Sigfredo Perez v. Bridgeport Hospital (2012)

MEMORANDUM OF DECISION

This is a decision on the defendant's motion to strike, dated April 13, 2012.   The defendant claims that the plaintiff's two-count complaint must be stricken for his failure to state claims upon which relief can be granted.

The plaintiff, Sigfredo Perez has filed a two-count complaint against defendant, Bridgeport Hospital.   The plaintiff alleges in his first count that he was wrongfully terminated from his employment with the defendant.   He alleges that on August 7, 2011, he was repeatedly verbally threatened with physical violence by a coworker, and he reported the threats to a supervisor.   Four days later, he alleges that he was told that his position was eliminated and the defendant had no work for him.   He alleges that he was terminated for complaining regarding the threats of physical violence against him which is wrongful and against the public policy of the state of Connecticut.   He further alleges that the defendant failed to provide a safe work environment and one safe from hazards, in violation of C.G.S. § 31–49 ¹ and § 31–370(a),² which violate a public policy of this state.

In the second count, the plaintiff alleges wrongful termination, but also alleges that in his reporting the threats of violence against him, he was engaging in constitutionally protected right of free speech, and thus his employment termination was in violation of C.G.S. § 31–51q.³

The defendant has filed a motion to strike the entire complaint for failure to state claims upon which relief can be granted.   The defendant claims that count one must be stricken because the alleged violation of public policy is based on statutes which have their own remedies and do not support a common-law claim of wrongful discharge.   The defendant also claims that count two must be stricken because the plaintiff does not allege as an essential element of the claim, that the plaintiff spoke as a member of the public on a matter of public concern.

The plaintiff filed an objection to the motion on July 3, 2012.   The defendant filed a supplemental memorandum on June 28, 2012.   The court heard argument on July 23, 2012.

I.

The defendant's motion to strike claims that the first and second counts are legally insufficient.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [complaint] ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)   Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, (1994);  see also Ferryman v. Groton, 212 Conn. 138, 142, (1989).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007).

II.

The plaintiff's first count makes a claim based on wrongful termination of employment.  “As a general rule, an employer is free to terminate an at-will employee's employment with impunity.   In Sheets, our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges ‘a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.’  (Emphasis in original.)  Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 475.   That exception, however, is to be construed narrowly.”   (Citations omitted;  internal quotation marks omitted.)  Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194 (2003).

The plaintiff cites Parsons v. United Technologies Corp., 243 Conn. 66 (1997), as support for his cause of action in wrongful discharge.   In Parsons, our Supreme Court held that C.G.S. §§ 31–49 and 31–370 create a broad mandate of public policy which protects employees who refuse to work under conditions that pose a substantial risk of death or serious physical harm, id. at 80.   However, the allegations in this matter are factually distinguishable from Parsons.   There, an employee of Sikorsky aircraft was terminated for refusing to be sent to a military staging area in Bahrain during “Operation Desert Storm,” which he perceived as a real threat to his health, safety and welfare.   Here, the plaintiff alleges that he was terminated after he was repeatedly threatened with physical violence by his co-worker.   He claims his termination was wrongful after complaining to his supervisors regarding the co-worker's threats of physical violence.   Unlike Parsons, nowhere in this matter is it alleged that the plaintiff refused to work under those dangerous conditions, and was discharged as a result.

The defendant argues that Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648 (1985), imposes an important limitation on the tort of wrongful discharge, which is that the common-law cause of action only lies when the employee is otherwise without a remedy provided in the statutes which underlie the public policy.   Further, in Burnham v. Carl and Gelb, P.C., 252 Conn. 153, 163–65, (2000), the Supreme Court held that an employee may not pursue a common-law cause of action in wrongful discharge if the employee has a statutory or administrative remedy under the statutes which give rise to the public policy, even if the remedy falls short of what the common law provides.

In the first count of his complaint, the plaintiff alleges a violation of C.G.S. § 31–49, in that the defendant failed to provide a reasonably safe work environment for its employees.   The defendant rightly points out that the legislature provided a statutory remedy for such violation in C.G.S. § 31–50.⁴  Since a remedy is provided by statute for a violation of § 31–49, an employee may not pursue a common-law cause of action in wrongful discharge for such violation.   Likewise, a remedy for a violation of C.G.S. § 31–370 is found in C.G.S. § 31–374 ⁵ et seq., where the labor commissioner is authorized to enter, investigate, and undertake enforcement on an employer who fails to provide a place of employment free from hazards.

Since a remedy has been provided by the legislature for both alleged violations of statute and public policy in the first count, the common-law claim of wrongful discharge is barred.   Thus, the motion to strike the first count is granted.

III.

The defendant also moves to strike the second count for failure to state a claim upon which relief can be granted and claims the complaint is missing an essential element, that the plaintiff spoke as a member of the public on a matter of public concern.

In the second count, the plaintiff alleges that “in reporting to his employer the threats of violence against him by his co-worker, as described above, Plaintiff was engaging in the right of freedom of speech, as protected by the First Amendment to the United States Constitution, and by Article One Section Four of the Constitution of the State of Connecticut on a matter of public concern that employers maintain a safe workplace and that employees should not be retaliated against for reporting being subject to threats of violence in the workplace.   Defendant's termination of Plaintiff's employment violated Conn. Gen.Stat. 31–51q.”

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court of the United States held that public employees who make statements pursuant to their official duties are not speaking as citizens for first amendment purposes and the federal constitution does not insulate their communications from employer discipline.   Following Garcetti, our supreme court decided Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012), which held and acknowledged “an action brought under § 31–51q, which creates a statutory cause of action for damages against [a]ny employer for any employee who has been subjected ‘to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States [c]onstitution or section 3, 4 or 14 of article first of the [c]onstitution of the state ․” (Citations omitted;  internal quotation marks omitted.)  Id. at 599.  “[W]e agree with the federal circuit courts of appeal that have considered the issue and unanimously have concluded that Garcetti adds a threshold layer of analysis, requiring courts to first determine whether an employee is speaking pursuant to his official duties before turning to the remainder of the first amendment analysis.”  Id. at 604.

The subject matter addressed by a particular statement is of public concern involves a question of law for the court, Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 777 (1999).  “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ․ An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community ․” (Citations omitted;  internal quotation marks omitted.)   Schumann v. Dianon Systems, Inc., 304 Conn. at 602.   In Shumann, the Supreme Court acknowledged the standard outlined in Weintraub v. Board of Education, 593 F.3d 196 (2010), to determine whether such statement is of public concern:  “( [a]s a rule of thumb activities required of the employee as part of his employment duties are not performed ‘as a citizen’ if they are not ‘the kind of activity engaged in by citizens who do not work for the government’ ”).   Put simply, on-the-job speech generally is “pursuant to” an employee's duties when it is “part-and-parcel of his concerns about his ability to properly execute his duties.”  (Internal quotation marks omitted.)   Weintraub v. Board of Education, supra, 203,” Schumann v. Dianon Systems, Inc., 304 Conn. at 614.

Here, the plaintiff, Sigfredo Perez alleges that his termination was as a result of reporting to his employer the threats of violence against him by his co-worker.   Clearly, that speech and the resulting termination was part-and-parcel of his concerns about his ability to exercise his duties in the defendant's workplace.   As such, the speech was on the job and not as a “citizen” in a matter of public concern, and not protected by the First Amendment.   Therefore, the defendant's motion to strike the second count is granted.

IV.

In conclusion, the defendant's motion to strike the first and second counts is granted.

Matasavage, J.

FOOTNOTES

FN1. C.G.S. § 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. C.G.S. § 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.”

FN2. C.G.S. § 31–370 provides:  (a) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees..  FN2. C.G.S. § 31–370 provides:  (a) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

FN3. C.G.S. § 31–51q provides:  Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages.   If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer..  FN3. C.G.S. § 31–51q provides:  Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages.   If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer.

FN4. C.G.S. § 31–50 provides:  “The commissioner shall enforce the provisions of part I of this chapter and sections 31–23 to 31–49 inclusive, by giving proper orders or notices to the persons or corporations owning, operating or managing the factories or buildings inspected by him and shall make complaint to the state's attorneys of any violation of said provisions.”.  FN4. C.G.S. § 31–50 provides:  “The commissioner shall enforce the provisions of part I of this chapter and sections 31–23 to 31–49 inclusive, by giving proper orders or notices to the persons or corporations owning, operating or managing the factories or buildings inspected by him and shall make complaint to the state's attorneys of any violation of said provisions.”

FN5. For instance, C.G.S. § 31–375 provides:  “(a) If, upon inspection or investigation, the commissioner or his authorized representative believes that an employer has violated any provision of sections 31–369 and 31–370, any standard promulgated pursuant to section 31–372 or any regulations adopted pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the employer.   Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of this chapter or the standard, regulation or order alleged to have been violated.   The citation shall fix a reasonable time for the abatement of the violation.”.  FN5. For instance, C.G.S. § 31–375 provides:  “(a) If, upon inspection or investigation, the commissioner or his authorized representative believes that an employer has violated any provision of sections 31–369 and 31–370, any standard promulgated pursuant to section 31–372 or any regulations adopted pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the employer.   Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of this chapter or the standard, regulation or order alleged to have been violated.   The citation shall fix a reasonable time for the abatement of the violation.”

Matasavage, Paul, J.