A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.

Some cases are easy to explain in a short blog post.

This is not one of them.

But a new Connecticut Appellate Court case released today, Grasso v. Connecticut Hospice, Inc. (download here)  has too many nuggets of information to pass up.  It is an example to employers about how cases never truly seem to be over in this litigious climate and that details are important — even in settlement agreements. 

Background Facts

Here are the background facts:

  • Plaintiff employee worked as an employee for the hospice from 1998-2010. 
  • In 2009, she filed two complaints with OSHA regarding some defective chairs.  The administration ordered the hospice to repair the chairs.
  • Later that year, the Plaintiff then filed a whistleblower complaint with OSHA claiming that she had been retaliated against and harassed since the filing of the OSHA complaints. The administration found “reasonable cause” to believe a violation had occurred.
  • Thus in January 2010, the Hospice and Plaintiff entered into a settlement agreement on the whistleblower complaint where she worked as a part time employee in two offices.  The agreement contained a release of future claims for events that occurred prior to the execution of the agreement.
  • End of story, right? Wrong. One week later, the Plaintiff-Employee wrote to the company and alleged that they were breaching the settlement agreement.  Later that year, she quits.
  • You know what happens next, right? She filed a six-count complaint in Superior Court alleging a whistleblower violation, breach of the settlement agreement, breach of the employee handbook and claims of intentional infliction of emotional distress.   The defendant filed a counterclaim asking for declaratory judgment on the release she signed.  The Superior Court granted summary judgment to the employer.

The legal rulings

When the Connecticut Supreme Court came out with a decision nearly ten years ago that said that negligent infliction of emotional distress claims in the workplace were only viable when they occur during the termination process itself, it was the beginning of the end for these types of amorphous claims.  

The case, Perodeau v. City of Hartford is one that I touched on in an August 2010 post.  

A recent federal district court decision in Connecticut reinforces the broad scope of the Perodeau decision by dismissing such claims in various contexts.  

The case, Tomby v. Community Renewal Team doesn’t break new ground. But  it does reinforce the fact that these types of susceptible to a motion to dismiss.  Even if the employer’s stated reason for terminating the employee is "pretextual" or false, the court said that is not enough to support an NIED claim.  

For employers faced with "kitchen-sink" complaints in federal court, this case provides ample support for lightening the load and filing that motion to dismiss.

You’ve heard of the negligent hiring case.

Should we now get ready for "negligent exposure" cases?

A Connecticut Superior Court recently allowed a claim of negligence to proceed by a subordinate against a supervisor, on the grounds that the supervisor drew the subordinate into a dispute with another employee, exposing the subordinate to the costs of having to defend a discrimination claim. 

It is alleged that the supervisor directed the subordinate to join a conversation in which the supervisor allegedly made demeaning remarks to another employee. (The other employee has sued the subordinate and supervisor and others for damages arising out of an alleged assault.) 

The case, Wright v. Judge, 50 Conn. L. Rptr 357 (September 1, 2010) (download here), appears to be the first of its kind, at least in Connecticut.  (A quick search of Westlaw today showed nothing remotely similar. Heck, even Wikipedia is silent about it.)  The court’s opinion did not cite any cases in Connecticut (or elsewhere) that has allowed such a claim to proceed to discovery (or a trial). 

How did the judge get there? Three simple steps:

  1. First, the court found it foreseeable.  "An ordinary person in [the supervisor’s] position would know or should have known that by involving an unwitting subordinate employee in the physical and racial harassment of another employee, the subordinate employee could be subjected to liability by the harassed employee."
  2. Second, the court said that public policy justifies the imposition of a duty to aid or protect another. The court said this existed here because the subordinate alleged that the supervisor was in the "custody and control" of the subordinate at all times, thereby creating a "duty to protect him".
  3. Third, the court found that there was "proximate cause" because it was a substantial factor in the resulting harm.  "The court finds that the harm which allegedly occurred [costs and legal fees of defending a discrimination claim] … was of the same general nature as the foreseeable risk…"

Based on the court’s logic, however, it would seem to open the door other claims by co-workers as well.  It will be unclear for some time if this case will be an outlier or just a precursor to other claims. 

For employers, it is yet another reminder to stay vigilant in the area of employment law for the ever-changing landscape.