Opinion
FBTCV166060589
07-19-2017
Angel Algarin v. LB& O, LLC dba Mr. Handyman et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101 & 103
Michael P. Kamp, J.
The issue before the court is the defendants' motions to strike the plaintiff's two-count complaint, alleging wrongful termination. For the reasons set forth below, the motions are denied.
FACTS
The plaintiff, Angel Algarin, filed the two-count complaint in this action on November 15, 2016. He alleges the following facts. The plaintiff worked as an insulation installer for the defendants, LB& O, LLC, and Home Comfort Practice, Inc. On August 12, 2015, the plaintiff refused to work with an intoxicated employee because the plaintiff felt that to do so would be unsafe. The plaintiff and his supervisor argued over the plaintiff's refusal to work, and the plaintiff was sent home. Later that same day, the plaintiff learned he was to be discharged for insubordination. The plaintiff was discharged because of his refusal to work with the intoxicated employee.
The plaintiff alleges that LB& O, LLC, divided into two entities in 2016: LB& O, LLC, and Home Comfort Practice, Inc.
In the first count of the complaint, the plaintiff alleges that his speech was constitutionally protected, and that his termination was in violation of General Statutes § 31-51q. The second count raises a common-law claim for wrongful termination in violation of public policy. Specifically, the plaintiff alleges that employers have a duty to provide employees with fit and competent colaborers pursuant to General Statutes § 31-49, and to keep the workplace free from recognized hazards pursuant to the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 654(a)(1).
General Statutes § 31-51q provides in relevant part: " Any employer . . . 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 . . ."
The plaintiff's complaint refers to General Statutes § 31-48, which appears to be a typographical error. General Statutes § 31-49 provides in relevant part: " 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 . . ."
29 U.S.C. § 654(a)(1) provides: " 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."
On December 28, 2016, Home Comfort Practice, Inc., filed a motion to strike both counts of the plaintiff's complaint. The motion is accompanied by a memorandum of law. On December 29, 2016, LB& O, LLC, also filed a motion to strike the plaintiff's complaint, adopting the reasoning set forth in Home Comfort Practice, Inc.'s memorandum of law. On January 20, 2017, the plaintiff filed a memorandum of law in opposition to the motions to strike. On February 3, 2017, Home Comfort Practice, Inc., filed a supplemental memorandum of law in support of its motion to strike. The parties were heard at short calendar on April 17, 2017.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
The defendants argue that both counts of the plaintiff's complaint are legally insufficient. For count one, the defendants contend that the plaintiff's failure to allege that his speech did not substantially or materially interfere with his job performance or working relationship with his employer is fatal to his claim. Furthermore, the defendants assert that the allegations concerning the plaintiff's argument with his supervisor and the plaintiff's subsequent discipline affirmatively establish that the plaintiff's speech did, in fact, interfere with his employment. The defendants also argue that count two of the plaintiff's complaint is insufficient because the plaintiff failed to exhaust statutory remedies available under state and federal law.
In response, the plaintiff argues that he has sufficiently alleged his claims of wrongful termination. First, the plaintiff argues that he is not required to allege a lack of interference, and in the alternative, that the facts alleged raise an inference that his speech did not interfere with his employment. With regard to count two, the plaintiff rejects the argument that either state or federal law provides a statutory remedy for him and asserts that his common-law wrongful discharge claim is therefore not precluded. Further, the plaintiff contends that, even if available, these statutory remedies are inadequate and therefore do not bar his claim.
The plaintiff also argues that there may be times that an employee's speech may be protected even if it causes a disruption in the workplace, such as when the employee's right to speak outweighs the employer's right to maintain his workplace. This contention need not be addressed at this time. " There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). The motion before this court is a motion to strike challenging the sufficiency of the complaint. Accordingly, whether the speech in the present case falls within the exception identified by the plaintiff may be addressed at a subsequent proceeding.
I. Count One: Wrongful Termination in Violation of General Statutes 31-51q
" There is a split in the Superior Court on whether an employee must plead facts in support of an allegation that the protected [speech] did not materially interfere with . . . [the employee's] job performance or [the employee's] working relationship with the [employer]." (Internal quotation marks omitted.) Schulz v. Auto World, Inc., Superior Court, judicial district of Hartford, Docket No. CV-15-6060382 (October 25, 2016, Elgo, J.) [63 Conn.L.Rptr. 169, ] (citing Buscetto v. Saint Bernard School of Montville, Inc., Superior Court, judicial district of New London, Docket No. CV-11-6011089-S [February 22, 2013, Devine, J.] [55 Conn.L.Rptr. 583, ]). In the majority of cases, the Superior Court has determined that a plaintiff must plead that no interference occurred. See Buscetto v. Saint Bernard School of Montville, Inc., supra, Superior Court, Docket No. CV-11-6011089 (collecting cases). In Buscetto, the court acknowledged the plausibility of the argument that interference should be raised by defendants, but determined, that " [t]his court follows the majority approach since it is most consistent with the plain language of the statute." Id.
Shortly after Buscetto, the court, Peck, J., engaged in a thorough discussion of the matter and reached a different determination. Matthews v. Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV-11-6019959-S (May 31, 2013, Peck J.). " [T]his court finds that 'provided' creates a proviso that limits the application of § 31-51q, and that the defendant bears the burden of raising the facts triggering the proviso as a special defense . . . As the plaintiff correctly notes, if he were required to prove a lack of a substantial and material interference, he would be forced to prove a negative, which is a difficult if not impossible task . . . This would place the court in the peculiar position of requiring the plaintiff to plead either an extensive and exhaustive recitation of all events that may have involved interference or a boilerplate that would not give significant factual detail and would likely involve a legal conclusion." (Citation omitted.) Id. The court also noted that " [i]f a § 31-51q defendant were able to claim that the retaliatory discipline or discharge was itself the substantial or material disruption . . . then a plaintiff would never be able to maintain an action under this statute." Id.
In another decision, the court, Elgo, J., also declined to follow the majority of Superior Court decisions: " Under these facts, this court follows the minority of Superior Court decisions that such pleading is not essential to state a claim under § 31-51q. See [ Holub v. Babcock, Superior Court, judicial district of Fairfield, Docket No. CV-95-0319683-S (June 27, 1996, Grogins, J.)]. This court is persuaded that the employee's failure to plead that his speech did not 'materially interfere with [his] job performance or [his] working relationship with the [employer]' is not fatal to stating a claim upon which relief may be granted under § 31-51q given that he alleges that he was terminated immediately after the speech was made." Schulz v. Auto World, Inc., supra, Superior Court, Docket No. CV-15-6060382 (employee terminated within two days of speech).
In the present case, the plaintiff does not explicitly allege that his speech did not substantially or materially interfere with his employment. Viewing the complaint in the manner most favorable to sustaining its sufficiency, however, and in keeping with the need to construe the pleadings broadly and realistically; Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398; this court follows the minority view that a plaintiff need not expressly make such an allegation. Rather, pursuant to the persuasive reasoning in either Matthews or Schulz, count one of the plaintiff's complaint is legally sufficient. Under Matthews, the burden is on the defendant to prove that the plaintiff's speech did interfere with his employment, and thus count one is sufficient. Under Schulz, which is factually analogous to the present case, the plaintiff's allegations necessarily imply that his speech did not interfere with his employment because he was notified that he was to be discharged the same day as his speech. Contrary to the defendants' argument, the plaintiff's allegations concerning his discipline and discharge do not demonstrate that his speech did, in fact, interfere with his employment because, as noted in Matthews, this line of reasoning would foreclose every action brought pursuant to § 31-51q. Accordingly, this court determines that notwithstanding the plaintiff's failure to expressly allege that his speech did not materially or substantially interfere with his employment, count one is legally sufficient.
II. Count Two: Wrongful Termination in Violation of Public Policy
In Parsons v. United Technologies Corp., 243 Conn. 66, 76-77, 700 A.2d 655 (1997), the court explained, " [i]n Sheets [ v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980)], we sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy . . . In Morris v. Hartford Courant Co., [200 Conn. 676, 680, 513 A.2d 66 (1986)], we recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [ w ] e look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; emphasis added; internal quotation marks omitted.)
Nevertheless, " [a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis in original; internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000) (wrongful termination precluded due to plaintiff's failure to exhaust statutory remedies).
In the present case, it is undisputed that the plaintiff did not attempt to exhaust any statutory remedies prior to filing his complaint with the Superior Court. The defendants argue that to sufficiently state a common-law claim for wrongful termination, the plaintiff was required to exhaust statutory remedies provided by state and federal law. Specifically, the defendants identify the statutes authorizing the enforcement of § 31-49 and 29 U.S.C. 654(a)(1), as well as the statute providing enforcement for General Statutes § 31-370, a state statute that parallels 29 U.S.C. 654(a)(1). Although the plaintiff does refer to § 31-49 and 29 U.S.C. 654(a)(1) in his complaint, mention of these statutes does not necessarily mean that there is a statutory remedy for the plaintiff. Rather, their inclusion merely indicates that those specific statutory provisions express the public policies that provide the basis for the plaintiff's claim. Accordingly, the resolution of the exhaustion question turns on whether there is actually a statutory remedy for the plaintiff's claim.
General Statutes § 31-370(a) provides: " 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."
A. 29 U.S.C. § 654(a)(1) and General Statutes § 31-370
" [29 U.S.C. § 654(a)(1)] is intended as a catchall provision to cover dangerous conditions of employment not specifically covered by existing health and safety standards promulgated by the Secretary of Labor under [OSHA]." Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 98 (2d Cir. 1981). This section, which is sometimes referred to as the " general duty clause"; id.; provides that employers " 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." 29 U.S.C. § 654(a)(1); see also General Statutes § 31-370(a) identical language).
" [T]he general duty clause does not apply to a policy as contrasted with a physical condition of the workplace." Oil, Chemical & Atomic Workers International Union v. Am. Cyanamid Co., 741 F.2d 444, 448, 239 U.S. App.D.C. 222 (D.C. Cir. 1984); cf. Ramsey Winch, Inc. v. Henry, 555 F.3d 1199, 1205 (10th Cir. 2009) (" In recent years . . . OSHA has recognized workplace violence as a serious safety and health issue . . . OSHA has not, however, promulgated any mandatory standards regarding workplace violence" [citation omitted]). Moreover, " recognized hazard" should not be so broadly construed as to include " any condition which presents a possibility of seriously injuring an employee . . ." Pratt & Whitney Aircraft v. Secretary of Labor, supra, 649 F.2d 100.
The United States District Court for the Southern District of New York recently determined that that the general duty clause of a New York law " intended to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under [OSHA]" did not protect a plaintiff complaining of, inter alia, alcohol consumption at his workplace. (Internal quotation marks omitted.) Walsh v. New York, United States District Court, Docket No. 04 Civ. 9539, (S.D.N.Y. March 31, 2008) (" the consumption of alcohol in the [workplace], while a hazard to the public and perhaps to those consuming the alcohol, is not a physical or environmental hazard of the sort addressed by the statute"). " Like OSHA, [the state law] is meant to protect employees from tangible hazards which are physical condition[s] of the workplace . . ." (Internal quotation marks omitted.) Id. Accordingly, because " [t]he statute is not intended . . . to protect employees from dangers intentionally caused by fellow employees, " the plaintiff's claims concerning the hazards posed by intoxicated coworkers failed. Id.
In the present case, the plaintiff's allegations indicate that his workplace was unsafe due to another employee's intoxication. Although an intoxicated worker may indeed pose safety concerns, it would seem that this is not the sort of recognized hazard that OSHA protects against. The defendants argue in a conclusory manner that the broad language of the general duty clause encompasses the facts alleged in the present case, but provide no case law to support that assertion. Nor do the defendants provide legal authority to support such an interpretation of the identical language in § 31-370. In the absence of persuasive reasoning, this court will not adopt such an expansive construction. Indeed, to do so would be out of step with the considerably narrower interpretations put forward by other courts. Accordingly, the plaintiff was not obligated to exhaust his claim pursuant to OSHA or its Connecticut equivalent because neither 29 U.S.C. § 654(a)(1) nor § 31-370 encompasses the plaintiff's claim.
Moreover, the present case is distinguishable from Burnham . In Burnham, the plaintiff alleged that she had been retaliated against after filing a complaint alleging that her employer was in violation of OSHA. Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 155. The court determined that the plaintiff's claim was barred because " [t]itle 29 of the United States Code, § 660(c)(2), provides a statutory administrative remedy for employees, such as the plaintiff, who allege that they were discharged in retaliation for reporting violations of the act." Id., 162. The court also noted that " the plaintiff also was precluded from bringing a common-law cause of action for wrongful discharge because General Statutes § 31-379 provided the plaintiff with a statutory administrative remedy under state law nearly identical to that of 29 U.S.C. § 660(c)." Id., 163 n.6. In the present case, because the plaintiff has not alleged that he was retaliated against for filing an OSHA complaint--and because it does not appear that OSHA covers the concerns the plaintiff raised with his supervisor--he was not obligated to exhaust the remedies provided by 29 U.S.C. § 660(c) and § 31-379.
B. General Statutes § 31-49
Section 31-49 requires that employers provide employees with a safe work environment and competent colaborers; pursuant to § 31-50, the Connecticut Labor Commissioner is authorized to enforce § 31-49. General Statutes § 31-50 provides in relevant part: " The commissioner shall enforce . . . 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."
The public policy embodied by § 31-49 " gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties." (Emphasis added.) Parsons v. United Technologies Corp., supra, 243 Conn. 80.
Looking to Parsons, Superior Court decisions have distinguished between instances where a plaintiff alleges that his discharge arose from his employer's failure to maintain a safe workplace from instances where a plaintiff alleges that he was discharged for refusing to work in an unsafe environment. Compare Perez v. Bridgeport Hospital, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-12-6009423-S (August 3, 2012, Matasavage, J.) [54 Conn.L.Rptr. 417, ], with Anderson v. United Way, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6017085 (December 27, 2011, Gold, J.) [53 Conn.L.Rptr. 334, ]. In Perez, the court rejected a wrongful termination claim where " [the plaintiff] 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." Perez v. Bridgeport Hospital, supra, Superior Court, Docket No. CV-12-6009423-S. In Anderson, though, the court denied the defendant's motion to strike the plaintiff's common-law wrongful discharge claim, noting that " [i]n essence, the plaintiff alleges here that there was reason to believe that one of her fellow employees, past or present, was neither fit nor competent, and, far worse, posed a risk to the physical safety and well-being of the plaintiff and others. She asserts further that she was fired because she refused to tolerate such a risk . . . These allegations raise questions clearly related to this state's 'clear and defined public policy'; Parsons v. United Technologies Corp., supra, 243 Conn. 79; requiring employers to provide a safe workplace for its employees." (Emphasis added.) Anderson v. United Way, Inc., supra, Superior Court, Docket No. CV-11-6017085.
In the present case, the plaintiff alleges that his refusal to work with an intoxicated employee prompted his discharge from employment. This allegation aligns the present case with Parsons and Anderson, but distinguishes it from Perez . The plaintiff's allegations focus on the propriety of his discharge in light of his refusal to work with an intoxicated employee who the plaintiff felt created an unsafe work environment; the allegations do not directly challenge the employer's obligation to adhere to § 31-49 and provide the plaintiff with competent colaborers. Consequently, because the plaintiff does not raise a claim alleging a direct violation of § 31-49, the plaintiff was not required to exhaust the statutory remedy provided by § 31-50.
As neither state nor federal law provides a statutory remedy for the plaintiff's wrongful termination claim, the plaintiff was not required to exhaust statutory remedies and this court need not consider the plaintiff's arguments concerning the adequacy of those remedies.
CONCLUSION
For the foregoing reasons, the defendants' motions to strike are denied.