Opinion
MMXCV176016996
07-13-2018
Denise HUSSEY v. ROBERT MARK ASSOCIATES, INC. dba Bill’s Seafood
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendant, Robert Mark Associates, Inc., d/b/a Bill’s Seafood, has moved to strike Count Two of the complaint on the grounds that it is legally insufficient in that it fails to plead that the plaintiff, Denise Hussey, engaged in speech on a matter of public concern as required under Connecticut General Statutes § 31-51q.
Allegations of the Complaint
The plaintiff alleges that she was wrongfully terminated from employment by Bill’s Seafood. She further alleges that her employment was terminated because she filed a lawsuit against Pier 76 for negligence that resulted in her injuring her leg. The plaintiff alleges that Pier 76 and the defendant have a business relationship and that the owner of Bill’s Seafood was not happy that she filed a lawsuit against Pier 76.
The complaint further alleges that after she filed her lawsuit against Pier 76, she contracted an infection that forced her to take an extended, four-month medical leave. The plaintiff claims that she was released to return to work at Bill’s Seafood as of December 23, 2014, but that she was told on January 5, 2015, that she no longer had a position at Bill’s Seafood.
Count One of the complaint alleges that the plaintiff was wrongfully discharged in retaliation for filing a lawsuit against Pier 76, thereby violating an important public policy: a citizen’s right to seek redress in the courts as protected by the United States and Connecticut Constitutions. Count Two alleges:
37. Hussey’s filing of the lawsuit against Pier 76 was a Constitutionally-protected exercise of her rights to free speech.
38. Hussey was terminated by Bill’s as a result of the exercise of her Constitutionally-protected rights to free speech.
39. Bill’s actions violate General Statutes § 31-51q.
Discussion of the Law and Ruling
The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint, or any one or more counts thereof, to state a claim upon which relief can be granted. See P.B. § 10-39(a); Novametrix Medical Services v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992) (internal quotation marks and citations omitted). A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Mora v. Aetna Life & Cas. Ins. Co., 13 Conn.App. 208, 21, 535 A.2d 390 (1988) (emphasis omitted). The sole inquiry in reviewing a motion to strike is whether the plaintiff’s allegations, if proved, would state a claim upon which relief could be granted. Doyle v. A & P Realty Corp., 36 Conn.Supp. 126 (1980). "[A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity ... however ... where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. Doe v. Board of Education, 76 Conn.App. 296, 299 n.6, 819 A.2d 289 (2003); see also Coe v. Board of Education, 301 Conn. 112, 19 A.3d 640 (2011).
In Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999), the court held that "[Connecticut General Statutes] § 31-51q protects from retaliatory discharge an employee who invoked constitutionally guaranteed free speech rights, that, in turn, protect ‘statements that address a matter of public concern.’ " The court in Daley stated:
Section 31-51q protects an employee from retaliatory discharge due to that employee’s exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution. D’Angelo v. McGoldrick, supra, 239 Conn. at 357, 685 A.2d 319; Lewis v. Gaming Policy Board, 224 Conn. 693, 711, 620 A.2d 780 (1993). Those 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 . See Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (extending constitutional protection to statements regarding pressure on public employees to work for political candidates not of their choice, but not to statements regarding internal office procedures); Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995) (declining to extend constitutional protection to statements critical of building maintenance operations); Schnabel v. Tyler, 230 Conn. 735, 756, 646 A.2d 152 (1994) (ruling that statements regarding police misconduct address matter of public concern). In Connick, the United States Supreme Court established the test for determining whether an employee’s speech addresses a matter of public concern. Speech that addresses a matter of public concern involves statements that can "be fairly considered as relating to any matter of political, social, or other concern to the community ..." Connick v. Myers, supra, at 146, 103 S.Ct. 1684; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987) (asking whether speech relates to "topical concerns in our society"). That determination is made by evaluating "the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, supra, at 147-48, 103 S.Ct. 1684; Schnabel v. Tyler, supra, at 751, 646 A.2d 152.Daley v. Aetna Life & Casualty Co., 249 Conn. at 778-9. Emphasis added.
The court in Daley further noted that "it is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern. The resolution of whether an employee’s statements address such a topic is, however, within the province of the jury, to be determined by looking to the content, form and context of the particular statements in question." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 782, 734 A.2d 112 (1999). The court must consider whether the plaintiff spoke "as a citizen upon matters of public concern" or "instead as an employee upon matters only of personal interest." Campbell v. Windham Community Memorial Hospital, Inc., 389 F.Supp.2d 370, 382 (D.Conn. 2005).
In Daley the subject matter of the plaintiff’s letter to the chairman of Aetna pertained to whether that company was living up to its articulated goals of sustaining a family-friendly workplace. Therefore, arguably, it addressed a matter of public concern. However, the defendant argued, and the jury agreed, that the purpose of the plaintiff’s letter was to complain about a purely personal issue: that the defendant would not allow her to work from home on Fridays.
In this case the plaintiff’s "speech" consisted of her filing a personal injury lawsuit to recover for her own injuries. As a matter of law, there was no public interest addressed. Therefore, the filing of the lawsuit is not protected under § 31-51q. The motion to strike the Count Two is granted.