HAIGHT

Michael T. Petela, Jr., Cicchiello & Cicchiello, LLP, Hartford, CT, for Plaintiff. Ian T. Clarke–Fisher, Stephen W. Aronson, Robinson & Cole, LLP, Hartford, CT, for Defendant.

RULING ON DEFENDANT'S MOTION TO DISMISS

HAIGHT, Senior District Judge:

I. INTRODUCTION

In this consolidated action, plaintiffs Edwin Lopez, Richard Lester, Ryan Montalvo, and Jonathan Valdes (collectively “Plaintiffs”) seek recovery from their former employer, defendant Burris Logistics, Inc. (“Burris” or “Defendant”), for their wrongful terminations on February 21, 2012.

Pending before the Court is Defendant's motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss Count Two of each of Plaintiffs' Complaints, which sets forth a wrongful discharge claim in violation of public policy. Doc. # 16. Defendant contends that each wrongful discharge claim should be dismissed as “legally insufficient on the ground that an alternate remedy exists under Conn. Gen.Stat. § 31–51q” and such a statutory claim “has, in fact been pled in Count Three, thereby precluding the [P]laintiffs from bringing a wrongful discharge claim under Connecticut common[ ] law.” Doc. # 17, p. 1.

Plaintiffs object to the motion, arguing that they “are entitled to plead alternative and inconsistent causes of action.” Doc. # 23–1, p. 3. They reason that “[t]his is because when the factual allegations of each specific case are developed, they may render the statutory causes of action unavailable.” Id., p. 3. “If and when that occurs, the bar to the plaintiff[s'] common law claims will cease to exist, and the plaintiff[s] will be entitled to pursue them.” Id.

Furthermore, Plaintiffs rely on the Connecticut Supreme Court's decision in Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012), in which the “Court overturned the jury's verdict on the plaintiff's § 31–51q claim,” and then “remanded the case for a new trial on the plaintiff's common law wrongful discharge claim.” Doc. # 23–1, p. 4. Plaintiffs read that decision as validating alternative pleading of statutory and common law wrongful termination claims. Id.

The Court will resolve the motion, and thus the conflicts with respect to the parties' legal arguments, in Part IV. below.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Consolidation

On July 16, 2012, plaintiff Edwin Lopez initiated the present action against his former employer, Burris Logistics, Inc., alleging that he was wrongfully terminated on February 21, 2012. Case No. 3:12cv1039 (CSH), Doc. # 1, ¶ 54. The next day, on July 17, 2012, Lopez's counsel commenced three separate wrongful termination actions by other former employees against Burris. See Richard Lester v. Burris Logistics Co., No. 3:12cv1041 (RNC); Ryan Montalvo v. Burris Logistics Co., No. 3:12cv1044 (WWE), and Jonathan Valdes v. Burris Logistics Co., No. 3:12cv1045 (RNC).

On August 17, 2012, counsel for Burris, Ian T. Clarke–Fisher of Robinson & Cole, LLP, filed an identical “Unopposed Motion to Consolidate” in each of the four cases, seeking consolidation for purposes of pre-trial proceedings and discovery, pursuant to Fed.R.Civ.P. 42(a).

See No. 3:12cv1039, Doc. # 8; No. 3:12cv1041, Doc. # 8; No. 3:12cv1044, Doc. # 7; and No. 3:12cv1045, Doc. # 9. Burris based each motion on the grounds that “the four above-titled actions all arise from the same incident, name Burris as the sole defendant, hinge on the same set of central facts, involve many of the same witnesses[,] including each of the [P]laintiffs, and encompass common issues of law.” See, e.g., No. 3:12cv1039, Doc. # 9, p. 2, ¶ 1. “Due to their factual and legal overlap, and in the interests of judicial economy,” Burris “request [ed] that this Court consolidate the [four referenced] actions into a single unified set of proceedings for the purposes of pre-trial proceedings and discovery.” Id. Although Burris did not move to consolidate the matters for purposes of trial, in a footnote it explicitly “reserve[d] the right” to do so at a later time. Id., p. 2 n. 1.

As the Second Circuit explained in Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), “Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate actions for trial when there are common questions of law or fact to avoid unnecessary costs or delay.” Recognizing Rule 42(a) “as a valuable and important tool of judicial administration” in the case at bar, this Court exercised its discretion to grant the motion, thereby “invok[ing] [Rule 42(a) ] to ... eliminate unnecessary repetition and confusion,” Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir.1999).

The cases were thus consolidated for pre-trial proceedings and discovery under docket number 3:12cv1039, Lopez v. Burris Logistics Co., the lead case. Accordingly, the Court interprets Burris's motion to dismiss (Doc. # 16), pending on the consolidated docket sheet, as addressed to all four Plaintiffs' Complaints.

B. Factual Summary of Consolidated Actions

Defendant Burris “operates a refrigerated warehouse in Rocky Hill, Connecticut.” Doc. # 17, p. 2. According to Burris, “[m]anufacturers of refrigerated and frozen food products, such as milk, yogurt, and ice cream, deliver their products to the [Rocky Hill] warehouse and are placed onto stacks.” Id. “Retailers submit purchase orders to Burris and warehouse personnel select and load the identified merchandise onto pallets for shipment to the retailers.” Id. In their former employment positions with Burris, Plaintiffs were allegedly “responsible for selecting and loading food onto the pallets for shipment to retailers.” Id.

Specifically, Plaintiffs held the following positions with Burris: Edwin Lopez—Incentive Selector (July 25, 2011 to February 21, 2012), No. 3:12 cv1039; Doc. # 1 at ¶¶ 6–7; Richard Lester—Backhauler/Unloader (August 18, 2009 to February 21, 2012), No. 3:12cv1041, Doc. # 1, ¶¶ 6–7; Ryan Montalvo—Incentive Selector who occasionally performed the duties of Incentive Lift Operator and Incentive Loader (October 1, 2008 to February 21, 2012), No. 3:12cv1044, Doc. # 1, at ¶¶ 6–7; and Jonathan Valdes—Incentive Selector and Incentive Lift Operator (August 18, 2008 to February 21, 2012), No. 3:12cv1045, Doc. # 1, at ¶¶ 6–7.

According to Plaintiffs, Burris employed a “malleable time management system” to calculate incentive pay, utilizing variable rates of pay based on various factors. See, e.g., No. 3:12cv1039, Doc. # 1, at ¶ 10. Plaintiffs each alleged that during certain periods of their employment they did not receive the full amount of compensation due from Burris. See, e.g., id., at ¶¶ 34–36. Each complained to Burris supervisors and/or the general manager at the Rocky Hill warehouse regarding such payment issues. Id., at ¶¶ 37–39.

All four Plaintiffs were terminated on February 21, 2012, one day following a water main break at the Rocky Hill warehouse, causing water to cover and freeze upon the warehouse floor. See No: 12cv1039, Doc. # 1, at ¶¶ 42–54; No. 3:12cv1041, Doc. # 1, at ¶¶ 47–59; No. 3:12cv1044, Doc. # 1, at ¶¶ 57–76; and No. 3:12cv1045, Doc. # 1, at ¶¶ 55–73. In particular, the leaking water “turned to ice in the freezer area of the warehouse.” No. 3:12cv1039, Doc. # 1, at ¶ 43; No. 3:12cv1041, Doc. # 1, at ¶ 48; No. 3:12cv1044, Doc. # 1, at ¶ 58; No. 3:12cv1045, Doc. # 1, at ¶ 56. Two Burris supervisors, Xavier Gomez and Christopher Costa, allegedly “asked for volunteers to help remove water from the warehouse.” See, e.g., No. 3:12cv1039, Doc. # 1, at ¶¶ 45–46. Thereafter, a supervisor named Dexter Lee allegedly ordered the Plaintiffs to chip ice from the freezer area of the employer's warehouse. Id., ¶ 52.

Two of the four plaintiffs, Lopez and Lester, assert that they complied with Lee's request to chip ice. No. 3:12cv1039, Doc. # 1, at ¶ 53; 12cv1041, Doc. # 1, at ¶ 58. Plaintiffs Montalvo and Valdes, however, refused to chip ice based on their concerns about safety and belief that such chipping was not within their job descriptions. No. 3:12cv1044, Doc. # 1, at ¶¶ 67– 68; No. 3:12cv1045, Doc. # 1, at ¶¶ 66–67.

All Plaintiffs noted to their fellow employees that the removal of the water “seemed unsafe” because in the past, whenever a spill in the warehouse occurred, the custom and practice was to put cones around the spill and to tape off that area until it could be mopped and cleaned so that employees did not slip.” No. 3:12cv1039, at ¶ 49; No. 3:12cv1041, Doc. # 1, at ¶ 54; No.3:12cv1044, Doc. # 1, at ¶ 64; No. 3:12cv1045, Doc. # 1, at ¶ 62.

The next day Burris terminated all four Plaintiffs “and several other [Burris] employees,” allegedly using “the incident involving the water main as a pretext to terminate a number of employees [whom Burris] desired to terminate.” See, e.g., No. 3:12cv1039, Doc. # 1, at ¶ 56. Specifically, according to Plaintiffs, Burris terminated them “on the pretext that [each] refused an order to remove water from the warehouse.” No. 3:12cv1039, Doc. # 1, at ¶ 54; No. 3:12cv1041, Doc. # 1, at ¶ 59; No. 3:12cv1044, Doc. # 1, at ¶ 75; and No. 3:12cv1045, Doc. # 1, at ¶ 72.

Plaintiffs maintain that Burris utilized the water main break “to cover its true motivations, which were illegal”—namely, retaliation for Plaintiffs' complaints regarding “wage violations,” “safety problems,” and “sexual harassment.” No. 3:12cv1039, Doc. # 1, at ¶ 56; No. 3:12cv1041, Doc. # 1, at ¶ 61; No. 3:12cv1044, Doc. # 1, at ¶ 77; and No. 3:12cv1045, Doc. # 1, at ¶ 74.

In July of 2012, approximately five months after Plaintiffs were discharged, Attorney Michael Petela, Jr. of Cicchiello & Cicchiello, LLP, commenced a separate action for each Plaintiff in the United States District Court for the District of Connecticut. Each complaint set forth the following four claims: (1) employment retaliation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215 et seq. ; (2) common law wrongful discharge in violation of public policy; (3) wrongful termination in violation of Connecticut's “free speech” statute, Conn. Gen.Stat. § 31–51q; and (4) breach of the implied covenant of good faith and fair dealing. In addition to these four claims, plaintiff Jonathan Valdes included an action for discrimination and retaliation in violation of the Connecticut Workers' Compensation Act, Conn. Gen.Stat. § 31–290a et seq. No. 3:12cv1045, Doc. # 1 (Count 5). In all four actions, now consolidated for pre-trial and discovery, jurisdiction of the Court was invoked pursuant to “federal question” jurisdiction, 28 U.S.C. § 1331, due to the Plaintiffs' inclusion of the FLSA claim, which patently arises under federal statute.

As described supra, Burris's pending motion to dismiss (Doc. # 16) seeks dismissal of Count Two of each Complaint— common law wrongful discharge in violation of public policy

. Burris claims that because there is an alternative statutory remedy, Conn. Gen.Stat. § 31–51 q, under which Plaintiffs have asserted a claim in Count Three of each Complaint, Plaintiffs are precluded from bringing their common law wrongful discharge claims. Defendant thus requests that the Court strike Count Two from each of the four Complaints “as legally insufficient on the grounds that an alternate remedy exists under Conn. Gen.Stat. § 31–51q.” Doc. # 17, p. 5.

III. STANDARD OF REVIEW—RULE 12(b)(6) MOTION TO DISMISS

“To survive a [Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The Second Circuit has consistently adhered to the United States Supreme Court's seminal “plausibility” standard set forth in Iqbal.

See In re Terrorist Attacks on September 11, 2001, 714 F.3d 118, 122 (2d Cir.2013); Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir.2013); Absolute Activist Value Master Fund, Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir.2012).

“[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.’ ” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir.2011) (quoting Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.2006) (emphasis omitted)).

“In ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6), the duty of a court is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010) (citation and internal quotation marks omitted). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim [ ]. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Accord Walker v. Schult, No. 12–1806–cv, 717 F.3d 119, 123–24 (2d Cir.2013).

In deciding whether to grant a Rule 12(b)(6) dismissal, the court “constru [es] the complaint liberally, accepting all [well-pleaded] factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Chase Grp. Alliance LLC v. N.Y.C. Dep't of Fin., 620 F.3d 146, 150 (2d Cir.2010) (internal quotations and citation omitted). See also Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). “[W]hether a complaint states a plausible claim for relief will [ultimately] ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663–64, 129 S.Ct. 1937. When “well-pleaded factual allegations” are present, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 556 U.S. at 679, 129 S.Ct. 1937. Thus, factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.

“Although all allegations contained in the complaint are assumed to be true, this tenet is ‘inapplicable to legal conclusions.’ ” LaMagna v. Brown, 474 Fed.Appx. 788, 789 (2d Cir.2012) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).See also Amaker v. New York State Dept. of Corr. Servs., 435 Fed.Appx. 52, 54 (2d Cir.2011) (same). The Court is not “bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir.2008) (internal quotation marks omitted)). It thus follows that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).Rule 8 of the Federal Rules of Civil Procedure simply “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.

IV. DISCUSSION

A. Wrongful Discharge in Violation of Public Policy

Connecticut recognizes a common law cause of action for wrongful discharge based on a violation of public policy. Swihart v. Pactiv Corp., 187 F.Supp.2d 18, 25 (D.Conn.2002). Wrongful discharge is a narrow exception to the rule that contracts for employment at will are terminable at the will of either party without regard to cause. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474–78, 427 A.2d 385 (1980). Under this doctrine, a cause of action is only recognized where the discharge contravenes a clear mandate of public policy. 179 Conn. at 474, 427 A.2d 385.See also Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000) ( “In Sheets,” the Connecticut Supreme 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.”) (emphasis in original) (quoting Carbone v. Atlantic Richfield Co., 204 Conn. 460, 466–67, 528 A.2d 1137 (1987)); Mirto v. Laidlaw Transit, Inc., No. 334231, 1993 WL 137627, at *2 (Conn.Super.Ct. April 20, 1993) (“[t]he doctrine of wrongful discharge, which provides that an employer may be liable for discharge of an at will employee in cases where the discharge contravenes a clear mandate of public policy, is a narrow exception to the general rule that contracts of permanent employment or for an indefinite term, are terminable at will.”) (citing D'Ulisse–Cupo v. Bd. of Dir. of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987)).

In general, under Connecticut law, in order to state a claim for common law wrongful discharge in violation of public policy, a plaintiff must: (1) plead that the alleged conduct by the employer contravenes public policy and (2) demonstrate that the plaintiff is “ otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” Burnham, 252 Conn. at 159–60, 745 A.2d 178 (emphasis in original) (quoting Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985)).

It thus follows that if a plaintiff's termination violated a public policy embodied and protected by statute, the claim for common law wrongful discharge is precluded. See, e.g., Burnham, 252 Conn. at 162, 745 A.2d 178 (“The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31–51(b)”); Swihart, 187 F.Supp.2d at 25 (Because “plaintiff already ha[d] an adequate statutory remedy” for employer's discriminatory practices under Title VII, the Court would “not recognize a separate claim for wrongful discharge in violation of public policy”); Thomas v. Saint Francis Hosp. and Med. Ctr., 990 F.Supp. 81, 90 (D.Conn.1998) (holding it “fatal” to plaintiff's claim that there was “the availability of redress for defendant's alleged discriminatory conduct under federal and state antidiscrimination laws”), aff'd,198 F.3d 235 (2d Cir.1999) (Table); Sherman v. Sedgwick James of Connecticut, Inc., No. CV 326150, 1997 WL 83714, at *2 (Conn.Super.Ct. Feb. 10, 1997) (granting defendant's motion to strike wrongful discharge count based on the public policy of preserving an employee's right to petition the government where plaintiff alleged an additional count for a violation of § 31–51q). In sum, if “a relevant state or federal law contains a private right of action which serves to protect the public policy allegedly violated, a wrongful discharge claim will fail.” Nanos v. City of Stamford, 609 F.Supp.2d 260, 268 (D.Conn.2009) (citation omitted).

Conversely, if there is a distinct and alternative theory of liability, related to a public policy that is not protected by state or federal statute, a wrongful discharge action may proceed. See, e.g., Van Kruiningen v. Plan B, LLC, 485 F.Supp.2d 92, 96 (D.Conn.2007) (plaintiffs' wrongful discharge actions, alleging discharge in retaliation for reporting casino manager's activities in serving alcoholic beverage to minor, not precluded where policy underlying their claims—“not serving alcohol to minors”—was “distinct” from the policy underlying their claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a–60—“protecting against sexual harassment in the workplace”); Iosa v. Gentiva Health Servs., Inc., 299 F.Supp.2d 29, 34 (D.Conn.2004) (former employee's claim of wrongful discharge in violation of public policy not precluded by availability of a statutory remedy for retaliation under the Connecticut Worker's Compensation Act, Conn. Gen.Stat. § 31–290a, because retaliation claim did not embrace all of the public policy arguments in employee's wrongful discharge claims).

In particular, Connecticut's Superior Courts have consistently held that a plaintiff may recover under a theory of wrongful discharge, notwithstanding a contemporaneous claim under Conn. Gen.Stat. § 31–51q, where the basis of the wrongful discharge claim is a public policy for which the plaintiff is without remedy. See, e.g., Trimboli v. Von Roll Isola USA, Inc., No. NNHCV094037507S, 50 Conn. L. Rptr. 399, 400, 2010 WL 3341504, at *1–2 (Conn.Super.Ct. Aug. 3, 2010) (denying motion to strike where wrongful discharge claim was based on public policy of preserving employees' physical welfare and safety while additional § 31–51q claim was based on public policy of protecting employees' free speech); Fedor v. New Samaritan Corp., No. CV074026586, 45 Conn. L. Rptr. 714, 718, 2008 WL 2553010, at *5–6 (Conn.Super.Ct. June 9, 2008) (denying defendant's motion to strike plaintiff's wrongful discharge claim notwithstanding additional allegation of violation of § 31–51q where discharge retaliated against employee for good faith report of potential criminal conduct in workplace); Mirto v. Laidlaw Transit, Inc., No. CV 334231, 9 Conn. L. Rptr. 19, 21, 1993 WL 137627, at *2–3 (Conn.Super.Ct. April 20, 1993) (denying motion to strike wrongful discharge claim based on the public policy of providing safe and adequate transportation of children to public schools, notwithstanding additional claim of violation of § 31–51q, based upon the preservation of free speech).

B. Conn. Gen.Stat. § 31–51q

Pursuant to section 31–51q of the Connecticut General Statutes, one may seek recovery for discharge from employment in retaliation for the exercise of protected speech.

“In order to demonstrate a violation of [Conn. Gen.Stat.] section 31–51q, a plaintiff must prove 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 (or equivalent state constitutional rights) did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer.” Kennedy v. Coca–Cola Bottling Co. of New York, Inc., 170 F.Supp.2d 294, 299 (D.Conn.2001) (citing Lowe v. AmeriGas, Inc., 52 F.Supp.2d 349, 359 (D.Conn.1999), aff'd,208 F.3d 203 (2d Cir.2000) (Table)). See also Winik–Nystrup v. Mfrs. Life Ins. Co., 8 F.Supp.2d 157, 159 (D.Conn.1998); King v. Connection, Inc., No. CV106015682S, 2011 WL 3211250, at *5 (Conn.Super.Ct. June 20, 2011).

To prevail on a claim under Conn. Gen.Stat. § 31–51q, the content of the plaintiff's speech must have been constitutionally protected. Kennedy, 170 F.Supp.2d at 299. “To be protected by the first amendment, the plaintiff's speech must have been on a matter of public concern, and the plaintiff's interest in expressing himself on the particular matter must not have been outweighed by any injury the speech could cause to the employment relationship.” Id. (citing Cotto v. United Techs. Corp., 48 Conn.App. 618, 630, 711 A.2d 1180 (1998), cert. granted in part,245 Conn. 915, 717 A.2d 233 (1998), aff'd, 251 Conn. 1, 738 A.2d 623 (1999)).

Claims concerning such matters as illegal use and sales of drugs in the workplace and issues of workplace safety have been accepted as matters of public concern. Kennedy, 170 F.Supp.2d at 299. Such matters are “not matters of purely private concern relating solely to the plaintiffs' employment” but “[r]ather ... concerns regarding criminal activity in the workplace and safety issues that would affect the entire workplace and potentially the public.” Id. See also Lowe, 52 F.Supp.2d at 359 (holding that an employee's complaints about the improper storage of a hazardous substance implicated matters of public concern and, thus, constituted protected speech).

In order to determine whether the employee's speech at issue is protected by the statute, the threshold issue the Court must resolve is whether the employee's speech simply concerns matters between the plaintiff and his or her employer, which is not protected, or whether such speech relates to matters of public concern. See, e.g., Lowe, 52 F.Supp.2d at 359 (distinguishing between “opinions on customer service, employee attitudes, racial remarks by other employees, inventory control problems, and training” as “clearly related to matters between plaintiff and [the employer]” and “safety concerns regarding the improper storage of a hazardous substance such as propane,” which “implicate matters of public concern and, thus, constitute protected speech”).

C. Allegations in the Present Action

In the case in suit, to determine whether Plaintiffs' common law wrongful discharge claims are precluded by their “free speech” claims under Conn. Gen.Stat. § 31–51q, the Court must determine whether the bases of Plaintiffs' common law wrongful discharge claims include any public policy for which Plaintiffs are otherwise without remedy.

In the consolidated case at bar, Plaintiffs allege that they were wrongfully terminated by Burris in violation of Connecticut's “free speech” statute, Conn. Gen.Stat. § 31–51q, in retaliation for the complaints they voiced regarding wage violations, safety problems, and sexual harassment. No. 3:12cv1039, Doc. # 1, at ¶ 56; see also No. 3:12cv1041, Doc. # 1, at ¶ 6 1; No. 3:12cv1044, Doc. # 1, at ¶ 77; and No. 3:12cv1045, Doc. # 1, at ¶ 74. Plaintiffs further claim that Burris “has exhibited a pattern of retaliating against employees who have asserted protected rights, including employees who have complained of being shortchanged in their wages, employees who have complained of safety issues, and employees who have brought workers' compensation claims.” No. 3:12cv1039, Doc. # 1, at ¶ 57. See also No. 3:12cv1041, Doc. # 1, at ¶ 62; No. 3:12cv1044, Doc. # 1, at ¶ 78; and No. 3:12cv1045, Doc. # 1, at ¶ 75. They incorporate these paragraphs by reference into both their common law wrongful discharge claims in Count Two and their statutory claims under Conn. Gen.Stat. § 31–51q in Count Three.

Plaintiffs maintain that Burris simply employed the water main break as a pretext “to cover its true motivations for their dismissal on February 21, 2012— i.e., retaliation for Plaintiffs' complaints regarding “wage violations,” “safety problems,” and “sexual harassment.” No. 3:12cv1039, Doc. # 1, at ¶ 56; No. 3:12cv1041, Doc. # 1, at ¶ 61; No. 3:12cv1044, Doc. # 1, at ¶ 77; and No. 3:12cv1045, Doc. # 1, at ¶ 74. The Court will thus examine the three bases proffered by Plaintiffs as the underlying motivating factors for their termination, including whether Plaintiffs will otherwise be without remedy if not allowed to pursue their common law wrongful discharge claims.

1. Wage Violations

In the case at bar, Burris allegedly discharged Plaintiffs in retaliation for complaints about “wage violations” under Burris's “malleable time management system.” No. 3:12cv1039, Doc. # 1, at ¶¶ 10, 34–39. In particular, Plaintiffs have alleged that they were inadequately compensated for work performed and complained to Burris supervisors and/or the general manager at the Rocky Hill warehouse regarding such payment issues. Id.

As to wage violations, courts within this District have repeatedly held that a common law wrongful discharge claim based on complaints regarding an employer's failure to fully compensate its employees is precluded by available statutory remedies. In Felekey v. Am. Tele. & Tele. Co., No. 3:02–CV–691 (CFD), 2004 WL 2958468, at *4 (D.Conn. Nov. 3, 2004), plaintiff brought a common law wrongful discharge action, alleging that his termination was “wrongful in that said action violated the public policy for timely payment of full wages and compensation or benefits earned for just services embodied in Chapter[s] [5]58, 814 and 814c of] the Connecticut General Statutes.” 2004 WL 2958468, at *2. The defendant employer moved to dismiss the claim as precluded, arguing that “because Conn. Gen.Stat. § 31–72 provides a remedy for Felekey to recover the compensation he claims is owed, as well as double damages and attorney's fees, a common law claim for wrongful discharge based on a violation of the public policy for timely payment of full wages and compensation cannot survive.”

Id. at *3 (internal quotations omitted).

In response, plaintiff Felekey contended that, “although § 31–72 provide[d] a remedy for his lost compensation, it [did] not provide a remedy for [his employer's] wrongful actions, namely, terminating his employment because he asked to receive that compensation.” Id. (emphasis added). The court, however, disagreed, concluding that the statutory remedy to recover the lost compensation precluded the common law wrongful discharge claim. In so holding, the court noted that “[t]he statutory remedy bars the wrongful termination action regardless of whether a plaintiff has taken advantage of the existing statutory remedy” and “even if the remedies provided by the statute are lesser or narrower than the remedies potentially available in a tort or contract action.”

Id. (internal citations omitted)

In Donahue v. Unisys Corp., Civ. No. H–89–670 (JAC), 1991 WL 537530 (D.Conn. Feb. 15, 1991), then District Judge Cabranes focused on the individual nature of the wage-related complaints to hold that a plaintiff's common law wrongful discharge claim should be dismissed as precluded by the available statutory remedy for wage claims, Conn. Gen.Stat. § 31–72. 1991 WL 537530, at *8. Judge Cabranes clarified that the fact that plaintiff was not simultaneously bringing such a statutory claim to recover her lost wages was not grounds to allow her wrongful discharge claim to survive. Id. Rather, failing to pursue one's statutory remedy was “precisely the kind of cause of action that the courts in this district have prohibited,” id., suggesting, in essence, that one may not circumvent the legislature's intent to create a delineated statutory remedy by bringing a common law claim for wrongful discharge.

In the case at bar, Plaintiffs allege that they were “paid utilizing a malleable time management system to provide [an] incentive for employees to work faster.” Doc. # 1, ¶ 9. They assert that “[t]he Defendant did not provide ... a written document explaining this complex wage calculation system,” but rather “orally represented” that their rate of pay would be “divided into three main categories: the Base Rate [ i.e., at least $12.00 per hour], the Incentive Rate, and the 13 Week Average Rate [based on the average Incentive Rate in the previous 13 week period].” Id., ¶¶ 11–13, 29 (internal quotations omitted). They claim that the Defendant failed to pay at least the Base Rate for every hour, failed to pay the Incentive Rate for “performing assignments faster” than the “Estimated Standard Time,” which was calculated based on numerous relevant factors to the project, and “routinely paid the Base Rate for work which should have been paid at the 13 Week Average Rate.” Id., ¶¶ 15–36. As the result of various alleged “unauthorized reductions in pay,” Plaintiffs “made frequent complaints” after realizing they were “shortchanged.” Id., ¶ 37. Defendant allegedly often failed to correct the miscalculated pay. Id., ¶ 38. Plaintiffs also maintain that “the Defendant was particularly defensive [about] complaints of workers' pay being shortchanged because there was a campaign to unionize the facility.” Id., ¶ 40. Lastly, Plaintiffs allege that they were terminated on February 21, 2012 in retaliation for, inter alia, “making complaints of wage violations.” Id., ¶ 58.

Under the present circumstances, the Court is persuaded by the Felekey and Donahue opinions that Plaintiffs' wrongful discharge claims, to the extent that they are based on an underlying public policy against wage violations, are precluded by the available statutory remedy of Conn. Gen.Stat. § 31–70 et seq. , which authorizes an employee to bring a civil action to recover wages when an employer fails to properly compensate that employee.

Under that statute, “[i]n case of a dispute over the amount of wages, the employer shall pay ... all wages, or parts thereof, conceded by him to be due, and the employee shall have all remedies provided by law, including those under said sections as to recovery of any balance claimed.” Conn. Gen.Stat. § 31–71d (emphasis added).

The fact that Plaintiffs have not asserted claims for wages has no bearing on the issue of preclusion.

It is the existence of the statutory remedy that precludes a plaintiff's public policy wrongful discharge claim, regardless of whether he or she has availed himself of the statutory remedy. See, e.g., Donahue, 1991 WL 537530, at *8 (where plaintiff asserted that in her wrongful discharge claim she was not seeking to also recover wages under the relevant wage statute, Conn. Gen.Stat. § 31–71 a to 71i, but merely citing it to articulate Connecticut's public policy against the withholding of wages, court dismissed her wrongful discharge claim, holding, “she has a statutory remedy under that statute [ Conn. Gen.Stat. § 31–72 (1987) ]” and “[t]he fact that she is not pursuing that remedy and, instead, seeks a remedy under a theory of wrongful discharge, is precisely the kind of cause of action that the courts in the district have prohibited”).

Furthermore, if Plaintiffs' wage complaints to Burris supervisors and/or management were purely inquiries into their own individual wages, such inquiries would fail to raise matters of public concern under Conn. Gen.Stat. § 31–51q. As then District Judge Cabranes explained in Donahue, “plaintiff's inquiry into her own raise was a matter of purely private concern.” Put simply, “[t]he fact that Connecticut provides that an employer shall not withhold any part of the wages of any person, Conn. Gen.Stat. Ann. § 31–70 (West 1987), does not transform a question about the amount of one's paycheck into a matter of public concern.” 1991 WL 537530, at *8. “In the employment context, it is indeed difficult to conceive of a matter that is more private than making inquiries about one's own salary.” Id. Therefore, Donahue's concerns about the size of her paycheck—“while no doubt raising serious matters for plaintiff herself—simply [did] not ... raise matters of public concern sufficient to bring [them] within the protection of section 31–51q of the Connecticut General Statutes.”

Id. See also Urashka v. Griffin Hosp., 841 F.Supp. 468, 474 (D.Conn.1994) ( § 31–51q, by its own terms, protects only those rights guaranteed by the first amendment and the first amendment “does not protect speech on purely private matters, such as the terms and conditions of one's employment”).

In sum, Plaintiffs' common law wrongful discharge claims, to the extent they are based on complaints regarding wage violations, fall outside the statutory provisions of Conn. Gen.Stat. § 31–51q if these complaints pertain solely to Plaintiffs' individual wages. One's own wages are a matter of private concern and § 31–51q affords protection to speech relating to a matter of public concern. Moreover, Plaintiffs' wrongful discharge claims, with respect to an overall public policy against wage violations, are precluded by Connecticut's statutory remedies to recover wages, as set forth at Conn. Gen.Stat. § 31–70 et seq. These “wage violations” wrongful discharge claims present no distinct and alternative theory of liability that is not protected by state or federal statute.

2. Workplace Safety

With respect to the underlying public policy of workplace safety, Plaintiffs claim that they were terminated in retaliation for “making safety complaints.” See, e.g., No. 3:12cv1039, Doc. # 1, at ¶ 56. They also allege a particular incident of unsafe water and ice removal on the day preceding their termination. According to Plaintiffs, on February 20, 2012, Burris supervisors Xavier Gomez and Christopher Costa requested that volunteers “help remove water from the warehouse” that had covered the warehouse floor when a water main broke. Id., ¶ 42, 45–46. On that date, “a great deal of water turned to ice in the freezer area of the warehouse.” Id., ¶ 43. Removal of such water “seemed unsafe” in that “[t]he scope of the spill resulting from the broken water main was larger than any spill at the facility previously, and the Plaintiff (and many other employees) did not have rubber boots to walk through the spill.” Id., ¶ 49. Moreover, “[t]here were an insufficient number of squeegees to remove water from the Defendant's warehouse.” Id., ¶ 51.

Thereafter, a supervisor named Dexter Lee allegedly ordered Plaintiffs to chip ice from the freezer area of the warehouse. Id., ¶ 52. Two of the four plaintiffs, Lopez and Lester, noted to fellow employees that the water spill was dangerous but complied with Lee's request to chip ice. No. 3:12cv1039, Doc. # 1, at ¶¶ 49, 53; 12cv1041, Doc. # 1, at ¶¶ 54, 58. Plaintiffs Montalvo and Valdes, however, refused to chip ice based on their concerns about safety and belief that such chipping was not within their job descriptions. No. 3:12cv1044, Doc. # 1, at ¶ 67; No. 3:12cv1045, Doc. # 1, at ¶ 65. Montalvo and Valdes explained to supervisor Lee that they preferred not to chip ice in the freezer because their steel toed boots, which were mandatory for their lift operator positions, did not have any spikes or grips to prevent the soles from slipping on the ice. No. 3:12cv1044, Doc. # 1, at ¶ 68; No. 3:12cv1045, Doc. # 1, at ¶ 66. Instead of being given alternate work assignments, Montalvo and Valdes were instructed to “punch out” for the day. No. 3:12cv1044, Doc. # 1, at ¶¶ 72–74; No. 3:12cv1045, Doc. # 1, at ¶¶ 68–71. The following day each of the four Plaintiffs were each terminated based on their alleged failure to assist in the removal of water from the warehouse. No. 3:12cv1039, Doc. # 1, at ¶ 54; No. 3:12cv1041, Doc. # 1, at ¶ 59; No. 3:12cv1044, Doc. # 1, at ¶ 75; and No. 3:12cv1045, Doc. # 1, at ¶ 72.

In Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 243 Conn. 66, 86, 700 A.2d 655 (1997), the Connecticut Supreme Court explicitly recognized a public policy requiring an employer to provide a safe workplace for its employees. In reliance on the safe workplace public policy, the court reinstated and thus allowed the plaintiff employee's claim for common law wrongful discharge in violation of public policy.

On September 12, 1990, Gary F. Parsons, an aircraft maintenance instructor, was assigned by his employer, the Sikorsky Aircraft Division of United Technologies (“Sikorsky”), to instruct several members of a Bahrain helicopter crew regarding the proper repair and maintenance of a helicopter in Bahrain. At that time “the United States of America and certain allied nations, including Bahrain, were involved in a joint military action, known as Operation Desert Shield, taken in response to the Iraqi invasion of Kuwait.” 243 Conn. at 69, 700 A.2d 655. In light of this operation, on August 16, 1990, the United States State Department had issued a travel advisory, advising all Americans to defer all non-essential travel to Bahrain due to the military action in the Persian Gulf region. Id. at 69–70, 700 A.2d 655. The military installation to which Parsons was to be sent was serving as the main staging area for the allied warplanes that were based in Bahrain. Id. at 69, 700 A.2d 655.

On September 18, 1990, Parsons informed Sikorsky by a written memorandum that he refused to travel to Bahrain “because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally.” Id. at 70, 700 A.2d 655. Within two hours following that refusal, Sikorsky terminated Parsons's employment and removed him from their premises under security escort. Id.

Parsons thereafter commenced an action in state court, including, inter alia, a common law wrongful discharge claim based upon Sikorsky's alleged violation of public policy regarding an employer's duty to provide a safe workplace for its employees. At trial, the court struck Parsons's wrongful discharge claim, dismissing it for failure to state a claim.

On appeal, the Connecticut Supreme Court reinstated the claim as viable, finding a public policy violation in light of state statutory law which required employers to maintain a reasonably safe workplace for employees.

Id. at 79–80, 700 A.2d 655 (citing, inter alia, Conn. Gen.Stat. § 31–49 and Conn. Gen Stat. § 31–370).

The Court specifically noted that Conn. Gen.Stat. § 31–49, in conjunction with Conn. Gen.Stat. § 31–370, “reflect a broad legislative concern for the physical welfare and safety of Connecticut employees.” 243 Conn. at 80, 700 A.2d 655. These statutes, and the public policy that they evidenced, led the Parsons majority to conclude that Connecticut employees may bring “a cause of action for wrongful discharge against an employer ... if the employee is discharged for refusing to work under conditions that pose a substantial risk of death ... or serious injury.” Id. In recognizing this public policy exception to the employment-at-will doctrine, the court explained that “it requires little analysis to perceive that the legislative purpose underlying [safe workplace legislation] 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.” Id. at 80, 700 A.2d 655 (citation omitted).

In the case in suit, Plaintiffs allege that they were terminated in retaliation for making safety complaints and were in fact discharged on the day following the dangerous water main break. Under the circumstances of the water main break, common sense and human experience dictate that requesting Plaintiffs to clean up and/or remove water and ice at Burris's refrigerated warehouse, without the aid of proper equipment and footwear, could have posed a significant threat to Plaintiffs' safety and welfare. Thus, as in Parsons, “the [P]laintiff[s'] complaint[s] clearly alleged facts that, taken as a whole and considered in the light most favorable to the [P]laintiff[s], are sufficient to establish that [they were] terminated for refusing to follow an employer's directive that would have posed a serious threat to [their] health and safety and that was not contemplated within the scope of [their] employment duties.” Id. at 85–86, 700 A.2d 655.

In sum, reading the Complaints in the light most favorable to Plaintiffs, one could surmise that Burris subjected its employees to an unreasonably dangerous condition by directing them to remove water from the warehouse floor with squeegees and/or chip ice from the freezer area without rubber boots or other adequate footwear, possessing soles with spikes or grips to prevent them from slipping. In response to Plaintiffs' failure to comply with this directive and/or complaints regarding such unsafe workplace conditions, Plaintiffs were allegedly terminated in violation of public policy. Under Parsons, Plaintiffs have stated viable claims for wrongful discharge in violation of public policy.

Plaintiffs' “safe workplace” wrongful discharge claims present a distinct and alternative theory of liability, related to a public policy, that is not protected by state or federal statute. See, e.g., Balog, 2004 WL 1965919, at *5 (“Parsons did not recognize, either explicitly or implicitly, an independent cause of action grounded in a violation of § 31–49.... [T]he public policy embodied in § 31–49 sets a standard by which workplace safety may be measured that can be used to assess employer conduct in circumstances where an employer may be found liable through another mechanism, such as a wrongful discharge claim, a common-law claim for workplace injury not covered by the Workers' Compensation Act or administrative enforcement by the labor commissioner.”) (emphasis added). Accordingly, Plaintiffs' wrongful discharge claims may proceed to the extent that these claims are based on Burris's violation of “safe workplace public policy,” including termination of Plaintiffs for “protesting working conditions which they reasonably believe[d] constitute[d] a hazard to their own health or safety.” Parsons, 243 Conn. at 80, 700 A.2d 655 (citation omitted). Defendant's motion to dismiss Plaintiff's wrongful discharge claims with respect to workplace safety will be denied.

3. Sexual Harassment

Lastly, Plaintiffs claim that they were discharged in retaliation for complaints to Burris management regarding “sexual harassment.” See, e.g., No. 3:12cv1039, Doc. # 1, at ¶ 56. With respect to an underlying policy regarding sexual harassment, that policy is adequately enforceable through statutory remedies, such as Title VII, 42 U.S.C. § 2000e et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a–60 et seq.

District precedent dictates that, in light of existing statutory remedies, the public policy of preventing sexual harassment in the workplace does not warrant judicial recognition of an independent cause of action. See, e.g., Kilduff v. Cosential, Inc., 289 F.Supp.2d 12, 18–19 (D.Conn.2003) (female employee could not maintain wrongful discharge claim under Connecticut law, arising from violations of public policy against sexual harassment in workplace, in light of remedies available under anti-discrimination statutes for such violations; “[t]he wrongful discharge cause of action is not intended to be a catch-all for those who either procedurally or on the merits fail to establish a claim under existing discrimination statutes”); Brosler v. Food Automation–Service Techniques, Inc., No. 3:96–2345(DJS), 1997 WL 711438, *3 (D.Conn. Aug. 25, 1997) (dismissing plaintiff's wrongful discharge claim where she alleged that her employer's “unwelcome sexual advances [were] a condition of her employment” and her employer “discriminated against her [due to] her sex” because “federal and state civil rights statutes [Title VII and the CFEPA] provide[d] plaintiff with remedies for the wrongful conduct she allege[d]”). See also Lucarelli v. Stop & Shop Co., No. 405521, 1999 WL 179620, at *3–4 & n. 2 (Conn.Super.Ct. Mar. 10, 1999) (striking wrongful discharge claim where plaintiff alleged that she was constructively discharged in violation of the public policy of the State of Connecticut prohibiting sexual harassment in the workplace; plaintiff had statutory remedy under Conn. Gen.Stat. § 46a–60, and “a cause of action in tort for wrongful termination ... exists only when a discharge violates public policy and the employee is otherwise without a remedy”).

In the present action, to the extent that Plaintiffs contend that they were wrongfully discharged based on a public policy protecting employees from sexual harassment in the workplace, they have adequate statutory remedies available, Title VII, and Conn. Gen.Stat. § 46a–60. Plaintiffs cannot therefore maintain a common law wrongful discharge action on that basis.

V. CONCLUSION

In the consolidated case at bar, Plaintiffs have alleged common law wrongful discharge claims for termination by Burris in violation of public policy. They have also brought claims against Burris for wrongful termination in violation of Connecticut's “free speech” statute, Conn. Gen.Stat. § 31–51 q, in retaliation for complaints they voiced regarding wage violations, safety problems, and sexual harassment. Defendant has moved to dismiss the common law wrongful discharge claims as “legally insufficient on the ground that an alternate remedy exists under Conn. Gen.Stat. § 31–51q” and such a statutory claim “has, in fact been pled ...” Doc. # 17, p. 1.

Under Connecticut law, Plaintiffs may state a separate claim for common law wrongful discharge in violation of public policy, if they (1) plead alleged conduct by the employer which contravenes public policy and (2) demonstrate that they are “ otherwise without remedy and that permitting the discharge[s] to go unredressed would leave a valuable social policy to go unvindicated.” Burnham, 252 Conn. at 159–60, 745 A.2d 178 (emphasis in original). Thus, a plaintiff may recover under a theory of wrongful discharge, notwithstanding a contemporaneous claim under Conn. Gen.Stat. § 31–51 q, where the basis of the wrongful discharge claim is a public policy for which the plaintiff is without remedy. See, e.g., Trimboli, 2010 WL 3341504, at *1–2

Construing their Complaints in the manner most favorable to sustaining legal sufficiency, the Court has analyzed whether the alleged bases of the Plaintiffs' wrongful discharge claims include any public policy for which Plaintiffs are otherwise without remedy. For all of the foregoing reasons, Defendant's motion to dismiss Count Two of each of Plaintiffs' Complaints is GRANTED in part and DENIED in part. To the extent that the wrongful discharge claims are premised upon violation of the public policy regarding wage violations, those claims are precluded by Connecticut's statutory remedies to recover wages, Conn. Gen.Stat. § 31–70 et seq. , and are thus hereby dismissed. Similarly, with respect to each wrongful discharge claim based upon the public policy against sexual harassment, available statutory remedies, e.g., Title VII, and Conn. Gen.Stat. § 46a–60, bar those claims.

However, as to Plaintiff's wrongful discharge claims pertaining to the public policy against safety violations in the workplace, the Connecticut Supreme Court has recognized a “clear and defined public policy” requiring employers to provide a safe workplace for their employees. Parsons, 243 Conn. at 79–80, 700 A.2d 655. Individuals may not bring private causes of action under Connecticut's state statutes mandating that employers maintain a safe workplace. See, e.g., Conn. Gen.Stat. § 31–49. Therefore, Plaintiffs may bring common law causes of action for wrongful discharge against their former employer Burris where Plaintiffs allege that they were discharged for complaining about, and/or refusing to work under, conditions that were inherently unsafe. The hazards of wet or icy surfaces, causing dangerous slips and falls, are clearly sufficient to pose substantial risks of serious physical harm or even death.

Plaintiffs' wrongful discharge claims, as based on the public policy of preserving safety in the workplace, seek to redress a separate and unremedied wrong from their § 31–51q claim, based on the public policy of protecting employees' free speech. Accordingly, Defendant's motion to dismiss Count Two as it pertains to the public policy of workplace safety is DENIED.

It is SO ORDERED.

RULING ON DEFENDANT'S MOTION FOR RECONSIDERATION

I. INTRODUCTION

In this consolidated action, plaintiffs Edwin Lopez, Richard Lester, Ryan Montalvo, and Jonathan Valdes (collectively “Plaintiffs”) seek recovery from their former employer, defendant Burris Logistics, Inc. (“Burris” or “Defendant”), for their wrongful terminations on February 21, 2012, one day following a water main break at Defendant's Rocky Hill warehouse, causing water to cover and freeze upon the warehouse floor, creating a slippery, hazardous condition. Plaintiffs allege that they were asked by two Burris supervisors, Xavier Gomez and Christopher Costa, “to help remove water from the warehouse.” See, e.g., No. 3:12cv1039, Doc. # 1, at ¶¶ 45–46. Thereafter, another Burris supervisor, Dexter Lee, allegedly ordered the Plaintiffs to chip ice from the freezer area of the warehouse. Id., ¶ 52. Two of the four Plaintiffs complied with the requests, and the other two refused to chip ice due to their concerns about safety and belief that such chipping was not within their job descriptions. No. 3:12cv1044, Doc. # 1, at ¶¶ 67–68; No. 3:12cv1045, Doc. # 1, at ¶¶ 66–67. All four Plaintiffs commented to co-workers that removal of the water “seemed unsafe” because in the past, whenever a spill in the warehouse occurred, the custom and practice was to put cones around the spill and to tape off that area until it could be mopped and cleaned so that employees did not slip.” No. 3:12cv1039, Doc. # 1, at ¶ 49; No. 3:12cv1041, Doc. # 1, at ¶ 54; No.3:12cv1044, Doc. # 1, at ¶ 64; No. 3:12cv1045, Doc. # 1, at ¶ 62. The following day each Plaintiff was discharged “on the [alleged] pretext that [each] refused an order to remove water from the warehouse.” No. 3:12cv1039, Doc. # 1, at ¶ 54; No. 3:12cv1041, Doc. # 1, at ¶ 59; No. 3:12cv1044, Doc. # 1, at ¶ 75; and No. 3:12cv1045, Doc. # 1, at ¶ 72.

Included in each Complaint filed in this consolidated action is a count for wrongful discharge in violation of public policy. In a Motion to Dismiss, Burris argued that the “public policy” wrongful discharge claim in each Complaint should be dismissed as “legally insufficient on the ground that an alternate remedy exists under Conn. Gen.Stat. § 31–51q” and such a statutory claim “has, in fact been pled in Count Three, thereby precluding the [P]laintiffs from bringing a wrongful discharge claim under Connecticut common [ ] law.” Doc. # 17, p. 1.

The Court granted in part and denied in part that motion. To the extent that the wrongful discharge claims were premised on allegations regarding wage violations and sexual harassment, the claims were precluded in that statutory remedies were available to pursue those claims. In those respects, Count Two of each Complaint was dismissed. However, to the extent that the basis for the wrongful discharge claim in each Complaint pertained to the public policy against safety violations in the workplace, the Court held that the Connecticut Supreme Court has recognized a “clear and defined public policy” requiring employers to provide a safe workplace for their employees. Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 243 Conn. 66, 79–80, 700 A.2d 655 (1997). In the absence of a private right of action to recover for such inherently dangerous conditions under Conn. Gen.Stat. § 31–49, Plaintiffs were permitted to proceed with such a wrongful discharge claim. That claim sought to redress a separate and unremedied wrong from Plaintiffs' § 31–51q claim, which was based on the public policy of protecting employees' free speech. The motion to dismiss was thus denied in part.

II. PENDING MOTION

Pending before the Court is Defendant's Motion for Reconsideration [Doc. # 32] of the Court's Ruling [Doc. # 31], granting in part and denying in part Burris's motion to dismiss Count Two of each of Plaintiffs' Complaints.

Specifically, Burris moves for reconsideration of the Court's denial of Burris's motion to dismiss Plaintiffs' wrongful discharge claim “based on Burris's violation of safe workplace public policy, including termination of Plaintiffs for protesting working conditions which they reasonably believed constituted a hazard to their own health or safety.” Doc. # 32 (quoting Doc. # 31 at p. 28, 700 A.2d 655). As Burris notes, that ruling was premised on the Connecticut Supreme Court's holding in Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 243 Conn. 66, 700 A.2d 655 (1977), where plaintiff was “otherwise without remedy” with regard to a claim for termination in retaliation for making safety complaints. Defendant now argues that Plaintiffs in this consolidated action have a statutory remedy under Section 11 of the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 660(c) and have in fact pursued that statutory remedy.

Plaintiffs have failed to file opposition papers to the motion for reconsideration and weeks have passed since the time to respond expired. Under Local Rule 7 of this Court, “[f]ailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion.” D. Conn. L. Civ. R. 7(a)(1).

The Court will resolve the motion for reconsideration herein.

III. DISCUSSION

A. Standard for Reconsideration

The standard for granting a motion for reconsideration “is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (citing Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990)). The Second Circuit continues to adhere to the strict standard for reconsideration set forth in Shrader. See, e.g., Smith v. New York City Dept. of Educ., 524 Fed.Appx. 730, 734 (Table) (2d. Cir.2013) (“To warrant reconsideration, a party must “point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” ”) (citing Shrader, 70 F.3d at 257). Moreover, the Rules of Civil Procedure in this District dictate that “[m]otions for reconsideration ... shall be accompanied by a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court overlooked in the initial decision or order.” D. Conn. L. Civ. R. 7(c)(1).

It thus follows that “[t]he major grounds justifying reconsideration are ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’ ” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790), cert. denied, 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992); accord Lo Sacco v. City of Middletown, 822 F.Supp. 870, 876–77 (D.Conn.1993) (“[T]he function of a motion for reconsideration is to present the court with an opportunity to correct ‘manifest errors of law or fact or to consider newly discovered evidence.’ ”) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987)).

B. Statutory Remedy under OSHA, 29 U.S.C. § 660(c)

In the case at bar, Burris argues that the Court should grant in full its motion to dismiss Count Two for common-law wrongful discharge in violation of public policy, including the claim with respect to Plaintiffs' allegations that they were terminated for protesting hazardous working conditions. Defendant bases this assertion on the argument that § 660(c) of OSHA provides an adequate statutory remedy for Plaintiffs' allegations regarding workplace safety, thereby precluding Plaintiffs' common law wrongful discharge claims. Doc. # 32. Burris further informs the Court that the Plaintiffs “have, and are actually asserting, a proper statutory remedy for their allegations of wrongful discharge in violation of Connecticut's ‘safe workplace public policy.’ ” Doc. # 33, p. 2. In particular, Burris asserts that “although not plead in the [P]laintiffs' complaints, the [P]laintiffs[ ] have a presently pending retaliation claim before the Occupational Safety and Health Administration.” Doc. # 33, p. 2 n. 2 (citing the administrative proceeding of Burris Logistics, Inc. v. Montalvo, Lopez, Valdes, Lester, Munoz, Sharp, (No. 1–0280–12–023)). Such information is newly revealed to the Court, as it was neither included in Plaintiffs' Complaints nor referenced in the papers submitted by the parties on the Motion to Dismiss.

As the Court noted in its prior Ruling, “[u]nder Connecticut law, Plaintiffs may state a separate claim for common law wrongful discharge in violation of public policy, if they (1) plead alleged conduct by the employer which contravenes public policy and (2) demonstrate that they are ‘otherwise without remedy and that permitting the discharge[s] to go unredressed would leave a valuable social policy to go unvindicated.’ ” Lopez v. Burris Logistics, No. 3:12–CV–1039 (CSH), 952 F.Supp.2d 396, 404, 2013 WL 3337799, at *5 (D.Conn. July 3, 2012)(quoting Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 159–60, 745 A.2d 178 (2000)(emphasis in original)). Conversely, if an applicable alternative statutory remedy exists, Plaintiffs' wrongful discharge claim is precluded. 952 F.Supp.2d at 405, 2013 WL 3337799, at *6 (citing Burnham, 252 Conn. at 162, 745 A.2d 178).

Section 660(c)(1) of Title 29 of the United States Code prohibits an employer from discharging or discriminating against an employee for filing complaints, instituting proceedings or otherwise exercising rights afforded by OSHA. Specifically, § 660(c)(2) creates a remedy for an employee who alleges that he or she was discharged in retaliation for reporting violations of OSHA—“fil[ing] any complaint or institut[ing] or caus[ing] to be instituted any proceeding under or related to [OSHA]” or testifying, or being “about to testify, on behalf of himself or others” in any proceeding or because of the exercise of any right afforded by OSHA.

Pursuant to § 660(c)(2), an employee who believes that he or she was discharged in violation of § 660(c) may file a complaint with the Secretary of Labor within thirty (30) days following the discharge. 29 U.S.C. § 660(c)(2). Then, if the Secretary determines that the employee was terminated in retaliation for reporting violations of OSHA, the employee may bring an action against the employer in federal court. Id. In an action under § 660(c)(2), the court possesses jurisdiction to “restrain violations of [ 29 U.S.C. § 660(c)(1) ] and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.” Id. (emphasis added).

C. Analysis

In the present consolidated action, none of the four Plaintiffs has alleged in his Complaint that he was terminated in retaliation for filing an OSHA complaint, instituting an action under or related to OSHA, or testifying or planning to testify in a proceeding related to any right afforded by OSHA, 29 U.S.C. § 660(c)(2). Rather, in each of the Complaints, Plaintiffs allege that they were terminated in “[r]etaliation for making safety complaints” at the workplace. No. 12cv1039, Doc. # 1, at ¶ 56, No. 12 cv1041, Doc.# 1, at ¶ 61, No. 12cv1044, Doc. # 1, at ¶ 77; No. 12cv1045, Doc. # 1, at ¶ 74. The “safety complaints” Plaintiffs describe in their Complaints relate to comments they made to fellow employees, noting that the removal of water spilled during the water main break in Burris's Rocky Hill warehouse on February 20, 2011, “seemed unsafe.” No. 3:12cv1039, Doc. # 1, at ¶ 49; No. 3:12cv1041, Doc. # 1, at ¶ 54; No. 3:12cv1044, Doc. # 1, at ¶ 64; No. 3:12cv1045, Doc. # 1, at ¶ 62. Two Plaintiffs further allege that they refused to assist in the chipping of ice after the water froze. No. 3:12cv1044, Doc. # 1, at ¶¶ 67–68; No. 3:12cv1045, Doc. # 1, at ¶¶ 66–67.

In its prior Ruling on Defendant's Rule 12(b)(6) motion to dismiss, the Court confined itself to the arguments of the parties, and thus ruled only as to whether the wrongful discharge claim was precluded by Conn. Gen.Stat. § 31–51 q.

The Court held that the ruling in Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 243 Conn. 66, 86, 700 A.2d 655 (1997) governed. In Parsons, the Connecticut Supreme Court explicitly recognized a public policy requiring an employer to provide a safe workplace for its employees so that Plaintiffs' wrongful discharge claim could proceed.

The sole issue addressed on Burris's Motion to Dismiss was whether Plaintiffs' common law wrongful discharge claim was precluded as “legally insufficient” on the ground that an alternate remedy exists under Conn. Gen.Stat. § 31–51 q, Connecticut's so-called “free speech” statute. Doc. # 17, p. 1 (emphasis added). The Court concluded that Plaintiffs' wrongful discharge claim, “as based on the public policy of preserving safety in the workplace, seek[s] to redress a separate and unremedied wrong from their § 31–51q claim, based on the public policy of protecting employees' free speech.” 952 F.Supp.2d at 416, 2013 WL 3337799, at *15.

On motion for reconsideration, however, Defendant now moves to dismiss on a newly asserted basis, arguing that Plaintiffs are precluded from pursuing their wrongful discharge claims by the statutory remedy of OSHA. In support, Burris presents new evidence, representing that Plaintiffs have actually filed OSHA complaints stemming from their allegedly wrongful discharges on February 21, 2012.

See Doc. # 33, p. 2 n. 2 (citing OSHA claim of Burris Logistics, Inc. v. Montalvo, Lopez, Valdes, Lester, Munoz, Sharp (No. 1–0280–12–023)). As legal authority for preclusion, Burris cites the Connecticut Supreme Court's holding in Burnham v. Karl and Gelb, P. C., 252 Conn. 153, 165, 745 A.2d 178 (2000) that a “plaintiff's common-law cause of action for wrongful discharge is precluded because she had a remedy under 29 U.S.C. § 660(c) for her alleged retaliatory termination.”

In Burnham, the plaintiff Carole Burnham was employed as an office manager by two periodontists, defendants Edward Karl and David Gelb. On November 5, 1993, she filed an anonymous complaint with the Connecticut State Dental Association, alleging that defendants engaged in unsanitary and unhealthy practices in violation of OSHA, 29 U.S.C. § 651 et seq. On November 22, 1993, she was terminated by defendants and thereafter filed a complaint with the Hartford office of OSHA. After her administrative complaint was closed in February 1994, following her failure to respond to the Hartford office's correspondence, Plaintiff filed a three-count complaint in Connecticut state court, including a count for wrongful termination in violation of public policy. The trial court granted summary judgment for defendant on that count and, upon appeal, the Connecticut Appellate Court affirmed, holding, inter alia, that the count was barred by the existence of a statutory remedy for retaliatory discharge under OSHA. 50 Conn.App. at 395–96, 717 A.2d 811. The Appellate Court clarified that “OSHA provides a specific remedy for an employee who is terminated by her employer in retaliation for participating in any action to carry out the purpose of the federal statute.” Id. at 395, 717 A.2d 811.

The Connecticut Supreme Court then affirmed, holding that the plaintiff was precluded from bringing a cause of action for wrongful discharge because, inter alia, “plaintiff's common-law cause of action for wrongful discharge [was] precluded because she had a remedy for her employer's conduct under 29 U.S.C. § 660(c).”

252 Conn. at 158, 745 A.2d 178. In dicta contained in a footnote the court found that § 660(c)(1) contains no language specifying that the complaint be made to a “public body,” citing Donovan v. R.D. Andersen Constr. Co., 552 F.Supp. 249, 252–53 (D.Kan.1982) (employee's communications with media regarding conditions of workplace are protected under 29 U.S.C. § 660[c] ). 252 Conn. at 164 n. 5, 745 A.2d 178. “Therefore,” the Burnham court concluded, “the plaintiff's complaint to the dental association regarding the defendants' alleged violations of the act brought her within the antiretaliatory protections of 29 U.S.C. § 660(c).” Id.

Although the Supreme Court in Burnham did not require that the complaint be made to “a public body” under § 660(c)(1), it did not address whether the complaint must be made to an external person or entity— i.e., whether, for example, as opposed to a whistleblowing complaint to the media, a criticizing comment to a co-worker would suffice under OSHA. Similarly, the Connecticut Supreme Court in Burnham did not clarify whether and under what circumstances OSHA might also preclude a wrongful discharge claim for refusal to work, as opposed to a verbal or written complaint about workplace conditions. The Burnham court did, however, suggest that refusal to work might lead to preclusion, suggesting in a footnote that “even if the plaintiff had raised this claim [of retaliation for refusal to work], a question would remain as to whether ... the plaintiff's statutory remedy afforded by 29 U.S.C. § 660(c)(2) would preclude a common-law cause of action for wrongful discharge.”

At least one Connecticut Superior Court has refused post-Burnham to find that the statutory remedy of OSHA, 29 U.S.C. § 660(c)(2), precluded a common law wrongful discharge claim where the safety-related complaints were made internally to the employer's management. Trimboli v. Von Roll Isola USA, Inc., No. CV094037507S, 2010 WL 2106190, at *4–5 (Conn.Super.Ct. April 15, 2010). In that case, however, the plaintiff was the employer's “Process Engineer and Safety Officer” and the reported “breaches of safety protocol were potentially extremely dangerous to [the company's] employees and the public at large.” 2010 WL 2106190, at *4.

The Trimboli court explained its holding as follows:

A fair reading of the plaintiff's complaint is that her common-law wrongful discharge claim is predicated upon oral and written complaints to internal management in regard to the health and safety violations that she observed in her capacity as Safety Officer prior to her ultimately filing a complaint with OSHA on April 1, 2009. Given that § 31–49 reflects a broad legislative concern for the physical welfare and safety of Connecticut employees, and that one Superior Court decision found legally sufficient a claim for wrongful discharge when the plaintiffs sought to protect the rights of subordinates and co-workers, the court finds that the plaintiff's third count survives the defendant's motion to strike. The plaintiff has no statutory remedy under § 31–49 and thus, is entitled to pursue her common-law wrongful discharge claim.
2010 WL 2106190, at *5 (emphasis in original). Pursuant to Parsons, the Trimboli court recognized that Conn. Gen.Stat. § 31–49 reflects a broad legislative concern for the physical welfare and safety of Connecticut employees. Id., at *4.

The Trimboli court distinguished Burnham by stating that “[t]he [Connecticut] Supreme Court in Burnham v. Karl & Gelb, P.C., supra, 252 Conn. at 169–70, 745 A.2d 178, declined to review the plaintiff's claim that she was discharged for refusing to work under unsafe working conditions, pursuant to the public policy of § 31–49, because it was not raised at trial.” Id. at *4 n. 6, 745 A.2d 178. In other words, Trimboli recognized that the holding in Burnham did not abolish the rule of law in Parsons—i.e., in the absence of a private action or statutory remedy, a plaintiff may pursue a common law wrongful discharge action due to a “clear and defined public policy” requiring employers to provide a safe workplace for their employees.

In the case in suit, in determining whether Plaintiffs' wrongful discharge claims should be precluded by their statutory rights under OSHA, this Court is guided by the Code of Federal Regulations (“C.F.R.”) which interprets OSHA for administrative implementation.

Those regulations state that complaints under OSHA may include complaints, “if made in good faith,” about occupational safety matters which are lodged with an employer. See29 C.F.R. § 1977.9 (captioned “Complaints under or related to the Act”). Specifically, the C.F.R. clarifies that “the salutary principles of the Act [OSHA] would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers.... Such complaints to employers, if made in good faith, therefore would be related to the Act, and an employee would be protected against discharge or discrimination caused by a complaint to the employer.” Id. (emphasis added).

Whether stray comments to a fellow employee and/or an outright refusal to work constitute “lodging a complaint” with one's employer is not specifically addressed. However, the C.F.R. interprets the scope of the term “complaints” broadly.

The consolidated Plaintiffs in suit made vocal complaints within the workplace regarding the slippery conditions in the Burris warehouse on February 20, 2012. Two of them refused to chip ice as a dangerous endeavor given the lack of cleats on the soles of their mandatory steel-toed boots. No. 3:12cv1044, Doc. # 1, at ¶ 68; No. 3:12cv1045, Doc. # 1, at ¶ 66. It is reasonable to conclude that Plaintiffs' complaints on that day, if made “in good faith,” were related to their health and safety under OSHA. Furthermore, one may deduce that if, as Plaintiffs claim, Burris allegedly retaliated against Plaintiffs for their safety-related complaints, Burris had to be aware of the complaints, such that they were effectively “lodged” with Burris. Pursuant to 29 C.F.R. § 1977.9, Plaintiffs may attempt to seek potential relief for their discharges under OSHA, and in fact, have allegedly done so. Unbeknownst to the Court, they have each sought OSHA relief for their individual discharges by Burris, essentially conceding that they have a statutory remedy.

Under such circumstances, Plaintiffs' Complaints in this consolidated action fail to state a valid claim for public policy wrongful discharge. “[U]nder Connecticut law no cause of action for wrongful discharge is available when a plaintiff has a statutory remedy.” See Blantin v. Paragon Decision Resources, Inc., 3:03CV2162(CFD), 2004 WL 1964508, at *1 (D.Conn. Aug. 31, 2004) (wrongful discharge action based on a violation of public policy “is disallowed where the plaintiff has an available statutory remedy”) (citing Burnham v. Karl and Gelb, P. C., 252 Conn. 153, 161–62, 745 A.2d 178 (2000)). See also Nanos v. City of Stamford, 609 F.Supp.2d 260, 268 (D.Conn.2009) (“If .... a relevant state or federal law contains a private right of action which serves to protect the public policy allegedly violated, a wrongful discharge claim will fail.”); Honeck v. Nicolock Paving Stones of New England, LLC, No. Civ.3:04CV1577 (JBA), 2005 WL 1388736, at *2 (D.Conn. June 10, 2005) (same). Plaintiffs are thus precluded from pursuing their “workplace safety” wrongful discharge action in this Court.

Based on representations in Defendant's brief, the Court takes judicial notice that Plaintiffs have actually initiated OSHA proceedings relating to their terminations following the water main break at the Burris warehouse on February 20, 2012.

See Doc. # 33, p. 2 n. 2 & p. 3 n. 3 (citing OSHA Proceedings: Burris Logistics, Inc. v. Montalvo, Lopez, Valdes, Lester, Munoz, Sharp, (No. 1–0280–12–023)). Plaintiffs cannot pursue both avenues of recovery for the same claim— i.e., they cannot pursue a common law wrongful discharge claim related to workplace safety if they have statutory relief for retaliatory discharge under OSHA. In colloquial terms, under Connecticut law, they cannot have their cake and eat it, too.

Accordingly, in light of Burris's newly presented legal argument regarding preclusion by OSHA, bolstered by Plaintiffs' actual pending OSHA claim, Plaintiffs' wrongful discharge claim based on workplace safety is precluded.

Count Two will be dismissed in its entirety from each Complaint in this action.

IV. CONCLUSION

Where a statutory remedy exists, a wrongful discharge claim fails as a matter of law. Plaintiffs have proceeded with their administrative remedies under OSHA to redress their retaliatory discharges by Burris. Because Plaintiffs have an available statutory remedy, the Court dismisses Plaintiffs' common law wrongful discharge claim as precluded under Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000). Whether construed as a separate Rule 12(b)(6) motion to dismiss based on a newly proffered legal argument or as a motion to reconsider the Court's prior ruling based on a related argument and newly revealed relevant facts, the Motion [Doc. # 32] is GRANTED.

Plaintiffs' Count Two is dismissed in its entirety from each of the four Complaints in this consolidated action.

In light of Defendant's pending Motion to Dismiss against Plaintiff Edwin Lopez [Doc. # 36] for failure to prosecute, the Court stays all case deadlines with respect to Plaintiff Lopez until the Court rules on that motion. The deadline of October 7, 2013 for Plaintiffs Lester, Montalvo, and Valdez to respond with respect to Defendant's pending Motion for Summary Judgment [Doc. # 37] remains in effect. The Court will rule on both pending motions prior to re-setting the deadline for Defendant to answer any remaining claims in this action.

The foregoing is SO ORDERED.