Opinion
No. FST CV 05 4003828 S
December 16, 2005
MEMORANDUM OF DECISION
The defendant moves to strike the plaintiff's one-count complaint in which the plaintiff alleges that she was terminated from employment in violation of General Statutes § 31-51q after "voicing concerns regarding the marketing department's intrusion into the underwriting process." She also alleges that her speech is a matter of public concern because it pertains to "The welfare and interests of Falcon's shareholder" and therefore claims she has sufficiently plead a cause of action under § 31-51q. The defendant argues that § 31-51q does not apply because the subject of the plaintiff's speech was not a matter of public concern so as to be constitutionally protected.
General Statutes § 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 of 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."
"Section 31-51q protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution . . . 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." (Citations omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record . . . 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 . . ." (Citation omitted; internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). "[I]t is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern." Daley v. Aetna Life Casualty, Co., supra, 782.
Employee speech concerning an employer's illegal or fraudulent behavior has consistently been found by our courts to be a matter of public concern. In Kennedy v. Coca-Cola Bottling Co. of New York, Inc., 170 F.Sup.2d 294 (D.Conn. 2001), the court concluded that an employee's speech regarding the sale and use of drugs on the defendant's premises was a matter of public concern as such activities could potentially harm the public at large. Similarly, in Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of New London, Docket No. CV 03 0564783 (August 19, 2003, Hurley, J.T.R.) ( 35 Conn. L. Rptr. 295), the court found that "speech made by an employee concerning an employer's potential tax evasion, implicates public policy." Id., 298.
See also Sobczak v. Meriden Board of Education, Superior Court, judicial district of New Haven, Docket No. 419547 (October 6, 2000, Levin, J.) (the inflation of a public employee's overtime hours is a matter of public concern).
Statements regarding safety matters affecting the general public have also been found by our courts to be matters of public concern. In DiMartino v. Richens, supra, 263 Conn. 639, the plaintiff was demoted from his position as carpentry supervisor at Bradley International Airport after he cooperated with state police in their criminal investigation of fellow employees. The investigation stemmed from the plaintiff's suspicions that someone was entering his office without his authorization, creating a possible breach in airport security. In concluding that the plaintiff's speech was on a matter of public concern, the court found that the plaintiff's speech was prompted by his concern that unauthorized access to his office "would have posed serious risks both to airport security and public safety." Id., 668.
Employee speech relating to matters of societal concerns have also, in limited situations, been found by our courts to be within the categories of speech protected by § 31-51q. For instance, in Miller v. O'Meara, Superior Court, judicial district of Hartford, Docket No. CV 02 0817587 (November 23, 2004, Booth, J.), the plaintiff, a nurse employed by the state of Connecticut department of mental retardation at the Southbury Training School, alleged that she was disciplined after reporting that disabled residents were receiving inferior quality of care at the facility and that such conditions were "adversely affecting [the disabled residents] health and safety." In ruling that the plaintiff had alleged sufficient facts to support a cause of action under § 31-51q the court found that "the quality of the care that the severely disabled residents of the training school receive is arguably a matter of social concern for the community and therefore a matter of public concern." Id.
See also Sturm v. Rocky Hill Board of Education, United States District Court, Docket No. 3:03CV666, 2005 WL 733778 (D.Conn. March 29, 2005) (teacher's recommendation that special education students be "mainstreamed" in compliance with the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, was a matter of public concern as the statements "served to advance the federally legislated goal of integration of disabled students into regular classrooms.")
Our courts have cautioned that the "internal employment policies are not a matter of public concern." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 783. Section § 31-51q "should not be construed so as to transform every dispute about working conditions into a constitutional question." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999).
"[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, form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 777 (1999).
As plead the allegations contained in the complaint state a claim upon which legal relief may be granted. The subject matter of plaintiff's statements is a matter of public concern because it relates to the welfare of shareholders. Accordingly, the motion to strike is denied.