Opinion
No. HHD CV 106010073
February 9, 2011
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE
On April 16, 2010, the plaintiff, Brian Aumueller, filed a three-count complaint against the defendants, Optimus Management Group, Inc. (Optimus) and Discovery Management Solutions, LLC (Discovery), claiming wrongful discharge in violation of General Statutes § 31-51m, wrongful discharge in violation of General Statutes § 31-51q and failure to pay wages in violation of General Statutes § 31-72. The allegations of the complaint include the following: Optimus, a corporation, and Discovery, a limited liability company, share the same business address in Hartford, Connecticut and the same CEO. The plaintiff alleges that he began working as the Vice President of Field Operations for Optimus on August 20, 2007, pursuant to a letter agreement with it. That letter agreement was in effect throughout his employment and provided for a salary and bonus incentives based upon the net income of Optimus. Although he worked for Optimus, the plaintiff alleges that his salary was paid by both Optimus and Discovery. On August 26, 2009, the plaintiff received an email from the CEO who hired him, thanking him for his hard work and dedication to Optimus. That CEO passed away on August 28, 2009 and his widow took over as the CEO of both entities. The plaintiff then became involved with the internal operations of Optimus and Discovery.
The plaintiff alleges that due to his greater involvement in both Optimus and Discovery, he became aware of a number of improper and fraudulent accounting practices, one of which was inaccurate reporting regarding workers' compensation benefits for employees working in Ohio. The plaintiff attempted to discuss his concerns regarding these allegedly unlawful practices with the new CEO, but was rebuffed. The plaintiff alleges that none of the improper and fraudulent accounting practices were corrected.
On Christmas day, 2009, the plaintiff reported the alleged fraud online to the Ohio bureau of workers' compensation, stating that Optimus was intentionally misrepresenting the status of its employees in Ohio to avoid paying workers' compensation taxes. Two days later, the plaintiff informed the new CEO that he had reported the Ohio workers' compensation fraud to the Ohio bureau of workers' compensation. She told the plaintiff that it was not his concern and that the accounting department would handle it. On January 12, 2010, the plaintiff's employment was terminated.
The plaintiff alleges that the defendants unlawfully retaliated against him and discharged him in violation of General Statutes § 31-51m, which protects employees from retaliation for reporting an employer's illegal conduct, claiming that his reporting to the Ohio bureau of workers' compensation was conduct protected by that statute. The plaintiff also alleges that his discharge violated General Statutes § 31-51q, which protects employees who are discharged for exercising certain constitutional rights, because his speech addressed matters of public concern. Finally, the plaintiff alleges that the defendants' fraudulent accounting practices led to the deprivation of commissions and bonuses that were owed to him in violation of General Statutes §§ 31-72 et seq., which allow an employee to bring an action to collect back wages.
On June 15, 2010, the defendants filed a motion to strike the plaintiff's complaint. Discovery seeks to strike the entire complaint in regard to itself on the ground that it did not employ the plaintiff. Both defendants seek to strike the § 31-51m claim on the ground that the plaintiff's report to an Ohio state agency is not an activity protected by that statute. The plaintiff filed an objection to the defendants' motion on September 15, 2010, claiming that Discovery did employ him and that his reporting to the Ohio bureau of workers' compensation meets the definition of "public body" as codified in § 31-51m. Oral arguments were heard on October 12, 2010.
"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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Id.
I
AN EMPLOYMENT RELATIONSHIP HAS NOT BEEN PLED BETWEEN THE PLAINTIFF AND DISCOVERY
In the memorandum in support of its motion, Discovery argues that it did not employ the plaintiff, and the plaintiff's counts against Discovery must fail, because each cause of action requires the existence of an employment relationship. The complaint, fairly read, currently states an employment relationship only between the plaintiff and Optimus. He was hired by Optimus, his employment contract was with Optimus, his position was that of a vice-president with Optimus, his compensation depended on the net income of Optimus and he worked for Optimus. The plaintiff does not plead that he was hired by Discovery, held a position at Discovery, had a contract with Discovery or was an employee of Discovery. Having failed to do so, the plaintiff instead argues that he has plead sufficient facts to establish that he was an employee of Discovery under the "right to control" test.
While the plaintiff adds several additional facts in his brief as to his work for Discovery, including his responsibilities for business development and contracting on behalf of Discovery, it is well established that the court is limited to reviewing the allegations within the four corners of the complaint in ruling upon this motion.
The common-law right to control test has been applied in several different factual circumstances to determine whether an employment relationship existed between parties. See Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d. 834 (2000) (applying test to determine whether joint venturer was considered employer in context of workers' compensation statute); Hunte v. Blumenthal, 238 Conn. 146, 154-67, 680 A.2d 1231 (1996) (applying test to determine whether foster parents were state employees or independent contractors for purposes of defense and indemnification by the state); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 694-98, 651 A.2d 1286 (1995) (applying test to determine whether individual was employee or independent contractor in context of collection of unpaid wages); Latimer v. Administrator, 216 Conn 237, 248, 579 A.2d. 497 (1990) (applying test to determine whether individual was employee or independent contractor under unemployment compensation statute).
"The right to control test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." (Internal quotation marks omitted.) Doe v. Yale University, supra, 252 Conn. 680-81. "One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained . . ." (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 45 Conn.App. 441, 444, 696 A.2d 1026 (1997), aff'd, 245 Conn. 613, 716 A.2d 857 (1998). The determinative question in whether an employer-employee relationship exists is: "[h]as the employer the general authority to direct what shall be done and when and how it shall be done — the right of general control of the work?" (Internal quotation marks omitted.) Id.
The complaint nowhere shows that the defendant Discovery had any right to control the actions of the plaintiff. Insufficient facts having been plead to establish an employment relationship between Discovery and the plaintiff, and such employment being a prerequisite for all three of the counts plead, the court grants the motion to strike the entire complaint as to Discovery.
II
AN OHIO STATE AGENCY DOES NOT CONSTITUTE A "PUBLIC BODY" UNDER GENERAL STATUTES § 31-51m
The plaintiff has sued both defendants in count one for wrongful discharge under General Statutes § 31-51m. He alleges that he was terminated in violation of that Connecticut statute because of his whistleblowing to the Ohio bureau of workers' compensation. Subsection (b) of General Statutes § 31-51m provides in relevant part: "No employer shall discharge, discipline or otherwise penalize any employee because the employee . . . reports . . . a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . ." (Emphasis added.) Subsection (c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may . . . bring a civil action . . . in the superior court . . . for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred . . ."
The key question is whether the Ohio agency qualifies as a "public body" under Section 31-51m. Section 31-51m(a)(4) defines "public body" as: "(A) any public agency, as defined in subdivision (1) of Section 1-200, or any employee, member or officer thereof, or (B) any federal agency or any employee, member or officer thereof." General Statutes § 1-200(1), which provides the definitions used in the Freedom of Information Act (FOIA), defines "public agency" as: "(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; [or] (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law . . ." (Emphasis added.)
See General Statutes §§ 1-200 et seq.
In the memorandum in support of their motion, the defendants argue that the Ohio bureau of workers' compensation does not meet the definition of "public body" under § 31-51m because public agencies of other states are not included in the definition. They emphasize the appearance of the word "the" before the word "state" in § 1-200(1)(A) and argue that this supports the conclusion that the definition of "public body" includes only agencies within the state of Connecticut. The defendants assert that the plaintiff's claim for protection under § 31-51m must, therefore, fail. In opposition, the plaintiff argues that the defendants' interpretation of § 31-51m is too narrow. The plaintiff asserts that accepting this definition would lead to an unfair and absurd result of providing protection only to those who report their employers to Connecticut and federal agencies and providing no protection to employees who report their employers to foreign agencies, including other states. In the alternative, the plaintiff argues that under the "functional equivalent" test espoused by Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980), the Ohio bureau of workers' compensation would be considered a "public body" for purposes of § 31-51m.
"The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence shall not be considered. When the relevant statutory text and the relationship of that text to other statutes do not reveal a meaning that is plain and unambiguous, [the] analysis is not limited, and [the court looks] to other factors relevant to determining the meaning of [the statute], including its legislative history, the circumstances surrounding its enactment and its purpose." (Citations omitted; internal quotation marks omitted.) DaimlerChrysler Services North America, LLC v. Commissioner of Revenue Services, 274 Conn. 196, 202-03, 875 A.2d 28 (2005). When construing a statute, it is presumed "that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions." (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998).
In § 1-200(1)(a), "the" appears before "state" every time "state" is listed. The use of "the" instead of "a" or "any," before "state" thorough out the statutory provision indicates that the definition of "public agency" is limited to agencies in Connecticut. The legislative history of General Statutes § 31-51m also provides evidence to support such a conclusion.
General Statutes § 31-51m was enacted through the passage of Public Acts 1982, No, 82-289, § 1, "An Act Protecting Employees Who Disclose Their Employer's Illegal Activities." The statute was enacted in the wake of a railroad employee's termination after he sent a letter to the editor of the Hartford Courant explaining where he felt tax money was being misused. Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1982 Sess., p. 93. The statute was enacted to ensure that employees who recognized that their employers' conduct compromised the health and welfare of Connecticut were not penalized for reporting such conduct. Id. Public Act 82-289, § 1 defined "public body" as "any public agency, as defined in [subsection (1) of Section 1-200] of the general statutes, or any employee, member or officer thereof."
The original version of the statute did not include reporting to federal agencies, Conn. Joint Standing Committee Hearings, Labor, Pt. 2, 1985 Sess., p. 606, because the statute incorporated the definition of public agency as used in § 1-200(1)(A), which did not include federal agencies. Id. It was noted that "[t]he problem with the statutory definition is that it limits the definition of public agency to state agencies, or agencies which are political subdivision of the state." Id. The definition of "public body" in the statute was amended by Public Acts 1985, No. 85-58 to include "any federal agency or any employee, member or officer thereof."
In amending 31-51m, the General Assembly consciously added federal agencies to the definition of "public body" in the statute. The legislative history surrounding the enactment of § 31-51m and the enactment of the 1985 amendment to include federal agencies contains no suggestion that the General Assembly intended to include foreign states and their agencies within the scope of § 31-51m. If that was the General Assembly's intent, it could have so amended § 31-51m at any time.
In enacting § 31-51m, the General Assembly relied on the definition of public agency in § 1-200 as the definition for "public body." Section 1-200 provides definitions for the Connecticut FOIA, a law that applies solely to governmental agencies within Connecticut. Had the General Assembly intended the definition of "public body" to include foreign agencies, it could have easily included them, as it later included federal agencies. The General Assembly instead chose to rely on a statutory definition that is strictly limited to agencies within the state of Connecticut.
Such a reading of the statute does not lead to "absurd" results, as the plaintiff suggests. The goal of protecting the health and welfare of Connecticut, by protecting employees who report conduct which jeopardizes such, is amply served by providing whistleblower protection for reports to Connecticut and federal agencies. That goal would in no way be served by providing protection for reports to an Ohio, Alaskan or even Bolivian agency about conduct affecting the citizens of those states or countries. The plain language of the statute and the legislative history reveal that out of state agencies were not intended to come within the purview of § 31-51m.
The plaintiff's alternative argument, that the Ohio bureau of workers' compensation is the functional equivalent of a Connecticut public agency under § 1-200, is also unavailing. In Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554-56, the Supreme Court established the functional equivalent test to determine whether a charter high school was a public agency under the Connecticut Freedom of Information Act. Subsequent cases have applied the functional equivalent test in the context of requests for information made pursuant to the Connecticut FOIA regarding entities located in Connecticut. See Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 759-66, 591 A.2d 395 (1991) (holding Connecticut Humane Society was not an agency under § 1-200); Fromer v. Freedom of Information Commission, 90 Conn.App. 101, 105-06, 875 A.2d 590 (2005) (holding college instructor was not an agency under § 1-200).
The plaintiff cites no cases for the unique proposition that the functional equivalent test be used to determine that a foreign agency is a Connecticut public agency under § 1-200. Since the functional equivalent test is used to determine whether an entity is a public agency within the state of Connecticut for purposes of the Connecticut FOIA, it would be inappropriate and illogical to utilize that test to bootstrap the agency of a foreign jurisdiction into the position of a Connecticut agency for purposes of the whistleblower protection statute.
For the reasons stated above, the motion to strike all counts as to defendant Discovery and count one as to defendant Optimus is granted.