Opinion
No. CV 09-4037507S
April 15, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS/MOTION TO STRIKE (#199)
Facts and Procedural History
Laura Trimboli, the plaintiff, was employed by Von Roll Isola USA, Inc., the defendant, from September 2006 to April 2009 as a Process Engineer and Safety Officer. In her complaint, the plaintiff alleges the following gives rise to her action against the defendant. In 2008, the defendant's new management began undermining her authority and preventing her from enforcing her duties as Safety Officer. Subsequently, the plaintiff began reporting to her supervisors that there were breaches of safety protocol potentially dangerous to the defendant's employees and the public at large. The plaintiff made reports of safety and security concerns both orally as well as by electronic mail messages to her supervisors. In the days following her complaints, she experienced negative job consequences.
In the morning hours of April 1, 2009, the plaintiff reported the defendant's alleged health and safety violations to the Bridgeport Office of Occupational Safety and Health Administration ("OSHA"). Following her return to work that afternoon, the plaintiff was called into her supervisor's office and was formally discharged. On April 9, 2009, the plaintiff filed a complaint of discrimination pursuant to the Occupational Safety and Health Act of 1970, title 29 of the United States Code, § 660(c)(2).
The plaintiff's three-count complaint, filed on June 24, 2009, alleges violation of General Statutes § 31-51m in count one, violation of General Statutes § 31-51q in count two and common-law wrongful termination/discharge in count three. The defendant filed a motion to strike counts one and three on August 12, 2009, to which the plaintiff filed an objection to on October 9, 2009. On October 26, 2009, the court, Blue, J., heard oral argument on the motion. The court allowed the plaintiff to file an amended complaint. The plaintiff filed an amended complaint on November 6, 2009. The defendant filed a motion to dismiss count one and a motion to strike counts one and three on December 15, 2009. The plaintiff filed an objection on February 16, 2010. The court, Wilson, J., heard oral argument on March 15, 2010.
Discussion Count One: Violation of § 31-51m
The defendant argues that count one, alleging violation of § 31-51m, should be dismissed because the plaintiff has failed to exhaust her administrative remedies. In the alternative, the defendant argues that count one should be stricken because the plaintiff has failed to allege facts implying a causal relationship between her complaint to OSHA and her termination, given that there is no allegation that the defendant had any knowledge of the complaint.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 616, 872 A.2d 408 (2005).
General Statutes § 31-51m(b), in pertinent part, states: "No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action." Section 31-51m(c), in pertinent part, states: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred." (Emphasis added.)
The defendant concedes that the plaintiff filed a retaliation complaint with OSHA on April 9, 2009, pursuant to the Occupational Safety and Health Act of 1970 section, title 29 of the United States Code, § 660(c). Further, the plaintiff attached to her complaint a letter, dated April 14, 2009, from OSHA that confirms receipt of her complaint. The defendant, however, argues that dismissal is proper because the plaintiff has failed to exhaust her administrative remedies through OSHA.
Title 29 of the United States Code, § 660(c) provides: "(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter. (2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary [of Labor] alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United State District Court against such person. In any such action the United States District Courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. (3) Within 90 days of the receipt of a complaint filed under the subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection."
In Burnham v. Karl Gelb, P.C., 252 Conn. 153, 155, 745 A.2d 178 (2000), the plaintiff filed an anonymous complaint with the Connecticut State Dental Association alleging that her employers, the defendants, engaged in unsanitary and unhealthy practices in violation of the federal Occupational Safety and Health Act of 1970, 29 U.S.C.S. § 651 et seq. The plaintiff was terminated by defendants and thereafter filed a complaint with the Hartford office of the OSHA alleging that she was terminated by defendants in retaliation for her complaint to the dental association. The plaintiff's complaint was administratively closed due to the plaintiff's lack of response to correspondence from the Hartford office of OSHA.
The court concluded that the plaintiff was precluded from bringing a cause of action for wrongful discharge for three reasons: "First, we agree with the trial court that the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the public policy embodied in § 31-51m. Second, even if we were to conclude that the plaintiff's termination violated the public policy embodied in § 31-51m, the plaintiff's common-law wrongful discharge claim would be precluded by § 31-51m(c), which provides a statutory remedy for employer conduct prohibited under § 31-51m(b). Third, we agree with the Appellate Court that the plaintiff's common-law cause of action for wrongful discharge is precluded because she had a remedy for her employer's conduct under 29 U.S.C. § 660(c)." Id., 158.
The court stated: "Title 29 of the United States Code, § 660(c)(2), provides a statutory administrative remedy for employees . . . who allege that they were discharged in retaliation for reporting violations of the act." Id., 162. " 29 U.S.C. § 660(c)(2) establishes a procedure by which an employee can lodge a complaint with the secretary of labor alleging that he or she was discriminated against for filing any complaint about an employer's violation of the act. If, after conducting an investigation, the secretary of labor determines that the employer has violated the antiretaliatory discharge provision of 29 U.S.C. § 660(c), the secretary of labor is required to pursue judicial remedies on behalf of the employee . . . Many courts have concluded that 29 U.S.C. § 660(c)(2) provides a remedy for an employee who is terminated in retaliation for filing a complaint about an employer's alleged violation of the act." Id., 166.
Furthermore, the court noted: "When a plaintiff has available to him administrative remedies that could have afforded him meaningful relief . . . [h]is failure to [properly pursue those remedies] forecloses his access to judicial relief, because it deprive[s] the trial court of jurisdiction to hear his complaint . . . In addition, when a plaintiff fail[s] to follow the administrative route prescribed by the legislature for his claim . . . the plaintiff fails to exhaust his or her administrative remedies. A plaintiff's preference for a remedy at [an] earlier stage of the proceedings is of no moment when he has not exhausted other available administrative remedies." (Citations omitted; internal quotation marks omitted.) Id., 168-69. Thus, the court found that an administrative remedy existed under 29 U.S.C. § 660(c)(2) for her wrongful termination claim, which she failed to exhaust. See id., 165-66.
Therefore, the court grants the defendant's motion to dismiss count one of the plaintiff's complaint because she has failed to exhaust her administrative remedies under 29 U.S.C. § 660(c)(2). As such, the court need not address the merits of the defendant's motion to strike this count.
The Court notes that at the March 15, 2010 oral argument on this motion, the plaintiff misrepresented Judge Blue's instructions from oral argument on October 26, 2009. Rather than correcting the deficiencies pointed out by Judge Blue, the plaintiff's amended complaint contained no significant changes to the allegations in count one. If the court were to reach the defendant's motion to strike this count, it would have granted the motion, given that the deficiencies of the initial complaint were not rectified.
Count Three: Wrongful Termination
Next, the defendant argues that count three, alleging common-law wrongful termination, should be stricken because, as previously discussed, it is precluded by the remedy available in General Statutes § 31-51m and in 29 U.S.C. § 660(c)(2). The plaintiff counters that her common-law wrongful discharge claim is predicated on the public policies embodied in §§ 31-49 and 31-370, rather than the public policy embodied in § 31-51m. More significantly, she argues that count three relates to her internal reports to the defendant in regard to her safety and security concerns, which began months prior to her complaint with OSHA on April 1, 2009.
The plaintiff also predicates her common-law discharge claim on the public policy embodied in § 33-1336, which protects employees of public corporations from retaliatory discharge if they make an internal reporting of financial fraud. Here, the plaintiff alleges that she was discharged due to her reporting of safety and security violations. The court is satisfied that there is nothing in the plaintiff's complaint that would implicate the public policy concerns embodied in § 33-1336.
"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." (Internal quotation marks omitted.) CT Page 9018 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Although there is a recognized cause of action for wrongful discharge in violation of an important public policy; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980); it is only available in cases in which there are no other available remedies. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985). In Parsons v. United Technologies Corp., 243 Conn. 66, 79-80, 700 A.2d 655 (1997), the Supreme Court held that General Statutes §§ 31-49 and 31-370 may provide a public policy basis for a wrongful discharge action: "Both §§ 31-49 and 31-370 reflect a broad legislative concern for the physical welfare and safety of Connecticut employees. Consequently, we are persuaded that the mandate of public policy that these statutes embody gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties."
Section 31-49 in relevant part, states: "It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers . . ."
Section 31-370, in pertinent part, states: "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . Each employer shall comply with occupational safety and health standards promulgated under this chapter . . . Each employee shall comply with occupational safety and health standards and all regulations and orders issued pursuant to this chapter which are applicable to his own actions and conduct."
The Supreme Court in Burnham v. Karl Gelb, P.C., supra, 253 Conn. 169-70, 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. The court noted in dicta that "even if the plaintiff had raised this claim, a question would remain as to whether, under the facts of this case, 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 against the defendants for refusing to work under conditions that pose a substantial risk of death, disease or physical harm and that were not contemplated within the scope of the plaintiff's duties." (Emphasis added.) Id., 171 n. 9.
Furthermore, one Superior Court decision found legally sufficient the plaintiffs' claim for wrongful discharge in violation of the public policy embodied in General Statutes § 31-49, when the plaintiffs alleged they were discharged for protecting not their own rights, but the right of a third party, to a safe work environment. See Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. 556799 (January 9, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 217, 219-20). "Although Parsons involved a plaintiff who was discharged for asserting his own right to a safe work environment, it does not follow from this that an employer may, without incurring tort liability, discharge an employee for protecting his subordinates' or co-workers' rights. On the contrary, this court concludes that the strong public policy recognized in Parsons, when viewed in conjunction with other Supreme Court decisions, supports the view that such allegations should give rise to an action in tort for wrongful discharge." Id., 219. Finally, decisions of the Superior Court have held that there is no private right of action under § 31-49. See e.g., Sisbarro v. Airgas East, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4010897 (January 6, 2006, Arnold, J.) ( 40 Conn. L. Rptr. 495, 496); Juleson v. Masterson, Superior Court, judicial district of New Haven, Docket No. CV 02 0466932 (July 13, 2004, Devlin, J.) ( 37 Conn. L. Rptr. 464, 465).
Here, the plaintiff alleges in count one, incorporated into count three, that the following occurred in and around 2008, prior to her April 1, 2009 OSHA complaint. "Shortly after the change in management, Ms. Trimboli began reporting to her superiors . . . informing them that breaches of safety protocol were potentially extremely dangerous to Von Roll employees and the public at large. Ms. Trimboli also expressed concerns about plant security, storage of hazardous materials and similar issues . . . Ms. Trimboli made reports of safety and security concerns orally as well as by electronic mail messages to her supervisors . . ." The complaint goes to enumerate several specific safety and security breaches that the plaintiff reported and adds "Ms. Trimboli's reports and requests for assistance were repeatedly rejected or ignored . . . In the days following her complaint, Ms. Trimboli started experiencing negative job consequences."
In count three she alleges the following. "Von Roll's actions were in violation of employee and public health and safety. Ms. Trimboli, as Process Engineer and Safety Officer, was charged with responsibility . . . for maintaining employee safety as well as public safety by ensuring the proper health and safety procedures were utilized . . . Her reports . . . concerned breaches of health and safety protocols as well as the suspected violations of state and/or federal laws or regulations. The reports were made to her supervisors as well as to [Von Roll's remediation consultant] and ultimately to OSHA."
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.
The court notes that the plaintiff could have more clearly and concisely plead that count one is predicated on her external reporting to OSHA, while count three is primarily predicated on her internal reporting to the defendant prior to her filing a complaint with OSHA.
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