Opinion
No. WWMCV06-4004064S
March 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #139
Charter Communications, LLC, Charter Communications, Inc., Charter Communications Holding Co., LLC and Charter Communications Entertainment I, LLC move for summary judgment as to the plaintiff's four remaining claims, counts one, two, five and six of the complaint.
The plaintiff, Eric St. Germain, alleges that the defendants wrongfully terminated his employment. Specifically, St. Germain alleges the following facts. He was employed by the defendants from March 8, 1996, to February 20, 2003, as a construction lead. On February 5, 2003, the defendants required the plaintiff to submit to a urinalysis drug test, following a work-related accident. The results showed that the plaintiff tested positive for marijuana. On February 20, 2003, the defendants terminated St. Germain's employment as a result of his positive drug test.
In count one of his complaint, St. Germain alleges that the defendants violated General Statutes § 31-51x, by requiring him to submit to a drug test without individualized reasonable suspicion of drug use. In the second count of the complaint, St. Germain alleges that the defendants violated General Statutes § 31-51u(a), because the defendants did not confirm his positive drug test result with a second, independent test, utilizing gas chromatography and mass spectrometry methodology. In count five, St. Germain alleges a claim of wrongful termination. Finally, St. Germain alleges in count six of the complaint that the defendants intentionally inflicted emotional distress upon him by violating his employment rights under § 31-51x. The defendants move for summary judgment, as to all counts, on the ground that that no genuine issue of fact remains.
"Summary judgment is appropriate when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Citation omitted; internal quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 6 A.3d 1199 (2010). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010).
"Once met, the burden shifts to the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Citations omitted; internal quotation marks omitted.) James v. Valley-Shore YMCA., Inc., supra, 125 Conn.App. 174.
Count One: Violation of § 31-51x
The defendants argue that the plaintiff's claim for violation of § 31-51x is time barred because this action was not initiated within the applicable three-year statute of limitations. Specifically, the defendants claim that the plaintiff's cause of action arose on February 5, 2003, when he was required to submit to the drug test. As a result, the defendants assert the plaintiff's claim is untimely because he initiated this action "on or after February 16, 2006." In response, the plaintiff counters that the cause of action arose on February 20, 2003, the date of his termination. Moreover, the plaintiff points out that the only case cited by the defendants in support of their argument is Schmidt v. Southern New England Telephone Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 4005514 (November 1, 2006, Taylor, J.) ( 42 Conn. L. Rptr. 262), an unpublished Superior Court opinion.
Section 31-51x states in relevant part: "(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance . . . (b) Notwithstanding the provisions of subsection (a) of this section, an employer may require an employee to submit to a urinalysis drug test on a random basis if . . . (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54 . . ."
"The relevant statute of limitations for bringing a tort action for a violation of § 31-51x is § 52-577 . . ." Schmidt v. Southern New England Telephone Co., supra, Superior Court, Docket No. CV 06 4005514. "Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§ ]52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of . . . the history of th[e] legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Internal quotation marks omitted.) Watts v. Chittenden, 115 Conn.App. 404, 409-10, 972 A.2d 770 (2009), cert. granted, 293 Conn. 932, 981 A.2d 1077 (2009).
"In Connecticut an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). The plaintiff initiated this action by service of process upon the defendants on February 23, 2006. Consequently, it does not matter whether the date of the plaintiff's drug test (February 5, 2003) or his termination (February 20, 2003) is used to determine when the cause of action arose because both dates exceed the three-year statute of limitations set forth in § 52-577. As a result, no genuine issue of fact remains and the defendant is entitled to judgment as a matter of law. The court therefore grants the defendant's motion for summary judgment as to count one.
In addition to the named defendants, Windham Community Memorial Hospital was also originally a defendant in this action. On February 17, 2006, the plaintiff served process upon the hospital. Thereafter, the plaintiff withdrew his claims as to Windham Hospital.
Count Two: Violation of § 31-51u
The defendants argue they are entitled to summary judgment as to the second count because they complied with § 31-51u, by confirming the plaintiff's initial positive drug test results, with a second urinalysis drug test utilizing gas chromatography and mass spectrometry (GC/MS) methodology. In support of their argument, the defendants submit a copy of a GC/MS confirmation drug test from Quest Diagnostics dated February 7, 2003. The plaintiff, in his memorandum of law in opposition to defendant's motion, does not address the defendants' argument as to this claim. Moreover, during oral arguments heard at short calendar on January 18, 2011, the plaintiff's counsel represented that they do not oppose summary judgment on the second count. Therefore, summary judgment is granted in favor of the defendant as to the second count.
Count Five: Wrongful Termination
The plaintiff claims in the fifth count of his complaint that the defendants "wrongfully terminated [his] employment in violation of an important public policy protecting employees' privacy and employment rights as expressed and codified in . . . § 31-51x." The defendants move for summary judgment on the basis that the plaintiff has adequate statutory remedies and, therefore, his wrongful termination claim is barred as a matter of law. Specifically, the defendants maintain that count five of the plaintiff's complaint alleges a violation of § 31-51x and General Statutes § 31-51z provides a remedy for violations of § 31-51x.
The plaintiff responds that § 31-51x does not provide a remedy for wrongful discharge, but rather protects privacy rights of employees against employer-mandated drug testing. In support of his argument, the plaintiff points out that § 31-51x does not prohibit the discharge of an employee, but claims rather that it "provides a remedy against an employer for invasion of privacy . . ." As a result, the plaintiff argues that he is left with only a common-law claim and the defendants' motion for summary judgment should be denied.
Section 31-51z provides: "(a) Any aggrieved person may enforce the provisions of sections 31-51t to 31-51aa, inclusive, by means of a civil action. Any employer, laboratory or medical facility that violates any provision of sections 31-51t to 31-51aa, inclusive, or who aids in the violation of any provision of said sections shall be liable to the person aggrieved for special and general damages, together with attorneys fees and costs.
"(b) Any employer, laboratory or medical facility that commits, or proposes to commit, an act in violation of any provision of sections 31-51t to 31-51aa, inclusive, may be enjoined therefrom by any court of competent jurisdiction. An action for injunctive relief under this subsection may be brought by any aggrieved person, by the Attorney General or by any person or entity which will fairly and adequately represent the interests of the protected class."
"Section 31-51z sets forth the civil actions through which any violations of § 31-51x are enforced." Schmidt v. Southern New England Telephone Co., supra, Superior Court, Docket No. CV 064 005514. In considering the legislative history of § 31-51x, the Connecticut Supreme Court has concluded that "[Public Acts 1987, No. 87-55] was intended to provide the same protections to private employees in Connecticut as those protections that are afforded to employees of the federal government by the fourth amendment to the United States constitution . . . [and therefore] should be resolved in a manner consistent with federal fourth amendment constitutional law." (Citations omitted; internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 606-07, 711 A.2d 688 (1998).
"A common-law approach to a claim of wrongful discharge is barred as long as a remedy has been made available to address the particular public policy concerns." Campbell v. Plymouth, 74 Conn.App. 67, 76, 811 A.2d 243 (2002). "Superior Courts have consistently held that a cause of action for wrongful termination exists only when a discharge violates public policy and the employee is otherwise without a statutory remedy." Mikhael v. H.S. Eagle Road Associates, LLC., Superior Court, judicial district of Danbury, Docket No. CV 09 5008287 (October 20, 2010, J. Marano).
A common-law cause of action for the discharge of an at will employee exists "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 in original; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).
A limitation, however, exists on the public policy exception to the at will doctrine. "A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. 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 in original; internal quotation marks omitted.) Id., 159-60, citing Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985).
"There is a paucity of law construing either § 31-51x or § 31-51z . . ." Schmidt v. Southern New England Telephone Co., supra, Superior Court, Docket No. CV 06 4005514. The only Superior Court decision to consider whether §§ 31-51x and 31-51z provide statutory remedies for termination of employment is Schmidt v. Southern New England Telephone Co., supra, Superior Court, Docket No. CV 06 4005514. In considering the previous case law, the court noted that in Verrilli v. Sikorsky Aircraft Corp., Superior Court, judicial district of Fairfield, Docket No. CV 01 0380937 (July 6, 2004, Levin, J.) ( 37 Conn. L. Rptr. 448), that court found that although, "the [plaintiff's] wrongful discharge claim purports to be based on General Statutes § 31-51[x], that statute does not prohibit the discharge of an employee." (Internal quotation marks omitted.) "[T]his single comment from an unpublished opinion is not an incontrovertible statement of Connecticut law, [however,] it is persuasive in the absence of any law to the contrary." Schmidt v. Southern New England Telephone Co., supra, Superior Court, Docket No. CV 06 4005514.
"On the other hand, before Poulos v. Pfizer, Inc. was appealed to the Supreme Court, the trial court in Poulos v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. CV 91 520719 (June 24, 1992, Hurley, J.) ( 6 Conn. L. Rptr. 545) ( 7 C.S.C.R. 799), granted the defendant's motion to strike the plaintiff's wrongful discharge claim because he had a statutory remedy under § 31-51x and § 31-51z . . . the Supreme Court did not address this issue on appeal. The trial court noted that `the plaintiff . . . is seeking damages and reinstatement under [§ ]31-51z,' indicating that damages for termination are recoverable under § 31-51z itself, with the cause of action arising from the act of mandatory drug testing . . . This comports with the court's observation in Verrilli v. Sikorsky Aircraft Corp., supra, 37 Conn. L. Rptr. 448, that § 31-51x does not provide a cause of action based on wrongful termination."
In considering the above authorities, the court in Schmidt found that "[a]lthough logic may lead to the conclusion that the improper termination of an employee ought to be a statutory cause of action, it is not included within the language of . . . § 31-51x and, instead, appears to be the basis for a remedy under . . . § 31-51z." Id. The court found that § 31-51x itself does not provide a statutory cause of action for wrongful termination. The court, however, concluded that the plaintiff's injuries resulting from wrongful termination "may be recovered as damages in the suit brought under § 31-51z for the violation of § 31-51x." Id.
Like the plaintiff in Schmidt, the plaintiff in the present case is bringing a common-law cause of action for wrongful termination on the basis of an alleged violation of § 31-51x. As the court in Schmidt stated, § 31-51x does not provide a cause of action for wrongful termination. Section 31-51z does, however, allow him to bring an action based on an alleged violation of § 31-51x against his employer and recover damages for wrongful termination. For this reason, a statutory remedy exists for the plaintiff under § 31-51z and the defendants are entitled to judgment as a matter of law. The defendants' motion for summary judgment is therefore granted as to count five.
Count Six: Intentional Infliction of Emotional Distress
In count six of the complaint, the plaintiff brings a claim of intentional infliction of emotional distress against the defendants. The defendants argue they are entitled to summary judgment as to count six because they did not engage in conduct that was extreme and outrageous. The plaintiff does not address this argument in their memorandum of law in opposition to the defendants' motion. The court need not reach the question of whether the alleged conduct, as a matter of law, was extreme and outrageous, because the plaintiff's claim is time barred.
"The applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years" pursuant to General Statutes § 52-577. DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 873, 829 A.2d 38 (2003). As stated above, the plaintiff initiated the present action more than three years after the plaintiff submitted to the drug test and his employment was terminated. The plaintiff's claim is therefore time barred pursuant to § 52-577 and the defendant is entitled to judgment as a matter of law. The defendants' motion for summary judgment is therefore granted as to count six.
The defendants' motion for summary judgment is GRANTED as to counts one, two, five and six of the plaintiff's complaint.