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Jorge v. SKMP Enterprises, Inc.

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

March 7, 2017

JORGE, DAVID
v.
SKMP ENTERPRISES, INC. D.B.A. NELSON AMBULANCE AND

          ORDER

          MICHAEL P KAMP, Judge

         ORDER REGARDING:07/06/2016 111.00 MOTION TO STRIKE

         The foregoing, having been considered by the Court, is hereby:

         ORDER:

         The defendant's motion to strike the first count of the plaintiff's complaint to the extent that it alleges, in part, termination due to union organizing activity is granted. Such claims are preempted by the National Labor Relations Act. Those portions of the first count that allege wrongful termination based upon claims of reporting unsafe work conditions is denied.

         In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), the court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.l) and quoted parenthetically the following language from that case: " Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action.... Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.) The court in Coe v. Board of Education, also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: " Prior case law 'ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint... the proper course for the court is to strike those allegations only....'" Id." Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003), superseded by statute on other grounds as stated in Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007). Although a motion to strike is the improper vehicle to assert lack of jurisdiction over the subject matter, the court is nonetheless required to address the issue of subject matter jurisdiction as it is implicated by the defendants' motion; see Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn.App. 236, 242, 717 A.2d 789 (1998); and may treat such motion to strike as a motion to dismiss. See Santorso v. Bristol Hospital, 308 Conn. 338, 351-52, 63 A.3d 940 (2013).

         NATIONAL LABOR RELATIONS ACT PREEMPTION" The... doctrine, emanating from San Diego Building Trades Council v. Garmon, [359 U.S. 236');">359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)] (activity clearly or arguably within § 7 or § 8 of the National Labor Relations Act; [29 U.S.C. § § 157, 158]; displaces state jurisdiction), precludes both state and federal courts from adjudicating issues that are entrusted to the National Labor Relations Board.... Preemption under Garmon not only preempts state substantive law, but safeguards the exclusive jurisdiction of the National Labor Relations Board over issues arguably within the scope of the NationalLabor Relations Act.... The National Labor Relations Board retains exclusive jurisdiction over activity that may constitute unfair labor practices under 29 U.S.C. § 158...." Based on its constitutional power to regulate interstate commerce, Congress has created by statute a uniform body of laws governing labor relations and has vested in the National Labor Relations Board the exclusive jurisdiction over administration of those laws. And, although the exclusive nature of this jurisdiction was not explicitly noted by Congress, [the United States Supreme] Court has held that such exclusivity was intended by Congress. Enactment of such exclusive jurisdiction must, by operation of the Supremacy Clause, pre-empt conflicting state-court jurisdiction." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 719-20, 771 A.2d 915 (2001).

         The Garmon preemption doctrine is as follows: " When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes. * * * In the absence of the [National Labor Relations] Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction." (Citations omitted; footnotes omitted.) San Diego Building Trades Council v. Garmon, supra, 359 U.S. 244-46."

         But the same considerations that underlie the Garmon rule have led the Court to recognize exceptions in appropriate classes of cases. We have refused to apply the pre-emption doctrine to activity that otherwise would fall within the scope of Garmon if that activity 'was a merely peripheral concern of the Labor Management Relations Act... [or] touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.'" (Footnote omitted.) Farmer v. United Brotherhood of Carpenters & Joiners of America, Local 25, 430 U.S. 290, 296-97, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), quoting San Diego Building Trades Council v. Garmon, supra, 359." [T]he N.L.R.B. had exclusive jurisdiction over a former employee's claim that he was wrongfully discharged due to his involvement in a labor union's preliminary efforts to organize employees; the allegation of wrongful discharge based upon participation in union-organizing activities was impermissible discrimination in regard to tenure, term or condition of employment under the provision of the National Labor Relations Act (NLRA) governing unfair labor practice, based upon the exercise of lawful rights given under the provision of the Act governing self-organization." 51A C.J.S. 446-47, Labor Relations § 721 (2010), citing Methodist Hospital of Kentucky, Inc. v. Gilliam, 283 S.W.3d 654 (Ky. 2009).Reporting unsafe work conditions " is neither prohibited nor protected under the NLRA, and thus is not preempted by Garmon." Paige v. Henry J. Kaiser Co., 826 F.2d 857, 862 (9th Cir. 1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). U.S. 243-44.The defendant's motion to strike the second count (intentional infliction of emotional distress) and the third count (negligent infliction of emotional distress) is granted.

         Count two of the plaintiff's complaint sounds in intentional infliction of emotional distress based on the allegation that his employment was terminated for false reasons. The defendant moves to strike count two on the grounds that the claim is preempted and that the plaintiff has failed to state a claim." It is well settled that, in order to state a claim of intentional infliction of emotional distress, [i]t must be shown: (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." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 101, 700 A.2d 655 (1997). " Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448-49, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

         The plaintiff's allegation that he was discharged for a false reason are insufficient to even make out a claim of negligent infliction of emotional distress; Parsons v. United Technologies Corp., supra, 243 Conn. 88-89 (" [t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior" ); let alone a claim of intentional infliction of emotional distress, which requires " so extreme in degree, as to go beyond all possible bounds of decency." Valentine v. LaBow, supra, 95 Conn.App. 448. For the foregoing reasons, the court grants the defendants' motion to strike count two. Count three of the plaintiff's complaint sounds in negligent infliction of emotional distress based on the allegation that his employment was terminated for false reasons. The defendant moves to strike count three on the grounds that the claim is preempted and that the plaintiff has failed to state a claim."

         [I]n order to state [a claim of negligent infliction of emotional distress], the plaintiff has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm.... Accordingly, negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process.... The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88-89. The plaintiff's allegation that he was discharged for the wrong reason, therefore, is insufficient to state a claim for negligent infliction of emotional distress. The court, thus, grants the defendant's motion to strike count three.

         Because the plaintiff has failed to state a claim, the court need not analyze whether such claim is ...


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