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Perodeau v. City of Hartford3/26/2002
loyee. That discipline may include a free pass to the unemployment line, a result that would seem particularly likely if the employee engages in repeated acts of intentional discrimination against fellow employees.'' (Internal quotation marks omitted.) Reno v. Baird, supra, 18 Cal. 4th 654-55, quoting Janken v. GM Hughes Electronics, supra, 76-77, and Lenhardt v. Basic Institute of Technology, Inc., supra, 381. We find this reasoning persuasive.
For all of these reasons, we conclude that § 46a-60a (a) (1) does not impose liability on individual employees. Accordingly, we answer the first certified question in the negative.
II.
We next consider whether an individual municipal employee may be found liable for negligent infliction of emotional distress arising out of actions or omissions occurring within the context of a continuing employment relationship, as distinguished from actions or omissions occurring in the termination of employment. We decline to extend that tort so far.
A.
Before addressing the merits of this question, however, we must consider a threshold question, namely, whether, in excluding emotional distress claims that do not arise from physical injury or occupational disease from the compensability provisions of General Statutes § 31-275 et seq., the Workers' Compensation Act (act), the legislature indicated an intent to preclude such claims altogether. The plaintiff asserts that, because his claim for negligent infliction of emotional distress is not compensable under the act, he is not barred by the exclusivity provisions of the act from making this claim. See General Statutes §§ 31-284 and 31-293a. We agree with the plaintiff.
We first note that § 31-293a provides that the act applies only '' f an employee . . . has a right to benefits or compensation under this chapter on account of injury . . . .'' In this case, the plaintiff has no right to compensation for his alleged emotional injury under the act. See General Statutes § 31-275 (16) (B) (ii). Accordingly, the plain language of the act indicates that its exclusivity provisions do not apply.
We also note that, although this court previously has not considered directly the question of whether an employee may bring a common-law tort claim for an emotional injury arising out of his employment that is not covered by the act, we addressed it indirectly in Driscoll v. General Nutrition Corp., 252 Conn. 215, 752 A.2d 1069 (2000). In that case, the plaintiff, who had been sexually assaulted in her workplace, sought to bring a claim against her employer for negligent infliction of emotional distress. We concluded that the plaintiff's emotional injury arose from the physical assault upon her and that the injury was, therefore, covered by the act. Id., 226. It is clear from our analysis in that case, however, that we assumed that, if the injury had not been compensable under the act, the plaintiff would have been entitled to bring a common-law tort claim against her employer. Id., 223-27.
In addition, the United States District Court for the District of Connecticut has concluded in a number of cases that tort actions for emotional injuries that are not compensable under the act are not barred by the exclusivity provisions of the act. See Abate v. CircuitWise, Inc., 130 F. Sup. 2d 341, 345-46 (D. Conn. 2001) (claim for emotional injuries that did not arise from physical touchings not barred by act); Bimler v. Stop & Shop Supermarket Co., 965 F. Sup. 292, 302 (D. Conn. 1997) (claim for damages for emotional distress arising out of termination of employment not barred by act); Bennett v. Beiersdorf, Inc., 889 F. Sup. 46, 51 (D. Conn. 1995) (dismissin
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