Cabrera v. American School for the Deaf, 2013 WL 1189383 (Super. Ct. Feb. 26, 2013)

Superior Court of Connecticut,
Judicial District of Hartford.
Lydia CABRERA
v.
AMERICAN SCHOOL FOR THE DEAF.
No. HHDCV126035273S.
Feb. 26, 2013.
Attorneys and Law Firms
Nadim Eric Tarabishy, The Law Office of Erin I. O'Neil Baker, Hartford, CT, for Lydia Cabreral.
Shipman & Goodwin LLP, Hartford, CT, for American School for the Deaf.
Opinion
CARL J. SCHUMAN, Judge.
*1 In this employment case, the defendant, American School for the Deaf, moves to strike the four-count amended complaint of the plaintiff, Lydia Cabrera. The court grants the motion in its entirety. In doing so, the court decides that the rule of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which defines, for purposes of the federal constitution, the right of free speech in the employment context to protect only statements made outside the scope of employment, also applies under the Connecticut Constitution.
I
A motion to strike tests whether the allegations of a complaint state a claim upon which relief can be granted. See Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214–15, 618 A.2d 25 (1992). The court must construe the allegations in a light most favorable to the plaintiff. See Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In count one, which the plaintiff labels “Bad Faith Breach of Contract,” the plaintiff alleges that the defendant hired her on July 7, 2011 as a “temporary Payroll Specialist” and described the employment as a “potential permanent position.” (Complaint, paras .4, 5.) She adds that in November 2011 and February 2012, the defendant promised her that the position would become “permanent” with a salary of $45,000 a year plus benefits. (Paras.18, 23.)
During this time period, the plaintiff advised her supervisors of numerous payroll discrepancies, such as underpayments and overpayments to various employees. (Paras.10–17.)
In March 2012, the defendant allegedly offered the plaintiff, and the plaintiff accepted, the position of payroll specialist with a salary of $45,000, six weeks paid vacation, and medical and dental benefits. (Paras.30, 31.) However, in April 2012, the defendant fired the plaintiff, purportedly because of her criminal history. The defendant allegedly knew before hiring the plaintiff in March 2012 that she had a criminal history. (Paras.32–35.)
The plaintiff incorporates these facts and adds others into count two, which alleges a violation of General Statutes § 31–51q, count three, which alleges promissory estoppel, and count four, which alleges negligent misrepresentation. The defendant moves to strike the entire complaint.
II
As mentioned, the plaintiff labels count one “Bad Faith Breach of Contract.” Such a label is confusing given that bad faith is not necessary to prove breach of contract. To add to the confusion, the plaintiff's memorandum asserts that count one alleges both breach of an implied contract and breach of the implied covenant of good faith, and thus combines two causes of action in one count.
In any event, an essential element of all these claims is the existence of an employment contract. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). Even reading the complaint in a light most favorable to the pleader, the plaintiff fails to allege this element, either expressly or by implication. The critical omission is the absence of any express agreement, or any actions by the parties that would fairly imply an agreement, concerning the nature of the contract—e.g., that it is terminable only for just cause—or the duration of the contract—e.g., that it was a contract for a specific term of years.
*2 The plaintiff's allegation that the defendant offered her a “permanent” position is insufficient. No job is truly and literally “permanent.” In the context of the complaint, the use of the term “permanent” serves only vaguely to distinguish the plaintiff's employment from the “temporary” position that she formerly held. (Complaint, paras.4, 5.) The term “permanent” thus may imply that there are more benefits available but it does not imply that the employment was only terminable by just cause or that the employment was for a specific duration. As our Supreme Court has clearly stated: “[a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). Accord Torosyan v. Boehringer Ingelheim Pharmaceuticals., Inc., 234 Conn. 1, 14, 662 A.2d 89 (1995). Accordingly, count one fails to allege either an express or implied employment contract.
III
A
In count two, the plaintiff alleges a violation of General Statutes § 31–51q, which creates a right of action against any employer who disciplines or discharges an employee on the account of the exercise of free speech rights guaranteed by the federal or state constitution.1 In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court concluded that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for [f]irst [a]mendment purposes, and the [c]onstitution does not insulate their communications from employer discipline.” Id., at 421. In Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012), our Supreme Court held that Garcetti applies to suits against private employers under § 31–51q.2 The Court clarified that Garcetti “adds a threshold layer of analysis, requiring courts to first determine whether an employee is speaking pursuant to his official duties before turning to the remainder of the analysis set forth in Pickering and Connick.” Id., at 604.3 Accordingly, the threshold question here is whether the plaintiff's speech occurred within her official duties.
The plaintiff alleges in count two that she “reported payroll discrepancies to her employer and to a private auditing body.” (Complaint, para.45.) The plaintiff also refers in count one to having identified “labor law and payroll violations and illegalities,” and incorporates that reference into count two. Although that reference is not a separate allegation of fact, but rather appears for the first time in a concluding paragraph alleging breach of contract, and there are no supporting facts describing the nature of these illegalities, the court, applying the rules governing motions to strike, will nonetheless consider these allegations as part of the plaintiff's speech in question. (Complaint, para.36.)4 As the Schumann Court stated, the task in this situation is not to determine whether the speech is within a particular employee's job description, but rather to see whether, in practical terms, the speech was “part-and-parcel of his concerns about his ability to properly execute his duties.” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 614. Measured by this practical test, the plaintiff's reports were clearly within her official duties as payroll specialist. See Ross v. Breslin, 693 F.3d 300, 308 (2d Cir.2012) (payroll clerk reporting payroll irregularities acting pursuant to her job duties). There is no allegation, for example, that the plaintiff reported these alleged violations to any public agency. See id. Instead, the plaintiff alleges only that she reported her concerns to her employer and a private auditing body—an avenue unavailable to a nonemployee citizen. Therefore, these allegations do not satisfy the Garcetti test and the plaintiff's speech does not qualify for first amendment protection.
B
*3 The plaintiff also alleges that article first, § 4 of the Connecticut Constitution nonetheless protected her speech; (complaint, paras.43–45); and, in effect, that Garcetti does not apply under the state constitution.5 This issue is one of first impression. The court, however, “has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.” (Internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 50, 905 A.2d 1079 (2006). Therefore, before addressing the state constitutional issue, the court must determine whether the plaintiff's alleged speech satisfies the Pickering/Connick test. If it does not, then there is no need to reach the state constitutional issue.
Under Pickering/Connick, as noted, a court must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs ...” (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 666, 822 A.2d 205 (2003) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). See note 3 supra. “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ... An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community ...” (Citations omitted; internal quotation marks omitted.) DiMartino v. Richens, supra, at 666–67, 822 A.2d 205.
As discussed, in addition to alleging that she reported “payroll discrepancies,” the plaintiff alleges that she identified “labor law and payroll violations and illegalities.” Although the plaintiff provides no facts to clarify the nature of the “illegalities,” the court must construe the complaint in a light most favorable to the pleader. Doing so, the allegation of illegalities minimally suffices to raise an issue of public concern. See Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004) (illegal activity within a government agency is a matter of public concern); Li v. Canberra Industries, 134 Conn.App. 448, 457–59, 39 A.3d 789 (2012) (claim of improper and illegal activities within the company raised issue of public concern in § 31–51q case). Supporting this conclusion is the fact that the plaintiff's complaints did not concern her own job status but rather the defendant's treatment of other employees. See DiMartino v. Richens, supra, 263 Conn. at 667–69, 822 A.2d 205 (speech concerning airport security related to public issues because not motivated by personal concerns). Further, there is no allegation in the complaint that suggests that the plaintiff was disruptive in the workplace. See Schumann v. Dianon Systems, Inc., supra, at 623–24. Accordingly, the plaintiff's allegations satisfy the Pickering/Connick test, making it necessary to address the state constitutional issue.
C
*4 Our Supreme Court has twice left open the question of whether Garcetti applies under the state constitution. See Perez–Dickson v. Bridgeport, 304 Conn. 483, 498–505, 43 A.3d 69 (2012); Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 618–20. In Ozols v. Town of Madison, Docket No. 3:11–CV–01324 (SRU) (D.Conn. August 20, 2012), a federal district court in Connecticut has in essence agreed with the plaintiff's position and predicted that the Connecticut Supreme Court would find Garcetti inapplicable to the portions of section 31–51q relating to rights protected under the state constitution.6
The test for analyzing whether a state constitutional provision has a different meaning than its federal counterpart derives from State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Under Geisler, the six factors to consider are “(1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157, 957 A.2d 407 (2008).
The language of article first, section four of the state constitution is unquestionably different from, and arguably broader than, the first amendment. Article first, section 4 provides that “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Conn. Const., art. first, § 4. In contrast, the first amendment provides that “Congress shall make no law ... abridging the freedom of speech ...” U.S. Const., amend. I.
In part because of these textual differences, our Supreme Court has, on several occasions in different contexts, interpreted the free speech provisions of the state constitution more broadly than that of their federal counterpart. See Leydon v. Greenwich, 257 Conn. 318, 347–518, 777 A.2d 552 (2001) (ordinance restricting access to town park to its own residents violates both federal and broader state free speech clauses); State v. Linares, 232 Conn. 345, 377–87, 655 A.2d 737 (1995) (interpreting Connecticut free speech more broadly, but upholding constitutionality of statute regulating speech at legislative sessions). On other occasions, however, the Court has interpreted the state constitutional free speech guarantee as coextensive with that in the federal constitution. See Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984) (state constitution does not prohibit private interference with public speech); State v. Andrews, 150 Conn. 92, 96, 186 A.2d 546 (1962) (state constitution does not protect obscenity). The plaintiff points to no case in which our appellate courts have interpreted employee speech rights more broadly under the state constitution.
*5 As mentioned, in Ozols v. Town of Madison, supra, a federal district court addressed the precise question here and predicted that the Connecticut Supreme Court would hold that Garcetti does not apply under the state constitution. The Ozols court focused initially on the unique language of the state constitution and our Supreme Court's occasional interpretation of it as having a more expansive meaning. The court then relied on the policy concerns addressed in the Garcetti dissent. Finally, the court noted that employees often need more protection than that embodied in the “narrow confines of [state] whistleblower statutes;” id.; and that employers have ample protection from disruptive workers based on the provision of § 31–51q that requires plaintiffs to prove that their 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 Ozols court did not, however, apply a full Geisler analysis or discuss the Schumann decision.
The next factor is the law of sister states. Of the state courts that have considered the question, all of them have held that, under their own state constitutions, the Garcetti rule applies. See Kaye v. Board of Trustees of the San Diego County Law Library, 179 Cal.App.4th 48, 56–59, 101 Cal.Rptr.3d 456 (2009); Newell v. Runnels, 407 Md. 578, 602 n. 11, 967 A.2d 729 (2009); Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249, 256–58 (S.D.2006). The wording of these state constitutional free speech clauses is virtually identical to that in our state constitution.7
The history of article first, § 4 reveals that the “framers of our constitution contemplated vibrant public speech, and a minimum of governmental interference ...” State v. Linares, supra, 232 Conn. at 345, 386, 655 A.2d 737. On the other hand, there is no indication that the framers even contemplated freedom of speech in places of employment, which appears to be essentially a modern concept. See DiMartino v. Richens, supra, 263 Conn. at 665, 822 A.2d 205 (“Under [the] earlier view, government employment was seen as a privilege, rather than a right, and conditions to employment that interfered with employees' freedom of speech generally were held to be constitutional because the employees ‘are at liberty to retain their beliefs and associations and go elsewhere.’ ”) (quoting Adler v. Board of Education, 342 U.S. 485, 492, 72 S.Ct. 380, 96 L.Ed. 517 (1952)).
Review of the foregoing factors appears to present a balance generally tipping in favor of the defendant's position. What resolves the lingering uncertainty is the Supreme Court's discussion in Schumann of the relevant policy concerns, not only because that discussion is an indication of where the Court stands on the issue but also because of the logic of its analysis. The Court cited with seeming approval the reasoning of the Garcetti majority that “[g]overnment employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services ... Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 602 (citing Garcetti v. Ceballos, supra, 547 U.S. at 418–19). The Court noted the Garcetti Court's concern that interpretation of the first amendment not empower employees to “constitutionalize the employee grievance.” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 603 (citing Garcetti v. Ceballos, supra, 547 U.S. at 420). Then, in applying Garcetti under § 31–51q, the Court added that to give private sector employees greater workplace free speech rights than those afforded to their public sector counterparts would have an “incongruous effect.” Schumann v. Dianon Systems, Inc., supra, at 607. The Court also observed that applying Garcetti to claims brought under § 31–51q “keeps courts from the constitutionally untenable task of, in essence, having to choose sides in a work-related viewpoint dispute between two private actors.” Id., at 610.8
*6 Thus, in Schumann, our Supreme Court identified important policy concerns in the application of the Garcetti rule. If Garcetti did not apply under the state constitution, a litigant could easily avoid these policy considerations merely by citing the state constitution instead of the federal constitution in raising his or her claim. In such a way, employees could undermine the balance struck by our Supreme Court in Schumann.
In any case, interpretation of the state constitution to include the Garcetti test would not leave employees without recourse to express their views or to bring wrongdoing to the attention of their employer or the public. Garcetti preserves the right of employees to speak as citizens on matters of public concern either within or outside the workplace. Our statutes also protect whistleblowers who make a report to a public body of corruption, unethical practices, or illegalities, both of other public agencies; General Statutes § 4–61dd (2012); and of private business. See General Statutes § 31–51m. See also General Statutes § 33–1336 (security law violations of corporations).9 Employees discharged for reporting violations of public policy may also have other remedies, such as an action for wrongful discharge. See Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 157–60, 745 A.2d 178 (2000).
Without taking away any of these employee protections, the court concludes that the speech of an employee pursuant to his official job duties is no more a matter of state constitutional dimension than it is under the federal constitution. Accordingly, the court grants the motion to strike count two of the complaint.

...

*8 The court grants the motion to strike in its entirety.
It is so ordered.
All Citations
Not Reported in A.3d, 2013 WL 1189383, 55 Conn. L. Rptr. 637
Footnotes
1
Section 31–51q provides: “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. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer.”
2
The plaintiff in Schumann spells his last name with two “n”s, and is unrelated to the undersigned.
3
By Pickering and Connick, the Court was referring to its traditional rule that, in applying the constitution, a court must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs ...” (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 666, 822 A.2d 205 (2003) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Further, “if a government employee's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary ... to scrutinize the reasons for [his or] her discharge.” DiMartino v. Richens, supra, at 666, 822 A.2d 205 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Thus, under the traditional Pickering/Connick rule, the federal constitution “safeguards statements that address a matter of public concern, but [provides] no security with respect to statements that address wholly personal matters.” Daly v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999).
4
The plaintiff provides several examples of over and underpayment of employees that she reported. The plaintiff also alleges that an audit in which she assisted uncovered over 100 “payroll issues.” (Complaint, paras.10–17.) Nevertheless, the plaintiff fails to identify any specific illegality.
5
Although the plaintiff's brief mentions article first, § 5 of the state constitution, the only specific section of the state constitution alleged by the plaintiff in the complaint is article first, § 4.
6
In Aumueller v. Optimus Management Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV10–6010073 (September 10, 2012, Schuman, J.), the undersigned found, after a prejudgment remedy hearing, that there was probable cause to believe that Garcetti did not apply under the state constitution. The court did not resolve the issue on the merits.
7
Cal. Const., art. I, § 2, subd (a) (“[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”); Md. Declaration of Rights, art. 40 (“every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.”); S.D. Const., art. VI, § 5 (“[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”)
8
Six of the Justices shared these views on the applicability of Garcetti to private employment under § 31–51q. Justice Zarella, concurring, would have gone further and found that § 31–51q “extends protections to private sector employees only from discipline or discharge as a result of the exercise of their constitutionally guaranteed free speech rights outside of the workplace.” Id., at 638 (Zarella, J., concurring).
9
Count two of the original complaint in this case alleged a cause of action under General Statutes § 31–51m, one of the whistleblower statutes cited above. The defendant moved to strike on the ground that the plaintiff had not reported any complaints to a “public body,” as required by § 31–51m(b). The plaintiff then amended her complaint and substituted § 31–51q for § 31–51m.
10
On the element of injurious or detrimental reliance, the plaintiff alleges: “Cabrera relied on that promise made to her. She gave up other opportunities that arose with the Cigna, The Hartford, ADT, Aetna, and other employers.” (Complaint, para.21.) In view of the decision above, the court does not reach the issue of whether this allegation sufficiently pleads detrimental reliance.