Michelle K. Anderson v. United Way, Inc. dba United Way of Central and Northeastern Connecticut (2011)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO STRIKE

The present action arises out of the termination of the plaintiff's employment with the defendant.   Count Seven of the plaintiff's amended complaint (the “complaint”) concerns the manner in which the defendant responded to an anonymous “hate letter” that was discovered within the defendant's business premises, at a location relatively near the plaintiff's office.¹  The plaintiff, an African American woman employed as the defendant's Director of Human Resources, contends that, after the letter's discovery, the defendant did not take the necessary steps to ensure that an adequate and independent investigation was conducted into the letter, its authorship, and any risks or dangers that the letter or its author presented to the defendant's employees.²  More specifically, the plaintiff alleges that she was terminated from employment because, after the letter came into her possession, she refused the defendant's demand that she surrender it to the defendant's attorneys, and chose instead to turn it over to police.   The plaintiff argues that her termination was therefore in contravention of two distinct state public policies:  one which favors the preservation of evidence potentially relevant to a hate crime, and one which requires employers to provide employees with a safe workplace.

By motion and supporting memorandum dated June 29, 2011, the defendant moved to strike this count of the complaint, asserting that the claimed public policies relied upon by the plaintiff either do not exist, or, to the extent that they do, fail to bear any relationship to the facts at issue in the present matter.   The defendant argues that, as a result, this count must be stricken for failing to state a claim upon which relief may be granted.   On August 1, 2011, the plaintiff filed an objection to defendant's motion to strike, contending that these public policies have been recognized and are applicable to this case, and that count seven therefore is properly pled.   For the reasons set forth below, the defendant's motion to strike is granted in part and denied in part.

Discussion

A. Motion to Strike—Standard of Review

In its consideration of a motion to strike, the court's task is well-defined.   The court must accept the facts alleged in the complaint to be true and must construe those facts in the manner most favorable to sustaining their legal sufficiency.   Accordingly, if the facts alleged would support a cause of action, the motion to strike must be denied.  Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).

B. Wrongful Termination

In Sheets v. Teddy's Frosted Foods, 179 Conn. 471 (1980), our Court recognized a public policy limitation on the traditional employment at-will doctrine, and “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.”  Parsons v. United Technologies Corp., 243 Conn. 66, 76 (1997).   Although as the defendant correctly notes in its brief, this public policy exception has been called a “narrow one,” it is equally true that “[g]iven the inherent vagueness of the concept of public policy, it is often difficult to define precisely the contours of the exception.”  Morris v. Hartford Courant Co., 200 Conn. 676, 680 (1986).   Ultimately, however, it is the plaintiff's burden to prove that the personnel decision at issue “violated [an] explicit statutory or constitutional provision, ․ [or] contravened [a] judicially conceived notion of public policy.”  Parsons v. United Technologies Corp., supra, 243 Conn. 76–77.

1. Public Policy relating to “Preservation of Evidence”

The first public policy cited by the plaintiff in support of her allegations in the seventh count concerns the preservation of evidence.   Citing a number of Connecticut statutes that relate to the investigation and prosecution of hate crimes, the plaintiff contends that her refusal to surrender the hate letter as directed by the defendant, and the termination of her employment that allegedly resulted from that refusal, violates a recognized public policy that evidence potentially relevant to a hate crime be preserved and furnished to the police.   This court does not agree.

Without intending in any way to diminish the importance of vigorous enforcement of anti-hate crime legislation, the court cannot conclude that there exists a statutory or judicially conceived public policy promoting the preservation of evidence;  and certainly not one that could be characterized as “clearly articulated” under Connecticut law.  Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701 (2002) (noting that Connecticut courts “have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy”).   In this regard, this court takes note that our Supreme Court has frequently declined to find the existence of a “public policy sufficient to warrant an exception to the at-will employment doctrine.”  Id. Accord Daley v. Aetna Life & Casualty Co., 249 Conn. 766 (1999);  Carbone v. Atlantic Richfield Co., 204 Conn. 460 (1987);  Morris v. Hartford Courant Co., supra, 200 Conn. 676.   In each of these cases, the plaintiff argued that his or her firing contravened an alleged public policy.   Yet our Court held in each instance that the plaintiff at issue had not alleged facts sufficient to prove that the employer's personnel decision violated a public policy recognized under our law.

For these reasons, the court here agrees with the defendant that the “plaintiff cannot manufacture a mandate of public policy by simply asserting the existence of one ․” Memorandum in Support of Motion to Strike, p. 9. Even assuming that the preservation of evidence of a potential hate crime is the “right thing to do,” this characterization, in the court's opinion, does not convert this laudable practice into a statutory or judicially conceived public policy sufficient to support a claim for wrongful discharge.   Accordingly, the plaintiff's “preservation of evidence” claim must be stricken.

2. Public Policy relating to “Workplace Safety”

The plaintiff also alleges in support of her wrongful discharge claim in Count Seven that there exists a recognized public policy related to an employer's obligation to provide a reasonably safe work place for employees.   As an example of an explicit statutory provision that reflects this policy, the plaintiff references General Statutes § 31–49, which provides, generally, that “[i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work ․” In response, the defendant argues that this statute, “under any conceivable interpretation”;  Memorandum in Support of Motion to Strike, at 11;  fails to give rise to a public policy claim sufficient to support the plaintiff's allegation.   As to this aspect of Count Seven, the court agrees with the plaintiff and concludes that her wrongful termination claim may proceed on this basis.

As our Supreme Court stated in Parsons v. United Technologies Corp., supra, 243 Conn. 79, Connecticut law “expresses a clear and defined public policy requiring an employer ․ to provide a reasonably safe workplace to its employees.”   The Court specifically noted in this regard that General Statutes § 31–49, the statute referenced by the plaintiff here in her complaint, in conjunction with § 31–370, “reflect a broad legislative concern for the physical welfare and safety of Connecticut employees.”  Id., 80.   These statutes, and the public policy that they evidence and promote, led the Parsons majority to conclude that Connecticut employees may bring “a cause of action for wrongful discharge against an employer ․ if the employee is discharged for refusing to work under conditions that pose a substantial risk of death ․ or serious injury.”  Id.

Here, considering the allegations of Count Seven of the complaint in the light most favorable to sustaining their legal sufficiency, the plaintiff asserts that the discovery of the hate letter within the workplace and the defendant's flawed investigation of the risks it presented, caused her to be “concerned about the possibility that she or one of her fellow African–American co-workers may be harmed by a racist in their midst ․” Objection to Defendant's Motion to Strike, at 10–11.   The language of the hate letter, which included the use of racial epithets and insults directed to the intelligence of the defendant's African American employees, unquestionably could have supported the plaintiff's fears.   The writer of the letter clearly possessed information as to the identity and race of the defendant's employees and supervisors, and understood the defendant's employment hierarchy, both present and past.   That level of knowledge, coupled with the letter's discovery within the defendant's business premises, made it entirely reasonable for the plaintiff and others to fear that the writer was still employed by the defendant, or at least had access to its workplace.

Moreover, the letter speaks of “getting rid of” African American employees, and contains one statement;  “[Y]our first task is to get that nigger out of Human Resources, so white people can remain in positions of power the way it used to be”;  see note 1, supra;  aimed directly at the plaintiff herself.   While perhaps to a disinterested party these phrases may be read as references only to the termination of employment, suffice it to say that such a reading need not have been shared by the plaintiff nor by others targeted by these hateful words and the subject of their attack.   To those individuals, the letter no doubt spoke with a far more sinister and threatening tone, and raised very genuine and legitimate safety concerns.

The plaintiff contends that the defendant, by ordering that this matter be handled exclusively in-house and without notification to the police, created a dangerous workplace for all of its African American employees.   The plaintiff alleges further that she refused to deliver the letter to the defendant's attorneys because she believed that, by doing so, the letter writer was less likely to be identified and the risk to her physical safety less likely to be eliminated.   Given the choice of either complying with her employer's demand at a risk to her personal safety, or disobeying that demand in the hope that a police investigation would better ensure her safety, the plaintiff alleges she chose the latter course—and, as a result, was fired.

In the court's opinion, therefore, “the plaintiff's complaint clearly allege [s] facts that, taken as a whole and considered in the light most favorable to the plaintiff, are sufficient to establish that the plaintiff was terminated for refusing to follow an employer's directive that would have posed a serious threat to the plaintiff's health and safety.”  Parsons v. United Technologies Corp., supra, 243 Conn. 85–86.   As General Statutes § 31–49 indicates, the master's responsibility to provide a reasonably safe place in which to work includes a duty to see that each employee has “fit and competent persons as his colaborers.”   In essence, the plaintiff alleges here that there was reason to believe that one of her fellow employees, past or present, was neither fit nor competent, and, far worse, posed a risk to the physical safety and well-being of the plaintiff and others.   She asserts further that she was fired because she refused to tolerate such a risk, and to accept that the defendant and its attorneys (without police assistance) could or would conduct the type of objective and unbiased investigation necessary to identify the source of that risk.   These allegations raise questions clearly related to this state's “clear and defined public policy”;  Parsons v. United Technologies Corp., supra, 243 Conn. 79;  requiring employers to provide a safe workplace for its employees.³  Therefore, as to the plaintiff's “workplace safety” claim, the defendant's motion to strike Count Seven of the complaint must be denied.

Conclusion

For the reasons above stated, the defendant's Motion to Strike is granted in part and denied in part.⁴  The court grants the motion to strike to the extent that it is directed to paragraph 40 of Count Seven of the complaint, and to that portion of paragraph 39 that refers to the plaintiff's “concern for the preservation of evidence.”   The motion is denied in all other respects.

THE COURT

Gold, J.

FOOTNOTES

FN1. This letter, which the parties appropriately refer to as the “hate letter” in their pleadings, contained a number of extremely offensive statements.   The letter stated that a new member of the defendant's Board of Directors “may be as dumb as the ten niggers working at the United Way.” The letter further stated that “Rumor has it [that the defendant's president] is getting rid of them, two down and eight more to go.”   The letter then “suggested” to the chair of the Board of Directors that “your first task is to get that nigger out of Human Resources, so white people can remain in positions of power the way it used to be.”   The letter is signed, “The Whistle-blower.”.  FN1. This letter, which the parties appropriately refer to as the “hate letter” in their pleadings, contained a number of extremely offensive statements.   The letter stated that a new member of the defendant's Board of Directors “may be as dumb as the ten niggers working at the United Way.” The letter further stated that “Rumor has it [that the defendant's president] is getting rid of them, two down and eight more to go.”   The letter then “suggested” to the chair of the Board of Directors that “your first task is to get that nigger out of Human Resources, so white people can remain in positions of power the way it used to be.”   The letter is signed, “The Whistle-blower.”

FN2. The specific allegations of the complaint relevant to this claim are identified in part III of the defendant's memorandum of law filed in support of its motion to strike..  FN2. The specific allegations of the complaint relevant to this claim are identified in part III of the defendant's memorandum of law filed in support of its motion to strike.

FN3. Indeed, as our Supreme Court has noted, “it requires little analysis to perceive that the legislative purpose underlying [safe workplace legislation] would be substantially undermined if employers were permitted to discharge employees simply for protesting working conditions which they reasonably believe constitute a hazard to their own health or safety.”   (Citation omitted.)  Parsons v. United Technologies Corp., supra, 243 Conn. 80..  FN3. Indeed, as our Supreme Court has noted, “it requires little analysis to perceive that the legislative purpose underlying [safe workplace legislation] would be substantially undermined if employers were permitted to discharge employees simply for protesting working conditions which they reasonably believe constitute a hazard to their own health or safety.”   (Citation omitted.)  Parsons v. United Technologies Corp., supra, 243 Conn. 80.

FN4. As our Supreme Court recently recognized, “[i]f [a] motion to strike has merit as to certain allegations of the complaint, the proper course for the court is to strike those allegations only.”  Coe v. Board of Education, 301 Conn. 112, 121 n.5 (2011) (“Prior case law [regarding motions to strike] ought not 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”)..  FN4. As our Supreme Court recently recognized, “[i]f [a] motion to strike has merit as to certain allegations of the complaint, the proper course for the court is to strike those allegations only.”  Coe v. Board of Education, 301 Conn. 112, 121 n.5 (2011) (“Prior case law [regarding motions to strike] ought not 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”).

Gold, David P., J.