Chris A. Martino v. CT (2014)

MEMORANDUM OF DECISION

This litigation has its onset on July 18, 2011, when the defendant (Bay Crane Service of CT, Inc.) terminated the plaintiff (Chris A. Martino) from his employment with the defendant as a truck driver because the plaintiff refused an instruction by his employer to drive a truck from North Haven to Norwich, Connecticut.

The plaintiff claims that he had a right to refuse an employer's demands to engage in conduct that is potentially illegal and presents a safety hazard to the public at large.   The plaintiff has filed a two-count complaint against the defendant seeking compensatory, general, and punitive damages, the value of all employment benefits, and attorneys fees.   The first count is premised on a violation of Connecticut General Statutes Section 31–51q, and the second count alleges a breach of the plaintiff's employment contract.   In its answer to the complaint the defendant denies that it has violated Section 31–51q or the employment contract.   In addition the defendant has filed four special defenses to both counts specifically alleging that the plaintiff has failed to state a claim upon which relief may be granted, that he has failed to mitigate his damages, that he was terminated for insubordination and therefore is barred from recovery, and that because the plaintiff's speech was not protected under State or Federal law, he is barred from recovery.   The defendant has also filed special defenses to the second count alleging that the plaintiff lacks standing to recover under the employment agreement, and that the court lacks subject matter jurisdiction because the plaintiff has failed to exhaust his administrative remedies.

The case was tried before this court on December 3, 2013.   The witnesses were the plaintiff and Joseph Zils, Jr., the manager of the defendant's Connecticut operations.   Appropriate briefs have been filed by each party.

The first count is based on an alleged violation of Section 31–51q:

“Sec. 31–51q.  Liability of employer for discipline or discharge of employee on account of employee's exercise of certain constitutional rights.   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.”

The second count alleges a violation of the employment agreement.   The agreement is a collective bargaining agreement between the defendant and the International Union of Operating Engineer Local 478.   The specific portion of the agreement which the plaintiff alleges was violated is Article 16, Section 3 which states:

“No employee shall be required to drive or operate any vehicle or piece of equipment which is not equipped with all safety devices required by law.   The employee must report all defects in equipment promptly.”

Based on the evidence and briefs submitted the court finds the following facts and reaches the following conclusions.

The plaintiff was employed by the defendant from March 2009 through July 18, 2011 as a truck driver.   The defendant is a corporation doing business in the state of Connecticut, specializing in the transportation of heavy construction equipment.   The plaintiff's supervisor was Joseph Zils, the manager of Connecticut operations.   The plaintiff's duties included disassembling large machinery, such as large cranes, loading them onto trailers, and then transporting the trailer by towing it with a large truck to where the crane was to be used in construction.   It was also his duty to inspect the truck and trailer for defects and to report any defects found to his supervisor.   The plaintiff frequently worked more than 40 hours per week and was paid overtime.

The incident which led to the plaintiff's termination involved his operation of trailer 101 on July 18, 2010.   The trailers are equipped with an air suspension system to lower and raise the trailer flat bed.   This is done by using a series of air bags underneath the trailer.   The process of loading and unloading heavy machinery on the trailer required the trailer to be lowered by removing air from the air bags, then raising the machinery off the ground and moving the trailer under the machinery.   The machinery is then lowered onto the trailer, and the trailer is then raised off the ground by placing air back into the air bags.

On July 18, 2011 the plaintiff drove a truck with an empty trailer 101 being towed from the defendant's place of business in North Haven to Orange to pick up a large crane at a construction site.   The plaintiff loaded the crane house on trailer 101 but when he switched the lever to put air back into the suspension the trailer did not rise up off the ground as high as it should have risen because of an air leak.   The plaintiff notified Joe Sils of the problem and the plaintiff and Bob Rossiter, the defendant's crane technician and mechanic, then searched the trailer and found the air leak.   Mr. Rossiter then put a pair of vise grips on the air line going to the air bag that was leaking.   This isolated the leaking air bag and allowed the remaining air bags to inflate properly.

The plaintiff then drove his truck with trailer 101 loaded with the crane house from Orange headed to Exit 9 in Interstate 91 where he was to meet Joe Sils who had the permit from the DOT to allow the trailer to be taken on the public highway from North Haven to Norwich, which was the ultimate destination of the crane on trailer 101.   In accordance with Joe Sil's instructions Rossiter was following in his vehicle behind trailer 101.   Sunset was at 8:24 p.m. and the permit required that the trailer be off the highway by 30 minutes after sunset.   Joe Sils had made arrangements for places to park trailer 101 off the road en route to Norwich in case it got too dark before reaching Norwich.   In the event that they were forced to stop and park the truck and trailer before reaching Norwich, Rossiter, who was following the plaintiff, would then bring the plaintiff back to North Haven.

The plaintiff drove his truck to the defendant's place of business in North Haven and arrived there at approximately 7:00 p.m. When the plaintiff parked his truck and trailer 101 in the defendant's yard, the trailer looked fine to Mr. Sils. Rossiter had told Sils there was no safety violation and that the trailer was safe to go.   The truck and the trailer carrying the crane house was safe to operate on the highway to Norwich.   There was still adequate time to drive to Norwich before dark.   Sils told the plaintiff that if he parked the truck in the yard he would be fired.   Despite this warning the plaintiff parked the truck in the yard which indicated that he would not drive the truck and trailer 101 to Norwich or to any location en route to Norwich where they might be forced to stop because the time limit on the permit had expired, and the plaintiff was fired.

The plaintiff said in his conversation with Sils at about 3:30 p.m. that the trailer was not safe to drive on the highway.   Thereafter, Sils contacted Rossiter who put a pair of vise grips on the air line going to the leaking bag, thereby isolating the defective bag and allowing the other bags to inflate properly, and to raise the trailer to its proper position.   The court finds that the conversation with Sils at about 3:30 p.m. was the only time that the plaintiff made a claim that the trailer was not safe to travel.   Trailer 101 was made safe to travel by the installation of the vise grips and the plaintiff then towed trailer 101 from Orange to North Haven, including travel on I–91 Interstate.   The court finds that the plaintiff did not tell Sils when they were in the defendant's yard in North Haven that trailer 101 was not safe to travel to Norwich.   He had told Rossiter that “it's been hot today.   I'm not working.   I don't feel like working late tonight.”   He was terminated because of insubordination in refusing to obey a valid order by his superior.

The plaintiff did not refuse to take trailer 101 to Norwich because of a concern for safety.  “A clear prerequisite to the application of § 31–51q, however, is that the speech at issue must be constitutionally protected;  only the “exercise ․ 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” falls within the ambit of the statute.  General Statutes § 31–51q;  see Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777 ( [§ ]31–51q applies to constitutionally protected speech”);  see also Perez–Dickson v. Bridgeport, 304 Conn. 483, 498 (2012).

“In Connick v. Myers, supra, 461 U.S. 150, the court added a modification to the general balancing test promulgated in Pickering.   Under Connick, if a government employee's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary ․ to scrutinize the reasons for [his or] her discharge ․ The court reasoned that if an employee's speech addresses matters of exclusively private concern, the government interest in latitude [to manage] their offices, without intrusive oversight by the judiciary ․ would outweigh the first amendment interests in the speech, absent the most unusual circumstances ․

“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.)  DiMartino v. Richens, supra, 263 Conn. 666–67.”  Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012).

The court finds that the plaintiff's objection to traveling to Norwich on July 18, 2011 did not constitute speech on a matter of public concern for safety on the highway, but rather was a matter of exclusively private concern.   The refusal was in the course of his employment, was clearly an act of insubordination, and is not entitled to the protection of Section 31–51q as alleged in the first count.

The claim in the second count is that the plaintiff was discharged for refusing to operate unsafe machinery in violation of his employment agreement.   The plaintiff has failed to prove this allegation.

Accordingly, for the reasons set forth above, a judgment may enter in favor of the defendant on the first and second counts.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.