Christopher Markese v. Manafort Brothers, Inc. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

This is a one-count second amended complaint alleging wrongful termination of the plaintiff, Christopher Markese, by the defendant, Manafort Brothers, Inc., in violation of General Statutes § 31–290a.

The defendant is in the business of construction and repair of roadways.   The plaintiff worked for the defendant beginning in Spring of 2008 until he was terminated on August 20, 2010.   His primary job duties consisted of operating a jackhammer for the purpose of excavating road beds.   On or about May 11, 2009, the defendant began a road repair project in Hartford, Connecticut, which required workers to remove the concrete bed of a highway using a jackhammer.   Because work was performed at night, an awning with lights was erected over the excavation site which ran on gasoline and produced exhaust fumes.   In addition to breathing the fumes, the workers constantly were working in a “cloud of concrete dust” because so many workers were breaking up concrete at one time.

On several occasions throughout 2009 and 2010, inspectors from the Occupational Safety and Health Administration (“OSHA”) visited the worksite to perform safety inspections.   On each visit, the defendant assigned only one or two workers to excavate concrete with jackhammers.   As soon as the OSHA inspectors left, the defendant would reassign ten or more employees to resume excavation with jackhammers.   On several occasions throughout 2009 and 2010, the plaintiff complained to his supervisor, John Jacobite (“Jacobite”), that the constant exposure to the concrete dust and/or gasoline exhaust constituted a workplace hazard and that the defendant's efforts to deceive the OSHA inspectors were illegal.   Jacobite ignored all complaints.

During his shift on August 19, 2010, the plaintiff developed shortness of breath and experienced difficulty inhaling and exhaling.   At the end of his shift, he reported his breathing problems to Jacobite and asked to receive medical treatment.   Jacobite denied the plaintiff's request, and told the plaintiff, “You have insurance, use your own insurance.”   The following day, August 20, 2010, the plaintiff reported to work despite his breathing problems and was told he was being terminated for “lack of work.”   One or two other workers were also terminated at this time.

The plaintiff claims that he was terminated because he was injured in the course of employment and because he attempted to exercise his rights under the Workers' Compensation Act (“the Act”) in violation of General Statutes § 31–290.

On April 11, 2013, the defendant filed this motion for summary judgment.

-I-

The defendant argues that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law because the plaintiff has not and cannot establish a prima facie case of wrongful termination in violation of General Statutes § 31–290a.

General Statutes § 31–290a prohibits employers from discharging or discriminating against an employee who has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the statute.

To establish a prima facie case of discrimination under § 31–290a, the plaintiff must show that [he] was exercising a right afforded [him] under the [Act] and that the defendant discriminated against him for exercising that right.  Martin v. Westport, 108 Conn.App. 710, 717–18, 950 A.2d 19 (2008).

The present case is analogous to the well reasoned analysis in Lombardi v. Tilcon, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 4007485 (October 3, 2007, Taylor, J.).   The plaintiff in Lombardi was injured at work and immediately notified his supervisor and sought medical treatment.   The court held that immediate notice of a clear and unmistakable injury at work, immediately followed by an extended absence for medical treatment for that injury, implies an exercise of rights under the Act, for failure to do so may result in a diminished award of workers' compensation.   The court denied the defendant's motion for summary judgment, finding that the plaintiff's complaint alleged facts sufficient to imply notice to his employer of an exercise of rights under the Act.

-II-

In the present case, it is undisputed that the plaintiff had not filed a workers' compensation claim prior to his layoff on August 19, 2010.   Further, supervisor, Jacobite, testified that the plaintiff had not at any time prior to his lay off on August 19, 2010 made any complaints regarding his difficulty breathing and/or any other medical condition or injury that he allegedly received on the job and/or work-related.

The plaintiff, however, testified under oath that he had complained about the dust to his foreman and co-workers at the worksite “halfway into the first season” he worked for the defendant;  that the defendant's employee, Domenic Izzi, told the plaintiff that he “heard that [the plaintiff] had problems out there on the highway with the dust”;  and that the plaintiff had reported to Jacobite that he had trouble breathing and that his lungs and chest were tight.   Though he did not take a leave of absence to receive medical treatment, the plaintiff alleges and stated in his deposition that he requested of his supervisor that he be allowed to seek medical treatment.

Such evidence, when viewed in the light most favorable to the plaintiff, establishes that there is a genuine issue of material fact as to whether the defendant had knowledge of the plaintiff's injuries and exercise of his rights under the Act so as to establish a causal connection between the plaintiff's protected activity and his termination.

Defendant's motion for summary judgment is denied.

Wagner, JTR

Wagner, Jerry, J.T.R.