Opinion
Civil Action No. 3:98CV1565 (CFD).
September 27, 2000.
RULING ON THE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Introduction
The single count complaint in this action seeks damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60, et seq. ("CFEPA"); and common law claims for negligent and intentional infliction of emotional distress.
The complaint also seeks relief pursuant to the damages provisions of 42 U.S.C. § 1981a.
The complaint in this action does not allege these causes of action in separate counts, nor does it allege liability against each defendant in separate counts.
The plaintiff was employed at Taco Bell restaurants in Storrs and Willimantic, Connecticut. Defendants Tacala, Inc. and Tacala North, Inc., ("Tacala") operate the restaurants that employed the plaintiff and are franchisees of defendant Taco Bell Corp., ("Taco Bell").
During oral argument on the defendants' motion, counsel for Tacala represented that, for purposes of this ruling, the distinction between Tacala, Inc. and Tacala North, Inc. is not material. Plaintiff's counsel agreed. Accordingly, they will be referred to and considered as one entity for the purposes of this decision and opinion.
Pending is Taco Bell and Tacala's motion for partial summary judgment [doc. # 5]. The defendants make the following six arguments in support of their motion:
Taco Bell argues that:
• it is not the plaintiff's employer and, therefore, cannot be held liable for the federal and state statutory violations that are alleged;
• claims for negligent infliction of emotional distress in the employment context may only arise from the termination process; because it was not the plaintiff's employer and played no role in her termination, it cannot be liable under this cause of action; and,
• the intentional infliction of emotional distress claim (1) is barred by the statute of limitations and, (2) its conduct was not extreme and outrageous as a matter of law.
Tacala argues that:
• as to the negligent infliction of emotional distress claim, the plaintiff has not presented any evidence that its actions during the termination process posed an unreasonable risk of causing the plaintiff severe emotional distress;
• as to the intentional infliction of emotional distress claim, its conduct was not extreme and outrageous as a matter of law; and
• the federal and state retaliation claims against it are factually unsupported and there is no genuine issue of material fact that the plaintiff was fired for an appropriate reason.
Tacala has not moved for summary judgment with respect to the state and federal statutory harassment claims based on the alleged conduct of Blake, as it concedes there are genuine issues of material fact with respect to those claims.
Background
The recited facts are taken from the parties' Local Rule 9 statements and the materials appended thereto, and are undisputed unless otherwise noted.
In June, 1997, Vincent Blake became Zoldak's supervisor. In September, 1997, the plaintiff complained to Lee Brandi, the Restaurant Manager at the Taco Bell restaurant in Willimantic, that Blake was sexually harassing her. According to her deposition, Zoldak contacted Brandi because he had assisted her in the past when she had questions about the management of the Storrs restaurant. Brandi reported Zoldak's complaint to his supervisor, Tacala Regional Manager Rick Mead. This was not the first time that a sexual harassment allegation had been made against Blake. In late 1994 or early 1995, an employee at a Taco Bell owned, Taco Bell restaurant in Waterford filed a similar complaint. After an investigation of this prior complaint, Blake was suspended and transferred to another restaurant. He was terminated in 1996 when Taco Bell sold several of its franchises, but was made automatically eligible for rehire by Tacala. He then was rehired by Tacala when it assumed ownership of the Connecticut Taco Bell franchises.
The plaintiff complained that when working with Blake he made repeated sexual comments to her, stood very close to her on occasion, and repeatedly requested she perform certain sexual acts and date him.
Upon hearing of Zoldak's accusation, Mead conducted an investigation and terminated Blake. In October, 1997, the plaintiff filed a complaint concerning the Blake matter with the Equal Employment Opportunity Commission ("EEOC") and the Connecticut Commission on Human Rights and Opportunities ("CCHRO").
On June 26, 1998, the plaintiff received a release of jurisdiction notice from the CCHRO and on July 23, 1998, the plaintiff received a right to sue notice from the Equal Employment Opportunity Commission.
In January, 1998, after Blake had been terminated, the Storrs restaurant closed and Tacala offered the plaintiff a position at the Vernon restaurant, with a raise in pay. The plaintiff refused that offer, but accepted a subsequent offer to become shift manager at the Willimantic restaurant, although without a raise.
In March, 1998, the plaintiff lost the Willimantic restaurant's night deposit money. Zoldak was suspended for a period of 30 days, but never returned to work. She was eventually discharged.
At oral argument, defense counsel indicated that, although it was a thirty day "suspension," it was understood that the plaintiff would be terminated at the conclusion of the thirty days. Plaintiff agrees that she believed that she would not be rehired after the period of suspension had passed. However, according to Zoldak, she was never "officially" terminated.
Zoldak claims violations of Title VII and CFEPA by Blake's sexual harassment and Tacala and Taco Bell's retaliation against her for complaining about the Blake harassment. The retaliation claims include conduct by the defendants prior to her termination and the termination itself Zoldak also alleges negligent infliction of emotional distress and intentional infliction of emotional distress under Connecticut common law. The bases for the plaintiff's intentional infliction of emotional distress claims are that (1) Blake should have been discharged after the first incident of harassment, and (2) Tacala retaliated against her after she filed her complaint.
Discussion
A. Summary Judgment Standard
In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A court must grant summary judgment "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. . . .'" Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citation omitted). A dispute regarding a material fact is genuine "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at 248), cert.denied, 506 U.S. 965 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof" then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991). See also Suburban Propane v. Proctor Gas., Inc., 953 F.2d 780, 788 (2d Cir. 1992). Additionally "[w]here, as here, the non-movant bears the burden of proof at trial, the movant can satisfy its burden of production by pointing out an absence of evidence to support an essential element of the non-movant's case." Gibsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 270 (2d Cir. 1999) (citing Celotex, 477 U.S. at 323-24 and Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998)).
The Court exercises caution in granting summary judgment in favor of an employer in employment discrimination cases "where, as here, the employer's intent is at issue." Kerzer v. Kingly Mfg., 156 F.3d at 400 (citing Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994)); see also Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988) ("summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has presented a prima facie case"); Meng v. Ipanema Shoe Corp., 73 F. Supp.2d 392, 396 (S.D.N.Y. 1996). However, in order to defeat a defendant employer's motion for summary judgment, a plaintiff employee must offer "concrete evidence from which a reasonable juror could return a verdict in [her] favor" and may demand a trial simply because the central issue is the defendant employer's state of mind. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (internal quotations omitted); see also Meng, 73 F. Supp. 2d at 396.
B. The Taco Bell Arguments
1. In General
By their terms, Title VII and the CFEPA apply only to employers, employment agencies and labor organizations. See 42 U.S.C. § 2000e-2; Conn. Gen. Stat. § 46a-60. Taco Bell argues that there is no genuine issue of material fact that it was not the plaintiff's employer and, therefore, cannot be held liable under either Title VII or the CFEPA. Taco Bell bases this argument on evidence indicating that (1) it served only as a franchisor for its franchisee, Tacala, and (2) its operations were not sufficiently interrelated with those of Tacala to hold it responsible for its actions.
It is undisputed that Taco Bell is not an employment agency or a labor organization.
A corporation is permitted to limit its liability by organizing "so as to isolate liabilities among separate entities." Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996) (citing Frank v. U.S., West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993)); see also Meng, 73 F. Supp. 2d at 402. Only under limited circumstances may a corporation be found liable for the acts of a separate, but related corporate entity. See Murray, 74 F.3d at 404; see also Meng, 73 F. Supp. 2d at 402. Under Title VII, there must "'be sufficient indicia of an interrelationship between the immediate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer.'" Herman v. Blockbuster Entertainment Group, 18 F. Supp.2d 304, 308 (S.D.N.Y. 1998),aff'd mem., 182 F.3d 899 (2d Cir. 1999) (quoting Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983)); see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995); Meng, 73 F. Supp. 2d at 402.
In Cook v. Arrowsmith Shelburne, Inc., supra, the Second Circuit adopted a four-part test "aimed at determining the degree of interrelationship between the two entities." Id. at 1240. Under the test, in order for one corporate entity to be held liable for the acts of another under Title VII, "there must be evidence of: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control." Id. (citingArmbruster, 711 F.2d at 1337); see also Meng, 73 F. Supp. 2d at 402;Herman, 18 F. Supp. 2d at 309. The Cook court held that the pivotal question is: "'What entity made the final decisions regarding employment matters related to the person claiming discrimination?'" Cook, 69 F.3d at 1240 (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. see also Menu, 73 F. Supp. 2d at 402. A plaintiff employee does not need to "show that each factor exists in order to establish an integrated enterprise, nor is there one factor a plaintiff must show." Meng, 73 F. Supp. 2d at 402 (citation omitted).
The court explained that the test originally was developed by the National Labor Relations Board and used to determine whether two entities could be considered a single employer for the purpose of resolving labor disputes. See Cook 69 F.3d at 1240.
The Herman court reviewed the following items to determine whether a sufficient interrelation of operation exists: (1) whether the parent was involved directly in the subsidiary's daily decisions relating to production, distribution, marketing, and advertising; (2) whether the two entities shared employees, services, records and equipment; (3) whether the entities commingled bank accounts, accounts receivable, inventories, and credit lines; (4) whether the parent maintained the subsidiary's books; (5) whether the parent issued the subsidiary's paychecks; and (6) whether the parent prepared and filed the subsidiary's tax returns.Herman, 18 F. Supp. 2d at 309 (citing Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997)).
The critical factor under the Cook analysis is centralized control of labor relations. See Cook, 69 F.3d at 1240 (quotation omitted); see also Meng, 73 F. Supp. 2d at 402 (citing Herman, 18 F. Supp. 2d at 309). With respect to this factor, relevant considerations include whether the subsidiary has a separate human resource department and whether it "establishes its own policies and makes it own decisions as to the hiring, discipline, and termination of its employees." Meng, 73 F. Supp. 2d at 403 (citing Duffy v. Drake Beam Morin, Harcourt General, Inc., 96 Civ. 5606, 1998 WL 252063, at *4 (S.D.N.Y. May 19, 1998)). Other considerations include: (1) whether employment applications are sent to the parent company; (2) whether personnel status reports are approved by the parent company; (3) whether the subsidiary must clear all major employment decisions with the parent; and (4) whether the parent routinely shifts employees between the two companies. Meng, 73 F. Supp. 2d at 403 (citing Johnson v. Flowers Industries, Inc., 814 F.2d 978, 981 (4th Cir. 1987)).
"The remaining prongs, common management and ownership, are less important as they represent ordinary aspects of the parent-subsidiary relationship." Meng, 73 F. Supp. 2d at 403 (citing Lusk, 129 F.3d at 778).
2. The Instant Case
In the instant case, Zoldak argues that applying the Cook test results in employer liability for Taco Bell under both Title VII and the CFEPA, or, at least, there are genuine issues of material fact on this question.
It is well-settled that Connecticut courts look to federal employment discrimination law for guidance in enforcing the CFEPA. See Levy v. Commission on Human Rights and Opportunities, 646 A.2d 893, 896 (Conn.App. 1994) (collecting cases). Accordingly, the application of theCook factors also determines the question of whether Taco Bell is the plaintiff's employer within the meaning of the CFEPA.
As mentioned above, the first Cook factor is interrelation of operations. In their Local Rule 9(c)(1) statement, the defendants contend that it is an undisputed fact that an interrelation of operations does not exist between Taco Bell and Tacala. They rely upon the affidavit of Kimberly Baudler, Vice President for Human Resources for Tacala. Baudler's affidavit states that following the execution of the franchise agreements between Taco Bell and Tacala, Taco Bell ceased to play any role in the day-to-day labor relations at the two restaurants where the plaintiff worked. While the plaintiff denies that this is an undisputed fact, she has not identified any evidence that the operations of Taco Bell and Tacala were interrelated.
The second Cook criterion is centralized control of labor relations, the factor upon which both parties here have principally focused. Defendants argue that Baudler's affidavit establishes that there was no centralized control over labor relations by Taco Bell and Tacala. The plaintiff claims that control over labor relations was centralized between the two companies, and she points to (1) the "Answer Book" that Taco Bell provided Tacala, and (2) that book's impact on labor relations between Tacala and its employees. The "Answer Book" is given to Taco Bell franchisees and contains information concerning Taco Bell labor policies and procedures.
The "Answer Book" is a manual that advises franchise managers of how to comply with various labor laws, including those laws related to sexual harassment. For instance, it explains that managers should post a Harassment Policy Statement (presumably one provided to them by Taco Bell), ensure that the Policy Statement is followed, and review its contents with employees. Decisions regarding the implementation of these and other recommendations is within the discretion of individual franchisees; the "Answer Book" specifically provides that it is to be used by franchisees only as a resource to assist them in for developing their own policies.
There is no evidence submitted by the plaintiff that Taco Bell could or did require Tacala to adhere to the policies and procedures set forth in the "Answer Book." Nor is there any indication that Tacala followed those policies and procedures. In sum, there is no evidence that the provisions of the "Answer Book" issued by Taco Bell to Tacala significantly controlled the labor relations between Tacala and its employees.
The third Cook factor is common management. In their Local Rule 9 (c)(1) statement, the defendants contend that it is undisputed that Taco Bell and Tacala do not share common management. As evidentiary support for this contention, the defendants rely upon the affidavit of Ms. Baudler in which she states that Taco Bell and Tacala do not have common management. As with the first Cook factor, the plaintiff denies that this is an undisputed fact and has identified the question of whether Taco Bell and Tacala had common management as a disputed question of fact. However, she has not identified any evidence to support this.
The fourth and final Cook factor is common ownership. The affidavit of Ms. Baudler, the franchise agreement between Tacala and Taco Bell, and the depositions of Willimantic restaurant Manager Lee Brandi and Tacala's Director of Training John Hefferman, establish that Taco Bell ceased owning the Storrs and Willimantic restaurants once the franchise agreement was entered into in 1996. Although Taco Bell apparently owned the Waterford restaurant where Blake worked when the first sexual harassment complaint was filed against him, the plaintiff admits that Taco Bell no longer has an ownership interest in Tacala and did not have one when she was hired or when the alleged harassment of her occurred.
As a Title VII plaintiff opposing summary judgment, Zoldak's burden of producing evidence to support her claim is de mininius. See Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). She may not meet this burden, though, by relying upon assertions unsupported by evidence, conclusory statements, or mere allegations or denials of the adverse party's Rule 56 materials. Id. Here, Zoldak has produced no evidence to support her claims that the operations of Taco Bell and Tacala were interrelated and that the companies shared common management and ownership when they made decisions concerning her employment. Her mere denials of the defendant's Rule 56 materials with respect to these Cook factors are not sufficient to create genuine disputed issues of material fact. Zoldak does identify the Answer Book as evidence of the second Cook factor, centralized control of labor relations. However, as stated above, the book does not indicate that Taco Bell could require Tacala to follow its suggestions, and there is no evidence that Tacala actually did so. The "Answer Book," standing alone, is not enough to raise a genuine issue of material fact as to the Cook factors. Accordingly, there is no genuine disputed issue of material fact that centralized control of labor practices existed between Taco Bell and Tacala.
Finally, and most importantly, the plaintiff has presented no evidence concerning the central question upon which Cook teaches the Court to focus: Did Taco Bell make the final decisions regarding employment matters related to Zoldak? See Cook, 69 F.3d at 1240. In fact, in their Local Rule 9(c)(1) statement, the defendants contend that it is an undisputed fact that Taco Bell "played no role in the investigation of Zoldak's complaint of sexual harassment, in the discipline meted out to her alleged harasser, or in her ultimate discharge six months later." As evidentiary support for this contention, the defendants rely upon the affidavit of Ms. Baudler which contains a specific statement to that effect. In response to this contention, in her Local Rule 9(c)(2) statement Zoldak denies this is an undisputed fact, "to the extent that Taco Bell Corp's. labor relations policies may have played a part in the manner of the investigation."(emphasis added) However, this is an insufficient showing under Goenaga to defeat an employer's motion for summary judgment in a Title VII case. Id., 51 F.3d at 19 (failure to come forward with evidence and relying, instead, on speculative assertions is insufficient to create a genuine disputed issue of material fact). As such, the Court concludes that there is no genuine disputed issue of material fact that Tacala, not Taco Bell, was the only entity involved in the decision to terminate Zoldak and the investigation of her sexual harassment complaint.
The plaintiff also relies on the deposition testimony of a "high ranking manager" at Tacala, John Hefferman, who described funneling information from the Taco Bell training and human resources departments to Tacala so that he may assure that company policies are followed. There is no evidence, however, suggesting that this training information related to specific personnel matters or was followed.
3. Summary of Ruling Concerning Title VII and CFEPA Claims Against Taco Bell
The Court concludes that there is no genuine disputed issue of material fact that Taco Bell was not the plaintiff's employer for purposes of Title VII liability. Therefore, Taco Bell cannot be held liable under Title VII or the CFEPA. Accordingly, the defendants' motion for summary judgment is granted as to the Title VII and CFEPA claims against Taco Bell.
C. Negligent Infliction of Emotional Distress
Taco Bell argues that it is entitled to summary judgment because it was not the plaintiff's employer, and played no role in her termination. As such, it cannot be held liable for negligent infliction of emotional distress, which can only arise from the termination process.
Tacala argues that it is entitled to summary judgment because it did not engage in conduct which posed an unreasonable risk to the plaintiff of suffering severe emotional distress during the termination process.
1. Generally
In the employment context, the cause of action for negligent infliction of emotional distress only arises where the defendant engaged in unreasonable conduct in the termination process. Parsons v. United Technologies Corp., Sikorsky Alrcraft Div., 700 A.2d 655, 667 (Conn. 1997) (quoting Morris v. Hartford Courant Co., 513 A.2d 66, 69 (Conn. 1986)); see also Belanger v. Commerce Clearing House, 25 F. Supp.2d 83, 84 (D. Conn. 1998); Cooper v. Dick's Clothing and Sporting Goods, 25 F. Supp.2d 59, 61 (D. Conn. 1998); Cowen v. Federal Express Corp., 25 F. Supp.2d 33, 39 (D. Conn. 1998); Thomas v. St. Francis Hosp. Med. Ctr., 990 F. Supp. 81, 91 (D. Conn. 1998); Rosenberg v. Meriden Housing Authority, No. CV950377376, 1999 WL 1034611, at * 9-10 (Conn.Super.Ct. Oct. 29, 1999). But see Karanda v. Pratt Whitney Aircraft, No. CV-98-582025S, 1999 WL 329703, at *5 (Conn.Super.Ct. May 10, 1999),criticized by Dorlette v. Harborside Healtheare Corp., No. CV 990266417, 1999 WL 639915, at *3 (Conn.Super.Ct. Aug. 9, 1999). In order to sustain a claim of negligent infliction of emotional distress in this setting, Zoldak must allege that her "actual discharge was done in an inconsiderate, humiliating or embarrassing manner." Belanger, 25 F. Supp. 2d at 84-85 (quoting Lund v. Stern Co., No. CV-94-0463413, 1995 WL 216846, at *1 (Conn.Super.Ct. April 4, 1995)). A plaintiff cannot base such a claim on the fact of termination alone, even if that termination was wrongful. See Parsons, 700 A.2d at 667; Belanger, 25 F. Supp. 2d; Cooper, 25 F. Supp.2d at 61; Huff v. West Haven Bd. of Educ., 10 F. Supp.2d 117, 124 (D. Conn. 1998). Thus, in evaluating the plaintiff's claims, the Court first must determine whether she has presented evidence (1) that her employer engaged in unreasonable conduct, that is, conduct which was inconsiderate or intended to humiliate or embarrass the employee and, (2) that the conduct was engaged in during the course of the employment termination process. See id.
There are a number of Connecticut decisions that have evaluated allegations of negligent infliction of emotional distress against this standard. For example, in Cooper v. Dick's Clothing and Sporting Goods,supra, the plaintiff employee was trying on golf shoes when he received an emergency telephone call in which he was informed that his father was gravely ill. The plaintiff rushed out of the store and, in the process, neglected to take off the shoes. Two and a half days later, he returned with the shoes, intending to purchase them. During his shift, however, the store employees confronted the plaintiff, accused him of theft, and he was terminated. Id. at 60. The plaintiff asserted inter alia a claim for negligent infliction of emotional distress. Recognizing that the termination of an employee, even if unjustified, is not sufficient by itself to sustain a claim for negligent infliction of emotional distress, the court dismissed the claim because the plaintiff had failed to allege sufficiently egregious conduct engaged in by the defendant's agents during the process of terminating his employment. Id. at 61.
Similarly, in Thomas v. St. Francis Hosp. Med. Ctr., supra, the plaintiff employee alleged that the defendant hospital discriminated against her on the basis of her race, religion, marital status, and gender. She claimed that the discrimination lead to her receiving verbal and written job performance warnings, a suspension, and, eventually, termination of her employment. 990 F. Supp. at 91. She also claimed that her supervisor made two comments to her prior to her termination relating to her race, marital status, and gender, characterizing the plaintiff as a black, unwed mother. Id. at 92. The plaintiff brought suit claiming, inter alia negligent infliction of emotional distress. The court dismissed the negligent infliction of emotional distress claim on the basis that the plaintiff had not alleged any unreasonable conduct in the termination process itself Id. see also Carvahlo v. Int'l Bridge Iron Co., 3:99CV605, 2000 WL 306456, at *1041 (D. Conn. Feb. 25, 2000);Newtown v. Shell Oil Co., 52 F. Supp.2d 366, 375 (D. Conn. 1999); Gardner v. St. Paul Catholic High School, CV 9701435515, 1999 WL 1120320, at *2 (Conn.Super.Ct. Nov. 24, 1999).
2. The Instant Case.
a. Taco Bell
As discussed at § B.2., supra, Zoldak has failed to demonstrate that Taco Bell was her employer. As such, Taco Bell cannot be liable for this cause of action on that basis and there is no evidence presented that Taco Bell or its employees were involved in plaintiff's termination. Accordingly, that cause of action cannot survive as to Taco Bell.
b. Tacala
Tacala argues that it is entitled to summary judgment because there is no genuine issue of material fact that its conduct during the employment termination process was unreasonable; Zoldak argues that its evidence concerning Tacala's actions is sufficient to withstand summary judgment. However, as in Cooper and Thomas, Zoldak's discharge was not effectuated in an inconsiderate, humiliating or embarrassing manner. Although she claims that during the course of the thirty day suspension she was contacted by her employer and told not to return, this method of termination is not, by itself, "inconsiderate, humiliating, or embarrassing." Even if Tacala were unjustified in dismissing Zoldak, her termination alone is not a sufficient basis for a claim of negligent infliction of emotional distress. See Parsons, 700 A.2d at 667;Belanger, 25 F. Supp. 2d; Cooper, 25 F. Supp. 2d at 61; Huff, 10 F. Supp. 2d at 124. As the court stated in Thomas, the plaintiff must allege additional unreasonable conduct by the defendant during the termination process. See 990 F. Supp. at 92.
Zoldak further argues that if the Court finds that Tacala's conduct during her termination was not unreasonable, it should consider Tacala's conduct prior to her dismissal as evidence supporting her claim of negligent infliction of emotional distress. Specifically, she contends that Tacala's decision to retain Blake in a supervisory position after he allegedly sexually harassed another employee subjected her to a sufficiently unreasonable risk of harm. Under Parsons, however, claims of negligent infliction of emotional distress only can be based on an employer's unreasonable conduct in the termination process. See 700 A.2d at 667.
The plaintiff urges this Court to adopt the reasoning of Karanda v. Pratt Whitney Alrcraft, a Connecticut Superior Court decision holding that a claim for negligent infliction of emotional distress in the employment context may be based upon conduct which did not occur during the termination process. See 1999 WL 329703, at *4-6. The court inKaranda based its decision on a change in the Connecticut Worker's Compensation Act that eliminates coverage for mental and emotional impairments. See Conn. Gen. Stat. § 31-275 (16). The court reasoned that "[f]ailing to recognize a cause of action for negligent infliction of emotional distress in the non termination employment context would lead to the anomalous result of precluding an employee from receiving compensation for emotional distress suffered at the hands of employers." 1999 WL 329703, at *5 Noting the differences between Parsons and Karanda, the Second Circuit recently acknowledged that outside the scope of the termination process, "[w]hether a viable emotional distress claim for negligent acts in the employment context exists under Connecticut law is. unclear." Malik v. Carrier Corp., 202 F.3d 97, 100 n. 1 (2d Cir. 2000). Although Zoldak argues that Malik's discussion of Karanda expresses doubt as to whether the Connecticut Supreme Court would continue to limit negligent infliction of emotional distress claims to actions taken during an employees termination, this Court declines to adopt the reasoning of the Karanda court. Thus, Zoldak's claim of negligent infliction of emotional distress cannot be based on Tacala's pretermination actions.
Accordingly, summary judgment shall enter as to the claim of negligent infliction of emotional distress against Tacala.
D. Intentional Infliction of Emotional Distress
As previously discussed, plaintiff's claim of intentional infliction of emotional distress relates to the defendants' employment decisions regarding Blake, and to Tacala's alleged retaliatory conduct. The plaintiff argues that by failing to terminate Blake or otherwise adequately respond to the prior sexual harassment complaint against him, Taco Bell intentionally inflicted emotional distress upon her. In addition, she contends that Tacala subjected her to emotional distress by hiring Blake and then retaliating against her after she made her own sexual harassment allegations against him.
Taco Bell and Tacala argue that they are entitled to summary judgment because no reasonable jury could find that either acted a manner so outrageous that it could support a claim for intentional infliction of emotional distress.
1. Generally
In order for the plaintiff to prove her claim of intentional infliction of emotional distress she must establish four elements: (1) that the defendants intended to inflict emotional distress; or that they knew or should have known that emotional distress was a likely result of their conduct; (2) that the conduct was extreme and outrageous; (3) that the defendants' conduct was the cause of the plaintiffs distress and (4) that the emotional distress sustained by the plaintiff was severe. See Petyan v. Ellis, 510 A.2d 1337, 1342 (Conn. 1986); see also Preston v. Phelps Dodge Copper Prods. Co., 647 A.2d 364, 371 (Conn.App. 1994). "The 'extreme and outrageous' standard is a high one: 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." Reed v. Town of Branford, 949 F. Supp. 87, 91 (D. Conn. 1996) (quoting Restatement (Second) of Torts § 46, comment, d (1965)); see also Ziobro v. Connecticut Institute for the Blind, 818 F. Supp. 497, 502 (D. Conn. 1993); Kintner v. Nidec-Torin Corp., 662 F. Supp. 112, 114 (D. Conn. 1987); Collins v. Gulf Oil Corp., 605 F. Supp. 1519, 1521 (D. Conn. 1985). The question whether the defendant's conduct rises to the level of extreme and outrageous conduct is to be determined by the Court in the first instance. See Reed, id.; see also Ziobro, id; Kintner, id.;Collins, id.
2. The Instant Case
a. Intentional Infliction of Emotional Distress Based on Defendants' Employment Decisions Regarding Blake
Zoldak argues that if Taco Bell had properly responded to the first sexual harassment complaint that was made against Blake, and had terminated Blake's employment at that time, she would not have been subjected to his later harassment of her. The plaintiff also points to a survey from 1993-94, completed by employees in the Waterford restaurant where Blake worked, as evidence that Taco Bell was aware that Blake was sexually harassing employees but did not take his behavior seriously. The survey contains anonymous remarks about Blake and other managers. With respect to Blake, one of the comments indicates that he had spoken with one employee in a sexually suggestive and offensive way. The plaintiff also points to the deposition testimony of Crishna Holly, the employee who complained to Taco Bell about Blake's sexual harassment of her in 1994 or 1995. Holly testified that although Blake was temporarily suspended during the Taco Bell investigation of her complaint, she felt that her complaint was not investigated properly and she was pressured by Taco Bell into agreeing to transfer Blake rather than seek his termination. Plaintiff argues that these actions were sufficiently extreme and outrageous to support a claim of intentional infliction of emotional distress. She further claims that Tacala was aware of the complaints against Blake when it hired him, and that by choosing to retain Blake after it had assumed ownership of the Storrs restaurant, Tacala exposed her to further risk of emotional distress.
Taco Bell eventually terminated Blake's employment, but according to Taco Bell records, the reason for this action is the closing of the restaurant where he worked. He was recommended for rehiring, and Tacala did so when it assumed ownership of several Connecticut franchises.
The survey is attached as an exhibit to the deposition of John Hefferman, who is currently Tacala's director of training and who was the manager who apparently investigated the previous complaint.
Without more, neither the manner in which Taco Bell addressed the prior sexual harassment complaint against Blake, nor his subsequent retention by Tacala constitute the intentional, extreme and outrageous conduct required for this cause of action to proceed. A number of decisions have held that an employer's failure to prevent sexual harassment by a coworker, even when the employer was aware that allegations of such behavior had been made, fails to meet this standard of harm. See, e.g.,Newtown, 52 F. Supp. 2d at 375 (granting defendant's motion for summary judgment on count of intentional infliction of emotional distress where plaintiff claimed that despite an investigation, her supervisor and other superiors failed to take action to end verbal sexual harassment by co-worker); Dobrich v. Gen'l Dynamics Corp., 40 F. Supp.2d 90, 105 (D. Conn. 1999) (granting defendant's motion for summary judgment on count of intentional infliction of emotional distress where plaintiff alleged that employer failed to stop multiple incidents of physical and verbal harassment by several employees).
Allowing Blake to remain an employee in a supervisory role despite the prior incident of sexual harassment, without more, was not a intentional act by Taco Bell and Tacala motivated by a desire to inflict emotional distress. Similarly, the existence of that one complaint does not necessarily indicate that either defendant knew or should have known that emotional distress to other employees, like Zoldak, was a likely result of their actions. Although the way in which a company responds to an allegation of sexual harassment possibly may lead to liability for this intentional tort to other employees, the defendants' conduct in this case does not rise to that level. Moreover, were the Court to hold otherwise, employers would be forced to terminate employees based upon a single incident of sexual harassment, rather than consider other alternatives. Thus, Blake's retention, without more, is not an act sufficiently extreme and outrageous to support a claim of intentional infliction of emotional distress against either defendant.
Defendants also argue that Zoldak's intentional infliction of emotional distress claim against Taco Bell is time-barred under Connecticut law. See Conn. Gen. Stat. § 52-577. However, the court does not reach this argument.
The survey response is also insufficient to meet the standard for intentional infliction of emotional distress, even when considered along with the prior Blake incident. Hefferman testified at his deposition that the response indicating inappropriate sexual conduct by Blake may have been concerning the harassment of Holly. See Dep. of John Hefferman at 74. As such, the plaintiff has not established more than the prior harassment of Holly by Blake, or Tacala's knowledge of it.
The surveys also contain a second reference to sexual harassment by Blake: an anonymous comment states that another manager threatened to press charges of harassment against anyone who did the same to Blake. Given that this remark does not directly allege an additional claim against Blake, the Court will not consider it in evaluating the plaintiff's evidence with respect to defendants' motion for summary judgment.
The defendants' actions do not rise to the level of extreme and outrageous conduct. Taco Bell investigated Blake and responded to its findings by transferring him; Tacala hired him upon Taco Bell's recommendation. While these decisions may have failed to prevent Blake's harassment of Zoldak, they are not "so extreme in degree, as to go beyond all possible bounds of decency." See Reed, 949 F. Supp. at 91.
Although it is unclear from her complaint and her memorandum in opposition to defendants' motion for partial summary judgment, the plaintiff also appears to base her intentional infliction of emotional distress claim on Tacala's alleged inadequate response to her own sexual harassment allegations against Blake. Zoldak apparently contends that Tacala failed to promptly address her complaint and failed to prevent Blake from visiting or calling the Storrs restaurant where she worked. In support of this assertion, Zoldak claims (1) that Blake came to the restaurant and asked her for a date four days after Regional Manager Ed Murray told her that Blake would not be allowed to contact her, and (2) that Blake later called the store to complain to other workers about Zoldak. The plaintiff further suggests that Tacala did not protect the confidentiality of her complaint. She bases this claim on two incidents in which Tacala employees seemed to be aware of the allegations she had made against Blake.
These actions by Tacala, even when considered with the decision to rehire Blake, do not rise to the level of extreme and outrageous conduct. Tacala managers investigated Zoldak's complaint and at the conclusion of the investigation, fired Blake. Although Zoldak may have preferred that Tacala take swifter action, Tacala's response cannot be regarded as "atrocious and utterly intolerable in a civilized society."Reed, 949 F. Supp. at 91. Moreover, Zoldak has failed to allege facts indicating that Tacala could have prevented Blake from having any contact with her, or that Tacala was responsible for informing other employees about her complaint. Thus, the plaintiff cannot base her claim of intentional infliction of emotional distress on Tacala's response to her sexual harassment allegations against Blake.
b. Intentional Infliction of Emotional Distress Based on Other Conduct by Tacala
As an alternative basis for her claim of intentional infliction of emotional distress against Tacala, the plaintiff claims that she has "advanced facts which show that she was subjected to extreme and outrageous retaliatory conduct by [Tacala] after she made her complaint of harassment." See Pl. Mem. in Opp'n to Defs.' Mot. for Summ. J. at 13. It appears that these facts are the following: (1) she was not included in a management meeting; (2) she learned that her new supervisor had been told about her harassment complaint despite the representation that it would remain confidential; and (3) a manager at another Taco Bell restaurant refused to loan her supplies and said that he did not want to associate with her. See Aff. of Heather Zoldak at ¶¶ 12, 13, 16, and 17. In addition, she claims that after she filed her complaint with the CCHRO the following conduct occurred: (1) she was not promoted; (2) she did not receive a raise; (3) she was "writt[en] up" for conduct which she was previously told was acceptable; (4) her employment was terminated; and (5) she experienced a general reduction in the amount of praise she received from her supervisors. See Aff. of Heather Zoldak at ¶¶ 19-25.
Courts have generally dismissed claims for intentional infliction of emotional distress because the conduct alleged and proven by the plaintiff was not "extreme and outrageous" on factual records more egregious than presented here. See e.g., Rosenberg v. Meriden Housing Authority, No. CV 950377376, 1999 WL 1034611, at *6-7 (refusal to allow plaintiff to speak or respond to allegations about his conduct, interrupting him, and refusing him to permit his accusers during a meeting concerning the termination of his employment, did not constitute extreme and outrageous conduct); Henderson v. Hoban, No. 391352, 1998 WL 405268, at *5-6 (Conn.Super. July 10, 1998) (defendant shouted at plaintiff, threatened to strike her, verbally attacked her, threatened and abused her, inviting a physical altercation); Richter v. Danbury Hospital, No. 307869, 1998 WL 321853, at *6 (Conn.Super. June 9, 1998) (defendant showed dislike and antipathy toward plaintiff, recommended reduction of his privileges and influenced others to terminate plaintiffs employment); DeLeon v. Little, 981 F. Supp. 728, 738 (D. Conn. 1997) (supervisor's conduct in ordering employee to purchase illegal drugs, stand guard while supervisor ingested drugs, ordering employee to do personal errands and tasks, making repeated telephone calls to employee at her home, threatening to terminate employee and replace her with an individual of another race, implementing discriminatory sick time policies, monitoring work attendance, and criticizing employee in from of other employees not sufficiently extreme and outrageous); Hill v. Pinkerton Security Investigation Srvcs., Inc., 977 F. Supp. 148, 160 (D. Conn. 1997) (conduct not extreme and outrageous where plaintiff complained about race discrimination and, as a result, was subjected to adverse employment conditions, transferred to two other locations, disciplined, and reprimanded).
Those decisions where the courts have held that there was a question of material fact as to whether behavior was sufficiently extreme or outrageous to give rise to an intentional tort appear to involve more egregious misconduct than here See e.g., Appleton v. Board of Education, 730 A.2d 88, 101 (Conn.App. 1999) (defendants subjected plaintiff to "humiliating series of incidents in front of coworkers," told her they were collecting information on her, had police escort her off the premises, required her to undergo psychiatric evaluation and made her take leave even though evaluation showed she could work); Brown v. Ellis, 484 A.2d 944, 944-947 (Conn.Super. 1984) (defendant demanded that plaintiff employee, known to have fear of heights, take photographs from high places).
In the instant case, even crediting the events and changes in work conditions identified by the plaintiff in her affidavit, they do not rise to the level of extreme and outrageous conduct on the part of Tacala. Therefore, Tacala cannot be held liable for intentional infliction of emotional distress based on that conduct.
Accordingly, the defendants' motion for summary judgment is granted as to this claim as to both defendants.
Genuine Issues of Material Fact
The Court finds that there exist genuine issues of material facts as to the Title VII and CFEPA claims against Tacala, including the following: (1) whether Tacala retaliated against the plaintiff after she filed her CCHRO complaint and (2) whether the termination of the plaintiff's employment by Tacala was in retaliation for her filing a CCHRO complaint.
Conclusion
The defendants' motion for summary judgment [doc. # 25] is GRANTED IN PART and DENIED IN PART. The motion is granted as to (1) all claims against the defendant Taco Bell and (2) the claims for negligent infliction of emotional distress and intentional infliction of emotional distress against the defendant Tacala. The motion is denied as to the Title VII and CFEPA claims against the defendant Tacala.
The Court issued an order to show cause [doc. #17] on July 22, 1999, directing the parties to show cause why the defendant Blake should not be dismissed from this action because of the plaintiff's failure to serve him with a summons and complaint in accordance with Fed.R.Civ.P. 4. The order directed the parties to respond by August 16, 1999, and advised that failure to do so would result in the defendant Blake being dismissed from this action. The Court never received a response to that order. Accordingly, the defendant Blake is dismissed from this action.