Opinion
No. CV-04-0084647 S
February 24, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #119
This motion for summary judgment requires the court to decide whether (1) the defendant is entitled to summary judgment based on their claim that there are no issues of material fact with respect to count one (retaliation for commenting on matters of public concern in violation of General Statutes § 31-51q), count two (failure to provide a safe work environment in violation of General Statutes § 31-49), or count four (retaliation for utilizing workers' compensation in violation of General Statute § 31-290a); and (2) whether the court lacks the subject matter jurisdiction to consider count three (breach of the implied covenant and fair dealing), count Six (defamation), count nine (assault and battery), or count eleven (intentional infliction of emotional distress), because the plaintiff failed to exhaust his administrative remedies contained in the collective bargaining agreement to which he was a party as a union member. For the reasons more fully discussed below, the court dismisses for lack of subject matter jurisdiction counts three, six, nine, and eleven because the plaintiff failed to exhaust his administrative remedies. The court denies, however, the defendants' motion for summary judgment as to count one and count four because issues of material fact remain in dispute between the parties. Finally, the court grants summary judgment as to count two because the plaintiff is deemed to have abandoned that count.
FACTS
The plaintiff, Christopher Baricko, filed suit against the defendants alleging fourteen separate claims arising out of his employment with Milford between January 2001 and January 2004. Specifically, the plaintiff alleges that during his employment as a truck driver and laborer he became aware of various violations of state and federal law by Milford, including: the use of municipal employees to perform work for private third-parties without proper justification or authority; the compensation of Milford employees for illegitimate and unreported time away from work; the improper awarding of employment, promotions, work assignments, and overtime on the basis of favoritism; the improper awarding of third-party contracts on the basis of cronyism; the illegal dumping of hazardous waste into landfills; and the illegal diversion of material obtained with public funds to private purposes. The plaintiff alleges that at various times he notified his supervisor, Donald Marren, Milford's mayor, James Richetelli, Jr., and the director of Milford's public works department, Bruce Kolwicz, of these issues. The plaintiff subsequently made these same allegations public by publishing them to the news media.
The defendants include: (1) the City of Milford, (2) James Ritchetelli, Jr., as an individual and in his official capacity as the mayor of the city of Milford, (3) Donald F. Marren, as an individual and in his official capacity as a foreman for the city of Milford public works department, and (4) Bruce Kolwicz, as an individual and in his official capacity as the director for the city of Milford public works department.
These counts include: (1) retaliation for commenting on matters of public concern in violation of General Statutes § 31-51q; (2) failure to provide a safe work environment in violation of General Statutes § 31-49; (3) breach of the implied covenant and fair dealing; (4) retaliation for utilizing workers' compensation in violation of General Statute § 31-290a; (5) engaging in conduct substantially certain to cause physical injury; (6) defamation as to city of Milford; (7) false light; (8) defamation as to co-workers; (9) assault and battery; (10) negligent infliction of emotional distress; (11) intentional infliction of emotional distress; (12) negligent supervision and retention; (13) indemnification pursuant to General Statutes § 7-465; and (14) indemnification pursuant to General Statutes § 7-101a. Counts five, seven, eight, ten, and twelve were withdrawn by the plaintiff during short calendar on May 19, 2008. Counts thirteen and fourteen are not the subject of this motion for summary judgment.
The plaintiff additionally alleges that he was injured while moving a hose reel from a truck in 2001, which necessitated his filing a workers' compensation claim and being absent from work for approximately two weeks. In addition to this injury, the plaintiff also suffered an additional injury to his knee in April 2003, which was caused by the repetitive nature of his getting on and off of a garbage truck he had been working on at that time. He remained out of work and under workers' compensation during this time.
The plaintiff contends that because of the allegations of impropriety on the part of Milford and because he received workers' compensation after sustaining his injuries, that the defendants retaliated against him. Specifically, the plaintiff avers that: he was not given a pay raise to bring his compensation into line with the higher wages being earned by new employees hired to do the same jobs; he was assigned to inferior work with waste management when he returned to work from his recuperation in 2001; he was denied a fair and impartial test to become a heavy machine operator; his supervisors sat and watched him be physically assaulted by a coworker without preventing or breaking up the fight; he was assigned to an unsafe plow truck; and, he was denied overtime, even though he had medical clearance for the additional hours. The plaintiff claims that as a result of these adverse work conditions he suffered physical, emotional and mental injuries. Although the plaintiff quit his job, he maintains that he was constructively discharged through these actions.
The defendants deny these allegations, and filed a motion for summary judgment. The motion was supported by numerous exhibits. The plaintiff filed an objection to the motion, which was also supported by various exhibits. Although oral argument was originally heard on the motion on May 19, 2008, the court subsequently determined that an evidentiary hearing was necessary to resolve factual disputes related to the defendant's subject matter jurisdiction claims. See Baricko v. Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 04 0084647 (September 9, 2008, Tyma, J.) (Order #126.00).
On October 27, 2008, the court held a brief evidentiary hearing for the limited purpose of ascertaining whether the plaintiff was a union member, and, therefore, subject to a collective bargaining agreement. During that hearing, the court heard testimony from Milford's personnel director, John Boland, who testified that the plaintiff was a union member and a beneficiary of the collective bargaining agreement between Milford and Local 1566, Council 4 American Federation of State, County, and Municipal Employees, AFL-CIO. Additional evidence was submitted in the form of the plaintiff's pay-stubs, which denoted automatic deductions from his pay check to the union to pay his membership dues. The court found the evidence to be credible, and, accordingly, found that the plaintiff was a union member subject to the terms of the collective bargaining agreement.
DISCUSSION
Notwithstanding that the defendant filed a summary judgment motion, those issues implicating the court's subject matter jurisdiction are nevertheless reviewed under the standard governing a motion to dismiss. See, e.g., Bellman v. West Hartford, 96 Conn.App. 387, 392-93, 900 A.2d 82 (2006) (motion for summary judgment challenging court's subject matter jurisdiction properly treated by trial court as motion to dismiss). Moreover, "[o]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Simmons-Cook v. Bridgeport, 285 Conn. 657, 665 n. 7, 941 A.2d 291 (2008). Accordingly, the court begins by setting for the standard of review for a motion to dismiss and then addresses the defendants' challenges to the court's jurisdiction.
It is axiomatic that "[a] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Moreover, "[w]hen a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). To this end, "[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). Indeed, "[t]he burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
Furthermore, "[b]ecause the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). Indeed, "[i]t is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union." Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct, 513, 112 L.Ed.2d 525 (1990). Finally, it is observed that "[c]ollective bargaining agreement procedures are the exclusive remedy unless the parties expressly agree otherwise . . . [W]here nothing is said in the collective bargaining agreement about exclusivity, the agreement is considered to be the exclusive remedy." D'Agostino v. Housing Authority, 95 Conn.App. 834, 840, 898 A.2d 228 (2006).
"The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements." (Internal quotation marks omitted.) Labbe v. Pension Commission, 229 Conn. 801, 811-12, 643 A.2d 1268 (1994).
In ascertaining whether a "claim is subject to the grievance procedures of a collective bargaining agreement, the critical inquiry . . . is whether the tortious conduct is encompassed by the terms of the agreement." Sobczak v. Board of Education, 88 Conn.App. 99, 109, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005); accord Mendillo v. Board of Education, 246 Conn. 456, 109, 717 A.2d 1177 (1998) (grievance procedures must be exhausted if the underlying contract embraces the disputed matter). The court, therefore, begins by considering whether the plaintiff's claims of breach of the implied covenant and fair dealing, defamation, assault and battery, or intentional infliction of emotional distress come within the terms of the collective bargaining agreement.
The plaintiff was a party to a collective bargaining agreement through his union that provided a comprehensive grievance procedure for employees to utilize when challenging intolerable working conditions. Specifically, the plaintiff was a beneficiary of the agreement between Milford and Local 1566, Council 4 American Federation of State, County and Municipal Employees, AFL-CIO. Article VIII of the collective bargaining agreement, titled "Working Conditions," provides the broad policy statement that the union and Milford "acknowledge a mutual responsibility for improving public services, through the creation of improved employee morale and efficiency" and that "the parties shall encourage employees to perform on the job in a workmanlike manner." Similarly, the collective bargaining agreement specifically addresses workplace health and safety in Article XIII, work hours, including overtime procedures, in Article IX, and the guidelines related to seniority in Article III. Categorically, the agreement covered grievances relating to working conditions, the promotional process and overtime requests.
It is additionally noted that the collective bargaining agreement included a grievance procedure to address the issues raised by the plaintiff in this case. Article XII delineates the steps that an employee is to take to raise a grievance. First, a party pursuing a grievance is required to discuss his complaint with his foreman and then with his supervisor if the foreman does not adequately resolve the problem. Second, the employee and his union representative are required to submit the grievance in writing to the employee's supervisor, who, in turn, has a short period of time to respond in writing. Third, a written complaint is required to be filed with the department head, followed by a meeting between the department head, the employee, and the employee's union representative. The department head has just two days to respond in writing. Fourth, if the situation is still not resolved, the employee and his union representative are required to meet with the personnel director. Fifth, to the extent that a resolution is still not reached, the matter may be submitted to arbitration.
It is undisputed that the plaintiff did not file a grievance under the applicable collective bargaining agreement concerning any of his claims. The plaintiff, however, claims that he is not required to utilize the grievance procedure because such efforts would have been futile. "One of the limited exceptions to the exhaustion requirements arises when recourse to the administrative remedy would he demonstrably futile." Sobczak v. Board of Education, supra, 88 Conn.App. 104. "The mere possibility, or even likelihood, of an adverse decision does not render a remedy futile . . . "It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Internal quotation marks omitted.) Sobczak v. Bd. of Educ., supra, 88 Conn.App. 107; see also Neiman v. Yale University, 270 Conn. 244, 260, 851 A.2d 1165 (2004) ("[t]he mere possibility, or even likelihood, of an adverse decision does not render a remedy futile").
Indeed, the plaintiff does not dispute that he failed to utilize the grievance procedures provided for him, and instead argues that those procedures would have been futile. As further explained below, the court does not find this argument availing.
In this regard, the plaintiff states in his memorandum that "[n]o administrative process would remedy the defendants' assault of the plaintiff its retaliation against him, compensate him for the injuries the plaintiff suffered, both physical and mental." The plaintiff asserts that his claim of futility is demonstrated by the fact that he unsuccessfully sought the assistance of the union, the mayor and "outside agencies" in seeking redress for his complaints. The plaintiff has not come forward with any evidence to support his claim of futility. The defendants are not the union. To the extent that the plaintiff's union breached its duty to represent him in this matter, he has a cause of action against the union.
The court notes in this respect that in addition to the collective bargaining agreement to which the plaintiff was a party by virtue of his union membership, that he also had an administrative remedy available to him through the civil service commission. Thus, even if the union's collective bargaining agreement was futile, the plaintiff was still obligated to seek a remedy through the civil service commission's grievance procedure before bringing suit in this court. Article X of the Rules and Regulations of the Civil Service Commission of Milford likewise provide remedies to ensure that "municipal employees are treated fairly and equitably at all times." The plaintiff did not seek relief through this venue, and his claims fail for this reason as well.
Similarly, the plaintiff's argument that the futility of this grievance procedure is evidenced by the mayor's unwillingness to produce the result sought by the plaintiff is equally unavailing. The collective bargaining agreement provides for referral to a neutral arbitrator if the city and an employee are unable to reconcile their differences. Thus, because the mayor is not the final arbitrator, the fact that he did not countenance the remedy sought by the plaintiff is irrelevant to a determination of the grievance procedure's futility.
The defendants' motion to dismiss the common law tort and contract claims in count three (breach of the implied covenant and fair dealing), count six (defamation), count nine (assault and battery), and count eleven (intentional infliction of emotional distress) for is granted for reasons of subject matter jurisdiction. Those claims are based on conduct that is subject to the grievance procedure in the applicable collective bargaining agreement. The plaintiff admits that he failed to file a grievance and his claim of futility legally fails.
The court next considers whether the defendant is entitled to summary judgment with respect to count one (retaliation for commenting on matters of public concern in violation of General Statutes § 31-51q), count two (failure to provide a safe work environment in violation of General Statutes § 31-49), or count four (retaliation for utilizing workers' compensation in violation of General Statute § 31-290a). Unlike the common law claims brought by the plaintiff, General Statutes § 31-51bb eliminates the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 481-82, 628 A.2d 946 (1993) ("[a]n employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim"). Consequently, the court has jurisdiction to hear counts one, two, and four.
"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). In seeking summary judgment, "[t]he courts are in entire agreement that the moving party . . . has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Accordingly, the court first resolves whether there is a disputed material fact, and if there is not, then decides whether the defendant is entitled to judgment as a matter of law.
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
With respect to count one, alleging retaliation for commenting on matters of public concern in violation of General Statutes § 31-51q, the court concludes that summary judgment is not appropriate because material facts remain in dispute. While § 31-51q does protect an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including the right to freedom of expression, as guaranteed by the first amendment to the United States constitution, "[t]hose constitutional provisions 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 Cas. Co., 249 Conn. 766, 778, 734 A.2d 112 (1999) (holding that whether speech was motivated by public concern or for private advancement at work is question of fact). Pursuant to this analysis, "if it is determined that an employee spoke not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, the statement is not protected, and courts generally will not second guess the propriety of a personnel decision made by an employer allegedly in reaction to the employee's behavior." (Internal quotation marks omitted.) Daley v. Aetna Life Cas. Co., supra, 249 Conn. 781.
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."
Although the plaintiff contends that the defendants retaliated against him for speech that is protected under both the state and federal constitutions, he neither claims that the state constitution affords any greater protection than the federal constitution nor does he provide a separate analysis of his claim under the constitution of Connecticut. Accordingly, the court does not determine whether the state constitution affords greater protection in this regard and limits its review of his claims to analysis under the federal constitution. See State v. Batts, 281 Conn. 682, 690 n. 6, 916 A.2d 788, cert. denied. 128 S.Ct. 667, 169 L.Ed.2d 524 (2007); accord State v. Gonzalez, 278 Conn. 341, 347 n. 9, 898 A.2d 149 (2006); see also State v. Geisler, 222 Conn 672, 684-86, 610 A.2d 1225 (1992) (defendant must provide independent analysis under particular provision of state constitution).
In this case, the plaintiff maintains that he brought his allegations of public concern relating to certain of the defendant's acts and omissions to state and federal agencies, and that it was only after he had raised these concerns that he was suffered from intolerable working conditions. Accordingly, because the question of the plaintiff's motivation for speaking is a material fact that remains in dispute, the court denies the defendants' motion for summary judgment as to Milford.
Although it appears that count one is directed against all defendants, a claim under § 31-51q does not lie against the agents of an employer. See Maisano v. Congregation of Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden, J.) ("[b]y its plain terms, this statutory language only applies to employers, and does not contain a clause establishing liability for other parties"). Consequently, the defendants' motion for summary judgment is granted as to defendants Richetelli, Jr., Marren, and Kolwicz.
The defendants also argue, however, that summary judgment should enter as to count one claiming that the plaintiff cannot prove constrictive discharge, which is a necessary element of the § 31-51q in this case, because the plaintiff voluntarily resigned from his job while he was receiving workers' compensation in 2003. The court disagrees.
"Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily . . . Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign . . . Accordingly, [a] claim of constructive discharge must he supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." (Citations omitted; internal quotation marks omitted.) Brittell v. Department of Correction, 247 Conn. 148, 717 A.2d 1254 (1998). In this case, the parties dispute both the conditions under which the plaintiff felt compelled to resign and whether the defendants intentionally created the intolerable work atmosphere. The court, therefore, concludes there to be material factual disputes as to the question of constructive discharge which are inappropriate for summary judgment.
It is noted that the plaintiff pleads that his employers allowed fellow employers to physically assault him, to put him in situations that were likely to result in physical injury, as well as to vandalize his personal property.
The court next turns to count two, alleging failure to provide a safe work environment in violation of General Statutes § 31-49. The plaintiff conceded at oral argument that that statutory section does not create a private right of action. Therefore, summary judgment is granted on count two.
General Statutes § 31-49 provides: "It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his co-laborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master."
In count four, alleging retaliation for utilizing workers' compensation in violation of General Statute § 31-290a, the court concludes that summary judgment is not appropriate because material facts remain in dispute. "Claims of employment discrimination are evaluated under the burden shifting analysis set forth in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990) . . . Section 31-290a(a) prohibits an employer from discharging or otherwise discriminating against an employee because the employee had filed a claim for workers' compensation benefits or otherwise exercised her rights under the act . . . The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the fact-finder that she was the victim of discrimination either directly by persuading the [fact-finder] . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.) Moran v. Media News Group, Inc., 100 Conn.App. 485, 493-94, 918 A.2d 921 (2007).
General Statutes § 31-290a, entitled "Discharge or discrimination prohibited. Right of action," provides in relevant part "(a) 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."
"To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the [Workers' Compensation Act (act), General Statutes § 31-275 et seq.] and that the defendant discriminated against her for exercising that right . . . [T]he plaintiff must show a casual connection between exercising her rights under the act and the alleged discrimination she suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised her rights under the act . . . [T]o establish [a] prima facie case of discrimination, the plaintiff must first present sufficient evidence . . . that is, evidence sufficient to permit a rational trier of fact to find [1] that she engaged in protected [activity] . . . [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action . . ." (Citations omitted; internal quotation marks omitted.) Moran v. Media News Group, Inc., supra, 100 Conn.App. 494-95.
The defendants claim that the statute applies only to employers; that the plaintiff failed to make out a prima facie claim of discrimination; that there is no genuine issue of material fact that Milford had a legitimate, non-discriminatory reason for only offering the plaintiff two positions when he returned to full duty in January 2004; and there is no evidence that the plaintiff was constructively discharged.
The individual defendants motion for summary judgment on the fourth count is granted. Like the language in § 31-51q, the scope of the statute is expressly and clearly limited to employers. Therefore, the court will consider the remaining claims on the fourth count as they pertain to Milford only.
The pleadings and documents submitted by the plaintiff establish a prima facie case of discrimination. Also, as discussed, the court has found that there are material questions of fact as to whether the plaintiff was constructively discharged. Therefore, Milford's motion for summary judgment is denied on those grounds. As to the remaining issue, the court concludes that there are material issues of fact as to whether Milford had a legitimate, non-discriminatory reason for offering the plaintiff two positions when he returned to work in January 2004 after being out on workers' compensation. Milford claims that there were only two positions available; the position with the Sanitation Department that he held at the time of his work-related injury, which involved being on the garbage truck; and a position at the transfer station checking permits and sweeping the parking lot. The plaintiff has produced evidence that the Sanitation Department would have exposed him to the same repetitive trauma that caused his work-related injury in the first place, and that the transfer station position would also expose him to injury. Also, the plaintiff produced evidence that he was offered those jobs for purposes of humiliation, and to cause him to sustain a loss of pay and benefits. Accordingly, because material facts remain in dispute, the court denies the defendant's motion for summary judgment on count four against Milford.
CONCLUSION
For the reasons set for above, the court dismisses for lack of subject matter jurisdiction count three (breach of the implied covenant and fair dealing), count six (defamation), count nine (assault and battery), and count eleven (intentional infliction of emotional distress). The court grants summary judgment as to count two (failure to provide a safe work environment in violation of General Statutes § 31-49); though, the court denies the defendants' motion for summary judgment as to count four (retaliation for utilizing workers' compensation in violation of General Statute § 31-290a) only against Milford because material facts remain in dispute. With respect to count four (retaliation for utilizing workers' compensation in violation of General Statute § 31-290a), the court grants summary judgment as to defendants Richetelli, Jr., Marren, and Kolwicz because § 31-290a provides no right of action against individuals. Similarly, with respect to count one (retaliation for commenting on matters of public concern in violation of General Statutes § 31-51q), the court grants summary judgment as to defendants Richetelli, Jr., Marren, and Kolwicz because § 31-51q provides no right of action against individuals, though, denies summary judgment as to Milford because material facts remain in dispute.