Robert Zawadski v. Ernest Beaver et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

On December 15, 2010, the plaintiff, Robert Zawadski, filed a four-count complaint against the defendants, Ernest Beaver, Brian Beaver, and EFB, Inc. In response to a motion to strike, Zawadski filed an amended complaint on January 27, 2011, which stated claims for assault and battery, unpaid wages, constructive discharge, and a violation of CUTPA.   The defendants filed motion to strike, number 104, on January 31, 2011, which the court, Peck, J., granted.

On March 29, 2011, Zawadski filed a substituted complaint, which is the operative complaint, against Ernest Beaver, Brian Beaver, and EFB, Inc., that states claims for assault and battery, unpaid wages and constructive discharge, and which alleges the following facts.   On July 30, 2010, Zawadski was an employee of EFB, Inc., a Connecticut company, and Ernest Beaver and Brian Beaver were owners, officers, directors and employees of EFB, Inc. Brian Beaver is the son of Ernest Beaver.   On July 30, 2010, Zawadski and Ernest Beaver argued about Zawadski's pay rate, and Brian Beaver assaulted Zawadski with an iron rake and the Beavers further punched him, causing severe and permanent injuries.

In Count Three, a claim for constructive discharge, Zawadski incorporates the above allegations, and further alleges that EFB, Inc., violated the public policy within the common law doctrines of assault and battery, along with a violation of the public policies within:  General Statutes § 31–49,¹ as EFB, Inc., failed to exercise reasonable care to provide Zawadski with a reasonably safe place to work, with fit and competent persons as his co-laborers and vice principals;  as well as violations of General Statutes § 53a–61(a)(1), General Statutes § 53a–61(a)(2), General Statutes § 53a–62(a)(2), and General Statutes § 531–63(a), as EFB, Inc.'s, shareholders, officers, directors, agents, servants and vice principals acted with extreme indifference to human life and recklessly engaged in conduct that created a risk of serious physical injury to Zawadski.   He further alleges that the Beavers intentionally created an intolerable work atmosphere that forced him to leave his employment, and such an atmosphere would have forced any reasonable person to leave his or her employment.

On April 6, 2011 EFB, Inc., filed this motion to strike Count Three of three of the substituted complaint claiming that the constructive discharge claim is insufficiently pleaded.

EFB, Inc., argues that the constructive discharge claim is insufficiently pleaded because it lacks a violation of public policy which is an essential element of a constructive discharge claim.   The factual scenario here, an argument over the rate of pay, does not violate public policy, as there was no threat that Zawadski would lose his job because of the disagreement.   EFB, Inc., also argues that four of the statutes cited by Zawadski in the third count are penal statutes and do not apply in the employment context.

Zawadski argues that an employer who physically beats his employees violates public policy, and the fact that the legislature has enacted statutes to prevent such behavior demonstrates that it is an established public policy.   Relying on Parsons v. United Technologies Corp., 243 Conn. 66, 80, 700 A.2d 655 (1997), he argues that EFB, Inc., through the acts of its principals, imposed upon him conditions that posed a substantial risk of death or serious physical harm, which violates public policy.

-I-

“For a plaintiff to prevail on a claim alleging a constructive discharge under Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980), he must prove not only constructive discharge, but also causation;  that is, that the discharge occurred for a reason violating public policy ․ In Sheets v. Teddy's Frosted Foods, Inc., [supra, 179 Conn. at 480] ․ [our Supreme Court] sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety ․ derived from some important violation of public policy ․ A termination of employment by an employer may be express or constructive.   Constructive discharge occurs when an employer renders an employee's working conditions so difficult and intolerable that a reasonable person would feel forced to resign ․ Through the use of constructive discharge, the law recognizes that an employee's ‘voluntary’ resignation may be, in reality, a dismissal by the employer ․

“Wrongful constructive discharge is a form of wrongful discharge ․ It logically follows that a claim for wrongful constructive discharge is actionable only where a claim for express discharge would be actionable in the same circumstances.   Whether express or constructive, [a] cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy ․ A constructive discharge in and of itself will not entitle an at will employee to prevail on a cause of action brought under [the public policy exception to the at will employment doctrine in] Sheets, however, because the employee must still prove that the dismissal, in whatever form, occurred for a reason violating public policy,” Sophia v. Danbury, 116 Conn.App. 68, 74–76, 974 A.2d 804 (2009).

In Parsons v. United Technologies Corp., supra, 243 Conn. 86–87, relied upon by Zawadski, the court held that the plaintiff's allegations sufficiently stated a claim for wrongful discharge, the court acknowledging that employers must provide their employees with a reasonably safe work environment as a public policy under General Statutes §§ 31–49 and 31–370.  Id., 79–80.   The plaintiff refused to be relocated to Bahrain, as Operation Desert Shield was ongoing and the U.S. State Department had issued travel advisory warnings that the area was unstable.  Id., 69–70.

In the present case, Zawadski, alleges a cause of action of constructive discharge under a theory of respondeat superior, but the pleadings are insufficient.   The complaint alleges that the Beavers were acting within the scope of their duties on the date of the incident but fails to plead or explain that they were acting in a way to serve the principal or further the principal's business.   See A–G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 208.   Viewing the allegations in the substituted complaint in the manner most favorable to sustaining its legal sufficiency and admitting all facts well pleaded, it is concluded that Zawadski has failed to sufficiently plead that EFB, Inc., is liable under a theory of respondeat superior for Zawadski's wrongful constructive discharge.

-II-

Moreover, it is submitted that Zawadski has failed to sufficiently plead facts to demonstrate that EFB, Inc., was aware or knew that its employees were likely to harm Zawadski.   In Parsons v. United Technologies Corp., supra, 243 Conn. 80–82, the court held that it was a violation of public policy to expose an employee to known hazards.   Here, Zawadski has failed to sufficiently plead facts to support the conclusion that EFB, Inc., was aware that the Beavers were violent or likely to physically harm Zawadski to make them “known” hazards.

-III-

With regard to General Statutes § 31–49, which requires an employer to exercise reasonable care to provide an employee with a reasonably safe work place, Zawadski has not pleaded sufficient facts to demonstrate that EFB, Inc., failed to exercise reasonable care to violate the statute and thus violate that public policy.   In the substituted complaint, he simply states that the assault was a violation of the statute, but fails to set forth facts to illustrate how EFB, Inc., violated the statute as required.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

-IV-

With regard to the other statutes cited, General Statutes §§ 53a–61 and 53a–62, those statutes define the crimes of assault, threatening and reckless endangerment.   While a violation of those statutes likely presents a violation of public policy, this claim is not sufficiently pleaded because the persons who violated those statutes are the Beavers, not EFB, Inc. EFB, Inc., cannot be liable for the torts of its employees under these statutes.

Motion to strike the third count of Zawadski's substituted complaint is granted.

Wagner, J., JTR

FOOTNOTES

FN1. General Statutes § 31–49 provides:  “It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice principal and to appoint as such vice principal a fit and competent person.   The default of a vice principal in the performance of any duty imposed by law on the master shall be the default of the master.”.  FN1. General Statutes § 31–49 provides:  “It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice principal and to appoint as such vice principal a fit and competent person.   The default of a vice principal in the performance of any duty imposed by law on the master shall be the default of the master.”

Wagner, Jerry, J.T.R.