Ortega v. All-Star Transp., LLC

Full title: EDGARDO ORTEGA v. ALL-STAR TRANSPORTATION, LLC ET AL

Court: Connecticut Superior Court Judicial District of Ansonia-Milford at Derby

Date published: Dec 17, 2009

2010 Ct. Sup. 1527 (Conn. Super. Ct. 2009)

49 CLR 51

Opinion

No. AAN-CV09-5008684S

December 17, 2009

MEMORANDUM OF DECISION RE MOTION TO STRIKE #111

BELLIS, J.

FACTS

The issue before the court is one of first impression.

On February 19, 2009, the plaintiff, Edgardo Ortega, commenced this action by service of process on the defendants, All-Star Transportation, LLC (All Star), Dawn Brundage, and Concentra Health Services, Inc. (Concentra). On June 2, 2009, the plaintiff filed a three-count¹ revised complaint. He alleges in count one as against All-Star and in count two as against Brundage that their termination of his employment at All-Star violated Connecticut General Statutes § 31-51u.²

1 The third count, which is not at issue in the motion presently before the court, is against Concentra, the medical laboratory where the plaintiff alleges he attempted to comply with the drug testing on March 13, 2007.

2 Section. 31-51u provides in relevant part: "(a) No employer may determine an employee's eligibility for . . . termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test . . ."

In his complaint the plaintiff alleges the following facts. On August 1, 2006, he was hired as a school bus driver by All-Star and Brundage. Brundage was a "supervisory level employee" of All Star. During the course of the plaintiff's employment, his performance was satisfactory and he was not subject to any disciplinary action by All-Star or Brundage. On March 13, 2007, the plaintiff was ordered to submit to a drug test that was purportedly randomly scheduled. He reported to Concentra for the test. His first attempt at producing a urine sample yielded a quantity smaller than that required for testing. As instructed, the plaintiff drank water and remained at the test site for three hours, but his second and third attempts were similarly unsuccessful. Brundage, as agent, servant and/or employee of All-Star, terminated his employment on March 14, 2007, for "refusing" to take the drug test, resulting in his loss of income and other economic harm. The plaintiff alleges his termination was a violation of § 31-51u and claims damages and attorneys fees pursuant to General Statutes § 31-51z.³

3 Section 31-51z provides in relevant part: "Any employer, laboratory or medical facility that violates any provision of sections 31-51t to 31-51aa, inclusive . . . shall be liable to the person aggrieved for special and general damages, together with attorneys fees and costs."

On August 10, 2009, the defendants⁴ moved to strike the second count of the revised complaint on the ground that Brundage was not the plaintiff's employer and, thus, not subject to liability under § 31-51z.⁵ The plaintiff filed a memorandum in opposition on October 22, 2009. Oral argument was heard at short calendar on October 26, 2009.

4 Brundage and All-Star will be referred to collectively as "the defendants."

5 The defendants did not file a separate memorandum of law in support of their motion to strike. They included their arguments in one pleading entitled "Motion to Strike." As a result, they failed to comply with the requirements of Practice Book § 10-42(a). Since the motion itself cites the legal authorities upon which it relies, and no objection to the form was made by the plaintiff, this court will not require strict adherence to the rule. See, e.g., Lamothe v. Russell, Superior Court, judicial district of Fairfield, Docket No. CV 07 4022729 (March 25, 2009, Bellis, J.) ( 47 Conn. L. Rptr. 450) (excusing non-compliance); Benoit v. Edington, Superior Court, judicial district of Fairfield, Docket No. CV 06 5006056 (March 13, 2009, Bellis, J.) (same).

DISCUSSION

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 120.

The defendants argue that the plaintiff cannot bring a claim of wrongful termination against Brundage, his supervisor, under the workplace drug testing statute, General Statutes § 31-51t, because the statute provides for redress only against an "employer, laboratory or medical facility" and not an alleged "supervisory level employee." In response, the plaintiff counters that Brundage was an agent for All-Star "having the full authority to understand important and significant decisions such as terminating employer-employee relationships as she had done with the [p]laintiff" and sufficiently demonstrates that she falls within the definition of an employer. The plaintiff argues that Brundage is an employer because the definition of an employer found in Title VII of the Civil Rights Act of 1964 includes an employer's agents.⁶ Secondly, the plaintiff argues that Brundage is "personally liable as she failed to carry out her duties when acting in the capacity of a [d]esignated [e]mployer [r]epresentative" and that she is "personally liable for a violation of . . . 49 C.F.R. [§ ]40.193(c)."⁷ Thus, he maintains; the motion to strike must be denied.

6 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), provides in relevant part: "The term `employer' means a person engaged in an industry affecting commerce . . . and any agent of such a person . . ." (Emphasis added.) As noted by Supreme Court: "[T]he Court of Appeals for the Second Circuit rejected the plaintiff's argument that individual employees who are agents of an employer may be held individually liable, concluding that it was inconceivable that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees . . . [T]he obvious purpose of this [agent] provision was to incorporate respondeat superior liability into the statute." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 739-40, 792 A.2d 752 (2002).

7 For the purpose of this motion to strike, the court assumes all facts well pleaded, including that Brundage is the "designated employer representative" for All-Star. The text of the regulations are included here in relevant part.
"What do the terms used in this regulation mean? . . . Designated employer representative (DER). An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The [designated employer representative] also receives test results and other communications for the employer, consistent with the requirements of this part . . . Medical Review Officer (MRO). A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results." Procedures for Transportation Workplace Drug and Alcohol Testing Programs, Subpart A: Administrative Provisions, 49 C.F.R. § 40.3 (2009).
"What happens when an employee does not provide a sufficient amount of urine for a drug test? (a) This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine to permit a drug test (i.e., 45 mL of urine) . . . (c) As the [designated employer representative], when the collector informs you that the employee has not provided a sufficient amount of urine . . . you must, after consulting with the [medical review officer], direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the [medical review officer], who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen . . ." Procedures for Transportation Workplace Drug and Alcohol Testing Programs, Subpart I: Problems in Drug Tests, 49 C.F.R. § 40.193 (2009).

I

In 1987, the state legislature enacted a comprehensive plan regulating workplace drug testing which was codified in General Statutes §§ 31-51t through 31-51aa. See Poulos v. Pfizer, Inc., 244 Conn. 598, 606, 711 A.2d 688 (1998). It appears that whether a "supervisory level employee" is an employer for the purposes of § 31-51t et seq. is a question of first impression.

"In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . General Statutes § 1-1(a)." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 736, 792 A.2d 752 (2002). "It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation . . . Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Citation omitted; internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995). "It is well settled that a statute must be applied as its words direct." (Internal quotation marks omitted.) Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn.App. 397, 400, 689 A.2d 1132, cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997).

In Perodeau v. Hartford, supra, 259 Conn. 730-31, our Supreme Court answered a certified question from the United States District Court for the District of Connecticut as to whether the Fair Employment Practices Act, General Statutes § 46a-60(a)(1), imposed civil liability against individual municipal employees and/or their supervisors. The court stated the plaintiff's case as follows: "The plaintiff contends that, because the term `employer' in § 46a-60 is defined in General Statutes § 46a-51(10) to encompass any `person,' which is defined in General Statutes § 46a-51(14) to include an individual, an individual employee may be liable for violations of § 46a-60 . . . We disagree."⁸ Id., 734-35. The court held that § 46a-60(a)(1) of the Act did not impose liability on individual employees, including the supervisors who were the defendants in that case. Id., 731, 744. To support this conclusion the court noted "that when the legislature has intended for the provisions of the Fair Employment Practices Act to apply to persons other than employers, it has made its intention clear. For example, in § 46a-60(a)(4), (5) and (6),⁹ by contrast to § 46a-60(a)(1), the legislature specifically referred to persons as well as to employers." Id., 737-38. See, e.g. Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0024313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr 659, 662) (holding that "subsection (a)(5) makes it clear that the person upon whom liability can be imposed does not have to be either an employer or an employee").

8 In relevant part. § 46a-51(10) provides that "`[e]mployer' . . . means any person or employer with three or more persons in his employ and § 46-51(14) provides that "`[p]erson' means one or more individuals, partnerships, associations, corporations, limited liability companies . . ."

9 Section 46a-60(a) provides in relevant part: "It shall be a discriminatory practice in violation of this section . . .
"(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice . . .;"
"(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so;"
"(6) For any person, employer, employment agency or labor organization . . . to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . ."

The present case concerns the workplace drug testing statute. Section CT Page 1530 31-51t provides in relevant part: "For the purposes of [§§ ]31-51t to 31-51aa, inclusive . . . (1) `Employee' means any individual currently employed . . . and includes any individual in a managerial position; (2) `Employer' means any individual, corporation, partnership or unincorporated association, excluding the state or any political subdivision thereof."¹⁰ (Emphasis added.) By the plain language of the statute, an individual in a managerial position, which presumably includes a "supervisory level employee," is an employee, not an employer, and under § 31-51z, only an "employer, laboratory or medical facility" shall be liable for violations of this statute. The Supreme Court noted in Perodeau: "The dictionary defines the wind `employer' to mean `[o]ne who employs, esp. for wages or salary . . .' It would defy common sense to conclude that the legislature intended in § 46a-51(10) to change the common meaning of the word `employer' to include `persons' who do not employ anyone, while excluding `employers' who employ fewer than three employees." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 736-37. Similarly, it would be unreasonable to conclude that the legislature intended "an individual in a managerial position" to be included in the definition of "employer" when such person is specifically included in the definition of "employee." Because an individual in a managerial position is an employee for the purpose of this statute, he or she cannot also be an employer subject to personal liability.

10 Because the statute defines the terms employer and employee as they are used therein, the plaintiff's reliance on the definition of employer within the meaning of Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. § 2000e(b), is misplaced.

This conclusion is supported by other courts which have rejected the notion that a supervisor is an employer under another portion of the General Statutes concerning employee protection, Title 31, Chapter 557 Part II, the same part in which the workplace drug testing statute is found. 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 to the United States Constitution . . . shall be liable to such employee for damages . . ." "While no appellate court of this state has had occasion to consider the question of whether § 31-51q creates individual liability in any person other than the employer, the federal district court in Nyenhuis v. Metropolitan District Commission, [ 604 F.Sup.2d 377, 384-85 (D.Conn. 2009)], held that that statute by its terms applies only to the employer." Skaats v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 08226902 (September 4, 2009, Aurigemma, J.) (finding other employees were not employers and could not be held personally liable under § 31-51q). See also Maisano v. Congregation Or Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden, J.) ( 47 Conn. L. Rptr. 152) (granting motion to strike counts against individual employees or agents because § 31-51q applies only to employers by its plain language); Holub v. Babcock, Superior Court, judicial district of Fairfield, Docket No. CV 95 0319683 (June 27, 1996, Grogins, J.) (denying motion to strike because owner of company falls within definition of employer in § 31-51q).

For the forgoing reasons, Brundage, an alleged "supervisory level employee" of All-Star, cannot be considered an employer subject to personal liability for alleged violations of § 31-51u.

II

As an alternate ground, the plaintiff argues that count two should remain in the plaintiff's complaint because Brundage is "personally liable as she failed to carry out her duties when acting in the capacity of a [d]esignated [e]mployer [r]epresentative" and because she is "personally liable for a violation of . . . 49 C.F.R. [§ ]40.193(c)." The plaintiff alleges in count two that Brundage was "acting in as the [d]esignated [e]mployer [r]epresentative for [All-Star]," but does not allege in his complaint that Brundage is personally liable for a violation of the regulation. Even if such a violation had been pleaded, no private right of action for a violation of these regulations exists against an alleged designated employer representative individually. Nothing in the text of the regulation so provides and the plaintiff has provided no authority that says otherwise. In fact, research has disclosed dicta to the contrary. For example, the Tenth Circuit Court of Appeals analyzed these regulations in a case that required the court "to determine the boundary between state statutes that regulate employee drug testing, such as Oklahoma's Standards for Workplace Drug and Alcohol Testing Act ("ODTA"), and federal statutes that mandate drug testing of certain employees." Williams v. United Parcel Service, Inc., 527 F.3d 1135, 1136-37 (10th Cir. 2008). That court "conclude[d] that the phrase `conducted pursuant to federal law' as used in the exemption provision of the ODTA describes those drug tests mandated and governed by federal law." Id., 1143. The court noted that the plaintiff/appellant "argue[d] strenuously against this interpretation because federal law does not provide a private cause of action . . . But this is nothing more than a disagreement with Congress's choice of remedies for violation of federal requirements. Congress, in its wisdom, has chosen to rely on civil and criminal penalties for violations of federal drug testing regulations." (Citation omitted.) Id. As such, the motion to strike on this alternate ground is granted because violations of these regulations, if preven, do not state a legally cognizable cause of action for damages against a "supervisory level employee" of a company.

CONCLUSION

For the forgoing reasons, defendants' motion to strike count two of the revised complaint is granted.