Doreen Spiotti v. Town of Wolcott et al.

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Superior Court of Connecticut.

Doreen Spiotti v. Town of Wolcott et al.

UWYCV126016564

Decided: July 02, 2013

MEMORANDUM OF DECISION REGARDING DEFENDANTS' MOTION TO STRIKE, NO. 102

I

ISSUES

1. Whether to strike count four of the complaint, alleging retaliation in violation of General Statutes § 31–51m, on the following grounds:  (1) the plaintiff's exclusive remedy is through General Statutes § 46a–60(a)(4) of the Connecticut Fair Employment Practices Act (CFEPA);  (2) an ombudsman charged with enforcing a previous settlement agreement between the plaintiff and the Wolcott police department is not a “public body” under the statute;  and (3) the plaintiff failed to sufficiently allege a causal nexus between her complaints to public bodies and the retaliation against her.

2. Whether to strike count five of the complaint, alleging retaliation in violation of General Statutes § 31–51q, on the following grounds:  (1) the plaintiff did not engage in speech protected by the statute;  (2) the defendants' failure to reinstate the plaintiff is not “discipline or discharge” contemplated by the statute;  and (3) the plaintiff failed to sufficiently allege a causal nexus between her exercising protected speech and the retaliation against her.

II

FACTS

This case arises from the discharge of the plaintiff, Doreen Spiotti, from her employment as a police officer in the Wolcott police department (WPD) and her employer's refusal to rehire her.   The defendants, the town of Wolcott (the town) and the WPD, move to dismiss and strike multiple counts of the plaintiff's complaint.

The plaintiff alleges the following relevant facts.   The plaintiff was employed as a police officer by the town in the WPD starting in 1998.   The plaintiff remained the only female police officer at the WPD throughout her employment.   In 2003, the plaintiff filed a federal civil suit against the town, alleging sex discrimination and sexual harassment.1  In June 2008, the parties settled that case.   The settlement agreement provided for an “Ombudsman Protocol,” which required the appointment of an ombudsman, employed by the town, who was responsible for investigating the plaintiff's future claims of discrimination, harassment and retaliation.

In February 2010, the plaintiff filed a complaint under the ombudsman protocol.   The complaint alleged that the WPD discriminated, harassed and retaliated against the plaintiff by making her the target of an internal investigation and placing her on administrative leave while the town investigated two police officers' complaints against her.   On February 10, 2010, the ombudsman released a report substantiating the plaintiff's claims of retaliation, finding the WPD and its employees “continue[d] to be impacted by the Spiotti v. Town of Wolcott litigation.”   The ombudsman found that “retaliatory animus was a motivating factor” in one complaint by a fellow WPD officer, while the other complaint, brought by another WPD officer, “was influenced by the retaliatory motives of others” and included “embellished or exaggerated” elements.

In July 2010, the plaintiff brought a second complaint to the ombudsman alleging retaliation (July complaint).   In the July complaint, the plaintiff made the following relevant allegations:

1. Following the ombudsman's February 10, 2010 report, the chief of the WPD, Neil O'Leary (the chief), told the plaintiff she had to “move on” from her past lawsuit.   The chief also told the plaintiff he was considering sending her to remedial training.

2. In April 2010, the chief sought the plaintiff's opinion about implementing the “family policy,” a department policy that prohibited spouses from working during the same shift.

3. The plaintiff, whose husband is also a WPD police officer, objected to the “family policy” because it would disrupt her home and family life.

4. The plaintiff told the chief she believed the “family policy” was retaliation against her because the plaintiff and her husband were the only two spouses employed as police officers at the WPD.

5. The “family policy” became known as the “Spiotti Policy” in the WPD because it was aimed at the plaintiff and her husband.

6. To support the “family policy,” the chief told a news reporter, “we can't have people having sexual intercourse on duty, can we?”

7. The chief would not allow the plaintiff or her husband to swap shifts;  no other request to swap shifts was denied by the WPD.

8. The “family policy” only applied to the plaintiff and her husband and not to other WPD employees who worked the same shift as family members.

9. John Urban, a self-described close family friend of the chief, told the plaintiff he knew she was being retaliated against through the “family policy.”

After filing the July complaint, the plaintiff was the subject of two additional internal investigations by the WPD. One investigation related to alleged inappropriate remarks made by the plaintiff to the sister of the mayor of Wolcott.   The other investigation related to the plaintiff's July complaint.

As a result of the investigations, the town found that the plaintiff had violated various rules and regulations and had been untruthful in the July complaint and her response to allegations made by the mayor's sister.   On September 22, 2010, the plaintiff was terminated from her employment as a police officer.   On December 6, 2010, the ombudsman determined that the plaintiff's termination was retaliatory to the extent it was based upon the July complaint.   On December 15, 2010, the plaintiff made a demand to be rehired based on the ombudsman's findings.   On March 3, 2011, the town rejected the plaintiff's demand to return to work.

The plaintiff timely filed charges of discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO) and the Equal Employment Opportunity Commission (EEOC) against the defendants.   The CHRO issued a release of jurisdiction on August 17, 2012.   The plaintiff filed the current action on September 28, 2012.

The defendants filed a “Motion to Dismiss and/or Strike” the plaintiff's complaint (# 102) on December 13, 2012.   The plaintiff objected to the motion (# 106).   On April 26, 2013, the defendants filed a reply brief (# 107).   Oral argument on this motion was heard on the motion calendar on April 29, 2013.

III

DISCUSSION

The defendants moved to dismiss claims against the WPD because the WPD is not a separate body politic from the town, and therefore, cannot be sued.   The plaintiff does not object the motion to dismiss claims against the WPD. The motion to dismiss the claims against the WPD is therefore granted without objection.

The defendants additionally move to strike count one to the extent it attempts to allege marital status discrimination in violation of General Statutes § 46a–60(a)(1).   The plaintiff also does not object to the defendants' motion to strike count one regarding marital status discrimination only.   The defendants' motion to strike count one is granted without objection only to the extent count one sets forth a claim of marital status discrimination.

The defendants move to strike count four, alleging retaliation in violation of General Statutes § 31–51m,2 and count five, alleging retaliation in violation of General Statutes § 31–51q.3

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “A motion to strike admits all facts well pleaded.”  Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.   The court must construct the facts in the complaint most favorably to the plaintiff ․ If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

A

Motion to Strike Count Four

In the fourth count of the complaint, the plaintiff alleges her discharge and the defendants' decision not to rehire her violated § 31–51m,4 Connecticut's “whistleblowing statute,” because those decisions were in retaliation for the plaintiff's complaining to the ombudsman, CHRO and EEOC.

“[W]histle-blowing claims for retaliatory discharge typically invite analysis under the framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   In an action under § 31–51m(b), [the] plaintiff has the initial burden under McDonnell Douglas Corp. ․ of proving by a preponderance of the evidence a prima facie case of retaliatory discharge ․ This consists of three elements:  (1) that [the plaintiff] engaged in a protected activity as defined by § 31–51m(b);  (2) that [the plaintiff] was subsequently discharged from his employment;  and (3) that there was a causal connection between his participation in the protected activity and his discharge.”  (Citation omitted;  internal quotation marks omitted.)  Arnone v. Enfield, 79 Conn.App. 501, 507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).

The defendants argue that the court must strike count four because:  (1) the plaintiff's exclusive remedy is through General Statutes § 46a–60(a)(4);  (2) the ombudsman is not a “public body” under § 31–51m;  and (3) there is not a sufficient causal nexus alleged between the plaintiff's complaint to the CHRO and EEOC and the alleged retaliation against her.

1

Whether § 46a–60(a)(4) Preempts the § 31–51m Claim

The defendants first argue that the court must strike the fourth count because § 46a–60(a)(4) of the Connecticut Fair Employment Practices Act (CFEPA) preempts § 31–51m claims.   In response, the plaintiff contends that the CFEPA does not preclude her from bringing an alternative claim through the whistleblower statute.

“Section 31–51m ․ protects the employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation.”  Arnone v. Enfield, supra, 79 Conn.App. 506–07.  General Statutes § 46a–60(a)(4) provides in relevant part:  “It shall be a discriminatory practice in violation of this Section ․ For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under Section 46a–82, 46a–83 or 46a–84.”

“As a general rule, [u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  (Internal quotation marks omitted.)   Himmelstein v. Windsor, 116 Conn.App. 28, 40 n.9, 974 A.2d 820, aff'd, 304 Conn. 298, 39 A.3d 1065 (2009);  see also Practice Book § 10–25.   When construing § 46a–60(a)(4), “[w]e are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body ․ [T]his tenet of statutory construction ․ requires us to read statutes together when they relate to the same subject matter ․ Accordingly, [i]n determining the meaning of a statute ․ we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction ․ Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ․ is significant to show that a different intention existed ․ That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.”  (Citations omitted;  internal quotation marks omitted.)  Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).

This court must presume that the legislature, when it enacted § 31–51m in 1983, knew of the existing provisions in General Statutes § 46a–60, which preceded the enactment of the whistleblower statute.   Moreover, the legislature has since amended both statutes several times;  § 46a–60 was most recently amended in 2011.  “We presume that the legislature is aware of existing statutes when enacting new ones.”  Southern New England Telephone Co. v. Department of Public Utility Control, 274 Conn. 119, 129, 874 A.2d 776 (2005).

Section 46a–60 includes no declaration it is the exclusive remedy for retaliatory discharge for whistleblowing, despite the legislature's proven ability to use statutory language indicating exclusivity.5  See, e.g., General Statutes § 31–284(a) (“An employer who complies with the requirements of subsection (b) of this Section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ․”);  General Statutes § 52–572n(a) (“A product liability claim ․ may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product”).   “Absent a declaration in a statute that the statute provides the exclusive remedy for a particular claim of loss, Connecticut courts recognize that a party may plead in the alternative.”   Connecticut Concrete Construction, Inc. v. ARC IceSports Danbury, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 00 0160662 (February 8, 2001, Hodgson, J.) (29 Conn. L. Rptr. 429, 431) (citing Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985);  Viets v. Hartford, 134 Conn. 428, 434–35, 58 A.2d 389 (1948)).

The defendants have not provided, and this court could not find, any decision or statutory language suggesting § 46a–60(a)(4) precludes an alternative claim under § 31–51m.  Section 46a–60(a)(4) and § 31–51m must be read as harmonious and consistent with one another.   Accordingly, this court holds that an action under § 46a–60(a)(4) does not preempt an alternative claim under § 31–51m.

2

Whether Complaint Sufficiently Alleges Ombudsman Was a “Public Body” under § 31–51m

The defendants alternatively argue that the court must strike count four because the ombudsman is not a “public body” under § 31–51m.   The plaintiff contends that, based the statutory definition and the allegations, the ombudsman must be considered a “public body” under § 31–51m.

The question is whether, for the purposes of surviving a motion to strike, the ombudsman alleged in the complaint qualifies as a “public body” under § 31–51m.   Section § 31–51m(b) provides in relevant part:  “No employer shall discharge, discipline or otherwise penalize any employee because the employee ․ reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body ․” (Emphasis added.)

Section 31–51m(a)(4)(A) defines “public body” as:  “any public agency, as defined in subdivision (1) of Section 1–200, or any employee, member or officer thereof ․” General Statutes § 1–200(1) defines “public agency” as:  “(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions;  [or] (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law ․”

In the present case, the plaintiff alleges that the previous settlement agreement between her and the town called for the appointment of an ombudsman, employed by the town, who was charged with investigating the plaintiff's discrimination, harassment and retaliation claims.   The plaintiff additionally claims she was terminated for reporting violations of CFEPA and Title VII of the Civil Rights Act of 1964 to the ombudsman.

Under Connecticut law, “the CHRO ․ is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination.”  Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985).   The plaintiff alleges that, similar to the CHRO, the ombudsman was charged with investigating the plaintiff's discrimination claims.   Under Connecticut's whistleblower statute, a “public body” includes “[a]ny person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law ․” General Statutes § 1–200(1)(B).  For the purpose of this motion to strike, the plaintiff has sufficiently alleged that the ombudsman was the “functional equivalent” of a public agency, the CHRO. Therefore, the court concludes that the plaintiff has sufficiently alleged the ombudsman was a “public body” under § 31–51m.

3

Whether Complaint Alleges Sufficient Causal Nexus between Plaintiff's Protected Conduct and Defendants' Disciplinary Action

Finally, the defendants argue that the court must strike count four because the plaintiff has failed to allege a causal nexus between her complaints to the EEOC and the CHRO in 2003 and 2011 and either her termination on September 22, 2010 or the plaintiff's refusal to rehire her on March 3, 2011.   The plaintiff contends she has sufficiently alleged a causal connection between her termination and her July 2010 complaint to the ombudsman.

Our Appellate Court has stated that “[a] causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant.”  (Internal quotation marks omitted.)  Martin v. Westport, 108 Conn.App. 710, 719, 950 A.2d 19 (2008).   Furthermore, “the inquiry into whether temporal proximity establishes causation is factual in nature.   There is no ‘bright line’ to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action.”  (Internal quotation marks omitted.)  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009).

Questions of fact should not ordinarily be resolved on a motion to strike.   Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704, 694 A.2d 788 (1997).   Although causation, like other questions of fact, “becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion”;  Medcalf v. Washington Heights Condominium Assn., 57 Conn.App. 12, 17, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000);  “if the facts provable under the allegations of a complaint would support ․ a cause of action, the motion to strike must fail.”  (Internal quotation marks omitted.)  Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996).

Connecticut courts have been flexible in interpreting temporal proximity.   See, e.g., Li v. Canberra Industries, 134 Conn.App. 448, 457, 39 A.3d 789 (2012) (genuine issue of material fact exists whether employee's complaint to supervisor was cause of employee's termination several months later);  Oquendo v. Margaritaville of Connecticut, LLC, Superior Court, judicial district of New London, Docket No. 11 6007189 (June 24, 2011, Martin, J.) (cause of action under § 31–290a not vulnerable to motion to strike, where there was six-month gap between protected activity and adverse employment action);  Simoes v. Olin Corp., Superior Court, judicial district of Waterbury, Docket No. CV 06 6000206 (June 4, 2010, Cremins, J.) (50 Conn. L. Rptr. 26, 28) (“[w]hether an eight month lapse of time between the adverse action taken by the defendant, i.e. the plaintiff's termination, and the filing of the plaintiff's workers' compensation claim establishes the causal connection necessary to establish the plaintiff's prima facie case is an issue of material fact to be decided by the fact finder”).

In part IIIA2, this court concluded that the plaintiff has sufficiently alleged that the ombudsman is a “public body” under § 31–51m.   The plaintiff, therefore, alleges she reported suspected violations of state and federal law to the ombudsman.   The plaintiff additionally claims she was terminated from her employment on September 22, 2012, approximately two months after she made the July complaint.   Although this court recognizes that “the inquiry into whether temporal proximity establishes causation is factual in nature”;  Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn.App. 539;  for the purpose of a motion to strike, the plaintiff has sufficiently alleged a causal nexus between her complaint to the ombudsman in July 2010 and her termination two months later.6  The defendants' motion to strike count four is hereby denied.

B

Motion to Strike Count Five

In the fifth count of her complaint, the plaintiff alleges her discharge and the defendants' decision not to rehire her violated § 31–51q, which prohibits discipline or discharge of an employee for exercising free speech rights.7  “Section 31–51q makes it illegal for an employer to discipline an employee's exercise of rights under § 31–51m.”  Arnone v. Enfield, supra, 79 Conn.App. 506.  Section 31–51q provides in relevant part:  “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 Sections 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 ․”

The defendants argue that the court must strike count five because:  (1) the plaintiff does not allege she engaged in speech protected by § 31–51q;  (2) failure to reinstate is not “discipline or discharge” in violation of § 31–51q;  and (3) there is not a sufficient causal nexus alleged between the plaintiff's complaint to the CHRO and EEOC and retaliation against her.

A

Whether Complaint Sufficiently Alleges Plaintiff Engaged in Speech Protected under § 31–51q

The defendants first argue that the court must strike count four because the plaintiff has not alleged she engaged in speech protected by § 31–51q.   Specifically, the defendants contend that the plaintiff has merely alleged that she reported a personal grievance, not a matter of public concern.   The plaintiff contends her discrimination complaints addressed matters of public concern.

“Section 31–51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern.”  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999).  “Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters.”  Id., 778.  “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 ․” (Internal quotation marks omitted.)  DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003).

“[W]hether the subject matter addressed by a particular statement is of public concern involves a question of law for the court ․ [W]hether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made.”  Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777.  “[W]here the content, form or context of a particular statement is in dispute, the determination of whether that statement constitutes protected speech involves a mixed question of law and fact ․” Id., 775.   “[S]tatements regarding internal employment policies may raise at once issues that are of both personal and public concern.”  Id., 786.  “[T]he employee's motivation is decisive as to whether the expression is a matter of public concern ․ Because a plaintiff's motivation necessarily involves a question of fact to be resolved by a jury ․ it should not be concluded as a matter of law that the motivation was purely personal.”  (Citations omitted.)  Cotto v. United Technologies Corp., 251 Conn. 1, 47, 738 A.2d 623 (1999).

In the present case, the plaintiff alleges her termination resulted directly from her July 2010 complaint to the ombudsman.   Specifically, the plaintiff pleads she reported that the WPD instituted the “family policy,” which prohibiting the plaintiff, as the only woman officer in the WPD, from working in the same shift as her husband.   Moreover, the plaintiff claims that, as the only female officer in the WPD, she and her husband were targeted by the family policy, which became known in the department at the “Spiotti policy.”   According to the plaintiff, she complained to the ombudsman that the chief stated “we can't have people having sexual intercourse on duty, can we,” in defense of the “family policy.”

The court concludes that, for the purpose of surviving a motion to strike, the plaintiff has sufficiently alleged she was discharged for reporting a matter of public concern.   The defendants contend that the plaintiff did not allege that she was “contesting any alleged pattern of discrimination, harassment or retaliation ․ at the WPD.” The court concludes, however, that the plaintiff, by claiming that the defendants targeted her as the WPD's only female police officer through a department-wide policy, has alleged a large-scale pattern of discrimination.   Moreover, the plaintiff's alleged exercise of free speech concerned not only the discrimination against her, the only female police officer in the WPD, but also the treatment of all spouses or family members potentially employed by the department.   Certainly, a policy of gender discrimination in a town's police department has the potential to relate to the political, social or other concerns of the community.   See Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987) (firefighter reporting gender discrimination and Freedom of Information Act violations in department addressed matters of public concern under 42 U.S.C. § 1983).8

The defendants additionally claim that the plaintiff was not “attempting to engage the public in a debate about only discriminatory practices.”   The defendants essentially argue that the plaintiff was motivated by her personal interest in reporting alleged discrimination, and was not interested in bringing the matter to the attention of the public.   To decide the sufficiency of the pleadings, however, the court is in no position to analyze the plaintiff's motivations and must “construe ․ the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “Because a plaintiff's motivation necessarily involves a question of fact to be resolved by a jury ․ it should not be concluded as a matter of law that the motivation was purely personal.”  (Citations omitted.)   Cotto v. United Technologies Corp., supra, 251 Conn. 47.   For the purpose of surviving a motion to strike, plaintiff sufficiently alleges she expressed a public concern when she reported gender discrimination to the ombudsman.

B

Whether Complaint Sufficiently Alleges Plaintiff Was Subjected to “Discipline or Discharge” in Violation of § 31–51q

The defendants argue that the court must strike count five because the defendants' alleged refusal to rehire the plaintiff is not “discipline or discharge” in violation of § 31–51q.   The plaintiff contends that the complaint's allegation that the defendants refused to rehire her constituted discipline or discharge in violation of § 31–51q because it was a continuation of the plaintiff's termination.

Section 31–51q provides in relevant part:  “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 ․ shall be liable to such employee for damages caused by such discipline or discharge.”  (Emphasis added.)  “[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Internal quotation marks omitted.)   MacLean v. Perry, Superior Court, judicial district of New London, Docket No. CV 11 6009597 (February 16, 2012, Martin, J.) (53 Conn. L. Rptr. 497, 498).

In the present complaint, paragraph thirty-six of count five alleges that the defendants retaliated against the plaintiff, in violation of § 31–51q, by “terminating the plaintiff and in failing and refusing to reinstate her to her full employment.”   The complaint, therefore, alleges that the plaintiff's termination, in addition to the defendants' refusal to rehire her, constituted retaliation in violation of § 31–51q.

The defendants invite the court to strike the words within the paragraph thirty-six of count five that allege the defendants retaliated against the plaintiff “in failing and refusing to reinstate her to full employment.”   This court declines that invitation.

The parties do not dispute that the plaintiff's alleged termination constitutes “discipline or discharge” under § 31–51q.   The defendants also do not claim that the portion of paragraph thirty-six they seek to strike attempts to state a separate cause of action.

This court follows the position taken by the majority of Superior Court decisions and will not strike a paragraph within a count that does not attempt to set forth a cause of action.   The complaint alleges that the defendants violated § 31–51q by terminating the plaintiff in retaliation for exercising protected speech.   The court concludes that the plaintiff has sufficiently pleaded in count five that she was the subject of “discipline or discharge” on account of exercising her free speech rights, in violation of § 31–51q.9

3

Whether Complaint Alleges Sufficient Causal Nexus between Plaintiff's Protected Conduct and Defendants' Disciplinary Action

Finally, the defendants argue that the court must strike the complaint's fifth count because the plaintiff has failed to allege a sufficient causal nexus between her complaints to the CHRO and EEOC and retaliation against the plaintiff.   The plaintiff contends she has sufficiently alleged a causal nexus between her complaints to the ombudsman and the retaliation against her.

“Beyond proving that the employee's expression is a matter of public concern that should be protected pursuant to § 31–51q, the employee must demonstrate that the employer disciplined or discharged him because of the relevant expression.   Causation is an issue of fact for the jury, provided it is pleaded in the complaint.”  Cotto v. United Technologies Corp., supra, 251 Conn. 48.

As set forth in part IIIA3 of this decision, the plaintiff has sufficiently alleged a causal connection between her complaints to the ombudsman and her termination in count four.   The same allegations establishing the plaintiff's § 31–51m claim in count four are incorporated into her § 31–51q claim in count five.   Thus, in count five, the plaintiff sufficiently alleges a causal connection between her complaints to the ombudsman and her termination.

Therefore, construed in the plaintiff's favor, the complaint sufficiently alleges that the defendants disciplined and discharged the plaintiff because she engaged in constitutionally protected free speech in violation of § 31–51q.   The defendants' motion to strike count five is denied.

IV

CONCLUSION

The defendants' motion to dismiss the claims against the WPD is granted by agreement.   The defendants' motion to strike count one of the complaint is granted by agreement to the extent it sets forth a claim for marital status discrimination.   The defendants' motion to strike counts four and five of the complaint is denied and the objection thereto is sustained.

Zemetis, J.

FOOTNOTES

FN1. The plaintiff's 2003 suit alleged violations of General Statutes § 46a–60(a) and Title VII of the Civil Rights Act of 1964.   The action was filed under docket number 3:04–cv–01442 (CFD)..  FN1. The plaintiff's 2003 suit alleged violations of General Statutes § 46a–60(a) and Title VII of the Civil Rights Act of 1964.   The action was filed under docket number 3:04–cv–01442 (CFD).

FN2. General Statutes § 31–51m provides in relevant part:  “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.”.  FN2. General Statutes § 31–51m provides in relevant part:  “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.”

FN3. General Statutes § 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. General Statutes § 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. The legislature amended § 31–51m(b) during the 2013 legislative session to include reporting suspected child abuse as a form of whistleblowing protected under the statute.   See Public Acts 2013, No. 13–53, § 2. The amendment to § 31–51m has no effect on the motion that is before this court, however..  FN4. The legislature amended § 31–51m(b) during the 2013 legislative session to include reporting suspected child abuse as a form of whistleblowing protected under the statute.   See Public Acts 2013, No. 13–53, § 2. The amendment to § 31–51m has no effect on the motion that is before this court, however.

FN5. Although it is well established that “[§ ]31–51m ․ provides the exclusive remedy for [whistleblowing] and precludes any common-law actions in either tort or contract” (emphasis added);  Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002);  there is no Connecticut authority that holds a statute without explicit exclusionary language precludes the pleading of alternative statutory remedies.   Likewise, while some Superior Court judges have held that the CFEPA precludes common-law causes of action, there is no decision precluding alternative statutory remedies.   See, e.g., Powell v. Greenwald Industries, Inc., Superior Court, judicial district of New London, Docket No. 09 5013578 (April 29, 2010, Cosgrove, J.) [49 Conn. L. Rptr. 762];  Geysen v. Securitas Security Services, USA, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 09 5007429 (November 18, 2009, Bear, J.);   Fecteau v. East Coast Lighting Equipment, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002853 (May 19, 2008, Pickard, J.)..  FN5. Although it is well established that “[§ ]31–51m ․ provides the exclusive remedy for [whistleblowing] and precludes any common-law actions in either tort or contract” (emphasis added);  Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002);  there is no Connecticut authority that holds a statute without explicit exclusionary language precludes the pleading of alternative statutory remedies.   Likewise, while some Superior Court judges have held that the CFEPA precludes common-law causes of action, there is no decision precluding alternative statutory remedies.   See, e.g., Powell v. Greenwald Industries, Inc., Superior Court, judicial district of New London, Docket No. 09 5013578 (April 29, 2010, Cosgrove, J.) [49 Conn. L. Rptr. 762];  Geysen v. Securitas Security Services, USA, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 09 5007429 (November 18, 2009, Bear, J.);   Fecteau v. East Coast Lighting Equipment, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002853 (May 19, 2008, Pickard, J.).

FN6. The court need not address whether the plaintiff has sufficiently alleged a causal connection between her complaints to the CHRO and EEOC and her termination because the plaintiff has sufficiently alleged a causal connection between her complaint to the ombudsman and her discharge..  FN6. The court need not address whether the plaintiff has sufficiently alleged a causal connection between her complaints to the CHRO and EEOC and her termination because the plaintiff has sufficiently alleged a causal connection between her complaint to the ombudsman and her discharge.

FN7. The plaintiff makes no claim that article first, § 4, of the Connecticut constitution is any broader than the first amendment to the United States constitution.   Accordingly, our inquiry is limited to that speech which is protected under the federal constitution.  “Because [the defendant] has undertaken no independent analysis of his state constitutional claim ․ we address only his claim under the federal constitution.”  Ham v. Commissioner of Correction, 301 Conn. 697, 702 n.6, 23 A.3d 682 (2011)..  FN7. The plaintiff makes no claim that article first, § 4, of the Connecticut constitution is any broader than the first amendment to the United States constitution.   Accordingly, our inquiry is limited to that speech which is protected under the federal constitution.  “Because [the defendant] has undertaken no independent analysis of his state constitutional claim ․ we address only his claim under the federal constitution.”  Ham v. Commissioner of Correction, 301 Conn. 697, 702 n.6, 23 A.3d 682 (2011).

FN8. “Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.”  (Internal quotation marks omitted.)  State v. Smith, 275 Conn. 205, 235 n.15, 881 A.2d 160 (2005)..  FN8. “Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.”  (Internal quotation marks omitted.)  State v. Smith, 275 Conn. 205, 235 n.15, 881 A.2d 160 (2005).

FN9. Because the plaintiff has sufficiently alleged that she was discharged in retaliation for the exercise of protected speech, the court need not address whether an alleged refusal to reinstate an employee constitutes “discipline or discharge” in violation of § 31–51q..  FN9. Because the plaintiff has sufficiently alleged that she was discharged in retaliation for the exercise of protected speech, the court need not address whether an alleged refusal to reinstate an employee constitutes “discipline or discharge” in violation of § 31–51q.

Zemetis, Terence A., J.