Opinion
No. CV-06-5006022
October 8, 2008
MEMORANDUM OF DECISION
In this matter, the plaintiff, James Dax, has sued his former employer, Connecticut Children's Medical Center (hospital), alleging that the defendant violated his rights under General Statutes §§ 31-51m, 31-51q and 31-290a by terminating his employment in retaliation for complaining to state officials about licensing issues and for filing a workers' compensation claim. Before this court is the defendant's motion for summary judgment and memorandum of law in support, as well as the plaintiff's memorandum of law in opposition. The court heard argument on June 23, 2008.
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and, if so, whether the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. See also Mozeleski v. Thomas, 76 Conn.App. 287, 289, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "`In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Mozeleski v. Thomas, supra, 289-90, quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-59, 783 A.2d 993 (2001). "A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
The court finds that, for purposes of this motion for summary judgment, the following facts are undisputed.
The defendant hired the plaintiff as a heating, ventilation and air conditioning (HVAC) technician on April 4, 2004. From the outset of his employment until his injury in January 2006, the plaintiff complained to the defendant that, as the holder of an S-1 HVAC license, he was required to supervise and maintain primary responsibility for all HVAC work at the hospital, and that he was required by Connecticut law to supervise the work of two other HVAC technicians at the hospital. Instead, he was being supervised by a HVAC technician who held an inferior S-2 license. As a result of the plaintiff's communications with Richard Hurlburt of the state department of consumer protection, the defendant made various changes in its staffing in order to ensure compliance with license requirements. Those changes, however, did not result in the plaintiff's designation as the HVAC "contractor of record," and as such, the plaintiff filed formal complaints on January 14, 2006, with the state departments of consumer protection, public health and labor.
On January 15, 2006, the plaintiff sustained an injury to his right shoulder while shoveling snow at the hospital. Having been referred for treatment and evaluation, the plaintiff received information from the hospital regarding his right to take leave under the federal and state Family Medical Leave Acts. As such, he did not return to work following his injury, and subsequently, on April 15, 2006, the plaintiff filed a formal claim for workers' compensation benefits.
The parties do not dispute that the defendant asked the plaintiff to return to work after the defendant received a letter from the plaintiff's physician indicating that the plaintiff could return to work as long as he did not use his right arm. In fact, the defendant had identified a light duty security position for the plaintiff that would not require the use of his right arm, and informed him he should report to work on April 13, 2006. In response, the plaintiff refused, asserting that he felt it was not safe for him to drive to work with one arm. As a result of the plaintiff's refusal to return to work, the defendant hired an investigator to observe the defendant in the last two weeks of April 2006. The investigator subsequently produced videotaped recordings of the defendant "hoisting a long wooden plank on his right shoulder and using both arms to lift the plank above his head; using his arms and back to loosen rock and debris that he tossed into a backhoe bucket; carrying a board under his right arm, pulling rope to tie the board to his van, and using his right arm to do so." He was also seen and videotaped driving his van on the roadways and on Interstate 91, traveling at comparable speeds to other drivers and changing lanes with no difficulty. This court also viewed striking videotape recordings showing the plaintiff with no apparent difficulty, using both right and left arms to haul huge and unwieldy pieces of debris and lumber, bending and removing large stones and operating a backhoe. Significantly, the plaintiff does not dispute that that these videotapes accurately show him engaged in these activities.
II. Discussion A. Retaliation under General Statutes §§ 31-51m and 31-51q
General Statutes § 31-51m provides in relevant part: "No employer shall discharge . . . any employee because the employee . . . reports . . . a violation or a suspected violation of any state or federal law or regulation . . . to a public body." General Statutes § 31-51q provides in relevant part: "Any employer . . . who subjects any employee to . . . 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 . . . shall be liable to such employee for damages, and for reasonable attorneys fees . . ."
"Section 31-51q makes it illegal for an employer to discipline an employee in retaliation for the employee's exercise of rights under § 31-51m. Section 31-51m, in turn, protects the employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation." Arnone v. Enfleld, 79 Conn.App. 501, 506, 507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).
"In an action under § 31-51m(b), [the] plaintiff has the initial burden under McDonnell Douglas Corp. [v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 187, 36 L.Ed.2d 668 (1973)] . . . of proving by a preponderance of the evidence a prima facie case of retaliatory discharge. See LaFond v. General Physics Services Corp., 50 F.3d 165, 172 (2d Cir. 1995) (holding that Connecticut courts would apply federal employment discrimination standards to a claim of retaliatory discharge under § 31-51m). This consists of three elements: (1) that [the plaintiff] engaged in a protected activity as defined by § 31-51m(b); (2) that [the plaintiff] was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge. Ritz v. East Hartford, 110 F.Sup.2d 94, 98 (D.Conn. 2000); see also Beizer v. Dept. of Labor, 56 Conn.App. 347, 355-56, 742 A.2d 821 (in retaliatory discharge actions, Connecticut courts look to federal courts to determine allocations of burdens of proof), cert. denied, 252 Conn. 937, 747 A.2d 1 (2000). Once the plaintiff has made a prima facie showing of a retaliatory discharge, the defendant is obligated to produce evidence that, if taken as true, would permit the conclusion that there was a nonretaliatory reason for the termination of employment. Ritz v. East Hartford, supra, 100. If the defendant provides a legitimate and nonretaliatory reason for the discharge, the plaintiff must offer some significantly probative evidence showing that the defendant's proffered reason is pretextual and that a retaliatory intention resulted in his discharge." (Internal quotation marks omitted.) Arnone v. Enfield, supra, 79 Conn.App. 507.
"Most often, retaliation is a distinct and independent act of discrimination, motivated by a discrete intention to punish a person who has rocked the boat by complaining about an unlawful employment practice." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 708, 900 A.2d 498 (2006).
The defendant asserts that the plaintiff has failed to proffer evidence from which a fact finder can infer a causal connection between the plaintiff's protected activities, including his complaints and reports to the department of consumer protection for licensing improprieties, and his discharge. This court agrees. In his brief, the plaintiff has simply not addressed this causation element with respect to either the law or the evidence. Moreover, even if the court could find a causal connection between the plaintiff's protected activities and his discharge, the defendant has met its burden of production with respect to offering evidence of a legitimate, nonretaliatory reason for its discharge. As noted above, the plaintiff must then offer significantly probative evidence that the defendant's discharge is pretextual, but again has failed to do so.
Instead, challenging summary judgment based solely on the claim that material facts are in dispute, the plaintiff focuses overwhelmingly on defending his conduct after having been caught on videotape working with his right arm and driving. While he does not dispute that he appears perfectly healthy and physically able, he argues that the attached medical records are objective proof of the verity of his disability, and asserts that the strength of his pain medications allowed him to engage in such rigorous activity, although against medical advice. In this court's view, however, this posture misapprehends what is a material fact for purposes of summary judgment.
As noted earlier, a material fact is simply one which will make a difference in the result of a case. Under the relevant law, the defendant was required to produce evidence indicating a legitimate, nonretaliatory reason for its discharge and did so. Their evidence indicates that they terminated the plaintiff's employment after having learned that the plaintiff was engaging in physical activities where he freely used his right arm, even though he refused to come to work due to injury to that arm. Even if it were true that the plaintiff was acting against medical advice or that he was on medication that obviated the pain for limited periods of time, this evidence does not give rise to an inference that the defendant's discharge was unreasonable, inappropriate or suspect. Moreover, the plaintiff's assertions in two sentences of a conclusory and self-serving affidavit that he was suspicious of the defendant's motives in creating the security job, and that it was a "pre-text and set-up" to get him back to work only to later terminate him for whistle-blowing activities, are wholly inadequate to meet his burden. None of this evidence constitutes significantly probative evidence that would give rise to an inference that the reasons for defendant's discharge of the plaintiff were pretextual and that his discharge was in retaliation for his reporting activities.
B. Retaliatory discharge under General Statutes § 31-290a
General Statutes § 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised his rights afforded to him pursuant to the provisions of this chapter."
Courts apply a similar analysis to retaliatory discharge claims for filing workers' compensation benefits as they do for claims of retaliatory discharge for whistle-blowing. "The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy [his] burden of persuading the factfinder that [he] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.) Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 710-11, 708 A.2d 643, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994).
"In order to establish a prima facie case under General Statutes § 31-290a, the plaintiff bear[s] the initial burden of demonstrating discrimination by a preponderance of the evidence . . . The plaintiff must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employee because [he or she] had exercised [his or her] rights under the Workers' Compensation Act . . . Without some proof of an improper motive, the plaintiff['s] case must fail." (Citations omitted.) Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991).
As in the analysis under §§ 31-51m and 31-51q, this court finds no argument or evidence in the plaintiff's brief which either gives rise to an inference of unlawful discrimination because he filed a workers' compensation claim or allows a factfinder to find that the employer's nonretaliatory reason is either unworthy of credence or motivated by discrimination.
For the foregoing reasons, the court finds in favor of the defendant and grants the motion for summary judgment.