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United States District Court, D. Connecticut.

Lisa MACKAY

v.

RAYONIER, et al.

NO. 3:96cv1582 (JBA)

Aug. 31, 1999.

Kathryn Emmett, Christine A. Sparaco, Emmett & Glander, Stamford, CT, for Lisa MacKay, plaintiff.

Carla R. Walworth, John W. Hamlin, Sarah Elizabeth Graves, Paul, Hastings, Janofsky & Walker, Stamford, CT, for Rayonier, Inc., defendant.

Karen L. Karpie, Robert J. Sickinger, Murphy & Karpie, Bridgeport, J. Alvin Leaphart, Leaphart & Johnson, Jesup, GA for John C. Swingle, defendant.

RULING ON RAYONIER'S MOTION FOR SUMMARY JUDGMENT

ARTERTON, District Judge.

Plaintiff Lisa MacKay brings this case against her former employer, Rayonier, Inc., and a former Rayonier Vice President for Pulp Manufacturing, John C. Swingle, claiming violations of Title VII and the common law of the state of Connecticut. The claims against Rayonier are for sexual harassment and retaliation under Title VII and for intentional and negligent infliction of emotional distress, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel and negligent misrepresentation under Connecticut common law. Defendant Rayonier, Inc. moves for summary judgment on all counts brought against it.

Factual Background

In February 1995, Rayonier confirmed its offer of a promotion to MacKay to the position of Manager, Pulp Sales Planning in the Marketing Department of Rayonier, located in Stamford, Connecticut. As part of this promotion, Rayonier increased MacKay's salary, provided certain moving expenses from Washington state, and agreed to reimburse MacKay for tuition, fees, and books in pursuit of her M.B.A. at NYU. (Pl.'s Ex. 27).

Upon MacKay's relocation to Stamford, various colleagues, including Swingle, invited MacKay to dinner and other social events. MacKay believed these events to be quasi-business related in that they would serve to acclimate and socialize her to the Rayonier culture, and believed that her attendance had importance in her successful career development. (Pl.'s Ex. A, at 38-40).

MacKay's attendance at one of these dinners, at the home of Rayonier employee Don Young, was arranged by Swingle, who apparently suggested to Young that MacKay be invited. Young suggested to MacKay that Swingle could give her a ride to and from Young's home, which he did. (Pl.'s Ex. 47). On the ride home from the Young dinner, Swingle invited MacKay to his own home for dinner the next evening. (Pl.'s Ex. 36, Pl.'s Ex. 43).

MacKay accepted the invitation, and during the next evening, May 4, 1995, the conversation before and during the dinner for two concerned ordinary social topics such as Swingle's family, and touched as well on business concerns. Of particular concern to MacKay was Swingle's disclosure that the Marketing Department was moving from Stamford, Connecticut to Jesup, Georgia, a fact that was supposed to be kept confidential and was known only to high level executives at Rayonier. Swingle also intimated to MacKay that he knew who would be staying in Stamford, and by implication suggested that he had influence over that decision. (Pl.'s Ex. 36; Pl.'s Ex. 43).

MacKay and Swingle's accounts of events after dinner, although similar in fundamentals, differ widely in specifics. Swingle claims that he and MacKay engaged in two to three hours of consensual sexual activity, whereas MacKay maintains that the sexual relations were in no way consensual, and that Swingle ignored her repeatedly when she told him, "No". (Pl.'s Ex. 36, Pl.'s Ex 43).

Over the next two days, MacKay told her friend and fellow Rayonier employee, Stephen Lewis, as well as her parents about some aspects of this incident, but it was not until Sunday, May 7, 1995 that MacKay reported the incident, in part, to her immediate supervisor, Tim Brannon, who in turn contacted Jack P. O'Grady, Senior Vice President, Human Resources. Stephen Lewis also reported the incident to Ron Casebier, MacKay's former supervisor at her previous position in Washington.

Rayonier investigated the incident and concluded that Swingle had shown bad judgment, but that there was no positive determination that the incident rose to the level of sexual harassment. Rayonier informed Swingle on May 14, 1995 of his termination, with the option to resign, on the basis of his poor judgment, and Rayonier's attendant loss of confidence in Swingle. Swingle chose not to resign, and his termination became permanent on June 13, 1995.

In opposition to summary judgment, MacKay asserts that during the investigation phase Rayonier questioned her veracity while implicitly accepting Swingle's rendition. Rayonier expressed the opinion to MacKay that her version of events did not account for the period of time as well as Swingle's did, and that many issues remained unresolved. (Pl.'s Ex. 42). Swingle's notes taken during the investigatory period indicate that he perceived Rayonier executives to be sympathetic and understanding of his story. (Pl.'s Ex. 44). Also following the Swingle incident and investigation, Rayonier employees who had conversations with MacKay documented those conversations for the file, apparently at Rayonier's request.

Following the incident with Swingle, MacKay felt medically unable to return to her previous work schedule. MacKay was contacted numerous times by Rayonier to clarify her medical status, and discuss her work situation for the immediate future. MacKay made clear that she was medically unable to relocate to Jesup, Georgia, Swingle's longtime hometown and the place where her job would be relocating, and that due to her psychological state she preferred to be in the Washington state area, where her family and support system was located. Rayonier and MacKay also exchanged several letters regarding her employment and medical leave status, with MacKay continually emphasizing her need to be in the Washington area, preferably in a job with commensurate salary and responsibility levels to her Stamford position, and with Rayonier maintaining that no such position existed, but that she was welcome to return to her Stamford job (imminently relocating to Jesup), or take a lower paying, lower level position. In a June 8, 1995 letter to MacKay, O'Grady indicated that if she was "not inclined to make the move" to Jesup, she would "be entitled to severance under standard policy arrangements." (Pl.'s Ex. 63).

Rayonier also conducted a meeting with MacKay on June 16, 1995 at which O'Grady, Patti White (defendant's Manager of Human Resources), and MacKay's mother were in attendance. At this meeting, O'Grady reiterated Rayonier's position that the Jesup job was still open to MacKay, but that no other job opportunity was available. O'Grady also discussed with MacKay outstanding disputes with regard to her medical benefits, the requirement that she see a doctor selected by Rayonier for evaluation, the disposition of a $10,000 settling-in allowance, and disputed expenses on her expense report. He further questioned MacKay about two separate occasions when she was in her Stamford office with Stephen Lewis, about whether Stephen Lewis was staying in MacKay's hotel room while in Stamford, insinuated that Rayonier had a credibility issue with MacKay, and argued with her about the level of assistance she was receiving from Rayonier. From the notes of this meeting taken by White, it can be inferred that the meeting was not altogether cordial, with MacKay becoming very upset and O'Grady appearing to lose patience with MacKay. (Pl.'s Ex. 70). O'Grady sent a follow-up letter to MacKay regarding some of these same issues on June 21, 1995. (Pl.'s Ex. 75).

While these events were transpiring, MacKay also contacted her former supervisors at her old job in Washington to inquire about returning. She was given a discouraging response. (Pl.'s Ex. 78, Pl.'s Ex. 79). Her former supervisors, as well as other employees whom MacKay had contacted, informed Rayonier that they had been contacted by MacKay. In response, O'Grady sent MacKay a letter expressing concern over MacKay's having spoken with other employees, and expressing a strong preference that she not undertake to talk with others on her own. (Pl.'s Ex. 83).

Following recommendations in a report by Dr. Laura Brown, a clinical psychologist hired by Rayonier to evaluate MacKay, Rayonier offered MacKay a part-time position in Port Angeles, Washington, as a Process Engineer, with the option of full-time employment. The annual salary for this position was significantly less than the Stamford position. (Pl.'s Ex. 88). MacKay responded to this offer from O'Grady by explaining that she viewed the offer as "inappropriate and unacceptable." MacKay's reasons for describing the offer in these terms included the lower annual salary than her Stamford (soon to be Jesup) job, lower status level, impossibility of continuing her M.B.A. studies, lack of equivalent work opportunities presented by the Port Angeles position in comparison to her Stamford position, the impending closure of the Port Angeles site, and the difficulty of continuing with her medical treatment in that location. (Pl.'s Ex. 90).

Despite continued correspondence over the issue of MacKay returning to work, the issue ultimately remained unresolved. The correspondence culminated in a January 16, 1996 letter from O'Grady explaining that "Rayonier cannot continue to hold open positions for you." (Pl.'s Ex. 95).

On August 15, 1996, MacKay filed this lawsuit against Rayonier and Swingle, alleging various federal and state law causes of action. Rayonier now moves for summary judgment against Lisa MacKay on all counts.

Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law." As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Tomka v. Seiler, 66 Ford 1295, 1304 (2d Cir. 1995). If, when viewing the evidence produced in the light most favorable to the non-movant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. Burrell v. City Univ, of N.Y., 894 F.Supp. 750, 757 (S.D.N.Y. 1995) (citations omitted). In cases alleging employment discrimination, the Second Circuit has held that additional considerations must be taken into account when deciding whether summary judgment should issue. See Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). In such cases, the trial court must be particularly cautious about granting summary judgment when the employer's intent is at issue, and affidavits and depositions must be scrutinized for circumstantial evidence that, if believed, would support the plaintiff's claim. Id. at 1224.

Discussion

On various grounds, Rayonier moves for summary judgment on MacKay's claims of sexual harassment, retaliation, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, and negligent misrepresentation.

1. Sexual Harassment Claim

Rayonier first disputes that the alleged assault by Swingle upon MacKay constitutes a hostile working environment under Title VII, arguing that a single incident that occurred after work hours, and that was not connected to work activity cannot constitute a hostile working environment, particularly where the alleged harasser was immediately terminated.

A hostile work environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Although "[c]onduct that is merely offensive and not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview," Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (internal quotations omitted), "even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for the purposes of Title VII liability." Tomka v. Seiler, 66 F.3d 1295, 1305 (2d Cir. 1995). Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). "These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a 'general civility code."' Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283 (1998) (citation omitted).

MacKay alleges that the sexual assault by Swingle took place after dinner at his home. Rayonier asserts that this incident cannot create an actionable hostile environment because this dinner was not officially sponsored by defendant Rayonier, and the record does not support any connection to the workplace. Rayonier misconstrues the current state of the law on the employer liability for sexual harassment.

In Faragher, the Supreme Court extensively addressed the development of the law of employer liability, explaining that hitherto most Courts of Appeals approached the question from the basic premise of common law principles of agency relationship. 118 S.Ct. at 2284-92. Recounting the differing positions and rationales that circuits had expressed on the issue, the Supreme Court explained that the circuits had invoked such standards as whether the harassing employee had acted within the scope of employment or on a "frolic and detour", whether the harasser had been aided by the agency relationship in committing the harassment, or whether knowledge of the harassment could be imputed to the employer.

Recognizing the lack of predictability in cases on the issue of employer vicarious liability, but observing that the various holdings "represent differing judgments about the desirability of holding an employer liable for his subordinates' wayward behavior," id. at 2287, the Supreme Court went on to inquire into the reasons that "would support a conclusion that harassing behavior ought to be held within the scope of a supervisor's employment, and the reasons for the opposite view," id. at 2288, concluding that:

. . . in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-by-agency relation principle embodied in § 219(2) (d) of the Restatement provides an appropriate starting point for determining liability.

Id. at 2290. However, the Supreme Court further explained that "we are not entitled to recognize this theory under Title VII unless we can square it with Meritor's holding that an employer is not 'automatically' liable for harassment by a supervisor who creates the requisite degree of discrimination." Id. at 2291. To counter the risk that a rule of employer liability for supervisory acts might become "automatic," the Supreme Court chose the latter of two alternatives: "one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment." Id.

Rayonier, however, in arguing that Swingle's act does not create a hostile work environment, seems to suggest that it is the former standard that the Supreme Court chose, rather than the latter. The Faragher/Ellerth formulation, the underlying rationale of which may be drawn from agency principles, establishes a standard in which the dispositive inquiries are whether or not the harasser was a supervisor, and whether or not the defendant can establish its affirmative defense. In so establishing this new standard, the Supreme Court hoped to eliminate the confusion and lack of clarity that ensued from Courts of Appeals applying traditional agency principles. See Faragher, 118 S.Ct. at 2286-87.

Therefore, if Swingle could reasonably be found to be a supervisor, and if his conduct could be found to constitute sexual assault, a jury could find that the conditions of plaintiff's employment were sufficiently altered such that an abusive working environment existed for the purposes of Title VII liability.

As the Tomka court further explained, however, once it is established that a hostile work environment existed, the plaintiff "must also establish [the defendant's] responsibility for the sexual misconduct" of its employees. Id. at 1306. In Faragher, supra, and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), the Supreme Court clarified the test to be used in determining whether a defendant employer is responsible for the sexual misconduct of one of its employees. In order to accommodate Title VII's basic policies of encouraging forethought by employers, the Supreme Court adopted the following formulation of affirmative defenses and the circumstances for their assertion:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

118 S.Ct. at 2292. Rayonier contends that MacKay cannot show that Swingle was her supervisor according to the Faragher/Ellerth standard, and thus cannot be held liable as a matter of law.

Rayonier first argues that Swingle was not a supervisor with immediate or successively higher authority over MacKay, and thus argues that the Faragher/Ellerth rubric does not apply to this case.1  Rayonier contends that there is no issue of fact as to Swingle being MacKay's immediate supervisor, or someone with successively higher authority over her, because MacKay admits that Tim Brannon was her immediate supervisor, and Brannon reported directly to Lee Nutter, the Executive Vice President, and because MacKay has commented that she believed that Swingle could be a mentor for her because he was not in "her direct chain of command." (Pl.'s Ex. A at 40-41).

fn1  Where the harasser is not the plaintiff's supervisor, "an employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it." Tomka, 66 F.3d at 1305 (citations and quotations omitted). In other words, where the harasser is not a supervisor, the employer is only liable for its own negligence. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998) (citing Faragher, 118 S.Ct. at 2290-92).

While Rayonier opines that MacKay's proposed definition of supervisor is too broad, Rayonier's definition is too constricted. In coming to the Faragher/Ellerth framework, the Supreme Court analyzed the supervisory liability question as follows:

The agency relationship affords contact with an employee subjected to a supervisor's sexual harassment, and the victim may well be reluctant to accept the risks of blowing the whistle on a superior. When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose 'power to supervise' -- [which may be] to hire and fire, and to set work schedules and pay rate -- does not disappear . . . when he chooses to harass through insults and offensive gestures rather than directly with threats of firing or promises of promotion.

Faragher, 118 S.Ct at 2291 (citations and internal quotations omitted). Rayonier's proposed model, in which the status of the harasser is tested merely by looking to the company organizational chart, is inadequate to meet these concerns in its inflexible formalism. High level employees in a company may not be directly responsible for an employee lower on the corporate ladder, but may nevertheless have actual influence over important job-related decisions affecting that employee, making it difficult for the lower level employee to walk away from the harassment. A genuine issue of material fact exists as to whether such was the case in Swingle's situation. He was identified as a "key member" of the management team in the pulp division, responsible for strategic planning at the Jesup, Port Angeles, and Fernandina mill sites, and participated in important decisions affecting the entire pulp division, which presumably included the relocation of the Stamford office to Jesup (a decision directly affecting MacKay's employment). (See, e.g., Pl.'s Ex. 11, Pl.'s Ex. 13). The position description for Swingle's job described as essential a "continuous and interactive relationship with Pulp Marketing [MacKay's division]. . . [and] very close cooperation and coordination with Pulp Marketing and Research. . ." (Pl.'s Ex. 11). A jury could infer from this relationship that the Vice President of Pulp Manufacturing had with MacKay's direct supervisor, the Vice President of Pulp Marketing, that Swingle also had influence over the terms and conditions of MacKay's job, despite not being officially in her line of direct reporting. Whether or not Swingle held supervisory status over MacKay for the purposes of the Faragher/Ellerth paradigm is therefore a question of fact for the factfinder.

Next, the defendant maintains that even if Swingle was a supervisor, no tangible employment actions were taken, and therefore Rayonier is entitled to assert the affirmative defense that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Where the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment, no affirmative defense is available. See Ellerth, 118 S.Ct. at 2270. "Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates." Id. at 2269.

MacKay asserts that Swingle's harassment culminated in a tangible employment action in that his assault caused her to suffer Post Traumatic Stress Disorder ("PTSD") and depression, which necessitated her taking a medical leave. This period of disability created a loss of income and an interruption of her employment. MacKay further asserts that the PTSD prevented her from moving to Jesup, because Swingle lived there, thus costing her the management job in the Pulp Marketing division. MacKay's formulation of tangible job detriment does not comport with that of the Supreme Court. The unfortunate sequelae claimed by MacKay were not brought about by Swingle bringing the official power of the enterprise to bear on his subordinate. Rather, MacKay's harm was the ultimate consequence of Swingle's assault, but Swingle's actions were not directed towards depriving MacKay of any tangible job benefits. On this record, there is no issue of material fact as to whether MacKay suffered a tangible employment action at the hands of Swingle. While she may have suffered serious harm and disruption to her career, these actions cannot be said to have been taken directly by Swingle. Therefore, because there was no tangible employment action, Rayonier may raise an affirmative defense to liability or damages that it 1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Rayonier further maintains that it is entitled to summary judgment because there is no issue of fact that it has established both prongs of the Faragher/Ellerth affirmative defense. "While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense." Ellerth, 118 S.Ct. at 2270. Rayonier claims that its sexual harassment policy, and model prevention efforts, as well as its prompt investigation and correction of the harassment establishes the first part of the defense.

While neither party disputes that Rayonier did promulgate a sexual harassment policy, and that it did offer sexual harassment training sessions, the plaintiff contends that the defendant's affirmative defense fails because Swingle never attended a sexual harassment training session. Rayonier claims that the plaintiff has misconstrued the record on this point, but that even if Swingle did fail to attend the seminar, this does not defeat the defense. Cynthia Kabbe, a Rayonier employee in the Human Resources department, testified at her deposition that Swingle did not attend the training session offered in Stamford in 1995. Although Swingle informed Kabbe that he had attended a training session in Jesup prior-to coming to Stamford, Kabbe had no record of Swingle having attended a sexual harassment training session. Rayonier has not submitted any documentation establishing that Swingle did, in fact, attend a session in Jesup. Kabbe also testified that while employees who were unable to attend a session were scheduled to attend a subsequent session, no discipline was given to those employees who did not attend, and only one session was scheduled to take place in Stamford in 1995. (Pl.'s Ex. 20, Def.'s Reply Ex. 7). This record raises a material issue of fact in dispute as to the adequacy of the training provided to Rayonier employees. This record is inadequate, for instance, to determine whether and to what extent the Rayonier training program was mandatory or merely one more program that employees could and did successfully avoid by pleading a pressing schedule. The lack of discipline imposed for missed sessions and the lack of make-up sessions offered, coupled with the uncertainty as to whether or not at least one employee (Swingle) was ever required to attend a session, could be sufficient to allow a jury to find that Rayonier did not enforce the training program with seriousness.2

fn2  Rayonier further claims that it has established its entitlement to summary judgment on the second prong of the Faragher/Ellerth defense. Inasmuch as there is a factual dispute as to the first part of the defense, the Court does not reach whether or not Rayonier is entitled to summary judgment on the second prong.
2. Retaliation

Rayonier next moves for summary judgment on MacKay's claim of illegal retaliation by Rayonier. Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter." 42 U.S.C. § 2000e-3(a). The defendant asserts that MacKay has admitted that she could not have performed any job Rayonier would have offered her due to her disability, and therefore Rayonier cannot be liable for retaliation for failing to offer MacKay a position with the features that she desired. In the alternative, Rayonier asserts that MacKay cannot establish a prima facie case of retaliation.

Whether or not MacKay was in a position to accept or immediately take any position offered by Rayonier is a question separate and apart from whether Rayonier's actions constituted illegal retaliation. While MacKay will be held to her admissions as to her ability to return to work at Rayonier, (See Def.'s Reply Ex. 18), her medical condition does not give her employer carte blanche to take adverse employment action in her absence, or to take adverse action in anticipation of her returning to work to disadvantage her for reporting harassment. MacKay's claim of disability may ultimately undercut her proof of Rayonier's pretext, or her damages, but it is not dispositive of the issue of the existence of Rayonier's alleged retaliation.

Rayonier next argues that MacKay cannot establish a prima facie case of retaliation. To show a prima facie case of retaliation, an employee must show "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (quoting Tomka, 66 F.3d at 1308) (alterations in original).

Rayonier contends that MacKay can show neither an adverse employment action, nor any causal connection between the protected activity and any adverse employment action. Specifically, Rayonier maintains that at all times throughout the dispute, MacKay was free to return to her original position (although the position would have moved to Jesup), and because the whole department was moving to Jesup, it cannot be viewed as a retaliatory action that singled MacKay out for exercising her protected rights. The defendant also asserts that because MacKay refused offers of other positions in the Northwest, and because the job offers were made pursuant to the recommendation of Dr. Laura Brown that part-time positions could benefit MacKay's medical recovery, her claim of retaliation based on failure to respond to her transfer request cannot stand.

Following the incident with Swingle, MacKay and O'Grady engaged in a lengthy correspondence regarding the options open to MacKay. On June 6, 1995, O'Grady wrote to request MacKay's decision regarding whether or not she would be moving to Jesup. (Pl.'s Ex. 64). In a June 8, 1995 letter to MacKay, O'Grady wrote that "your job is moving to Jesup[,] Georgia and as such we need to know your interest in relocating to the Southeast. If you are not inclined to make the move, you will be entitled to severance under standard policy arrangements." (Pl.'s Ex, 63). On June 16, 1995, MacKay met in person with O'Grady, during which meeting MacKay informed O'Grady that moving to Jesup would be "traumatic," and that she would rather have a position in the Northwest, where her family and medical providers were. O'Grady responded that "there is no job in the Seattle office or at [the] Research [facility]," and further indicated that "he was not sure the company had a requirement to accommodate her." (Pl.'s Ex. 70). On June 21, 1995, O'Grady again wrote to MacKay to inquire whether she would be returning to her job in the Marketing Department, and expressed the company's "desire that you return to work as soon as you are able." (Pl.'s Ex. 75). Following receipt of a recommendation by Dr. Brown, O'Grady wrote again to MacKay on September 6, 1999 to offer her a position in Port Angeles as a Process Engineer, a nonmanagement position at a salary lower than her Stamford job. (Pl.'s Ex. 88). On October 4, 1995, MacKay replied to O'Grady characterizing the Port Angeles job as unreasonable, and reminding O'Grady of her previous requests for a transfer to the Seattle Office or the Shelton Research Center, which had only had been met with the offer of the Jesup position. (Pl.'s Ex. 90). O'Grady' s response of October 30, 1995 to this letter, expressed his disagreement with MacKay's "accusations." On November 9, 1995, Rayonier announced that it had hired a new Manager of Pulp Sales Planning, MacKay's previous position in Stamford. On December 11, 1995, O'Grady again wrote to MacKay to remind her that she had not responded to the letter of October 30 and that her Family and Medical Leave Act time was exhausted, indicating that "Rayonier is willing to offer you several options regarding your return to work. . . . In a final effort to accommodate your requests, however, Rayonier is willing to offer you a return to your previous marketing job or a transfer to an available position in the State of Washington." Specifically, Rayonier offered MacKay the choice of returning to her Jesup job, returning to her old job at the Research Center, or taking the Port Angeles job. O'Grady concluded by warning MacKay that these offers could not remain open indefinitely, and that "[i]f I do not hear from you by January 5, 1996, we shall be forced to conclude that you do not intend to return to work here and that you have resigned your employment at Rayonier effective as of that date." (Pl.'s Ex. 93). MacKay responded to O'Grady, on January 2, 1996, telling him that the three offers were not acceptable because she was physically unable to take the Jesup job, and the other two options were at lower pay and levels of responsibility than her Stamford position. MacKay also disputes that her failure to accept one of these three options should constitute her resignation, noting that "[i]f I am no longer employed by Rayonier after January 5, 1996, it will be because Rayonier terminated me, not because I have resigned. I have repeatedly requested only that Rayonier treat me in such a way that, to the extent possible, I do not suffer a loss of the income, job status, job benefits, promotional and other employee opportunities that I had before Swingle assaulted me." (Pl.'s Ex. 94).

Whether or not any of Rayonier's actions with respect to MacKay's employment constituted adverse action, however, is a question of disputed fact to be resolved by the factfinder under the totality of the circumstances. Although Rayonier did give MacKay the option of returning to her original position, the fact that the job was moving to Jesup from Stamford, coupled with the unfortunate circumstance of Swingle being a major presence in a very small, company town, creates a genuine issue as to the viability of the Jesup position as a realistic option for MacKay, and calls into question Rayonier's stated desire of having MacKay return to work as soon as possible.

The defendant further argues that it gave MacKay two options besides going to Jesup, but that she turned both the positions down. These offers do not entitle Rayonier to summary judgment on the retaliation count. Rayonier first argues that neither of these offers constituted an adverse employment action inasmuch as the difference in the cost of living made the salaries equivalent, and MacKay later applied for a similar position with another company. Such a determination, however, is a quintessentially factual question to be determined by the jury. Alternatively, Rayonier contends that the alternate job offers were not adverse because they were made on the recommendation of Dr. Brown, who advised that MacKay could be aided in her recovery were she to work part-time. This issue, however, more properly goes to the question of pretext, which is also a question of fact in this case where the intent of the employer is at issue, and there are additional facts that inferentially support a finding of retaliation, including a letter from O'Grady reminding MacKay that Swingle was a popular and well-liked employee before her accusations and Swingle's own perceptions of management as being sympathetic to his side.

After the alleged sexual assault, MacKay made clear to Rayonier that she could not take the position in Jesup, but inquired as to the possibility of returning to her previous position at the Research Center in Washington. At that time, O'Grady was unresponsive to this request, despite the fact that the job was apparently still available, (See Pl.'s Ex. 78, the position was "not filled, not posted, not looking"), MacKay had been successful in that position, as indicated by her having been recommended for a promotion while she was at the Research Center; and Rick Chapas' note to MacKay to "remember my offer," presumably referring to his proposal that she return to her old job if the Stamford position did not work out, (Pl.'s Ex. 30).

The terms and conditions of the options offered to MacKay (going to Jesup or taking the part-time position in Port Angeles, a site that was scheduled to close), could reasonably support a jury's finding that these offers were pretextual because they were objectively unreasonable and unacceptable, particularly in light of the conspicuously absent option of simply immediately offering MacKay a return to her former Seattle job. Although Rayonier eventually offered MacKay this option, this action was made over six months after her initial request without explanation of the delay, whereas, before she left the job she believed her boss was enthusiastic about having her return if things did not work out,3  and where a return to this job would have met MacKay's insistence on being near her support systems and medical providers.

fn3  On June 21, 1995, Rick Chapas was contacted by MacKay, who expressed her desire to return to the Research Center. Chapas informed her that they were not hiring at that point, in contrast to his earlier offer to her return. (Pl.'s Ex. 74).

Rayonier further disputes that any inappropriate treatment MacKay received at the hands of Rayonier (including, among other things, questioning her credibility, disputing her expenses, being summoned to attend meetings while ill), rose to the level of retaliation as a matter of law. In this argument, Rayonier seems to confuse the prima facie requirement that plaintiff show an adverse employment action with the requirement that plaintiff show that the adverse action was causally related to the protected activity. While these incidents of insensitivity alone would not constitute adverse employment actions, taken in combination with the alleged adverse action taken by Rayonier in unreasonably refusing to offer her a return to her Research Center position, they could support a reasonable inference of retaliatory motive on the part of the defendant. The significance and conclusions to be drawn from these circumstances is disputed. Plaintiff's spin is that relations between the plaintiff and defendant deteriorated as a result of her reporting an incident that created a difficult situation for Rayonier, one that involved a well-liked and valuable employee (Swingle) who had recently been brought to Stamford at great company expense. The inference of pretext and retaliatory motive is supported by what a jury could find was the aggressive and obstructionist undertone in the correspondence from O'Grady to MacKay and their interaction in the June meeting, the investigatory senior level executives' sympathy with Swingle (and inferential hostility to MacKay) (See Pl.'s Ex. 44, Pl.'s Ex. 83), and the defendant's lost patience with MacKay as an employee (see, e.g., Pl.'s Ex. 63, Pl.'s Ex. 64, Pl.'s Ex. 75). What inferences should be drawn from this record and whether they support plaintiff's claims of pretext and retaliatory motive must be resolved by the jury.

3. Intentional Infliction of Emotional Distress

To prevail on a claim for intentional infliction of emotional distress, the plaintiff must prove: 1) that the actor intended to inflict emotional distress; or knew or should have known that emotional distress was the likely result of its 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. See Petyan v. Ellis, 200 Conn. 243, 253 (1986). Ordinarily, the disputed conduct must exceed all bounds tolerated by decent society, not be merely rude, tactless or insulting. See Petyan, 200 Conn. at 254 (1986). "[A] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility." Whelan v. Whelan, 41 Conn.Supp. 519, 522 (1991).

Rayonier claims that its actions were valid personnel actions, and that MacKay's subjective impression that the defendant had insulted her or hurt her feelings is insufficient to form a basis for an action of intentional infliction of emotional distress. MacKay claims that Rayonier's retaliatory actions do constitute intentional infliction of emotional distress. Despite the disputed issue of fact as to the defendant's retaliatory motive in this case, a finding of retaliation does not automatically expose an employer to liability for intentional infliction of emotional distress as well. The actions taken must still fulfill the requisite characteristic of being extreme and outrageous. Rayonier's alleged actions do not rise to the level of outrageousness necessary to support the tort of intentional infliction of emotional distress as a matter of law.

While the factual record could support a finding that Rayonier's actions were unreasonable or inappropriate, or ill-motivated or mean-spirited, by their nature--obstructing plaintiff's return to work and being harsh to plaintiff in her vulnerable condition--no rational factfinder could find them such as to support a finding of intentional infliction of emotional distress. Accordingly, summary judgment is granted on this count.

4. Negligent Infliction of Emotional Distress

In order to prove a claim for negligent infliction of emotional distress, the plaintiff must prove "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." Parsons v. United Technologies Corp., 243 Conn.66, 88-89 (1997)(citations omitted). Rayonier relies on Parsons to argue that in the context of employment cases, the tort of negligent infliction of emotional distress arises only where it is based on unreasonable conduct in the termination process, and such was not the case here.

The Connecticut Supreme Court explained in Parsons that:

[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.

Parsons v. United Technologies Corp., 243 Conn. at 88-89. The language of Parsons, however, must be limited to the facts of that case, which involved a termination and necessarily was confined to a discussion of what may or may not give rise to a cause of action in that context without reaching the larger questions presented here. Accord Karanda v. Pratt & Whitney Aircraft, Co., No. CV-98-58205S, 1999 WL 329703 (Conn.Super. May 10, 1999). The present case involves allegations of pretermination employer conduct, a different factual scenario than Parsons, and thus does not preclude a claim for negligent infliction of emotional distress.

Rayonier also maintains that even if claims of negligent infliction of emotional distress are not limited to the termination context, MacKay cannot show that its actions involved an unreasonable risk of causing emotional distress. This determination can only be made in the context of all the circumstances, including the nature of defendant's conduct juxtaposed against the state of its knowledge of plaintiff's medical condition at the time. Therefore, summary judgment on MacKay's claim of negligent infliction of emotional distress is denied.

5. Contract Claims: Breach of Contract, Promissory Estoppel, Negligent Misrepresentation, and Breach of the Covenant of Good Faith and Fair Dealing

Breach of Contract
Rayonier moves for summary judgment on MacKay's claim of breach of contract, on the grounds that the alleged employment agreement contains no term that required Rayonier to keep MacKay in Stamford for two to three years, or that she could complete her M.B.A. specifically at New York University.

Under Connecticut state law, contracts for permanent employment or employment for an indefinite term are terminable at the will of either party, whereas contracts for employment for a definite term may be terminable only for just cause. See Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 417, 474 (1980); Coelho v. PosiSeal Int'l, Inc., 208 Conn 106, 118 (1988). The mere fact that the plaintiff believed she had a written contract for long term employment specifically in Stamford is irrelevant unless the record contains evidence from which the jury could reasonably find that the defendant intended to enter into a contract for a definite term. See Christensen v. Bic Corp., 18 Conn.App. 451, 458 (1989). MacKay cites to a February 17, 1995 letter written by Cynthia Kabbe, Employee Relations Administrator at Rayonier containing the terms of plaintiff's promotion salary, job title, fringe benefits, which plaintiff construes as creating a binding written contract for employment of sufficient duration to complete her MBA. (See Pl.'s Ex. 27).

The Connecticut Supreme Court has explained that "[a] contract is to be construed as a whole and all relevant provisions will be considered together." HLO Land Ownership Assoc. Ltd. v. City of Hartford, 248 Conn. 350, 356 (1999). In interpreting contract terms, the intent of the parties is to be ascertained by a fair and reasonable construction of the written words, and the language used is accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter. "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." Id. at 357. "[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." Levine v. Massey, 232 Conn. 272, 279 (1995).

In an argument similar to that made by co-defendant Swingle opposing summary judgment on his counterclaims against Rayonier, (see Ruling of July 8, 1999, Rayonier v. Swingle, Civ. No. 3:96cv1872 (JBA)), MacKay claims that the term in the written contract granting her reimbursement for costs associated with pursuing her M.B.A. necessarily implies that the written employment agreement was for a term at least long enough for MacKay to finish her M.B.A. in Stamford, and thus is terminable only for cause. For substantially the same reasons as articulated in the Court's July 8, 1999 ruling in Rayonier v. Swingle, Civ. No. 3:96cv1872 (JBA), the Court finds that the written offer of employment contains no term of definite duration, and the parol evidence rule bars evidence outside the contract itself to contradict this unambiguous aspect of the writing . Therefore, any contract created by the offer letter was for an indefinite term, and terminable at will by either Rayonier or MacKay.

Promissory Estoppel
While MacKay's written agreement is like Swingle's in that it does not contain a definite term of years, unlike Swingle, however, MacKay has additionally brought her claim under a theory of promissory estoppel, alleging that MacKay relied on representations by Rayonier that she would have the opportunity to finish her M.B.A. while in Stamford, and that Rayonier reasonably should have expected her to rely on its representations regarding her tenure at the Stamford location. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206 (1987). In contrast to Swingle's failed claim that he was terminated in violation of a written contract with a definite term of years, MacKay alternatively alleges that the promotion was accompanied by promises that MacKay would have the opportunity to finish her M.B.A. while living in Stamford, and that MacKay relied on these promises to her detriment.

Rayonier opposes MacKay's claims of promissory estoppel on the basis that any promises made to her were insufficiently promissory. "A fundamental element of promissory estoppel [is] the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance." D'Ulisse-Cupo, 202 Conn. at 213. If, when "judged by an objective standard," the promisor had no reason to expect reliance, then an action for a breach of contract based on promissory estoppel must fail. Id.

The defendant cites to a recent Appellate Court case suggesting that promissory estoppel is not a separate cause of action, but is instead an alternative mechanism to enforce an otherwise validly formed contractual commitment that lacks traditional consideration. Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 592 n.5 (1998). According to defendant, since MacKay has not shown "some form of actual contractual commitment," Id. at 595-96, on the part of Rayonier to maintain MacKay in Stamford for two to three years, her promissory estoppel claim must also fail as well.

The Court finds that MacKay has failed to present sufficient evidence from which a jury could find a "clear and definite" promise to her that she would stay in Stamford for a period of time of up to three years, sufficient to complete her M.B.A.

Here, MacKay has submitted evidence that more than one Rayonier executive had discussed with MacKay her desire to finish her M.B.A. and the disruption of a cross-country move. She has further submitted her letter of offer, which states, "[t]he position is based at Rayonier Corporate Headquarters in Stamford, Connecticut." (Pl.'s Ex. 27). In fact, this position was, indeed, based in Stamford, at least for a period of time. The simple statement in the letter of offer makes no reference to duration of the position, and while the letter may have been sufficient to make out a promissory estoppel claim had she not been hired in Stamford in the first place, it contains no clear and definite promise about the length of time she would remain in Stamford.

The plaintiff's brief in opposition to the summary judgment motion also argues that MacKay was assured by Rayonier that she the position in Stamford would last for at least two to three years, sufficient time for her to complete her M.B.A. degree at NYU. See Memorandum in Opposition to Summary Judgment, p. 62-63. These representations, according to MacKay, are sufficiently promissory in nature to meet the D'Ulisse-Cupo standard. The Court has scoured the record, and finds no such representations regarding the duration of the Stamford position.

MacKay's deposition evidences that she informed Rayonier about her desire to combine the promotion with an opportunity to finish her M.B.A. at "an excellent school, like NYU," Pl. Dep. at 98, but she points to no particular representations by Rayonier regarding that particular school. She testified that she was "looking at a long term situation of living [in Stamford]", that in the context of purchasing a condominium, she was considering a two to three year investment because "that was the time frame when he [presumably Casobier] mentioned transfer here," and that her "own agenda was to buy a condo and live [in Stamford] for some time." Pl's Dep. at 98, 99, 127. In addition, the "Candidate Evaluation" forms cited by plaintiff reference her desire to continue her M.B.A., but there are no reference to a particular school or geographical location. The evidence cited by plaintiff in support of a promissory estoppel theory also includes her letter to Jack O'Grady, in which she claims that she was told that the position would be a "2-3 year appointment leading to further advancement." Pl's Ex. 90. Finally, Ron Casobier testified in his deposition that he "might have said that [the position] had a period of time, at which point there might be other opportunities possibly within Marketing itself." Casobier Deposition, p. 59.

Nothing in the record evidences any sort of promise or representation by Rayonier regarding the the geographical location of the position, or of plaintiff's M.B.A. program. These sparse and vague references are simply insufficient to allow a jury to infer that a clear and definite promise was made to MacKay that she would remain in Stamford for up to three years while she finished her M.B.A. at NYU.

Accordingly, summary judgment is granted as to both MacKay's breach of contract claim and her claim of promissory estoppel. Inasmuch as MacKay's breach of the covenant of good faith and fair dealing is derivative of her claim of breach of a written contract, summary judgment is granted on that claim as well.

Negligent Misrepresentations
MacKay claims that Rayonier represented to her that her position would be located in Stamford, and that she would be able to complete her MBA in the Stamford area, despite its knowledge of a pending relocation of the Marketing Department to Jesup. Rayonier asserts that there is no evidence of any misrepresentations made to MacKay, and even if misrepresentations were made, there is no evidence that Rayonier knew that such misrepresentations were false, or that Rayonier ought to have known, or had the duty of knowing that they were misrepresentations at the time they were made. Plaintiff's Exhibit 32, dated April 2, 1995, is the earliest instance of formal documentation of the Jesup relocation plan, in the form of a memorandum written by Tim Brannon, MacKay's supervisor in Stamford, to Kevin S. O'Brien, the Senior Vice President of Marketing who assumed Swingle's responsibilities after his termination. The proposal memorandum is sufficiently detailed such that it includes the time table for the relocation, the background of the department, discussion of pros and cons, and contains a draft of the organizational announcement of the move. While this document post-dates Kabbe's February 17th letter of offer of the Stamford position and MacKay's acceptance on March 1, 1995, the deposition of Rick Chapas indicates that he was working on a project examining the possibility of a company reorganization sometime before the April proposal. (Pl.'s Ex. L). The temporal proximity between the offer to MacKay and the first formal proposal regarding the Jesup relocation could support a reasonable inference that at least some of the Rayonier executives who were responsible for offering MacKay the position in Stamford, such as Tim Brannon, were also involved in or had knowledge of a contemplated corporate reorganization at the same time, such that the affirmative representations about the position's location in Stamford could be regarded as false, or negligently made. Based on the detail in the Brannon memorandum, and Chapas' testimony of involvement before the April proposal, a jury could reasonably infer that the Jesup move had been under consideration and was in a state of planning at the time MacKay was offered or accepted the job.

If a jury were to so find, Rayonier's representations regarding the position's Stamford location in the February 17 letter, and its failure to inform the plaintiff of a possible move despite her clearly expressed interest in pursuing her M.B.A. at New York University, could constitute "suppl[ying] false information for the guidance of others in their business transactions...." D'Ulisse-Cupo, 202 Conn. at 217-218. While a close question, the Court believes that this claim should be left for jury determination on plaintiff's justifiable reliance and/or the status of defendant's consideration of the Jesup move at the time of plaintiff's offer and acceptance. Summary judgment as to the count of negligent misrepresentation is therefore denied.

Conclusion

Summary judgment is GRANTED as to Counts Four and Five (intentional infliction of emotional distress), and the portions of Count Nine alleging breach of a written contract, breach of the covenant of good faith and fair dealing, and promissory estoppel. Summary judgment on plaintiff's remaining claims is DENIED.