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View Case Details
 
EDWARD HOLUB
vs.
WILLIAM BABCOCK ET AL
 
Case:
NO. CV95 031 96 83
 
Location:
SUPERIOR COURT OF CONNECTICUT JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT
 
Date:
June 27, 1996, Decided
 
Court:
GROGINS, Judge
 
Author:
The Hon. Justice Grogins
 

FACTS

On January 11, 1995 the plaintiff filed a two-count complaint against eight corporate and two individual defendants. The plaintiff was employed for a period of thirteen years by eight companies owned and controlled by one of the individual defendants H. Nash Babcock. The plaintiff worked as a research chemist.

On June 22, 1992 the plaintiff contacted the Nuclear Regulatory Commission (NRC) and reported his doubts and concerns about his employers' quality assurance and testing programs. On December 22, 1995 the plaintiff received a favorable performance review from the second individual defendant William N. Babcock. Thereafter the plaintiff informed William Babcock that he had contacted the NRC and the plaintiff was subsequently discharged from his employment.

Count one of the plaintiff's complaint alleges wrongful discharge against both the corporate and individual defendants. Count two alleges a violation of General Statutes SEC. 31-51q by both the corporate and individual defendants.

On February 1 1996 the defendants filed a motion to strike the complaint and a supporting memorandum of law. On March 6 1996 the plaintiffs filed a memorandum of law in opposition to the defendants' motion. On April 5 1996 the defendants filed a reply memorandum.

DISCUSSION

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. In ruling on a motion to strike Court is limited to the facts alleged in the complaint. Court must construe the facts in the complaint most favorably to the plaintiff. . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Novametrix Medical Systems Inc. v. BOC Group Inc. 224 Conn. 210 214-15 618 A.2d 25 (1992).

Count I: Wrongful Discharge

The defendants argue that the first count should be stricken because a common law cause of action for wrongful discharge exists only if the plaintiff's discharge violates an important public policy and only if the plaintiff has no statutory remedy available. The defendants argue that General Statutes SEC.31-51m and 42 U.S.C. SEC. 5851 provide statutory redress for the alleged public policy violation. The defendants cite Atkins v. Bridgeport Hydraulic Co. 5 Conn. App. 643 648 501 A.2d 1223 (1985). The defendants also argue that Court should strike the first count as to the individual defendants H. Nash Babcock and William Babcock because Connecticut does not recognize a cause of action for wrongful discharge against individual defendants.

The plaintiff counters that Atkins v. Bridgeport Hydraulic Co supra 5 Conn. App. 643 does not require the absence of a statutory remedy prior to bringing a common law claim for wrongful discharge. The plaintiff cites Weeks v. Office of Urban Affairs 1994 Conn. Super. 2341 Superior Court judicial district of New Haven at New Haven Docket No. 339298 (September 13 1994 Martin J. 12 Conn. L. Rptr.388). The plaintiff also argues that a corporate officer that participates in a wrongful discharge can be individually liable even if the officer is acting on behalf of the corporation. The plaintiff cites Baton v. Smith 1990 Conn. Super. 1505 Superior Court judicial district of New London at New London Docket No. 515081 (October 16 1990 Leuba J.).

The general rule in Connecticut is that contracts of permanent employment, or for an indefinite term, are terminable at will. (Internal quotation marks omitted.) Coelho v. Posi-Seal International Inc 208 Conn. 106 118 544 A.2d 170 (1988). The doctrine of wrongful discharge a narrow exception to the general rule holds that an employer may be liable for discharging an employee at will "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." (Emphasis in original). Sheets v. Teddy's Frosted Foods Inc. 179 Conn. 471 475 427 A.2d 385 (1980). "Under the exception the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy." Morris v. Hartford Courant Co. 200 Conn. 676 679 513 A.2d 66 (1986).

In Atkins v. Bridgeport Hydraulic Co. 5 Conn. App. 643 648 501 A.2d 1223 (1985) the appellate court held that a claim for common law wrongful discharge exists only where the claimant has no statutory remedy. "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 violate 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 unrepressed would leave a valuable social policy to go un-vindicated." (Internal quotation marks omitted.) Id. See also Sullivan v. Board of Police Commissioners 196 Conn. 208 491 A.2d 1096 (1988) (age discrimination claim addressable through federal ADEA or state FEPA actions).

The following superior court cases follow Atkins and hold that a plaintiff has no cause of action for wrongful discharge where the plaintiff has a statutory remedy. Deura v. Greenwich Hospital 1995 Conn. Super. 1171 Superior Court judicial district of Stamford/Norwalk at Stamford Docket No. 140029 (April 10 1995 D'Andrea J. 14 Conn. L. Rptr..49) (General Statutes SEC. 46a-60(a)(1) the Connecticut Constitution Article First SEC. 20 and the Americans with Disabilities Act provide statutory remedies to address the alleged discriminations suffered by the plaintiff); Pucci v. American-Republican 1994 Conn. Super. 1319 Superior Court judicial district of Waterbury Docket No. 118491 (May 23 1994 Sylvester J. 9 CSCR 626) (wrongful discharge claim alleging that plaintiff was discharged for filing a worker's compensation claim barred by General Statutes SEC. 31-290a); Werge v. Southern New England Telephone 1994 Conn. Super. 1290 Superior Court judicial district of New London at New London Docket No. 527526 (May 23 1994 Leuba J.) ("since statutory remedies exist the plaintiffs cannot sustain an independent common law cause of action as to wrongful discharge"); Venturi v. William W. Backus Hospital 1993 Conn. Super. 1586 Superior Court judicial district of New London at New London Docket No. 523510 (July 1 1993 Hendel J.) (claim for common law wrongful discharge stricken because General Statutes SEC.(s) 17a-549 and 17a-550 provide adequate remedies for employee discharged because of a mental disorder); Faulkner v. Sikorsky Aircraft 1994 Conn. Super. 886 Superior Court judicial district of Hartford-New Britain at Hartford Docket No. 525080 (April 6 1994 Corradino J.) (wrongful discharge claim stricken because allegations of discrimination based upon age and physical disability can be addressed through state and federal statutes); Poulos v. Pfizer Inc. 1992 Conn. Super. 1845 Superior Court judicial district of New London at New London Docket No. 520719 (June 24 1992 Hendel J. 6 Conn. L. Rptr.545) (wrongful discharge claim barred because General Statutes SEC. 31-51t provides damages and injunctive relief for unlawful drug testing); Brotherton v. Burndy Superior Court judicial district of Ansonia/Milford at Milford Docket No. 031543 (November 12 1990 Fuller J. 2 Conn. L. Rptr.508) (OSHA provides statutory remedy); Reed v. Ritz Camera and Video Store Superior Court judicial district of Fairfield at Bridgeport Docket No. 258480 (November 9 1989 Thompson J. 4 CSCR 862) (ERISA provides statutory remedy); Banjeree v. Roberts 641 F. Supp.1093 1108 (D. Conn. 1986) ("It is evident that the Connecticut Supreme Court in Sheets did not intend to create a means for discharged employees to assert the same statute or constitutional violation twice in a single complaint. . . . Instead Court intended merely to provide a 'modicum of judicial protection' for those who did not already have a means of challenging their dismissals under state law.").

Other superior court cases hold that a claim for wrongful discharge is not preempted if the statutory remedy is inadequate or where different public policy concerns are implicated. Mirto v. Laidlaw Transit 1993 Conn. Super. 963 Superior Court judicial district of New Haven Docket No. 334231 (April 26 1993 Stanley J. 9 Conn. L. Rptr.19) (General Statutes SEC. 31-51q does not preclude right to bring wrongful discharge claim); MacLean v. School Sisters of Notre Dame 1992 Conn. Super. 923 Superior Court judicial district of Fairfield at Bridgeport Docket No. 289572 (March 31 1992 Lewis J.) (common law wrongful discharge and General Statutes SEC. 31-51q advance different public policy initiatives); Wall v. Wausau Insurance Co. 1994 Conn. Super. 2096 Superior Court judicial district of New Haven at New Haven Docket No. 343381 (August 19 1994 Hadden J.) (ten weeks back pay pursuant to General Statutes SEC. 51-247a(b) does not provide adequate remedy for juror discrimination); Miller v. Alpha Systems Inc. 1995 Conn. Super. 522 Superior Court judicial district of Waterbury Docket No. 117227 (February 24 1995 McDonald J. 13 Conn. L. Rptr.516) (same).

In Weeks v. Office of Urban Affairs 1994 Conn. Super. 2341 Superior Court judicial district of New Haven at New Haven Docket No. 339298 (September 13 1994 Martin J. 12 Conn. L. Rptr.388) Court addressed the issue of whether General Statutes SEC. 31-51m bars a claim for wrongful discharge. Court held that General Statutes SEC. 31-51m is not the exclusive remedy for a retaliatory discharge based upon an allegation of whistle blowing. Court noted that "although the legislature may eliminate a common law right by statute the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed." Id. citing Lynn v. Haybuster Manufacturing Inc. 226 Conn. 282 290 627 A.2d 1288 (1993). Court concluded that General Statutes SEC. 31-51m contains no language that plainly and unambiguously expresses the intent of the legislature to impair the common law action for wrongful discharge. The opinion did not discuss Atkins v. Bridgeport Hydraulic Co. supra 5 Conn. App. 648. See also Kirchner v. Bicron Electronics Company 1995 Conn. Super. 1337 Superior Court judicial district of Litchfield Docket No. 067312 (May 4 1995 Fineberg J. 14 Conn. L. Rptr.236) (motion to strike wrongful discharge claim denied because General Statutes SEC. 31-51m only protects whistle blowing to a public agency; not to the employer).

Court grants the defendants' motion to strike count one as to all the defendants including the individual defendants *fn1 because General Statutes SEC.31-51m provides an adequate statutory remedy. The complaint seeks monetary damages compensatory damages punitive damages *fn2 Counsel's fees and costs. General Statutes SEC. 31-51m provides for reinstatement payment of back wages reestablishment of benefits costs and Counsel's fees. General Statutes SEC. 31-51m provides an adequate statutory remedy and bars the plaintiff's claim for common law wrongful discharge. Atkins v. Bridgeport Hydraulic Co. supra 5 Conn. App. 648.

Count II: General Statutes SEC. 31-51q

The defendants also argue that the second count alleging a violation of General Statutes SEC. 31-51q is legally insufficient because it fails to allege that the plaintiff's exercise of his free speech rights did not interfere with the plaintiff's employment relationship or job responsibilities. The defendants also argue that Court should strike the second count as to William Babcock and H. Nash Babcock because the individual defendants were not the plaintiff's employer as that term is used in General Statutes SEC. 31-51q.

The plaintiff counters by arguing that the complaint clearly states that the plaintiff spoke to the NRC from June of 1992 through December of 1992 and that during that time the plaintiff's communications did not materially or substantially interfere with the plaintiff's job performance or his working relationship with the defendants. The plaintiff also argues that both of the individual defendants are proper parties to the action because they personally participated in the plaintiff's termination.

General Statutes SEC. 31-51q provides in pertinent part: "Any employer . . . 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. . . ." General Statutes SEC. 31-51m defines "Employer" as a person engaged in business who has employees. . . .

In reviewing a motion to strike Court "take[s] the facts to be those alleged in the complaint and construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." Sassone v. Lepore 226 Conn. 773 780 629 A.2d 357 (1993). "This includes the facts necessarily implied and fairly provable under the allegations. . . . It does not include however the legal conclusions or opinions stated in the complaint. . . ." S.M.S. Textile Mills Inc. v. Brown Jacobson Tillinghast Lahan & King P.C. 32 Conn. App. 786 796 631 A.2d 340 cert. denied 228 Conn. 903 634 A.2d 296 (1993). "If facts provable in the complaint would support a cause of action the motion to strike must be denied." Id.

The complaint alleges that: (1) the plaintiff was employed for thirteen years by various companies owned by H. Nash Babcock (2) H. Nash Babcock and William Babcock terminated the plaintiff's employment in retaliation for contacting the NRC and (3) such termination violated General Statutes SEC. 31-51q. The plaintiff has pleaded sufficient facts to sustain a cause of action pursuant to General Statutes SEC. 31-51q.

Court will not strike the second count as to the individual defendants on the ground that they are not "employers" pursuant to General Statutes SEC. 31-51q. The complaint specifically alleges in paragraph two that H. Nash Babcock owned the company which employed the plaintiff. Clearly H. Nash Babcock falls within the broad definition of employer. Court finds that William Babcock falls within the broad definition of employer. The fact that William Babcock was a person engaged in business who has employees can be necessarily implied and fairly inferred from the allegations of the complaint. Court denies the defendants' motion to strike the second count as to the individual defendants.

GROGINS Court

 
Notes:

*fn1 The argument that count one should be stricken as to the individual defendants because Connecticut does not recognize a common law claim for wrongful discharge against directors and officers lacks merit. "It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable." Kilduff v. Adams Inc. 219 Conn. 314 331 593 A.2d 478 (1991).

*fn2 "Under Connecticut common law the term 'punitive damages' refers to the expenses of bringing the legal action including Counsel's fees less taxable costs." Larsen Chelsey Realty Co. v. Larsen 232 Conn. 480 517 n.38 656 A.2d 1009 (1995).