09-2054-cv
Lavoie v. United States

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of January, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          GERARD E. LYNCH ,
                               Circuit Judges.
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ALFRED LAVOIE ,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 09-2054-cv

UNITED STATES OF AMERICA ,

                     Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                                                                   JOHN R. WILLIAMS, New Haven,
                                                                                           CT.

FOR DEFENDANT-APPELLEE:                                                                    DOUGLAS P. MORABITO , Assistant
                                                                                           United States Attorney (Nora R.
                                                                                           Dannehy, United States Attorney
                                                                                           for the District of Connecticut, on
                                                                                           the brief, William J. Nardini,
                                                                                           Assistant United States Attorney,
                                                                                           of counsel) Office of the United
                                                                                           States Attorney for the District of
                                                                                           Connecticut, CT.
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      Appeal from an May 4, 2009 order of the United States District Court for the District of
Connecticut (Peter C. Dorsey, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

         Plaintiff-appellant Alfred Lavoie (“Lavoie”) appeals from an order of the District Court granting
summary judgment and dismissing Lavoie’s claims of emotional distress against defendant-appellee
United States of America in his action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et
seq. (“FTCA”). Lavoie alleged claims for intentional infliction of emotional distress and negligent
infliction of emotional distress, arising from the delay of the United States in processing his application
for benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act
(“EEOICPA”), 42 U.S.C. § 7384 et seq. On appeal, Lavoie argues that the District Court erred in
holding that the seven-year delay in processing his compensation claim could not, as a matter of law,
constitute negligent or intentional infliction of emotional distress. We assume the parties’ familiarity
with the remaining facts, procedural history, and issues on appeal.

         We review de novo the District Court’s decision to grant summary judgment and, in the course of
that review, we resolve ambiguities and draw all permissible factual inferences in favor of the non-
moving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008); Nationwide Life Ins. Co. v.
Bankers Leasing Ass’n, Inc., 182 F.3d 157, 160 (2d Cir. 1999). No genuinely triable issue of fact exists
when the moving party demonstrates, by pleadings and submitted evidence, that no rational jury could
find in the non-movant’s favor. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

         To prevail on a claim of negligent infliction of emotional distress under Connecticut law, which
is applicable in this FTCA action, see 28 U.S.C. 2671 (“Actions brought under the [FTCA] are governed
by substantive law of state in which alleged tort occurred . . . .”), a plaintiff must show: “(1) that the
defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the
plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in
illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress.” Crocco v.
Advance Stores Co., 421 F. Supp. 2d 485, 503 (D. Conn. 2006) (quoting Carrol v. Allstate Ins. Co., 262 Conn.
433, 444 (2003)). Lavoie has not met his burden in the instant case because there is no evidence that the
government’s conduct was unreasonable or that it created a risk of causing Lavoie emotional distress.
The record shows that, although it took seven years for a recommendation on Lavoie’s claim, the
government’s conduct during the claims-processing period was reasonable in light of the complexity and
size of the EEOICPA system. The government reasonably prioritized claims for compensation,
especially given its limited resources and the fact that the government has received over 27,6000 claims
since October 2001. J.A. at 58. Furthermore, during the time Lavoie’s claim was being processed, the
government provided him with over 17 notices and updates regarding the status of his claim and
providing information about the compensation program. See, e.g., J.A. at 95-96, 209, 211-12, 214-20,
222-26, 231-32, 243-47, 249-53, 255-59, 261-65, 267-70, 272, 274-76, and 278-80. On this record, we
cannot conclude that the government’s conduct was extreme or outrageous or that it created an
unreasonable risk of emotional distress.


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          Lavoie also contends that the government’s conduct in processing his compensation claim could
support a finding of liability for reckless or intentional infliction of emotional distress. Under
Connecticut law, a plaintiff asserting a claim for intentional infliction of emotional distress must
establish four elements: “(1) [the defendant] 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 [defendant’s]
conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s
distress; and (4) that the resulting emotional distress sustained by plaintiff was severe.” Appleton v. Bd. of
Educ. of the Town of Stonington, 254 Conn. 205, 210 (2000). To show extreme and outrageous conduct, a
plaintiff must prove that defendant’s conduct “go[es] beyond all possible bounds of decency, [is]
regarded as atrocious, and [is] utterly intolerable in a civilized community.” Id. It is clear from the
record that the government’s conduct in the instant case did not rise to the type required for a finding of
liability under the Connecticut tort for reckless or intentional infliction of emotional distress.

       We therefore conclude that the District Court did not err in awarding summary judgment to the
United States.

                                             CONCLUSION

        We have considered each of plaintiff’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.


                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court

                                                By _______________________________




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