Opinion
HHDCV156060382
10-25-2016
Kurt Schulz v. Auto World, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
On June 18, 2015, the plaintiff, Kurt Schulz (employee), commenced a two-count action against the defendant, Schaller Auto World, Inc. (employer), sounding in common-law wrongful discharge in violation of public policy and General Statutes § 31-49 (count one) and statutory wrongful discharge in violation of General Statutes § 31-51q (count two). On January 6, 2016, the employer filed a motion to strike the complaint on the ground that the employee failed to allege sufficient facts to support the elements necessary for claims sounding in common-law wrongful discharge in violation of public policy and § 31-49, and statutory wrongful discharge in violation of § 31-51q. On March 7, 2016, the employee filed a memorandum of law in opposition to the motion. The court heard argument on the matter at short calendar on June 27, 2016.
FACTS
The employee alleges the following facts. In October 2014, the employee commenced work for the employer as a used car sales manager and reported directly to his supervisor, Robert Pizzi (supervisor). Around December 2014, the employee noticed his supervisor " sitting at his office looking at and ordering guns." Subsequently, the employee observed that packages containing " guns, including AR-15s, clips, handguns, suppressors and [rifles]" were being delivered to his supervisor through the mail, that these packages were being kept under his supervisor's desk unlocked, and that any customer visiting the employer could gain access to the packages of firearms under that desk. On February 18, 2015, the employee requested a meeting with the employer's owner, Mark Smith, to discuss the weapons and his concerns for the safety of employees and the general public visiting the employer's showroom. Shortly after the meeting, on the same day, the supervisor called the employee, informed him that the employer's owner knew that weapons were being delivered to the employer, and requested that the employee " stay the [expletive] out" of the supervisor's business. On February 20, 2015, the employee was called to a meeting with the supervisor, who informed the employee that " it [was not] working out here" and terminated his employment. The employee asked his supervisor whether his termination was related to the supervisor's telephone call with him, and the supervisor denied knowledge of what the employee was referencing.
The employee argues that he was discharged by the employer after he complained to the employer's owner about his supervisor's firearms, and that this discharge is wrongful at the common law in violation of public policy in consideration of § 31-49 (count one), a statute that mandates employers exercise reasonable care to provide its employees with a reasonably safe place to work, as well as wrongful discharge in violation of § 31-51q (count two), a statute which protects the employee's speech in the workplace.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Practice Book § 10-39(a)(1). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
A. Common-Law Wrongful Discharge in Violation of Public Policy Under § 31-49
In support of-its motion to strike, the employer argues that the employee has failed to allege an important public policy that his termination violated. The employee counters that he has alleged sufficient facts in support of his claim pursuant to § 31-49, which recognizes as an important public policy the requirement that an employer exercise reasonable care to provide a reasonably safe place for his employees to work. The employee argues that " allowing guns and weapons into the workplace contravenes important public policy of providing a safe workplace for employees." The employee references the fact that employers can ban weapons in the workplace as an example of society's recognition of that important public policy, and argues that the courts have recognized the importance of workplace safety.
The employer raises two lesser arguments in support of its motion to strike. First, the employer argues that the complaint fails because " wrongful termination in violation of public policy claims are available only to at-will employees, " a status that the employee has not pleaded in the complaint. The employee counters that the default status of an employee in Connecticut is at will and does not need to be explicitly pleaded in the complaint. Nevertheless, the employer cites no authority for its argument that the employee's failure to plead that he was an at-will employee renders count one legally insufficient. Accordingly, the court declines to address this bare assertion of the employer. See Kortner v. Martise, 312 Conn. 1, 63-64, 91 A.3d 412 (2014) (" [When] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived . . . In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice" [citation omitted; internal quotation marks omitted]); Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (court " not required to review issues that have been improperly presented to this court through an inadequate brief" [internal quotation marks omitted]).
" As a general rule an employer is free to terminate an at-will employee's employment with impunity . . . In [ Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)], our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . . That exception, however, is to be construed narrowly." (Citations omitted; emphasis in original; internal quotation marks omitted.) Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003). " In evaluating claims, [the court looks] 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." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 77, 700 A.2d 655 (1997).
Section 31-49 provides in relevant part: " It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work . . ." Nevertheless, " [a claim of] wrongful discharge in violation of an important public policy . . . is only available in cases in which there are no other available remedies. [See] Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985)." (Citation omitted.) Trimboli v. Von Roll Isola USA, Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-4037507-S, (April 15, 2010, Wilson, J.).
The Supreme Court in Parsons v. United Technologies Corp., supra, 243 Conn. 80, found that " a Connecticut employee [has] a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties." (Footnote omitted.) In Parsons, the Supreme Court found that to withstand a motion to strike, the plaintiff was not required to plead an " exact place, time, and type of danger to which the plaintiff would be exposed" in order to state a claim of common-law wrongful discharge in violation of public policy. See id., 83. Instead, the Supreme Court was satisfied that " the plaintiff's complaint clearly alleged facts that, taken as a whole and considered in the light most favorable to the plaintiff, [were] sufficient to establish that the plaintiff was terminated for refusing to follow an employer's directive that would have posed a serious threat to the plaintiff's health and safety and that was not contemplated within the scope of his employment duties." Id., 85-86. In Parsons, the plaintiff had pleaded that he was directed to report for employment at a place that was " a staging ground for allied air attacks against Iraq, [which] was in a significant danger zone posing a threat of imminent danger, and risk to [the plaintiff's] personal safety, health and welfare . . . The plaintiff's complaint also included a travel advisory issued by the State Department . . ." (Internal quotation marks omitted.) Id., 83. " Under [those] circumstances, common sense and human experience dictat[ed] that the plaintiff's assignment . . . could pose a significant threat to the plaintiff's safety and welfare." Id., 85. Furthermore, " given the widely known perilous state of the Persian Gulf region at the time of the plaintiff's discharge, along with our [Supreme Court's] mandate that pleadings be construed broadly rather than narrowly, the allegations presented . . . [were] sufficient to make out a claim that the plaintiff was wrongfully discharged in violation of the public policy requiring employers to provide a safe workplace." Id., 86-87.
Subsequent to Parsons, the Superior Court was " persuaded that the mandate of public policy that [§ § 31-49 and 31-370] embody gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties." Trimboli v. Von Roll Isola USA, Inc., supra, Superior Court, Docket No. CV-09-4037507-S. The Superior Court acknowledged that an employee might have a cause of action if the employee was allegedly discharged for protecting the " right of a third party to have a safe work environment." Id.
The issue, therefore, is whether the present facts fit within a public policy requiring employers to provide a safe workplace for its employees. In other words, the issue is whether the employee-who alleges in the complaint that he observed a significant number of firearms being delivered to his workplace that presumably did not sell or service firearms, raised to his employer his concern about the presence of a significant number of firearms in the workplace, and was thereafter allegedly discharged by his employer-has stated a recognizable claim for wrongful termination in violation of the public policy requiring an employer to provide a safe workplace under § 31-49. Although the legislature has banned the possession of firearms by persons other than state or local police officers in the state house and legislative building, it has not banned firearms from private workplaces. Our appellate courts have not addressed the issue. Therefore, the issue is a matter of first impression for this court.
See General Statutes § 2-1e, explaining that possession of, inter alia, firearms by persons other than state or local police officers at the state house and legislative building is considered interfering the with legislative process and is a Class D felony.
Other jurisdictions have recognized the importance of employees raising workplace safety concerns to their employers. This court finds persuasive some retaliatory discharge cases involving employees who raised workplace safety concerns. For example, in Hentzel v. Singer Co., 138 Cal.App.3d 290, 293, 188 Cal.Rptr. 159 (1982), the California Appellate Court considered statutes that mandated employers provide safe workplaces for their employees. In Hentzel, the employee alleged that his employer terminated his employment in retaliation for his " protesting [to his employer] what he considered to be hazardous working conditions caused by other employees smoking in the workplace." Id. The California Appellate Court found that " California has long maintained a policy of protecting the right of employees to voice their dissatisfaction with working conditions . . . Nearly 40 years ago, the [California] Supreme Court . . . declared: . . . In order that the dignity of the employer-employee relation be maintained and that present-day fundamental social concepts be preserved, the employee has the right without breaching his implied obligations to his employer to protest regarding working conditions and rules of his employer and request that they be altered . . . Broadly viewed, such conduct is beneficial rather than detrimental to the employer's interests. It tends to improve the morale of the employee, ultimately resulting in the exhibition of greater diligence and fidelity on his part." (Internal quotation marks omitted.) Id., 296-97. The California Appellate Court commented that " the legislative purpose underlying [the statutes] would be substantially undermined if employers were permitted to discharge employees simply for protesting working conditions which they reasonably believe constitute a hazard to their own health or safety, or the health or safety of others. Achievement of the statutory objective-a safe and healthy working environment for all employees-requires that employees be free to call their employer's attention to such conditions, so that the employer can be made aware of their existence, and given the opportunity to correct them if correction is needed. The public policy thus implicated extends beyond the question of fairness to the particular employee; it concerns protection of employees against retaliatory dismissal for conduct which, in light of the statutes, deserves to be encouraged, rather than inhibited." Id., 298.
The Kansas Court of Appeals addressed a retaliatory discharge case regarding the shipment of firearms. In Fowler v. Criticare Home Health Services, Inc., 27 Kan.App.2d 869, 870, 10 P.3d 8 (2000), aff'd, 271 Kan. 715, 26 P.3d 69 (2001), the employee worked with the employer (a medical equipment supplier) as its shipping manager and was asked by his supervisor " to ship two handguns and live ammunition" to the employer's owner away on vacation. The employee objected to this request on the ground that he believed the activity was " unlawful." Id. Believing the shipment of firearms violated a federal statute; the employee stated to his supervisor that he " would report the activity to [the] United Parcel Service (UPS)" if the employer shipped the handguns and ammunition. Id. Thereafter, the employer shipped the handguns and ammunition to the owner, the employee reported the shipment to the UPS, and the employer was contacted by an agent of the federal Bureau of Alcohol Tobacco and Firearms several months later regarding the shipment. Id., 870-71. The employee brought a complaint against the employer sounding in retaliatory discharge for whistle-blowing on account of his report to the UPS regarding the firearms shipment. Id., 871-72. The Kansas appellate court found that " the whistle-blowing exception to the doctrine of employment at will" was sufficiently pleaded because " the allegedly unlawful conduct violated a statute designed to protect public health and safety." (Internal quotation marks omitted.) Id., 875. The employee " reported the supervisor's conduct in good faith." (Internal quotation marks omitted.) Id. Nevertheless, the Fowler court affirmed the entry of summary judgment in favor of the employer because the employee could not demonstrate, inter alia, that " the infraction [had] been reported to either company management or law enforcement officials." (Emphasis omitted; internal quotation marks omitted.) Id., 876. Specifically, " [the employee's] disagreement with [his supervisor] . . . did not qualify as an internal report to management of illegal coworker or company conduct." Id. In fact, the employee had reported to a third party, UPS, rather than internally reporting to management or a law official agency. Id.
This court finds Hentzel and Fowler persuasive and instructive. Hentzel and Fowler acknowledge the important public policy of allowing an employee to raise to its employer what the employee " reasonably believ[es] [to] constitute a hazard to their own health or safety, or the health or safety of others [in the workplace]" and/or circumstances involving the shipment of firearms. See Hentzel v. Singer Co., supra, 138 Cal.App.3d 298; Fowler v. Criticare Home Health Services, Inc., supra, 27 Kan.App.2d 870.
In the present case, the employee alleges the following facts in count one of the complaint. He " observed [his supervisor] constantly siting at his office looking at and ordering guns." " Shortly thereafter, [the employee] learned that the boxes being delivered to [his supervisor] at Defendant Company contained guns, including AR-15s, clips, handguns, suppressors and [rifles], " that " [th]e packages containing the guns were placed under [his supervisor's] desk, " and that " the packages containing the guns were not locked up and any customer visiting [the defendant's business] could gain access to [his supervisor's] office." " On February 18, 2015, [the employee] requested a meeting with Owner Smith to discuss the weapons that [his supervisor] was having delivered to the dealership." " During said meeting, [the employee] informed Owner Smith of the packages being delivered to Defendant Company, their contents and the serious safety concerns for employees of Defendant Company and the general public visiting the showroom." " Defendant Company is a new and used car dealership, " and the inference from this allegation is that the employer's business, as a car dealership, does not sell or service firearms. " Shortly after said meeting [with Owner Smith], [his supervisor] called [the employee] on his personal cell phone stating, I don't know who you think you are, " " My personal business is my personal business, " " They know I am having weapons delivered to the dealership, stay the [expletive] out of my personal business." " [O]n February 20, 2015, [the employee] was called into a meeting with [his supervisor] and Service Manager Miller, " where " [his supervisor] terminated Plaintiff's employment." This court finds that these factual allegations in the complaint identify an important public policy, the employee raising his concern over firearms in the employer's workplace, which withstands the employer's motion to strike.
B. Wrongful Discharge in Violation of § 31-51q
In support of its motion to strike, the employer argues that the employee has failed to allege sufficient facts to support a claim of statutory wrongful discharge because the concerns raised in the employee's speech do not actually rise to the level of public concerns or public safety concerns. Moreover, the employer argues that the employee has failed to allege that his speech about his supervisor's guns did not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer. In response, the employee argues that his speech to the employer, including his " reports, complaints, comments, objections and safety concerns regarding the delivery of firearms that were unsecured and accessible, [affected] employees of the defendant company and the general public" visiting the employer's showroom, was speech as a " concerned citizen." Further, the employee argues that this speech was not speech pursuant to the employee's official duties because he had no responsibility to account for what was being mailed to his supervisor's office. The employee states that his speech " never had a chance to impact the working relationship between him and the [employer] because he was terminated soon after for exercising his free speech rights . . ." As a consequence, " [that speech] did not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, " which " can be properly implied from the allegations of the [employee's] complaint." In addition, the employee alleges in count two of the complaint that his speech was " protected by the First Amendment of the Constitution of the United States and/or Article first, § § 4 & 14 of the Constitution of the State of Connecticut." (Footnote added.)
The employer presents a number of arguments in its memorandum of law which ask the court to consider facts outside of the pleadings, including the argument that the employer was acting lawfully by exercising his second amendment right to bear arms. The limited function of the court on a motion to strike, as the employer contends, is to address whether the plaintiff has alleged sufficient facts to support the elements necessary for a claim sounding in statutory wrongful discharge in violation of § 31-51q. Although the employee does not address these arguments in his memorandum of law in opposition, the court declines to address these arguments on a motion to strike as a speaking motion to strike has " long been forbidden by our practice . . ." (Citations omitted.) Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).
The first amendment to the United States constitution provides in relevant part: " Congress shall make no law . . . abridging the freedom of speech . . ."
Article first, § 4, of the Connecticut constitution provides in relevant part: " Every citizen may freely speak . . . his sentiments on all subjects, being responsible for the abuse of that liberty." Article first, § 14, of the Connecticut constitution provides: " The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."
Section 31-51q " protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). Section 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."
" In order to state a claim pursuant to § 31-51q, a plaintiff must allege that (1) he was exercising rights protected by the first amendment to the United States Constitution (or an equivalent provision of the Connecticut Constitution); (2) he was fired on account of his exercise of such rights; and (3) his exercise of his first amendment . . . rights [ ] did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer." (Internal quotation marks omitted.) Campbell v. Windham Community Memorial Hospital, Inc., 389 F.Supp.2d 370, 381 (D.Conn. August 26, 2005).
1. Federal Constitutional Claim
To determine whether the employee was exercising rights protected by the first amendment to the United States Constitution, the court first applies Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and analyzes the alleged speech to " determine whether an employee is speaking pursuant to his official duties . . ." (Citations omitted.) Schumann v. Dianon Systems, Inc., 304 Conn. 585, 604, 43 A.3d 111 (2012). " The speech need not be contemplated by the employee's formal job description . . . [On]-the-job speech generally is pursuant to an employee's duties when it is part-and-parcel of his concerns about his ability to properly execute his duties." (Citations omitted; internal quotation marks omitted.) Id., 614. " The key inquiry is whether the speech . . . stemmed from and [was of] the type . . . that [the employee] was paid to do." Id. " If the employee is speaking pursuant to his official duties then the speech is not protected by the first amendment." Douglas v. Mystic Motor Inn, Inc., Superior Court, judicial district of New London, Docket No. CV-13-6018304-S, (December 31, 2013, Devine, J.); see Schumann v. Dianon Systems, Inc., supra, 616-17. " On the other hand, if the employee is speaking outside of his official duties, " the court should apply the Pickering/Connick balancing test to determine whether the employee's speech addresses a matter of public concern. Douglas v. Mystic Motor Inn, Inc., supra; see Schumann v. Dianon Systems, Inc., supra, 604.
The Pickering/Connick balancing test, referenced in Schumann v. Dianon Systems, Inc., supra, 304 Conn. 604, is articulated in DiMartino v. Richens, 263 Conn. 639, 666, 822 A.2d 205 (2003).
" An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community . . ." (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). In the present case, the employee alleges in the complaint that he was employed as a used car sales manager at the employer's business, but has not pleaded what his official duties were at that time and this court cannot determine at this stage of the litigation whether the employee was speaking pursuant to his official duties at the time of the alleged speech. See Lyons v. Vaught, 781 F.3d 958, 962 (8th Cir. 2015) (affirming district court's denial of motion to dismiss when " [the court] was unable at [that] stage in the litigation to conclude whether [the employee's] claim [alleging retaliation based upon speech protected by the first amendment to the United States Constitution] is barred by Garcetti [as speech pursuant to official duties]" [internal quotation marks omitted]).
Although the employer cites authority in his memorandum of law that when an employee speaks pursuant to his official duties at work, that speech is not protected under the First Amendment of the Constitution, the employer articulates no argument about the present employee's speech under that standard and the facts of this case on the motion to strike. Accordingly, the court declines to advance arguments for the parties on this matter, but merely references Lyons v. Vaught, supra, 781 F.3d 958, for the proposition that, where the allegations of the complaint are unclear on the issue of whether the employee's speech is related to official duties, the court has discretion to allow the claim to withstand the employer's motion challenging the legal sufficiency of a claim for retaliation based upon speech allegedly protected by the first amendment.
" Speech that addresses a matter of public concern involves statements that can be fairly considered as relating to any matter of political, social, or other concern to the community . . ." (Internal quotation marks omitted.) Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 779. " The court must consider, therefore, whether [the employee] spoke as a citizen upon matters of public concern or instead as an employee upon matters only of personal interest. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Connecticut Supreme Court has concluded that . . . it is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern. The resolution of whether an employee's statements address such a topic is, however, within the province of the jury, to be determined by looking to the content, form and context of the particular statements in question. Daley v. Aetna Life & Casualty Co., [supra, 249 Conn. 782] . . . Therefore, while generally determination of whether speech addresses a matter of public concern is a question of law for the court, where a person's motivation for engaging in such speech is disputed, the question may be one of fact." (Internal quotation marks omitted.) Campbell v. Windham Community Memorial Hospital, Inc., supra, 389 F.Supp.2d 382. " [T]he fact [the employee] expressed [his] concerns privately rather than publicly does not cause [him] to relinquish protection of First Amendment-protected speech." Id.
In the present case, the employer's motion to strike does not challenge whether the employee has pleaded sufficient facts in the complaint to support all of the elements for a claim of wrongful termination in violation of § 31-51q based upon speech allegedly protected by the first amendment of the United States Constitution. Instead, the employer focuses his argument on whether the employee's alleged speech rises to a level of public concern. The employee alleges in the complaint that he spoke with the owner of the employer about the delivery of a multitude of firearms to his supervisor, kept unsecured in the supervisor's office. Therefore, according to the employer, the issue of whether the employee has pleaded a claim under the first amendment to the United States Constitution and Article first, § § 4 and 14 of the Connecticut constitution, depends upon whether speech on the topic of firearms is a matter of public concern.
The court concludes that firearms are a matter of public concern. See Thomas v. Whalen, 51 F.3d 1285, 1290 (6th Cir. 1995), cert. denied, 516 U.S. 989, 116 S.Ct. 518, 133 L.Ed.2d 426 (1995) (" [t]he debate over the propriety of gun control legislation is, obviously, a matter of public concern"); see also Hoofnagle v. Smyth-Wythe Airport Commission, United States District Court, Docket No. 1:15CV00008 (JPJ), (W.D.Va. May 24, 2016) (" courts regularly conclude that speech about the gun control debate constitutes a matter of public concern"); Buker v. Howard County, United States District Court, Docket No. 13-3046 (MJG), (D.Md. May 27, 2015) (speech on gun control debate is speech of public concern); Santucci v. Gross, United States District Court, Docket No. 07-373 (NLS), (E.D.Penn. Sept. 10, 2007) (officer's speech about firearm found in his vehicle may be construed as speech in public concern rather than pursuant to official duties); Providence Journal Co. v. Pine, Superior Court of Rhode Island, C.A. No. 96-6274, (June 24, 1998, Silverstein, J.) (" [u]nquestionably the proper issuance of firearms licenses only to persons qualified to receive them is a matter of fundamental public concern" [internal quotation marks omitted]).
Given this authority and the context in which the employee's speech was made, this court finds that speech on firearms, as a matter of law, is speech on a topic of public concern. Therefore, this court concludes that the § 31-51q claim alleging that the employee's speech is protected by the first amendment of the United States Constitution withstands the employer's motion to strike on this issue. Nevertheless, as stated in Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 782, " whether an employee's [particular] statements [actually] address such a topic [of public concern] is, however, within the province of the jury, to be determined by looking to the content, form and context of the particular statements in question." Consequently, such an inquiry is inappropriate for the court on a motion to strike.
2. State Constitutional Claims
" Our Supreme Court in Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 210-12, 123 A.3d 1212 (2015), applies a different, but similarly strict standard for claims pursuant to General Statutes § 31-51q claim under the Connecticut constitution." Cole v. University of Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048781-S, (August 10, 2016, Arnold, J.). Trusz provides: " [I]f an employee's job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee's speech is on a matter of public concern and implicates an employer's official dishonesty . . . other serious wrongdoing, or threats to health and safety . . . that the speech trumps the employer's right to control its own employees and policies." (Citation omitted; footnote omitted; internal quotation marks omitted.) Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 212, 123 A.3d 1212 (2015). In subsequent proceedings in Trusz, the District Court rejected the employer's argument that the employee " needed to have an objective basis for any belief that [the employer was] committing serious misconduct in order for [the employee's] speech to be protected. Constitutional free speech rights do not stop when a speaker misapprehends the facts. Cf. United States v. Alvarez, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (lying about receiving military metals is protected speech under the First Amendment)." Trusz v. UBS Realty Investors, LLC, United States District Court, Docket No. 3:09-CV-00268 (JAM), (D.Conn. March 25, 2016). The District Court commented that " [b]y [the employer's] logic, [an employee] must first make sure [his] suspicion is correct before [he] speaks out about suspected misconduct. To adopt this rule would chill speech in a fashion incompatible with either the federal or state constitution." Trusz v. UBS Realty Investors, LLC, United States District Court, Docket No. 3:09-CV-00268 (JAM), (D.Conn. April 18, 2016).
In the present case, the court has already determined that there is an important public policy in allowing an employee to raise to its employer what it " reasonably believ[es] [to] constitute a hazard to their own health or safety, or the health or safety of others [in the workplace]" and that this public policy includes circumstances involving the shipment of firearms. See Hentzel v. Singer Co., supra, 138 Cal.App.3d 298; Fowler v. Criticare Home Health Services, Inc., supra, 27 Kan.App.2d 870. In the complaint, the employee alleges the firearms-specifically, boxes containing " guns, AR-15s, clips, handguns, suppressors and [rifles]" -were " placed under [his supervisor's] desk" and " were not locked up and any customer visiting [the employer's business] could gain access to [his supervisor's] office." The employee alleges that " [o]n February 18, 2015, [he] requested a meeting with Owner Smith to discuss the weapons that [his supervisor] was having delivered to the dealership." Specifically, the employee alleges that " [d]uring said meeting, [the employee] informed Owner Smith of the packages being delivered to Defendant Company, their contents and the serious safety concerns for employees of Defendant Company and the general public visiting the showroom." The court concludes, therefore, that the employee alleges that he spoke with the owner of the employer on a topic of public concern, firearms, and safety in the workplace, and that the § 31-51q claim alleging speech protected by Article first, § § 4 and 14 of the Connecticut constitution withstands the employer's motion to strike on this issue.
3. Material Interference With Workplace
Although the court has decided that the topic of speech on firearms is, as a matter of law, a topic of public concern, the court next has to decide whether the employee's concession that he has not pleaded that his speech " did not materially interfere with [his] job performance or [his] working relationship with the defendant" means that the employee has not stated a legally sufficient claim of wrongful termination in violation of § 31-51q. There is a split in the Superior Court on whether an employee must plead facts in support of an allegation that " the protected [speech] did not materially interfere with the [the employee's] job performance or [the employee's] working relationship with the [employer]." See Buscetto v. Saint Bernard School of Montville, Inc., Superior Court, judicial district of New London, Docket No. CV-11-6011089-S (February 22, 2013, Devine, J.) [55 Conn.L.Rptr. 583, ] .
Under these facts, this court follows the minority of Superior Court decisions that such pleading is not essential to state a claim under § 31-51q. See Holub v. Babcock, Superior Court, judicial district of Fairfield, Docket No. CV-95-0319683-S, (June 27, 1996, Grogins, J.). This court is persuaded that the employee's failure to plead that his speech did not " materially interfere with [his] job performance or [his] working relationship with the [employer]" is not fatal to stating a claim upon which relief may be granted under § 31-51q given that he alleges that he was terminated immediately after the speech was made. As the courts have suggested in. DiMartino v. Richens, supra, 263 Conn. 666, which articulates the Pickering/Connick balancing test, and in Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 212, there may be times that the employee's job-related speech on a matter of public concern may disrupt the workplace but may be protected if the employee's right to speak outweighs the employer's right to maintain his workplace. See, e.g., Trusz v. UBS Realty Investors, LLC, supra, 212 (employee's speech on matter of public concern may be protected if " [implicating the] employer's official dishonesty . . . other serious wrongdoing, or threats to health and safety"). In subsequent proceedings, the court may, in fact, be called upon to determine whether the employee's right to speak to raise his concern over firearms in the workplace outweighs the employer's right to maintain its workplace.
See footnote 6 of this opinion.
CONCLUSION
In conclusion, this court denies the motion to strike in its entirety.
Second, the employer argues that the complaint is legally insufficient because the employee has not pleaded facts to demonstrate that the " [the employer] did not exercise reasonable care to provide employees with a reasonably safe place in which to work and/or reasonable safe appliances and instrumentalities for their work or any failure of workplace safety or failure to maintain a safe workplace." The employer does not explain this argument. The employer argues that the employee has not pleaded any facts that the firearms delivered to the supervisor were loaded with ammunition or that ammunition was present at the employer's place of business. The employee has alleged in the complaint that a multitude of firearms were being delivered to his supervisor, kept under his supervisor's desk unlocked, and that anyone patronizing the employer's business could gain access to those firearms. Furthermore, the employee has pleaded that his supervisor called him to inform him that the employer knew that weapons were being delivered to the business. From these allegations, there is an inference that the employer may have known of the weapons and firearms and failed to secure the business to remedy the condition complained of prior to the employee's complaint to the employer's owner, but instead terminated the employee when he brought the matter to the owner's attention. The court is persuaded that the factual allegations in the complaint are legally sufficient because they " provide' sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party." J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 512-13, 137 A.3d 894, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016). In addition, the court declines to consider " underlying facts not alleged in the complaint, " including the employer's contentions about ammunition, because " the defendant must await the evidence which may be adduced at trial . . ." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004) (denying motion to strike). A speaking motion to strike has " long been forbidden by our practice . . ." (Citation omitted.) Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).