Opinion
No. CV 06 4008944
April 23, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUIDGMENT #111
FACTS I. Procedural History
On September 29, 2006, the plaintiff, Michael Tomick, filed a seven-count complaint against the defendants, United Postal Service, Inc. (UPS) and Kevin Trudelle. Count one alleges negligent infliction of emotional distress against both defendants. Count two alleges intentional infliction of emotional distress against both defendants. Count three alleges violation of General Statutes § 31-51x against both defendants. Counts four and five allege violations of 42 U.S.C. § 12112(a) against UPS. Counts six and seven allege violations of General Statutes § 46a-60(a)(1) against UPS. The defendants removed the case to the United States District Court, District of Connecticut, by notice of removal on October 20, 2006.
On December 5, 2006, the plaintiff filed an amended complaint, which withdrew his claim in count three, violation of § 31-51x, against Trudelle. On December 6, 2006, the defendants filed a motion to dismiss counts one, two, three and seven. The District Court granted the motion with respect to count seven, but denied the motion with respect to counts one, two and three. On September 20, 2007, the defendants filed a motion for summary judgment on all of the remaining counts. The District Court granted the motion with respect to counts four and five, which allege claims under the Americans with Disabilities Act, and remanded the remaining counts to this court. The defendants filed a motion for summary judgment on February 20, 2009, in which they move for summary judgment on counts one, two, three and six, all of the remaining counts. The defendants attached a memorandum of law and various other documents in support of their motion. In response, the plaintiff filed an objection to the motion on April 2, 2009. In support, the plaintiff attached a memorandum in opposition as well as other documents.
CT Page 9745
II. Relevant Facts
The plaintiff alleges the following in his complaint. In 1984, the plaintiff began working for UPS as a driver. In 2003, the plaintiff injured his back and was diagnosed with a fifteen percent permanent partial disability rating. On December 1, 2004 the plaintiff experienced back pain and sought medical treatment at the Occupational Health Center of Lawrence Memorial Hospital. Based on his injury, the plaintiff requested a "driver's helper" to assist him at work and UPS agreed to provide a helper.On December 2, 2004, the plaintiff reported to work but was not assigned a helper. The plaintiff reminded UPS that they had promised him a helper, but embarked on his delivery route without any assistance. After a few hours of work, the plaintiff was in extreme pain. He contacted his wife and UPS to alert them that he was going to seek medical attention. The plaintiff's wife then contacted Trudelle, the plaintiff's supervisor, and inquired as to why the plaintiff had not been provided a helper. The plaintiff's wife was upset by her conversation with Trudelle and expressed this to the plaintiff when he returned home.
UPS instructed the plaintiff to return his truck to the UPS center. The plaintiff returned the truck and when he arrived he asked Trudelle why he had not been provided a helper. Trudelle accused the plaintiff of acting irrationally and said that it appeared that the plaintiff was under the influence of drugs or alcohol. The plaintiff became agitated, and Trudelle told the plaintiff that he needed to undergo a drug test. Trudelle and Ray Congdon, another supervisor, refused to allow the plaintiff to get in his vehicle to leave. The plaintiff became increasingly agitated and informed Trudelle that he needed to seek medical attention for his back immediately. The plaintiff told Trudelle that he "should have kicked [Trudelle's] ass for the way [Trudelle] talked to [the plaintiff's] wife." Trudelle accused the plaintiff of engaging in workplace violence and informed the plaintiff that he would be fired if he did not submit to a fitness-for-duty observation, including a controlled substance test. The plaintiff refused to submit to the test, and Trudelle terminated the plaintiff's employment.
The plaintiff traveled to Lawrence Memorial Hospital with Congdon, where he submitted to the fitness-for-duty observation but did not complete a controlled substance test. The plaintiff was treated for his back pain and was told that he could return to work at a modified duty status. The following day, the plaintiff reported to UPS and was called to a meeting with Trudelle, another UPS supervisor and a union steward. Trudelle demanded that the plaintiff submit to a controlled substance test and the plaintiff agreed. The test was never conducted, however, and the plaintiff was fired for workplace violence based on his comment to Trudelle the previous day.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"[L]itigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
I. Count One: Negligent Infliction of Emotional Distress
The defendants argue that summary judgment should be granted with respect to count one, which alleges negligent infliction of emotional distress against both defendants, because they did not engage in conduct that created an unreasonable risk of causing the plaintiff emotional distress. Additionally, the defendants argue that none of the alleged conduct occurred during the termination process, precluding a claim of negligent infliction of emotional distress based on an employment relationship. The plaintiff responds that summary judgment is inappropriate with respect to count one because genuine issues exist as to when the termination process began and whether the defendants' conduct was unreasonable.
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). "The dispositive issue in each case [is] whether the defendant's conduct during the termination process was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002).
In the present case, the defendants offer evidence that the plaintiff's employment was terminated in a private meeting on December 3, 2004. (Dep. of Michael Tomick, p. 86; Notice of Termination.) In response, the plaintiff offers evidence that Trudelle fired him on December 2, 2004, for failure to submit to the fitness for duty test. (Dep. of Michael Tomick, p. 52.) The evidence presented by the plaintiff presents a genuine dispute as to when the termination process began. Resolution of this factual issue is necessary to determine the conduct that may be considered to determine whether the defendants acted unreasonably. Thus, the motion for summary judgment with respect to count one is denied.
II. Count Two: Intentional Infliction of Emotional Distress
The defendants argue that summary judgment should be granted with respect to count two, which alleges intentional infliction of emotional distress against both defendants, because the defendants did not engage in conduct that was extreme and outrageous. In response, the plaintiff argues that summary judgment should not be granted because reasonable minds could differ as to whether the defendants engaged in extreme and outrageous conduct.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It 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.) CT Page 9748 Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 66, 962 A.2d 140 (2009). "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!'" (Internal quotation marks omitted.) Id., 210-11.
In the present case, the defendants do not offer any additional evidence to support their position. Instead, the defendants argue that the allegations in the amended complaint fall short of being extreme and outrageous conduct. The defendants argue that "[t]he plaintiff asserts that there are only two specific issues regarding the [d]efendants' conduct that the [p]laintiff found objectionable: (1) not having a helper available to assist him and (2) requiring him to submit to a fitness-for-duty test." Defendants' Memorandum in Support, p. 18. In response, the plaintiff offers evidence that the defendants knew of the plaintiff's back injury. (Workers' Compensation Commission Voluntary Agreement.) The plaintiff also offers evidence that he was sent out on December 2, 2004, with too much work for one person. (Dep. of Kevin Trudelle, p. 163-64.) Finally, the plaintiff offers evidence that the defendants reneged on their promise to provide the plaintiff with a helper. (Dep. of Michael Tomick, p. 34.) Summary judgment has been denied, however, in cases where the conduct of employers was far more outrageous than the defendants' conduct was in this case. See, e.g., Appleton v. Board of Education, supra, 254 Conn. 211 (no extreme or outrageous conduct where plaintiff subjected to psychiatric evaluations, employer made condescending comments, plaintiff escorted off employer's premises by police and forced to resign); Muniz v. Kravis, 59 Conn.App. 704, 709, 757 A.2d 1207 (2000) (no extreme or outrageous conduct where plaintiff and husband informed of termination of employment by armed guard when husband recovering from surgery). Thus, the motion for summary judgment with respect to count two is granted.
The District Court arrived at a different conclusion in its memorandum of decision on the motion to dismiss. That conclusion, however, is not binding on this court. "A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).
III. Count Three: Violation of § 31-51x Against UPS
The defendants argue that summary judgment should be granted with respect to count three, which alleges that UPS violated § 31-51x, because the plaintiff never submitted to a urinalysis drug test, and actual submission to a drug test is an essential element of a claim under § 31-51x. Additionally, the defendants argue that UPS had reasonable suspicion to believe that the plaintiff was under the influence of drugs or alcohol, satisfying the requirement for requesting a urinalysis test under the statute. In response, the plaintiff argues that the motion for summary judgment should be denied with respect to count three because actual submission to a urinalysis test is not a prerequisite for bringing a claim under § 31-51x and that material issues of fact exist as to whether UPS had reasonable suspicion to order the test.
A. Submission to a Urinalysis Test as a Prerequisite to a Cause of Action
Section 31-51x provides, in relevant part: "a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance." There is little case law regarding causes of action under § 31-51x, and there is no appellate authority on the issue of whether submission to a urinalysis drug test is a prerequisite for bringing a claim under § 31-51x. In fact, the Connecticut Supreme Court has only addressed the applicability of § 31-51x once. Poulos v. Pfizer, Inc., 244 Conn. 598, 711 A.2d 688 (1998). In Poulos, the Supreme Court addressed the issue of whether an employee can consent to a drug test and therefore waive the "reasonable suspicion" requirement of § 31-51x. Id., 605. To resolve the issue, the court engaged in a review of the legislative history for § 31-51x, and determined that § 31-51x should be applied in a manner consistent with federal fourth amendment jurisprudence. Id., 606-07.
Following the Poulos opinion, the Federal District Court addressed the applicability of § 31-51x in a case where an employee refused to submit to a urinalysis drug test. Imme v. Federal Express Corp., 193 F.Sup.2d 519 (D.Conn. 2002). The court determined that "[t]he key inquiry . . . is whether the agents of [the defendant] who made the decision to require [the plaintiff] to submit to a drug test had `reasonable suspicion' that [the plaintiff] was, at that time, under the influence of drugs or alcohol which adversely affected, or could have adversely affected, his job performance. The question is not whether [the plaintiff] actually was under the influence of drugs or alcohol on the night of April 28, 2000, but only whether [the agents of the defendant] had reasonable suspicion that he was.
"In enacting § 31-51x, the Connecticut legislature intended to adopt the Fourth Amendment standard of individualized suspicion in order to protect the privacy interests of employees." (Internal quotation marks omitted.) Id., 524. To require an employee to submit to a urinalysis drug test as a prerequisite to bringing a cause of action against an employer under § 31-51x would impugn the purpose of the statute, which is to protect the employee against unjustified urinalysis drug testing. This interpretation is consistent with the limited number of other cases that have dealt with causes of action under § 31-51x when the employee refused to submit to a urinalysis test. See, e.g., Schmidt v. Southern New England Telephone Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 4005514 (November 1, 2006, Taylor, J.) ( 42 Conn. L. Rptr. 262) ("Therefore, if § 31-51x is to be applied in a manner consistent with federal fourth amendment jurisprudence, the cause of action here arises from an improper search or drug test requirement and not from . . . termination [of employment]"). Therefore, actual submission to a urinalysis drug test is not a prerequisite to bringing a claim under § 31-51x, and the plaintiff may bring a cause of action under the section.
B. Reasonable Suspicion
The defendants also move for summary judgment on the ground that they had reasonable suspicion to require the plaintiff to take a urinalysis drug test. The standard for what constitutes "reasonable suspicion" is also assessed in a manner consistent with fourth amendment jurisprudence. Imme v. Federal Express Corp., supra, 193 F.Sup.2d 524. "While reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification." Id. "[T]he question . . . is not whether each of the behaviors observed by [the agents of the defendant] on the night in question, taken separately, could have created a reasonable suspicion that [the plaintiff] was under the influence of drugs. Rather, the question is whether all of these observations, taken together, and viewed in the context of [the agents'] own experiences and knowledge as managers and their experiences with [the plaintiff], was sufficient to create such a reasonable suspicion." Id., 525.
In the present case, there are numerous differences between the plaintiff's and the defendants' accounts of the events on December 2, 2004. The defendants submit evidence that the plaintiff's wife reported that the plaintiff was having a nervous breakdown. (Dep. of Kevin Trudelle, pp. 68-69.) Further, the defendants present evidence that the plaintiff was yelling, screaming and swearing for approximately five minutes. (Dep. of Kevin Trudelle, p. 87.) In response, the plaintiff submits evidence that the defendants did not believe he was exhibiting signs of impairment in his speech, balance, walking or any physical indicators prior to requiring the urinalysis drug test. (Dep. of Kevin Trudelle, pp. 158-59.) Additionally, the plaintiff presents evidence that he was showing no signs of agitation earlier in the day. (Dep. of Kevin Trudelle, pp. 64-65.) Sufficient differences exist to present a genuine issue of material fact with respect to whether the circumstances, when taken as a whole, were sufficient to give the defendants a reasonable suspicion that the plaintiff was under the influence of drugs or alcohol. Thus, the motion for summary judgment with respect to count three is denied.
IV. Count Six: Violation of § 46a-60(a)(1) Against UPS
The defendants argue summary judgment should be granted with respect to the sixth count, which alleges that UPS violated § 46a-60(a)(1), because the plaintiff could not perform essential job functions and was thus not a qualified individual for the purposes of the section. Additionally, the defendants argue that there is no evidence that UPS discriminated against the plaintiff because of his alleged disability. In response, the plaintiff argues summary judgment should be denied because he meets the definition of disabled for the purposes of § 46a-60(a)(1) and that a genuine issue of material fact exists as to whether UPS's proffered reason for terminating the plaintiff was pretext for masking a discriminatory motive.
A. "Qualified Individual"
Section 46a-60(a)(1) provides, in relevant part: "It shall be a discriminatory practice in violation of this section . . . [f]or an employer . . . except in the case of a bona fide occupational qualification or need . . . to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . physical disability . . ." For the purposes of § 46a-60(a)(1), "`[p]hysically disabled' refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness . . ." General Statutes § 46a-51(15).
In Curry v. Allen S. Goodman, Inc., 286 Conn. 390, 944 A.2d 925 (2008), the plaintiff alleged that the defendant discriminated against him because of his disability in violation of § 46a-60(a)(1). Id., 397. The plaintiff's injury in Curry is almost identical to the plaintiff's in this case. In Curry, the plaintiff worked as a driver for the defendant and was required to lift cases weighing between forty and seventy pounds off on and off his truck. Id., 394. The plaintiff injured his back during work while lifting a case and underwent two surgeries for the injury. Id. The plaintiff returned to work but was restricted by his physician as to how much he could lift and how long he could sit or stand. Id. The Connecticut Supreme Court found that there was no dispute about whether the plaintiff was disabled within the meaning of § 46a-60(a)(1). Id., 416. In the present case, the defendant was aware of the plaintiff's back injury and agreed in July 2004 that the plaintiff had a permanent, partial disability of thirteen percent. (Workers' Compensation Commission Voluntary Agreement.) Based on the decision in Curry, the plaintiff meets the definition of disabled for the purposes of bringing a claim under § 46a-60(a)(1) and is therefore a "qualified individual."
B. Evidence of Discrimination
The Connecticut Supreme Court has stated that it "review[s] federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes . . . To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination." (Citations omitted.) Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 103-04, 671 A.2d 349 (1996). "Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/ Price Waterhouse model . . . and (2) the pretext/ McDonnell Douglas-Burdine model." (Citation omitted.) Id., 104-05.
The defendants argue that the plaintiff's allegations must be examined under the pretext/ McDonnell Douglas-Burdine model because there is no direct evidence that the defendants discriminated against the plaintiff. Additionally, the defendants argue that under that model, the plaintiff cannot establish his prima facie case because he is not a "qualified individual." The plaintiff responds, however, that there is circumstantial evidence that indicates that his disability played a "motivating" or "substantial" role in the employment decision, which, if sufficient, would satisfy his prima facie case under the mixed-motive/ Price Waterhouse model.
Under the pretext/ McDonnell Douglas-Burdine model, the plaintiff must prove "four elements by a preponderance of the evidence: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, the individual was rejected; and (4) that after the individual was rejected, the position remained open . . . Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created." (Citations omitted.) Levy v. Commission on Human Rights Opportunities, supra, 236 Conn. 107-08.
"A `mixed-motive' case exists when an employment decision is motivated by both legitimate and illegitimate reasons . . . In such instances, a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted because of an impermissible factor . . .
"The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision at the moment it was made . . . Under this model, the plaintiff's prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a `motivating' or `substantial' role in the employment decision . . .
"Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. [T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account." Id., 105-06.
The plaintiff presents evidence that Trudelle "had come right out and said to [the plaintiff]: You know, if you got to keep taking time off, maybe you should, you know, consider a different job . . ." (Dep. of Michael Tomick, p. 126.) Further, the plaintiff submits evidence that on December 2, 2004, he informed Trudelle that he could not continue because he needed medical treatment, to which Trudelle responded "[i]f you can't do the fucking job, then bring the fucking truck back." (Dep. of Michael Tomick, p. 39.) These pieces of circumstantial evidence present a genuine issue as to whether the plaintiff's injury was a motivating factor in the employment decision. Accordingly, the motion for summary judgment with respect to count six is denied.
V. Workers' Compensation Act
The defendants argue that summary judgment should be granted with respect to the claims against Trudelle individually because the damages related to the plaintiff's claim of his back condition are barred by the exclusivity provision of General Statutes § 31-293a, the Connecticut Workers' Compensation Act. The plaintiff does not address this argument in his opposition.
Section 31-293a provides, in relevant part: "If an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1." General Statutes § 31-275(16)(B) supplies the definition of "injury" for the purposes of the Connecticut Workers' Compensation Act, providing, in relevant part: "`Personal injury' or `injury' shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises . . . from a physical injury or occupational disease . . ."
In support of their argument, the defendants cite Driscoll v. General Nutrition Corp., 252 Conn. 215, 752 A.2d 1069 (2000), for the proposition that "the exclusivity provision of the Connecticut Workers' Compensation Act bars an employee from pursuing a tort claim for damages resulting from an assault that occurred during the course of her employment." Defendants' Memorandum in Support, p. 24. In Driscoll, the plaintiff was sexually assaulted in her workplace by a customer and brought a suit against her employer for negligent infliction of emotional distress. Driscoll v. General Nutrition Corp., supra, 252 Conn. 217-19. The Connecticut Supreme Court concluded that the plaintiff's emotional injury arose from the assault and was, therefore, covered by the act. Id., 226. The court arrived at this conclusion, in part, because "[t]he plaintiff's emotional distress, as alleged in her own complaint, arose from or was caused by a physical injury." Id. The court specifically noted the language in the plaintiff's complaint, which read, in relevant part: "As a result of the above mentioned sexual assault [by the customer] the plaintiff . . . suffered various physical and psychological injuries to her person including but not limited to fear, stress, headaches, phobias, nervousness, tension, irritability, fatigue, and depression. As a result of said injuries, the plaintiff . . . has suffered and continues to suffer from physical and emotional pain." Id., 219 n. 8.
In the present case, the plaintiff alleges in paragraph 42 of count one, which alleges negligent infliction of emotional distress, that "[b]y terminating [the plaintiff] under the circumstances set forth herein, the defendants engaged in conduct that the defendants knew or should have known had the propensity of causing [the plaintiff] to suffer emotional distress which was likely to lead to bodily harm." In paragraph 42 of count two, which alleges intentional infliction of emotional distress, the plaintiff alleges that "[t]he defendants engaged in outrageous behavior by intentionally and willfully demanding that [the plaintiff] submit to a fitness-for-duty test despite the lack of reasonable suspicion and by accusing [the plaintiff] of engaging in violent behavior." Thus, the plaintiff alleges that his emotional impairment arose from the conduct of the defendants, not from his physical injury, as was the case in Driscoll. Accordingly, the Workers' Compensation Act does not apply to the plaintiff's alleged emotional injury and summary judgment is denied on this ground.
CONCLUSION
Based on the foregoing, the defendants' motion for summary judgment with respect to counts one, three and six is denied, but motion is granted with respect to count two.