Opinion
No. CV-01-0511044 S
June 25, 2004
RULING ON MOTION TO STRIKE
The plaintiff, Fred J. DiNapoli, Jr., brings this suit for reinstatement of his position with the State of Connecticut Department of Motor Vehicles (DMV) as well as for back wages and damages. The defendants, the DMV and three DMV employees, have moved to strike the revised complaint.
The named individual defendants were Sergeant Fred Kiernan, Lieutenant Frank Baio, and Steven A. Shonta. At the hearing on the motion to strike, the court, after oral argument granted the motion as to Kiernan, Baio, and Shonta on the first three counts of the revised complaint. See Emerick v. Kuhn, Superior Court, judicial district of Hartford/New Britain, Docket No. 94 0460869S (October 18, 1994, Handy, J.). As will be explained, Kiernan is the sole defendant in count four, and the complaint against him is not stricken.
The allegations of the revised complaint are as follows. The plaintiff was hired as a licensing agent by the DMV on December 15, 2000. His immediate supervisor, Fred Kiernan, directed him to issue written warnings, if appropriate, to the public during the vehicle inspection process. The plaintiff refused on the ground that, as a licensing agent and not a certified vehicle inspector, he was not permitted to issue such warnings. He wrote on May 22, 2001 to Kiernan's supervisor, Frank Baio, stating that Kiernan was abusive to him and was acting in violation of the general statutes in ordering him to issue written warnings.
On May 18, 2001, the plaintiff injured himself on the job and filed a workers' compensation complaint. On May 25, 2001, the plaintiff was informed that he was being terminated during his working test period. He requested a hearing regarding his termination before the DMV on June 11, 2001, but relief was denied on July 5, 2001.
The plaintiff has set forth four counts in his complaint. The first count alleges that he brought to the attention of the DMV that Kiernan was requesting him to engage in an illegal activity, issuing written warnings, and that his subsequent firing violated the "whistle blower" statute, § 31-51m. The second count alleges that Kiernan's abusive conduct deprived the plaintiff of his right to free speech and he is entitled to relief under general statutes § 31-51q. The third count alleged that the adverse action taken against the plaintiff was the result of his making a workers' compensation claim and therefore violated general statutes § 31-290a. The fourth count alleged that Kiernan had engaged in conduct towards the plaintiff that constituted an intentional infliction of emotional harm.
A motion to strike, Practice Book § 10-39(a), "contests . . . the legal sufficiency of the allegations of any complaint . . ." "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, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825-26 (1996); see also Vacco v. Microsoft Corp., 260 Conn. 59, 64-65 (2002).
Turning to the first count, § 31-51m(c) requires that, before commencing a civil action in a whistle blower case, the plaintiff have "exhausted all available administrative remedies." The DMV's supplemental brief points to two statutory procedures that the plaintiff should have exhausted. The first is the grievance rights under § 5-270. Paragraph 12 (Count One) of the revised complaint alleges that the plaintiff requested a hearing under his employment contract and in paragraph 13 that such a hearing was held. Thus the need to exhaust under § 5-270 has been met.
Secondly the DMV claims that the plaintiff failed to present his claim first to the Claims Commission. The need to proceed through the Claims Commission would only arise if § 31-51m cases implicate the state's sovereign immunity. Here the state has specifically waived sovereign immunity in § 31-51m(a)(2). Therefore there was no requirement that the plaintiff exhaust by filing a claim with the Claims Commission. See Healey v. Department of Mental Retardation, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 96 0559173S (September 11, 1997, Barry, J.); Urban v. Department of Children and Families, Superior Court, judicial district of Middlesex at Middletown, Docket No. 000091539 (May 11, 2001, Parker, J.).
Further, the DMV raises the issue of venue of a whistle blower action. This is an improper motion to raise on a motion to strike. Rather, venue should be raised on a motion to dismiss pursuant to Practice Book § 10-31 and, on failure to do so, is considered waived under § 10-32 Therefore, the court denies the DMV's motion to strike count one, except as indicated in footnote 1.
Count two makes a claim under § 31-51q, which prohibits the DMV from terminating the plaintiff's job for exercising his free-speech rights. The allegations of the complaint in this count differ from that in count one. Here the plaintiff claims that he "undertook" the preliminary motor vehicle inspections at the direction of inspector Jim Frechette. He was then abused by Kiernan for his "undertaking" and "politely and calmly exercised his [state and federal] constitutional rights of free speech . . . [speaking] out on a matter of public concern involving the motor vehicle inspection process." He also wrote the complaint to Baio mentioned in count one.
Thus the plaintiff in this count is not alleging that he spoke out about a violation of the inspection process. Rather he alleges that he proceeded to comply with the order of Frechette and spoke out when Kiernan abused him. This allegation is insufficient to state a claim under § 31-51q.
Section 31-51q protects employees that make a "particular statement . . . of inherent interest to society at large." It cannot be a statement of "personal grievances," but must have "a broader public purpose." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 780 (1999), quoting Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999). See also Saulpaugh v Monroe, 4 F.3d 134, 143 (2d Cir. 1993) (allegations of sexual harassment did not state a first amendment claim as they were "personal in nature and generally related to her own situation"). Here, as alleged, the plaintiff's speech was made out of self-interest, "rather than as a citizen concerned with a matter of public concern." Hellstrom v. Department of Veterans Affairs, 178 F.Sup.2d 164, 169 (N.D.N.Y. 2001), aff'd, 46 Fed.Appx. 651 (2002). Therefore the second count is stricken.
The third count alleges that he was injured at work, made a claim for workers' compensation and was subsequently given a termination notice. This is alleged to violate the provisions of § 31-290a which prohibits discharge for asserting a workers' compensation claim. The DMV seeks to strike this claim for failure of the plaintiff to meet its burden of proof. The plaintiff has, however, pled sufficiently to withstand a motion to strike. Whether he eventually proves his claims at trial is not before the court in this motion. See Ford v. Blue Shield of Connecticut, Inc., 216 Conn. 40, 53 (1990) (setting forth the shifting burdens of proof); Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362 (1991) (discussing the plaintiff's burden before the trier of fact). As the complaint is sufficient, the motion to strike count three is denied, except as indicated in footnote 1.
The fourth count is an action against the defendant Kiernan in his individual capacity for intentional infliction of emotional harm. To recover on this claim, the plaintiff must allege and prove that (1) the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the conduct was the cause of his distress; and (4) that the emotional distress sustained by him was severe. Berube v. Nagle, 81 Conn.App. 681, 697-98 (2004). While the DMV contests whether the plaintiff will meet his burden at trial, he has sufficiently alleged the elements of this claim. A subsequent motion for summary judgment will more appropriately raise the issues of severity and causation. Therefore the motion to strike is denied as to count four.
So ordered.
Henry S. Cohn, J.