Workplace Distress Is Inevitable - State high court says stress is part of the job

March 26, 2002
Reprinted with permission of the Connecticut Law Tribune, March 25, 2002, by Kellie A. Wagner
Debbie Florence, mother of slain Jenny McMechen, holds her hand on her heart while wearing a tee shirt with the photo of her daughter, as she waits with supporters to testify at a Judiciary hearing at The Legislative Office Building in Hartford last week. McMechen was killed New Years Eve 2001 by her ex boyfriend, by whom she was pregnant by at the time. Her mother wants to see an increase in the penalty for the loss of an unborn child.  

Employees "reasonably should expect to experience some level of emotional distress, even significant emotional distress," in the workplace, according to the Connecticut Supreme Court, which ruled last week that workers cannot sue for negligent infliction of emotional distress before they are terminated from a job.  

In the ruling, Perodeau v. City of Hartford, the court further defined the rights of employers and employees under the state's discriminatory employment practice statutes, by considering two central issues on certification from the U.S. District Court for the District of Connecticut.  

The Supreme Court dissected Connecticut General Statutes §46a-60, concluding that state law does not impose civil liability against individual employees if their actions constitute a discriminatory practice as defined by the statute.  

The court also determined that individual municipal employees may not be found liable for negligent infliction of emotional distress arising out of conduct occurring in the context of a continued employment relationship. And that only claims of intentional infliction of emotional distress can be brought before a termination occurs.  

According to Wiggin & Dana employment law partner Peter Wendzel, the court's ruling will help shed light on the often gray areas of negligent infliction of emotion distress claims.  

"I think the Supreme Court's decision to draw a bright line-that nothing before termination qualifies for this tort-is very beneficial to an employer's ability to run its house," Wendzel said. He pointed out, however, that the ruling does nothing to change "that employees are still protected from other employees', or employers', outrageous acts."  

Acknowledging the Supreme Court "has never considered" whether state law imposes liability on individual employees, or whether individual employees maybe held liable for negligent infliction of emotional distress in a continued employment relationship, the U.S. District Court certified questions to the Supreme Court on Nov. 7, 2000, after granting most of the defendant's motion to dismiss.  

In the March 18 decision the court noted, "We cannot conclude that it is more difficult to foresee the emotional reactions of reasonable persons to wrongful conduct in the workplace than in other contexts," Justice Peter Zarella wrote. "Consequently, emotional distress can be a foreseeable injury in an ongoing employment relationship."  

Attorney James Brewer represented Perodeau, while the city was represented by Wesley Horton and Daniel Krisch, of Horton, Shields & Cormier, Hartford Assistant Corporation Counsel John Shea Jr. and certified legal intern, Trenton Haas.  

Several organizations also filed briefs in the case, including the Commission on Human Rights and Opportunities [CHRO] and the Connecticut Employment Lawyers Association.  

In 1998, the plaintiff, Michael Perodeau, a single parent and a Hartford police detective, filed a CHRO complaint against his supervisors and peers, alleging age and sex discrimination after he was transferred for not taking callbacks from the department in covering shift vacancies.  

Perodeau claimed that female and single mother officers in other divisions were not forced to take callbacks, and subsequently filed the complaint with CHRO.  

A year later Perodeau filed a complaint in the District Court alleging that his superiors retaliated against him for filing the CHRO complaint. He claimed, among other things, negligent infliction of emotional distress by all of the named defendants.  

The District Court granted the motion to dismiss on all claims, expect for claims against the individual defendants as pursuant to §46a-60 and the claims against the individual defendants for negligent infliction of emotional distress.  

Perodeau claimed that because the term "employer" is defined by statute to encompass any "person," an individual employee may be liable for violations under §46a-60.  

Citing federal cases such as Tomka v. Seiler Corp., Murphy v. Burgess and Bridgeport Hospital v. CHRO, the Supreme Court noted "the weight of federal authority further bolsters our conclusion that individuals who are not employers may not be held liable" under §46a-60.  

"We conclude that the reasoning of the federal cases concerning the individual liability of agents is equally applicable to the plaintiff's argument that "persons" who are not employers many be held liable under §46a-60," Zarella wrote. "If it is incongruous to hold an employer's agent individually liable, it is equally incongruous to hold an employee who is not an agent liable."  

In dissenting opinions on whether individual employees may be held liable under the act, Chief Justice William Sullivan and Justice Flemming Norcott disagreed with the majority of the court, stating employers have "a legal duty" to avoid subjecting employees to negligent infliction of emotional distress during employment.  

In his written opinion, Sullivan said the court's 1978 decision in Montinieri v. Southern New England Telephone Co., was "misguided," hinting the case should be revisited.  

In Montinieri, the court upheld a trial court jury instruction expanding the preexisting standard for emotional distress claims beyond bodily injury or illness or risk of harm from physical impact.  

In the present case, Sullivan said the majority of the court, citing "fears of flooding the courts with 'spurious and fraudulent claims,'" should not have relied on Montinieri.  

"The policy concerns cited by the majority arise in many contexts other that the context of ongoing employment," Sullivan wrote. "It is clear to me, for example, that the daily activities of doctors, police officers and teachers are no less chilled by the fear of spurious lawsuits based on Montinieri than the activities of employees in the workplace."  

Sullivan later added, "Connecticut apparently is now the only jurisdiction to draw a distinction between negligent infliction of emotional distress claims arising in the context of ongoing employment and claims involving termination of employment. I do not believe, however, that this court should adopt an expansive cause of action and then attempt to mitigate the resulting public policy concerns by imposing arbitrary, piecemeal restrictions in its cognizability."  

Wendzel said the court's decision would end the "kitchen sink approach to pleading" in negligent infliction of emotional distress claims.  

"The court's decision is helpful as the current law was not clear what actions by an employer have been necessary for an employee to make out with the claim," Wendzel said. "It's a good balancing of the rights of employers and employees while recognizing the remedies still available to employees."