Opinion
No. CV-05-4008150S
November 13, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (#119)
This is an action filed by plaintiffs, Jack Cygler and Derek Lavoie, former employees of the defendant, Klingberg Family Centers, Inc. ("Klingberg") claiming wrongful discharge from employment. The defendant has moved to strike counts one through eight of the plaintiffs' revised complaint. For the following reasons, the motion to strike is granted as to counts one through six. Counts seven and eight are dismissed for lack of subject matter jurisdiction.
I Factual Allegations and Procedural Background
On July 21, 2005, the plaintiffs, Jack Cygler and Derek Lavoie, filed an eight-count revised complaint against the defendant, Klingberg Family Centers, Inc. Therein, the plaintiffs allege the following facts. Klingberg, which operates a facility in Connecticut licensed by the Department of Children and Families for children ("DCF") in need, hired Cygler in 1999 and Lavoie in 2001. The plaintiffs, both employed as child development specialists, were given an employee handbook dated April 19, 1999. The handbook stated that Klingberg reserved the right to terminate its employees for unsatisfactory performance, misconduct, and/or criminal acts. The plaintiffs attempted to organize the Klingberg workforce and unionize. On the night of June 3, 2003, the plaintiffs were on duty when two minor residents left their bedrooms in the facility without authorization. Klingberg notified DCF about the incident. Klingberg assisted DCF in its investigation of the incident and provided DCF with information that was adverse to the plaintiffs. In addition, Klingberg conducted its own internal investigation of the incident. Klingberg concluded the defendants neglected their job responsibilities and terminated them despite the fact, plaintiffs allege, that it knew or should have known that the alleged incident did not occur or was not a result of neglect by the plaintiffs. On August 19, 2005, Klingberg filed a motion to strike all eight counts of the revised complaint. Specifically, Klingberg moves to strike counts one through three, breach of contract claims, on the ground that the plaintiffs fail to allege an employment contract of definite duration, and therefore, plaintiffs, as "at-will" employees, can be terminated without cause. Klingberg moves to strike count four, which alleges a breach of the implied covenant of good faith and fair dealing, on the ground that the plaintiffs have not alleged a violation of an important public policy. Klingberg moves to strike count five of the amended complaint, intentional infliction of emotional distress, on the ground that this count fails to set forth any extreme and outrageous acts by the defendant. Klingberg moves to strike count six, negligent infliction of emotional distress, on the ground that this count does not allege that Klingberg's conduct during the termination process was unreasonable. Klingberg moves to strike count seven on the ground that a common-law wrongful discharge claim is not appropriate as plaintiffs have a statutory remedy. Lastly, Klingberg moves to strike counts seven and eight, alleging wrongful discharge and violation of General Statutes § 31-51q, on the ground that they are preempted by §§ 7 and 8 of the National Labor Relations Act (NLRA). On November 9, 2005, the plaintiffs filed a memorandum of law in opposition to the defendant's motion to strike.
II Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any . . . 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). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
III Discussion 1. Breach of Contract Claims
In its memorandum of law in support of the motion to strike counts one, two and three, the defendant argues that the plaintiffs were at-will employees, and therefore are barred from bringing an action for breach of contract unless the termination violates an important public policy. The plaintiffs counter that the employee handbook created a contract that the defendant violated by terminating them "for reasons other than the causes as set forth in Section 602 of the defendant's Employee Handbook dated April 19, 1999" despite the fact that the plaintiffs "performed their jobs satisfactorily, did not engage in misconduct and did not engage in any criminal act." (Revised Complaint, ¶¶ 30, 31.)"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at-willgrants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). "[A]ll employer-employee relationships not governed by express contracts involve some type of implied contract of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working . . . It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied, contract between employer and employee." (Citations omitted; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999).
"Superior Courts have held [on numerous occasions] that contract claims based solely on the terms of an employee handbook must fail if the handbook has an effective disclaimer." Ruiz v. Dunbar Armored, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0404213 (July 19, 2005, Hiller, J.) ( 39 Conn. L. Rptr. 710). The plaintiff in Gaudio claimed his employee manual was a contract. Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 533. The manual did not "contain express contract language that definitively state[d] either that employees are at-will or that they may be terminated only for just cause." Id. The court stated: "In the absence of [such] language . . . the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact." (Internal quotation marks omitted.) Id. Further, the Gaudio court stated that it is proper for the jury to determine the intention of the parties. Id.
"[T]he mere providing of a personnel policy and procedure manual to an employee does not convert an at-will employee to a contract employee." Dubowsky v. New Britain General Hospital, Superior Court, judicial district of New Britain, No. CV 03 0522892 (April 13, 2006, Shapiro, J.). In order "to survive a motion to strike, the allegations must include . . . specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims she had with the defendant." Id.
a. Count One — Express Contract
An employee is classified as at-will when he or she is hired for an indefinite period of time. Burnham v. Karl Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). The plaintiffs' complaint does not allege that they were hired for a specified amount of time; for this reason, the employment relationship alleged is classified as at-will. However, it is possible for an employee handbook to create an express or implied contract that modifies the employee's original at-will status. Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 532. By stating that the handbook is not a contract, an employer can avoid having a handbook modify an employment relationship. Ruiz v. Dunbar Armored, Inc., supra, Superior Court, Docket No. CV 03 0404213. ( 39 Conn. L. Rptr. 710). The employee manual in Gaudio did not contain a disclaimer or language that precluded the employer from terminating the employees for reasons other than just cause. The Gaudio court stated that in the absence of specific "at-will language" the intention of the parties must be ascertained by the trier of fact.
In the present case, neither party alleges the handbook had a disclaimer or specific at-will language. However, to survive a motion to strike, the plaintiff must set forth factual allegations concerning the formation and terms of the express contract that the plaintiff claims they had with the defendant. Dubowsky v. New Britain General Hospital, supra, Superior Court, Docket No. CV 03 0522892. The handbook or manual must contain language from which an express promise not to terminate the plaintiffs except for cause can be identified. Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 536. An example of a properly pleaded employment contract claim is Russack-Baker v. Billings P. Learned Mission, Superior Court, judicial district of New London, Docket No. CV 0566008 (February 9, 2004, Hurley, J.T.R.), where the court denied the defendant's motion to strike because the plaintiff incorporated the applicable personnel policy in the complaint and cited to specific language which supported the allegation that there was an employment agreement. That personnel policy stated a specific procedure would be followed before an employee could be dismissed. On the other hand, in Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 352686 (June 18, 2001, Moran, J.), the defendant's motion to strike was granted because the plaintiff made the naked assertion that she was not an at-will employee. In Thompson, there were no allegations which suggested other than an employment agreement terminable at the will of either party. The plaintiff in that case failed to allege that the defendant made any definitive representations indicating an intent to enter into a contract or undertake immediate contractual obligations to her.
Here, the plaintiffs' revised complaint does not offer significant factual allegations about the formation and terms of an express agreement. In paragraph twenty-one, the plaintiffs allege that the handbook "created a contract between the plaintiffs and defendant." The only specific references to the handbook are in paragraph twenty-two, that Klingberg "reserved the right to terminate its employees for unsatisfactory performance, misconduct, and/or criminal acts, " and paragraph twenty-three, which states, "Defendant breached its contract with the plaintiffs when it terminated [them] for reasons other than the causes as set forth in Section 602 of . . . the Employee Handbook . . ." The plaintiffs have not incorporated the handbook by attaching it to the complaint or clarified what is contained in its Section 602. Although the plaintiffs do more than make a naked assertion as to the existence of an express contract, they do not plead sufficient facts demonstrating that the defendant agreed, either by words, conduct or action, to be bound by some form of actual contractual commitment. The relevant paragraphs in the revised complaint do not identify the terms of an express contract by which the parties agreed that plaintiffs were other than at-will employees. Plaintiff's assertions are nothing more than unsupported legal conclusions. See Rentz v. Cartwright, Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 0072318 (November 23, 2004, Foley, J.) ( 38 Conn. L. Rptr. 338). The plaintiffs fail to allege in their revised complaint that Klingberg agreed that their employment would not be terminated except in some specified manner. Plaintiffs argue that the handbook establishes an agreement whereby they were only to be terminated for "unsatisfactory performance, misconduct, and/or criminal acts." However, "[i]n order to form a binding contract there must be an offer and acceptance based on a mutual understanding by the parties." Lembo v. Schlesinger, 15 Conn.App. 150, 154, 543 A.2d 780 (1988). The plaintiffs fail to allege factual circumstances, including actual words, actions or conduct by the defendant, to support such a legal conclusion. "In order to survive a motion to strike . . . the plaintiff must allege that there was an actual contract commitment . . . evidenced by representations manifesting the (defendant's) present intent to undertake immediate contractual obligations to the plaintiff." Sidiropoulos v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03-0401830 (January 9, 2004, Wolven, J.). Plaintiffs do not assert any meeting of the minds as to the creation of a contract in the employee handbook limiting the grounds for termination to just cause. The reservation of rights phrase cited by the plaintiffs, "plucked out of context," is insufficient to establish a contractual promise. There must be a meeting of the minds of the parties. Christensen v. Bic Corporation, 18 Conn.App. 451, 458, 558 A.2d 273 (1989). Moreover, such language does not limit Klingberg's additional entitlement to terminate its employee at will. Because the plaintiffs' allegations regarding the terms and formation of the express contract lack sufficient detail, the defendant's motion to strike as to count one is granted.
b. Count Two — Implied Contract
"[I]n order to allege the existence of an implied contract between the parties, the plaintiff must allege facts that support her claim that the employer agreed, either by words or conduct, to undertake a contractual commitment to discharge the plaintiff only for good or just cause." (Emphasis added; internal quotation marks omitted.) Dubowsky v. New Britain General Hospital, supra, Superior Court, Docket No. CV 03 0522892. "A contract implied in fact, like an express contract, depends on actual agreement." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 2, 520 A.2d 217 (1987). The only difference between count one and two is that count two includes the naked assertion that the handbook "created an implied contract between the plaintiffs and the defendant." The plaintiffs do not allege that Klingberg indicated an intent to form a contract nor do the plaintiffs claim that the handbook implies anything other than an at-will employment relationship. Further, the allegation that in the handbook, Klingberg reserved the right to terminate its employees for unsatisfactory performance, misconduct, and/or criminal acts, as previously discussed with regard to count one, does not constitute a contractual commitment to discharge the plaintiff only for good or just cause. Accordingly, count two is also legally insufficient as alleged.
c. Count Three — Oral Contract
Count three does not introduce any additional facts beyond those set forth in the contractual claims in the first and second counts. The plaintiffs claim the employee handbook created an oral contract. This additional conclusory allegation, which cites no binding oral statements made on behalf of Klingberg or verbal communication between the parties, considered with the inadequacy of the pleadings discussed under the previous two counts, is insufficient to establish the existence of an oral contract.
2. Count Four — Breach of Covenant of Good Faith and Fair Dealing
In its memorandum of law in support of the motion to strike count four, the defendant argues that the implied covenant of good faith and fair dealing cannot be breached where the employment relationship is at-will in nature. Additionally, the defendant argues that the plaintiffs have not alleged their dismissal violated an important public policy that was violated. The plaintiffs have not addressed count four in their memorandum.
In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2 385 (1980), our Supreme Court recognized a common-law cause of action in tort for discharge of an at-will employee "if the former employee can prove a demonstrably improper reason for dismissal, a reason who impropriety is derived from some important public policy." Id., 475. However, the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception has been recognized. "In evaluating claims, [w]e look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997)." (Internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 798, 734 A.2d 112 (1999); accord Parsons v. United Technologies Corp., 243 Conn. 66, 76-77, 700 A.2d 655 (1997). In Morris v. Hartford Courant Company, 200 Conn. 676, 513 A.2d 66 (1986), the Supreme Court examined a wrongful discharge claim similar to the one plaintiffs assert. In Morris, the plaintiff claimed the employee had falsely charged the plaintiff with criminal conduct and negligently investigated the matter. Plaintiffs in this case claim they were falsely accused of neglecting children and violating Klingberg practices and policies after DCF and the defendant conducted investigations. The Morris court concluded, "[a] false but negligently made accusation of criminal conduct as a basis for dismissal is not a 'demonstrably improper reason for dismissal' and is not 'derived from some important violation of public policy.'" Id., 680.
"Where an employment contract is clearly terminable at-will . . . a party cannot ordinarily be deemed to lack good faith in exercising this right . . . Thus, absent a showing that the discharge involves an impropriety which contravenes some important public policy, an employee may not challenge a dismissal based upon an implied covenant of good faith and fair dealing." (Citation omitted.) Carbone v. Atlantic Richfield Co., 204 Conn. 460, 470-71, 528 A.2d 1137 (1987). "Although [our Supreme Court has] been willing to recognize . . . a claim for wrongful termination in appropriate cases, [the court] repeatedly ha[s] underscored [its] adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 700-01.
Count four is legally defective because the plaintiffs fail to allege an important and clearly articulated public policy that was violated by the defendants' termination. Furthermore, because the plaintiffs have not addressed this count in their memorandum, they have failed to articulate any such policy.
3. Count Five — Intentional Infliction of Emotional Distress
Count five of the amended complaint alleges a cause of action for intentional infliction of emotional distress. The defendant moves to strike this claim on the ground that the plaintiffs failed to state a proper cause of action for intentional infliction of emotional distress because they did not allege extreme and outrageous conduct by Klingberg. In their memorandum in opposition, the plaintiffs counter that the allegations in the complaint are sufficient to establish a claim of intentional infliction of emotional distress.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; . . . (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "All four elements must be pleaded in order to survive a motion to strike." Wargat v. New London Motors, Inc., Superior Court, judicial district of New London, Docket No. 528715 (August 30, 1994, Hurley, J.).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Citations omitted; internal quotation marks omitted.) Id., 210-11.
The defendant asserts that, as a matter of law, count five is insufficient because the plaintiffs did not set forth facts to support the allegation that Klingberg's actions were extreme and outrageous. In their revised complaint, the plaintiffs claim that three of Klingberg's actions were extreme and outrageous: notifying DCF of the alleged incident when they knew or should have known that child neglect did not occur, providing DCF with irrelevant information that was harmful to the plaintiffs, and falsely informing DCF that the plaintiffs violated Klingberg's written policies. The present case is similar to Elbert v. Connecticut Yankee Council, Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.), where a court granted a motion to strike an intentional infliction of emotional distress claim arising from an employee's termination. In Elbert, a boy scout program fired a program specialist who had allegedly abused his son in the presence of other scouts and reported the counselor's purported inappropriate actions to DCF. The court found that the termination and filing of a child abuse report did not meet the demanding standard of extreme and outrageous conduct. Id. Similarly, in the present case the revised complaint does not satisfy the requirement that the defendant's conduct be extreme and outrageous. Plaintiffs' allegations do not meet the standard for intentional infliction of emotional distress. "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Parsons v. United Technologies Corp., supra, 243 Conn. 89 (quoting Madani v. Kendall Ford, Inc., 312 Or. 198, 204, 818 P.2d 930 (1991)).
The defendant also may have an absolute privilege in reporting suspected child neglect to the DCF, and would have immunity in civil proceedings for doing so, pursuant to General Statutes § 17-101e(b). This absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous. See Peytan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).
4. Count Six — Negligent Infliction of Emotion Distress
The defendant moves to strike count six, sounding in negligent infliction of emotional distress, on the ground that the plaintiffs fail to allege unreasonable conduct during the termination process. The plaintiffs counter that elements of negligent and intentional infliction of emotional distress differ only as to the state of mind of the actor. The plaintiff's reason that by satisfying the elements of intentional infliction of emotional distress they have also satisfied negligent infliction of emotional distress elements by reference.
The termination process has been narrowly defined. In Parsons v. United Technologies Corp., supra, 243 Conn. 88-89 (1997), the process "was limited to the two-hour period . . . when Parsons was actually terminated, and it was held that the no-nonsense approach, if abrupt, was not at all unreasonable. Perhaps significantly, there was no discussion [in Parsons] about the context of the dispute: only the actual termination mattered." Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford at Hartford, Docket No. CV010806951S (September 25, 2002, Beach, J.) ( 33 Conn. L. Rptr. 206).
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . Accordingly . . . [t]he mere termination of employment, even where it is wrongful, is therefore not, by itself enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 552 (2002). "The dispositive issue . . . [is] whether the defendant's conduct during the termination process was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm" (Emphasis in original; internal quotation marks omitted.) Id., 751; Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
Count six consists of nothing more than an incorporation of the revised complaint's previous allegations. For the count to be legally viable, it is necessary to allege wrongful acts that occurred during the termination process. The act of termination alone is not considered extreme and outrageous. Count six fails to allege any unreasonable conduct that occurred during the termination. Instead, count six merely incorporates the claimed interaction between Klingberg and DCF, all of which occurred before the plaintiffs were terminated. In Malik v. Carrier Corp., 202 F.3d 97, 103-04 n. 1 (2d Cir. 2000), the Second Circuit Court of Appeals concluded in dicta, after analyzing Morris v. Hartford Count Co., supra, that a claim for negligent infliction of emotional distress which arose out of the employer's conduct during a legally mandated investigation into charges of sexual harassment was not permissible. Since the plaintiffs do not elaborate about the act of termination itself their claim of negligent infliction of emotional distress in the employment context is legally insufficient.
5. Counts Seven and Eight — Common Law and Statutory Wrongful Discharge
Count seven of the revised complaint alleges a cause of action for the wrongful discharge of employees in violation of public policy as embodied in General Statutes §§ 31-104 and 31-105. In count eight, the plaintiffs claim that they were exercising their first amendment rights by unionizing and that Klingberg violated General Statutes § 31-51q by terminating them in retaliation for the aforementioned activity. The defendant moves to strike count seven on the ground that plaintiffs may not base their common law wrongful discharge claim on a public policy violations for which a statutory remedy is already available. Defendant also moves to strike both claims on the ground that they are preempted by § 7 and § 8 of the NLRA.
General Statutes § 31-51q states that: "[a]ny 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." General Statutes § 31-51q
Section 7 of the NLRA provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title." 29 U.S.C. § 157.
Section 8(a) of the NLRA provides: "it shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, that nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (1) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, that no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; "(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." 29 U.S.C. § 158(a).
As an initial matter, it is noted that the issue of federal preemption implicates the court's subject matter jurisdiction. See Lawton v. Weiner, 91 Conn.App. 698, 714, 882 A.2d 151 (2005). "[S]ubject matter jurisdiction . . . is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Lesnewski v. Redvers, 276 Conn. 526, 531, 886 A.2d 1207 (2005). "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when lack of jurisdiction is called to its attention." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006). Accordingly, although the defendant's claim of federal preemption has been raised by way of a motion to strike, the actual issue for the court to determine is not whether the count should be stricken, but whether the count must be dismissed for lack of subject matter jurisdiction.
"The court in [ San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959),] enunciated two tests for jurisdictional preemption. First, '[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute unfair labor practice under § 8 [of that act], due regard for the federal enactment requires that state jurisdiction must yield.' . . . Second, the court recognized that '[a]t times it [may not be] clear whether the particular activity regulated by the States [is] governed by § 7 or § 8, or [is], perhaps, outside both these sections.' In those instances, '[w]hen an activity is arguably subject to § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.' . . . Exceptions to the preemption of state jurisdiction under this rationale do exist, and a state is not ousted of the power to adjudicate matters that are of 'peripheral concern' to the federal labor scheme or where the conduct at issue 'touche[s] interests . . . deeply rooted in local feeling and responsibility.' . . . In assessing whether to apply either exception a court must balance 'the State's interest in controlling or remedying the effects of the conduct . . . against both the interference with the National Labor Relations Board's ability to adjudicate controversies committed to it by the Act . . . and the risk that the State will sanction conduct that the Act protects.' (Citations omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 733-34, 771 A.2d 915 (2001). "The critical inquiry [is] . . . whether the controversy presented to the state court is identical to . . . or different from . . . that which could have been, but was not, presented to the [National] Labor [Relations] Board." (Internal quotation marks omitted.) Id., 737, quoting Sears, Roebuck Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 197, 98 S.Ct 1745, 56 L.Ed.2d 209 (1978).
As a preliminary matter, the court must first determine whether the claims in counts seven and eight satisfy either of the two Garmon preemption tests. Bimler v. Stop Shop Supermarket Co., 965 F.Sup. 292, 302 (D.Conn. 1997), is instructive because there the court addressed Garmon preemption in the context of a wrongful termination claim. In Bimler, an employee met with the store manager and discussed store staffing policies. Later the employee contacted a union representative, documented the meeting and gave copies to store management and the union. The employee was terminated and claimed that she was terminated because she exercised her free speech rights in violation of § 31-51q. The Bimler court dismissed the plaintiff's claim because the conduct the plaintiff alleged was wrongful was arguably prohibited under the NLRA. Because the claim was preempted by section 10 of the NLRA, the court determined it lacked jurisdiction.
Much of the Bimler preemption analysis applies to counts seven and eight of the present case. Count seven of the amended complaint alleges that the plaintiffs were terminated due to involvement in union activity. In addition, in count seven the plaintiffs allege that the public policy in General Statutes § 31-104 (right to bargain collectively) and General Statutes § 31-105 (defining unfair labor practices) have been violated. Because count seven alleges wrongful treatment due to union involvement as well as the violation of labor laws the second prong in Garmon is satisfied because the activity is arguably subject to § 7 or § 8 of the NLRA. Similarly, count eight alleges a violation of § 31-51q, which protects employees from retaliatory discharge on account of the exercise by such employees of constitution rights including, but not limited to rights guaranteed by the first amendment. Like the plaintiff in Bimler, the plaintiffs in the present case allege that they were terminated in retaliation for union related speech in violation of § 31-51q. As in Bimler, the present § 31-51q claim satisfies the second prong of Garmon because the plaintiffs were allegedly terminated in retaliation for union related speech activity, activity arguably subject to § 7 or § 8 of the NLRA. Because counts seven and eight satisfy the Garmon preemption test the court must defer to the exclusive competence of the NLRB unless an exception applies.
The two exceptions to Garmon preemption are where the matters "are of 'peripheral concern' to the federal labor scheme or where the conduct at issue 'touche[s] interests' . . . deeply rooted in local feeling and responsibility." Barbieri v. United Technologies Corp., supra, 255 Conn. 734. "The basis for determining whether the behavior in question is of 'peripheral concern to the federal law' or whether the 'controversies' to be decided by the NLRB would be the same as if decided by a state court is whether the root of the action is founded in a labor dispute or . . . an employment problem." Sullivan v. Griffin Health Services, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 90 030911 (September 25, 1990, Meadow, J.) ( 2 Conn. L. Rptr. 510). "Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the action or threatened discrimination itself." Farmer v. United Brotherhood of Carpenters Joiners of America, 430 U.S. 290, 305, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1976).
Counts seven and eight of the revised complaint set forth claims that the defendant wrongfully discharged the plaintiffs from their employment because the plaintiffs "were involved in union organizing activity" (count seven) and because of the plaintiffs' "advocacy of unionization of the defendant's workforce" (count eight). Thus, the focus of both counts is that the plaintiffs were subjected to discrimination due to their involvement in labor activities. Since the essence of both claims are addressed by the NLRA, neither can be characterized as being of peripheral concern to the federal law. This is not the type of case that involves a state tort which is unrelated to employment discrimination as outlined in Farmer. On the contrary, employment discrimination is the precise focus of the claims at issue. Furthermore, neither count focuses on particularly abusive conduct. Rather the emphasis is on the wrongful termination itself.
Additionally, the involvement of DCF does not trigger the "deeply rooted in local feeling and responsibility" exception. In their objection to the motion to strike, the plaintiffs cite Bimler v. Stop Shop, Superior Court, judicial district of New London, Docket No. 110028 (January 22, 2003, Corradino, J.) as an analogous situation where a Connecticut court found an issue was "deeply rooted in local feeling and responsibility." However, as the defendant points out in its reply brief, nowhere in count seven do the plaintiffs even mention the DCF investigation. Unlike in the prior counts, in count seven, the plaintiffs do not allege and incorporate by reference any of the prior factual allegations. Count seven only alleges that the plaintiffs were involved in union activities and that upon discovery of plaintiffs' union activity, defendant sought to have the plaintiffs terminated.
Even if the allegations regarding DCF had been incorporated into this count, it would be distinguishable from Bimler, which involved the arrest of a Stop Shop employee for larceny following Stop Shop's investigation, the results of which were turned over to the police. The trial court found no evidence or argument presented at trial supported any claim of retaliation for union activities. The court in Bimler decided that case was deeply rooted in local feeling because the case involved local police action, an inherently local issue. The court determined that "the power to effect an arrest is one of the most important and awesome attributes of government . . . [T]here existed a significant state interest in protecting the citizen (here the plaintiff) from the challenged conduct." (Internal quotation marks omitted.) Id. DCF does not have the power to effect arrest, a key factor in the Bimler court's applying the "deeply rooted to local feeling and responsibilities exception." In addition, the plaintiff in Bimler was suing for negligent infliction of emotional distress, not for violations of state labor law. In contrast, counts seven and eight sound in wrongful termination and more directly concern the unfair labor activities the NLRA serves to prevent. Thus, Bimler was much closer to the situation discussed in Farmer in that the focus of the claim was on the emotionally abusive manner in which the discrimination was accomplished. See Farmer v. United Brotherhood of Carpenters Joiners of America, supra, 430 U.S. 305. In the present case, the claim focuses on the discrimination and wrongful discharge itself.
Plaintiffs also argue that count eight is not subject to the CT Page 20920 Garmon doctrine because they are alleging their constitutional rights to free speech were violated pursuant to General Statutes § 31-51q and not alleging unfair labor practices in that count. They reason the court will not be required to pass judgment on any issue related to unfair labor practices and there will be no interference with the NLRB's primary jurisdiction.
In Fleming v. Stop Shop Supermarket Co., No. 96 Civ. 594, 1997 WL 298399 (D. Conn., March 31, 1997, Nevas, J.), the court found that the plaintiff's claim for a violation of her right to free speech under the federal and state constitutions and § 31-51q fell "squarely within the primary and exclusive jurisdiction of the NLRB in that the facts alleged by the plaintiff constitute an unfair labor practice as defined by section 8(a)(1)." Id. In the present case, the plaintiffs' allegations that their right to free speech, arising out of their involvement in and advocacy of union organization at Klingberg, was violated when they were discharged as a result of speech related to union activities, fall squarely within the primary and exclusive jurisdiction of the NLRB. Section 7 of the NLRA provides employees the right to self-organization, to form, join or assist labor organizations, and section 8(a)(1) provides that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed under section 7.
Therefore, since both counts seven and eight fall within the primary and exclusive jurisdiction of the NLRB, the court does not have subject matter jurisdiction over these counts.
Even if the plaintiffs' claim in count seven were not preempted by federal labor law, the plaintiffs in count seven base their wrongful discharge claims on §§ 1-104 and 31-105, for which statutory remedies are provided in § 31-107, including reinstatement which plaintiff see as a remedy. Since plaintiffs have an adequate statutory remedy, their common law wrongful discharge claim would be precluded. A claim for wrongful discharge can only exist where the employee is otherwise without a remedy.
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 the 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. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985).
In Burnham v. Karl Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000), our Supreme Court affirmed a summary judgment for the defendant employer on the plaintiff's claim of wrongful termination in violation of public policy set forth in § 31-51m, which prohibits retaliatory discharge of an employee who reports a violation of the law by his employer to a public body. The court found that the existence of a statutory remedy pursuant to that statute (§ 31-51m(c)) precluded the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31-51(b). The only express public policy upon which plaintiffs rely to support their wrongful discharge claim is the public policy associated with the Connecticut Labor Relations Act, General Statutes § 31-104 (rights of employees) and § 31-105 (unfair labor practices). Remedies available under this Act are set forth in § 31-107. Because plaintiffs have rights protected under this Act, they are not entitled to pursue their claims as a common-law public policy discharge claim. This would be an alternative reason to strike count seven.
IV CONCLUSION
For the foregoing reasons, the motion to strike counts one through six is granted and counts seven and eight are dismissed for lack of subject matter jurisdiction.