Opinion
No. CV 02-0817767S
November 18, 2004
MEMORANDUM OF DECISION
I
On June 28, 2002, the plaintiff John P. Curry, filed a six-count complaint in the Superior Court against the defendant, Allan S. Goodman, Inc. The first three counts were brought under the Connecticut Fair Employment Practices Act (CFEPA) and the last three were brought under the Americans with Disabilities Act (ADA). Counts one and four claimed disparate treatment on account of physical disability under General Statutes § 46a-60(a)(1) and 42 U.S.C. § 12111, et seq., respectively. Counts two and five claimed failure to accommodate disabilities under General Statutes § 46a-60 and 42 U.S.C. § 12111, et seq., respectively. Finally, counts three and six claimed retaliatory discrimination for opposition to discriminatory treatment under General Statutes § 46a-60(a)(4) and 42 U.S.C. § 12111, et seq., respectively.
On July 3, 2002, the case was removed to federal district court on the basis of that court's federal question jurisdiction. Subsequently, on August 18, 2003, the defendant moved for summary judgment and filed a memorandum of law in support of its motion. The federal District Court granted the motion as to all counts. On March 5, 2004, the plaintiff moved for reconsideration. The federal district court affirmed its granting of the motion for summary judgment as to counts four though six, and vacated as to counts one through three. The case was remanded to state court with the three surviving state law claims, which are at issue now. On July 9, 2004, the defendant moved for summary judgment on counts one, two and three. The defendant has filed two memoranda of law and various documentary evidence in support of its motion. The plaintiff has filed two memoranda in opposition, but has not submitted any evidence.
II CT Page 17543
The evidence submitted by the defendant reveals the following undisputed facts. The defendant is a distributor of wines and liquors and was the plaintiff's employer since September 1986. The plaintiff was a truck driver. This position required the plaintiff to lift heavy cases on and off delivery trucks. These cases weighed between forty and seventy pounds. On August 26, 1998, the plaintiff injured his lower back while lifting a case. A September 1998 MRI showed a central disk herniation and disk bulge, which kept the plaintiff out of work for almost two years. The plaintiff had two surgeries, after which his doctor cleared him for "light duty work status which would be very sedentary requiring no repetitive lifting, no lifting greater than 15 pounds, no prolonged sitting, standing, or walking and frequent position changes." Defendant's Exhibit F, John Curry's Medical Records. The doctor restricted the plaintiff's work to "4 hours per day [with the] hope to transition him up to 8 hours per day in similar type activities." Id. In September 2000, the doctor increased the plaintiff's weight restriction from 15 pounds to 25 pounds. The plaintiff was assigned to work on an area called the "split line" because of his restriction. In October 2000, the plaintiff asked to be permanently assigned to the split line.
On October 12, 2000, while the plaintiff was working on the split line, an incident occurred leading the plaintiff to file a union grievance. While the specific details are in dispute, the following facts are undisputed: The plaintiff ran out of a brand of liquor and marked an order form as "out of stock"; the plaintiff asked a co-worker to retrieve a case from the warehouse; the supervisor noticed the "out of stock" label and questioned the plaintiff about it. The plaintiff claims that the supervisor verbally harassed him and humiliated him in front of other co-workers by shutting down the entire conveyor system and pointing out his handicap. The defendant denies this, claiming that the supervisor merely inquired about the "out of stock" label and stated that because many workers on the split line were handicapped, another fully able worker would retrieve the case and that he did not want the plaintiff injuring himself. On January 22, 2001, David Heller, the vice president of the defendant, indicated that he wanted the plaintiff to be able to carry full cases of liquor from the warehouse to the split line and be able to put them on shelves when necessary. The position requires all "split line" workers to be able to lift heavy cases. Affidavit of David Heller, August 12, 2003.
On March 7, 2001, the plaintiff's doctor reported that the plaintiff had reached his maximum medical improvement. The report stated that the plaintiff had a thirty percent permanent partial impairment to his lumbar spine and therefore, the plaintiff was restricted from repetitive bending and lifting, and could not lift more than 25 pounds. Defendant's Exhibit F, John Curry's Medical Records. As a result, the plaintiff requested as an accommodation that he be permitted on a permanent basis to have other employees retrieve full cases for him. On April 17, 2001, the defendant told the plaintiff not to come back to work. Richard Conroy, a warehouse manager, sent a letter to the plaintiff indicating that he should "explore alternative employment options." Defendant's Exhibit T, Richard Conroy's Letter, April 17, 2001. Conroy further stated that the company does not have permanent light duty positions. Id.
III A. Legal Standard for Motion for Summary Judgment
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987). "In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial . . ." Practice Book § 17-44. "[T]he Second Circuit has declared that a trial court must be especially cautious in deciding whether to grant [summary judgment] in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." (Internal quotation marks omitted.) Rogers v. First Union National Bank, 259 F.Sup.2d 200, 203-04 (D.Conn. 2003). "Nevertheless . . . a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id., 204.
B. Defendant May File Motion for Summary Judgment
The plaintiff's sole argument in opposition to the defendant's motion for summary judgment is that this court should deny the defendant's motion for summary judgment because it was already denied in federal district court and therefore, the defendant should not have been allowed to refile the motion in this court. Plaintiff's Preliminary Opposition to Motion for Summary Judgment, August 2, 2004. This claim is unsupported. In fact, "Practice Book § 17-44 states that a motion for summary judgment may be filed `at any time' prior to assignment for trial." Emerson v. Super 8 Motel-Stamford, 59 Conn.App. 462, 469, 757 A.2d 651 (2000). The defendant was entitled to bring its motion for summary judgment and properly did so, and the court will consider the motion on its merits.
C. Whether or not the Plaintiff is "Disabled" Under CFEPA
The defendant argues that it is entitled to summary judgment because the plaintiff is not "disabled" as that term is defined in CFEPA. The plaintiff must be disabled within CFEPA's definition of the word, to claim its protection. The ADA and CFEPA define "disability" differently. The ADA's definition is more restrictive than CFEPA's. The United States District Court has held that "the disability discrimination provisions of CFEPA do not mirror the federal ADA." Hill v. Pfizer Inc., 266 F.Sup.2d 352, 364 (D.Conn. 2003). Specifically, the court stated that "[t]o be disabled under Connecticut law is different than being disabled under the ADA." (Internal quotation marks omitted.) Id. "Physically disabled is defined under the CFEPA . . . as any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." (Citation omitted; internal quotation marks omitted.) Id.
The Second Circuit has held that the ADA has an additional requirement that is absent from the CFEPA definition. Beason v. United Technologies Corp., 337 F.3d 271, 275 (2d Cir. 2003). "The CFEPA defines the term [p]hysically disabled as refer[ring] to any individual who has any chronic physical handicap, infirmity, or impairment . . . The ADA also prohibits disability-based discrimination and similarly defines disability as a physical or mental impairment. But, significantly, it adds a requirement that the impairment substantially limit[s] one or more of the major life activities of [the] individual." (Citation omitted; internal quotation marks omitted.) Id., 277. "Absent similar language in the CFEPA, [the Second Circuit] believe[s] the Connecticut Supreme Court would decline to find the CFEPA possesses the same restrictive threshold." Id. Furthermore, "[g]iven that the definition of disability used by the ADA essentially pre-dates the definition of physical disability promulgated by the Connecticut General Assembly, had it wished to do so, could have adopted the ADA definition. The fact that the General Assembly chose not to adopt that language readily supports an inference that the Connecticut legislature appreciated the scope of the ADA definition and intended the CFEPA definition to be different." Id., 277-78.
CFEPA's definition of disability is "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 277. "Chronic" means "marked by long duration or frequent recurrence" and "always present or encountered." Webster's Tenth Collegiate Dictionary. The plaintiff clearly comes within this definition. The March 7, 2001 doctor's report states that the plaintiff had reached his maximum medical improvement. Defendant's Exhibit F, John Curry's Medical Records. The report diagnosed the plaintiff with thirty percent permanent impairment to his lumbar spine, permanently restricted the plaintiff from repetitive bending or lifting and strictly forbade the plaintiff from lifting more than twenty-five pounds. Id. Given the doctor's diagnosis, the plaintiff clearly has a chronic impairment which resulted from bodily injury.
Although the defendant relies on Tello v. Bell, Superior Court, judicial district of Hartford-New Britain at New Britain, Housing Session, Docket No. SPN 27461 (December 18, 1997, Beach, J.), to argue that the plaintiff is not disabled, that case must be distinguished from the present case. In Tello the defendant had lower back pain and there were indeed medical records stating that fact; however, the court held the defendant was not disabled within the meaning of General Statutes § 1-1f, which contains a definition substantially identical to the CFEPA definition, because the records failed to mention anything "regarding the ability to work." Id. In addition, the court specifically stated that it "place[d] relatively little reliance on the report" of a doctor who found that the defendant had a twelve percent impairment, and found credible the report of a physician who determined that the defendant experienced some back pain but did not have any significant neurological impairment. Id. In the present case, by contrast, the medical records submitted by the defendant clearly state that the plaintiff had a thirty percent permanent partial impairment to his lumbar spine that the plaintiff was restricted from repetitive bending and lifting and could not lift more than twenty-five pounds. Because the defendant's own evidence would support a conclusion that the plaintiff is disabled, there is at the very least a genuine issue of material fact regarding whether the plaintiff is physically disabled, and the motion for summary judgment cannot be granted on that basis.
D. Count 1: Claim of Disparate Treatment on Account of Physical Disability
The defendant argues that it is entitled to summary judgment on count one because the plaintiff is not qualified for the relevant position. "Unlike other areas of the law, where a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has an initial burden of persuasion, albeit an attenuated one." Cyr v. Mountain Grove Cemetery Assn., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0401575S (August 4, 2004, Thim, J.) ( 37 Conn. L. Rptr. 631). "The burden of proof that must be met to permit an employment discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minim[i]s." Hill v. Pfizer, supra, 266 F.Sup.2d 359. "[A] disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the trust of the employer's proffered reasons." (Internal quotation marks omitted.) Cyr v. Mountain Grove Cemetery Assn., Superior Court, supra, Docket No. CV 03 0401575S, citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The plaintiff alleges in count one that "he was harassed, intimidated, threatened, disciplined, terminated, and otherwise subjected to discrimination in the terms and conditions of his employment on account of his disability." Plaintiff's Complaint, June 28, 2002. The plaintiff also alleges that "[s]aid conduct was intentional, wilful and malicious and/or done with reckless disregard of plaintiff's rights." Id. "[D]isparate treatment simply refers to those cases where certain individuals are treated differently than others." (Internal quotation marks omitted.) Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996). The Connecticut Supreme Court has held that "[w]hen a plaintiff claims disparate treatment under a facially neutral employment policy, [it] . . . employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002).
"Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action . . . From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons." (Citation omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights Opportunities, supra, 236 Conn. 107. " McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases . . . First, the [complainant] must establish a prima case of discrimination . . . [T]o establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination." (Citations omitted; internal quotation marks omitted). Board of Education of Norwalk v. Commission on Human Rights Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003); see also Ruscoe v. The Housing Authority of New Britain, 259 F.Sup.2d 160, 167 (D.Conn 2003). "Once the complainant establishes a prima facie case, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment." Board of Education of Norwalk v. Commission on Human Rights Opportunities, supra, 266 Conn. 506; see also Ruscoe v. The Housing Authority of New Britain, supra, 259 F.Sup.2d 167. "The employer, however, need not persuade the court that it was actually motivated by the proffered reasons." (Internal quotation marks omitted.) Id. The United States Supreme Court has stated that "it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Id. quoting Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him." Board of Education of Norwalk v. Commission on Human Rights Opportunities, supra, 266 Conn. 506.
The evidence submitted by the defendant is sufficient to defeat the plaintiff's prima facie case and the plaintiff has not met his burden of providing evidence to create a genuine issue of material fact to survive summary judgment on count one. The problem lies in the second element of the prima facie case, that is, that the plaintiff is qualified for the position.
The undisputed evidence submitted by the defendant is sufficient to establish that the plaintiff is not qualified for the employment position. The plaintiff would have the court look at the split line position, rather than the truck driving position to determine whether he is qualified. This argument is not persuasive for two reasons: First, the Seventh Circuit has held that qualifications of an injured worker should be measured against his original position, rather than a temporary position assigned as a result of his injury. See Malabarba v. Chicago Tribune Company, 149 F.3d 690, 696 (7th Cir. 1998) (holding that plaintiff's "qualifications must be measured against the duties of a full-time packager at the Tribune, not a material handler."). "To hold otherwise would be to depart from . . . [a] long-standing recognition that the ADA does not require that employers transform temporary work assignments into permanent positions." Id. It is undisputed that the plaintiff is unable to carry out the functions of a truck driver, and therefore is not qualified.
The second reason is that even if the court were to look at the "split line" position, as the plaintiff would have it do, he is not qualified to perform the essential functions of that position either. The defendant provides sufficient evidence showing that the split line position functions require him to lift more weight than he is physically capable. The defendant provides an affidavit of the vice president of the company, David Heller, which states that "[t]he split line position requires significant bending. Approximately 25 percent of all of [the] products on the split line shelves are located below the knee level of an average person, which means that a worker on that line has to bend at least 25 percent of the time during a shift . . . Another 25 percent of the products are located about shoulder height, which necessitates stretching overhead in order to reach the bottles . . . The split line employees' other duties include lifting cases either on the solid line, and loading trucks with cases, cases that exceed Plaintiff's 25-pound lifting restriction." Affidavit of David Heller, August 12, 2003. As previously stated, the plaintiff has not offered any evidence to raise a genuine issue of material fact regarding the required job qualifications.
Due to the fact that the plaintiff cannot perform all of the prescribed duties of either his original position or the "split line" position, the plaintiff is clearly not qualified for either position. Because the plaintiff has not submitted any evidence raising a factual issue as to this second prong, the court finds that the plaintiff has not met his burden to survive summary judgment on this count. Therefore, the motion for summary judgment is granted with respect to count one.
B. Count 2: Claim of Failure to Accommodate Disabilities
"The CFEPA has also been interpreted to require an employer to reasonably accommodate disabled employees." Hill v. Pfizer, supra, 266 F.Sup.2d 364. "The Connecticut Supreme Court has expressly declined an opportunity to decide whether reasonable accommodation is implicitly required by CFEPA." Trimachi v. Connecticut Workers' Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97-0403037S (June 14, 2000, Devlin, J.) ( 27 Conn. L. Rptr. 469), citing Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 320 n. 12, 596 A.2d 426 (1991). The Connecticut Supreme Court has, however, recognized "that in construing the Fair Employment Practices Act [it is] . . . properly guided by the case law surrounding federal fair employment legislation." (Emphasis added) internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 738, 792 A.2d 752 (2002). Therefore, "failure to impose upon state actions so prominent a federal requirement as the duty to reasonably accommodate would vitiate the remedial purposes of the Connecticut antidiscrimination statutes." Id.
In his complaint, the plaintiff alleges that the defendant failed to accommodate his disabilities. Specifically, the plaintiff alleges that the defendant did not enter into a timely interactive process with the plaintiff to accommodate his disabilities and that the defendant did not reassign the plaintiff to a position within his restrictions, which he alleges includes the split line position that he had performed for several months. Plaintiff's Complaint, June 28, 2002. The plaintiff further alleges that the split line position does not require heavy lifting or repetitive bending. Plaintfff's Complaint, June 28, 2002.
The defendant argues that it does not have a position for the plaintiff because its policy is to keep light duty status work temporary. In support of that argument, the defendant has submitted a copy of its warehouse manual which specifically states: "Whenever possible an employee with a work related injury who cannot perform his regular duties due to the injury will be placed on light duty status . . . Light duty status is intended to be a temporary, transitional situation." (Emphasis added.) Defendant's Exhibit I. Heller states in his affidavit that the defendant has never had an employee remain on permanent light duty and not return to full-time, regular duty. Affidavit of David Heller, August 12, 2003. Heller also states in his affidavit that the split line position does requires both heavy lifting and bending, and that the only accommodation requested by the plaintiff was having another employee assist him on a permanent basis with retrieving full cases, which would have aided the plaintiff performing only one of the several essential job functions that he was unable to perform because of his injury. Id. The defendant therefore argues that the plaintiff could not perform the essential functions of the position with or without the requested accommodation. Defendant's Memorandum of Law in Support of Motion for Summary Judgment, July 9, 2004.
In opposing the motion for summary judgment, the plaintiff has filed memoranda of law, however, plaintiff's opposition is devoid of any documentation that contradicts the factual assertions made by the defendant. Because the plaintiff has not submitted any evidence to rebut the defendant's evidence indicating that the plaintiff could not perform his essential job functions even with the requested accommodation, there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is granted as to the second count.
F. Count 3: Claim as to Retaliatory Discrimination for Opposition to Discriminatory Treatment
The defendant argues that it is entitled to summary judgment on count three of the complaint, alleging retaliation, because the plaintiff's claim is preempted by federal law. The plaintiff alleges in count three that he "was retaliated against, harassed, intimidated, threatened, disciplined, terminated, and otherwise subjected to discrimination in the terms and conditions of his employment on account of his opposing discriminatory treatment. Plaintiff's opposition included, but was not limited to, the October 2000 union grievance." Plaintiff's Complaint, June 28, 2002. The defendant argues specifically that count three is preempted by §§ 7 and 8 of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 157 and 158. Defendant's Memorandum of Law in Support of Motion for Summary Judgment, July 9, 2004.
"The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent . . . [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and the execution of congressional objectives." (Internal quotation marks omitted.). Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001). The United States Supreme Court has "enunciated two tests for jurisdictional preemption. First, [w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute unfair labor practice under § 8 [of that act], due regard for the federal enactment requires that state jurisdiction must yield." (Internal quotation marks omitted.) Id., 733. "Second, the court [has] recognized that [a]t times it [may not be] clear whether the particular activity regulated by the States [is] governed by § 7 or § 8, or [is], perhaps, outside both these sections . . . In those instances, [w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 734.
"Exceptions to the preemption of state jurisdiction under this rationale do exist, and a state is not ousted of the power to adjudicate matters that are of peripheral concern to the federal labor scheme or where the conduct at issue touches interests . . . deeply rooted in local feeling and responsibility." (Internal quotation marks omitted.) Id. "In assessing whether to apply either exception a court must balance the State's interest in controlling or remedying the effects of the conduct . . . against both the interference with the National Labor Relations Board's ability to adjudicate controversies committed to it by the Act . . . and the risk that the State will sanction conduct that the Act protects." (Internal quotation marks omitted.) Id., citing Belknap, Inc. v. Hale, 463 U.S. 491, 498-99, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983). "A party asserting pre-emption must advance an interpretation of the [National Labor Relations] Act that is not plainly contrary to its language and that has not been authoritatively rejected by the court or the [National Labor Relations] Board. The party must then put forth enough evidence to enable the court to find that the [National Labor Relations] Board reasonably could uphold a claim based on such an interpretation." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., supra, 255 Conn. 737, citing International Longshoremen's Assn, AFL-CIO v. Davis, 476 U.S. 380, 395, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986). "The critical inquiry [is] . . . whether the controversy presented to the state court is identical to or different from . . . that which could have been, but was not, presented to the [National] Labor [Relations] Board." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., supra, 255 Conn. 737, quoting Sears, Roebuck Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 197, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978).
The plaintiff alleges in count three that his employment termination was retaliation for filing a union grievance from the October 2000 incident. The plaintiff claims that the supervisor of the night shift verbally abused and humiliated him in front of other co-workers. On the night in question, it is alleged that a specific type of alcohol was out of stock and because of plaintiff's disability, he asked another co-worker to retrieve a case for him from the warehouse. Until the case was retrieved, the plaintiff indicated "out of stock" on the order form. This led to the supervisor's questioning why it was marked as such. There is a dispute regarding the actual event, but the plaintiff bases his claim on this incident.
The District Court, in considering the defendant's claim of preemption reasoned that the plaintiff "does not complain of a violation of his rights . . . But of conduct constituting retaliation for his invoking the grievance procedure, a labor matter." Curry v. Allan S. Goodman, Inc., No. 3:02cv01149, slip op. at 9 (D.Conn. February 25, 2004). "The claim that the state law retaliation claim should be preserved is without merit. There is nothing about the asserted retaliation that is of such general significance in the world of state legal affairs as distinguishes the case from labor matters generally. The claim would be identical whether brought in court or before the NLRB. The focus would be on an asserted interference with negotiated labor contract rights. In either forum the state's citizens' rights are protected. In arguing that local interest in discrimination is significant, Plaintiff fails to note that the retaliation claim is not based on discrimination but on retaliation which would impede labor contract rights. Plaintiff cites no case holding that a retaliation claim based on a grievance filing is not exclusively an NLRB matter." Id. This court agrees with the District Court's analysis. Because the allegations of count three relate to an activity that is at least arguably subject to § 7 or § 8 of the NLRA, this court must defer to the National Labor Relations Board in order to avoid interference with national policy. Therefore, this count is preempted by the NLRA and the motion for summary judgment is granted on count three.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted as to counts one, two and three.
Stengel, J.