Opinion
CV146024702S
03-09-2017
Ronald Schofield, Jr. v. Loureiro Engineering Associates, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #160 and #167
Andrew W. Roraback, J.
I
Background
The plaintiff, Ronald Schofield, Jr., filed a four-count second amended complaint against his former employer, the defendant, Loureiro Engineering Associates, Inc. on January 20, 2015. On May 22, 2015, the court granted a motion to strike the first three counts of the second amended complaint [60 Conn.L.Rptr. 419, ]. The only remaining count, count four, alleges that even though the plaintiff was an employee at-will, his termination from employment by the defendant predicated on the results of a hair drug test was in violation of public policy. The parties have filed cross motions for summary judgment. During oral argument on these motions, the parties agreed that these competing motions raise a question of law and that it would therefore be appropriate for the court to grant one of the motions and to deny the other. It was also agreed that if the court granted summary judgment in favor of the plaintiff, it would be summary judgment as to liability only.
II
Facts
The following undisputed facts are relevant for a determination of the issues raised in these motions. On April 15, 2013, the defendant hired the plaintiff as an at-will employee. In connection with his hiring, the plaintiff signed an employment application which stated: " I understand and agree that I may be required to pass a physical exam and drug test as a condition of my hiring or continued employment." The defendant's policy at the time it hired the plaintiff was that all new employees had to take and pass a drug test as a condition of employment. One day after he was hired, the plaintiff was directed to submit to a hair drug test and told that he would be terminated if he did not comply. The results of that drug test on the plaintiff as reported by the drug testing company to the defendant on April 24, 2013 were positive for cocaine and marijuana. On April 26, 2013, the defendant terminated the plaintiff's employment. This action was consistent with the defendant's policy that the discipline for new hires who tested positive for drugs was termination. The plaintiff never requested an opportunity to be re-tested.
III
Discussion
" Our Supreme Court has establish[ed] the principle that public policy imposes some limits on unbridled discretion to terminate the employment of someone hired at will . . . Although the [Supreme] [C]ourt . . . recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . [it also] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [courts should] look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citation omitted; internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 531, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016).
Because there is neither an explicit statutory nor constitutional provision which the defendant has violated, the core issue in this case is whether the plaintiff's firing contravened a judicially conceived notion of public policy. The defendant did not violate any explicit statutory provision because to date the legislature has chosen only to subject private employers to specific drug testing protocols in cases where the employer seeks to compel an employee to submit to a urinalysis drug test. See General Statutes § 31-51t et seq. The failure of the legislature to extend these protections to drug testing by other measures may properly be considered to be either a seemingly irrational omission or a failure on its part to update this 1987 statute in the face of the development of more recent drug testing methodologies. Nevertheless, the current statutory scheme explicitly applies only to urinalysis.
In support of his motion for summary judgment, the plaintiff attached copies of documents which the defendant had furnished in response to production requests. These documents purport to evidence that the Connecticut Department of Labor assessed a $300 fine on the defendant arising out of the Department's determination that the defendant violated General Statutes § 31-51v by subjecting the defendant to the hair drug testing at issue in this case. The parties dispute whether these documents are properly authenticated so as to be considered by the court in deciding these motions for summary judgment. The court finds it unnecessary to rule on this dispute because, even if properly before the court, the documents in question do not bear on the issue before the court as they are predicated on a claimed violation of a statute which applies only to urinalysis. The fact that the defendant did not contest or request a hearing regarding the assessment is also irrelevant to the public policy issue now before the court.
It is equally clear that the defendant's conduct in compelling the plaintiff to submit to the hair drug test did not violate any explicit constitutional provision. " The legislative history indicates that [§ 31-51t et seq.] was intended to provide the same protections to private employees in Connecticut as those protections that are afforded to employees of the federal government by the fourth amendment to the United States Constitution . . . [T]he Constitution of the United States protects all of us from unwarranted intrusions by government . . . [T]he [Federal] District Court for the District of Connecticut . . . concluded that [§ ]31-51x, properly understood as protecting the privacy rights of employees from employer-mandated urinalysis drug testing, is thus analogous to the Fourth Amendment, which protects the privacy rights of employees against Government-mandated urinalysis testing." (Citations omitted; internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 606, 711 A.2d 688 (1998). Clearly, legislative action was required to extend the rights afforded by § 31-51t et seq. to private employees. While it is true that if the government engaged in the conduct proscribed by § 31-51t et seq. it would be in violation of the Fourth Amendment, neither the Fourth Amendment nor any other provision of the State or Federal Constitution protects at-will employees of private companies from being compelled to submit to drug tests at the direction of their employers, even in the absence of reasonable suspicion.
The remaining issue is whether the defendant's conduct has violated a judicially conceived notion of public policy. In his advocacy encouraging the court to answer this question in the affirmative, the plaintiff points to Tomick v. United Parcel Service, Inc., 135 Conn.App. 589, 43 A.3d 722, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). In Tomick, the court upheld a jury verdict for an employee on a claim of a violation of General Statute § 31-51x. In reaching its decision, the court affirmed the trial court's conclusion that the defendant employer " required the plaintiff directly or indirectly to submit to a urinalysis drug test . . . and, further, that [the defendant] did not have a reasonable suspicion [as required by General Statute § 31-51x) to require the plaintiff to submit to a urinalysis drug test." (Internal quotation marks omitted.) Id., 607. The Appellate Court concluded that the fact that the plaintiff did not ultimately undergo the urinalysis after having been ordered to do so by his employer did not exonerate the employer from liability under § 31-51x for having ordered the test without reasonable suspicion. Because the court in Tomick addressed only an employee's statutory rights with respect to undergoing a urinalysis, Tomick is, standing alone, an inadequate foundation upon which this court can conclude that the defendant has violated a judicially conceived notion of public policy in the present case.
The defendant points to an equally inapposite case, Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 802 A.2d 731 (2002), to support its claim that it did not violate public policy by engaging in the conduct that gave rise to this action. In Thibodeau, the Supreme Court affirmed the trial court's granting of summary judgment in favor of a defendant employer who had allegedly violated public policy by discriminating against the plaintiff on the ground that she was pregnant. This ruling was made in reliance on the legislature's express exclusion of employers who employed fewer than three employees from the reach of the anti-discrimination provisions of General Statutes § 46a-60(a)(1) and (7). In the present case, the legislature has not expressly excluded hair drug testing from the reach of the statute but rather is silent on the question.
For purposes of defining the entities subject to these anti-discrimination prohibitions, the legislature in General Statutes § 46a-51(10) defined the term " employer" to mean " any person or employer with three or more persons in such person's or employer's employ."
In the absence of a clearly articulated judicially conceived notion of public policy on the issues presented by these motions, this court will not re-write existing statutes to cover the facts of this case. " As [our Supreme Court has] stated in numerous other cases, it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and the courts must apply statutory enactments according to their plain terms." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 559, 867 A.2d 37 (2005), aff'd, 280 Conn. 405, 908 A.2d 1033 (2006). Furthermore, " [t]he legislature is always presumed to be aware of all existing statutes and the effect that its action or nonaction will have on any of them"; Wiseman v. Armstrong, 269 Conn. 802, 822, 850 A.2d 114 (2004); and it also is presumed to be aware of existing judicial interpretations of those statutes. State v. Morrissette, 265 Conn. 658, 668, 830 A.2d 704 (2003).
In the present case, this court has, by written decision released nearly two years ago, stricken three counts of the second amended complaint, alleging violations of General Statutes § § 31-51u, 31-51v and 31-51x, respectively, on the ground that the drug test employed in this case was a hair test and not a urinalysis. In 2008, another Superior Court in Atlantic Pipe Corp. v. Laborers International Union of North America, Superior Court, judicial district of New Britain, Docket No. CV-07-4015994-S (April 11, 2008, Trombley, J.) (45 Conn.L.Rptr. 375, ) reached a similar conclusion holding that it is " not violative of the [§ 31-51x] for the employer to require [the plaintiff] to submit to toxicology drug screening by saliva testing or hair follicle testing or any other valid non-urinalysis drug test." Id., 381,, *30.
General Statutes § 31-51u provides in relevant part: " No employer may determine an employee's eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result, and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology."
General Statutes § 31-51v states: " No employer may require a prospective employee to submit to a urinalysis drug test as part of the application procedure for employment with such employer unless (1) the prospective employee is informed in writing at the time of application of the employer's intent to conduct such a drug test, (2) such test is conducted in accordance with the requirements of subdivisions (1) and (2) of subsection (a) of section 31-51u, and (3) the prospective employee is given a copy of any positive urinalysis drug test result. The results of any such test shall be confidential and shall not be disclosed by the employer or its employees to any person other than any such employee to whom such disclosure is necessary."
General Statutes § 31-51x provides in relevant part: " No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance."
The legislature's inaction in the face of these judicial decisions is neither readily understandable nor facilely defensible. While the temptation is great for the judiciary under the guise of upholding public policy to try to perfect the frequent incompleteness or seemingly irrational shortcomings of the legislature's work product, considerations of comity and the separation of powers counsel in favor of yielding only sparingly to that temptation and doing so only in extraordinary and compelling circumstances. " [T]he task of changing the law lies with the legislature, and not with the judiciary . . . [I]t is not the business of the court to attempt to twist the interpretation of the law to conform to the ideas of the judges as to what the law ought to be or to attempt to make the law coincide with their ideas of social justice. The judicial function should not invade the province of the legislature." (Internal quotation marks omitted.) Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 182, 977 A.2d 148 (2009), overruled on other grounds by Commissioner of Public Health v. Freedom of Information Commission, 311 Conn. 262, 86 A.3d 1044 (2014). " Our Supreme Court also repeatedly [has] underscored [that] adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . [C]ourts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, supra, 166 Conn.App. 531.
IV
Conclusion
For the reasons set forth above, the defendant's motion for summary judgment is granted and the plaintiff's motion for summary judgment is denied.