Opinion
No. NNH CV 09 4037507 S
August 3, 2010
MEMORANDUM OF DECISION RE MOTION TO REARGUE (#115)
Von Roll Isola USA, Inc., the defendant, filed a motion to reargue on May 4, 2010, which the plaintiff objected to on May 17, 2010. The defendant argues that the court's April 15, 2010 denial of its motion to strike count three of Laura Trimboli's, the plaintiff's amended complaint was improper. For the following reasons, the court denies the defendant's motion.
It is well established that although there is a recognized cause of action for wrongful discharge in violation of an important public policy; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980); it is only available in cases in which there are no other available remedies. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985). In its April 15, 2010 decision, the court agreed with the plaintiff that her common-law wrongful discharge claim is predicated on the public policies embodied in §§ 31-49 and 31-370, rather than the public policy embodied in § 31-51m. The court stated: "A fair reading of the plaintiff's complaint is that her common-law wrongful discharge claim is predicated upon oral and written complaints to internal management in regard to the health and safety violations that she observed in her capacity as Safety Officer prior to her ultimately filing a complaint with OSHA . . . Given that § 31-49 reflects a broad legislative concern for the physical welfare and safety of Connecticut employees, and that one Superior Court decision found legally sufficient a claim for wrongful discharge when the plaintiffs sought to protect the rights of subordinates and co-workers, the court finds that the plaintiff's third count survives the defendant's motion to strike. The plaintiff has no statutory remedy under § 31-49 and thus, is entitled to pursue her common-law wrongful discharge claim."
The defendant argues, however, that § 31-51q provides a statutory remedy for her termination for speaking internally about safety concerns, which precludes her common-law wrongful discharge claim. Violation of § 31-51q is alleged in count two of the plaintiff's complaint and states, in relevant part: "Any employer . . . 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."
Decisions of the Superior Court have disagreed with the defendant's position and denied motions to strike a plaintiff's common-law wrongful discharge claim when a defendant sought dismissal on the basis that § 31-51q provided a statutory remedy. In Mirto v. Laidlaw Transit, Inc., Superior Court, judicial district of New Haven, Docket No. 334231 (April 21, 1993, Stanley, J.) ( 9 Conn. L. Rptr. 19, 20-21), the court found that the plaintiff's common-law wrongful discharge claim, based on the provision of safe and adequate transportation contained in § 10-220, was not precluded by the plaintiff's § 31-51q claim, which was based upon the preservation of free speech. In denying the defendant's motion to strike, the court reasoned that these counts were based on differing public policy initiatives. See id., 21. "[T]he legislature could have expressed, in some appropriate manner, that General Statutes § 31-51q abrogates or modified the common law rule of wrongful discharge, and chose not to . . . [I]n the absence of legislation limiting the remedy the plaintiff should be free to explore these two theories of his claim." Id., 21.
Similarly in MacLean v. School Sisters of Notre Dame, Superior Court, judicial district of Fairfield, Docket No. CV 91 0289572 (March 31, 1992, Lewis, J.) ( 7 C.S.C.R. 471) [ 6 Conn. L. Rptr. 687], the plaintiff alleged common-law wrongful discharge, based upon the public policy of preserving health and safety with respect to the use of drugs and to safeguard the health and safety of patients. She also alleged in separate counts, violation of § 31-51m and § 31-51q. See id., 472. The defendant moved to strike the common-law wrongful discharge claim on the theory that it was preempted by and duplicated the plaintiff's claims alleging violations of § 31-51m and § 31-51q. The court disagreed and found that the plaintiff's common-law wrongful discharge claim was viable because it was based upon the public policy of preserving the health and safety of those who use drugs and of patients. The public policy violations for the counts alleging violation of § 31-51m and § 31-51q, however, were based on protection of employees from retaliation and preserving free speech, respectively.
In the present case, the plaintiff's common-law wrongful discharge claim is based upon the public policy of preserving the physical welfare and safety of Connecticut employees, while the plaintiff's § 31-51q claim is based upon the public policy of preserving free speech. As a result, both claims are viable and the defendant's motion to reargue is hereby denied.