Opinion
No. CV-09-4045428
May 19, 2011
MEMORANDUM OF DECISION
The Amended Complaint of December 7, 2010 alleges that the defendant, Rotha Contracting Company, Inc. ("Rotha"), terminated the employment of the plaintiff, Saul Rocha, in violation of Connecticut General Statutes § 31-290a because he was injured in the course of his employment and exercised his rights under the Workers' Compensation statutes (Count One) and that various actions of Rotha with respect to the plaintiff violated public policy (Count Two).
The trial to the court in this action commenced on December 7, 2010 and ended on December 16, 2010. After trial the court finds the following facts. At all times relevant hereto the plaintiff was a union carpenter. The plaintiff started employment with the defendant on August 27, 2007. The defendant is a construction company which does a substantial amount of work for the State of Connecticut. The plaintiff worked until December 23, 2007, when the defendant had its seasonal layoff. The plaintiff returned to work on January 18, 2008. When he returned to work he resumed working as a carpenter.
On April 16, 2008 the plaintiff was working on a project in Vernon, Connecticut. The plaintiff claims that he injured his knee at work. At trial the plaintiff testified that he was carrying a 16-foot plank down a ladder at the worksite when he slipped and fell 8 feet landing on his knee. At his deposition in November 2010, the plaintiff made no mention of climbing down a ladder while carrying the plank. Instead, he said he fell on his knee.
None of the witnesses employed by Rotha saw the plaintiff fall. The plaintiff did not present the testimony of anyone who saw him fall. The plaintiff testified that he informed his supervisor, Don Banta, that he had fallen when he took a break on April 16, 2007. Mr. Banta denies that the plaintiff said anything to him about having fallen on April 16th. The plaintiff continued to work for the remainder of a ten-hour workday.
The plaintiff kept a calendar in which he made notations concerning his employment such as hours worked, the location of his work, or the fact that there was no work on a particular day. His calendar had no mention whatsoever of his fall on April 16th. On April 17, 2008 the plaintiff telephoned Mr. Banta, and told him that he had hurt his knee and was not able to work. Mr. Banta told the plaintiff to take the rest of the week off (April 17, 2008 was a Thursday) and to submit his medical bills to Rotha for payment.
On April 17, 2008 the plaintiff went to the emergency room at St Francis Hospital. There he had an x-ray of the knee which was negative for fractures. The plaintiff was discharged from St. Francis Hospital with a diagnosis of a knee contusion. Although the plaintiff told the providers at St. Francis that he had twisted his knee at work, he asked them not to send the bills to his workers' compensation carrier, but rather, to send the bills for treatment to him. This conversation was evidenced by a May 12, 2008 letter from St. Francis Hospital billing department to Mr. Rocha which states "Per our conversation, you will not be submitting the attached bill(s) to your workers' compensation carrier. You have agreed to pay out of pocket."
The plaintiff returned to work the following Monday, April 21, 2008. There was conflicting testimony on the issue of whether the plaintiff provided the defendant with a physician's note concerning his ability to work. The plaintiff testified that he gave Mr. Banta such a note. Mr. Banta denied that he received any such note.
The court finds that the plaintiff did not provide anyone at Rotha with a doctor's note which indicated that he could not work. His work calendar makes no mention of any note or of any physician's instruction to refrain from working. Most importantly, on the day he returned to work after injuring his knee the plaintiff worked a ten-hour day and did not complain to anyone about his knee. Thereafter the plaintiff worked continuously the entire rest of the week for 40 hours regular time and 18 hours overtime. He earned $1,752 for the week after his fall. The plaintiff continued to work full and overtime until November 2008. During this period the plaintiff was performing stressful, physical work building platform scaffolding.
In May 2008, St. Francis Hospital sent its bill in the amount of $1,134.15 for the treatment of the plaintiff to Rotha. Rotha paid that bill as well as two related bills, St. Francis Hospital, $132.12, and Radiology Associates, $28 on June 17, 2008. Rotha was unaware of any additional bills incurred by the plaintiff for treatment related to his left knee injury until September 2008. When the plaintiff failed to come to work on September 9, 2008, Robert Thavenius, Rotha's president, telephoned the plaintiff to inquire about his absence from work. The plaintiff told Mr. Thavenius that he was upset that he had unpaid medical bills and he was not going to work for Rotha anymore. The plaintiff then asked Mr. Thavenius to talk to his girlfriend/ex-wife. Thereafter the plaintiff's ex-wife faxed to Rotha a cover note and copies of three medical bills: Open MRI of Glastonbury $190.91; Select Physical Therapy $875.91, and Sports Medicine and Orthopedic Surgery $430.
Rotha immediately paid the aforementioned bills. At trial the plaintiff introduced additional medical bills into evidence: Open MRI of Glastonbury; Select Physical Therapy; Sports Medicine and Orthopedic Surgery; and Dr. Mandelberg. These bills are dated on various dates in 2010, more than a year after the plaintiff had left Rotha's employ and are, therefore, irrelevant to the reasons for his termination.
The plaintiff returned to work in September 2008 after his medical bills were paid and told Mr. Banta and Mr Thavenius that he would work until the end of the season but did not want to be recalled by Rotha the following work season. The plaintiff himself confirmed at the trial that he had advised Mr. Thavenius that he did not wish to work for Rotha after 2008.
The plaintiff testified that after he hurt his knee in April 2008, he asked Mr. Banta to send him for medical treatment on a daily basis and asked Mr. Banta to "open a workers' compensation case" for him. Mr. Banta denied that the plaintiff ever asked to be sent for treatment and denied that the plaintiff asked him to file a workers' compensation claim. To the contrary, the plaintiff wanted to work.
The court does not find credible the plaintiff's claim that he asked Mr. Banta to open a workers' compensation claim for him for a number of reasons. The plaintiff's daily calendar had no mention of any such requests. Instead, it reflected only hours worked and the plaintiff's apparent complaint on days when there was no work, i.e., entry of October 4, 2008 "me llamo no hay trabajo." The plaintiff was familiar with the Carpenter's Union Business Agent. He testified that he had sought the assistance of the Business Agent on various issues. Had he wanted to file a workers' compensation claim, he could have asked the Business Agent to assist him. The plaintiff could also have filed a workers' compensation claim on his own without anyone's assistance. In October 2008, the plaintiff failed to report for work for one week without explanation. Mr. Banta and Mr. Thavenius later learned that the plaintiff had filed an unemployment compensation claim for that week, claiming lack of work. It is hard to believe that the plaintiff would be able to file an unemployment compensation claim on his own, but would be unable to file a workers' compensation claim. Finally, had the plaintiff filed a workers' compensation claim in April 2008, as he now claims he wanted to do, he would have earned only 2/3 of his average weekly wage of approximately $1,000 per week for any period of time that he missed from work. Based on the plaintiff's hours worked after his alleged injury, the lack of any mention of his injury in his calendar, his calendar entries which kept track of work and complained about no work or about being "shorted" for time he did work, and his request that St. Francis Hospital send medical bills to him, the court finds that prior to his layoff in November 2008, the plaintiff did not want to file a workers' compensation claim. Rather, he wanted to work as many hours as he could and earn as much money as he could.
The plaintiff's first language was Spanish. The phrase, roughly translated, means, "He called me there was no work."
By November 21, 2008, the date on which the plaintiff's employment was terminated for lack of work, Rotha believed that the plaintiff's April 16, 2008 knee injury had resolved. The medical bills paid for by Rotha showed that all the plaintiff's treatments had concluded by the summer. Moreover, the plaintiff had worked regular hours and overtime since April 21, 2008, including rigorous work involved under and on the Enfield/Suffield bridge starting in June of 2008. Russell Bush, a civil engineer who was employed by Rotha testified at trial that he had worked alongside the plaintiff on several occasions in the summer and fall of 2008 at the Enfield/Suffield bridge project constructing a platform. The work was extremely demanding and involved climbing around and under the bridge structure. The plaintiff's obvious ability to perform such work gave Rocha no reason to suspect that the plaintiff continued to suffer from the effects of the April 2008 injury.
The plaintiff did not file his workers' compensation claim until March 27, 2009, which was more than four months after his lay-off.
The Enfield/Suffield bridge project was a bridge rehabilitation involving structural steel repairs below the bridge deck, partial and variable depth patch work on top of the deck, parapet wall and sidewalk modifications, rails to trails and earthwork. It was not a lead abatement project and only required paint removal in limited areas. There was only one laborer per day removing paint and there were often days when no one removed paint. Federal and state regulations required that employees who were directly involved with paint removal wear protective equipment and enter a decontamination trailer at the end of the day to change their clothes. The plaintiff was never assigned to paint removal work, never removed paint from the bridge, never requested personal protective equipment and never complained to anyone at Rotha about his working conditions. In addition, there are no notations whatsoever in the plaintiff's work calendar concerning any request for protective gear and the plaintiff apparently never advised the union Business Agent about what he now claims is Rotha's failure to provide him with protective gear.
During the workday on November 21, 2008, the plaintiff was sent for blood lead level screening test along with several other co-workers. Later that day the plaintiff and several other workers were laid off because work on the Enfield/Suffield bridge project was slowing down for the season. Rotha did not receive the results of the plaintiff's blood-level lead test until after he was laid off. The results of the test were not in evidence at the trial.
The only evidence the plaintiff introduced at the trial on the subject of his claimed injury from lead exposure was his testimony that he started experiencing headaches, back pain, coughing and stress in October 2008. However, the record from Hartford Hospital Emergency room indicates that on October 14, 2008 the plaintiff told the Emergency Room caregivers that he had had back pain for about 6 months. This means that his symptoms arose prior to June 2008, the time when the plaintiff started working on the Enfield/Suffield bridge project. There was no evidence that the plaintiff ever had an elevated blood lead level and no medical evidence that the plaintiff's back pain and headaches were caused by elevated lead levels.
After being laid off, the plaintiff applied for and received unemployment compensation benefits for lack of work effective November 23, 2008. He never requested to be rehired in the Spring of 2009 and had affirmatively advised Mr. Banta and Mr. Thavenius that he did not want to work for Rotha after the end of the 2008 season.
Discussion of the Law and Ruling
In Count One the plaintiff alleges that he was retaliated against for reporting his April 16, 2008 work injury to his employer by being denied medical care and payment of his medical bills, by being laid off in November 2008 and not being recalled in the spring of 2009 in violation of Connecticut General Statutes § 31-290a. This count also alleges that the plaintiff was terminated in violation of § 31-290a because he had a high blood lead level test.
Count Two reiterates the allegations in Count One and couches them in terms of a breach of the duty of good faith it owed to the plaintiff as an employee.
Connecticut General Statutes § 31-290a provides in pertinent part:
(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.
In Ford v. Blue Cross and Blue Shield of Connecticut, Inc., 216 Conn.40, 578 A.2d 1054 (1990), the Court held that in a wrongful termination case the court must look to federal case law for guidance and follow the burden shifting analysis of McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):
The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. Id., 802. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discriminations by producing evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corporation v. Green, supra. "If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity." Texas Department of Community Affairs v. Burdine, supra, 255. The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination "either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id., 256; see McDonnell Douglas Corporation v. Green, supra, 804-05.Ford v. Blue Cross and Blue Shield of Connecticut, Inc., supra, at 53-54.
Under the McDonnell Douglas analysis, "[t]he initial step in analyzing a claim under § 31-290a is to determine whether the plaintiff has established a prima facie case of discrimination." Mele v. Hartford, 270 Conn. 751, 769, 855 A.2d 196. To do so "the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." Diaz v. Housing Authority, 258 Conn. 724, 731, 785 A.2d 192 (2001). The causal connection between the exercise of rights and the discriminatory conduct can be established indirectly by showing that a protected activity was closely followed by discriminatory treatment or that similarly situated fellow employees were treated differently or the connection can be established by direct evidence of "a retaliatory animus directed against a plaintiff by a defendant." Marti v. Town of Westport, 108 Conn.App. 710, 719, 950 A.2d 19 (2008). "[T]he ultimate burden of proving discrimination lies, at all times, with the plaintiff." Mele, supra at 778. "Knowledge 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 [workers' compensation] act had been exercised." Id.
The plaintiff has failed to make out a prima facie case of wrongful termination in violation Connecticut General Statutes § 31-290a. There is no causal connection whatsoever between his layoff in November of 2008 and any rights the plaintiff exercised under the workers' compensation Act. The plaintiff did not file a workers' compensation claim until March of 2009. The court finds that the defendant did not know he would file such a claim when it laid him off. Moreover, as stated above, prior to the time of his layoff, the plaintiff never asked the defendant to file a workers' compensation claim for him, never filed one for himself and even told St Francis Hospital that he did not want his medical bills sent to a workers' compensation carrier. The plaintiff did not want his weekly average wage reduced and only wanted his medical bills paid. The defendant paid all bills which the plaintiff submitted to it.
Had the defendant been intent upon discriminating against the plaintiff with respect to workers' compensation rights, it would have terminated him after his unexplained absence from work in September 2008 when the plaintiff and his ex-wife faxed some medical bills to Rotha. But Rotha did not terminate the plaintiff. It paid his medical bills and the plaintiff returned to work, telling people at Rotha that he would work for Rotha until the end of the season, i.e. November 2008.
The plaintiff also claims that the defendant terminated his employment because he had elevated blood lead levels and that he should have been given protective equipment. There was no evidence to support these claims. At the time of his layoff, the only information the defendant had about the plaintiff's blood lead levels were from a routine blood test he had in May 2008, which showed that his blood lead levels were normal. The court finds that the plaintiff has failed to prove that he suffered any increased blood lead levels. As stated above, the plaintiff was laid off for lack of work and not because of any health problems.
Even if the plaintiff had proved a prima facie case of wrongful termination, Rotha has produced evidence that its actions in laying the plaintiff off were motivated by neutral and legitimate business reasons as required under Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, at 53-54. The defendant has produced evidence that in addition to the plaintiff, four other employees, including another union carpenter, were laid off in the period from November 21 and November 29, 2008. Two additional employees were terminated by December 13, 2008. As a result of those layoffs, the only union carpenter remaining on the job until the spring was Mr. Banta, who was also job superintendent and foreman. As stated above, the plaintiff had advised Mr. Thavenius that he did not wish to be rehired in 2009.
To succeed on the claim of breach of covenant of good faith as alleged in Count Two, the plaintiff must prove that the defendant's actions constituted a violation of public policy, not merely a violation of the plaintiff's rights. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985). In Atkins, the Court recognized a limitation on the public policy exception to the at-will employment doctrine, concluding that to establish a tort or contract remedy for employees discharged for reasons that violate public policy, the employee must not only establish that the employer's conduct contravened public policy, but also that the employee had exhausted all other possible remedies under any applicable statutes. Atkins, supra, at 647-48. In the more recent case of Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 167, 745 A.2d 178 (2000), the Court made clear that the existence of a statutory remedy precludes a plaintiff from prevailing on a common-law cause of action for wrongful discharge.
The plaintiff clearly had remedies available under the Workers' Compensation Act and the Occupational Safety and Health Act (OSHA). Therefore, he has not proved a violation of public policy or any breach of a covenant of good faith.
The Second Count alleges a variety of public policies that the plaintiff claims the defendant violated. It alleges that the defendant violated safe workplace policy by failing to provide the plaintiff with proper personal protective equipment. As set forth above, as a carpenter, the plaintiff's job duties did not include scraping paint and the plaintiff's testimony to the contrary was not credible. Mr. Banta testified that the plaintiff never requested a tyvek suit or respirator and the court finds that testimony to be credible. The court finds that the plaintiff's job duties did not require the use of a respirator or protective equipment. Like his claims with respect to the workers' compensation, the issues plaintiff now claims he had concerning protective equipment on the job did not arise until after his termination.
The plaintiff has alleged violation of Connecticut General Statutes § 46a-60, known as the Connecticut Fair Employment Practices Act ("CFEPA"). The filing of a complaint with the Commission on Human Rights and Opportunities ("CHRO") within 180 days of the alleged discriminatory act is a prerequisite for a private suit to enforce CFEPA. Sullivan v. Board of Police Commissioner of City of Waterbury, 196 Conn. 208, 213, 491 A.2d 1096 (1985). The plaintiff never filed such a complaint and, therefore, this court is without subject matter jurisdiction to consider the plaintiff's § 46a-60 allegations.
In Count Two the plaintiff has claimed that the defendant's treatment of him violated the Americans with Disabilites Act of 1990, 42 U.S.C. 1201, et seq.("ADA"). Under the version of the ADA in effect in 2008, a person is considered disabled if he has a physical disability or mental impairment that "substantially limits one or more major life activities." Given that the plaintiff engaged in rigorous regular and overtime work for some seven months prior to being laid off, the court finds that the plaintiff has failed to prove that he was incapable of performing any type of work and was not disabled within the meaning of the ADA.
For the foregoing reasons, judgment enters in favor of the defendant, Rotha Contracting Company, Inc.