Opinion
No. CV 05-5001734S
October 20, 2006
MEMORANDUM OF DECISION
Connecticut General Statutes § 31-51q states in relevant part that "[a]ny employer, including the state 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 . . . shall be liable to such employee for damages caused by such discipline or discharge . . ." Plaintiffs Conboy, Mix, Hickey, and Khade have brought the present action, pursuant to § 31-51q, both individually and on behalf of other similarly situated persons alleging that they were terminated from their employment as state employees because of "anti-union animus" and "in retaliation for activity protected by federal and state guarantees of freedom of speech and association."
Connecticut General Statutes § 31-51q states: "Any 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."
Plaintiffs were members of the Connecticut State Employees Association. They allege that they and 2800 other members were terminated from their employment in early 2003. Plaintiffs are seeking class action certification in this matter.
A.
The state has moved to dismiss this action based on the doctrine of sovereign immunity. First, the state maintains that § 31-51q does not waive the state's sovereign immunity from suit, and second that the plaintiffs were not discharged from state employment within the meaning of § 31-51q.
As to the first argument, the state argues that while the statute has an express waiver of immunity from liability (an employer may be liable for damages), the statute does not expressly waive immunity from suit and, thus, this action must fail. It bases this argument on the relatively recent decisions of Martinez v. Dept. of Public Safety, 263 Conn. 74, 79-80, 818 A.2d 758 (2003) and St. George v. Gordon, 264 Conn. 538, 551, 825 A.2d 90 (2003). In Martinez, a case dealing with the indemnification of police officers after their defense of a suit, the court revisited the issue of sovereign immunity addressing the two-part analysis of immunity from liability and immunity from suit. It referenced Bergner v. State, 144 Conn. 282, 130 A.2d 293 (1957), in which it had held that "[t]here is, of course, a distinction between sovereign immunity from suit and sovereign immunity from liability. Legislative waiver of a state's suit immunity merely establishes a remedy by which a claimant may enforce a valid claim against the state and subjects the state to the jurisdiction of the court. By waiving its immunity from liability, however, the state concedes responsibility for wrongs attributable to it and accepts liability in favor of a claimant." Martinez v. Dept. of Public Safety, supra, 263 Conn. 79. The Martinez court went on to state that "the [ Bergner] court concluded that the waiver of immunity from suit impliedly included a waiver of immunity from liability. We did not address, however, whether in the reverse situation — when there is an explicit waiver of immunity from liability but not a waiver of immunity from suit — a waiver of immunity from suit should be implied. In the present case, we are faced with that exact situation." (Citation omitted.) Id., 80. It then held that "[a] waiver of immunity from liability is not meaningless without concomitant waiver of immunity from suit because . . . [a] claimant under § 53-39a can enforce his or her right to indemnity without bringing suit against the state by filing the claim with the claims commissioner." Id., 86. The two-pronged analysis was additionally noted in St. George v. Gordon, supra, 264 Conn. 551 ("Our conclusion in the present case is controlled by our ruling in Martinez, wherein we concluded that an analogous statute that provided for indemnification of state police officers and others, General Statutes § 53-39a, constituted a waiver of immunity from liability, but not a waiver of immunity from suit . . . We therefore determined that the plaintiff's indemnity claim could be satisfied only by the filing of a claim with the claims commissioner, and not by filing suit . . . The same result applies in the present case.") (Citations omitted.) The state argues that this same question must be asked in the present case: whether the conceded waiver of immunity of liability in § 31-51q also includes the waiver of immunity from suit.
But see Martinez v. Dept of Public Safety, 263 Conn. 74, 88-89, 818 A.2d 758 (2003) (Norcott, J., dissenting). Justice Norcott remains in agreement with the Court's earlier opinion in Martinez v. Dept of Public Safety, 258 Conn. 680, 784 A.2d 347 (2001) ( Martinez I), which concluded that "General Statutes § 53-39a abrogated sovereign immunity from both liability and suit . . . [A]lthough § 53-39a does not explicitly waive sovereign immunity from suit, I conclude that the present case presents one of the certain prescribed cases for which the state implicitly has waived its sovereign immunity for purposes of indemnification." (Citations omitted; internal quotation marks omitted.) Justice Norcott went on to state: "[B]ecause the language of § 53-39a is explicit and its directive is mandatory, the legislature intended to waive sovereign immunity from both liability and suit . . . [W]ithout the waiver of immunity from both liability and suit, the statute would be meaningless to the people whom it is intended to protect." (Citations omitted.) Id., 89-90.
See also St. George v. Gordon, 264 Conn. 538, 571-72, 825 A.2d 90 (2003) (Katz, J., dissenting) ("The statute does not include language that we typically would construe as an express waiver of sovereign immunity. It does, however, affirmatively impose on the state a duty to indemnify its employees when they are sued by third persons in their individual capacity for negligent acts. We can apply a mechanistic, formal approach that would render the indemnification provision utterly useless and meaningless or we can look beyond the literal meaning of the words used to further the statute's purpose of ensuring that state employees may conduct the state's business without concern about incurring personal liability for mere negligence. In my view, the latter is the correct approach.") (Citations omitted; internal quotation marks omitted.)
The plaintiffs counter the above argument by first citing Skinner v. Angliker, 15 Conn.App. 297, 300-02, 544 A.2d 246 (1988), aff'd, 211 Conn. 370, 559 A.2d 701 (1989) an action against the commissioner of mental health in which the plaintiff claimed he had been wrongfully discharged from employment because he had reported incidents of alleged patient abuse in exercise of his first amendment rights. The trial court rejected a motion to dismiss filed by the state in which the state argued that § 31-51q did not waive immunity from suit — the same claim made in the present case, and thereafter a jury verdict was rendered in favor of Skinner. The state appealed, arguing that the legislature had not specifically waived immunity from suit. The Appellate Court first stated that "[i]t is a well established principle in our state that the defense of sovereign immunity is inappropriate where the legislature, by appropriate legislation consents to being sued." Id., 300. It then held that "[t]he case before us is one of first impression. The controlling issue on appeal is whether the legislature intended General Statutes § 31-15q to constitute a waiver of sovereign immunity . . . In this case, it is abundantly clear that General Statutes [§]31-51q does waive the sovereign immunity by its expressed terms. The legislature, in clear and unambiguous language, put the state in the same status of an employer in the first sentence of the law by stating: Any employer, including the state and any instrumentality or political subdivision thereof . . . Moreover, the defense of sovereign immunity is not a defense to an alleged violation of constitutional rights." (Emphasis in original; internal quotation marks omitted.) Id., 300-01.
The case went to the Supreme Court on the issue of whether § 31-51q provided the right to a jury trial but in a discussion on whether sovereign immunity precluded the suit, the Supreme Court stated that "[a]lthough the absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others . . . it was not until the enactment of [§]31-51q in 1983 that this bar was removed in suits against the state for wrongful discharge due to an employee's exercise of his or her first amendment rights." (Citation omitted; internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 377, 559 A.2d 701 (1989). The court later commented that "[w]hen the state, by statute, waives its immunity to suit, as it has in § 31-51q, the right to a jury trial cannot be implied, but rather, must be affirmatively expressed." Id., 381. Finally, in footnote four, the court discussed the history of the sovereign immunity argument and stated "[w]e agree with the Appellate Court that the state waived its immunity in § 31-51q and, therefore, do not reexamine the issue in this appeal." Id., 373.
While not discussed in Skinner, this court takes note of General Statutes § 31-51q: "[i]f 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." (Emphasis added.) The explicit reference to "the court" in the statute certainly seems to indicate the legislature intended to abrogate sovereign immunity in order to allow plaintiffs to sue directly in Superior Court. "[I]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 415, 880 A.2d 882 (2005).
The plaintiffs cite a number of decisions that were rendered after Skinner which certainly suggest that the immunity from suit issue was resolved. See Lewis v. Gaming Policy Board, 224 Conn. 693, 711, 620 A.2d 780 (1993); Lacasse v. Burns, 214 Conn. 464, 469 n. 6., 572 A.2d 357 (1990); Cotto v. United Technologies Corp., 251 Conn. 1, 6-7, 738 A.2d 623 (1999). This court notes that the above cases do not directly affirm the holding in Skinner; yet, it is clear that the Supreme Court acknowledged the Skinner holding as precedent — even if it did not engage in a dual analysis — and this court is bound by those decisions. "The Appellate Court had recent occasion to state that, as an intermediate court, it does not have the authority to reexamine or reevaluate Supreme Court precedent . . . [Trial courts] must also abide by and adhere to decided cases as dictated by stare decisis." (Citations omitted.) Bemonte v. Bemonte, 44 Conn.Sup. 431, 436, 693 A.2d 739 (1996) ( 16 Conn. L. Rptr. 336). "Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency." (Internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 553-54 n. 16. This court cannot disregard these decisions and their holdings and thus denies the state's motion to dismiss, which was based on the grounds that the state has not waived immunity from suit.
In Lewis v. Gaming Policy Board, 224 Conn. 693, 711, 620 A.2d 780 (1993), the plaintiff appealed to the Superior Court from a decision by the defendant gaming policy board ordering the termination of his employment as head of the lottery unit of the division of special revenue in the department of revenue services. The court found that the plaintiff's claim that § 31-51q and § 31-51m afforded him a basis for administrative appeal was misplaced: "Sections 31-51m and 31-51q create causes of action enforceable in Superior Court to protect employees from illegal retaliatory action." Lewis v. Gaming Policy Board, supra, 224 Conn. 711.
In Lacasse v. Burns, 214 Conn. 464, 469 and n. 6, 572 A.2d 357 (1990), the plaintiffs sustained injuries in separate accidents that were allegedly caused by defective highways and sought damages from the defendant commissioner of transportation pursuant to General Statutes § 13a-144. The Court found that, by waiving the state's sovereign immunity in § 13a-144, the legislature intended that procedural statutes and rules of court be applied to the state, just as they would be applied to any other litigant. Lacasse v. Burns, supra, 214 Conn. 470. In footnote six of the Lacasse decision, the Court reiterated its decision in Skinner including its holding that the state did waive sovereign immunity from suit in General Statutes § 31-51q.
A third case proffered by the Plaintiff as affirming the holding of Skinner, is Cotto v. United Technologies Corp., 251 Conn. 1, 738 A.2d 623 (1999). In Cotto, the plaintiff sought to recover for the defendant employer's allegedly wrongful termination of his employment, in violation of § 31-51q for his refusal to display an American flag at his workstation. While the Cotto court makes no mention of Skinner, in its analysis the Court does make clear that "[s]ection 31-51q creates a statutory cause of action for damages against [a]ny employer for any employee . . . On its face, the statute extends the protection of federal and state constitutional rights in two respects. It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers." (Internal quotation marks omitted.) Cotto v. United Technologies Corp., supra, 251 Conn. 6.
B.
As noted, § 31-51q states, in relevant part, that "[a]ny employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to CT Page 19441 discipline or discharge on account of the exercise by such employee of rights . . ." (Emphasis added.) The state's second argument is that the plaintiffs were not discharged or disciplined under the meaning of the statute. The state maintains that the plaintiffs do not allege that they were discharged or disciplined; rather, they only allege that they and 2800 state union employees were "terminated" from employment. Moreover, it argues that they were not discharged (or disciplined) but simply "laid off" due to the state's fiscal crisis. Such status is recognized under the collective bargaining agreement as the "involuntary, non-disciplinary separation of an employee from state service because of lack of work, economic necessity, insufficient appropriation, departmental reorganization or abolition of position." Finally, the state argues that subsequent acts of the legislature acknowledged and accepted the layoffs and such recognition would be inconsistent with a waiver of sovereign immunity to allow a claim for conduct it approved.
The plaintiffs reject the argument: even if economic necessity required a force reduction, "§ 31-51q prohibits the state from selecting which employees it will lay off based on anti-union animus or in retaliation for the employees' First Amendment activities."
Our Supreme Court has stated: "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a . . . court decides a jurisdictional question raised by a pre-trial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). The plaintiffs have alleged that they and other union members were terminated because of their union status; the state argues that those state employees were laid off due to budgetary considerations. These claims cannot be resolved on a motion to dismiss as the factual dispute — and there is certainly a factual dispute — is not before the court on this motion. Rather, the question is whether the plaintiffs' complaint contains sufficient allegations to fall within the purview of § 31-51q; it does, and therefore the motion to dismiss is denied. CT Page 19442