Opinion
No. CV 10-6011737-S
December 20, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is a five-count amended complaint against the defendants, Adesta, LLC (Adesta) and Leonard C. Boyle, the former commissioner of the Connecticut Department of Public Safety alleging wrongful termination of employment. The plaintiff Ruslan Vasyliv was employed as a wireless field technician with Adesta, under a state contract in which Adesta operated and maintained a digital microwave communication system for use by DPS and other public safety agencies. On or about November 2007, the plaintiff voluntarily participated in the creation of a film that the defendant intended to use for purposes of a presentation at its annual meeting. During a break in the filming session, after he was told that he was not being recorded, the plaintiff made various inappropriate and disparaging remarks about his bosses at Adesta and other entities. The tape was given to management and, in 2009, was played various times over the plaintiff's objection and to his embarrassment. The plaintiff formally complained to Adesta's vice president regarding the treatment he was being subjected to, as well as various improprieties that were being performed by Adesta employees, some of which pertained to DPS, and which were costing the state of Connecticut large sums of money. The plaintiff has made such complaints to the state attorney general's office and its "whistle-blower unit." On March 5, 2010, the plaintiff was terminated from his position at Adesta.
In Counts One, Two, Three and Five, respectively, the plaintiff alleges causes of action against the defendants for violations of the whistle-blower statute, General Statutes § 31-51m, common-law wrongful termination, violations of General Statutes § 31-51q, and invasion of privacy. In Count Four, he alleges a cause of action against DPS for the wrongful exchange of confidential information.
On August 30, 2010, the defendant filed this motion to strike Count Two on the ground that it fails to state a legally sufficient claim, as the plaintiff has an available statutory remedy, and Count Five on the ground that it fails to sufficiently allege the elements of invasion of privacy.
I
Defendant argues that Count Two, alleging common-law wrongful termination, should be stricken as a matter of law because there is a statutory remedy available to the plaintiff under the whistle-blower statute, General Statutes § 31-51m, which precludes the common-law wrongful termination claim. The plaintiff counters that his wrongful termination claim is not precluded because it predicated on Adesta's conduct in response to his internal reports, rather than solely on his whistle-blower activities, and it relies on public policy concerns not embodied in § 31-51m.
Section 31-51m(b) provides in relevant part: "No employer shall discharge, discipline or otherwise penalize any employee because the employee . . . reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . ." Section 31-51m(c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation . . ."
Our Supreme Court has directly addressed the relationship between § 31-51m and common-law wrongful termination claims as follows.
"In Sheets v. Teddy's Frosted Food, Inc., 179 Conn. 471, 427 A.2d 385 (1980) . . . this court recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . . In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: `A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.'" Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60.
The court concluded that the plaintiff's common-law claim for wrongful discharge was precluded by virtue of the existence of a statutory remedy under that statute which prevented the plaintiff from bringing a common-law wrongful discharge action. See also Burnham v. Karl Gelb, P.C., supra, 252 Conn. 160-62.
Also in Campbell v. Plymouth, 74 Conn.App. 67, 76, 811 A.2d 243 (2002), the Appellate Court held that a common-law approach to a claim of wrongful discharge is barred as a long as a remedy has been made available to address the particular public policy concerns.
In the present case however, the plaintiff specifically alleges that Adesta wrongfully terminated him because, "[d]uring the course of his employment with Adesta, [he] criticized and opposed [Adesta's] practices as to the inappropriate actions set forth herein including but not limited to the following: the contract work performed by Adesta for the town of Greenwich Policy Department; and inappropriate high priced Christmas party for State DPS people and Adesta employees held at a casino; off contract work performed by Adesta in 2004-2005 regarding the wiring of cable television at the Police Academy building; destruction of a new modified prototype of a keyless control board for the remote keyless access system that could ultimately cost the state over [$150,000]; as well as other pertinent issues." Plaintiff cites Trimboli v. Von Roll Isola USA, Inc., Superior Court, judicial district of New Haven, Docket No., CV 09-4037507 (April 15, 2010 Wilson, J.), which denied the defendant employer's motion to strike a wrongful termination count in the plaintiff's complaint, premised on the defendant's argument that it was precluded by the remedy available in § 31-51m. In that case the court found that the plaintiff's whistle-blower claim [under § 31-51m] was predicated on her allegations that the defendant terminated her employment due to the external reports to OSHA. In contrast, as in the present case, her wrongful termination claim was predicated upon her allegations that the defendant terminated her due to the oral and written complaints she made to internal management regarding the defendant's alleged health and safety violations. It is concluded that this claim does not fall under the Appellate cases cited above and is sufficient under our statutes.'
II
Adesta argues that Count Five, alleging invasion of privacy, must be stricken as a matter of law because the plaintiff fails to allege all elements of either of two possible invasion of privacy claims, either that any intrusion into his personal affairs or concerns took place or that publicity was given to a matter that did not legitimately concern the public. The plaintiff claims that by alleging that another employee secretly recorded a conversation that he had with the plaintiff, that the plaintiff had no knowledge that the employee was recording the conversation, and that such intrusion would be highly offensive to a reasonable person, he has sufficiently pleaded a cause of action for unreasonable intrusion upon the seclusion of another.
"[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth . . . as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).
Plaintiff claims that his Count Five satisfies the elements of the first category. Our appellate courts have yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another. The Supreme Court, however, has often adopted the Restatement [Second of Torts] when adjudicating an invasion of privacy claim and our trial courts consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another. Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No., CV 06-5005107 (July 20, 2009, Wilson, J.). That decision held that under the Restatement, "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person . . . The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined."
In the present case, the plaintiff alleges that he was secretly recorded while he was involved in a private conversation with another employee of the defendant. A secret video recording of a private conversation can certainly be considered an intrusion upon one's seclusion or their private affairs or concerns. Construing the complaint in a manner most favorable to sustaining its legal sufficiency, the plaintiff has pleaded sufficient facts to establish that an intrusion into his personal affairs or concerns took place.
Motion to strike Count Two and Five Denied.