Summary
holding common law wrongful discharge claim precluded by claim under § 31-51q
Summary of this case from Violette v. Catalyst Sols., LLCOpinion
No. 4006020
March 29, 2007
MEMORANDUM OF DECISION
The plaintiff, Carolyn Horton, was employed as the Director of Health Information Management and Privacy at Windham Community Memorial Hospital from April 2002 until July 2005. The defendant hospital's Health Information Management department receives daily lists of discharged patients and is responsible for coding medical records by medical diagnosis and procedures performed. The plaintiff claims that from 2004 until the termination of her employment at the hospital in July 2005, the staff in the plaintiff's department began complaining to her that employees in the billing department were pressuring them to "code to bill." Throughout 2004 and 2005, the plaintiff repeatedly expressed her opposition to "coding to bill" to the compliance committee, the risk management department, and to Mary Johnson, the Director of Patient and Financial Services. On July 19, 2005, the defendant terminated the plaintiff's employment.
"Coding to bill" is an illegal billing practice whereby the sequence of the billing codes is altered in order to increase revenue, thereby overcharging the federal Medicare and Medicaid programs.
On June 12, 2006, the plaintiff filed a two-count complaint alleging in count one that the defendant terminated her in retaliation for the exercise of her free speech in violation of General Statutes § 31-51q and alleging wrongful discharge in count two. In count one, the plaintiff alleges that her "opposition To `coding to bill' constituted speech on a matter of public concern under the First Amendment to the United States Constitution." In count two, the plaintiff alleges that "[i]t is an important public policy of the State of Connecticut to properly code and bill for medical procedures and diagnoses. Indeed, this policy is directly implicated when hospitals `code to bill' for invoices submitted to the government for reimbursement pursuant to Medicare and Medicaid." The plaintiff alleges that her termination was in retaliation for her opposition to pressure to "code to bill" in violation of said public policy.
General Statutes § 31-51q provides in relevant part: "Any employer . . . 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 . . ."
On August 21, 2006, the defendant filed a motion to strike counts one and two of the complaint for plaintiff's failure to state a claim upon which relief can be granted. Specifically, the defendant argues that the plaintiff's § 31-51q claim is unsustainable because her speech was not made "as a citizen" but rather as part of her regular job duties, thus her speech was not constitutionally protected. The defendant further argues that count two of the complaint, alleging wrongful discharge in violation of public policy, is foreclosed by the availability of a statutory remedy, namely the anti-retaliation provision of the federal False Claims Act, 31 U.S.C. § 3730(h).
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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000).
A Count One
There is disagreement between the parties as to whether the plaintiff's statement(s) were made in the course of her "regular job duties" or whether she was speaking out "as a citizen" concerned, about the alleged illegality of the defendant's coding practices. In its motion to strike, the defendant argues that the plaintiff's speech was "plainly part of [her] job," therefore the statement(s) at issue are not constitutionally protected.
"In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [she] was exercising rights protected by the first Amendment to the United States Constitution . . .; (2) that [she] was fired on account of [her] exercise of such rights; and (3) that [her] exercise of first amendment . . . constitutional rights did not subsequently or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer." (Internal quotation marks omitted.) Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of New London, Docket No. CV 03 0564783 (August 19, 2003, Hurley, J.) ( 35 Conn. L. Rptr. 295).
"Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern." Daley v. Aetna Life casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). "In order to show that constitutionally protected rights are at issue under [§]31-51q, a plaintiff must allege that [she] was exercising [her] free speech rights as a citizen with respect to a matter of public concern . . . The issue to be addressed is not simply whether the subject matter of the employee's complaint touches on a matter of public concern generally; the issue is whether . . . an employee was acting as a citizen attempting to speak out on a public issue, or whether the employee was instead attempting to resolve a private dilemma relating to employment." (Internal quotation marks omitted.) Raible v. Essex Yacht Club, Inc., supra, 35 Conn. L. Rptr. 296.
"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]t is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 782. "Employee speech concerning an employer's illegal or fraudulent behavior has consistently been found by our courts to be a matter of public concern." Guimard v. Falcon Financial, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4003828 (December 16, 2005, Rogers, J.) ( 40 Conn. L. Rptr. 498). In Raible v. Essex Yacht Club, Inc., supra, 35 Conn. L. Rptr. 295, the court found that "speech made by an employee concerning an employer's potential tax evasion, implicates public policy." Id., 298; see also Sobczak v. Meriden Board of Education, Superior Court, judicial district of New Haven, Docket No. 419547 (October 2, 2000, Levin, J.) (the inflation of a public employee's overtime hours is a matter of public concern).
"[W]hether the subject matter addressed by a particular statement is of public concern involves a question of law for the court . . . [W]hether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 777. "Stated differently, in 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." Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV 03 0476708 (November 5, 2004, Devlin, J.).
In its memorandum of law in support of the motion to strike, the defendant relies on the recent decision in Garcetti v. Ceballos, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), where the Supreme Court held in the context of a First Amendment retaliation claim: "[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." (Emphasis added.) 126 S.Ct. at 1960. The speech at issue in the present case was not made by a public employee, such as the plaintiff prosecutor in Garcetti, whose speech occurred in the course of the fulfillment of his official duties. Id.
In the present case, the court finds that the plaintiff's speech concerning illegal coding practices and overcharging of federal programs implicates matters of public concern. Furthermore, simply because the plaintiff "assumed responsibility for raising these issues" does not mean she made the statements "pursuant to" her official job duties. Moreover, the particulars of the plaintiff's speech, i.e., the content, form and context in which the statement(s) were made, is a question of fact that is inappropriate for a motion to strike. Hall v. Gallo, supra, Superior Court, Docket No. CV 03 0476708. Accordingly, for the purposes of a motion to strike, the plaintiff has alleged protected speech and sufficient facts to sustain her claim that she was terminated by the defendant in violation of General Statutes § 31-51q. Therefore, the defendant's motion to strike count one is denied.
B Count Two
In its motion to strike, the defendant argues that the plaintiff has at her disposal a statutory remedy that adequately addresses the alleged wrongs, therefore she is precluded from bringing a common-law claim for wrongful discharge. In opposition, the plaintiff argues that there is no prohibition against pleading in the alternative.
The defendant contends that the anti-retaliation provision under the federal False Claims Act, 31 U.S.C. § 3730(h), affords the plaintiff a statutory remedy. Alternatively, the defendant argues that if the plaintiff's claim under General Statutes § 31-51q survives the instant motion to strike, the availability of that statutory remedy would preclude the plaintiff from bringing a common-law claim for wrongful discharge.
"Connecticut does allow plaintiffs to plead inconsistent yet otherwise valid causes of actions together in the same complaint, thereby allowing plaintiffs to pursue alternative remedies or theories of relief." Campbell v. Plymouth, 74 Conn.App. 67, 76, 811 A.2d 243 (2002), citing Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).
As a general rule, an employer is free to terminate an at-will employee's employment with impunity. Campbell v. Plymouth, 74 Conn.App. 67, 74, 811 A.2d 243 (2002). 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." (Emphasis in original.) Id., 475. In such cases, the plaintiff may have a common-law cause of action against the employer. Campbell v. Plymouth, supra, 74 Conn.App. 74. The public policy exception, however, is to be construed narrowly. Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).
In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: "A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis added; internal quotation marks omitted.) Id., 648; see also Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60.
In this case, the plaintiff alleges that she was terminated in retaliation for her opposition to pressure to "code to bill" in violation of state public policy regarding proper billing practices. However, this court concludes that because the plaintiff has a remedy under General Statutes § 31-51q for the retaliatory discharge she has alleged, she is not "otherwise without [a] remedy;" Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn.App. 648; and her common-law cause of action for wrongful discharge is precluded by count one. Thus, the defendant's motion to strike count two is granted.
CONCLUSION
For the above foregoing reasons, the defendant's motion to strike count one is denied and the motion to strike count two is granted.