Opinion
HHDCV116027112S
04-25-2018
Luke WEINSTEIN v. UNIVERSITY OF CONNECTICUT et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
General Statutes § § 31-51m and 31-51q protect whistleblowers and the exercise of free speech, respectively, by creating civil liability for certain forms of retaliatory employment action. This matter comes before the court on the motion to strike of the defendants, which asserts that the plaintiff has (1) failed to allege retaliation that constitutes " discipline or discharge" as contemplated by § 31-51q; (2) that the plaintiff has failed to sufficiently allege, as required by § 31-51q, that his speech did not result in substantial or material interference with his job performance, and (3) that the claim under § 31-51m is legally insufficient because it fails to properly allege a complaint of a violation of a state or federal law or regulation to a " public body" as required to set out liability under § 31-51m. The court denies in part the motion as to the first assertion and denies the motion as to the second and third.
Procedural History
This action, initiated by the plaintiff, Luke Weinstein, against the defendants University of Connecticut (" UConn" ) and P. Christopher Earley (" Earley" ), arises from the plaintiff’s alleged improper dismissal from his positions with the defendant as the director of the university’s Innovation Accelerator and assistant professor in residence. The operative complaint, dated November 8, 2011 with a return date of December 20, 2011, sets forth four counts: (1) violation of General Statutes § 31-51q; (2) violation of General Statutes § 31-51m; (3) violation of the First Amendment pursuant to 42 U.S.C. § 1983; and (4) intentional interference with an advantageous business relationship. By notice of removal dated December 11, 2011, the defendants removed this matter to the United States District Court.
In the federal court, the defendants filed a motion for summary judgment which was granted in part and denied in part. See Weinstein v. University of Connecticut, F.Supp.3d 221, 226-27 (D.Conn. 2016), affirmed in part, vacated in part by the United States Court of Appeals for the Second Circuit, 2017 WL 253614 (January 20, 2017). Therein, the District Court declined to exercise supplemental jurisdiction over the remaining state law claims, which were dismissed without prejudice. See Id. The state law claims were subsequently remanded to this court.
On July 26, 2017, the defendants filed a motion to strike counts one and two of the plaintiff’s complaint along with a supporting memorandum. The plaintiff filed a memorandum in opposition to the defendants’ motion on August 25, 2017. The defendant subsequently filed a reply memorandum on November 1, 2017 and a notice of supplemental authority on November 27, 2017. The plaintiff filed a notice of supplemental authority on November 3, 2017. The defendant filed an additional notice of supplemental authority on December 12, 2017.
Facts
The plaintiff alleges the following facts in the remaining counts of his complaint. In 2006, the plaintiff was hired as the director of UConn’s Innovation Accelerator with the promise of continued employment as long as funding was available for the program and the plaintiff’s performance was satisfactory. As a result of UConn’s promise, the plaintiff ceased pursuing other tenure-track positions. The plaintiff began work as the program’s director and, additionally, as an assistant professor in residence on January 29, 2007. During his employment in these positions, the plaintiff received excellent performance reviews and merit-based raises. The plaintiff was renewed for academic years 2008-2009 and 2009-2010. Sometime after the plaintiff began work in these positions, UConn hired Earley as Dean of the School of Business. In the spring of 2010, the plaintiff shared concerns with other UConn employees and administrators that the School of Business was not complying with state and federal employment laws and Institutional Review Board rules.
In June of 2010, Earley announced changes to the School of Business’s reappointment procedures for directors. Following this announcement, Earley insisted that the plaintiff re-apply for the director position for the 2010-2011 academic year, even though the plaintiff had been promised that he would continue in his position on the conditions that it was funded and his performance was satisfactory. On July 19, 2010, the plaintiff met with UConn officials to discuss his concerns regarding the changes instituted by Earley. Specifically, the plaintiff expressed concern that the changes would undermine the success of the program and may violate state and federal laws. The plaintiff also expressed that he believed the new appointment process initiated by Earley violated the agreement the plaintiff made with UConn at the commencement of his employment.
Several days later on July 30, 2010, Earley informed the plaintiff via email that he was not being reappointed as director. Earley subsequently offered the position to several of the plaintiff’s peers who turned it down, before finally appointing Christopher Levesque. Levesque had not applied for the position and was less qualified than the plaintiff. On May 20, 2011, Earley informed the plaintiff via letter that he would not be reappointed as an assistant professor in residence for the following academic year. The plaintiff states that Earley did not follow the university’s procedures when deciding to not renew the plaintiff’s professorial position and that his nonrenewal violated the terms of his appointment. The plaintiff alleges the defendants’ actions were done in retaliation for exercising his free speech rights under the first amendment to the United States constitution and article first, § § 3 and 4 of the Connecticut constitution, and for reporting illegal practices to a public body.
Standard
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ..." Practice Book § 10-39(a). " The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). " 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). " [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
Analysis
The defendants’ motion to strike asserts that the plaintiff was not discharged or disciplined as required by § § 31-51m and 31-51q because the failure to renew an employment contract does not fall within the definitional ambit of those terms, the plaintiff’s allegations are technically insufficient because the counts failed to allege that the plaintiff’s exercise of protected conduct did not substantially or materially interfere with his job performance or working relationship with the defendant, and that he has not sufficiently alleged a violation of § 31-51m because that statute protects only violations of statutes or regulations reported to a public body and the only allegations were of internal concerns. The plaintiff responds first that the motion is " fatally defective" because it fails to articulate the basis of legal insufficiency in the motion.
i. Plaintiff’s Procedural Argument
The defendants’ motion to strike states: " [p]ursuant to Practice Book § § 10-39 and 10-41 et seq., the Defendants move to strike the Counts One and Two alleging violation of Conn. Gen. Stat. § 31-51q and § 31-51m on the grounds that all these counts fail to state a cause of action upon which relief can be granted. A memorandum of law in support of the motion to strike is submitted herewith." While the attached memorandum of law specified the reasons for the claimed insufficiencies, the motion itself did not. The plaintiff has objected to the motion on the basis that it failed to specify the claimed insufficiencies as mandated by Practice Book § 10-39(b). The court disagrees that the lack of any specific identification of insufficiency is fatal to the court’s consideration of the motion.
Practice Book § 10-39(b) provides that " Each claim of legal insufficiency enumerated in his section shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency." The plaintiff asserts that the defendant’s motion is " fatally defective" because it contains only the bald assertion of legal insufficiency. The plaintiff relies upon Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d 343 (2007) and Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 779 A.2d 198 (2001) for the proposition that the failure to state a reason or reasons of insufficiency in the motion is fatal to the motion to dismiss. These decisions denied motions to strike that failed to identify the grounds of legal insufficiency on the authority of Section 10-41 of the Practice Book, which was repealed effective January 1, 2014. Section 10-41 read: " Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." The court concurs with the reasoning of the court in Cabot Addison 1, LLC v. U.S. Bank, National Association, Superior Court, judicial district of Hartford, Docket No. CV-14-6055758-S, 2015 WL 9920553, at *3 (December 31, 2015, Sheridan, J.), in which it observed that " [t]here is a subtle, but significant, difference in the wording of the two provisions. The mandatory requirement that the motion (as opposed to the supporting memorandum) set forth the reasons for each claimed legal insufficiency has been (apparently purposefully) eliminated. Consequently, the court does not view Stuart and Barasso as controlling authority and deems the supporting memorandum in this instance as sufficient compliance with Section 10-39(b)’s requirement that claims of legal insufficiency be separately set forth and supported by specific reasons." Cabot Addison 1, LLC v. U.S. Bank, National Association, supra, 2015 WL 9920553, *3. This court finds Judge Sheridan’s analysis persuasive and declines to reject the motion to strike for its failure to have articulated each basis of claimed insufficiency.
ii. Discharge or Discipline
The defendants’ first argument is that the nonrenewal of the plaintiff’s employment as the director of the Innovation Accelerator and as an assistant professor in residence with the defendant do not constitute either a " discipline or discharge" as contemplated by § § 31-51q or 31-51m. The former statute provides in pertinent part that: " Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages." (Emphasis added.) Section 31-51m provides in relevant part that: " (b) No employer shall discharge, discipline or otherwise penalize any employee because (1) 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 ..." (Emphasis added.)
There is no appellate authority that establishes the linguistic contours of the words " discipline or discharge." However, any well considered analysis must begin with Bombalicki v. Pastore, Superior Court, judicial district of New Haven, Docket No. 378772, 2000 WL 726839 (May 10, 2000, Blue, J.) which has influenced all subsequent treatment of the topic. The court in Bombalicki was presented with a claim by a police sergeant that he was denied promotion because of his exercise of free speech in violation of § 31-51q. The court considered only the definition of " discipline" because the plaintiff conceded that he had not been " discharged." Observing that " discipline" was neither statutorily defined nor addressed by case law, the court undertook a four-part analysis which considered (1) the dictionary definition, (2) internal textual clues, (3) the legislative history of the statue, and (4) the use of the word " discipline" in analogous Connecticut statutes.
The dictionary definitions consulted by the Bombalicki court included Webster’s Third International Dictionary in which it is defined as " to inflict suffering on or to penalize for the sake of discipline, regularity, order, or rule" ; Black’s Law Dictionary for " [p]unishment intended to correct or instruct, esp. a sanction or penalty imposed after an official finding of misconduct" and the Oxford English Dictionary that provided that " the earliest English sense" of the term was " its monastic use" referring to " the mortification of the flesh by penance." Judge Blue concluded from these definitions that " ‘discipline’ involves affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began. A withholding of a benefit- even a benefit that was due or promised- does not fit this pattern. ‘Discipline’ is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness." Bombalicki v. Pastore, supra, 2000 WL 726839, at *3.
Webster’s Third International Dictionary (1971) p. 645.
Black’s Law Dictionary (7th Ed. 1999) p. 476.
4 Oxford English Dictionary (2d Ed. 1989) p. 735.
The Bombalicki court found significant the internal text of § 31-51q, which limited liability to activity that " does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer." This limitation, reasoned the court, suggested that proscribed retaliatory conduct on the part of the employer was confined to changes to the status quo. Bombalicki v. Pastore, supra, 2000 WL 726839, at *3. A statement by Representative Richard Tulisano introducing the bill, explained that the legislation would protect the " rights of individuals, so they do not have to be afraid to express themselves because of fear of job loss" was found to " plainly envision ‘discipline’ as an affirmative act of punishment that leaves the employee less well off than he was before." Id. Finally, the court found further support for its interpretation that the denial of a promotion was not within the ambit of the " discipline" proscribed by § 31-51q in the use of the phrase " discipline or discharge" or in other statutes including § 31-51m which provides that " No employer shall discharge, discipline or otherwise penalize any employee because the employee ... reports ... a violation ... to a public body." Id., *4.
26 H.R. Proc., Pt. 14, 1983 Sess., p. 5289, remarks of Representative Richard Tulisano.
Judge Blue rejected the argument that the definition of " discipline" could usefully be compared to federal anti-discriminatory statutes, 42 U.S.C. § 1983 and 42 U.S.C. 2000e-2 (Title VII) because these " statutes are worded with an unmistakably broader brush than that used to draft § 31-51q." Bombalicki v. Pastore, supra, 2000 WL 726839, *5.
42 U.S.C.A. § 1983 provides in pertinent part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." (Emphasis added.)
Title VII makes it unlawful " to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1).
The conclusion that " discipline" involved an affirmative act that impacts only the status quo resulted in a holding that the failure to promote complained of in Bombalicki was not actionable because it was not an " affirmative act of punishment." In the court’s view, the contours of the word " discipline" involved such affirmative acts which left " the recipients in a less happy state than that which they enjoyed before the punishment began" and was limited to an act of deprivation that diminished " the status or happiness of the recipient rather than a failure to enhance that status or happiness." Id., at *3. The promise of promotion, in the estimation of the court, was not proscribed by § 31-51q because the statue did not protect the withholding of a benefit, even one that was due or promised. Id.
The impact of Bombalicki is evident by the overwhelming adoption by the judges of the superior court of the meaning of " discipline" as used in § 31-51q. See Edwards v. Eastern Connecticut State University, Superior Court, judicial district of Hartford, Docket No. 17-6073592-S, 2017 WL 6601935 (November 22, 2017, Robaina, J.) (narrow drafting of § 31-51q compels conclusion that failure to renew contract is not discipline or discharge); Sans-Syzmonik v. Hartford Public School, Superior Court, judicial district of Hartford, Docket No. CV-14-6051355-S, 2014 WL 7156776 (November 7, 2014, Peck, J.) (non-renewal of non-tenured employment position not discipline or discharge); Matthews v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV-11-6019959-S, 2013 WL 3306435 (May 31, 2013, Peck, J.) (quoting Bombalicki for the proposition that " withholding of a benefit- even one that was due or promised" is not discipline); Burdick v. Clouet, Superior Court, judicial district of New London, Docket No. CV- 085006062, 2011 WL 2739557 (June 14, 2011, Devine, J.) (transfer within school district resulting in loss of $1,000 stipend not discipline); McIntyre v. Fairfield University, Superior Court, judicial district of Fairfield, Docket No. CV-02-0391471, 2003 WL 1090690 *3 (Mar. 3, 2003, Doherty, J.) (denial of tenure and promotion as well as non-renewal of contract not discipline or discharge). Moreover, the federal Second Circuit has adopted Bombalicki’s definition of " discipline" as including " affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began." (quoting Bombalicki ) Avedisian v. Quinnipiac University, 387 Fed.Appx. 59, 61 (2d Cir. 2010) (denial of tenure did not constitute " discipline" ).
The defendants urge the court to adopt the less expansive definition of " discipline" as interpreted by Bombalicki. They further rely on Sans-Sysmonik v. Hartford Public Schools, supra, 2014 WL 7156776, *10, Douglas v. Board of Trustees for Connecticut State University, Superior Court, Docket No. CV- 95-0372571, 1999 WL 240736 *3 (April 8, 1999, Silbert, J.), and DeFusco v. Town of West Hartford, United States District Court, Docket No. 3:15-CV-0485 2016 WL 1225496 *3 (D.Conn., March 28, 2016), for the proposition that the non-renewal of a teacher’s non-tenured contract is not a " discharge" within the meaning of § 31-51q.
The plaintiff asserts a more liberal interpretation of " discipline" is appropriate. In the view of the plaintiff, " discipline" properly encompasses any adverse employment action that would dissuade a reasonable person from exercising constitutional free speech rights. Similarly, " discharge" includes, asserts the plaintiff, the non-renewal of a limited employment contract. The plaintiff’s position as to the definitions he urges regarding both " discipline and discharge" derives support from reference to federal decisions in the anti-discrimination context. None of the decisions relied upon by the plaintiff, however, rely on similar statutory or constitutional language. For example, the plaintiff relies on Rutan v. Republican Party of Illinois, 497 U.S. 62, 64, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (promotions, transfers, and recalls based on political affiliation or support are impermissible violations of public employees’ First Amendment rights); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (claims under First and Fourteenth Amendments not defeated by non-tenured status of teacher) and Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006) (retaliatory adverse employment action actionable under § 1983 is that which would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights).
In his notice of supplemental authority, the plaintiff brought to the court’s attention the decision in Browne v. State Department of Correction, Superior Court, judicial district of New Haven, Docket No. 17-6067843, 2017 WL 5243854 (October 10, 2017, Ecker, J.) as supportive of its position. In Browne the court addressed whether the word discipline as used in § 31-51q included the transfer of a Department of Correction employee, pending investigation of false charges, to a less desirable assignment with different job duties. The court held that the plaintiff alleged one or more " affirmative deprivations" and thus fell within the Bombalicki definition of " discipline." The court did state in dicta that it disagreed with the definitional limitations imposed on the concept of " discipline" by the " affirmative deprivation" requirement. In the view of the Browne court, " an employee has been subjected to ‘discipline’ if the employee can prove that a material benefit such as a promotion would have been conferred but for the employer’s negative reaction to the protected speech activity." Browne v. State Department of Correction, supra, 2017 WL 5243854 *3. The court reasoned that a deprivation by both an affirmative act and one of omission, such as withholding a benefit " not yet in hand, but ... to be conferred soon, or is reasonably expected to be conferred in the future based on custom, practice, promise, etc." may constitute " discipline" where both serve as an adverse material consequence. Id.
This court finds that the definition of " discipline" as employed in § 31-51q, as ascertained from the text of the statute itself and its relationship to other statutes; see General Statutes § 1-2z; refers to any adverse material consequence relative to a right, term, condition or benefit of employment that existed at the time of the protected speech. There is nothing in the definitions relied upon by the Bombalicki court that restrict discipline to affirmative acts. It is defined now, as it was in 1999, by Black’s Law Dictionary as: " Punishment intended to correct of instruction, esp. a sanction or penalty imposed after an official finding of misconduct." Black’s Law Dictionary, (10th Ed. 2014). Nothing in this definition, or any of the others considered by the Bombalicki court, suggests that deprivation is limited to only affirmative acts. This construct leads to the anomalous conclusion that the withholding of a benefit, even one that is due or promised, is not considered a discipline even though that surely constitutes a punishment, that is, an adverse material consequence.
" A withholding of a benefit- even a benefit that was due or promised- does not fit this pattern. ‘Discipline’ is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness." Bombalicki v. Pastore, supra, 2000 WL 726839, *3. ---------
An employee is clearly punished if deprived of any condition, term or benefit attendant to employment such as loss of pay, loss of vacation time, loss of opportunity to work overtime, a letter of reprimand, or the loss of a position level or rank through demotion. It is true that if these events place the employee in a less desirable position within the context of his or her employment resulting in a diminution of status or happiness. Where, however, a term of the employee’s employment includes the opportunity to test fairly for a promotion for which the plaintiff might otherwise have qualified, the denial of the opportunity to qualify as a consequence of a transgression, or conversely, an expression of free speech, must be considered a punishment, sanction or " discipline." Similarly, where the terms of employment include an agreement that a temporary contract will be renewed upon expiration given sufficient funding and absent unsatisfactory performance, the deprivation of this existing or guaranteed term certainly results in a diminution of happiness, status, punishment or simply stated, an adverse material consequence.
This admittedly more expansive definition of " discipline" finds support in the analysis of the court in Matthews which retreated slightly from the absolute requirement that " discipline" requires an affirmative act by the observations that an " omission cannot constitute discipline unless the employer had a duty to act for the employee." (Emphasis added.) Matthews v. Department of Public Safety, supra, 2013 WL 3306435, *13; and the " mere failure to promote the plaintiff and give him supervisory experience cannot constitute ‘discipline’ as such conduct is clearly an omission and there is no duty on the employer to promote an employee." (Emphasis added.) Id., *14. See also Edwards v. Eastern Connecticut State University, supra, 2017 WL 16601935, at *4 (" To deny the employee something that neither the employer nor the employee agreed to in the contract, e.g., another contract, cannot amount to discipline or discharge." )
Conversely, the court finds that the plaintiff’s assertion that " discipline" as used in § 31-51q includes any adverse employment action that would dissuade a reasonable person from exercising constitutional free speech rights oversteps the boundaries discerned from the text of § 31-51q and an appreciation of its relation to other statutes. The plaintiff’s reliance on decisions interpreting federal anti-discriminatory laws is misplaced. As noted by the Bombalicki court, none of the statutory causes of action or constitutional rights invoked in the federal cases restrict liability to " discipline or discharge." Had the legislature intended a more expansive level of conduct as the trigger for § 31-51q liability, it knew how to write such a statute. See e.g., Fedus v. Planning & Zoning Commission, 278 Conn. 751, 779, 900 A.2d 1 (2006) (noting presumption that, if legislature intends to limit or expand jurisdiction, it knows how to express that intent). It is significant that the legislature chose to employ more expansive language in the drafting of § 31-51m by providing that an employer shall not " discharge, discipline or otherwise penalize " an employee for whistleblowing. The addition of the phrase " otherwise penalize" to 31-51m suggests that " discipline" is something other than a general penalty. The adoption of the expansive definition of " discipline" urged by the plaintiff, that is, " any adverse employment action that would dissuade a reasonable person from exercising constitutional free speech rights," renders meaningless the phrase to " otherwise penalize" as used in § 31-51m. " [I]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless [or redundant] provisions." (Internal quotation marks omitted.) Thomas v. Department of Developmental Services, 297 Conn. 391, 409, 999 A.2d 682 (2010). Moreover, " the legislature is always presumed to have created a harmonious and consistent body of law ... [T]his tenet of statutory construction ... requires us to read statutes together when they relate to the same subject matter ... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) LaFrance v. Lodmell, 322 Conn. 828, 837-38, 144 A.3d 373 (2016).
The application of the court’s definition of " discipline," any adverse material consequence relative to a right, term, condition or benefit of employment that existed at the time of the protected speech, yields the conclusion that the plaintiff’s claim of " discipline" as a consequence of the nonrenewal of his contract as director of UConn’s Innovation Accelerator is legally sufficient because the plaintiff alleges that a condition or term of the contract included the promise of continued employment as long as funding was available for the program and the plaintiff’s performance was satisfactory. Of course the court treats the allegations as admitted, as it must in the context of a motion to strike; Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398; and takes no position on the merits. The assistant professorship in residence, however, must be stricken as not stating a claim upon which relief may be granted because there is no allegation that the employment contract for this position included a similar guarantee.
The court disagrees with the plaintiff that the nonrenewal of the assistant professorship in residence qualified as a " discharge." As the plaintiff notes, " discharge" is a verb defined as " to dismiss from employment; terminate the employment of," and as a noun to mean " release or dismissal esp. from an office or employment." Webster’s Third New International Dictionary (2000) p. 645. The complaint alleges only a non-renewal of the assistant professorship appointment, which did not benefit from a guarantee of continued employment, rather than a termination or disruption of the existing contract of employment. In the absence of an untimely separation from employment there can be no discharge and the court finds that this claim is legally insufficient because it does not qualify as either " discipline or discharge."
iii. Failure To Plead Lack of Substantial or Material Interference With Job Performance
The defendants assert that the plaintiff’s failure to specifically allege that his speech did not " substantially or materially interfere" with his job performance or his working relationship with his employer is fatal to his claim. Section 31-51q imposes liability upon an employee for subjecting an employee to discipline or discharge on account of protected speech " provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer." The defendant observes that the overwhelming majority of judges of the Superior Court who have addressed the question of whether § 31-51q imposes a burden on the plaintiff to plead that the protected conduct did not materially interfere with the plaintiff’s employment have concluded that the failure to do so renders the complaint subject to being stricken. See Buscetto v. Saint Bernard School of Montville, Inc., Superior Court, judicial district of New London, Docket No. CV-11-6011089, 2013 WL 1111582, *6 (February 22, 2013, Devin, J.) and cases collected therein. The plaintiff counters that in the absence of controlling appellate authority, the minority opinion most recently articulated by the court in Matthews v. Department of Public Safety, supra, 2013 WL 3306435, *9-11, is more persuasive.
This court need not address this unresolved question because of its conclusion that the plaintiff’s allegation that he expressed his determination " to do his utmost to support the Dean’s changes to the program regardless of his views and to make the program as successful as possible" provides the basis for an inference of no substantial or material interference with his job. Construing this language in the manner most favorable to sustaining the legal sufficiency of the complaint, as the court must, results in the finding that the plaintiff has pled the equivalent of no substantial or material interference with his job performance or his working relationship with the defendants. The motion to strike is therefore denied on this basis.
iv. Failure to Report a Violation To a Public Body
Finally, the defendants assert that § 31-51m(b)(1) requires that the plaintiff have reported a violation to a public body while he has only alleged internal concerns raised at UConn. While the defendants refer the court to Ritz v. Town of East Hartford, 110 F.Supp.2d 94 (D.Conn. 2000) this reference undermines the defendants’ arguments because that court held that § 31-51m covers internal whistleblowing where the complaint was made to an individual who acts as an agent of the public body and his actions constitutes the actions of the body. Id., 98. In the present case, the plaintiff alleges protected speech was made to the Director of the Office of Ethics and that his efforts to assure compliance with the law were directly opposed by the Dean of the School of Business. These clearly qualify as agents of a public body, and liberally interpreted in the manner most favorable to sustaining the legal sufficiency of this count the court finds that the plaintiff has alleged the report of a violation to a public body.
Conclusion
For the foregoing reasons the court grants the motion to strike that portion of count one claiming a violation of § 31-51q based on the non-renewal of the plaintiff’s assistant professor in residence claim and denies the remainder of the motion as to count one and count two.
So Ordered.