a
manner likely to cause emotional distress – for instance, in "an
inconsiderate, humiliating or embarrassing" way – termination can
give rise to a claim.
Id.
Here, almost all the plaintiff's allegations concern either
conduct that occurred while she was an employee or Grove Hill's
wrongful motivation for firing her.
an NIED claim.
These events do not support
The only allegation in the complaint relating to
the manner in which Groth was fired indicates that Grove Hill did
not advise her of the ground for termination until two hours
after it gave initial notice of termination.
Groth points to no
case permitting a claim on remotely similar facts; most relate to
needless publicity surrounding termination.
18
See, e.g., Mulkin v.
Anixter, Inc., No. 3:03 Civ. 901 (RNC), 2004 U.S. Dist. LEXIS
1875, at *8 (D. Conn. 2004) ("He alleges that defendant
needlessly publicized his firing, falsely stating that he was
guilty of dishonesty, and thus publicly humiliated him, when it
knew or should have known that this would cause him severe
emotional distress.").
Groth argues that this analysis employs too narrow a
definition of "termination."
As she sees it, termination is not
a single event, but a "process."
Here, that "process" embraces
not just her firing, but earlier occurrences like Grove Hill's
trying to prevent her from complaining to Human Resources and
falsely accusing her of mismanaging deposits.
Groth asserts that
Grove Hill undertook these actions in an inconsiderate manner, so
they can support a claim.
Groth fails to cite any legal authority that supports this
argument, and all the authority I have located is to the
contrary.
Perodeau v. City of Hartford, 259 Conn. 729 (2002),
the leading Connecticut case on NIED in employment, explicitly
distinguishes termination (in some circumstances, actionable)
from "disciplinary or investigatory action arising from actual or
alleged employee misconduct" (never actionable).
Id. at 769.
The Connecticut courts have relied on this language to hold that
disciplinary actions short of termination (but arguably leading
up to termination) cannot form the basis of an NIED claim.
19
See
Day v. Seacorp, No. 550385, 2002 WL 31050891, at *7 (Conn. Super.
Aug. 13, 2002) (citing Perodeau's "disciplinary or investigatory
action" phrasing to hold that plaintiff's suspension without pay
for alleged malfeasance was not part of her termination and
therefore not actionable); Michaud v. Farmington Comm. Ins.
Agency, No. CV010806951S, 2002 WL 31415478, at *1, *4 (Conn.
Super. Sept. 25, 2002) (reduction in plaintiff's hours and
criticism of her job performance in the month leading up to her
firing were not part of her termination); see also Dickinson v.
Merrill Lynch, Pierce, Fenner & Smith, 431 F. Supp. 2d 247,
260–61 (D. Conn. 2006) (defendant's order to plaintiff to leave
work and cease contacting clients, which occurred some three
weeks before plaintiff was fired, was not part of the termination
process).
These decisions comport with Perodeau's language, and they
also comport with its reasoning.
The Perodeau court feared that
extending the tort of NIED to the workplace – where employees
should expect occasional unfair treatment and hurt feelings –
would invite a steady flow of specious lawsuits from embittered
workers.
Perodeau, 259 Conn. at 758.
If every termination could
be traced back to the first hint of ill will between the employer
and the former employee and held to embrace all the events in
between, Perodeau would have no meaning.
Here, the "termination" events Groth identifies are properly
20
classified as "disciplinary or investigatory action[s] arising
from actual or alleged employee misconduct" and are not
actionable under Perodeau.
Accordingly, the NIED claim will be
dismissed with prejudice.
D. Count Four: Breach of the Implied Covenant of Good Faith and
Fair Dealing
Plaintiff seeks to recover for breach of the implied
covenant of good faith and fair dealing.
There is no allegation
that the parties entered into an express contract limiting Grove
Hill's ability to terminate plaintiff’s employment.
Rather, the
complaint alleges that "as a result of the employment
relationship which existed between the plaintiff and the
defendant, the defendant promised to act in good faith toward the
plaintiff" and assumed the obligation not to "terminate the
plaintiff without a fair and honest cause."
ECF No. 16, at 13.
The complaint identifies no words or conduct on the part of Grove
Hill that caused this agreement to come into being.
Without some
affirmative indication from Grove Hill that it was accepting a
limit on its ability to terminate Groth's employment, no implied
contract existed.
See Mulkin, 2004 U.S. Dist. LEXIS 1875, at *4
(finding that the plaintiff "just barely" stated a claim for
breach of implied contract because he alleged that his employer
informed him of a notice-and-cure policy relating to employee
misconduct).
The Connecticut Supreme Court has recognized one exception
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to the general rule that an employee terminable at will may be
fired for any reason.
If an employer's reason for dismissal is
"demonstrably improper" because it violates some important public
policy, the employee may recover for wrongful termination.
Sheets v. Teddy's Frosted Foods, Inc., 427 A.2d 385, 388 (1980).
In Sheets, for example, the plaintiff, a quality control director
for the defendant, was fired because he insisted that his
employer comply with laws relating to food labeling.
Id. at 386.
The court determined that putting the plaintiff "to an election
whether to risk criminal sanction or to jeopardize his continued
employment" ran so counter to the public interest as to warrant
limiting the employer's power to terminate.
Id. at 389.
There are important limits to the rule of Sheets.
Of
relevance here, if a statute already provides a private right of
action intended to vindicate the relevant public policy, the
claim will fail.
2014).
Stoffan v. SNET, 4 F.3d 364, 380 (D. Conn.
Here, the plaintiff identifies no public policy violated
by her employer except the policy that is already vindicated by
the ADA and CFEPA.
See id. (Sheets held not to provide a cause
of action in circumstances identical to these because "in
Connecticut, the important public policy of preventing disability
discrimination in the workplace is adequately addressed by the
presence of the ADA and CFEPA" (internal quotation marks
omitted)).
It is no answer that Groth might be unable to obtain
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relief under these statutes.
What matters is that the laws
vindicate the public interest in rectifying workplace
discrimination, not that they vindicate this particular
plaintiff's claim.
Sheets does not extend protection to
plaintiffs in discrimination cases who narrowly miss protection
under the antidiscrimination statutes themselves.
Such a state
of affairs would undermine policy judgments already made by the
legislature and permit litigants to evade statutory procedural
requirements, such as exhaustion rules, by bringing common law
instead of statutory claims.
See Kilduff v. Consential, Inc.,
289 F. Supp. 2d 12, 19 (D. Conn. 2003) ("The wrongful discharge
cause of action is not intended to be a catch-all for those who
either procedurally or on the merits fail to establish a claim
under existing discrimination statutes . . . .").
Plaintiff
identifies no other public policy that could support her claim.
Accordingly, the claim will be dismissed with prejudice.
E. Count Five: Violation of CUTPA
It is not clear whether Groth is opposing Grove Hill's
motion to dismiss her claim under CUTPA, but the motion must be
granted in any event.
To state a claim under CUTPA, a plaintiff
must allege that the defendant's misconduct occurred "in a trade
or commerce."
Drybrough v. Acxiom Corp., 172 F. Supp. 2d 366,
369 (D. Conn. 2001).
Though an employer "may engage employees
for the purpose of promoting trade or commerce, the actual
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employment relationship is not itself trade or commerce for the
purpose of CUTPA."
Id.
Firing an employee falls within the
employment relationship, id. at 368, 370, and no conduct on the
part of Grove Hill even arguably spills out of the employment
context and into trade or commerce.
The claim will therefore be
dismissed with prejudice.
III. Conclusion
Accordingly, the defendant's motion to dismiss is hereby
granted.
The claims under the ADA and CFEPA and the IIED claim
are dismissed without prejudice.
The rest of the claims are
dismissed with prejudice.
So ordered this 15th day of July 2015.
/s/
Robert N. Chatigny
United States District Judge
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