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TINA DAIS
vs.
LAIDLAW TRANSIT INC.
 
Case:
D.N. CV95 0146079 S
 
Location:
SUPERIOR COURT OF CONNECTICUT JUDICIAL DISTRICT OF STAMFORD NORWALK AT STAMFORD
 
Date:
March 29 1996 Decided
 
Court:
John J. P. Ryan
 
Author:
The Hon. Justice John J. P. Ryan
 
OPINION: MEMORANDUM OF DECISION RE: MOTION TO STRIKE # 103

The plaintiff Tina Dais commenced this action against the defendant Laidlaw Transit Inc. by filing a six count complaint on June 14 1996. The plaintiff alleges that she was wrongfully terminated from her position as a bus driver after having tested positive for a random drug test administered by her employer the defendant. The plaintiff alleges the following claims against the defendant: a violation of General Statutes SEC. 31-51t wrongful discharge in violation of public policy breach of implied covenant of good faith and fair dealing defamation intentional infliction of severe emotional distress and a breach of General Statutes SEC. 31-128a et seq.

On November 13 1995 the defendant filed a motion to strike counts two five and six of the plaintiff's complaint accompanied by a memorandum in support of its motion. On December 18 1995 the plaintiff filed a memorandum in opposition to the defendant's motion to strike and the defendant filed a reply thereto on January 1 1996.

A motion to strike may be used to test the legal sufficiency of the allegations of a complaint. Practice Book SEC. 152. The motion to strike tests whether the complaint states a cause of action on which relief can be granted. Amore v. Frankel 228 Conn. 358 372-73 636 A.2d 786 (1994). It "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original.) Mingachos v. CBS Inc. 196 Conn. 91 108 491 A.2d 368 (1985). In ruling on a motion to strike, Court is limited to the facts alleged in the complaint. Novametrix Medical Systems Inc. v. BOC Group Inc. 224 Conn. 210 215 618 A.2d 25 (1992).

I.

The defendant argues that count two alleging wrongful discharge in violation of public policy should be stricken on the ground that an adequate statutory remedy already exists under General Statutes SEC. 31-51 et seq.

"The doctrine of wrongful discharge is a narrow exception to the rule that contracts for employment at will are terminable at the will of either party without regard to cause. . . . Under this doctrine a cause of action is only recognized where public policy is clearly contravened." Sheets v. Teddy's Frosted Foods Inc. 179 Conn. 471 474 427 A.2d 385 (1980).

"The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." Atkins v. Bridgeport Hydraulic Co. 5 Conn. App. 643 648 501 A.2d 1223 (1985). Moreover the superior courts have consistently held that a cause of action for wrongful termination exists only when a discharge violates public policy and the employee is otherwise without a statutory remedy. Deura v. Greenwich Hospital Superior Court Judicial District of Stamford/Norwalk at Stamford Docket No. 140029 (April 10 1995 D'Andrea J.); Cowan v. Warner-Lambert Company 1994 Conn. Superior Court Judicial District of Ansonia/Milford Docket No. 032564 (November 5 1994 Cocco J.); Wall v. Wausau Insurance Co. 1995 Conn. Superior Court Judicial District of New Haven at New Haven Docket No. 343318 (August 19 1994 Hadden J.) (holding that when a plaintiff has state and federal statutory remedies for the claimed violations an action may not be based on a common law claim); Pucci v. American-Republican 1994 Conn. Superior Court Judicial District of Stamford/Norwalk at Stamford Docket No. 118491 (May 23 1994 D'Andrea J.); Faulkner v. Sikorsky Aircraft 1994 Conn. Superior Court Judicial District of Hartford/New Britain at Hartford Docket No. 052080 (April 6 1994 Corradino J.).

The plaintiff alleges in count two that the defendant violated public policy as expressly stated in General Statutes SEC. 31-51t. Furthermore the plaintiff has alleged a violation of this statute in count one of her complaint. Because General Statutes SEC. 31-51 already affords a remedy for the plaintiff she may not allege a common law claim for wrongful discharge. Thus the defendant's motion to strike count two is granted.

II.

The defendant argues that count five alleging intentional infliction of emotional distress should be stricken on the ground that the plaintiff has failed to adequately allege that the defendant's conduct was extreme and outrageous.

In order to prevail on a claim of intentional infliction of emotional distress four elements must be established: "(1) the actor intended to inflict emotional distress or he knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous; (3) the defendant's conduct was the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was severe." (Citation omitted; internal quotation marks omitted.) DeLaurentis v. New Haven 220 Conn. 225 266-67 597 A.2d 807 (1991).

The Superior Court has stated that "whether an actor's conduct is sufficiently extreme and outrageous so that liability will attach is a question for the trier of fact." Brown v. Ellis 40 Conn. Supp. 165 167-68 484 A.2d 944 (1984). "Although the plaintiff's allegations may not arise to the level of extreme and outrageous conduct required . . . this is a question of fact for the trier." Clarkson v. Greentree Toyota Corporation 1994 Conn. Superior Court Judicial District of Danbury Docket No. 311823 (May 31 1994 Moraghan J.); Murasky v. Thomson Newspapers Inc. 1993 Conn. Superior Court Judicial District of Fairfield at Bridgeport Docket No. 292286 (October 27 1993 Freedman J.); Decampos v. Kennedy Center Inc. Superior Court Judicial District of Fairfield at Bridgeport Docket No. 260290 (November 23 1990 Licari J.).

The plaintiff alleges in her complaint that a representative of the defendant contacted her by telephone fired her because her drug test results were positive and the company van that she drives to her job had been removed that morning without regard to the fact that all of her personal belongings were in the van. (Plaintiff's Complaint P 10-13). The plaintiff has alleged sufficient facts to support a claim for intentional emotional distress. Therefore the defendant's motion to strike count five is denied.

III.

The defendant argues that count six alleging a violation of General Statutes SEC. 31-128a et seq. should be stricken on the ground that no private right of action exists to enforce General Statutes SEC. 31-128a et seq.

General Statutes SEC. 3l-128g provides in relevant part: "each employer shall within a reasonable time after receipt of a written request from an employee provide such employee with a copy of all or part of his personnel file . . . provided such request reasonably identifies the material to be copied." General Statutes SEC. 31-128f further provides: "no individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed of affiliated with the employer without written authorization of such employee. . . ."

The Superior Court in Turzer v. Connecticut National Bank 1991 Conn. Superior Court Judicial District of Fairfield at Bridgeport Docket No. 279671 (October 10 1991 Spear J.) looked to the legislative intent of the statute to determine how grievances brought under this statute should be remedied. Court determined that the legislative intent militates the Labor Commissioner's handling potential violations of SEC. 31-128g. Court stated that "the doctrine of primary jurisdiction militates against Court taking jurisdiction. . . . Ordinarily a court should not act upon subject matter that is peculiarly within the agency's specialized field without giving the agency an opportunity to apply its expertise . . . . The doctrine of primary jurisdiction militates in favor of this claim going first to the Labor Commissioner." Id. Court went on to grant the defendant's motion to strike the plaintiff's statutory claim under SEC. 31-128a.

In light of the holding in Turzer v. Connecticut National Bank supra the plaintiff does not have a private cause of action for a violation of SEC. 31-128a. Thus the defendant's motion to strike count six is granted.

Accordingly the defendant's motion to strike is granted as to counts two and six and denied as to count five.