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recognizing that “[i]n Parsons, the court determined that the public policy expressed by the provisions of General Statute § 31–49 ‘gives a Connecticut employee a cause of action for wrongful discharge against an employer ... if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm ...’ Parsons, 243 Conn. at 80, 700 A.2d 655.”
Summary of this case from Lopez v. Burris Logistics Co.Opinion
No. CV-04-0084313S
August 2, 2004
RULING ON AMENDED MOTION TO STRIKE (#107)
This suit was brought by four women, Denise D. Balog, Lori M. Alcan, Racheal M. Jankelson and Marilyn Failla (the plaintiffs), who were employed as waitresses at Il Palio Restaurant in Shelton, Connecticut between July 2001 and various dates in 2002. The defendants are Shelton Restaurant, LLC, d/b/a Il Palio Restaurant, Eric Sierra and Amy Sierra (the defendants). The plaintiffs allege, among other things, that they "witnessed and were subjected to a continuous sexually hostile environment at Defendants' restaurant." (Complaint, ¶ 42.) More specifically, they allege that on various dates in 2001 and 2002, the defendant Eric Sierra, subjected them to sexual harassment and that the defendant Amy Sierra is liable for his acts as the managing agent of Shelton Restaurant, LLC. ( Id., ¶¶ 19, 21, 22, 24, 26, 27, 29, 30, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44.)
The defendants have moved to strike the complaint in its entirety on the ground of misjoinder of plaintiffs. Alternatively, they have moved to strike counts two (violation of the Connecticut Fair Employment Practices Act (CFEPA) by Eric Sierra), three (violation of the CFEPA by Amy Sierra), seven (violation of General Statutes § 31-49 by all defendants) and thirteen (violation of the implied covenant of good faith and fair dealings by all defendants). The court will dismiss these alternative grounds in order.
I.
A motion to strike is the "exclusive remedy for misjoinder of parties." McCart v. Shelton, 81 Conn.App. 58, 61, 837 A.2d 872 (2004). "[A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000); see also Practice Book § 10-39. "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Citation omitted.) Murillo v. Seymour Ambulance Association, Inc., CT Page 11927-bd 264 Conn. 474, 476, 823 A.2d 1202 (2003). The court is required to read the allegations of the complaint broadly. Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not. See Doe v. Yale University, supra, 252 Conn. 667; Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
II.
The defendants maintain that each plaintiff has a separate and distinct cause of action and cannot join as plaintiffs in this case. The sole authority for the defendants' argument is Zahedi v. Envirotest Systems, Superior Court, Judicial District of New London, docket no. 552215 (Feb. 28, 2000, Corradino, J.) ( 26 Conn.L.Rptr. 509). This court disagrees with the restrictive approach taken by the Zahedi court and is not persuaded by its analysis.
In Zahedi, three plaintiffs brought an action against Envirotest Systems in four counts alleging intentional infliction of emotional distress and violations of the CFEPA, specifically General Statutes §§ CT Page 11927-bm 46a-60(a)(1), 46a-60(a)(4) and 46a-60(a)(8) based on actions of employees of Envirotest. Judge Corradino concluded that each plaintiff alleged "facially unrelated disparate acts of oppressive and discriminatory behavior which occurred around the same time and were perpetrated by the same individuals" and failed to specifically allege that the "perpetrators were pursuing a company plan or policy of discriminatory conduct by the defendant company or even that the discriminatory acts were evidence of such a policy." He refused to read the complaint broadly and draw inferences favorable to the plaintiffs because he concluded that the "necessity for exact pleading in this area is great."
"All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise . . ." General Statutes § 52-104; Practice Book § 9-4. The joinder of plaintiffs permitted by the statute and practice book is a form of permissive joinder. The pertinent language, "arising out of the same transaction or series of transactions," also appears in General Statutes § 52-97(7) and Practice Book § 10-21(7), which govern permissive joinder of causes of action. The court may look to cases interpreting these provisions and their predecessors to discern the meaning of the quoted language.
Different causes of action are properly joined in one complaint "if both arose out of the same transaction, or if, while one arose out of one transaction and the other out of another, both these transactions were `connected with the same subject of action.'" Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 A. 76 (1893). The purpose of joinder is to "enable parties to settle all their controversies in a single action." Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948). "The dominant idea is to permit joinder of causes of action . . . where there is some substantial unity . . ." Ripley v. Rodgers, 213 S.C. 541, 50 S.E.2d 575, 576 (1948), cited in Goggins v. Fawcett, 145 Conn. 709, 710, 711, 147 A.2d 187 (1958). Historically, the Connecticut Supreme Court has taken a liberal approach to permissive joinder. See Goggins v. Fawcett, supra, 145 Conn. 710; Craft Refrigerating CT Page 11927-be Machine Co. v. Quinnipiac Brewing Co., supra, 63 Conn. 561. See Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 713, 125 A.2d 488 (1956) (where the court explained the Craft holding, stating that the "Practice Act [governing joinder of causes of action] is to be favorably and liberally construed as a remedial statute"). Permissive joinder of closely related occurrences is also allowed in order to serve the commonsense purposes of "judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action . . ." Jackson v. Conland, 171 Conn. 161, 167, 368 A.2d 3 (1976).
For example, in a case decided only a few years after the 1879 enactment of the predecessor to General Statutes § 52-97, where the owner of a cemetery sought to enlarge it by taking several pieces of land owned by different persons who objected to being joined as defendants, the Supreme Court deemed the joinder appropriate, stating: "we think that it is in harmony with our practice . . . and with the spirit of the Practice Act, and that it promotes speedy, complete, and inexpensive justice, without placing any obstruction in the way of any defendant in protecting his rights. Each carries his own burden only; he is not made to carry that of any of his associates. Therefore the complaint, so far forth as this objection is concerned, is sufficient." Evergreen Cemetery Association v. Beecher, 53 Conn. 551, 552, 5 A. 353 (1886).
The gravamen of each plaintiff's claims against the defendants is the existence of a hostile work environment during a specific period of time.
To establish a claim of hostile work environment, "the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) . . ."
(Internal quotation marks omitted.) Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). "[I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ." (Citations omitted; internal quotation marks omitted.) Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998).
Brittell v. Department of Correction, 247 Conn. 148, 166-67, 717 A.2d 1254 (1998).
In looking at all the circumstances, relevant evidence includes "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. CT Page 11927-bf The effect on the employee's psychological wellbeing is, of course, relevant . . ." Harris v. Forklift Systems, Inc., 510 U.S. 17, 22-23, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Because a plaintiff claiming a sexually hostile environment must prove that the sexual harassment was severe and pervasive, courts permit evidence of the existence of a number or series of adverse conditions because the effect of such "adverse conditions in the workplace is cumulative." Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996). Indeed, one measure of a hostile work environment is "when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive." (Internal quotation marks omitted.) Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000).
In interpreting the CFEPA, Connecticut courts look to federal caselaw interpreting Title VII of the Civil Rights Act. Brittel v. Department of Correction, supra, 247 Conn. 164.
The complaint in this case alleges that Eric Sierra committed a number of sexually suggestive and sexually inappropriate acts, similar in nature, against each plaintiff. (Complaint, ¶¶ 26, 27, 29, 30, 34, 35, 36, 37, 38, 39.) If each plaintiff in this case brought a separate case against the defendants, there is little doubt that she would be able to offer evidence of the defendant Eric Sierra's conduct toward her co-workers in order to meet her burden of demonstrating a severe and pervasive sexually hostile environment. Thus, reasons of judicial economy alone strongly support the conclusion that the plaintiffs are properly joined as parties to this action.
Although the events alleged in the complaint occurred over a period of time, there is substantial unity to all the plaintiffs' claims and they are connected to the same subject of action. The complaint alleges facts that describe a common wrongdoer involved in a pattern of discriminatory conduct. The claims of all the plaintiffs involve common questions of fact. Fairfield Lumber Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884 (1952). Furthermore, the plaintiffs have alleged that they each witnessed sexually inappropriate conduct at the workplace, (Complaint, ¶¶ 42, 43, 44), and rely on those allegations not only for their claims of discrimination but also for their claim of intentional infliction of emotional distress. It would be impossible, if the claims were tried separately, to avoid evidence of the interrelated claims made against the defendants because of the nature of the work place and the apparent close proximity in which all parties worked. See Benton v. Simpson, 78 Conn.App. 746, 754-55, 829 A.2d 68 (2003). For all these reasons, the court concludes that there is no misjoinder of parties in this case and denies the motion to strike the complaint on that ground.
III. CT Page 11927-bg
The defendants have moved to strike counts two and three. In count two, the plaintiffs allege that Eric Sierra individually has committed certain violations of General Statutes §§ 46a-60(a)(1), 46-60(a)(4), 46-60(a)(8), and 46-60(a)(5). In count three, the plaintiffs allege that Amy Sierra also violated certain provisions of the CFEPA. Because these counts allege multiple statutory causes of action in separate paragraphs, the court will look at each claimed statutory violation to determine if it is sufficiently alleged. Donovan v. Davis, 85 Conn. 394, 397, 82 A. 1025 (1912) (an individual paragraph in a complaint may be subject to a motion to strike when it attempts to state a separate cause of action).
A.
In paragraphs 21 and 22, the plaintiffs have alleged, in a conclusory manner, that Eric Sierra and Amy Sierra, respectively, each "owns controls and so dominates Il Palio such that it is [his/her] alter ego." In paragraphs 57 and 58 of count two and count three, the plaintiffs have described Eric Sierra and Amy Sierra, respectively, as their "effective employer" and have alleged that each defendant discriminated against them and terminated them in violation of the provisions of General Statutes § 46a-60(a)(1). In paragraph 60 of count two, the plaintiffs have alleged that Eric Sierra, as their "effective employer," sexually harassed them in violation of General Statutes § 46a-60(a)(8). Both these subsections of General Statutes § 46a-60(a) impose liability only on employers.
The defendants maintain that the plaintiffs were employed by Shelton Restaurants, LLC, which operated Il Palio (Complaint ¶ 19), and not by either Eric or Amy Sierra. The defendants maintain further that the conclusory allegations of the complaint are insufficient to pierce the corporate veil and that as individuals, Eric Sierra and Amy Sierra, cannot be held liable for any violation of § 46a-60(a)(1) and, by implication, § 46a-60(a)(8), pursuant to Perodeau v. Hartford, 259 Conn. 729, 737, 792 A.2d 752 (2002). The plaintiffs respond that they do not seek to pierce the corporate veil, but rather seek to hold "Eric and Amy Sierra liable for their own individual acts." (Plaintiffs' Memorandum in Opposition to Defendants' Amended Motion to Strike, pp. 8-9.)
There are two ways to pierce the corporate veil: the instrumentality test and the identity test. "The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff[s'] legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Citations omitted; internal quotation marks omitted.) Mountview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., 76 Conn.App. 627, 632-34, 820 A.2d 1105 (2003).
"The identity rule has been stated as follows: If a plaintiff can show CT Page 11927-bn that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." (Internal quotation marks omitted, internal citations omitted.) KLM Industries, Inc. v. Tylutki, 75 Conn.App. 27, 32-33, 815 A.2d 688 (2003). "Although the identity rule primarily applies to prevent injustice where two corporations are controlled as one enterprise it has been applied to hold an individual liable for a corporate obligation." (Internal citations omitted.) Id., n. 3.
Perodeau prohibits holding an individual employee liable for a violation of § 46a-60(a)(1) because the statute, by its terms, restricts liability in that subsection to "employers." Perodeau v. Hartford, supra, 259 Conn. 736-37. Its reasoning applies equally to an alleged violation of § 46a-60(a)(8). Bolick v. Alea Group Holdings, Ltd., 278 F.Sup.2d 278, 281 (D.Conn. 2003). Perodeau does not, however, address the CT Page 11927-bh situation in this case in which it is maintained that Eric Sierra and Amy Sierra acted as the plaintiffs' employers within the meaning of the CFEPA. Under the Act, an employer is defined, in pertinent part, as "any person or employer with three or more persons in such person's or employer's employ," General Statutes § 46a-51(10), and a "person" is defined as "one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers . . ." General Statutes § 46a-51(14). There may be circumstances where the factual allegations of a complaint can support the conclusion that an individual, who was not a coemployee, acted as an employer within the meaning of CFEPA sufficient to impose § 46a-60(a)(1) liability. Cf. Butler v. Skidmore v. Hartford Technical Institute, Inc., 243 Conn. 454, 462-63, 704 A.2d 222 (1997) (where the court concluded that even when there is a corporate employer an individual could be held personally liable as an employer pursuant to General Statutes § 31-72 which it interpreted to encompass "an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages . . ."); Petronella v. Venture Partners, Ltd., 60 Conn.App. 205, 758 A.2d 869 (2000) (applying Butler). Here, however, the non-conclusory allegations of the complaint are insufficient to state a cause of action against Eric Sierra and Amy Sierra as employers within the meaning of § 46a-60(a)(1) or (a)(8). Accordingly, the court strikes paragraphs 57 and 58 of counts two and three seeking to allege a cause of action under § 46a-60(a)(1) against Eric Sierra and Amy Sierra, respectively, and paragraph 60 of count two seeking to allege a cause of action under § 46a-60(a)(8) against Eric Sierra.
Plaintiffs point to the allegation contained in paragraph 43.B that "Eric Sierra indicated in a meeting with some of his female wait staff that Il Palio was his house" as sufficient to state a cause of action against him as an employer. Standing alone, this allegation is insufficient. See note 4, infra. The other allegations against Eric Sierra and Amy Sierra are conclusory.
B.
In paragraph 59 of counts two and three, the plaintiffs have alleged that the defendants Eric Sierra and Amy Sierra, respectively, terminated each of them in part in violation of General Statutes § 46a-60(a)(4) which declares it discriminatory "[f]or any person . . . to discharge . . . or otherwise discriminate against any person because such person has opposed any discriminatory employment practice . . ." In paragraph 62 of count two and paragraph 61 of count three, the plaintiffs have alleged that the defendants Eric Sierra and Amy Sierra, respectively, violated the provisions of § 46a-60(a)(5) which declares it discriminatory "[f]or 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 . . ."
Unlike subsection (a)(1) of § 46-60, subsections (a)(4) and (a)(5) clearly impose liability on "any person." See Perodeau v. Hartford, CT Page 11927-bi supra, 259 Conn. 737-38. Indeed, 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. Thus, these subsections are not controlled by Perodeau. See Bolick v. Alea Group Holdings, Ltd., supra, 278 F.Sup.2d 281. The defendants have not presented any grounds other than their claim that neither Eric Sierra nor Amy Sierra is an employer within the meaning of CFEPA to strike these claims for statutory liability set forth in the second and third counts. Accordingly, the court refuses to strike these paragraphs which allege alternate grounds for holding the individual defendants liable under § 46a-60(a).
IV.
The defendants have moved to strike count seven of the complaint which alleges violations of General Statutes § 31-49. The defendants maintain that this statute does not create an independent private cause of action, relying on certain Superior Court decisions which have so held. See Karanda v. Pratt Whitney, Superior Court, Judicial District of Hartford-New Britain, docket no. 582025, 24 Conn.L.Rptr. 521 (May 10, 1999, Hale, J.T.R.); Swaney v. Pfizer, Inc., Superior Court, Judicial District of New London, docket no. 541984, 24 Conn.L.Rptr. 183 (March 17, 1999, Mihalakos, J.). The plaintiffs maintain that a broad reading of Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), and Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 494 A.2d 555 (1985), permits an independent cause of action for violations of § 31-49. The plaintiffs are mistaken.
In Parsons, the court determined that the public policy expressed by the provisions of General Statute § 31-49 "gives a Connecticut employee a cause of action for wrongful discharge against an employer . . . if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm . . ." Parsons v. United Technologies, supra, 243 Conn. 80. Parsons did not recognize, either explicitly or implicitly, an independent cause of action grounded in a violation of § 31-49. In Perille, the court rejected a claim that § 31-49 provides a direct cause of action against an employer for a breach of statutory duty when there is an injury alleged that is compensable under the Workers' Compensation Act. Perille v. Raybestos-Manhattan-Europe, Inc., supra, 196 Conn. 535. The Perille court recognized that the "Workers' Compensation Act and § 31-49 thus coexist in our statutory law, each to apply where appropriate." Id., 196 Conn. 543. In his concurrence, Justice Shea explained that § 31-49 applied to two discrete areas: (1) to help establish civil liability, by "modifying some of the obsolete doctrines of the common law with respect to work-related injuries," where there is a master-servant relationship CT Page 11927-bj but the worker is excluded from coverage under the Workers' Compensation Act and (2) as a standard for workplace safety which the labor commissioner can enforce administratively through the provisions of General Statutes § 31-50. Id., 196 Conn. 544-45. The common theme of both Parsons and Perrille is that the public policy embodied in § 31-49 sets a standard by which workplace safety may be measured that can be used to assess employer conduct in circumstances where an employer may be found liable through another mechanism, such as a wrongful discharge claim, a common-law claim for workplace injury not covered by the Workers' Compensation Act or administrative enforcement by the labor commissioner.
The allegations of count seven do not fit any of the limited circumstances to which General Statutes § 31-49 has been held applicable. The statute itself does not provide an independent cause of action. See, e.g., Shackler v. Pfizer, Inc., Superior Court, Judicial District of New London, docket No. 565313 (Dec. 1, 2003, Hurley, J.T.R.); Robinson v. Connecticut Rental Centers, Superior Court, Judicial District of Middlesex, docket no. 087536 (Aug. 7, 2000, Gordon, J.); Drolette v. Harborside Healthcare Corp., Superior Court, Judicial District of New Haven at Meriden, docket no. 266417 (Aug. 9, 1999, Beach, J.); Swaney v. Pfizer, Inc., supra.
Plaintiffs rely on Brunelle v. Reuters Analytics, Inc., Superior Court, Judicial District of Hartford, docket no. 566808, 21 Conn.L.Rptr. 365 (Jan. 29, 1998, Rittenband, J.), stating that it recognized a cause of action under General Statutes § 31-49. The same argument was made and rejected in Swaney v. Pfizer, Inc., Superior Court, Judicial District of New London, docket no. 541984 (March 17, 1999, Mihalakos, J.). As Judge Mihalakos wrote: "[T]he plaintiff's reliance on Brunelle . . . is misplaced. The plaintiff in Brunelle, like the plaintiff in Parsons, brought an action against his former employer for wrongful discharge . . . [ Brunelle] neither explicitly or implicitly supports the plaintiff's cause of action."
Accordingly, the motion to strike count seven is granted.
V.
The defendants have moved to strike count thirteen of the complaint. In this count, the plaintiffs allege that the defendants retaliated against them by terminating them for reporting certain criminal activity to the police in violation of the implied covenant of good faith and fair dealing of their contracts of employment. The defendants maintain that the allegations are insufficient as a matter of law because the plaintiffs have other statutory remedies available to them to pursue their claims of a breach of public policy as alleged in this count. Defendants' Amended Memorandum in Support of Motion to Strike, pp. 13-14. The court agrees that the allegations of count thirteen are insufficient as a matter of law.
As employees at-will, the plaintiffs can only maintain a claim for the breach of an implied covenant of good faith and fair dealing if they allege facts sufficient to establish the violation of "any explicit statutory or constitutional provision . . . [or] . . . any judicially conceived notion of public policy. In the absence of a public policy violation, there is no breach of the implied covenant of good faith and CT Page 11927-bk fair dealing." (Internal quotation marks omitted; citations omitted.) Carnemolla v. Walsh, 75 Conn.App. 319, 329, 815 A.2d 1251, cert. denied, 263 Conn. 913 (2003). The public policy exception to the at-will employment doctrine is very narrow. Cimochowski v. Hartford Public Schools, 261 Conn. 287, 306, 802 A.2d 800 (2002); Thibodeau v. Design Group Architects, LLC, 260 Conn. 691, 700, 802 A.2d 731 (2002), and cases cited therein. Employees have "the burden of proving a violation of important public policy." (Emphasis in original.) Cimochowski v. Hartford Public Schools, supra, 261 Conn. 306.
In count thirteen, the plaintiffs allege that "public policy protects one from retaliation for reporting and/or assisting the police in the investigation of criminal activity" and that "such public policy is illustrated by statutes including . . . Conn. Gen. Stat. sec. 54-85(b) [sic], which prohibits an employer from retaliating against an employee for participating in certain police investigations." (Complaint, ¶¶ 57, 58.) General Statutes § 54-85b provides protection from certain adverse employment action for employees who fall into certain specific categories: "(1) the employee obeys a legal subpoena to appear before any court of this state as a witness in any criminal proceeding, (2) the employee attends a court proceeding or participates in a police investigation related to a criminal case in which the employee is a victim of crime, (3) a restraining order has been issued on the employee's behalf . . . or (4) a protective order has been issued on the employee's behalf by a court of this state or a court of another state . . ." The plaintiffs do not fall within any of these categories and they do not cite any other statutory or constitutional provisions to support the existence of the public policy which they allege in count thirteen.
The plaintiffs concede that they are not victims within the meaning of the statute. (Plaintiffs' Memorandum in Opposition to Defendants' Amended Motion to Strike, p. 17.) The other portions of the statute are inapplicable to the facts pleaded in their complaint.
The plaintiffs have not alleged a violation of General Statutes § 31-51m which provides employees protection from adverse employment consequences for reporting a violation or a suspected violation of state law to a public body nor do they rely on that statute. The court expresses no opinion as to the applicability of General Statutes § 31-51m to the facts of this case.
In the absence of an allegation of a violation of an explicit statutory or constitutional provision, the sufficiency of count thirteen "depends on whether [the plaintiffs] have alleged that [their] termination contravened any judicially conceived notion of public policy." Iosa v. Gentiva Health Services, Inc., 299 F.Sup.2d 29, 36 (D.Conn. 2004). The plaintiffs have not provided the court with any Connecticut authority holding that the discharge of an at-will employee who has reported criminal activity or assisted in the investigation of criminal activity is improper because it violates an important public policy. Moreover, the Supreme Court's conservative approach to expansion of the public policy exception in analogous cases suggests that it would be unlikely to accept such a broad ground as sufficiently important to warrant another exception. See Burnham v. Karl Gelb, P.C., 252 Conn. 153, 160-61, 745 A.2d 178 (2000) (holding that an employee who reported defendants' unsafe dental practices to a dental association was not within the CT Page 11927-bl purview of the state whistleblower statute, General Statutes § 31-51m, and refusing to extend its reach to the facts of her case); Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986) (holding that a dismissal based on a false but negligently made accusation of criminal conduct does not violate any important public policy).
Finally, the plaintiffs have alleged in count fourteen that they were wrongfully discharged in violation of General Statutes § 31-51q for their communications with the Shelton Police Department concerning the activities they witnessed at Il Palio. (Complaint, ¶¶ 56, 58.) The defendants have not moved to strike count fourteen. Section 31-51q appears to provide an adequate statutory remedy for the plaintiffs' claims of retaliation based on making reports of criminal activity. When there is an adequate statutory remedy, plaintiffs are precluded from bringing a common-law claim of wrongful discharge based on the implied covenant of good faith and fair dealing. Burnham v. Karl Gelb, P.C., supra, 252 Conn. 162. Thus, for all the reasons stated above, the motion to strike count thirteen is granted.
VI.
In conclusion, the court rules as follows on the defendants' motion to strike:
(1) The motion to strike the entire complaint on the ground of misjoinder is denied.
(2) The motion to strike counts two and three in their entirety is denied. However, paragraphs 57 and 58 of count two, seeking to allege a cause of action against Eric Sierra for violating General Statutes § 46a-60(a)(1), are stricken. Paragraph 60 of count two, seeking to allege a cause of action against Eric Sierra for violating General Statutes § 46a-60(a)(8), is stricken. Paragraphs 57 and 58 of count three, seeking to allege a cause of action against Amy Sierra for violating General Statutes § 46a-60(a)(1), are stricken.
(3) The motion to strike count seven is granted.
(4) The motion to strike count thirteen is granted.
LINDA K. LAGER, JUDGE