Opinion
No. CV 08-5023007S
December 1, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#187)
FACTS AND PROCEDURAL HISTORY
The plaintiff, Luther Quattlebaum, commenced the present action by service of process against the defendant, Laydon Industries, on September 2, 2008. The operative complaint is the fourth amended complaint filed by the plaintiff on October 12, 2010. This complaint alleges the following facts. The plaintiff sustained an injury to his left hand and fingers, which arose out of and in the course of his employment with the defendant, on or about August 24, 2007. As a result of his injury, he filed a claim for workers' compensation benefits in accordance with the Workers' Compensation Act, General Statutes § 31-275 et seq. The defendant's president, Jeffrey Laydon, contacted the plaintiff via telephone about two or three days after the plaintiff sustained his injury. The plaintiff had taken a leave of absence in order to recover from his injury. Laydon stated that he needed an employee with a commercial driver's license, which the plaintiff held, to drive a dump truck and demanded that the plaintiff return to work. The plaintiff replied that he could not drive a truck with one hand and that it would be unsafe for him to do so. He believed that he could endanger his coworkers and the general public by driving a truck with one hand. Laydon responded with anger and profanity and hung up on the plaintiff.
The plaintiff returned to work on or about October 8, 2007. He was subjected to retaliatory conduct by Laydon. Specifically, the plaintiff was rarely allowed to drive a truck, and he was forced to operate a jackhammer on a regular basis, which exacerbated his hand injury. As a result, he took a second leave of absence in November 2007. He collected workers' compensation benefits during this time. When he returned to work on or about December 3, 2007, his employment was terminated due to a "lack of work." The defendant, however, hired new employees after it terminated the plaintiff's employment. It also undertook a number of projects during the winter months of 2007, at least one of which caused many of the defendant's employees to work overtime hours regularly.
The following two counts comprise the fourth amended complaint. Count one alleges that the defendant retaliated against the plaintiff in violation of General Statutes § 31-290a for having filed workers' compensation benefits. Count two alleges that the defendant retaliated against the plaintiff in violation of General Statutes § 31-51q for his exercise of his constitutionally protected free speech right. The speech at issue is the plaintiff's refusal to return to work because of his belief that he could endanger his coworkers and the general public by driving the defendant's dump truck with one hand.
General Statutes § 31-290a(a) provides: "No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
The defendant filed the present motion to strike on October 6, 2010. The defendant originally sought to strike count three of the plaintiff's third amended complaint, which is now count two of the plaintiff's fourth amended complaint. The plaintiff filed a request for leave to amend his complaint, the fourth amended complaint, and a memorandum in opposition to the present motion on October 12, 2010. The matter was heard at short calendar on October 25, 2010. At short calendar, the parties agreed to allow the fourth amended complaint. The present motion therefore seeks to strike count two of the plaintiff's fourth amended complaint.
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). A motion to strike therefore "requires no factual findings by the trial court." American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). 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, 292 Conn. 120.
The defendant argues that the court should grant the present motion for three reasons. First, the plaintiff has failed to allege that he exercised a right to free speech protected by the United States Constitution or the Connecticut Constitution. Second, the plaintiff has failed to allege that he was fired because he exercised his constitutionally protected free speech right. Finally, the plaintiff has failed to allege that his exercise of his free speech right did not substantially or materially interfere with his job performance. The court must therefore grant the present motion because § 31-51q requires the plaintiff to make all of these allegations.
The plaintiff objects to the motion on the ground that he has alleged facts sufficient to state a cause of action under § 31-51q. He argues that the fourth amended complaint sufficiently alleges that he exercised his constitutionally protected free speech right because it characterizes his refusal to return to work as "touch[ing] upon a matter of public concern" and refers to both the United States Constitution and Connecticut Constitution. He also argues that § 31-51q places the burden of pleading and proving that his exercise of his constitutionally protected free speech right substantially or materially interfered with his job performance on the defendant, not the plaintiff.
General Statutes § 31-51q provides: "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 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. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
The constitutional provisions cited in § 31-51q "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." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). "As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question. The legislature made its intention in that respect clear by stating expressly, in § 31-51q, that the statute provides a cause of action only against discharge for expressions of opinion that do `not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer . . . `The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999). "If the rights exercised by the employee do not fall into the specified constitutional category, the statute cannot apply. Not all speech is guaranteed to be `free.'" (Internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn.App. 724, 743, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied, 528 U.S. 1005, 120 S.Ct. 500, 145 L. Ed.2d 386 (1999).
"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." (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). "[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, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Daley v. Aetna Life and Casualty Co., supra, 777. "Stated differently, in determining whether the plaintiff has alleged protected speech, the inquiry on a motion to strike is only directed to the subject matter of the statement and not the particulars of the statement itself." Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV 03 0476708 (November 5, 2004, Devlin, J.). "The issue to be addressed is not simply whether the subject matter of the employee's complaint touches on a matter of public concern generally; the issue is whether . . . an employee was acting as a citizen attempting to speak out on a public issue, or whether the employee was instead attempting to resolve a private dilemma relating to employment." (Internal quotation marks omitted.) 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, 296).
In Hellanbrand v. National Waste Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 075010727 (January 31, 2008, Hale, J.T.R.) ( 44 Conn. L. Rptr. 849), the plaintiff alleged that her employment with the defendant had been terminated in violation of § 31-51q because she had refused to submit her private telephone records to the defendant on privacy grounds. The court struck the count of the complaint sounding in violation of § 31-51q because "[t]he plaintiff . . . merely asserted as legal conclusions that she was indefinitely suspended or constructively terminated as a result of her exercise of her state and federal constitutional rights and that the protected activity did not interfere with her working relationship with her employer or her bona fide job performance . . . Further, the plaintiff . . . failed to allege facts demonstrating that the statements made were expressions of a matter of public concern." Id., 852.
The court in the present action similarly concludes that the facts alleged by the plaintiff and the inferences that can be drawn from them, even when taken as admitted and viewed in the light most favorable to the plaintiff, fail to state a cause of action under § 31-51q. The paragraphs in the fourth amended complaint that address the protected status of the plaintiff's speech and how it "touches upon a matter of public concern" contain legal conclusions unsupported by factual allegations. Specifically, the plaintiff repeats the relevant language from § 31-51q without demonstrating with facts that such language is applicable to the present action.
The plaintiffs reference to safety concerns in describing the speech at issue does not alone transform the subject matter of the speech from a private grievance to a matter of public concern. "Communications which are not of public concern do `not attain that status because [the communication's] subject matter could in different circumstances, have been the topic of communication to the public that might be of general interest.' [ Connick v. Myers, 461 U.S. 138, 148 n. 8, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)]." Jewett v. General Dynamics Corp., Superior Court, judicial district of New London, Docket No. 530943 (May 1, 1997, Booth, J.) (granting summary judgment on § 31-51q cause of action where speech at issue was characterized as "relat[ing] exclusively to matters concerning the employee's personal interests," despite plaintiff's allegations that he sought, inter alia, "to strictly enforce [defendant's] safety . . . standards" through speech at issue). Trial courts have noted that "[s]tatements about safety matters affecting the general public have been determined to be matters of public concern." (Internal quotation marks omitted.) Fedor v. New Samaritan Corp., Superior Court, judicial district of New Haven, Docket No. CV 07 4026586 (June 9, 2008, Cosgrove, J.) ( 45 Conn. L. Rptr. 714, 717). The court in the present action is unable, however, to read the fourth amended complaint to allege that the plaintiff spoke on "a matter of social, political, or other concern to the community," where his characterization of his speech as "regard[ing] safety concerns" and therefore "touch[ing] upon a matter of public concern" is a legal conclusion unsupported by factual allegations.
Furthermore, the plaintiff has not alleged that he spoke as a citizen rather than as an employee. The facts alleged and the inferences that can be drawn from them, even when taken as admitted and viewed in the light most favorable to the plaintiff, refer only to the plaintiff's employee-employer relationship with the defendant. In Cappiello v. Fitzsimmons, Superior Court, judicial district of New Haven, Docket No. CV 03 0478253 (August 3, 2005, Devlin, J.), the plaintiff nurse alleged that she had been terminated by the defendant hospital in violation of § 31-51q because she had internally reported a doctor's erratic behavior. In opposition to the defendant's motion to strike the relevant count of the complaint, the plaintiff argued that the speech at issue addressed the state of the healthcare system, and was therefore a matter of public concern. The court nevertheless granted the motion stating: "The problem with plaintiff's complaint is that, even when read broadly, it alleges no more than internal communications regarding the Dr. Rutherford incident with her superiors at the Hospital. There is no explicit allegation that she was speaking out as a concerned citizen, nor can such an allegation be reasonably inferred. To the contrary, the complaint alleges statements made solely in the discharge of plaintiff's professional role as a nurse manager employee of the Hospital." The court in the present action similarly concludes that the operative complaint cannot be read to allege that the plaintiff spoke to express his concern as a citizen but rather to further his interest as an injured employee. Despite his reference to safety concerns, the plaintiff has only alleged actions, events, and statements related to his job duties and responsibilities, and the defendant's personnel decisions, which is not protected speech under § 31-51q.
The court need not address the parties' arguments about who bears the burden of pleading and proving that the plaintiff's speech substantially or materially affected his bona fide job performance because the issue of whether his speech is constitutionally protected under § 31-51q is dispositive of the present motion. The court thus grants the defendant's motion to strike count two of the fourth amended complaint on the ground that neither the facts alleged nor the inferences that can be drawn from them allow the plaintiff to fulfill all of the criteria contained in § 31-51q.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant's motion to strike count two of the plaintiff's fourth amended complaint is granted.