Opinion
CV166009441S
11-08-2019
Judith Dighello v. Thurston Foods, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sizemore, Nada K., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT #110 AND PLAINTIFF’S OBJECTION #112
Nada K. Sizemore, Judge.
This decision arises from the Defendant Thurston Foods, Inc.’s Motion for Summary Judgment dated June 28, 2019 (#110) and the related Plaintiff Judith Dighello’s Objection dated July 19, 2019 (#112) argued at short calendar on September 9, 2019.
The Court GRANTS summary judgment for the Defendant Thurston Foods as to the Second and Fifth Counts and DENIES summary judgment on the First, Third and Fourth Counts. The court bases its decision on the following analysis.
Background
By five-count Amended Complaint dated March 29, 2019, the Plaintiff Judith Dighello brings suit against the Defendant Thurston Foods, Inc. [hereinafter referred to as "Defendant Thurston"]. She alleges that she was employed for Defendant Thurston from March 2011 through May 7, 2015 as a router and dispatcher overseeing a fleet of delivery trucks of 25 to 55 trucks. Thurston Foods is alleged to be a wholesale food service distributor with over fifty (50) employees operating out of Wallingford, Connecticut.
Generally, plaintiff Dighello alleges that her employment was wrongfully terminated, after she allegedly complained to management about driver schedules, driver’s operating reports and hours of service reporting compliance required for the trucking operations per state and federal authorities. She now makes a claim for lost wages and lost employment benefits, attorneys fees, damages for emotional and psychological pain and suffering and punitive damages.
Specifically, in the First Count, she claims that the Defendant Thurston is liable under Connecticut Fair Employment Practices Act, C.G.S. Section 46a-60(a)(1) as its conduct constitutes unlawful sex/gender discrimination and unlawful termination of her employment.
In the Second Count, she alleges that she was engaging in protected activities under C.G.S. Section 46a-51 et seq., by complaining about the defendant Thurston’s unlawful conduct and as a result she had to work in a hostile environment where she was threatened by her supervisors and company management. She further alleges that her termination was done for retaliation against her for engaging in the protected activities.
Plaintiff Dighello in the Third Count asserts a claim for intentional infliction of emotional distress in that the defendant knew or should have known that she would suffer emotional distress from the conduct complained of. She contends the Defendant Thurston’s actions were extreme and outrageous.
In the Fourth Count, the Plaintiff sues for common-law wrongful discharge based on the Defendant Thurston’s failure to comply with the Federal Motor Carrier Safety Act and its related regulations and based on her complaints to management internally about the company’s failure to comply with federal statutes and regulations governing the trucking industry.
Last, in the Fifth Count, Plaintiff claims that the defendant violated Conn. General Statutes Section 31-51q by terminating her employment on account of the exercise of her rights guaranteed by the First Amendment of the federal Constitution and/or Article Section 4 and 14 of the Connecticut State Constitution.
By Answer and Special Defense dated April 17, 2019, the Defendant Thurston denies plaintiff’s allegations and claims and denies causing any claimed injuries, losses or damages. It also has asserted eleven (11) special defenses to her complaint. Specifically, those defenses in summary as to all counts are: (1) plaintiff’s complaint fails to state a claim upon which relief may be granted; (2) plaintiff failed to properly mitigate her damages; and (3) plaintiff failed to take advantage of the established company policies and procedures for non-harassment and sexual harassment in the workplace.
Plaintiff replied to those defenses by Reply dated April 26, 2019.
By Motion for Summary Judgment dated June 28, 2019 (Entry #110), the Defendant Thurston now moves for summary judgment per Practice Book Section 17-44 et seq. It, specifically, claims the following: (1) plaintiff cannot establish that defendant subjected her to illegal sex discrimination under the Connecticut Fair Employment Practices Act; (2) Plaintiff cannot establish any claim for retaliation under CFEPA; (3) Plaintiff cannot establish an intentional infliction of emotion distress claim; (4) plaintiff cannot establish a common-law wrongful discharge claim under Connecticut law; and (5) plaintiff cannot establish a free speech claim under Connecticut General Statutes Section 31-51q.
In support of its motion, the Defendant Thurston has filed a Memorandum of Law dated June 28, 2019, and the following documentary evidence mainly transcripts and/or transcript excerpts from varying depositions taken during the discovery process. Those documents include: Exhibit A— Excerpts from 51-page transcript of deposition of Robert Thurston taken on May 3, 2017; Exhibit B— Excerpts from 174-page transcript with exhibits from deposition of the Plaintiff taken on June 22, 2017; Exhibit C— Excerpts from 50-page deposition transcript of Greg Kastukevich taken on May 2, 2017; Exhibit D— Excerpts from 62-page transcript of Meg Jakiela taken on June 12, 2017; Exhibit E— Portions of deposition transcript of Donald Rossberg taken on July 6, 2017; and Exhibit F— Federal Motor Carrier Safety Administration (FMCSA) Hours of Service regulations.
Plaintiff Dighello has objected to summary judgment in a written Objection dated July 19, 2019 (#112). She argues that there are genuine issues of material fact as to the reason for plaintiff’s termination and that the defendant is NOT entitled to judgment as a matter of law. In support of her objection, she has filed a Memorandum of Law dated July 19, 2019 and several supporting exhibits.
Those twelve (12) exhibits include the following: Affidavit of Attorney Megan Michaud dated July 19, 2019; Exhibit 1— excerpts from Plaintiff deposition taken June 22, 2017; Exhibit 2— Excerpts from deposition of Greg Kastukevich taken May 2, 2017; Exhibit 3— Excerpts of Robert Thurston deposition taken on May 3, 2017; Exhibit 4— Complaint in Joseph Rivera v. Thurston Foods Inc., CV DN 1340 (CSH) (U.S. District Court— Haight, Sr. J.— December 3, 2018; Exhibit 5— Excerpts of deposition of Meg Jakiela taken on June 12, 2017; Exhibit 6— Defendant’s Discipline Policy; Exhibit 7— Advertisement for plaintiff’s position; Exhibit 8— Copy of emails from Kastukevich to Jakiela dated July 9, 2015; Exhibit 10— Plaintiff’s responses to interrogatories; Exhibit 11— Plaintiff Affidavit dated October 13, 2017; and Exhibit 12— Excerpts of the deposition of Donald Rossberg taken on July 6, 2017.
By Reply Brief dated September 6, 2019, the Defendant Thurston responded to the plaintiff’s arguments in the above brief and exhibits by claiming that summary judgment is appropriate because plaintiff suffered no adverse employment action because she quit her position.
The parties presented for oral argument on September 9, 2019, and the matter is now before this court.
General Standard of Review Summary Judgment
"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." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
"[S]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated ... The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012); see also Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010) ("[t]he summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion" [internal quotation marks omitted] ).
Since both parties are relying heavy on deposition testimony in support and in opposition to summary judgment, the court is mindful of the following as well. "While [a party’s] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
I. First Count— Sex/Gender Discrimination Claim— Fair Employment Practices Act
Plaintiff, in the First Count, claims discrimination on the basis of gender in violation of Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen. Statute Section 46a-60(a)(1) and unlawful termination. That statute, in pertinent part, says:
(b) It shall be a discriminatory practice in violation of this section:
(1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness or status as a veteran."
In discrimination claims under CFEPA, Connecticut appellate courts look to the standards established by the U.S. Supreme Court case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), cited and relied upon by Craine v. Trinity College, 259 Conn. 625, 791 A.2d 518 (2002); and Walker v. Dept. of Children and Families, 146 Conn.App. 863, 80 A.3d 94 (2013).
Under this analysis, the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. McDonnell Douglas, Id. at 802-04, 93 S.Ct. 1817. Employing the McDonnell Douglas Corp. framework, we must first consider the plaintiff’s prima facie case of illegal sex discrimination. The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent. Lieberman v. Gant, 630 F.2d 60, 63 (2d Cir. 1980).
As the Court of Appeals for the Second Circuit has indicated, there are four elements to a prima facie case of illegal discrimination: (1) that she belongs to a protected class; (2) that she was qualified for the position; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances permitting an inference of discrimination or retaliation on the basis of membership in that class. Zahorik v. Cornell University, 729 F.2d 85, 92 (2d Cir. 1984). The burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor. Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997).
In the case at bar, the Defendant concedes that Plaintiff Dighello is a member of the protected class; and concedes that she was qualified when she was hired by the defendant Thurston. However, the Defendant disagrees and argues that the Plaintiff has NOT met the burden of showing any "adverse employment action" and that she cannot sustain her burden of proof in establishing that her sex was a motivating factor in termination of her employment. It further contends that she cannot establish any hostile work environment as contemplated by the Connecticut Supreme Court case of Patino v. Birken Mfg. Co., 304 Conn. 679, 41 A.3d 1013 (2012).
The Plaintiff disagrees and argues that a plaintiff may prevail if [she] submits enough believable evidence for a jury to find that an adverse employment decision resulted because of discrimination. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). She argues that the burden of her establishing a prima facie case of disparate treatment is not onerous. All of the facts must be considered in a light most favorable to her. And in this instance, she argues that the supporting deposition testimony submitted with her Objection to the Motion for Summary Judgment demonstrate enough of an issue of material facts, that the court cannot enter summary disposition on this count.
Based on this court’s review of the voluminous deposition transcripts and documentary evidence provided by both plaintiff and defendant, this court finds enough evidence presented so as to send the issues presented in Count One to the trier of fact for ultimate determination. The testimony of the plaintiff, if found credible by the trier of fact, does form a sufficient basis for potential liability under the CFPEA statute for gender discrimination and unlawful termination. The court is cognizant from the testimony and evidence provided by the defense witnesses that the circumstances of her departure from employment at Defendant Thurston are highly disputed. Therefore, this court cannot conclude without the benefit of a trial, if this amounted to an "adverse employment" action.
Second, based on a review of the same testimony and evidence, whether the circumstances of Plaintiff’s alleged termination or departure from employment were motivated by gender discrimination, directly or by inference, is also disputed so as to create further material issues of fact. Plaintiff Dighello, at this stage, has presented enough facts to support this First Count to go to a jury for ultimate determination, where a jury can more fully assess the credibility and veracity of all the witnesses about both of these issues of fact. This trial court is ill equipped to make such a final resolution of these issues without the benefit of a trial, where the credibility of all witnesses needs to be carefully assessed and considered.
"Unlike other areas of law, where a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has the initial burden of persuasion, albeit an attenuated one ... [T]he burden of persuasion that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis " (Emphasis in original; internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365472 (Levin, J., May 22, 1998).
The court therefore DENIES the Motion for Summary Judgment on the First Count.
II. Second Count— Retaliation in Violation of C.G.S. Section 46a-60(b)(4)
Plaintiff Dighello, in the Second Count, alleges that she was engaging in protected activities under C.G.S. Section 46a-51, et seq., by complaining about the Defendant Thurston’s unlawful conduct regarding compliance with federal motor carrier safety standards, and thus her termination was a hostile work environment. [NOTE: Plaintiff recites Section 46a-60(a)(4) but the court notes there is no such statute subsection; so the court assumes Plaintiff is trying to rely on Section 46a-60(b)(4) for this claims in this Second Count.]
The Defendant Thurston moves for summary judgment on this Second Count claiming that she cannot establish any retaliation claim under this section of the Connecticut Fair Employment Practices Act.
C.G.S. Section 46a-60(b)(4) states, in pertinent part:
It shall be a discriminatory practice in violation of this section: (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84.
The above statute refers to complaints made to the Connecticut Commission on Human Rights and Opportunities. Therefore, the plaintiff’s reliance on this statute in her pleadings as the basis for her retaliation claim appears misplaced. Her filings with the CHRO on November 10, 2015 occurred after her departure from Defendant Thurston on May 7, 2015. Therefore, on this basis alone, there appears to be a disconnect from the allegations in the Second Count of the Amended Complaint dated March 29, 2019 and the arguments made by count in the Motion for Summary Judgment and the Objection to such.
In the brief filed by Defendant Thurston, it argues that the Second Count is a "retaliation claim" so the court will address the issue as such— even though the pleadings do not match the arguments made in these motions for summary judgment and related objection. As Defendant correctly points out, Connecticut courts have defined the standards when addressing retaliation claims in employment litigation.
"To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that [she] participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action occurred against [her]; and (3) a causal connection existed between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009). "Upon such a showing, the defendant must again demonstrate legitimate reasons for its actions; whereupon the plaintiff bears the burden of showing the defendant’s explanations are pretext for a true discriminatory or retaliatory motive." Gooden v. Department of Correction, Superior Court, judicial district of Hartford— CV 02-0813590 (Elgo, J., June 23, 2008) 2008 Conn.Super. LEXIS 1624. Like a discrimination claim "to establish an adverse employment action for a retaliation claim, the-plaintiff must present evidence of a "materially adverse change in the terms and conditions" of his employment. Gooden, at 14.
In the case at bar, when applying the above case law, it is patently clear that Plaintiff Dighello has not alleged or provided any factual support for any claim that she was engaged in a "protected activity" as the first leg required in a claim for retaliation in the statute and in the reported Connecticut case law. See Jones v. Department of Families, 172 Conn.App. 14, 158 A.3d 356 (2017); Phadnis v. Great Expression Dental Centers of Connecticut, PC, 170 Conn.App. 79, 153 A.3d 687 (2017); Davis v. Alinabal, Inc., Superior Court-Judicial District of New Britain, CV 14-6029330 (Swienton, J., Nov. 4, 2016), 2016 WL 8669890; Gonska v. Highland View Manor, Inc., Superior Court-judicial district of Hartford at Hartford, CV 12-6030032 (Peck, J., June 26, 2014); and Taylor v. State of Connecticut Department of Correction, Superior Court-judicial district of New Haven at New Haven, CV 09-5030106 (Wilson, J., July 12, 2010) 2010 WL 317137.
And her counsel, in the brief and supporting documents filed in opposition to summary judgment, provides no legal or factual basis to sustain this retaliation claim in Count Two. Without that, this court is going no further to analyze the other three required prongs for this count to continue as a valid claim.
Therefore, based on the above analysis as a matter of law, the court GRANTS summary judgment in favor of the Defendant Thurston Foods as to the Second Count for retaliation from the Amended Complaint dated March 29, 2019.
III. Third Count— Intentional Infliction of Emotional Distress
Plaintiff Dighello, in this Third Count, alleges that the Defendant Thurston’s actions were "extreme and outrageous" and the actions were intended to inflict emotional distress on the plaintiff and that the defendant knew, or in the exercise of reasonable care, should have known that emotional distress would occur.
Defendant Thurston moves for summary judgment on this count, on the grounds that she cannot establish an intentional infliction of emotional distress claim as recognized by the Connecticut appellate courts.
To establish a claim of intentional infliction of emotional distress, Plaintiff must show the following: "(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.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). 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. Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012); Petyan v. Ellis, 200 Conn. 243, 254, 510 A.2d 1337 (1986).
In considering if conduct rises to this level, the Connecticut Supreme Court has held that "[l]iability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ..." (Internal quotation marks omitted.) Appleton, supra, 254 Conn. at 210. Indeed, liability for intentional infliction of emotional distress "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!’ " (Internal quotation marks omitted.) Appleton, 254 Conn. at 210-11. When applying the above standards to the case at bar, both parties cite to several specific incidents that have been discussed and referred to by many of the deponents in the large volume of deposition testimony provided by each side in support and in opposition to the Motion for Summary Judgment. And, there are conflicting views on what transpired between Plaintiff and her supervisor Greg Kastukevich; between Plaintiff and Robert Thurston; between Plaintiff and co-worker Mitchell Lukonis; and between Plaintiff and Human Resource Director Meg Jakiela, daughter of John Thurston, one of the other co-owners of Thurston Foods.
Plaintiff identifies some of the outrageous behavior, in part, as: (1) her direct supervisor, Greg Kastukevich, allegedly loudly threatening her with physical harm with a clenched fist and cornering her against a wall in her office; (2) company owner/manager Robert Thurston screaming and yelling at her over the accuracy of driver logs on her last day of work on May 7, 2015 and persistently berating her verbally and her ability to do math like a six-year-old; and (3) alleged outrageous sexual comments uttered on numerous occasions by her supervisor, Greg Kastukevich and by another coworker Mitch including "if you are on the rag, I do not want to hear about it" and flagging on a white board to the other male staff when she was "PMS’ing." See plaintiff’s deposition testimony given on June 22, 2019— Exhibit B to Defendant’s Motion for Summary Judgment. Plaintiff reported some of these actions to Human Resource Director Jagiela who allegedly tells her that "it is a man’s company" and she needs to be strong.
At this phase of the case, this court concludes that Plaintiff has provided sufficient facts whereby reasonable minds could differ as to whether these actions constitutes extreme and outrageous conduct. In this court’s view, the incidents described, if proven to be true, go way beyond normal workplace strife or banter, and are well beyond normal decency. Plaintiff’s testimony describes how these incidents paralyzed her with fear, caused anxiety and depression, so that at times, she could not make herself go to work. These issues therefore become an issue of fact for the trier, where the credibility of each witness can be weighed in addition to the testimony provided.
The court therefore DENIES the Defendant’s Motion for Summary Judgment as to this Third Count, as it has not demonstrated the lack of genuine issues of material fact for submission to a jury on the claim of intentional infliction of emotional distress
IV. Fourth Count— Common-Law Wrongful Discharge
Defendant Thurston moves for summary judgment as to the Fourth Count, arguing that the Plaintiff Dighello cannot establish a common-law discharge claim under Connecticut law.
In this count, Plaintiff alleges that she was wrongfully discharged after she complained internally regarding the defendant’s compliance with the Federal Motor Carrier Safety Act and regulations. She claims that the defendant’s conduct constituted a violation of public policy. And, as a result of the wrongful discharge, she suffered lost wages and lost employment benefits along with emotional distress and psychological suffering.
Defendant argues that she cannot offer sufficient admissible evidence to establish a genuine issue of material fact upon which a reasonable jury could rest a decision in her favor. And, Plaintiff counters by arguing that there are plenty of facts discernable from the deposition excerpts of the varying witnesses, whereby genuine issues of fact can be found by this court to support this common-law claim.
In considering this issue, the court is guided by the Connecticut Supreme Court’s decision in Sheets v. Teddy’s Frosted Foods, 179 Conn. 471, 427 A.2d 385 (1980) and the many cases that have followed the Sheets decision in the almost forty (40) years since its issuance.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Beginning in the late 1950s, however, courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge. Certain employer practices provoked public disfavor, and unlimited employee discretion to fire employees eventually yielded to a more limited rule." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002); Faulkner v. United Technologies Corporation, 240 Conn. 576, 693 A.2d 293 (1997); Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984).
In recognizing a limited common-law cause of action for wrongful discharge, the court in Sheets recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees. Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994). In Morris v. Hartford Courant Co., supra, at 680, the court recognized 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. "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).
Although the courts have been willing to recognize, pursuant to Sheets and its progeny, a claim for wrongful termination in appropriate cases, the case precedent repeatedly has underscored "our 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 ..." Id., at 79, 700 A.2d 655; accord Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000); citing Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. at 477, 427 A.2d 385.
"We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation. We are, however, equally mindful that the myriad of employees without the bargaining power to command employment contracts for a definite term are entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers." (Internal quotation marks omitted.) Faulkner, supra, 240 Conn. at 589; citing Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. at 477, 427 A.2d 385.
When applying the above case law to the Fourth Count brought by Plaintiff Dighello, this court finds that she has both plead and provided sufficient evidentiary basis for a valid wrongful discharge claim to be submitted to the jury as the trier of fact.
She alleges that she was discharged from employment on May 7, 2015, and that her discharge was, in part, motivated by her continued complaints to supervisory personnel about potential violations of federal law and regulation governing the trucking industry. Her concern for the driver hours of service, driver logs, weight restriction compliance on vehicles and the like are documented throughout her deposition testimony. These matters within the trucking industry are major areas of public concern and public policy in the last few years and are governed by the Federal Motor Carrier Highway Act and the extensive regulations of the Federal Highway Administration and related agencies.
Although the defendants’ witnesses contest her alleged discharge from employment, contest whether she actually complained of such matters internally, and contest that the Defendant Thurston violated any of the applicable federal highway safety statutes, regulations or rules, the role of the court at summary judgment is not to decide those ultimate issues, but to determine if genuine issues of material fact exist.
This court finds that many genuine issues of material fact exist relative to this Fourth Count. The volumes of materials submitted by each party in support and in opposition of this Motion for Summary Judgment readily demonstrate that the issues in controversy are not subject to summary disposition by a court or the trier of fact without the benefit of full testimony at trial.
Therefore, based on the foregoing, the court DENIES the Motion for Summary Judgment as to the Fourth Count alleging common-law wrongful discharge.
V. Fifth Count— Free Speech Claim— Violation of C.G.S. Section 31-51q
In this Fifth Count, the Plaintiff Dighello asserts a claim titled "violation of Connecticut General Statute Section 31-51q." She alleges that her comments, complaints and statements made to the Defendant Thurston about compliance with applicable federal motor carrier statutes and regulations are protected free speech under the First Amendment of the United States Constitution and under Article First, Sections 4 and 14 of the Constitution of the State of Connecticut.
The Defendant Thurston moves for summary judgment on this count, contending that Plaintiff cannot establish any free speech claim under this statute. It argues that she cannot establish any of the elements required by the statute or reported Connecticut case law so as to sustain this count as a matter of law.
Conn. General Statute Section 31-51q provides, in pertinent part, the following:
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.
This section creates a cause of action for violation of the right to free speech under both the United States and Connecticut constitutions. Brown v. Office of State Comptroller, 211 F.Supp. 455, 477-78 (D.Conn. 2016), cited by Bacewicz v. Molecular Neuroimaging, LLC, U.S. District Court CV 85MPS (Shea, J., Sept. 23, 2019), 2019 WL 460022. The statute has been construed to impose the same prohibitions on private employers that the First Amendment and the Connecticut Constitution impose on public employers. Bacewicz, id. ; Trusz v. UBS Realty Investors, 319 Conn. 175, 211-18, 123 A.3d 1212 (2015).
To state a claim under Section 31-51q, a plaintiff must allege "(1) that she engaged in constitutionally protected speech, (2) that her employer took an adverse action against her, and (3) that there was a causal relationship between the protected activity and the adverse action." Austin v. Bridgeport, 2019 WL 4600301 (U.S. District Court CT Shea, J., CV 01306 (MPS) (Sept. 23, 2019); DaSilva v. Weik, Superior Court, judicial district of Litchfield at Torrington, CV 17-6014797 (Pickard J., August 27, 2019) 2019 WL 4668155; Lowe v. Amerigas, Inc., 52 F.Supp.2d 349 (1999); Blue v. New Haven, 2019 WL 399904, CV 1411 (MPS) (D.Conn. Jan. 31, 2019). The statute limits its reach to cases where the protected speech "does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer."
"For an employee to prevail he or she must also demonstrate that the speech was the motivating factor causing the public employer to take adverse action." (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., 304 Conn. 585, 622 n.30, 43 A.3d 111 (2012). See also D’Angelo v. McGoldrick, 239 Conn. 356, 362, 685 A.2d 319 (1996) (explaining speech must be "at least a substantial or motivating factor" in adverse action).
"A clear prerequisite to the application of § 31-51q ... is that the speech at issue must be constitutionally protected; only the exercise ... of rights guaranteed by the first amendment to the United States [c]onstitution or section 3, 4 or 14 of article first of the [c]onstitution of the state falls within the ambit of the statute." (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 600; Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 888 A.3d 104 (2006). "Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). "[The] 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." Id., 778. "The statute applies only to expressions regarding public concerns that are motivated by an employee’s desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999). "Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ... An employee’s speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community ..." (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. 602. "[S]peech deals with matters of public concern ... when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public ..." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 412, 125 A.3d 920 (2015).
Whether the subject matter addressed by a particular statement is of public concern is a question of law for the court. Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 777.
In applying the above principles to the case at bar, this court cannot conclude that Plaintiff Dighello has properly sustained the requirements for a claim under Section 31-51q.
A thorough review of all the documentary evidence submitted by both parties does not reveal any alleged speech that falls in the domain of public concern. Plaintiff argues that her expressed concerns for driver’s hours of service, driver’s schedules and transportation reporting logs constitute areas of public concern. However, she never filed any formal complaints externally to any public agency at the state or federal level concerning her issues related to the business practices of Defendant Thurston that she felt were regulated by the federal or state motor carrier transportation authorities. And, she never filed any external concerns to the numerous transportation safety advocates and whistleblower groups readily available at Congressional, Senate, or federal/state transportation levels overseeing the conduct of trucking companies, like Defendant Thurston Foods. Her complaints appear to be internal only and privately related to the work responsibilities that she was assigned as a route dispatcher within the Thurston transportation department. This court finds such comments do not rise to the level of public speech contemplated or protected by Section 31-51q.
Even if the speech were construed to fit the definition of "protected speech," the court also finds the record void of any evidence causally linking her alleged adverse employment action to any utterances related to this protected speech.
Therefore, as a matter of law, this court concludes that summary judgment may enter for the Defendant Thurston on the Fifth Count.
Conclusion
Based on the above analysis, the court therefore concludes as follows. The court GRANTS summary judgment in favor of the Defendant Thurston Foods as to Second and Fifth Counts. The court DENIES summary judgment for the defendant as to the First, Third and Fourth Counts.
The Plaintiff is therefore ordered to file an Amended Complaint reflecting the above court ruling within thirty (30) days of this court order by December 9, 2019 and remove the Second and Fifth Counts, so that the matter can proceed along with the court approved scheduling order.