Opinion
No. CV 05-5000747 S
September 24, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#113.00)
This action arises out of the defendant's alleged wrongful termination of the plaintiff's employment. On November 14, 2005, the plaintiff, G. Berry Schumann, filed a two-count complaint against the defendant, Dianon Systems, Inc., alleging claims for violations of General Statutes § 31-51q, and wrongful termination. The relevant allegations are as follows. The plaintiff was employed as a pathologist in the defendant's medical laboratory. In the course of his employment, the plaintiff was responsible for developing a test known as Microcyte. The results of the Microcyte test enable physicians to monitor medical conditions of patients based on the examination of blood cells found in urine. The defendant decided to update the test, and implemented new diagnostic codes. At several times during the course of his employment, and particularly when the new diagnostic codes were introduced, the plaintiff made several internal complaints to his supervisors about his concerns about the medical safety of new measures implemented by the defendant. As a result of these internal complaints, the plaintiff alleges that he was wrongfully terminated in violation of § 31-51q and under the common law.
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."
The defendant filed a motion for summary judgment on both counts of the operative complaint on May 14, 2007. The motion was accompanied by a memorandum of law. In response, the plaintiff filed a memorandum in opposition on June 1, 2007. A reply brief was filed by the defendant on June 9, 2007. Oral argument was heard on this motion on July 9, 2007.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). If this burden is met, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
Count One — Violation of General Statutes § 31-51q
The defendant moves for summary judgment as to count one, sounding in a violation of § 31-51q, on the following grounds: (1) the plaintiff's speech does not relate to a matter of public concern, and, therefore, is not protected under the U.S. or Connecticut Constitutions; (2) even if related to a matter of public concern, the intent of the plaintiff's speech was to address an internal employment matter, rather than safety concerns he had as a public citizen; (3) the plaintiff's speech was made in the course of his job responsibilities, and, accordingly, is not protected; (4) the plaintiff cannot show that his speech did not substantially or materially interfere with his working relationship; and (4) the plaintiff cannot show that his employment was terminated as a result of his speech.
The plaintiff counters by arguing that patient safety and compliance with the law are matters of public concern. He contends that there is ample evidence to establish that he spoke out on matters of public concern regarding unsafe and illegal practices employed by the defendant, and that he was terminated on account of this speech. Due to the existence of genuine issues of material fact regarding the content of his speech, his intent when speaking, and the grounds for his termination, the plaintiff maintains that summary judgment is inappropriate at this time.
The court first addresses the defendant's argument that it is undisputed that the plaintiff's speech does not relate to a matter of public concern. "[General Statutes § ] 31-51q protects an employee from retaliatory discharge due to that employees's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution . . . Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." (Citation omitted; emphasis added.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). "The statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen." Cotto v. United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999). Furthermore, "[a]n 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." DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). Our Supreme Court has noted: "Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court" but "whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made . . . [and] necessarily involves a question of fact." Daley v. Aetna Life Casualty Co., supra, 249 Conn. 782.
While the defendant recognizes that the issue of public concern is a mixed issue of law and fact, it contends that based on the undisputed facts construed in the light most favorable to the plaintiff, the plaintiff did not speak out on matters of public concern. First, the defendant argues that the plaintiff has repeatedly testified that he did not have access to the information, and, therefore, his complaint focused on his lack of workplace access, not on the safety of the product offering itself. According to the defendant, the lack of access to the information is an internal workplace complaint, and does not touch on a matter of public concern. The defendant also submits a copy of a letter from the plaintiff's attorney, in which the plaintiff disputes the defendant's continued use of his trademark "Microcyte." The plaintiff's attorney did not make any mention of safety concerns, and, accordingly, the defendant maintains that this is evidence that the plaintiff did not speak out on matters of public concern.
The crux of the defendant's argument does not focus on whether patient safety is a matter of public concern; rather the defendant appears to argue that the particular statements made by the plaintiff involve an internal dispute, rather than patient safety. As stated in Daley, whether a particular statement addresses a matter of public concern is a question of fact that depends on the content, form, and context of the statement. When the content of the statements is undisputed, the court can, as a matter of law, conclude whether the statement involved a matter of public concern; Schnabel v. Tyler, 230 Conn. 735, 752 n. 10, 646 A.2d 152 (1994); however, when the parties dispute the content of the speech, this question of fact must be given to a jury. Daley v. Aetna Life Casualty Co., supra, 249 Conn. 783. Although the defendant cites to numerous occasions in the plaintiff's deposition testimony where the plaintiff states that he lacked access to information relating to the tests and procedures, this is insufficient to affirmatively establish that his statements did not, in fact, address a matter of public concern. Sufficient evidence of the content, form and context of his statement has not been provided, and, therefore, whether the plaintiff's statements addressed a matter of public concern is a question of fact that remains for a jury to decide. Summary judgment is inappropriate on this ground.
In the event that this court found that the plaintiff's statements could form the basis of a claim under § 31-51q, the defendant proffers an alternative argument in support of summary judgment. It is its contention that even if the plaintiff spoke out on a matter of public concern, the defendant is still entitled to judgment as a matter of law because it is undisputed that the plaintiff was motivated to make the statements based on his role as a physician, not that of a public citizen. In support of this argument, the defendant cites Daley v. Aetna Life Casualty, supra, 249 Conn. 787, which states: "The court can also look at the employee's motive regardless of whether the subject matter of a particular statement is of inherent interest to the society at large to determine whether the speech was calculated to redress personal grievances or whether it had broad or public purpose."
"[I]f it is determined that an employee spoke `not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest,' the statement is not protected, and courts generally will not second guess the propriety of a personnel decision made by an employer allegedly in reaction to the employee's behavior." Daley v. Aetna Life Casualty, supra, 249 Conn. 781. However, the speaker's motivation is a "quintessential issue of fact." Id., 778. The evidence submitted by the defendant is insufficient to conclusively establish that the plaintiff was speaking out purely for his personal gain. Reasonable minds could differ on what motivated the plaintiff to make the statements, and, therefore, a genuine issue of material fact remains to be decided by a jury.
The defendant also argues that even if the plaintiff intended to speak out as a public citizen, his testimony indicates that he actually spoke out in his role as a pathologist within the scope of his employment and this speech is not protected. In support of this proposition, the defendant cites to Garcetti v. Ceballos, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), a case in which the United States Supreme Court held "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id., 1960. Currently, a split exists at the Superior Court level as to whether the holding of Garcetti is applicable to speech made by a private employee. This court, however, need not decide the applicability of Garcetti to the facts of the present case because the defendant has not submitted any evidence that conclusively establishes that the statements were made as part of the plaintiff's official job duties. Therefore, even assuming without deciding that the Garcetti standard applies, a genuine issue of material fact still remains to be presented to a jury.
Compare Horton v. Windham Community Memorial Hospital, Superior Court, judicial district of New London, Docket No. 4006020 (March 29, 2007, Hurley, J.T.R.) (applying Garcetti to private employees), with Lehmann v. Connecticut Legal Rights Project, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018378 (March 27, 2007, Wagner, J.T.R.) (holding that Garcetti is inapplicable to private employees). See also Dubowsky v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 04 4001320 (August 18, 2006, Shapiro, J.) (2 Conn. L. Rptr. 17) (distinguishing Garcetti as applicable to the speech of public employees in the course of official duties).
The defendant offers further argument in support of its motion for summary judgment. The court, however, need not address the merits of these arguments, having already found that a genuine issue of material fact still remains concerning whether the plaintiff's speech is protected.
For the forgoing reasons, the motion for summary judgment as to count one is denied.
Count Two — Common-Law Wrongful Discharge
The defendant also moves for summary judgment on count two, stating a common-law claim of wrongful discharge, on the grounds that the plaintiff cannot show a violation of an important public policy and has not availed himself of an available statutory remedy. In the present case, neither party disputes the existence of an at-will employment relationship. As a general rule, such a relationship grants both employer and employee the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1981), our Supreme Court carved out an exception to this general rule and recognized a common-law cause of action in tort for the discharge of an at-will employee if the former employee can prove an improper basis for the dismissal, derived from some important violation of public policy. See also Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).
The defendant maintains that the only issue before the court is whether the plaintiff's termination falls within the narrow public policy exception that allows an at-will employee to bring a common-law wrongful discharge claim. According to the defendant, the plaintiff's claim for wrongful discharge is improperly based on violations of two Connecticut regulations in that: (1) the first regulation, Regs., Conn. State Agencies § 19a-36-D32 does not exist and, (2) the second regulation cited, Regs. Conn. State Agencies § 19a-36-D38(e) does not involve an important public policy.
In his memorandum in opposition, the plaintiff explains that the complaint contained a typographical error. The regulation at issue is Regs. Conn. State Agencies § 19a-36-31(d), and the plaintiff argues that the complaint contains an accurate description of the provisions of the correct regulation, despite the error.
Section 19a-36-D38 of the Regulations of Connecticut State Agencies provides in pertinent part: "(e) No misrepresentation of the scope of laboratory services or of the qualifications or special abilities of persons associated with the laboratory shall be permitted."
The gravamen of the defendant's first argument is that a state regulation does not represent important public policy, and any claim for wrongful discharge must be predicated on explicit statute or constitution. The defendant relies, in part, on the language of Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 863 A.2d 735 (2005) to support this position. In Gambardella, our Appellate Court stated: "The public policy exception to the at-will employment doctrine . . . is to be construed narrowly . . . Under that narrow exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy . . . In evaluating such claims, our Supreme Court has looked to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he has alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; internal quotation marks omitted.) Id., 853. It is the defendant's contention that a state regulation does not rise to the requisite level of important public policy.
The court is not persuaded by the defendant's argument. Regulations established pursuant to statutory authority can establish a public policy. See State of Connecticut v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 47 A.2d 480 (2000) (holding that the trial court's holding was correctly based on public policy as "clearly expressed in statutes and relevant administrative regulations"); Med Val USA Health Programs, Inc., v. Member Works, Inc., 273 Conn. 634, 659-60, 872 A.2d 423 (2005) (discussing alternative sources for public policy not grounded in explicit statutes); Feathers v. Vivisection Investigation, Superior Court, Judicial District of Litchfield, Docket No. CV 99 0080107 (August 31, 2000, Sheedy, J.) (denying defendant's argument that a violation of state regulation cannot be the basis of important public policy to support a wrongful discharge claim). Turning to the regulations cited in the complaint, the court notes that pursuant to General Statutes § 19a-30(b), the department of public health is directed to adopt regulations and standards regarding testing at private clinics to insure public health and safety. Section 19a-36-38D of the Public Health Code regulations adopted pursuant to this authority set forth the minimum standards for the operation of private clinical laboratories. These standards include requirements pertaining to the basic levels of cleanliness, equipment upkeep, proper supervision, as well as ensuring that the types of services provided are not misrepresented to the public. § 19a-36-38D. These requirements, as adopted pursuant to statutory authority, can constitute a sufficient basis to establish public policy, and accordingly, summary judgment is inappropriate on this ground.
The defendant's second argument in favor of summary judgment as to count two is based upon the plaintiff's failure to pursue an available statutory remedy. The defendant maintains that a wrongful discharge claim can only proceed where there are no other available remedies. In the present case, the plaintiff arguably would have been entitled to protection pursuant to General Statutes § 19a-30, if he had chosen to report a violation to the department of public health. Because the plaintiff did not file a report with the department, choosing instead to complain internally to his supervisor, the defendant argues that the plaintiff failed to utilize an available statutory remedy that would have offered him statutory protection from any subsequent retaliation, and, therefore, his common-law claim should be barred.
General Statutes § 19a-30(g) provides: "No clinical laboratory shall terminate the employment of an employee because such employee reported a violation of this section to the Department of Public Health."
In response, the plaintiff offers a public policy argument to support his opposition to summary judgment on this ground. According to the plaintiff, dismissing his claim for failure to report to the department of health "create[s] an incentive for wrongdoing employers by encouraging them to terminate complaining employees before those employees make it to the door of the state agency." This result would, arguably, be in direct contradiction to the well-settled rule in Connecticut that our courts will allow a common-law cause of action for wrongful discharge if the discharge was the result of a violation of public policy and the employee would otherwise be left without a remedy. See Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000); Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985).
In support of its argument, the defendant directs the court's attention to two Superior Court decisions. The first, Berte v. Haddam Hills Academy, Inc., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 02 0097138 (December 16, 2005, Beach, J.) [40 Conn. L. Rptr. 565], addressed a motion to strike a wrongful discharge claim due to the availability of a statutory remedy. In Berte, the plaintiff was allegedly terminated in retaliation for reports he made to his employer and to the Connecticut department of children and families (DCF). The court held that to the extent that his claim was based on the report made to the DCF, a wrongful discharge claim could not stand because General Statutes § 31-51m provides an adequate statutory remedy. Id. The court referred to the view that "if a statutory means exists to discourage and, one hopes, to end such improper employee conduct, whether or not such means gives full relief to the plaintiff, then the common-law remedy is trumped." The Berte court then went on to discuss the appropriateness of a common-law cause of action when based on internal reporting. Initially, the court recognized that the statutory remedy under § 31-51m, applicable only to reports to the DCF, could potentially leave open the door to allow a common-law cause of action for internal reporting. Id. Ultimately, however, the court noted that the statute required a report to be made to the DCF, and, therefore, under the facts of the case, it was improbable that a report could be made internally that would not also be made to the DCF. Id. Thus, the statutory remedy under § 31-51m would apply, and, accordingly, the plaintiff's common-law cause of action cannot stand.
The facts of Berte are distinguishable from the present case. Here, the plaintiff was not required by statute to file a report with the department of health, and although § 19a-30 provides protection against retaliation for reports made to the department, it does not provide protection for internal reports. This distinction is significant because unlike the statute at issue in Berte, it is possible for an employee to make an internal report that would not necessarily also be made to the outside agency as required to be entitled to the statutory remedy. The facts of the present case, therefore, slip through the door left open by the court in Berte, where the court recognized that a common-law cause of action could exist if the internal report could be segregated from the reports made pursuant to statute. The plaintiff's failure to file a report with the department of health does not preclude a common-law cause of action for wrongful discharge.
The second case cited by the defendant, Rotzal v. Jewish Home for the Elderly, Superior Court, judicial district of Fairfield, Docket No. CV 0404120V65 (May 26, 2006, Rodriguez, J.) (41 Conn. L. Rptr. 462), applied the ruling of Berte, and held that a plaintiff who chooses not file a report with an outside agency, opting instead to file an internal report, will be barred from bringing a common-law action because a statutory remedy exists for those who do report to the outside agency. While the facts of Rotzal are directly on point with the present case, this court is not persuaded to adopt this reading of Berte, having already found that Berte is distinguishable. Under the rational of Rotzal, the plaintiff would be penalized for an act that could be perceived as acting in the best interest of his employer. The plaintiff chose to report his concerns internally to his employer, and by doing so, he gave his employer the opportunity to remedy a perceived wrong. To hold that he is barred from bringing a wrongful discharge claim would, in fact, leave him without a remedy. Furthermore, as argued by the plaintiff, this proposition provides an incentive to employers to terminate a plaintiff who chooses to make an internal report first. The employer can then terminate the employee, as the employee stands on the steps of the department of health to file a report, and successfully avoid liability for the wrongful termination. This result contradicts the well-settled rule that a common-law cause of action should be allowed to proceed if the plaintiff is without a statutory remedy; Bunham v. Karl Gelb, P.C., 252 Conn. 159-60; in that an employer would be given a window of opportunity in which it could foreclose that remedy by terminating the employee before they can take action under the statute. For this reason, the motion for summary judgment as to count two is denied.