Opinion
No. LLI-CV-07 5002853S
June 10, 2008
MEMORANDUM OF DECISION RE MOTION TO REARGUE
Before the court is a motion to reargue filed by the plaintiff, Suzanne Fecteau, seeking to reargue this court's decision granting the motion to strike filed by the defendant, East Coast Lightning Equipment, Inc., on December 7, 2007. The decision, dated May 19, 2008, granted the defendant's motion to strike count five on the ground that the plaintiff's claim for wrongful discharge was precluded by available statutory remedies, namely the Connecticut Fair Employment Practices Act ("CFEPA"), General Statutes §§ 46a-58, et seq. The plaintiff seeks to reargue this decision, claiming that the court erred in its determination that the CFEPA provides an adequate and complete remedy for all of the facts pleaded in the complaint. Specifically, the plaintiff contends that her allegations that the defendant tampered with her personnel and payroll records and created fraudulent documents of employment misconduct were not motivated by discrimination, but took place with the purpose of fraudulently and unlawfully terminating the plaintiff's employment. Therefore, according to the plaintiff, these allegations are not included in the purview of the CFEPA, as the defendant could be found to have violated General Statutes §§ 31-128a, et seq., without violating the employment discrimination statute. For the reasons stated below, the motion to reargue is denied.
General Statutes § 46a-100 provides, in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ."
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or there has been a misapprehension of facts . . . It also may used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
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Discussion
As mentioned above, "[a] motion to reargue . . . is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) Opoku v. Grant, supra, 63 Conn.App. 692-93. The motion to strike was filed on December 7, 2007; the plaintiff filed her motion in opposition was filed on December 28, 2007; a reply memorandum in support of the motion to strike was filed on January 18, 2008; and a further reply in opposition was filed the day of oral argument. The arguments now presented in this motion to reargue were not included in any of these submissions. While the court is of the opinion that the arguments raised in the plaintiff's motion to reargue could have been presented at the time of the original argument, the court will nonetheless consider the plaintiff's arguments.The plaintiff's contention that she was terminated due to the defendant's alleged actions in tampering with her personnel and payroll records and creating fraudulent documents of employment misconduct is undermined by the language of the complaint. The complaint reads, in relevant part: "25. The Plaintiff was targeted by the Defendant for harassment, abuse and retaliation, and was eventually terminated solely on account of the Plaintiff's sex/gender, rejections of unwanted sexual advances and harassment, and repeated complaints of sexual harassment to management. 26. Thereafter, to cover up their discriminatory actions and retaliation, the Defendant created fraudulent documents of alleged employment misconduct against the Plaintiff and inserted such false documents into the Plaintiff's personnel file. 27. Thereafter, to cover up their discriminatory actions and retaliation, the Defendant tampered with the Plaintiff's personnel file and payroll records." (Emphasis added.) The plaintiff specifically cites paragraphs twenty-six and twenty-seven in her motion to reargue. In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the Supreme Court "recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Emphasis added.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000). According to the plaintiff's complaint the conduct alleged in paragraphs twenty-six and twenty-seven took place after the alleged wrongful dismissal, and therefore could not have been grounds for the wrongful dismissal itself.
The plaintiff claims that the allegations contained in paragraphs twenty-six and twenty-seven were in violation of Connecticut public policy under the Personnel File Act, General Statutes §§ 31-128a, et seq., "specifically the provisions mandating accurate maintenance of personnel and payroll records." While a cause of action for wrongful dismissal may be predicated upon a violation of the public policy in §§ 31-128a, et seq.; see Campbell v. Windham Community Memorial Hosp., Inc., 389 F.Sup.2d 370, 381 (D.Conn. 2005); this does not change the fact that the violation of public policy must be the cause of the defendant's wrongful dismissal. See Carnemolla v. Walsh, 75 Conn.App. 319, 329, 815 A.2d 1251 (2003) (on a claim for wrongful dismissal, "the plaintiff was required to prove that her employment was terminated for an improper reason and that the impropriety derived from a violation of an important public policy"); see also Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986) ("the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy").
In addition, the court does not agree that §§ 31-128a, et seq., "mandat[es] accurate maintenance of personnel and payroll records," as the plaintiff contends. Judge Blue has described §§ 31-128 et seq. as "a comprehensive legislative scheme enacted in 1979; see Public Acts 1979, No. 79-264; dealing with the integrity and disclosure of employee personnel files." Giannecchini v. Hospital of St. Raphael, 47 Conn.Sup. 148, 157, 780 A.2d 1006 (2000) [ 27 Conn. L. Rptr. 219]. Public Acts 1979, No. 79-264 is entitled "An Act Concerning Accessibility of Personnel Files to Employees." A review of the statute itself reveals no section that mandates accurate maintenance of personnel and payroll records. See General Statutes §§ 31-128a, et seq.
In Campbell v. Windham Community Memorial Hosp., Inc., supra, 389 F.Sup.2d 381, the court permitted a cause of action alleging a violation of public policy because it found that the plaintiff properly alleged that her required resignation was connected to her written response to her job evaluation, in violation of § 31-128e. The plaintiff alleged that she was terminated specifically for the reason that she submitted a written document disputing various factual statements included in her file. Id., 380. She argued that "because Connecticut law creates the right of employees to question records maintained in their personnel files and, if necessary, supplement those files, an employer cannot terminate an employee based on her exercise of that right without violating public policy." Id. Here, the considerations in Campbell are not implicated because the plaintiff does not allege that she was terminated because she disputed portions of her personnel file.
General Statutes § 31-128e provides: "If upon inspection of his personnel file or medical records an employee disagrees with any of the information contained in such file or records, removal or correction of such information may be agreed upon by such employee and his employer. If such employee and employer cannot agree upon such removal or correction then such employee may submit a written statement explaining his position. Such statement shall be maintained as part of such employee's personnel file or medical records and shall accompany any transmittal or disclosure from such file or records made to a third party."
Accordingly, the plaintiff's motion to reargue is denied.
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