Opinion
No. CV 06 4005514
November 1, 2006
MORANDUM OF DECISION RE MOTION TO STRIKE #102
BACKGROUND
On February 21, 2006, this single-count action was filed by the plaintiff, George Schmidt, claiming an improper termination of his employment by the defendant, the Southern New England Telephone Company (SNET). Schmidt claims that he was terminated because he refused to submit to a drug test that was required by SNET in violation of General Statute § 31-51x(a). On March 30, 2006, SNET filed a timely motion to strike the entire complaint, along with a memorandum of law in support of the motion, on the ground that it was not filed within the appropriate statute of limitations period. On May 24, 2006, Schmidt filed a memorandum in opposition to the motion to strike, and on August 25, 2006, the defendant filed a reply memorandum. The motion to strike is granted for reasons more fully set forth in this decision.
General Statute § 31-51x(a) provides in pertinent part that, "No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance."
FACTS
Schmidt alleges the following facts. He was employed by SNET from approximately 1995 through February 7, 2003. On February 5, 2003, SNET required that Schmidt submit to a urinalysis drug test, which he refused. He further alleges that SNET was, at the time, without reasonable suspicion that he was using drugs or alcohol which would negatively affect his job performance. On February 7, 2003, Schmidt's employment was terminated as a result of his refusal to submit to the drug test. Exactly three years later on February 7, 2006, Schmidt initiated this action by service of process, seeking general and special damages as well as reinstatement to his former position.
DISCUSSION "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . 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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). However, a motion to strike is inappropriate in some circumstances: "[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . This is because a motion to strike challenges only the legal sufficiency of the complaint and might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense." (Citations omitted; internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). There are two exceptions to this, however: "[If] all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." (Citation omitted; internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). SNET moves to strike the complaint on the ground that it was not filed within the relevant three-year statute of limitations provided by General Statutes § 52-577. SNET argues that Schmidt's cause of action arose on February 5, 2003, the date he was required to submit to a drug test, and not on February 7, 2003, the date of his termination. Therefore, SNET claims that the service of process to commence this case on February 7, 2006, was untimely. SNET contends that because General Statutes § 31-51x has been construed to extend fourth amendment-like protections to private employees, federal search and seizure law is instructive, and the analogous fourth amendment law suggests that the statute of limitations begins to run on the date of the required drug test, not the date of termination. Furthermore, SNET asserts that there is nothing in the statutory language or Connecticut law which supports the contention that termination of an employee for refusal to take a drug test gives rise to an action under § CT Page 20266 31-51x.In response, Schmidt counters that his cause of action arose on the date of his termination, not the date he was required to submit to a drug test. He first contends that the fourth amendment has been held to prohibit public employers from firing employees for not submitting to unreasonable drug tests, and therefore § 31-51x should be construed to do so as well. Second, Schmidt argues that if employees who refused to take a test were not allowed to challenge their termination under § 31-51x, it would afford greater rights to users of drugs than nonusers. He argues that a person who submits to a test that is positive and is subsequently fired is able to challenge the termination while the employee who refuses is not. Finally, Schmidt argues that General Statutes § 31-51z, when read together with § 31-51x, provides a cause of action for termination in this circumstance because it "aids in the violation of" § 31-51x.
The relevant statute of limitations for bringing a tort action for a violation of § 31-51x is § 52-577, which requires that the action be brought within three years from the date of the complained-of conduct. Section 31-51x provides in relevant part: "No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance." Section 31-51z sets forth the civil actions though which any violations of § 31-51x are enforced.
Section 31-51z provides: "(a) Any aggrieved person may enforce the provisions of sections 31-51t to 31-51aa, inclusive, by means of a civil action. Any employer, laboratory or medical facility that violates any provision of sections 31-51t to 31-51aa, inclusive, or who aids in the violation of any provision of said sections shall be liable to the person aggrieved for special and general damages, together with attorneys fees and costs.
"(b) Any employer, laboratory or medical facility that commits, or proposes to commit, an act in violation of any provision of sections 31-51t to 31-51aa, inclusive, may be enjoined therefrom by any court of competent jurisdiction. An action for injunctive relief under this subsection may be brought by any aggrieved person, by the Attorney General or by any person or entity which will fairly and adequately represent the interests of the protected class."
Courts have repeatedly noted that "[a] statute is enacted as a whole and must be read as a whole rather than as separate parts or sections . . . Further, [w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended." (Internal quotation marks omitted.) Giglio v. American Economy Ins. Co., 278 Conn. 794, 805, 900 A.2d 27 (2006). There is a paucity of law construing either § 31-51x or § 31-51z, and no case has directly considered whether termination of employment can give rise to a cause of action under either section.
In considering the legislative purpose of § 31-51x, the Connecticut Supreme Court has concluded that "[t]he legislative history indicates that [Public Acts 1987, No. 87-551] was intended to provide the same protections to private employees in Connecticut as those protections that are afforded to employees of the federal government by the fourth amendment to the United States constitution . . . [and therefore] should be resolved in a manner consistent with federal fourth amendment constitutional law." Poulos v. Pfizer, Inc., 244 Conn. 598, 606-07, 711 A.2d 688 (1998); sec also Doyon v. Home Depot U.S.A., Inc., 850 F.Sup. 125, 128 (D.Conn. 1994) ("Section 31-51x, properly understood as protecting the privacy rights of employees from employer-mandated urinalysis drug testing, is thus analogous to the Fourth Amendment, which protects the privacy rights of employees against Government-mandated urinalysis testing").
Comparison to the Fourth Amendment
Schmidt cites Wrightsell v. Chicago, 678 F.Sup. 727 (N.D.Ill.E.D. 1988), for the proposition that "a public employee can challenge his termination on Fourth Amendment grounds when he is terminated for refusing to submit to the search." Id., 730. The Wrightsell court reached this conclusion based on the Court of Appeals' decision in Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987). Everett, however, holds that a public employee can raise a fourth amendment claim in connection with an employer-mandated drug test, not that wrongful termination gives rise to a fourth amendment claim. While the introductory paragraphs of the decision combine the plaintiff's fourth and fourteenth amendment claims with the "wrongful termination" claim, the court's analysis is later divided between the reasonableness of the search and other issues raised by the plaintiff, such as his right to due process before his job was terminated. A logical reading of the case is that the plaintiff's fourth amendment claim was premised upon the improper drug testing itself and not his subsequent termination.
The argument asserted by the plaintiff in the present case does not have any support by courts other than Wrightsell v. Chicago, supra, 730, which may have simply misinterpreted the holding of Everett. Other federal cases considering the validity of a public employer's drug testing under the fourth amendment, where the issue of wrongful termination was raised, appropriately address this issue under the fourteenth amendment. See Morales v. Albuquerque, United States District Court, Docket No. CIV 99-452 MV/WWD (D.N.M. July 26, 2000) (dismissing the plaintiff's fourth amendment claims as to individual defendants who were responsible for his termination, but who had nothing to do with the impermissible drug testing); Drake v. Delta Air Lines, Inc., 147 F.3d 169 (2d Cir. 1998) (affirming district court's decision that, as a non-state actor, Delta was not subject to Drake's fourteenth amendment due process claim arising out of his termination subsequent to an improper drug test).
The only decision following Wrightsell is a later case heard by the same district court, Kraii v. Chicago, United States District Court, Docket No. 96 C 7811, (N.D.Ill.E.D. March 28, 1997).
Most probative to the case before the court is the holding of Jacobs v. Tuckahoe, United States District Court, Docket No. 94 Civ. 4888 (S.D.N.Y. June 26, 1996). In Jacobs, the court granted the defendant's motion to strike the plaintiff's fourth amendment claim for illegal drug testing because the three-year statute of limitations for 42 U.S.C. § 1983 actions had run. Importantly, it noted that the relevant date for triggering the limitations period was the date of the improper search or seizure, and not the date of the plaintiff's termination several months later. Therefore, if § 31-51x is to be applied in a manner consistent with federal fourth amendment jurisprudence, the cause of action here arises from an improper search or drug test requirement and not from a wrongful termination.
Although the facts in Jacobs did not involve a refusal to take the test, the plaintiff had commenced his cause of action within three years of his termination but not within three years of the illegal drug testing, very much like the present case.
Wrongful termination may indeed be a cause of action arising under General Statutes § 31-51u, which provides that an employer may not take a positive drug test into account in terminating an employee unless the test was taken in compliance with the methodology of that statute. The claim here, however, is a violation of 51x, which contains the reasonable suspicion requirement. Therefore, for the purpose of a statute of limitations analysis, the triggering occurrence under 51u would be considering a test that was not in compliance with the statutory methodology when terminating an employee. Such a claim could give rise to a "triggering occurrence" date different from the date of the test. Here, the alleged violation was in requiring the test without reasonable suspicion.
Connecticut Law Construing §§ 31-51x and 31-51z
Connecticut law does not appear to support Schmidt's contention that "[the] [d]efendant's position leads to an illogical result." The court in Verrilli v. Sikorsky Aircraft Corp., Superior Court, judicial district of Fairfield, Docket No. CV 01 0380937 (July 6, 2004, Levin, J.) ( 37 Conn. L. Rptr. 448, 450), noted that, "the [plaintiff's] wrongful discharge claim purports to be based on General Statutes § 31-51[x]. That statute does not prohibit the discharge of an employee." While, as the plaintiff notes, this single comment from an unpublished opinion is not an incontrovertible statement of Connecticut law, it is persuasive in the absence of any law to the contrary. The cases cited by Schmidt in support of his position, Poulos v. Pfizer, Inc., supra, 244 Conn. 598, and Doyon v. Home Depot U.S.A., Inc., supra, 850 F.Sup. 125, do not hold that termination is directly actionable under § 31-51x. Poulos, for example, primarily discusses whether an employee can waive his rights to challenge the testing requirement itself under 31-51x. Although the plaintiff had claimed wrongful termination in that case, neither the Supreme Court nor the trial court on remand discussed that issue, focusing instead on the actual drug testing.
SNET notes in its brief that the court's reference to "31-51k" is probably a typographical error, and that "31-51x" was intended. The court will assume the same.
On the other hand, before Poulos v. Pfizer, Inc. was appealed to the Supreme Court, the trial court in Poulos v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. CV 91 520719 (June 24, 1992, Hurley, J.) ( 6 Conn. L. Rptr. 545) ( 7 C.S.C.R. 799), granted the defendant's motion to strike the plaintiff's wrongful discharge claim because he had a statutory remedy under § 31-51x and § 31-51z. As mentioned above, the Supreme Court did not address this issue on appeal. The trial court noted that "the plaintiff . . . is seeking damages and reinstatement under General Statutes Section 31-51z," indicating that damages for termination are recoverable under § 31-51z itself, with the cause of action arising from the act of mandatory drug testing. Id., 800. This comports with the court's observation in Verrilli v. Sikorsky Aircraft Corp. supra, 37 Conn. L. Rptr. 448, that § 31-51x does not provide a cause of action based on wrongful termination. Furthermore, contrary to Schmidt's suggestion, this interpretation of the statute does not deprive him or those similarly situated of a remedy for such wrongful termination; the resulting injuries may be recovered as damages in the suit brought under § 31-51z for the violation of § 31-51x.
Schmidt's final argument is that certain language contained in § 31-51z(a), which makes any person who "aids in the violation of any provision of [31-51t to 31-51aa, inclusive]" liable for injuries to an aggrieved person, covers the act of termination, and, therefore, this statute gives rise to a cause of action that would be within the three-year limitations period. Research has revealed no case law relevant to this contention. The reading suggested by the plaintiff, however, goes beyond the clear meaning of the statute to an unreasonable degree. Instead, the phase "aids in the violation of" refers to actions that facilitate the violation itself, which is an impermissible drug test and not actions taken subsequent to the violation, no matter how closely related they may be. The plaintiff's argument citing to Doyon v. Home Depot USA., Inc., supra, 850 F.Sup. 130, that "presenting an employee with the choice between submitting to a drug test that violates Section 31-51x or being fired is coercive, and tantamount to no choice at all," may well be true. Nevertheless, as the court's analysis indicates, the requisite violation remains an improperly mandated drug test, and not the subsequent firing of an employee. Although logic may lead to the conclusion that the improper termination of an employee ought to be a statutory cause of action, it is not included within the language of General Statutes § 31-51x and, instead, appears to be the basis for a remedy under General Statutes § 31-51z.