Opinion
No. CV05-4018378S
September 19, 2008
MEMORANDUM OF DECISION ON APPLICATION FOR PREJUDGMENT REMEDY
Plaintiff has applied for a prejudgment remedy on three counts of her Amended Revised Substituted Complaint. Count One alleges that plaintiff's employment was terminated in violation of Conn. Gen. Stat. § 31-51q, which addresses employment actions in retaliation for the exercise of First Amendment rights. Count Two is a claim plaintiff was fired because she brought this lawsuit, also brought pursuant to § 31-51q. Count Three is a common-law claim that plaintiff was terminated in violation of public policy, as set forth in Sheets v. Teddy's Frosted Foods, 179 Conn. 471 (1980).
In order to grant plaintiff's application, the court must find probable cause to sustain the validity of her claim. Conn. Gen. Stat. § 52-278a. Our Supreme Court has very recently restated the probable cause standard in such situations:
Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. **** The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it. **** Probable cause is a flexible common sense does not demand that a belief be correct or more likely true than false. **** Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits.
(Internal citations and quotation marks omitted) TES Franchsing, LLC v. Feldman, 286 Conn. 132, 137 (2008). When this standard is applied to the evidence presented at this hearing, it is clear that the plaintiff has met her burden.
The key to plaintiff's claim is that her employer disciplined and ultimately fired her because she wanted and tried to be an effective, zealous advocate on behalf of her clients, because such advocacy would antagonize the entities which funded the program which employed Attorney Lehmann, her supervisors, and her co-workers. There was more than enough evidence presented to allow a finder of fact to conclude that Attorneys Van Tassel and Behrendt were more concerned with maintaining good relations with the Department of Mental Health and Addiction Services (DMHAS) and other sources of program funding than they were with their responsibility to advocate for their clients. When plaintiff confronted her supervisors with what she perceived to be ethical issues regarding their conflicting ideas about what their program ought to be doing, defendant's response was a series of employment actions and, ultimately, termination of employment, which a fact finder could readily decide was improperly motivated.
The court has considered defendant's claims that some or all of its actions toward Attorney Lehmann were taken because of allegedly poor interpersonal skills and inability to work with fellow employees and others. While one could conclude that plaintiff could indeed be a difficult person to work with, one could just as readily conclude that such allegations against Attorney Lehmann as appear in her personnel file were pretextual and that there were other, improper motives for the actions taken by defendant.
The court has also considered the claim that plaintiff's § 31-51q claims are barred by the United States Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). At this time, the court is aware of no decision which extends Garcetti to private sector employees such as Attorney Lehmann, and therefore believes that the decision does not apply to this situation. Even if some of plaintiff's claims were precluded by Garcetti, Plaintiff's Sheets claim was well supported by the evidence presented at the hearing and the court has found probable cause as to the Third Count.
The application for prejudgment remedy is therefore granted. Counsel should confer and agree to some dates for a hearing on damages and the ultimate amount of the remedy. The court hopes that this could be accomplished in a further hearing lasting no longer than one day.