Opinion
No. CV 04 4001176 S
July 5, 2005
MEMORANDUM OF DECISION
I
On July 22, 2003, the plaintiff, who had been employed by the defendant as a machine operator since May 8, 2000, discovered that a branch had fallen on his automobile while parked in the defendant's lot. He was unsuccessful in resolving his damage claim with his employer and thus filed suit in small claims court. The defendant contested the claim and subsequently discharged the plaintiff on November 6, 2003. The plaintiff then filed the instant action alleging that the firing violated his right under the "open courts" provision of article first, § 10 of the Connecticut Constitution in that he was fired in retaliation for filing suit. The plaintiff also claims that such firing violated the covenant of good faith and fair dealing and that the defendant failed to pay him vacation wages in violation of General Statutes § 31-76k. The defendant seeks to strike the complaint arguing that pursuant to General Statutes § 31-51q, the legislature has specifically identified those circumstances under which a discharged employee may seek redress, and the instant matter is not covered, thus affording no relief.
One week after discharge, the plaintiff was notified that judgment had entered in his favor in the amount of $2,490.98 in the small claims action.
Article first, § 10 states: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
General Statutes § 31-76k states: "If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive."
General Statutes § 31-51q states "[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."
II
Section 31-51q, among other things, prohibits an employer from discharging an employee who is exercising certain constitutional rights provided the exercise does not substantially or materially interfere with the employee's job performance or the working relationship. The applicable sections of the Connecticut Constitution include section 3 (right of religious liberty), section 4 (liberty of speech and press) and finally, section 14 (right to assemble and petition). The open courts provision of section 10 is not included within the statute and thus it does not apply. Cotto v. United Technologies Corp., 48 Conn.App. 618, 628, 711 A.2d 1180 (1998), aff'd. 251 Conn. 1, 738 A.2d 623 (1999); Fortunato v. Office of Stephen M. Silston, D.D.S., 48 Conn.Sup. 636, 641, 865 A.2d 530 (2004) (`open court' argument grounded in article first, § 10 of the constitution of Connecticut does not lie under § 31-51q).
However, assuming arguendo, that the plaintiff's argument that his discharge in retaliation for exercising his constitutional right to utilize the judicial process violates public policy is meritorious, see, Fulford v. Burndy Corporation, 623 F.Sup. 78, 81 (D.N.H. 1985); and generally, Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), that does not end the analysis. The freedom of expression cases under § 31-51q also require that the actions of the employee relate to matters of public concern. See, Cotto v. United Technologies Corp., supra, 251 Conn. 41 (Katz, J. concurring); Cotto v. United Technologies Corp., supra, 48 Conn.App. 630; Mackay v. Rayonier, Inc., 75 F.Sup.2d 22 (D.Conn. 1999). That analysis is appropriate here in light of our terminable at-will rule. Just as all expression is not allowed and will not preclude discharge as discussed in § 31-51q, Cotto v. United Technologies Corp., supra, 251 Conn. 16, the open courts policy should not be utilized to shield an employee from all employment-related actions. It is one thing to bring suit to declare public rights, and then, in retaliation, be disciplined; it is another thing to vindicate a purely personal matter which has a negative impact on the working relationship. Should an employer be prevented, as a matter of public policy, from terminating an at-will employee just because the employee has brought a small claims suit over a minor employment-related matter? This court believes not and adopts the reasoning in the above-mentioned cases. Indeed, while not controlling, the exception to the prohibition in § 31-51q that the "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" is certainly instructive. It is another way of saying that private as opposed to public matters will not trump the terminable at-will policy. As it is clear from the allegations of the complaint that the issues herein are solely of a private concern, the motion to strike is granted.
The defendant also seeks to strike the second count which alleges a breach of the implied covenant of good faith and fair dealing maintaining that it has not violated any public policy in terminating the plaintiff, an at-will employee. "Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves `impropriety . . . derived from some important violation of public policy.'" Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). In light of the above finding, the motion must be granted.
Finally, the defendant moves to strike the third count which alleges a violation of General Statutes § 31-76k for failure to pay his May 2003 vacation pay. In Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 806-07, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993), the court held that a similar claim which lacked a factual basis concerning the employer policy was insufficient as "the term `employer policy' relates not to the employer's intent with regard to a single employee, but to its intentions regarding either its employees generally or discrete classes of employees. The plaintiff's complaint, even construed most favorably to him . . . contains no allegation that the defendant engaged in any general plan or practice with regard to paid vacation days. As such, the complaint fails to allege the existence of an employer policy, and the plaintiff has failed to state a cause of action under 31-76k." (citation omitted.) In the present matter, the plaintiff has failed to allege any facts concerning that policy and the motion to strike this statutory claim is granted.
Berger, J.