MEADE v. YALE UNIVERSITY, No. CV05-4016155 (Sep. 7, 2006)

DAVID W. SKOLNICK, JUDGE TRIAL REFEREE.

Before the court is the defendants' motion to strike all thirteen counts of the plaintiff's amended complaint dated January 18, 2006.

This action arises out of the plaintiff's employment as an accountant at Yale University. On January 18, 2006, the plaintiff, Angela Meade, filed a thirteen-count amended complaint against the defendants, Yale University, Edward Kuczynski, and Karen Muth. In counts one through ten, the plaintiff alleges claims for breach of an implied contract, promissory estoppel, negligent misrepresentation, intentional misrepresentation and negligent supervision against Yale University and Kuczynski. In counts eleven through thirteen, the plaintiff alleges intentional infliction of emotional distress claims against all three defendants.

The plaintiff initially filed the amended complaint on January 18, 2005, as an attachment to her motion to amend and cite in Kuczynski and Muth as defendants. After the court, Devlin, J., granted the motion, the plaintiff served process on Kuczynski and Muth and filed the amended complaint again, with the summons, on March 29, 2006.

The plaintiff premises her cause of action on the following facts as alleged in the complaint: The plaintiff was employed by Yale in the genetics department as an accountant from June 2002 through December 2004. As part of her duties, in 2003, the plaintiff conducted a survey that contained negative comments about Muth, a fellow employee. In June 2004, Muth was named as the plaintiff's direct supervisor. Fearing retaliation by Muth, the plaintiff met with Kuczynski, the co-chair of the department, on several occasions and expressed her concerns regarding Muth acting as her supervisor. Kuczynski promised the plaintiff that her job was not in jeopardy as a result of the appointment of Muth and that she would not be fired. Muth began taking away the plaintiff's job responsibilities. When she notified Kuczynski, he again assured her that she would not be fired or laid off. The plaintiff met with Kuczynski again after she saw a job posting for her department that listed some of her duties. Kuczynski told her that she was not being terminated and would keep her job. The CT Page 16400 plaintiff was notified on September 21, 2004, that her position was being eliminated in ninety days. Despite her complaints to the human resources department, the plaintiff was laid off.

On March 20, 2006, the defendants filed a motion to strike all thirteen counts of the amended complaint accompanied by a memorandum of law in support. In response, the plaintiff filed a memorandum of law in opposition on April 19, 2006. The defendants filed a reply to plaintiff's memorandum in opposition, on April 28, 2006.

"[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).

"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). On the other hand "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005).

I COUNTS ONE AND TWO — BREACH OF IMPLIED CONTRACT

The defendants assert that counts one and two do not state claims for breach of implied contract because the plaintiff does not allege facts that indicate that the defendants intended to enter into an employment contract with her pursuant to which she could only be fired for just cause. The defendants argue that the plaintiff bases her claims on Kuczynski's alleged promises that Muth would not retaliate against her, that these promises did not alter the plaintiff's status as an at-will employee, and cannot form the basis of a claim for breach of implied contract. The plaintiff counters that she sufficiently alleges the existence of an implied contract because she refers to specific CT Page 16401 acts and conduct by the defendant which created a contract between the parties in which the defendants promised that she would not be fired by Muth in retaliation for performing her job duties.

Unless otherwise noted, the term "defendants" refers to Yale University and Edward Kuczynski.

"[A]ll employer-employee relationships not governed by express contracts involve some type of implied contract of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). "A contract implied in fact, like an express contract, depends on actual agreement . . ." (Citations omitted.) Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980). Thus, for example where a plaintiff alleges that she and her employer had an implied contract pursuant to which she could only be discharged for good cause, "the plaintiff [has] the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).

Similarly, where as in the present case, the plaintiff alleges that she and her employers had an implied contract pursuant to which she would not be terminated as a result of her conflict with other employees, she must allege facts that support her claim that the defendants agreed to undertake such a contractual commitment to her. See Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 113, 544 A.2d 170 (1988) ("We need not decide whether there was sufficient evidence to permit the jury to find that the parties had an implied agreement that the plaintiff could not be terminated without just cause under all circumstances. We conclude, however, that sufficient evidence was adduced to allow the jury to find that the parties had an implied agreement that the plaintiff would not be terminated as a result of conflicts between the . . . departments, as long as he performed adequately . . . At argument, [the defendant] conceded that the plaintiff had a good work record while it employed him and has not claimed there was just cause for his discharge related to job performance").

The plaintiff has done so in that she alleges that Kuczynski directly promised her on several occasions that she would not be CT Page 16402 terminated by Muth in retaliation for performing her duties. Viewing the facts alleged in the complaint in the light most favorable to sustaining the claim, the plaintiff has pleaded sufficient facts to allege the existence of an implied contract. Accordingly, the motion to strike as to counts one and two is denied.

II COUNTS THREE AND FOUR — PROMISSORY ESTOPPEL

The defendants assert that counts three and four do not state claims for promissory estoppel because the plaintiff does not allege that they made a definite promise to her that is sufficiently promissory or definite to support contractual liability. The defendants argue that the alleged promises that the plaintiff relies on were vague comments regarding her performance and working conditions. The defendants also contend that the plaintiff does not allege that she changed her position in reliance on Kuczynski's statements or that she reasonably relied on the statements. The plaintiff counters that she sufficiently alleges claims for promissory estoppel in that she alleges that the defendants made direct promises to her concerning her position and she reasonably relied on those promises.

Promissory estoppel is governed by the following principles: "Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . [The Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] 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." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003).

As for the first element, the Supreme Court has explained that "[a] fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which a promisor could CT Page 16403 reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise it judged by an objective standard, he had no reason to expect any reliance at all . . . Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 104-05.

In the present case, the plaintiff sufficiently alleges the existence of a clear and definite promise. Specifically, the plaintiff alleges that Kuczynski, acting on behalf of Yale, promised her that her position was secure and that she would not be terminated by Muth in retaliation for performing her job duties.

As for the second element of promissory estoppel, "the party seeking to invoke the doctrine must have relied on the other party's promise . . . That reliance, of course, may take the form of action or forbearance . . . Nevertheless, the asserted reliance, regardless of its form, must result in a detrimental change in the plaintiff's position . . . Thus, [t]o rely, in the law of promissory estoppel, is not merely to do something in response to the inducement offered by the promise. There must be a cost to the promisee of doing it." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., supra, 267 Conn. 112-13.

"[I]f the claimed reliance consists of the promisee's forbearance rather than an affirmative action, proof that this forbearance was induced by the promise requires a showing that the promisee could have acted . . . Implicit in this principle is the requirement of proof that the plaintiff actually would have acted in the absence of the promise." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 113. Furthermore, the promisse's reliance on the promise must be reasonable. "[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." (Internal quotation marks omitted.) Id., 104-05.

The plaintiff sufficiently alleges that she reasonably relied on the promises of Kuczynski. The plaintiff avers that after she saw the posting of a job with the same responsibilities as hers, CT Page 16404 she raised her concerns to Kuczynski and that he advised her not to apply for the newly posted position. She alleges that she acted on this advice, in that she did not apply for the position. Judging by an objective standard, the plaintiff alleges sufficient facts to demonstrate that her reliance was reasonable because she alleges that Kuczynski, as the co-chair of her department, was clothed with authority to make decisions for the department including overseeing, disciplining and setting policy and procedure for the department.

Therefore, the motion to strike is denied as to counts three and four.

III COUNTS FIVE AND SIX — NEGLIGENT MISREPRESENTATION

The defendants raise an additional argument that an at-will employee must also plead a public policy violation to allege intentional and negligent misrepresentation. This argument will be addressed in Part IV, infra.

The defendants argue that counts five and six fail in that the plaintiff has not alleged that their alleged misrepresentations were made for the purpose of inducing action. The plaintiff counters that she is not required to allege that the defendants' purpose was to induce action in order to allege a cause of action for negligent misrepresentation and she has alleged sufficient facts to establish such a claim.

"[Connecticut] has long recognized liability for negligent misrepresentation. [Our Supreme Court has] held that 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 . . . The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): `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.'" (Citations omitted; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). Thus, "[a] party asserting a claim for negligent misrepresentation must allege: 1) a false representation was made to the party as a statement of fact, 2) it was made for the guidance of the party; 3) the other party making the representation failed to exercise reasonable care in obtaining or communicating the information, and 4) the pleading party CT Page 16405 justifiably relied on the representation to its detriment." (Internal quotation marks omitted.) Castellano v. United States Surgical Corp., Superior Court, judicial district of Fairfield, Docket No. CV 05 4008844 (February 27, 2006, Rodriguez, J.).

The plaintiff alleges sufficient facts to establish the reliance element of a cause of action for negligent misrepresentation. The plaintiff specifically alleges that she notified Kuczynski that she was concerned about the security of her job and that Kuczynski promised her that her position was secure and that she would not be terminated or laid off by Muth. Although she does not specifically allege that Kuczynski made these promises for her guidance, such an allegation can be inferred under the circumstances. The plaintiff further alleges that she justifiably relied upon Kuczynski's representations that her job was not in jeopardy in that he was in a position to know the status of her employment and he was Muth's supervisor. Thus, she satisfies the induced reliance element of the cause of action. Accordingly, the motion to strike is denied as to counts five and six.

IV COUNTS FIVE, SIX, SEVEN AND EIGHT — NEGLIGENT AND INTENTIONAL MISREPRESENTATION

The defendants move to strike the plaintiff's negligent and intentional misrepresentation claims because the plaintiff does not allege that the defendant violated a public policy. The defendants argue that at-will employees cannot bring misrepresentation claims that are premised on their termination from employment unless they also allege that the employer violated a public policy because to allow such claims would undermine the doctrine of at-will employment.

The defendants premise their argument on Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), which they interpret as requiring at-will employees to allege a public policy violation in order to challenge his or her termination. According to the defendants, the plaintiff should not be allowed to "make an end run" around this requirement by characterizing what essentially is a wrongful discharge claim as a claim for misrepresentation. The defendants also rely on Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), which they interpret as holding that at-will employees cannot CT Page 16406 bring claims of breach of the covenant of good faith and fair dealing to challenge their termination from employment, unless they also allege a public policy violation. According to the defendants, the same reasoning should apply to the plaintiffs who attempt to challenge their terminations on any other basis without alleging a violation of a public policy.

The plaintiff disagrees that such a limitation is recognized and points out that the defendants failed to cite authority for their argument. In addition, the plaintiff points out that Sheets did not involve intentional or negligent misrepresentation claims.

The plaintiff is not required to allege a public policy violation when pleading intentional and negligent misrepresentation claims against an employer. The present case is distinguishable from the two cases relied on by the defendant. In Sheets, the court recognized a common-law claim for wrongful discharge "where the discharge contravenes a clear mandate of public policy." Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 474. In Magnan, the court decided that in the context of at-will employment "breach of [an implied] covenant [of good faith and fair dealing] cannot be predicated simply upon the absence of good cause for a discharge." Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 571. The court reasoned that if it did recognize such claims, it "would write into every hiring of indefinite duration a provision requiring good cause for termination." Id., 567.

The same concern does not, however, apply to claims for negligent or intentional misrepresentation, especially when the claims are, as in the present case, premised on representations made to the plaintiff during the course of her employment, and not during her termination. Moreover, the Supreme Court's reluctance to extend the requirement of good cause for terminating employees with contracts for indefinite employment is not equivalent to an endorsement of the principle that employers should not be held liable for their tortious conduct.

Therefore, the defendants have not established that the plaintiff is required to allege that the defendant violated a public policy in order to sufficiently allege claims for negligent and intentional misrepresentation. Consequently, the motion to strike counts five through eight on this ground is denied. CT Page 16407

V COUNTS NINE AND TEN — NEGLIGENT SUPERVISION

In counts nine and ten, respectively, the plaintiff alleges causes of action against Yale for its negligent supervision of Kuczynski and Muth, and against Kuczynski for his negligent supervision of Muth. The defendant argues that the plaintiff fails to satisfy the foreseeability element of a claim for negligent supervision and that such claims are only available to third parties, not employees. The plaintiff counters that her allegations satisfy the foreseeability requirement and that there is no authority for the defendant's contention that employees cannot bring claims for negligent supervision.

"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). "In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." Vasudevan v. Pragosa, Superior Court, judicial district of Hartford, Docket No. CV 05 4012416 (January 23, 2006, Keller, J.) ( 40 Conn. L. Rptr. 617). Regarding the second element, "[w]hether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foresceability." (Internal quotation marks omitted.) Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.).

In general, "[t]he ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002). "The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that CT Page 16408 harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn.App. 194.

The plaintiff satisfies the foreseeability elements of her claims, in counts nine and ten, that Yale and Kuczynski were negligent in their supervision of Muth. Specifically, the plaintiff alleges that Yale and Kuczynski should have known of Muth's propensity for tortious conduct in that the plaintiff expressed her concerns about Muth to Kuczynski, who was co-chair of the department, she told Kuczynski of her history with Muth and expressed her concerns that Muth would attempt to retaliate against her and terminate her employment.

She does not, however, satisfy the foreseeability element of her claim in count nine that Yale was negligent in its supervision of Kuczynski. Her sole allegation in this regard is a conclusory statement that Kuczynski had a propensity for tortious conduct. The court cannot, however, grant the defendant's motion to strike as to this claim because the plaintiff combined it into a single count with her claim regarding Yale's supervision of Muth, and the paragraphs of this count cannot be separated into distinct causes of action. As this court has previously explained, "[w]here individual paragraphs standing alone do not purport to state a cause of action, a motion to strike cannot be used to attack the legal sufficiency of those paragraphs . . . A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated." (Internal quotation marks omitted.) Argueta v. Overhead Door Corp., Superior Court, judicial district of Fairfield, Docket No. CV 00 0370126 (July 28, 2000, Skolnick, J.).

The defendants' other ground for striking these claims, that an employee does not have standing to allege a claim of negligent supervision, is not supported by the authority that the defendant provides. The defendants merely point to recent decisions discussing negligent supervision in which the plaintiffs were members of the public and not employees. This does not establish that an employee cannot bring a claim for negligent supervision. Therefore, the motion to strike is denied as to counts nine and ten.

VI CT Page 16409 COUNTS ELEVEN, TWELVE AND THIRTEEN — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The defendants argue that the plaintiff does not state a claim for intentional infliction of emotional distress because she does not allege any conduct by the defendants that could be considered extreme and outrageous or that she suffered distress that was so severe that no reasonable person could be expected to endure it. The plaintiff counters that she adequately pleaded facts that support both of these elements.

"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) the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

Regarding the second element, "[w]hether 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 . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . ." (Citations omitted; internal quotation marks omitted.) Id. Our courts have noted that "[i]t is likely that a person whose employment is terminated will suffer some degree of stress and anxiety regardless of whether the termination was lawful and proper or wrongful and tortious in nature." Firgeleski v. Hubbell, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 98 035287 (December 19, 2001, Stevens, J.). Consequently, "[c]ourts have set a high threshold that must be met in order to find that specific conduct is extreme and outrageous." Troy v. Precision Computer Services, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 00 0082592 (May 14, 2001, Agati, J.). "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 CT Page 16410 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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 210-11. Furthermore, "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn.App. 704, 710, 757 A.2d 1207 (2000).

Construing the complaint in the light most favorable to the plaintiff, she has failed to allege facts that satisfy this element in that she has not alleged behavior by any defendant that rises to the level of extreme and outrageous behavior. The Connecticut courts have been unwilling to allow a plaintiff to premise a claim of intentional infliction of emotional distress solely upon the fact that the plaintiff was terminated from his or her employment. Therefore, the motion to strike is granted as to counts eleven, twelve and thirteen.

CONCLUSION

Accordingly, the motion to strike is denied as to counts one through ten and granted as to counts eleven through thirteen.