VICTOR A. BOLDEN, District Judge.
Plaintiff, Anthony Bailey, brings this action against ESPN, Inc., Plaintiff's former employer. Specifically, Mr. Bailey seeks damages relating to the termination of his employment by ESPN, asserting causes of action in nine separate counts in his Amended Complaint (the "Complaint"). Defendant now moves to dismiss seven counts of the Complaint under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. [Doc. No. 23]. For the reasons set forth below, the Court hereby GRANTS in part and DENIES in part this motion.
A motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., is designed "merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof." Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (citations omitted). When deciding a Rule 12(b)(6) motion to dismiss, a court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether it is plausible that the plaintiff has a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).
A plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level," and assert a cause of action with enough heft to show entitlement to relief and "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 555, 570. A claim is facially plausible if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Although "detailed factual allegations" are not required, a complaint must offer more than "labels and conclusions," or "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Twombly, 550 U.S. at 555, 557 (2007). Plausibility at the pleading stage is nonetheless distinct from probability, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely." Id. at 556 (internal quotation marks omitted).
ESPN moves to dismiss Counts One, Two, Five, Six, Seven, Eight, and Nine of the Complaint. For the following reasons, the Court grants the motion to dismiss Count Eight and Count Nine, denies the motion to dismiss Count Five and Count Seven, and grants in part and denies in part the motion to dismiss Count One, Count Two, and Count Six.
Defendant moves to dismiss Plaintiff's claim for tortious interference and Plaintiff does not oppose this portion of Defendant's motion. Therefore, the Court dismisses Count Nine of the Complaint.
Mr. Bailey alleges that the ESPN's actions were intentional and extreme and outrageous in nature, were intended to and did cause him severe emotional distress, and caused him to incur damages. He further alleges that ESPN knew or should reasonably have known that its actions would cause him severe emotional distress. ESPN argues that this claim should be dismissed because Mr. Bailey has failed to allege facts that constitute extreme and outrageous conduct. The Court agrees.
Under Connecticut law, four elements must be established to prevail under a claim for intentional infliction of emotional distress: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his 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." Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 210 (Conn. 2000) (internal quotation marks and citation omitted). "In order to state a cognizable cause of action, Plaintiff must not only allege each of the four elements, but also must allege facts sufficient to support them." Golnik v. Amato, 299 F.Supp.2d 8, 15 (D. Conn. 2003). "Mere conclusory allegations are insufficient as a matter of law to support a cause of action for intentional infliction of emotional distress." Huff v. W. Haven Bd. of Educ., 10 F.Supp.2d 117, 122 (D. Conn. 1998).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Only where reasonable minds disagree does it become an issue for the jury." Appleton, 254 Conn. at 210 (citations omitted). "The general rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Golnik, 299 F. Supp. 2d at 15 (internal quotation marks and citations omitted).
Appleton, 254 Conn. 205, 210-11 (quoting 1 Restatement (Second), Torts § 46, cmt. (d), p. 73 (1965)). Connecticut courts have been reluctant to allow claims for intentional infliction of emotional distress, even in cases involving significant employment-related activities, and in applying Connecticut law, federal courts in this District have interpreted the extreme and outrageous requirement strictly. See Golnick, 299 F. Supp. 2d at 15-16 (collecting cases); Lopez-Salerno v. Hartford Fire Ins. Co., No. 3:97-cv-273, 1997 WL 766890, at *7, 1997 U.S. Dist. LEXIS 19724, at *19-21 (D. Conn. Dec. 8, 1997) (same).
"There is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain an action as the court must look to the specific facts and circumstances of each case in making its decisions." Menon v. Frinton, 170 F.Supp.2d 190, 198 (D. Conn. 2001) (internal quotation marks and citation omitted). However, "[c]ertain principles have emerged in the context of employer/employee relationships which guide the analysis. A court evaluates whether `. . . the employer's conduct, not the motive behind the conduct, [is] extreme or outrageous.'" Armstead v. Stop & Shop Companies, Inc., No. 3:01-cv-1489, 2003 WL 1343245, at *5, 2003 U.S. Dist. LEXIS 4107, at *14 (D. Conn. Mar. 17, 2003) (citations omitted) (alterations in original). Thus, claims of employer misconduct that challenge motive or intent are dismissed unless the manifesting conduct is itself outrageous or extreme. Furthermore, "[e]ven conduct which is unlawful may not be labeled `extreme and outrageous' unless it has a natural tendency to have an extraordinarily negative effect upon the emotional well-being of any person who is exposed or subject to it." Hamilton v. Town of Hamden, No. 3:08-cv-164, 2008 WL 4999301, at *10, 2008 U.S. Dist. LEXIS 94242, at *26 (D. Conn. Nov. 19, 2008) (internal quotation marks and citation omitted).
Viewing the allegations in the light most favorable to the Plaintiff, the Court finds that the conduct of the Defendant, as alleged in the Complaint, does not constitute extreme and outrageous conduct under the law. Mr. Bailey alleges that ESPN first computed the amount of bonuses and benefits to which he was entitled, and then almost immediately terminated him without cause in order to avoid paying him. The termination itself is not a sufficient basis for an intentional infliction of emotional distress claim. See Craig v. Yale Univ. Sch. of Med., 838 F.Supp.2d 4, 10 (D. Conn. 2011) ("Generally, personnel actions . . . that fall[] within the reasonably expected `vicissitudes of employment,' . . . even if unlawful, are usually not deemed extreme and outrageous conduct."). Neither is ESPN's alleged motive of depriving Mr. Bailey of the payments and benefits that were shortly to become due to him. See Parsons v. United Technologies Corp., Sikorsky Aircraft Div., 243 Conn. 66, 88-89 (1997) ("The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior."). Moreover, Plaintiff has pointed to no case law holding an employer liable for intentional infliction of emotional distress for terminating an employee shortly after calculating the amount of compensation to which the employee was about to become entitled.
Finally, there are cases in which similar conduct was found not to satisfy the requirement of extreme and outrageous conduct. E.g., Lopez-Salerno, 1997 WL 766890, at *7, 1997 U.S. Dist. LEXIS 19724, at *19 (finding termination of plaintiff "just as she should have become eligible for long term disability benefits" not to be extreme and outrageous conduct); Emanuele v. Boccaccio & Susanin, Inc., No. CV 90-0379367 S, 1992 WL 79823, at *3-4, 1992 Conn. Super. LEXIS 992, at *8-10 (Conn. Super. Ct. Apr. 10, 1992) (finding allegations that plaintiff was terminated for false and non-existent reasons to deprive her of benefits and compensation, and in contravention of employer's procedure, insufficient to establish employer's conduct as extreme and outrageous).
For all of these reasons, the motion to dismiss is GRANTED with respect to Count Eight.
The Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., is designed to regulate employee welfare and pension benefit plans. The Second Circuit "require[s] the exhaustion of administrative remedies for the denial of ERISA benefits." Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 107 (2d Cir. 2003). Because Count Five of the Complaint alleges a cause of action under ERISA and Mr. Bailey has not alleged that he pursued administrative remedies, ESPN argues that this count should be dismissed under Rule 12(b)(6). The Court disagrees and this claim will survive ESPN's motion to dismiss.
Count Five of the Complaint is titled "ERISA — Pension Plan," and alleges that "[t]he defendant terminated the plaintiff to avoid paying the plaintiff the supplemental retirement pension plan which would have afforded the plaintiff a significantly more valuable retirement pension that was to become due." Compl. ¶57. This language unambiguously asserts a statutory claim squarely under § 510 of ERISA, which prohibits the discharge of any participant or beneficiary of an ERISA plan "for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. ESPN suggests that this count is instead a claim for "breach of the terms of the `Supplemental Pension/Retirement Plan.'" No such allegation, however, appears anywhere in the Complaint.
ESPN appears to argue further that because Count Five cites § 502(a)(1)(B),
Johnson v. City of Shelby, Miss., 135 S.Ct. 346, 346, 347 (2014) (internal quotation marks and citations omitted); see also Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) ("Although it is common to draft complaints with multiple counts, each of which specifies a single statute or legal rule, nothing in the Rules of Civil Procedure requires this. . . . Instead of asking whether the complaint points to the appropriate statute, a court should ask whether relief is possible under any set of facts that could be established consistent with the allegations. . . . [T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal."); United States v. Provident Nat. Bank, 259 F.Supp. 373, 376 (E.D. Pa. 1966) ("If, in . . . a complaint, there also appears a reference to an irrelevant statute, or if no statute is mentioned, the Court need only take judicial notice of the relevant statute.").
ESPN does not contest that Mr. Bailey has alleged sufficient facts to establish a plausible claim for relief under § 510, other than his failure to allege exhaustion of administrative remedies. Further, as ESPN acknowledges, "[d]istrict courts in the Second Circuit have drawn a distinction between claims relating to violations of the terms of a benefit plan, and claims relating to statutory violations of ERISA, finding that the former, but not the latter, claims must be administratively exhausted." Doc. No. 23-1, at 5 (quoting Diamond v. Local 807 Labor Mgmt. Pension Fund, 595 F. App'x 22, 24 (2d Cir. 2014) (internal quotation marks omitted)).
The Court finds that Count Five of the Complaint alleges a statutory violation of § 510 of ERISA, and, because there is no requirement in the Second Circuit to allege administrative exhaustion for such a claim,
In this action, Plaintiff asserts state common law claims for breach of implied contract, promissory estoppel, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. Section 514 of ERISA provides that, with certain exceptions not relevant here, the provisions of ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any [covered] employee benefit plan[.]" 29 U.S.C.A. § 1144. This preemption provision "embrace[s] common law claims and other judicially created law." Collins v. S. New England Tel. Co., 617 F.Supp.2d 67, 71 (D. Conn. 2009). However, the Court must "address[] claims of pre-emption with the starting presumption that Congress does not intend to supplant state law" and "on the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 655 (1995).
The Supreme Court has laid out a two-part inquiry to determine if a state law "relate[s] to" a covered employee benefit plan for purposes of § 514(a): "if it [1] has a connection with or [2] reference to such a plan." California Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 324 (1997) (internal quotation marks and citation omitted). "[T]o determine whether a state law has the forbidden connection, [a court must] look both to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive, as well as to the nature of the effect of the state law on ERISA plans." Id. at 325 (internal quotation marks and citations omitted). The Second Circuit has provided the following guidance on those objectives:
Hattem v. Schwarzenegger, 449 F.3d 423, 429 (2d Cir. 2006) (citing and quoting Travelers; internal citations omitted). As to the second part of the inquiry, "[w]here a State's law acts immediately and exclusively upon ERISA plans . . . or where the existence of ERISA plans is essential to the law's operation . . . that `reference' will result in pre-emption." Dillingham, 519 U.S. at 325.
Mr. Bailey's claims for breach of an alleged implied employment contract, promissory estoppel, and breach of the implied covenant of good faith and fair dealing are distinct from his claim under § 510 of ERISA. As the parties agreed during oral argument on this motion on July 10, 2015, Counts One, Two, and Six of the Complaint are only partially preempted by ERISA. The existence of an ERISA plan is clearly essential to the specific portion of these claims seeking damages for Mr. Bailey's lost pension benefits and credits, as the specific terms of the covered pension plan would be essential to making out this portion of the claim. Therefore, the motion to dismiss Counts One, Two, and Six is GRANTED insofar as the claims relate to damages for lost pension benefits and credits and DENIED as to the remainder of the claims.
Because the Court has already found that this count fails to state a claim upon which relief may be granted based on analysis of the substantive state law, see supra Section II.B, it need not reach the question of whether Mr. Bailey's Intentional Infliction of Emotional Distress claim is preempted by ERISA.
Mr. Bailey alleges that, during the 2014 school year, ESPN informed parents at his children's school that he was terminated for embezzling $15 million, knowing that this information was false or recklessly disregarding whether it was false, and that his reputation suffered injury as a result of the statement. He alleges that these false statements were then communicated by these parents, including Kim Dobie, to school personnel, including some who volunteered with Mr. Bailey's wife on school fundraising efforts. These school employees, in turn, informed the school's principal of the alleged defamatory statements, and the principal thereafter required that Mr. Bailey and his wife engage in discussions with him regarding the statements that had allegedly been made against Mr. Bailey.
ESPN argues that this claim should be dismissed for the Complaint's failing to specifically identify the current or former ESPN employee who made the alleged statements against Mr. Bailey and any of the other "multiple" parents, aside from Kim Dobie, to whom these statements were allegedly made. However, given the allegations made in the Complaint, this additional degree of specificity is not required at this stage of the litigation.
"Under Connecticut law, to establish a prima facie case of defamation a plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." Bagley v. Yale Univ., 42 F.Supp.3d 332, 364 (D. Conn. 2014) (internal quotation marks and citation omitted); see also Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28 (Conn. 2009). Plaintiff has alleged facts that go to each of these elements.
The pleading of claims for defamation is governed by the liberal standards of Rule 8, Fed. R. Civ. P., and not a more heightened standard. See Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). "The test of a [defamation] complaint's sufficiency is whether it is detailed and informative enough to enable defendant to respond and to raise the defense of res judicata if appropriate. . . . The central concern is that the complaint afford defendant sufficient notice of the communications complained of to enable him to defend himself." Id. (internal quotation marks and citations omitted). In order to provide such sufficient notice, a plaintiff must plead what defamatory statements were made concerning the plaintiff, when they were made, and to whom they might have been made. Abrahams v. Young & Rubicam, 979 F.Supp. 122, 128 (D. Conn. 1997); see also U.S. ex rel. Smith v. Yale Univ., 415 F.Supp.2d 58, 109 (D. Conn. 2006) (defamation plaintiff "must at least plead the content of the alleged communications, when they were made, the context in which they were made, or by and to whom they were made").
ESPN has identified a case dismissing a defamation claim, solely on the basis of the plaintiff's failure to identify the anonymous employee or agent of the defendant responsible for making the allegedly defamatory statement. Neal v. Asta Funding, Inc., No. 13-cv-2176, 2014 WL 3887760, at *3, 2014 U.S. Dist. LEXIS 113142, at *6 (S.D.N.Y. June 17, 2014). The cases cited in Neal to support its holding, however, involve complaints with allegations of a more vague and conclusory nature, in which multiple pleading deficiencies were identified.
Connecticut courts afford a number of special defenses to defamation claims, whose appropriateness "depend[s] on the nature of the statements alleged to have been made," and thus, "[i]f the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses." Lamson v. Farrow, 53 Conn. L. Rptr. 298 (Conn. Super. Ct. Jan. 10, 2012). Nevertheless, "a review of the available special defenses for defamation shows that," where "the plaintiff has alleged that the defendant, a private Connecticut company, has made defamatory statements, through its employees or agents," even though "the plaintiff has not named the particular employees or agents of the defendant who made the defamatory remarks," "the plaintiff has alleged adequately specific information to put the defendant on notice of the claims made against it so that a relevant defense can be advanced." Roman v. United Illuminating Co., No. CV146044689S, 2015 WL 3555343, at *4, 2015 Conn. Super. LEXIS 1096, at *14-15 (Conn. Super. Ct. May 12, 2015).
In this case, Mr. Bailey has alleged that statements were made falsely claiming that he had been terminated from ESPN for embezzling a large sum of money, that these statements were made after his termination and during the 2014 school year, and that they were made to parents at his children's school, including Kim Dobie, by an "ESPN Source." The Complaint thus alleges the timing and the specific content of the alleged statement, the identity of one of the individuals to whom the statement was published, and that the individual who made the alleged statements was an employee of ESPN who was identified by the recipients of the statements as an "ESPN Source." With these allegations, Defendant has "sufficient notice of the communications complained of," and the more particular details may be drawn out in discovery. Cf. Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 410 (2d Cir. 2000) (observing the importance of "recogniz[ing] the difference between disposing of a case on a 12(b)(6) motion and resolving the case later in the proceedings, for example by summary judgment" and noting that "a plaintiff may allege facts suggestive enough to warrant discovery, even where those facts alone would not establish a cause of action for defamation").
The motion to dismiss the defamation claim therefore is DENIED.
For the foregoing reasons, Defendant's motion to dismiss is: GRANTED with respect to Count Eight and Count Nine; DENIED with respect to Count Five and Count Seven; and GRANTED with respect to Count One, Count Two, and Count Six, insofar as these counts directly relate to benefit plans covered by ERISA, and otherwise DENIED.
