Alyssa Jensen v. LLC (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 101) and on OBJECTION TO MOTION TO STRIKE (# 102)

Defendants move to strike the first count of the complaint in this case, on the basis that the legislature has repealed the statute (Gen.Stat. § 17b–301k) creating the cause of action she expresses therein.   They also attack her claim for attorneys fees made under the authority of that statute.

By way of an introduction preceding any specifically-designated count, the complaint alleges that plaintiff was an employee of the defendant LLC for approximately two years, and that the individual defendant is the company's executive director.   Her title was “TBI Companion,” with “TBI” being shorthand for traumatic brain injury.   The critical events cited commenced on June 30, 2012, when plaintiff made a complaint to the Connecticut Department of Social Services that her employer was defrauding the state and “abusing/neglecting its clients.”   That launched a flurry of communications between state officials and the plaintiff, between plaintiff and defendants, and between defendants and other of their employees.   These events culminated in defendants' termination of plaintiff's employment on July 6.

In her first count, she utilizes those allegations to support a claim that the defendant company has violated C.G.S. § 17b–301k and perpetrated a wrongful discharge.   She alleges that she has sustained damages as a result.   She claims, inter alia, a statutory award of attorneys fees incurred in bringing this case.

I) Nature of a Motion to Strike

Connecticut is a fact-pleading jurisdiction, and § 10–1 of our Practice Book requires that each pleading contain a plain and concise statement of the material facts on which the pleader relies.  Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder”;  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”;  Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498 (2003).

The court must accept as true all well pleaded facts and construe them in the light most favorable to pleader.  Lestorti v. DeLeo, 298 Conn. 466, 472 (2010).   If facts provable in the complaint would support a cause of action, the motion to strike must be denied.  Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002).   The court cannot rely on facts outside of the pleading;  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347–48 (1990);  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7 (2008);  nor on grounds not specified in the motion.  Gazo v. Stamford, 255 Conn. 245, 259 (2001).

II) Specific Details of the Motion to Strike

The moving defendants are represented by the same counsel, and have filed a single motion to strike.¹  As required by Practice Book § 10–39, the motion clearly sets forth their claims as to the legal sufficiency of the count which they challenge.   They argue that the General Assembly repealed C.G.S. § 17b–301k when it enacted Public Act 14–217, specifically Section 257 thereof.   They further claim that the effective date of the repeal was June 13, 2014, and thus when plaintiff had her complaint served on the defendant company on June 30, 2014, there existed no statutory basis upon which she could base her first count.   As a corollary to that argument, defendants also move that the plaintiff's claim for statutory attorneys fees is untenable in light of the statute's repeal, and accordingly must also be stricken.

Plaintiff has responded with a memorandum of law arguing that the repeal legislation ought to be applied prospectively only, since the legislature did not indicate any intent that it be applied retroactively.

III) Discussion

Public Act 14–217, captioned “An Act Implementing Provisions of the State Budget for the Fiscal Year Ending June 30, 2015,” includes as Section 257 this provision:  “Sections 17b–301a to 17b–301p, inclusive, of the general statutes are repealed.  (Effective from passage).”   The General Assembly's website indicates that the Governor signed the bill on June 13, 2014, which is therefore its effective date.

Section 17b–301k had read as follows:

(a) Any employee, contractor or agent who is discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under sections 17b–301c to 17b–301g, inclusive, including investigation for, initiation of, testimony for or assistance in an action filed or to be filed under sections 17b–301c to 17b–301g, inclusive, or efforts to stop a violation of sections 17b–301a to 17b–301p, inclusive, shall be entitled to all relief necessary to make the employee, contractor or agent whole.   Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of any back pay, interest on any back pay and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys fees.   An employee may bring an action in the Superior Court for the relief provided in this section.

(b) A civil action or claim under this section may not be brought more than three years after the date on which the retaliation occurred.

301k and the other provisions described in the text just quoted were part of Public Act 09–5 (Special Session), captioned “An Act Implementing the Provisions of the Budget Concerning Human Services and Making Changes to Various Social Services Statutes.”

For the purpose of this motion, the court adopts the Office of Legislative Research's summary of the general nature of this legislation, as well as its explanation of the specific “whistleblower protections” which are involved in the first count here:

(Generally) The bill creates a Connecticut False Claims Act (ECA) applicable to the medical assistance programs that the Department of Social Services (DSS) administers, including Medicaid, State–Administered General Assistance (SAGA), HUSKY B, and Charter Oak ․

(Section 11, codified as 17b–301k) The bill provides that any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against by his or her employer because the employee lawfully acts on his, her, or others' behalf in furthering one of the bill's actions, including investigating, initiating, or testifying or assisting in, an action filed or to be filed under the bill is entitled to all relief necessary to make the employee whole.

This relief, which the employee can request through Superior Court, must include (1) reinstatement with the same seniority status that the employee would have had except for the discrimination and (2) twice the amount of any back pay, plus interest on it, and compensation for any special damages that the discrimination caused, including litigation costs and reasonable attorneys fees.

Defendants' memorandum of law in support of their motion merely lays out the chronology as to the enactment of the repeal statute and the service of plaintiff's complaint, and deems the date of the 2014 legislation to be the end of the matter.   Their brief is silent as to whether or not the new law must be interpreted as having retroactive as well as prospective application, but that analysis cannot be avoided.

It is well-settled that a statute which alters the substantive rights of parties is to be given only prospective effect, unless the legislation clearly and unequivocally expresses the intent that it be applied retroactively.   This principle is a long-standing aspect of our state's law embodied both in statute, specifically C.G.S. § 55–3, which reads:

No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.

and in case law, including Miano v. Thorne, 218 Conn. 170, 175–6 (1991):

No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.   The “obligations” referred to in the statute are those of substantive law ․ Accordingly, we have uniformly interpreted § 55–3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only ․ This presumption is rebutted only when the legislature “clearly and unequivocally” expresses its intent that the legislation shall apply retrospectively ․ Moreover, although we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary ․ a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application ․ The rule is one of obvious justice and prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed.

(Citations omitted;  internal quotation marks eliminated.)

While there is no precise definition of either “substantive” or “procedural” law, it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress;  State v. Fielding, 296 Conn. 26, 41 (2010).   The protection which 17b–301k confers upon a person in plaintiff's circumstances at the time of her termination unequivocally creates, defines, and regulates her right to job security notwithstanding her disclosures to state officials, and is thus a matter of substantive law.   The provision is quite distinct from one merely prescribing the method of enforcing a right.   The conclusion that the protection afforded to this whistle-blower by the 2005 legislation is substantive is buttressed by the Supreme Court's description of whistle-blower protection under a similar statute, C.G.S. § 31–51m.   In note 21 to Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012), quoting Tiernan v. Charleston Area Medical Center, 203 W.Va. 135, 147–8 (1998), the Court opined that “the whistle-blower laws present an independent statutory basis for liability should an employer retaliate against an employee for reporting wrongdoing or waste, as those terms are defined by statute.”

Nothing in Public Act 14–217 expresses any intent that the General Assembly intended to have Section 257 apply retroactively.

Plaintiff has pointed out a series of earlier trial court decisions rejecting attempts to take advantage of statutory changes affecting substantive rights, including Merry v. City of Norwalk, Superior Court, judicial district of Fairfield, Docket Number CV92 0292947 (Dec 2, 1994;  McGrath J.) (13 Conn.L. Rptr. 131);  Johnson v. Linde Gases of the Midwest, Inc., Superior Court, judicial district of New Haven, Docket Number CV92 0326516 (June 15, 1995;  Hartmere, J.);   and Bartosiewicz v. Taylor, Superior Court, judicial district of Milford, Docket Number CV–06–5000408 (December 22, 2008;  Tyma, J.).   The court has read the cases, none of which deal with the same statutory history involved here.   Because the holdings in those cases are consistent with that reached here, and since defendants declined to discuss or distinguish their precedential value, the court will simply state without further elaboration that it concurs with the result in each.

Plaintiff correctly points out that the appropriate date for measuring whether she had a cause of action for wrongful discharge is July 6, 2012, when the conduct of which she complains reached its climax.   The motion does not attack her allegations that she did have such a cause of action at that time.   Indeed, in failing to argue that the repeal legislation ought to be applied retroactively, the thrust of defendants' motion is simply that the court ought to strike this count solely on the basis of the timing of service of the complaint.   Taken literally, their focus upon the sequence of the repeal legislation's enactment and the service of plaintiff's complaint would be completely undercut if the service had occurred on June 12 instead of June 30.

The motion to strike is denied as to both the first count and the statutorily-based claim for attorneys fees.   Plaintiff's objection thereto is sustained.

Boland, J.

FOOTNOTES

FN1. This motion is addressed only to the first count, in which only the company is accused of this statutory violation.   The motion nevertheless recites that it is filed by “the defendants.”   Mr. Brisson's participation in the prosecution of the motion seems unnecessary, albeit harmless..  FN1. This motion is addressed only to the first count, in which only the company is accused of this statutory violation.   The motion nevertheless recites that it is filed by “the defendants.”   Mr. Brisson's participation in the prosecution of the motion seems unnecessary, albeit harmless.

Boland, John D., J.