DocketNumber: No. CV 01 0450101 S
Citation Numbers: 2002 Conn. Super. Ct. 10618
Judges: ARNOLD, JUDGE.
Filed Date: 8/19/2002
Status: Non-Precedential
Modified Date: 4/17/2021
Regarding Count I, the defendant argues that the plaintiff has failed to allege in his pleadings or otherwise show that his discharge was in violation of an explicit public policy as required by law. As to Count III, the defendant argues that the plaintiff has failed to sufficiently plead that the false light to "which he was subjected, was disseminated to the general public. Lastly the defendant argues that the prayers for the relief of punitive damages and attorneys fees should be stricken because such damages are not recoverable against an employer based on vicarious liability, and because the plaintiff's claim for attorneys fees is not valid in the absence of an authorizing statute.
The facts construed in a light most favorable to the plaintiff for the purposes of this motion show that the plaintiff was working as a truck driver for the defendant. The defendant had contracted out his services to the United Stationers Supply Co. in North Branford, Connecticut. On January 29, 2001 at the end of the work day, the plaintiff was given oral notice and a written notice by his manager at United Stationers that he had to take a drug test. The date of the written notice handed to the plaintiff was January 18, 2001. This was the plaintiff's first notice of the drug test. The plaintiff indicated his willingness to take the drug test.
On January 31, 2001, the plaintiff's supervisor from Driver Logistic Services, Ms. Mango, called the plaintiff to inquire as to whether he had taken the drug test. The plaintiff informed her that he would take the test that day. His supervisor informed him that "by law" the plaintiff had to take the drug test within 24 hours of the1 notice or be terminated. The plaintiff, never having been informed of a necessity to be tested within 24 hours of receiving a notice, promptly submitted to a drug test on the same day, January 31, 2001. Ms. Mango, the plaintiff's supervisor at the defendant Driver Logistic Services, Inc. telephoned the plaintiff on the evening of January 31, 2001, approximately 6 hours after he took the drug test and informed the plaintiff that he was terminated for failing the drug test. In fact, it was later revealed on May 16, 2001, when the plaintiff was attending a second hearing for unemployment compensation benefits, that the plaintiff had, in fact, passed the CT Page 10620 subject drug test despite the defendant's supervisor's statement to the plaintiff that he had failed the test. Additionally, on May 16, 2001, it was revealed that at the time of the plaintiff's termination on January 31, 2001, for allegedly failing the drug test, the results of that test were not known to the defendant. The results were not available from the laboratory until February 3, 2001, 3 days after the test and 3 days after the plaintiff's termination from his employment. When confronted with this information, the defendant's supervisor Mango, admitted that she knew that the plaintiff had not failed the drug test, but the "company chose to assign a failure against the plaintiff."
The news of the plaintiff's termination for allegedly failing the drug test was communicated by the defendant and its employees to the plaintiff's co-workers and from them, throughout the local trucking industry. The defendant also communicated the false information to a public tribunal, the Connecticut Employment Security Appeals Board, when the plaintiff sought unemployment compensation benefits.
The plaintiff's Complaint and Amended Complaint both consist of three counts, sounding in wrongful discharge, defamation and "false light." The present motion to strike is directed to only Count I, wrongful discharge, Count III, "false light" and the claims for punitive damages and attorneys fees.
In ruling on a motion to strike the court must first look to the standard of review. Practice Book §
(a) 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, that party may do so by filing a motion to strike the contested pleading or part thereof.
"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." Mingachos v. CBS, Inc.,
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (Emphasis omitted.) Id. "A motion to strike is properly granted CT Page 10621 where a plaintiff's complaint alleges legal conclusions unsupported by facts."Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority,
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank,
"The complaint does not allege that there was an employment contract for a specified term. We, therefore, infer from the complaint that the plaintiff-employee and the defendant-employer had an employment at will relationship, that is, the plaintiff was hired for an indefinite period and his employment was terminable at the will of the defendant." Morris v. Hartford Courant Co.,
200 Conn. 676 ,678 ,513 A.2d 66 (1986); Somers v. Cooley Chevrolet Co.,146 Conn. 627 ,629 ,153 A.2d 426 (1959).
Additionally in interpreting the complaint in a manner most favorable to the plaintiff the court must assume, in this case, that the plaintiff was falsely accused of failing the drug test. The question becomes, therefore, whether a false accusation of this type is sufficient to CT Page 10622 support an action for wrongful discharge.
Sheets v. Teddy's Frosted Food, Inc.,
In interpreting this exception, the courts have taken a narrow view. "We note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one. . . . We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Burnham v. Karl Gelb,P.C.,
In Atkins v. Bridgeport Hydraulic Co.,
There is a growing receptivity to recognize as actionable tort claims for wrongful discharge by an employer arising out of termination for an employee's refusal to commit perjury, for filing a workers' compensation claim, for engaging in union activity or for serving on a jury. Sheetsv. Teddy's Frosted Food Co., supra at 476-77. The court in Sheets determined that a cause of action for wrongful discharge will lie when the former employee can demonstrate an improper reason for the discharge, "a reason whose impropriety is derived from some important violation of public policy." Id., 475. Sheets warns, however, that courts should proceed cautiously in their consideration of whether a public CT Page 10623 policy violation exists. Id., 477; Thibodeau v. Design Group OneArchitects, LLC, supra, at 578-79.
"The issue then becomes the familiar common-law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not. We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation. We are, however, equally mindful that the myriad of employees without the bargaining power to command employment contracts for a definite term are entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers." Sheets v. Teddy's Frosted Food Co., supra at 478.
Later cases test and define the limits of an important violation of public policy. Because of the vagueness that inheres in the concept of public policy; Morris v. Hartford Courant Co., supra at 680; the court must make an analysis of employee claims in such cases. Faulkner v.United Technologies Corp., supra at 588-89.
In Morris, the defendant employer cited misappropriation of company funds as its reason for the plaintiff employee's termination. The plaintiff had brought an action in tort for wrongful discharge, claiming that his employer's false accusations of criminal conduct violated public policy. Our Supreme Court determined that the plaintiff's claim of wrongful discharge did not fall within the narrow Sheets exception to the terminable at-will rule because the plaintiff had not identified any public policy that was "affronted by his termination." Id., 680. The plaintiff failed to allege a violation of any explicit statutory or constitutional provision. Id. Moreover, the plaintiff did not allege the contravention of any judicially conceived notion of public policy. Id. Our Supreme Court, therefore, held that an accusation of criminal conduct does not derive from an important violation of public policy and denied the plaintiff's requested relief. Id.
In the present case, the plaintiff was wrongly accused of failing a drug test, and this was the specific reason stated for his termination. This reason for the plaintiff's termination was communicated to the plaintiff, his co-employees and the Connecticut Employment Security Appeals Board. The plaintiff argues that the defendant has violated two important public policies in discharging the plaintiff. In the first instance, the defendant has violated the public policy of prohibiting CT Page 10624 employers from using drug tests to terminate employees who have not tested positive on a urinalysis drug test, a policy it is argued, which is clearly embodied in Connecticut's statutory law. The plaintiff points to General Statutes §
(a) No employer may determine an employee's eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology.
(b) No person performing a urinalysis drug test pursuant to subsection (a) of this section shall report, transmit or disclose any positive test result of any test performed in accordance with subdivision (1) of subsection (a) of this section unless such test result has been confirmed in accordance with subdivision (2) of said subsection (a).
This court finds that the violation of General Statutes §
The plaintiff while promoting this argument in his memorandum of law in opposition to the motion to strike, has not addressed the defendant's argument that the plaintiff did not plead a violation of General Statutes §
The court does not find that the plaintiff's failure to plead a specific statutory citation or his failure to use the precise or exact words "violation of an important public policy" in his Complaint or Amended Complaint is fatal to Count I, thus subjecting it to a motion to strike. The plaintiff's pleading is replete with reference to the drug test; it's use as the cause for the plaintiff's termination; the wrongful use of one test for termination; and the transmission of the false results of the drug test. While it is indeed preferable to cite statutory authority to reference a violation of an important public policy, this court will not strike Count I due to the lack of it. The defendant's behavior, as alleged, and as admitted by the defendant employer's supervisor, is a clear violation of the public policy set forth in General Statutes §
The existence of a cause of action for invasion of privacy is recognized by the Connecticut Supreme Court. Venturi v. Savitt, Inc.,
In order to establish invasion of privacy by false light, the plaintiff must show "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." 3 Restatement (Second), Torts 652E; see Goodrich v. WaterburyRepublican-American, Inc., supra.
"This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, `or in other words, otherwise than as he is.' 3 Restatement (Second), Torts, 652E, comment b. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; ibid; and (2) is such a "major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." Id., comment c. Goodrich v. Waterbury Republican-American, Inc., supra, 131; Jonap v. Silver, supra at 558.
The Restatement of Torts contains this explanation of the requirement of publicity:
"Publicity" as it is used in this Section differs from "publication," as that term is used . . . in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge . . .
Comment (c) of § 652D recognizes, however, that not all personal CT Page 10627 and private information is protected from public disclosure. The rule stated in § 652D gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable person.Perkins v. Freedom of Information Commission,
The plaintiff, however, has pointed to a record that supports a finding that the plaintiff was portrayed in a manner that was highly offensive to an ordinary person, and that the defendant had knowledge of or acted in reckless disregard as to the falsity of the statement made. Honan v.Dimyan,
"In the United States, the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect a reasonable attorney's fee from the opposing party as part of his or her damages or costs. . . . There are certain exceptions to this rule . . . In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorney's fees by a prevailing litigant. . . . Attorney's fees may also be CT Page 10628 awarded as a component of punitive damages." (Citation omitted; internal quotation marks omitted.) Narcisco v. Brown,
In certain tort actions, punitive or exemplary damages may properly be awarded. In Connecticut, however, recovery is limited to an amount which will serve to compensate the plaintiff to the extent of his expenses of litigation less taxable costs. Vogel v. Sylvester,
It is true that in general, absent statutory authority, punitive damages may not be awarded against a principal where that principal's liability is based solely on vicarious liability and the principal has not authorized the agent's actions. See Maisenbacker v. SocietyConcordia,
While the plaintiff has failed to specifically allege that "the defendant authorized or approved the errant employee's acts or was negligent in hiring him," the plaintiff has identified Ms. Mango, his supervisor, as an employee of the defendant, and he has alleged certain acts by the defendant with sufficient specificity that the court feels that it should be left to the trier of fact to determine whether the defendant Drivers Logistic Services authorized or approved the acts of its employee, the plaintiff's supervisor and not settled by a motion to strike. The court will not strike the prayer for relief containing requests for punitive damages and attorneys fees.
Accordingly, the defendant's motion to strike Counts I and III of the plaintiff's Complaint and Amended Complaint, as well as, the prayer for relief for punitive damages and attorneys fees is hereby denied.
The Court,
By:
Arnold, J
Vogel v. Sylvester , 148 Conn. 666 ( 1961 )
Sheets v. Teddy's Frosted Foods, Inc. , 179 Conn. 471 ( 1980 )
Alarm Applications Co. v. Simsbury Volunteer Fire Co. , 179 Conn. 541 ( 1980 )
Cavallo v. Derby Savings Bank , 188 Conn. 281 ( 1982 )
Triangle Sheet Metal Works, Inc. v. Silver , 154 Conn. 116 ( 1966 )
Fisher v. Jackson , 142 Conn. 734 ( 1955 )
Milwaukee & St. Paul Railway Co. v. Arms , 23 L. Ed. 374 ( 1876 )
Denver & Rio Grande Railway v. Harris , 7 S. Ct. 1286 ( 1887 )
Lake Shore & Michigan Southern Railway Co. v. Prentice , 13 S. Ct. 261 ( 1893 )
Somers v. Cooley Chevrolet Co. , 146 Conn. 627 ( 1959 )
Goodrich v. Waterbury Republican-American, Inc. , 188 Conn. 107 ( 1982 )