Opinion
No. MMX CV09 500 7429 S
November 18, 2009
MEMORANDUM OF DECISION
On August 18, 2009, the plaintiff Kevin Geysen ("Geysen") filed a complaint ("complaint") containing three counts including violation of General Statutes § 31-72; breach of the implied covenant of good faith and fair dealing; and wrongful termination in violation of public policy. On September 9, 2009, the defendant Securitas Security Services USA, Inc. d/b/a Securitas Security Services ("Securitas") filed a motion to strike the implied covenant and wrongful termination counts ". . . as the Plaintiff is afforded an adequate statutory remedy which precludes his claims sounding in tort and contract." On October 28, 2009, the plaintiff objected to the motion to strike and claimed that he had sufficiently stated claims on which relief could be granted. The plaintiff denied that he had a statutory remedy available to vindicate the public policies at issue.
A motion to strike one or more counts of a complaint challenges the legal sufficiency of each such cause of action. As set forth in Doe v. Yale University, 252 Conn. 641, 667, 668, 748 A.2d 834 (2000), and in Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), because the issue is one of legal sufficiency, this court's decision on a motion to strike is subject to plenary review on appeal, and while both the Appellate Court and the trial court must take the facts to be those alleged in the complaint and to construe the complaint in the manner most favorable to sustaining its legal sufficiency, what is necessarily implied by an allegation need not be expressly alleged:
We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [plaintiff's motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997)] . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996) . . . 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 . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . . Edwards v. Tardif, 240 Conn. 610, 620, 692 A.2d 1266 (1997)." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
Gazo v. Stamford, supra, 255 Conn. at 260-61.
Also, as the Supreme Court set forth in Gazo, after acknowledging the foregoing, while the general rule is that the trial court must take the plaintiff's allegations at face value, that rule is not absolute:
Although ordinarily — indeed, in most cases — in reviewing a motion to strike, the court must take the plaintiff's allegations at face value, that rule is not absolute. We have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) ("[the defendant] cannot . . . convert its apportionment claim against [the third party defendant] into something other than a product liability claim simply by alleging only negligent misconduct"). In our view, this is an appropriate case in which to pierce the pleading veil.
Thus, in the present case, we look beyond the language used in the complaint to determine what the plaintiff really seeks. Just as "[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender;" State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); putting a contract tag on a tort claim will not change its essential character . . .
Gazo v. Stamford, supra, 255 Conn. at 262-63.
Also in Gazo, the Supreme Court pointed out that a judge's common sense is to be applied in evaluating a pleading:
Common sense also informs us that the plaintiff's contract claim is in reality his negligence claim cloaked in contract garb. "It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) . . .
Gazo v. Stamford, supra, 255 Conn. at 266; see also Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 803 fn 37, 967 A.2d 1 (2009).
In Burnham v. Karl Gelb, P.C., 252 Conn. 153, 157-58, 745 A.2d 178 (2000) (footnote omitted), the Supreme Court affirmed the Appellate Court determination that the plaintiff could not allege common law counts because she had an available statutory remedy:
. . . The Appellate Court concluded that
the plaintiff's claim that she was terminated by the defendants for reporting violations of the act could not support a common-law cause of action for wrongful discharge based on the existence of a statutory remedy available to her under 29 U.S.C. § 660 (c). Burnham v. Karl Gelb, P.C., supra, 50 Conn.App. 395-96.
We conclude that the plaintiff was precluded from bringing a cause of action for wrongful discharge for three reasons. First, we agree with the trial court that the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the public policy embodied in § 31-51m. Second, even if we were to conclude that the plaintiff's termination violated the public policy embodied in § 31-51m, the plaintiff's common-law wrongful discharge claim would be precluded by § 31-51m(c), which provides a statutory remedy for employer conduct prohibited under § 31-51m(b). Third, we agree with the Appellate Court that the plaintiff's common-law cause of action for wrongful discharge is precluded because she had a remedy for her employer's conduct under 29 U.S.C. § 660(c).
The Appellate Court affirmed a trial court judgment striking common law claims where a statutory remedy existed for a former employee, although that statutory claim had not been alleged by the plaintiff:
The Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq., provides a statutory remedy for an employee who claims to have been discharged on the basis of a discriminatory employment practice. See General Statutes § 46a-82. A plaintiff who brings an action in the trial court under General Statutes § 46a-100 must allege compliance with the statutory remedy sufficiently to withstand a motion to strike.
In this case, the plaintiff, Michael Tracy, appeals from the judgment rendered by the trial court subsequent to its granting a motion to strike all three counts of the complaint filed by the defendants . . . On appeal, the plaintiff claims that the court improperly granted the motion to strike as to (1) count one alleging discriminatory discharge from employment, (2) count two alleging intentional infliction of emotional distress and (3) count three alleging negligent infliction of emotional distress. We affirm the judgment of the trial court.
Tracy v. New Milford Public Schools, 101 Conn.App. 560, 561-62, 922 A.2d 280 (2007).
In another case, the Appellate Court determined that the name given to a claim will not avoid the preclusion of a common law claim where the plaintiff had a statutory remedy, even if that statutory remedy is no longer available:
In the present case, the plaintiff seeks to mask her wrongful discharge claim by labeling it a "negligence per se claim." The plaintiff's brief, however, continuously asserts the public policy embodied in § 51-247a and argues that the defendant wilfully violated that policy by terminating the plaintiff's employment. The fact still remains that the plaintiff claims to have been wrongfully discharged because of the defendant's failure to abide by § 51-247a. Because § 51-247a provides a statutory remedy for persons who find themselves in the plaintiff's position, the plaintiff was not "otherwise without remedy," and she is therefore precluded from bringing a common-law cause of action with regard to the defendant's conduct. See Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60. Additionally, "when the . . . statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 710, 802 A.2d 731 (2002). The name the plaintiff chooses to attach to that cause of action is irrelevant, and the fact that the statute of limitations period on her claim has run does not change our analysis.
Pickering v. Aspen Dental Management, 100 Conn.App. 793, 799, 919 A.2d 520 (2007). See also Campbell v. Plymouth, 74 Conn.App. 67, 72-74, 811 A.2d 243 (2002) (footnotes omitted):
Count two of the complaint alleged that the defendant breached its covenant of good faith and fair dealing by discharging the plaintiff. The plaintiff argues (1) that the court improperly decided that § 31-51m was the plaintiff's exclusive remedy, (2) that by doing so, the court deprived the plaintiff of his right to plead in the alternative, as specifically provided for in Practice Book § 10-25, and (3) that the court improperly presumed facts not in evidence. We disagree.
The court correctly decided on the basis of the Supreme Court's decision in Burnham v. Karl Gelb, P.C., 252 Conn. 153, 157-58, 745 A.2d 178 (2000), that § 31-51m provides the exclusive remedy for wrongful discharge for "whistle-blowing" and that the availability of that statutory remedy precluded the plaintiff from pleading any alternative, common-law cause of action.
There also have been several recent Superior Court decisions striking implied covenant and wrongful termination counts where the plaintiff has a statutory remedy. In Martin v. PARCC Health Care, Inc., 2008 Ct.Sup. 17807, 17811, No. CV05-401 09 00 S, Superior Court, Judicial District of Fairfield at Bridgeport (Hiller, J., November 7, 2008), a case involving a claim of retaliatory termination of employment, the trial court set forth the "general rule [that] the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim . . ."
As a general rule, the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim. See DeOliveria v. Liberty Mutual Ins. Co., 273 Conn. 487, 501, 870 A.2d 1066 (2005); Burnham v. Karl Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000); Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 708, 874 A.2d 844 (2005). The Appellate Court has held that when a statutory remedy is available to the plaintiff "an action brought on the basis of an alleged breach of the implied covenant of good faith and fair dealing is precluded." Campbell v. Plymouth, 74 Conn.App. 67, 75, 811 A.2d 243 (2002); see also Stavena v. Sun International Hotels, Ltd., Superior Court, judicial district of New London, Docket No. 116974 (June 30, 2000, Corradino, J.) ("[A] common law claim for breach of the covenant of good faith and fair dealing for wrongful discharge . . . cannot be made because [General Statutes] § 31-[2]90[a] provides for a statutory remedy for discharge); Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.) ("neither a wrongful discharge nor a breach of implied covenant claim are available where . . . the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced"). While it is true that Connecticut often allows for pleading in the alternative, even when the theories are completely inconsistent, see, e.g., Drier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985), the above cited cases make clear that the determinative factor is the availability of a statutory remedy. Since the plaintiff has pleaded a violation of § 31-290a in count one, which alleges retaliatory discharge, and a breach of the implied covenant of good faith and fair dealing in count four arising out of the same conduct, the plaintiff cannot proceed with count four . . .
In the earlier decision in Martin v. PARCC Health Care, Inc., 2007 Ct.Sup. 8872, CV 05-401 09 00S, Superior Court, Judicial District of Fairfield at Bridgeport (Hiller, J., June 5, 2007), Judge Hiller stated:
"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 added; internal quotation marks omitted.) Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985). Thus, as a general rule, the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim. See DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 501, 870 A.2d 1066 (2005); Burnham v. Karl Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000); Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 708, 874 A.2d 844 (2005).
"[A] common law claim for breach of the covenant of good faith and fair dealing for wrongful discharge . . . cannot be made because [General Statutes] § 31-[2]90[a] provides for a statutory remedy for discharge based on the filing of a workers' compensation claim." Stavena v. Sun International Hotels, Ltd., Superior Court, judicial district of New London, Docket No. 116974 (June 30, 2000, Corradino, J.). "Superior court cases and district court cases have fairly consistently held . . . that neither a wrongful discharge nor a breach of implied covenant claim are available where . . . the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced." Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.).
In Nichols v. City of Bridgeport, 2008 Ct.Sup. 11004, 11009, No. CV02 0394052, Superior Court, Judicial District of Fairfield at Bridgeport (Arnold, J., July 7, 2008) (footnotes omitted), Judge Arnold also stated that the statutory remedy was the exclusive remedy:
Additionally our Supreme Court in Burnham v. Gelb, 252 Conn. 153, 157-58, 745 A.2d 178 (2000), has determined that General Statutes § 31-51m "provides the exclusive remedy for wrongful discharge for "whistle-blowing" and that the availability of that statutory remedy precluded the plaintiff from pleading alternative common-law causes of action." Campbell v. Plymouth, 74 Conn.App. 67, 73-74, 811 A.2d 243 (2002).
The court found that wrongful discharge, retaliation, and harassment, respectively are tort claims contemplated by the parties to be covered under the terms of the collective bargaining agreement and subject to the grievance and arbitrations procedures outlined therein. These counts are also subject to the exclusive remedy that General Statutes § 31-51m provides for one who feels they were wrongfully terminated for "whistle blowing." Accordingly, these three counts are dismissed for lack of subject matter jurisdiction.
In Fecteau v. East Coast Lightning Equipment, Inc., 2008 Ct. Sup. 8640, 8644-45, No. LLI CV 07 5002853S, Superior Court, Judicial District of Litchfield at Litchfield (Pickard, J., May 19, 2008), in a motion to strike a wrongful termination count the defendant claimed that the plaintiff had a statutory remedy under the provisions of the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-58 et seq., and the court granted the motion to strike.
For the reasons set forth above this court grants the defendant's motion to strike the two common law counts alleging breach of the implied covenant of good faith and fair dealing and wrongful termination.