Opinion
No. LLI CV 08 4007830S
May 30, 2009
MEMORANDUM OF DECISION
FACTS
The plaintiff Joseph Matarese, has brought this action against the defendants, U.S. Chutes Corp. (company) and Manfred Weber, Jr., arising from the termination of his employment. This action was commenced by service of process on the defendants on November 10, 2008. The plaintiff's complaint alleges the following facts. The plaintiff was an employee of the company, which is owned by Weber, who also serves as the company's president. On June 24, 2008, the plaintiff witnessed an incident of workplace violence at the defendants' premises. One employee, Davies, threatened to hit another employee with a sledgehammer and to stab him with a screwdriver. The state police were called and arrested Davies, charging him with second degree breach of the peace (General Statutes § 53a-181), disorderly conduct (General Statutes § 53a-182), and second degree threatening (General Statutes § 53a-62). Later in the morning, Davies called Weber from jail, and Weber traveled to bail Davies out of jail. One week after the arrest, Matarese made a formal statement to the police.
Subsequently, Weber pressured the employee who was the victim of the crime to drop the criminal charges against Davies. That employee refused to do so.
On August 14, 2008, the employee who was threatened and the plaintiff were terminated.
The plaintiff has brought a two-count complaint, alleging that the defendants retaliated against him in violation of General Statutes §§ 31-51m (count one) and 31-51q (count two).
The defendants filed an answer to the plaintiff's complaint and a counterclaim on January 29, 2009. In the counterclaim, the defendants allege that on August 16, 2008, Weber composed a memorandum addressed to all of the company's employees regarding a plan to restructure the company's departments. This restructuring plan did not involve layoffs, but did require the plaintiff to accept a reorganization of his job responsibilities. The plaintiff refused to read the memorandum, refused to perform his normal job functions, and stated that he wanted to be laid off so that he could collect unemployment. The defendants filled out discharge paperwork on the morning of August 18, 2008, at the plaintiff's request. The plaintiff filed for unemployment benefits, alleging that he had been fired. In summary, the counterclaim alleges that the plaintiff voluntarily left his job and that the legal issues between the employee who had been threatened and Davies did not factor into the determination of the plaintiff's job status.
The defendants allege in their counterclaim that the plaintiff knowingly and willingly engaged in fraudulent behavior when he "conspired to claim that the defendants wrongfully discharged" him following the incident with Davies and that the plaintiff brought an action against the defendants he knew to be false and malicious. The defendants seek monetary damages, attorneys fees and costs pursuant to General Statutes §§ 31-51m(c) and 31-51q, and any other relief available.
The plaintiff filed a motion to strike the defendants' counterclaim and supporting memorandum of law on February 4, 2009. The defendants filed an objection and supporting memorandum of law on February 23, 2009. The plaintiff filed a reply on February 26, 2009, and the defendants filed a response on March 13, 2009. The parties were heard at short calendar on March 16, 2009.
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). See Practice Book § 10-39(a). "[A] plaintiff can [move to strike] a . . . counterclaim." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
The plaintiff argues that the defendants' counterclaims should be stricken because they fail to state a cause of action for either fraud or vexatious litigation. The plaintiff further urges this court to impose sanctions on the defendants for asserting a bad faith counterclaim.
The defendants concede that their counterclaim does not state a claim for fraud or vexatious litigation, but is, rather, an effort to assert their right to plead facts that allege they are entitled to judgment and seek attorneys fees and costs pursuant to General Statutes §§ 31-51m(c) and 31-51q. They argue that these statutes allow an employer to seek attorneys fees and costs if an employee brings a wrongful termination claim without substantial justification, and that their counterclaim pleaded sufficient facts to show that the plaintiff's claims are unjustified and, therefore, entitle the defendants to the remedies provided by these statutes. The defendants urge the court to "admonish" the plaintiff for requesting sanctions.
By reply, the plaintiff argues that the defendants cannot state a claim under §§ 31-51m(c) and 31-51q because those statutes do not authorize employers to bring a separate cause of action against an employee, and the employer is not yet a "prevailing party" for purposes of the statutes. The plaintiff further argues that the counterclaim does not comply with Practice Book § 10-3. In response, the defendants dispute the plaintiff's interpretation of those statutes, arguing that an employer may bring a separate cause of action to recover attorneys fees and other costs.
Practice Book § 10-3 provides: "When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." The court finds that the parties were sufficiently apprised of the defendants' claims, as the statutes were specifically identified by number in the defendants' counterclaims.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).
A. General Statutes § 31-51m(c)
General Statutes § 31-51m(c) provides: "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 administrative 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 for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee's recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court. Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal." (Emphasis added.)
General Statutes § 31-51m(b) provides in relevant part: "No employer shall discharge, discipline or otherwise penalize any employee because 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, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action . . . The provisions of this subsection shall not be applicable when the employee knows that such report is false."
In order to state a claim under § 31-51m, the employee has the initial burden of showing by a preponderance of the evidence the elements of retaliatory discharge: "(1) that [the employee] engaged in a protected activity as defined by § 31-51m(b); (2) that [the employee] was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge." Arnone v. Enfield, 79 Conn.App. 501, 507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).
The Supreme Court has held that "under § 31-51m(c), an employer is entitled to attorneys fees as a `prevailing party' only if the plaintiff acted in bad faith in bringing or conducting the action." Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 253-54, 828 A.2d 64 (2003). The court held that "an action is frivolous . . . if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law . . . [T]he burden of proof lies on the moving party to establish the frivolity of the appeal." (Citation omitted; internal quotation marks omitted.) Id., 254-55.
In Schoonmaker, the defendant employers had not asserted a counterclaim under § 31-51m(c), but rather were seeking recovery of attorneys fees after prevailing at trial, contending that the plaintiff employees claims were frivolous. Id., 251. The court upheld the trial court's finding that the employers were entitled to attorneys fees because the plaintiff's wrongful discharge claims were not supported by any evidence. Id., 255.
The parties dispute whether § 31-51m(c) provides employers with a separate cause of action for attorneys fees and costs. Although the statute provides that the prevailing party may be awarded attorneys fees at the court's discretion, it is disputed whether the employer may bring a separate action alleging that the employee's case is frivolous prior to the determination of the employee's case.
The plain language of § 31-51m(c) does not authorize an employer to bring a separate cause of action for attorneys fees and costs. Section 31-51m(c) provides in relevant part that "[a]ny employee who is discharged, disciplined or otherwise penalized by his employer [for violating the whistle-blower statute] . . . may . . . bring a civil action . . . for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred." Thus, the purpose of the statute is to protect employees from retaliation if they report, in good faith, an employer's illegal activity. Arnone v. Enfield, supra, 79 Conn.App. 506. The fact that the statute also contains a provision giving the court discretion to assess attorneys fees if the losing party acted in bad faith does not provide the employer with a statutory right to bring a cause of action grounded in the employee's alleged bad faith. As one judge of the Superior Court explained, "[a] provision exposing employees with unprovable or dubious claims of wrongful discharge to liability for their employer's counsel fees would accomplish . . . [the] purpose of protecting employees from discipline for reporting violations while protecting employers from having to defend against meritless accusations. The purpose of [§ 31-51m(c)] appears to strive to achieve a balance by shielding whistle-blowers from unwarranted discipline and employers from unwarranted claims." Jordan v. Learning Clinic, Superior Court, judicial district of Windham, Docket No. CV 95 0051042 (April 29, 1998, Sferrazza, J.). Within this balance, § 31-51m(c) serves as a shield, not a sword, for employers facing wrongful discharge claims.
Judge Sfeffazza noted that "[t]he legislative history of § 31-51m . . . is silent regarding the attorney's fee provision." Jordan v. Learning Clinic, Superior Court, judicial district of Windham, Docket No. CV 95 0051042 (April 29, 1998, Sferrazza, J.) [22 Conn. L. Rptr. 64].
Therefore, the plaintiff's motion to strike is granted on the ground that § 31-51m(c) does not provide employers with a cause of action against employees to recover attorneys fees and costs based on bad faith claims of wrongful discharge. Rather, the employer must first prevail in defending itself against the employee's suit under § 31-51m(c) before bringing a motion for attorneys fees and costs under this statute.
B. General Statutes § 31-51q CT Page 7305
General Statutes § 31-51q provides: "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.""Section 31-51q makes it illegal for an employer to discipline an employee in retaliation for the employee's exercise of rights under § 31-51m." Arnone v. Enfield, supra, 79 Conn.App. 506.
The Supreme Court held that its analysis of § 31-51m(c) provided in Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 253-55, applies equally to attorneys fee requests pursuant to § 31-51q because "the phrase `without any substantial justification' [means] entirely unreasonable or without any reasonable basis in law or fact . . . [which] is sufficiently analogous to frivolous . . ." (Citation omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 256 n. 57. Thus, a court has discretion to award "reasonable fees and expenses in addition to other costs if . . . the court determines that the action . . . was taken without any substantial justification." (Internal quotation marks omitted.) Id.
The parties have each presented cases where employers have sought attorneys fees and costs pursuant to § 31-51q. In one case, Taylor v. Black Family Roundtable of Greater New Haven, Inc., Superior Court, judicial district of New Haven, Docket No. 276243 (December 21, 1991, Schaller, J.), the employer had filed a counterclaim seeking recovery under § 31-51q. That court entered judgment for the employee on the counterclaim on the ground that the employee's suit was not frivolous, but did not reach the issue of whether a counterclaim is the proper means for an employer to seek recovery.
By contrast, in Schoomaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 251, the employers brought a post-trial motion pursuant to, inter alia, § 31-51q to recover fees incurred in defending the plaintiff's wrongful discharge claims. See also Williams v. Bayer Corp., 982 F.Sup. 120, 125 (D.Conn. 1997) (employer brought post-trial motion for attorneys fees after prevailing in action brought by employee under § 31-51q); Arnone v. Enfield, supra, 79 Conn.App. 530 (employer brought post-trial motion to recover costs of expert witness); Brown v. New London Day, Superior Court, judicial district of New London, Docket No. 551571 (May 30, 2002, Hurley, J.T.R.) (employer brought summary judgment motion seeking judicial determination that employee had no substantial justification for bringing § 31-51q suit; employer argued such determination would enable employer to bring motion for attorneys fees and costs).
Although none of these authorities explicitly hold that an employer may or may not bring a cause of action under § 31-51q via counterclaim, the majority rule appears to be that a motion for attorneys fees and costs after a final judgment is the appropriate means for an employer to seek recovery under the statute.
This rule finds support in the statute's plain language. General Statutes § 31-51q provides an employee with a remedy in the event that `[a]ny employer" disciplines or discharges the employee on account of the employee's exercise of first amendment rights. Only if the court, in its discretion, determines that the employee's action for damages "was brought without substantial justification" may the court award costs and reasonable attorneys fees to the employer. Thus, under the statute, the court may only elect to award attorneys fees and costs to the employer after it reaches a final judgment and makes a determination that the underlying suit lacked "substantial justification." An employer need not bring a separate cause of action, but merely needs to successfully defend itself in the employee's action, in order to be considered for an award of attorneys fees and costs pursuant to § 31-51q.
Furthermore, such a rule comports with the broader remedial purpose of § 31-51q. "The statute plainly was intended to protect the first amendment and related state constitutional rights of working men and women." Cotto v. United Technologies Corp., 251 Conn. 1, 8, 738 A.2d 623 (1999) (analyzing the purpose and legislative history of § 31-51q). By including a provision allowing courts to award reasonable attorneys fees and costs to the employer, § 31-51q, like § 31-51m(c), balances the rights of employees to exercise their first amendment rights with the employer's right to be protected from frivolous lawsuits.
The plaintiff's motion to strike is granted on the ground that § 31-51q does not provide employers with a cause of action against employees to recover attorneys fees and costs. Rather, the employer must first prevail in defending itself against the employee's suit under § 31-51q before bringing a motion for attorneys fees and costs under this statute.
C. Sanctions
The plaintiff requests that this court impose sanctions on the defendants for pleading a bad faith counterclaim, and the defendants respond by urging this court to "admonish" the plaintiff for requesting sanctions.
Practice Book § 4-2(b) provides in relevant part: "The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it, and that it is not interposed for delay . . ." "Although this rule does not specifically provide for sanctions for its violation . . . the trial court could undoubtedly impose sanctions for its violation." Fattibene v. Kealey, 18 Conn.App. 344, 358-59 n. 7, 558 A.2d 677 (1989).
The defendants had a good faith basis for bringing a counterclaim asserting General Statutes §§ 31-51m(c) and 31-51q as grounds for relief. Therefore, no sanctions are imposed.
CONCLUSION
The plaintiff's motion to strike is granted because General Statutes §§ 31-51m(c) and 31-51q do not provide employers with a cause of action against employees to recover attorneys fees and costs. No sanctions are imposed.