Lombardi v. Tilcon Connecticut, Inc.

Full title: LOUIS LOMBARDI v. TILCON CONNECTICUT, INC

Court: Connecticut Superior Court Judicial District of New Haven at Meriden

Date published: Oct 3, 2007

2007 Ct. Sup. 16399 (Conn. Super. Ct. 2007)

Opinion

No. CV 07 4007485

October 3, 2007

MEMORANDUM OF DECISION RE MOTION TO STRIKE #111

MARK H. TAYLOR, JUDGE.

I. BACKGROUND

On July 6, 2007, the defendant, Tilcon Connecticut, Inc. filed a motion to strike the plaintiff's, Louis Lombardi, amended complaint, filed on June 25, 2007. Tilcon claims that Lombardi fails to adequately state a sufficient basis for retaliatory discharge from his employment under the Workers' Compensation Act ("the Act"), as provided in General Statutes § 31-290a. On July 19, 2007, Lombardi filed a memorandum in opposition. On August 22, 2007, Tilcon filed a reply to the memorandum in opposition. On August 27, 2007, oral argument was heard. For reasons set forth in this memorandum of decision, the motion to strike is denied.

The following facts are alleged in the amended complaint: Lombardi was injured at work on July 14, 2006, when his left foot was struck and run over by a co-worker's truck. On the day of his injury, he notified his supervisor of this "work-related injury effectively putting [Tilcon] on notice of his workers' compensation claim and exercising his rights under the Connecticut Worker's [C]ompensation Act." Lombardi then sought immediate medical treatment for this injury. Based upon instructions from his physician, Lombardi did not return to work until July 25, 2006, and he was further instructed to limit his walking at work until July 31, 2006. Upon returning to work on July 25, 2006, as instructed by his physician, Lombardi's general supervisor saw his foot and told him to go home. When Lombardi returned to work on August 1, 2006, he was taken off his steady work crew, assigned different shifts and claims he was treated badly. Lombardi was subsequently laid off on October 20, 2006. At that time, he alleges that his supervisor smiled and said "how does it feel not to be at the top anymore?" Based upon these allegations of fact, Lombardi further alleges that he was terminated from his employment "because he had a work-related injury, had taken some time off for his injury, and was in the process of exercising his rights to file for workers' compensation benefits in violation of Connecticut General Statutes § 31-290a."

II. DISCUSSION A. Standard of Review

The standards governing the court's review of a motion to strike are well established. "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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual finding by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). In addition, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Bell v. Board of Education, 55 Conn.App. 400, 404, 739 A.2d 321 (1999).

B. Claims of Retaliatory Dismissal

General Statutes § 31-290a provides: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."

Our Supreme Court recently set forth the proper analysis of a retaliatory dismissal cause of action in Mele v. Hartford, 270 Conn. 751, 855 A.2d 196 (2004). "The initial step in analyzing a claim under § 31-290a is to determine whether the plaintiff has established a prima facie case of discrimination . . . To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the Act and that the defendant discriminated against her for exercising that right . . ." (Citations omitted; internal quotation marks omitted.) Mele v. Hartford, supra, 270 Conn. 769. "In other words, the plaintiff must show a causal connection between exercising her rights under the Act and the alleged discrimination she suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised her rights under the Act." Id., 776. In Mele, the Supreme Court reversed the finding of the workers' compensation commissioner because the plaintiff presented "insufficient evidence in the record to support a finding by the commissioner, implicit or otherwise, that [her supervisors] had known . . . that she had ever exercised any rights under the Act" and for which she was discriminated against. (Emphasis added.) Id., 778.

The court in Mele considered the following facts: The plaintiff was a guidance counselor in the Hartford public school system. She had made workers' compensation claims for work-related injuries she sustained in 1985, 1988 and 1990. In 1994, she took two weeks of sick time at the beginning of the school year. She claimed that she was unable to work due to an injured foot and gastrointestinal bleeding from anti-inflammation medications, associated with a work-related injury she sustained in 1988. However, her supervisors in 1994 were new to their positions and were unaware of her previous workers' compensation claims and, therefore, were unaware that her then-current condition related to her prior work-related injuries.

Despite their lack of knowledge or reasonable notice of these prior work-related injuries, "the plaintiff claimed that [her supervisors] discriminated against her for (1) taking two weeks off at the beginning of the 1994-95 school year, and (2) requesting additional office space on the first floor, proximal parking, and exemption from cafeteria duty because of her work-related injuries. [The Supreme Court assumed], therefore, that the plaintiff claimed, and the commissioner found, that, by taking the time off at the beginning of the school year and requesting first floor office space, proximal parking and exemption from cafeteria duty, she was exercising rights afforded to her under the Act for which she subsequently was discriminated against by [her supervisors]." Id., 770-71.

First, the court in Mele noted that the two weeks off at the beginning of the school year were recorded as personal sick days and not as days off requested pursuant to the Act. The plaintiff did not dispute that she could have requested time off under the Act, thereby preserving her number of personal sick days. No evidence, however, was presented to show that the plaintiff had in fact requested days off under the Act, although she did testify that she told her supervisors that she needed the time off for a work-related injury. Nonetheless, it was undisputed that her supervisors were new to their positions and had no knowledge of her previous injuries or workers' compensation claims. The court therefore held that the plaintiff presented insufficient evidence to support a finding that her time off was an exercise of rights under the Workers' Compensation Act. See Mele v. Hartford, supra, 270 Conn. 771-72.

Second, the plaintiff in Mele claimed that she was exercising her rights under the Act by requesting additional office space, proximal parking and an exemption from cafeteria duty due to her work-related injury. The court held these allegations were insufficient to show that she was exercising her rights under the Act. "The act is not a general `reasonable accommodations' piece of legislation. It does not afford an employee the general right to be afforded reasonable accommodations for her physical disabilities. It does, however, give an employee the right to file a claim with the commissioner pursuant to § 31-313 . . . requesting transfer to suitable work during her period of medical treatment or rehabilitation or because of physical incapacity." Id., 772. The plaintiff did not file such a claim and, therefore, failed to state a prima facie case. Id.

In Mele, the court held that "[k]nowledge of a work-related injury, without more, is not, as a matter of law, knowledge that a claim was filed for the injury or that any other right afforded by the act had been exercised." Id., 778. In the present case, Lombardi's amended complaint alleges that he "notified his supervisor . . . of his work-related injury effectively putting his employer on notice of his workers' compensation claim and exercising his rights under the Connecticut Workers' Compensation Act." Lombardi also alleges that he was terminated from his employment "because he had a work-related injury, had taken some time off for his injury, and was in the process of exercising his rights to file for workers' compensation benefits, in violation of Connecticut General Statutes § 31-290a." Tilcon argues that these allegations are insufficient under the holding in Mele, to state a prima facie case pursuant to Connecticut General Statute § 31-290a. The court disagrees.

The holding in Mele must be evaluated in light of its entirely distinguishable factual and procedural context. In Mele, the plaintiff's two-week absence related to an injury she sustained six years earlier, and her employer had no reason to know that she was exercising her rights under the Act. Further, upon her return to work, the plaintiff found her conditions of employment intolerable due to the combination of her health and changes in her workplace environment, caused by a lengthy construction project. She then applied for an unpaid leave of absence that was ultimately granted.

By comparison, when Lombardi was unmistakably injured at work, he immediately notified his supervisor and sought medical treatment. Further, when Lombardi returned to work two weeks later, he was sent home for an additional week by his employer to recover from this work-related injury. Immediate notice of a clear and unmistakable injury at work, immediately followed by an extended absence for medical treatment for that injury, implies an exercise of rights under the Act, for failure to do so may result in a diminished award of workers' compensation. Under General Statutes § 31-294b, an employee is required to immediately report this kind of injury to secure full compensation under the Act. In paragraph seven of Lombardi's amended complaint, he specifically alleges that he notified his supervisor of this "work related injury effectively putting [Tilcon] on notice of his workers' compensation claim and exercising his rights under the Connecticut Worker's [C]ompensation Act." Therefore, Lombardi's complaint clearly alleges facts sufficient to, at the very least, imply notice to his employer of an exercise of rights under the Act. Under Mele, an employer's "implicit" knowledge of an exercise of rights under the Act is sufficient to allege actionable discrimination. Mele v. Hartford, supra, 270 Conn. 778.

In order to present a prima facie case under Mele, one must show evidence of exercising a right under the Workers' Compensation Act. In its motion to strike, Tilcon argues that Lombardi has failed to allege a prima facie case because, in paragraph twelve of his amended complaint, Lombardi merely claims he was fired because "he was in the process of exercising his rights to file for workers' compensation benefits . . ." (Emphasis added.) Tilcon argues the allegations in the amended complaint are insufficient to state a prima facie case because Lombardi is required to prove he was exercising a right under the Act, not that he was in the process of exercising a right under the Act.

Under the Act, an injured employee has one year from the date of injury to file a workers' compensation claim. See § 31-294c(a). Although filing a claim would most certainly represent notice of exercising rights under the Act, exercising subsidiary rights under the Act must also allow a retaliatory dismissal claim when discrimination occurs. See Bundock v. Waste Management of Connecticut, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 92 0123903 (January 26, 1993, Lewis, J.) [8 Conn. L. Rptr. 263] and Nguyen v. Newberry Industries, Inc., Superior Court, judicial district of Hartford, Docket No. CV 97 0571319 (October 31, 1997, Hale, J.T.R.).

In Mele, there was insufficient evidence to show that the employer knew that the plaintiff had exercised her rights under the Act and, in fact, her time away from work was listed as sick time. Without any knowledge, implied or otherwise, that rights were exercised under the Act, a claim for discrimination correctly fails. Based upon the allegations of the present case, construed favorably to Lombardi, he was clearly injured at work and took time off to recover from his work-related injury. Tilcon was thoroughly aware of Lombardi's injury and that his time away from work was to recover from that injury. Lombardi specifically alleges that he was discriminated against because he was in the "process of exercising his rights" under the Act. The court finds this language to be sufficient to withstand a motion to strike.

To hold otherwise would disadvantage claimants who are discriminated against before they have perfected their claims under the Act and are merely in the "process of exercising [their] rights." For example, an employer of a seriously injured worker might otherwise be motivated to discriminate against the injured worker before the worker's rights are fully "exercised." The critical elements of knowledge and discrimination must, nonetheless, be proven by the injured worker. Therefore, an allegation by Lombardi that he was discriminated against because his employer knew that he was in the process of exercising his rights under the Act is a sufficient allegation to withstand a motion to strike. If he presents sufficient evidence to prove that his employer knew that he was in the process of exercising his rights under the Act and, for this reason, was discriminated against, he will, unlike Mele, have established a prima facie case under General Statutes § 31-290a.

III. CONCLUSION

Tilcon's motion to strike is denied.