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United States District Court, D. Connecticut.

Lisa MACKAY

v.

RAYONIER, et al.

NO. 3:96cv1582 (JBA)

Sept. 17, 1997.

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

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

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

RULING ON DEFENDANT RAYONIER'S MOTION TO DISMISS

ARTERTON, District Judge.

Plaintiff, Lisa MacKay, brings this case against defendants, Rayonier, Inc. and John C. Swingle, claiming violations of her rights pursuant to 42 U.S.C. §2000e et seq. and the common law of the State of Connecticut. This matter is before the court on defendant Rayonier, Inc.'s motion to dismiss Counts Four, Five, Six, Seven, and Nine of the complaint for failure to state a claim upon which relief can be granted.

In deciding a motion to dismiss, a court must construe in plaintiff's favor any well-pleaded factual allegations in the complaint. Finnegan v. Campeau Corp., 915 F.2d 824, 826 (2d Cir. 1990). Further, "[i]n determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Additionally, a court may dismiss the complaint only where it appears beyond doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Count Four: Intentional Infliction of Emotional Distress Through Swingle

In Count Four of the complaint, plaintiff alleges that "defendant Swingle's physically assaultive conduct constitutes intentional infliction of emotional distress. Defendant's conduct was extreme and outrageous. Defendant Rayonier is liable to plaintiff for defendant Swingle's physically assaultive conduct because at all relevant times defendant Swingle was acting as the alter-ego of defendant Rayonier." Amended Compl., Count Four, ¶¶52-54. Defendant Rayonier argues that even assuming that Swingle was acting within the scope of his employment, as is necessary under the doctrine of respondeat superior, Cardona v. Valentin, 160 Conn. 18, 22 (1970), such a claim is barred by the exclusivity provisions of the Worker's Compensation Act ("WCA"). The WCA provides that:

(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained. . . . All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished. . .

Conn. Gen. Stat. § 31-284. The plaintiff counters that her claim is subject to the "alter ego" exception to the WCA. When an employee "is of such rank in the corporation that he may be deemed the alter ego of the corporation," the WCA does not apply.1  Jett v. Dunlop, 179 Conn. 215, 219 (1979). "[A]n employee is to be treated as an alter ego of the corporation only if he 'may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity.'" Id. (citing Jett v. Dunlap, 179 Conn. at 218). "The distinction is based on identification, not agency." Jett v. Dunlap, 179 Conn. at 219. The Connecticut Supreme Court has further explained that the test is "based entirely on status and not on conduct." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). Under Connecticut law, the corporate entity will only be disregarded "where the corporation is a mere shell, serving no legitimate purpose, and [is] used primarily as an intermediary to perpetuate fraud and to promote injustice." Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544 (1982). Although the plaintiff has alleged that Swingle was acting within the scope of his employment at the time of the assault, and that he was "acting as the alter ego of Rayonier" she has not made allegations from which it could be inferred that the Rayonier company is a mere shell, serving no legitimate purpose or that Rayonier directed Swingle's actions. Amended Compl., ¶¶ 18, 19, 55.

fn1  The other exception to the WCA is where the employer has "directed or authorized" the employee to commit the tort. Jett v. Dunlap, 179 Conn. 215, 218-19 (1979).

Plaintiff further argues that this court should adopt the reasoning of an Illinois district court that provides a less strenuous test for when an employee is acting as an "alter ego." See Crissman v. Healthco Int'l, Inc., 60 Empl. Prac. Dec. (CCH) 41,859, 1992 WL 223820 (E.D. Ill. 1992). Plaintiff does not allege facts that could even bring her within the scope of Crissman. The Crissman court was concerned that "[a] corporation might well be able to maintain the requisite legal distance from its owners and yet take purposeful actions which are injurious to their employees." Crissman, 1992 WL 223820, at *8. Nonetheless, the court found that the company's "participation in any wrongdoing must indeed be intentional in order for the claim to survive." Id. at *9. Plaintiff has not alleged facts that could support a finding that Rayonier intentionally caused Swingle's conduct or acted in a purposeful manner.

Defendant's motion to dismiss Count Four will be granted.

Count Five: Intentional Infliction of Emotional Distress by Rayonier

Plaintiff's fifth claim for relief is based on defendant Rayonier's personnel actions subsequent to the alleged sexual assault by Swingle. Specifically, plaintiff alleges that, following her complaint that she had been attacked, defendant Rayonier made phone calls to plaintiff directing her to meet a company representative while she was ill; ordered plaintiff to see a company psychiatrist four times (eight hours); interrogated her about after-work-hours visits to her Stamford office; questioned her about and denied reimbursement for legitimate and authorized expense statements; and required plaintiff to choose between relocating to the small town where defendant Swingle had moved, or being demoted or terminated. Amended Compl., ¶¶ 33-49. Defendant argues that plaintiff's allegations do not rise to the level of outrageousness required by the tort of intentional infliction of emotional distress.

It is for the court to make an initial determination as to whether the alleged misconduct meets the threshold requirements of outrageousness. Gregory v. Southern New England Telephone Co., 896 F.Supp 78 (D.Conn. 1994); Collins v. Gulf Corp., 605 F.Supp. 1519, 1522 (D.Conn. 1985). To state a claim for intentional infliction of emotional distress, the plaintiff must allege: 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. Petyan v. Ellis, 200 Conn. 243, 253 (1986); Hiers v. Cohen, 31 Conn. Sup. 305 (1973). Ordinarily, the disputed conduct must exceed all bounds tolerated by decent society, not be merely rude or tactless or insulting. Petyan, 200 Conn. at 254; Brown v. Ellis, 40 Conn. Sup. 165, 167 (1984). Connecticut courts have recognized that "[m]ere insults, indignities, or annoyances that are not extreme or outrageous . . . may, however, give rise to a cause of action where the defendant is aware of the peculiar sensitivities of the plaintiff." Brown v. Ellis, 40 Conn. Supp. at 946. Plaintiff has alleged that she was in a particularly vulnerable state following the assault, and that defendant knew about her condition. Thus, while, plaintiff's allegations against Rayonier by themselves may not necessarily rise to the level required by the tort of intentional infliction of emotional distress, given that plaintiff has also alleged that defendant Rayonier was aware of her vulnerable, fragile, and frightened state of mind and body, a full determination of the facts, in context, is needed to establish whether these actions rise to the level of outrageous conduct necessary to support a claim of intentional infliction of emotional distress.

Counts Six and Seven: Negligent Infliction of Emotional Distress

Count Six alleges that defendant Rayonier is responsible for the emotional distress caused by defendant Swingle's physically assaultive conduct. Count Seven alleges that Rayonier's personnel actions constitute negligent infliction of emotional distress. As with plaintiff's fourth claim for relief, defendant Rayonier argues that both these counts are barred by the WCA. As discussed above, plaintiff's allegations fail to state a claim that Swingle acted as an alter ego for Rayonier in satisfaction of the requirements for the alter ego exception.

Plaintiff contends that her negligent infliction of emotional distress claims based on actions taken by Rayonier (Count Seven) are not barred by the WCA, because they are not even covered by the WCA. As amended in 1993, the WCA no longer covers "a mental or emotional impairment, unless such impairment arises from physical injury or occupational disease" and "a mental or emotional impairment which results from a personnel action, including but not limited to, a transfer, promotion, demotion or termination." Conn. Gen. Stat. §31-275 (16) (B) (ii) (iii); cited in Meyers v. Arcudi, 915 F.Supp. 522, 524 (1996). Defendant responds that because each count of plaintiff's complaint realleges each and every paragraph of the complaint, plaintiff is actually alleging that the infliction of emotional distress by Rayonier was also a result of the physical assault by Swingle. While it is true that a failure to distinguish between claims of emotional injury flowing from physical injury and emotional injury flowing from non-physical sources may bar a claim due to the WCA, see Meyers, 915 F.Supp. 522, the court must also construe all allegations of plaintiff's complaint in her favor. Plaintiff does separate her claims for negligent infliction of emotional distress into two different counts. While Count Six alleges physical injury as the source of emotional injury, Count Seven alleges emotional injury stemming from the personnel actions taken by Rayonier. Construing all inferences in favor of plaintiff, the court cannot say that she has failed to distinguish her claims of emotional injury flowing from physical injury and emotional injury flowing from non-physical injury.

The foregoing analysis, however, leaves Count Six in jeopardy. Count Six specifically alleges that the emotional injury flowed from Swingle's physically assaultive conduct. As an alternative, plaintiff argues that sexual assault may not be compensable under the WCA, either, because "it is not possible to determine as a matter of law whether the assault in this case arose out of plaintiff's employment as provided in the WCA." Plaintiff.'s Mem. in Opp. at 20. Plaintiff must walk a treacherous path with this argument. If the conduct "arose out of" her employment, it is barred by the WCA. On the other hand, if the conduct did not take place within the scope of Swingle's employment, Rayonier is not vicariously liable. See Cardona, 160 Conn. at 22. The court does not need to reach the question of whether the two standards are mutually exclusive in all cases. Plaintiff has alleged in her complaint that the assault took place within the scope of Swingle's employment. At the same time, plaintiff has not made any allegation that the assault did not arise out of her employment. Even if this is a factual matter not determinable on the pleadings, in the absence of the barest allegation that this event did not arise out of MacKay's employment, the court cannot construe something out of nothing, even drawing all inferences in plaintiff's favor. Moreover, the court cannot ignore the other allegations of the complaint. Plaintiff alleges the dinner to which Swingle invited her was "in the nature of business related social gatherings that were part of her orientation to her new job." Amended Compl., ¶ 20. Shortly before the assault, "'Swingle communicated unsolicited confidential business information about Rayonier to plaintiff." Amended Compl., ¶ 22. "Swingle's comments and conduct made plaintiff fear that if she offended or angered him he would ruin her career." Amended Compl., ¶ 25. Even if it is theoretically possible to walk the thin line between the requirements of the WCA and respondeat superior, plaintiff's allegations do not accomplish this feat.

Defendant's motion to dismiss Count Six will be granted.

Count Nine: Breach of Contract

Lastly, defendant Rayonier challenges plaintiff's breach of contract claim. Although she does not specifically name all the bases for the breach of contract claim, plaintiff essentially alleges a breach of the implied covenant of good faith and fair dealing, Amended Compl., ¶ 52(a); promissory estoppel, Amended Compl., ¶ 52(b)-(c); and negligent misrepresentation, Amended Compl., ¶ 52(d). Defendant contends that there was no contract, merely oral representations that do not rise to the level of contract. Secondly, defendant argues that even if the oral representations rise to the level of contract, there was no breach because plaintiff received all she allegedly bargained for.

Plaintiff alleges that certain statements were made to her, such as that the job in Stamford would last two to three years, Amended Compl., ¶ 11, and that she could earn her MBA in the New York area, Amended Compl, ¶ 52(d). "[T]he question of whether statements are promissory should be considered as a question of fact." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1 (1995). It is sufficient that plaintiff has alleged that these promises were made. It is not for the court to determine at this juncture whether these statements rose to the level of contract in the absence of a fuller contextual factual record.

Even if a contract existed, however, defendant contends that no breach took place, because plaintiff was offered the same position upon relocation to Georgia. "MacKay never alleges, however, that she had some contractual commitment from Rayonier not to relocate." Defendant.'s Mem at 25. What plaintiff does allege is that the job offer was for "a position as Manager, Pulp Sales Planning in the Marketing Department, in Stamford for two to three years" and that defendant offered her the position as an "opportunity to obtain her MBA degree in the New York area," Amended Compl., ¶¶ 52(b)-52(d), and that she relied on these statements to her detriment. A "'promise which the promisor should reasonably expect to induce action or forbearance is binding if injustice can be avoided only by enforcement of the promise." D'Ulisse-Cupo v. Bd. of Dir. of Notre-Dame H.S., 202 Conn. 206, 213 (1987). While the factual bases for her claims regarding these promises may be tested in discovery, at the motion to dismiss stage it is enough that plaintiff has alleged that defendant made these statements, and that they did not come true, while she relied on them to her detriment, to establish a claim for breach of contract and promissory estoppel.

Plaintiff further alleges that these promises were made "when it knew that it was planning to move the Marketing Department to Jesup, Georgia." Amended Compl., ¶ 52(d). This allegation is sufficient to support both her claims of breach of the implied covenant of good faith and fair dealing and negligent misrepresentation.

In essence, the principle of the covenant of good faith and fair dealing "is the fulfillment of the reasonable expectations of the parties." Magnan v. Anaconda Indus., 193 Conn. 558, 572 (1984). "Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party. Restatement (Second) of Contracts §205 (1979) (quoted in Magnan, 193 Conn. at 566). It is a "rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." Magnan, 193 Conn. at 567. Plaintiff's allegation is that defendant made a contract with her while knowing that a term of the contract -- that the job would be located in Stamford -- was not true. This is a sufficient allegation of the absence of good faith to constitute a claim under the covenant.

In order to state a claim for negligent infliction of emotional distress, a plaintiff must allege that a fact was misrepresented, and that the declarant had the means of knowing, ought to have known, or had the duty of knowing the truth. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217 (1987). "It is sufficient to allege that the representations contained false information." Id. at 218. Again, plaintiff has alleged that defendant represented to her that her new job would be in Stamford, Connecticut. She has also alleged that they knew at the time they made this representation that it was false.

Defendant further argues that the negligent representation and promissory estoppel claims were never stated in the complaint, and are being made for the first time in plaintiff's memorandum in opposition. The court interprets promissory estoppel claim as identifying a doctrine sought to be invoked to estop the defendant from denying the existence of the contract, not necessarily as a separate cause of action. The court understands the negligent misrepresentation claim to be an alternative basis for the plaintiff's breach of contract claim. On a motion to dismiss, a court must construe in plaintiff's favor all well-pleaded factual allegations. Plaintiff does not name a separate count "negligent misrepresentation" or "promissory estoppel," but she does allege facts sufficient to support these claims under her breach of contract claim. Where the facts are alleged to support the breach of contract claim, these variants on the contract claim will be permitted as alternative legal theories.

Conclusion

For the foregoing reasons, defendant's Motion to Dismiss is GRANTED in part and DENIED in part. Specifically, the motion is granted as to Count Four and Count Six. It is denied as to Counts Five, Seven, and Nine.