Frank v. CCARC, Inc.

Full title: Christie Frank v. CCARC, Inc

Court: Superior Court of Connecticut

Date published: Dec 27, 2016

HHDCV166066639 (Conn. Super. Ct. Dec. 27, 2016)

Opinion

HHDCV166066639

12-27-2016

Christie Frank v. CCARC, Inc

Nina F. Elgo, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Nina F. Elgo, J.

On February 19, 2016, the plaintiff, Christie Frank, commenced a two-count action against the defendant, CCARC, Inc., alleging pregnancy discrimination in violation of the Connecticut Fair Employment Practices Act and General Statutes § 46a-60(a)(7), and common-law wrongful discharge in violation of public policy and General Statutes § 46a-11b. On April 21, 2016, the defendant filed a motion to strike count two of the complaint on the ground that count two is a " claim under Connecticut's whistleblowing statute, " General Statutes § 31-51m, a statute which " preempts a common law wrongful termination claim based upon whistleblowing, even if the statutory remedy is unavailable." The defendant argues, therefore that Count two is legally insufficient because the plaintiff has not " complained to a public body" as required by § 31-51m. The defendant additionally argues in support of its motion that count two is legally insufficient because the plaintiff has " fail[ed] to recite any specific expression of public policy that the [defendant] allegedly violated." In response, the plaintiff asserts that § 31-51m does not preclude a common-law wrongful discharge claim because the claim " is based on differing policy initiatives" and the plaintiff " complained internally as opposed to a public body."

FACTS

The plaintiff alleges the following facts.

On May 7, 2014, the defendant hired the plaintiff as its residential service instructor. The plaintiff " performed her job at or above a satisfactory level." " In late January 2015 or early February 2015, " the plaintiff notified the defendant that a co-worker of hers had abused a patient of the defendant. " Shortly after making the complaint, " the defendant placed the plaintiff " on a 90-day performance improvement plan, " which required the plaintiff " to have weekly meetings with a supervisor." The plaintiff " had a meeting with a supervisor, " but was also " unable to have a meeting with the supervisor because she could not find the supervisor." On or about March 3, 2015, the plaintiff notified the defendant that she was pregnant. The plaintiff notified the defendant that " she missed time from work due to a pregnancy complication" and also provided the defendant " with a doctor's note stating that she could work without restriction while pregnant." Although the defendant's " performance improvement plan made reference to prior verbal warnings, " the plaintiff " had not received verbal warnings" from the defendant.

On March 11, 2015, the plaintiff " was to meet with [the] defendant's director, Rita White, to discuss the plaintiff's complaint of abuse [of the defendant's patient]"; however, the defendant terminated the plaintiff's employment " for not having the weekly meetings" pursuant to the performance improvement plan. Thereafter, the defendant " told the Connecticut Department of Labor that the plaintiff was fired for being rude and hostile." The plaintiff claims that she was wrongfully discharged by the defendant on account of her pregnancy in violation of the Connecticut Fair Employment Practices Act and § 46a-60(a) (count one), and that her discharge also is wrongful at the common law in violation of public policy in consideration of § 46a-11b (count two), a statute that " mandates [the defendant] report abuse or neglect of an intellectual disabled resident of [the defendant's] facility." Specifically, the. plaintiff alleges that the defendant " terminated [her] employment in retaliation [for her] internal notification [to the defendant of her co-worker's] abuse [of the defendant's patient]."

DISCUSSION

" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegation of any complaint . . . to state a claim upon which relief may be granted." Practice Book § 10-39(a)(1). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] 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, [the court notes] that [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.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to. strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

The central issue this court must resolve is whether, under the facts of this case, the plaintiff is required to plead a cause of action under § 31-51m, rather than pursue a common-law wrongful termination claim. The defendant insists that pursuant to Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000), the plaintiff is not only required to plead a statutory whistleblower cause of action, but cannot successfully do so since under § 31-51m, the statute requires that an employee make a complaint to a public body. The plaintiff concedes that she did not complain to a public body but argues that count two of the complaint is legally sufficient because the Supreme Court in Burnham v. Karl & Gelb only foreclosed common-law whistleblowing claims based upon the public policy underlying § 31-51m, not a wrongful termination claim alleging a violation of public policy codified in a different statute than § 31-51m. The plaintiff has pleaded in count two that the " defendant terminated [the] plaintiff's employment in retaliation of plaintiff's internal notification regarding abuse committed by defendant's employee"; and that General Statutes § 46a-11b " mandates that the defendant report abuse or neglect of an intellectually disabled resident of [the] defendant's facility." The plaintiff argues that she is not limited to § 31-51m because, unlike the plaintiff in Burnham, the plaintiff relies not upon the public policy underlying § 31-51m, but rather the public policy codified in General Statutes § 46a-7 through § 46a-13a, including § 46a-11b, which specifically references the obligation to protect disabled citizens from the abusive conduct. Outside of the argument that count two of the complaint is preempted by § 31-51m, the defendant does not address the public policy advanced by the plaintiff except to argue the plaintiff did not technically comply with the reporting requirements under § 46a-11b.¹ The question for this court, therefore, is whether or not the plaintiff is without recourse under common law simply because she chose to report her concerns internally? Or. put another way, is the plaintiff necessarily required to report to a public body in order to assure that she is protected from any adverse and retaliatory action by her employer?

1 " A distinction exists between the policy underlying a statute and the remedy provided by a statute to accomplish that policy." Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 704, 802 A.2d 731 (2002). The court has interpreted Thibodeau for the proposition that " wrongful discharge action can stand in the absence of direct violation of [a] statutory provision where [the] employee's discharge offends the public policy expressed therein." Bonaguide v. Regional School District No. 6, Superior Court, judicial district of Litchfield, Docket No. CV-12-6007409-S (April 16, 2013, Danaher, J.) [55 Conn.L.Rptr. 917, ]. The issue before the court, addressed in this decision, is whether count two of the complaint states a legally sufficient claim for wrongful termination in violation of a public policy codified by § 46a-11b, or instead states a legally insufficient claim for whistleblowing that is preempted by § 31-51m.

General Statutes § 31-51m provides in relevant part: " (b) No employer shall discharge, discipline or otherwise penalize any employee because (1) the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . . (c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court . . ." (Emphasis added.)

" [In Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-62, 745 A.2d 178 (2000)], our Supreme Court held that because § 31-51m(c) provides a statutory cause of action for employees who are terminated for [whistleblowing], the public policy exception does not apply. Section 31-51m, therefore, provides the exclusive remedy for such employees and precludes any [common-law] actions in either tort or contract." (Internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). Our Appellate Court noted a qualifier to the Burnham decision, that " [a] [common-law] approach to a claim of wrongful discharge is barred as long as a remedy has been made available to address the particular public policy concerns." Id., 76.

" As a general rule an employer is free to terminate an at-will employee's employment with impunity . . . In [Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)], our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . . That exception, however, is to be construed narrowly." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003). " In evaluating claims, [the court looks] to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." Parsons v. United Technologies Corp., 243 Conn. 66, 77, 700 A.2d 655 (1997).

General Statutes § 46a-11b provides in relevant part: " (a) Any . . . person paid for caring for persons in any facility . . . who has reasonable cause to suspect or believe that any person with intellectual disability . . . has been abused or neglected shall, as soon as practicable but not later than seventy-two hours after such person has reasonable cause to suspect or believe that a person with intellectual disability . . . has been abused or neglected, report such information or cause a report to be made in any reasonable manner to the director or persons the director designates to receive such reports . . . (d) Any other person having reasonable cause to believe that a person with intellectual disability . . . is being or has been abused or neglected may report such information, in any reasonable manner to the director or to the director's designee . . ."

Our Supreme Court in State of Connecticut v. New England Health Care Employees Union, 271 Conn. 127, 137-38, 855 A.2d 964 (2004) recognized the existence of " a clear, well-defined and dominant state public policy in favor of the care and protection of persons with [intellectual disability] . . ." ² The trial court in New England Health Care Employees Union " concluded that the existence of the state public policy to care for and protect [individuals with intellectual disability] necessarily includes a public policy to protect those [persons with intellectual disability] in the custody of [the Department of Developmental Services] and to provide them with an environment reasonably free from abuse." The dissent in the Supreme Court added " this public policy is to [protect] [individuals with intellectual disability] in the care of public or private facilities from harm [and provide] humane and dignified treatment to such persons. [The dissent referenced] General Statutes § 17a-238." (Emphasis added.) Id., 150.

2 Language modified to conform with General Statutes § 17a-210d(a) which provides: " (1) Whenever the words 'the mentally retarded' are used in [certain statutes], 'persons with intellectual disability' or 'individuals with intellectual disability' shall be substituted in lieu thereof; (2) wherever the words 'mentally retarded, ' 'mentally retarded person' or 'mentally retarded person' or 'mentally retarded persons' are used in [certain statutes], the words 'intellectual disability, ' 'person with intellectual disability' or 'persons with intellectual disability' shall be substituted in lieu thereof, and (3) wherever the words 'mental retardation' are used in [certain statutes], the words 'intellectual disability' shall be substituted in lieu thereof . . ."

In considering whether a plaintiff may or may not resort to common law in wrongful termination actions for whistleblowing, the Superior Court is split as to Burnham 's reach. " Some trial court decisions interpret Burnham broadly, as the defendant argues, to hold that a wrongful discharge claim based on either internal or external whistleblowing is barred by § 31-51m even when the plaintiff is not relying on the public policy espoused in § 31-51m . . . Other trial court decisions interpret Burnham narrowly, holding that wrongful discharge claims are not barred by § 31-51m where the complaints were not made to a public body and the plaintiff does not allege a public policy violation based on § 31-51m . . ." O'Brien v. Vinfen Corp. of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV-14-6048494-S (October 16, 2014, Peck, J.) (59 Conn.L.Rptr. 148, 150, ).

For example, in Bonaguide v. Regional School District No. 6, Superior Court, judicial district of Litchfield, Docket No. CV-12-6007409-S (April 16, 2013, Danaher, J.) [55 Conn.L.Rptr. 517, ], the court found that teachers' common-law wrongful termination in violation of public policy claims were not preempted by § 31-51m, where the teachers had complained internally to school administrators about insufficient training and staff, and safety concerns for their autistic children, and alleged that their termination violated the public policy encapsulated by the federal Individuals with Disabilities Education Act (IDEA), which the court found was established to " ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination and support; and technology development and media services" and " to assess, and ensure the effectiveness of, efforts to educate children with disabilities. 20 U.S.C. § 1400(d)(3), (4)." Id.

This court agrees with those Superior Court decisions which interpret Burnham narrowly. In attempting to plead a common-law wrongful termination claim, the plaintiff in Burnham invoked § 31-51m to establish the public policy element of her common-law claim and attempted to establish the " public body" requirement of § 31-51m by arguing that her report to a dental association met the definition of " public body" under the provisions of § 31-51m. The plaintiff here does not attempt this kind of gymnastics in statutory construction.

In relying on Burnham to advance its claim that the plaintiff's common-law wrongful discharge claim should be stricken, the defendant essentially argues that so long as the plaintiff's claim can be characterized as whistleblowing conduct, the plaintiff's cause of action is limited to § 31-51m(c). Thus the defendant's argument would have § 31-51m serve as a sword, rather than a shield from retaliation, against those who seek to ensure that their employers are aware of prohibited misconduct among their employees. In other words, the defendant's argument essentially amounts to its claim that under Burnham, a plaintiff has no remedy for wrongful discharge if she chooses to report misconduct internally to her employer, even if that misconduct is a violation of important public policy, as manifest in § 46a-11b. This court, however, is not persuaded that the holding in Burnham v. Karl & Gelb encompasses such an extreme result.

" As other courts have concluded, the statute (§ 31-51m) does not preempt internally reported common-law wrongful discharge claims." Wright v. Cornell Scott-Hill Health Center, Corp., Superior Court, judicial district of New Haven, Docket No. CV-12-6031077-S (April 1, 2013, Mullins, J.) (55 Conn.L.Rptr. 792, 794, ). As the O'Brien court similarly observed, " [n]othing in Burnham . . . suggests that its holdings extend to public policy violations not explicitly or implicitly based on § 31-51m; nor does it suggest that the statute's exclusive remedy bars common-law wrongful discharge claims based on complaints made internally as opposed to a public body." O'Brien v. Vinfen Corp. of Connecticut, Inc., supra, 59 Conn.L.Rptr. 150, .

The court concludes, therefore, that because count two of the complaint alleges sufficient facts to support a common-law wrongful termination claim by claiming that the plaintiff was terminated for reporting abusive conduct to the defendant of a disabled individual in violation of the public policy expressed in § 46a-11b, the motion to strike is denied.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike count two of the complaint.