Opinion
No. FSTCV09-5010654
July 7, 2011
Memorandum of Decision on Motion to Strike (No. 111)
PROCEDURAL/FACTUAL BACKGROUND
The plaintiff, Mohammad Khan, commenced this action by service of process on defendant the Connecticut Department of Mental Health and Addiction Services ("DMHAS") on May 5, 2009 and on defendant Southwest Connecticut Mental Health Systems ("Southwest"), a division of DHMAS, on May 4, 2009. After the plaintiff filed the initial complaint on May 9, 2009, the defendants filed a request to revise and the plaintiff objected to the request. The court ruled on the request to revise on November 18, 2009, and the plaintiff then filed a first amended complaint on December 22, 2009. The Plaintiff's First Amended Complaint of December 22, 2009 is the operative pleading that the defendants now move to strike.
The first count of the first amended complaint alleges the following facts. DMHAS is a Connecticut state agency and Southwest is a division within DMHAS. DMHAS employed the plaintiff as a staff psychiatrist in its Southwest division since January 2001. In April of 2007, the plaintiff was transferred to the psychiatric unit within Southwest. While working in the psychiatric unit, the plaintiff allegedly observed "improper work practices," such as improper discharge, treatment and billing of patients, which the plaintiff believed were a danger to the patients' health and well being. The plaintiff also believed that these practices, in some instances, violated Connecticut and federal laws. The plaintiff attempted to change these practices through what he refers to as "Whistleblowing Actions." These actions included the plaintiff routinely voicing his concerns to other employees of the defendants stating that the practice of refusing to discharge patients and over billing them could be Medicare fraud, as well as filing a work complaint against some employees. The plaintiff alleges that he was motivated to speak out in order to achieve proper care for the defendants' patients, secure union physicians' rights, and ensure that the defendants complied with state and federal laws.
The defendants' employees, it is alleged, opposed the plaintiff's "Whistleblowing Actions" and retaliated against the plaintiff in the following ways. Employees would instruct nurses and other staff to refuse to carry out any of the plaintiff's directives and would ignore the plaintiff's requests to discuss the "improper work practices" he observed. Employees also harassed and intimidated the plaintiff, refused to provide the plaintiff with assistance that he needed, ignored the plaintiff's requests for leave time, purposely excluded the plaintiff from meetings regarding his own patients, and directed others to assign the plaintiff most of the new patients which created an unbearable work schedule. Finally, the plaintiff alleges that the defendants have also encouraged employees to file baseless works complaints against him.
The second count of the amended complaint alleges that plaintiff engaged in constitutionally protected speech by attempting to file internal complaints against Southwest alleging racial discrimination and racially-motivated harassment against him because of his Pakistani ethnicity, but that his request for help in filing such complaints were deliberately ignored and that he was subjected to Whistleblower retaliatory conduct in retaliation for his attempted discrimination complaint.
In the third count of the first amended complaint, the plaintiff alleges facts regarding a union grievance he filed. The plaintiff was part of the 1199 New England Health Care Union, and served as the physicians delegate until September of 2009. The plaintiff filed a union grievance on behalf of all union physicians on November 1, 2005. The grievance alleged that John D'Eramo, director of inpatient care, violated the union contract by forcing on-call physicians to work full time in order to take advantage of the pay rate for on-call physicians, which was lower than that of full-time physicians. The plaintiff alleges that his motivation for filing the grievance was to stop the improper use of on-call physicians. The plaintiff then alleges that the defendants retaliated against him, as previously described, for filing the grievance as well as voicing his concerns about patient care.
On February 5, 2010, the defendants filed a motion to strike the first amended complaint in its entirety on the ground that the plaintiff has failed to allege facts necessary to establish a claim under the "Whistleblower Statute," General Statutes § 31-51q. The plaintiff filed an objection to the motion on March 19, 2010, and the defendants filed a reply to this objection on January 21, 2011. The parties presented oral argument at short calendar on March 14, 2011.
CT Page 14900
DISCUSSION
Practice Book § 10-39 provides in relevant part, "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." When deciding a motion to strike the court must "take the facts to be those alleged in the complaint . . . [and] construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).The defendants bring their motion to strike on the grounds that the plaintiff fails to state a claim under § 31-51q in counts one, two and three of his first amended complaint. First, the defendants proffer that the plaintiff fails to allege that he was speaking as a citizen on a matter of public concern. Second, the defendants submit that plaintiff also fails to allege that he suffered "discipline or discharge."
In his objection to the motion, the plaintiff concedes that he does not object to the motion to strike count two of the first amended complaint. As for counts one and three, the plaintiff argues that the motion to strike should be denied for the following reasons. The plaintiff argues that the speech alleged in counts one and three of the complaint addresses the misconduct and inefficiency of a public entity as well as public health issues and therefore the speech addresses a matter of public concern. The plaintiff then argues that whether he was speaking as a citizen or pursuant to his official job duties is a question of fact that can not be appropriately decided on a motion to strike. Even so, if the question is addressed, the plaintiff argues that the complaint sufficiently alleges that the plaintiff was speaking as a concerned citizen. In response to the defendants' second ground, the plaintiff argues that its allegations of a hostile work environment and acts of retaliation sufficiently allege that the plaintiff was "disciplined." The defendants filed a reply brief in which they reiterate their arguments submitted with the motion to strike and add that the court may properly decide the issue of whether a plaintiff is speaking pursuant to his official duties as an issue of law raised in a motion to strike.
Since the plaintiff specifically does not object to the motion to strike count two, the motion to strike this count will be granted.
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 attorney's fees to the employer."
To ascertain whether speech made by a public employee is protected under § 31-51q, Connecticut courts look to first amendment precedent as established by the United States Supreme Court. "The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L. Ed.2d 689 (2006).
I
The defendants first argue that the plaintiff has not alleged facts in count one or three to support that his speech involved a matter of public concern. The plaintiff argues in his objection that he has alleged facts which show he engaged in speech which addressed the safety and care of patients at Southwest, improper billing practices, and improper payment of all physicians, all of which are matters of public concern.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement . . ." Connick v. Meyers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). "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.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). "[I]n determining whether the plaintiff has alleged protected speech, the inquiry on a motion to strike is only directed to the subject matter of the statement and not the particulars of the statement itself." (Citations omitted; internal quotation marks omitted.) Quattlebaum v. Laydon Industries, Superior Court, judicial district of New Haven, Docket No. CV 08 5023007 (December 1, 2010, Wilson J.); citing Daley v. Aetna Life Casualty Co., 249 Conn. 766, 777, 734 A.2d 112 (1999).
Trial courts have noted that "[s]tatements about safety matters affecting the general public have been determined to be matters of public concern." (Internal quotation marks omitted.) Dickerson v. Eagle Landing Residential Care, LLC, Superior Court, Judicial District of New Haven, Docket No. CV 07 5002263 (May 22, 2008, Taylor, J.) (holding that complaint by employee about the unclean and unhealthy cooking areas in a nursing home was matter of public concern "because it relates to the safety and welfare of the residents at the residential care homes"); see also, Miller v. O'Meara, Superior Court, Judicial District of Hartford, Docket No. CV 02 0817587 (November 23, 2004, Booth, J.) (holding that quality of care received by disabled residents was a matter of public concern). Yet another "example of an issue of public concern is one involving the expenditure of public funds . . ." Cotto v. United Technologies Corp., 48 Conn.App. 618, 631, 711 A.2d 1180, aff'd 251 Conn. 1, 738 A.2d 623 (1998). "In addition, judges of the Superior Court have held that an issue involving government funds is a matter of public concern, particularly where fraud is involved." Sobczak v. Meriden Board of Education, Superior Court, Judicial District of New Haven, Docket No. CV 419547 (October 6, 2000, Levin, J.).
The plaintiff alleges in count one of the complaint that he observed improper work practices such as "(a) refusing to discharge patients that were stable (b) requiring that patient paperwork (i.e. discharge summaries, treatment plans etc.) be completed in an inefficient manner, (c) refusing to properly isolate staff and other clients when patients were admitted with highly infectious diseases, (d) refusing to conduct family meetings with the patients' family, (e) not providing group or individual therapy for certain patients, and (f) generally engaging in practices which prohibited proper patient care." These improper work practices were the subject of the plaintiff's complaints which he expressed by "routinely and explicitly voicing his concerns regarding the Improper Practices . . . to employees of SOUTHWEST and DMHAS through email and verbal communications." The plaintiff also alleges that he engaged in protected speech by "explicitly communicating to D'Eramo and other employees of the DEFENDANTS that it could be considered Medicare fraud to continue billing stable patients who did not need inpatient care." Much like, Dickerson v. Eagle Landing Residential Care, LLC, supra, Docket No. CV 07 5002263, and Miller v. O'Meara, supra, Docket No. CV 02 0817587, the plaintiff here is expressing concerns about inadequate care that the patients are receiving, as well as concerns about the safety of patients and staff who could be exposed to infectious diseases. As the Dickerson and Miller courts have indicated, speech regarding these types of issues are related to political and social concerns in the community and therefore the speech at issue can be considered speech on matters of public concern. The plaintiff's accusations that the defendants might be engaged in Medicare fraud is also the type of statement that the courts have found to fall within the realm of matters of public concern. See Sobczak v. Meriden Board of Education, supra, Docket No. CV 419547.
In count three of the first amended complaint the plaintiff states "[t]he Union Grievance alleged that D'Eramo violated the Union contract by forcing on-call physicians to work full time to take advantage of the lower pay rate for on-call physicians." The same analysis must be applied to this speech. This allegation taken in the light most favorable to the plaintiff touches upon a matter of public concern as it involves possible union contract breaches and the mismanagement of all physicians within the union, not just the plaintiff's own personal dissatisfaction with his pay. The defendants cite to cases such as Galligan v. Town of Manchester, United States District Court, Docket No. 3:01 CV 2092 (D.Conn. May 19, 2003, Goettel, J.), to support the argument that filing a union grievance does not involve a matter of public concern, but these cases are distinguishable because they involved grievances based on personal employment matters such as the harassment of the plaintiff alone and a particular plaintiff's need for an accommodation at work for a disability. See Id. For the above reasons the court holds that the plaintiff has alleged sufficient facts in counts one and three to show that the plaintiff engaged in speech about a matter of public concern.
II
The defendants also argue that the plaintiff's allegations show that he was engaging in speech in furtherance of his official duties rather than as a member of the general public. The plaintiff argues that whether he was speaking as a citizen or pursuant to his official job duties is a question of fact that can not be appropriately decided on a motion to strike. Alternatively, the plaintiff counters in his objection that defendants attempt to exaggerate the breadth of the plaintiff's job duties in order to find his speech was pursuant to his job. The plaintiff also argues that his union grievance cannot possibly be understood to have been within his official duties as an employee of the defendants.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
"[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, supra, 547 U.S. 421. "We reject, however, the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions . . . The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id., 424-25. A helpful example of this can be found in Skaats v. State, Superior Court, Judicial District of Hartford, Docket No. CV 03 08226902 (September 4, 2009, Aurigemma, J.). In the Skaats case, employees of the department of environmental protection ("DEP") were conducting an investigation into whether the Lake Candlewood patrol officers followed DEP guidelines and procedures relating to a pontoon boat incident. The employees created a report of this investigation in furtherance of their official duties. Id. The report also pointed out that there was evidence of a cover-up of an incident in which a jet ski was stolen which implicated the governor's son. Id. Although the portion of the report about the jet-ski was incidental to their assigned investigation, the court held that the speech regarding the jet ski was made in an official report in furtherance of the employees' duties and consequently the employees were not insulated by the First Amendment from discipline arising out of their speech regarding the jet ski incident. Id.
The plaintiff's first argument that the court cannot make factual findings or consider evidence outside of the complaint to resolve a motion to strike is legally correct. There are some allegations made in the first amended complaint, however, which touch upon the issue of speech pursuant to official job duties, which the court can address in deciding the present motion.
The one duty the plaintiff alleges to hold is the duty to provide "proper patient care." The complaint also alleges that DMHAS is "organized to promote comprehensive, client-based services in the areas of mental health treatment and substance abuse treatment and to ensure the programmatic integrity and clinical identity of services in each area," and the defendants argue that the plaintiff's job duties must have included furthering this basic goal of DMHAS. This assumption, however, does not clarify the actual duties the plaintiff was expected to fulfill. This description is so broad as to include almost anything a person could do to help the operation of DMHAS, from cleaning DMHAS buildings to providing psychiatric therapy. Some of the plaintiff's speech could be motivated towards achieving proper patient care, such as his complaints that patients were not being discharged when they should be, and that there should be family meetings with some patients' families. Yet it is unclear that even these statements or complaints are of the kind that a staff psychiatrist would have a responsibility to make because the concerns are central to the fulfillment of his duties. There is no indication that the plaintiff was expected to control the discharge of patients or decide when family meetings should be held as part of his job, or that family meetings and time of discharge are central to the plaintiff fulfilling his own duty of giving patient care. Other statements, such as his complaint that the defendants' improper billing methods could be Medicare fraud fall outside of any duty the plaintiff would have relating to patient care. Since the allegations must be construed broadly and in favor of sustaining the complaint, the plaintiff has alleged legally sufficient facts to plead that he conducted in the alleged speech as a concerned citizen and not pursuant to his official duties.
As for the union grievance, speaking on improper pay rates of physicians throughout the state would be outside of the scope of plaintiff's duty as a psychiatrist to care for patients. The defendants further argue that since a union grievance can only be filed by an employee and there is no citizen analog to this type of speech it must follow that a plaintiff who files a union grievance, as a matter of law, must be speaking as a public employee and not a concerned citizen. In making this argument defendants rely mostly on Weintraub v. Board of Education of the City School District of the City of New York, 593 F.3d 196 (2d Cir. 2010), and Lorris v. Moore, United States District Court, Docket No. 3:04 CV 1036, (D.Conn, August 20, 2008). In Lorris v. Moore, the plaintiffs filed grievances according to school board procedure, and the court found that this grievance was in furtherance of their duties as teachers because they were instructed to file a grievance by their supervisor if they had a problem with certain employment decisions being made. Lorris v. Moore, supra, Docket No. 3:04 CV 1036. Even the Lorris court acknowledges that the case law it relies on, however, all focused on the content of the grievance to decide whether it was regarding a matter of public concern, instead of whether a grievance is inherently speech pursuant to public service. Id., citing, Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (speech that concerns personal employment disputes and grievances is generally not of public concern); Galligan v. Town of Manchester, supra, Docket No. 3:01 CV 2092 (filing union grievance relative to alleged harassing conduct, job duties, and need for reasonable accommodation had nothing to do with matters of public concern); Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (a complaint that does not seek "relief against pervasive or systemic misconduct by a public agency or public officials" or "to correct allegedly unlawful practices or bring them to public attention" does not touch on a public concern). The Weintraub court also acknowledged that while filing a grievance that only an employee could file is a relevant factor towards finding speech in furtherance of public duties, "the lack of a citizen analogue is not dispositive" (Internal quotation marks omitted). Weintraub v. Board of Education of the City School district of the city of New York, supra, 593 F.3d 204. In fact, the court found that the plaintiff was speaking pursuant to his duties as a teacher primarily because his speech was "part-and-parcel of his concerns about his ability to properly execute his duties . . . as a public school teacher — namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning." (Citations omitted; internal quotation marks omitted.) Id., 203.
The present case is distinguished from the above cases in that the plaintiff here has filed a grievance with a union that operates apart from the defendants and the subject of the grievance did not concern the plaintiff's ability to properly execute his duties as a psychiatrist. Instead the grievance was filed on behalf of all physicians in the union in order to address concerns about pay rates. While physician pay may be important to employees, it has no connection to the official duties of a staff psychiatrist to provide patient care regardless of his pay. For the foregoing reasons, the defendants' argument in favor of striking count three because the plaintiff has not sufficiently alleged that he filed a union grievance as a concerned citizen rather than within his official duties as a public employee, must fail.
III
Finally, the defendants also move to strike counts one and three on the ground that the plaintiff has not alleged facts to establish that he has been "disciplined or discharged" for his speech. The plaintiff argues in his objection that the allegations of retaliation do sufficiently allege that he was "disciplined."
Neither the legislature nor the Appellate Courts have defined the term "discipline" as it appears in § 31-51q, however, there is some helpful analysis from other superior courts. Previous courts have looked to dictionary definitions of the word `discipline,' the text of the statute, the legislative history of the statute and the use of the word `discipline' in analogous Connecticut statutes. After analyzing these sources one court found that, "discipline involves affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began. Discipline is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness." Bomblacki v. Pastore, Superior Court, Judicial District of New Haven, Docket No. CV 03 78772 (May 10, 2000, Blue, J.) ( 27 Conn. L. Rptr. 183).
For the purpose of jury instructions, another court compromised between conflicting case law presented by both parties to define "discipline" under § 31-51q in the following way. Discipline is an "adverse employment action short of discharge which creates a material employment disadvantage. Such adverse employment actions may include demotion, suspension, reduction in pay, reprimand, significantly diminished responsibilities but may also include lesser affirmative acts of punishment or deprivation taken by the employer which leave an employee less well off and which in combination and in their totality, create a working environment that is unreasonably inferior, hostile or adverse to the employee when compared to a typical or normal, not ideal or model, workplace. Incidents that are relatively minor and infrequent such as a change of working conditions that is a mere inconvenience or simply alters an employee's job responsibilities, personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers will not meet this standard." Charron v. Town of Griswold, Superior Court, judicial district of New London, Docket No. CV 06 5000849 (December 14, 2009, Peck, J.).
In the present case the plaintiff alleges in both counts one and three of the first amended complaint that the defendants "retaliated" against him for speaking out and filing a union grievance. The plaintiff specifically alleges that employees of the defendants retaliated by: "instructing other staff to refuse to carry out PLAINTIFF'S directives"; "ignoring PLAINTIFF'S requests to discuss the Improper Practices, and subjecting PLAINTIFF to unnecessary harassment, humiliation, intimidation, and hostile treatment"; "yell[ing] at PLAINTIFF in front of others, plac[ing] overwhelming caseload on PLAINTIFF and then reprimand[ing] him for not completing work that was not his responsibility such as completing discharge summaries"; "threatening his job"; "ignoring PLAINTIFF'S request for leave time"; "purposely direct[ing] others to assign PLAINTIFF most new patients thereby creating an unbearable and atypical work schedule"; "encourag[ing] its employees to file baseless work complaints against PLAINTIFF" and "purposely omitting PLAINTIFF from meetings regarding his patients." (Capital letters in the amended complaint.)
A broad reading of these allegations and the possible inferences from them support the plaintiff's argument that he has sufficiently alleged that he was "disciplined" under § 31-51q. Reprimanding the plaintiff, assigning him an overwhelming and atypical case load, omitting him from meetings about his own patients and instructing other employees to ignore his requests for assistance could cause the plaintiff to have trouble performing his job correctly, which could be viewed as adverse employment actions that create a material employment disadvantage. Ignoring the plaintiff's request for leave time can be considered an affirmative act of deprivation as the plaintiff would be denied a benefit of employment. The accumulation of all the alleged acts of retaliation amounts to more than just minor incidents which create an inconvenience at work. Taking the allegations as they have been stated in the complaint, the plaintiff has sufficiently alleged facts to support the element of "discipline" under the statute. Consequently, the defendants' argument that counts one and three of the amended complaint fail to allege "discipline or discharge," as § 31-51q requires, must fail.
ORDER
For the foregoing reasons, the defendants' motion to strike count two of the plaintiff's first amended complaint is granted; and the defendants' motion to strike counts one and three of the amended complaint is denied.