Opinion
HHDCV176074305S
01-03-2020
William L. Roach v. Transwaste, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE DEFENDANT’S POST-TRIAL MOTIONS
Cesar A. Noble Judge, Superior Court
This action for wrongful discharge in violation of public policy and General Statutes § 31-51q came before the court for trial by jury, whereupon the jury returned a verdict in favor of the plaintiff, William Roach, as against the defendant, Transwaste, Inc. The defendant moved to set aside the verdict and for judgment notwithstanding the verdict. For the following reasons the motions are denied.
The following facts adduced by the parties at trial are relevant to this decision. The plaintiff possesses a commercial driver’s license and was employed as a truck driver by the defendant from 2013 through 2015. The defendant is a trucking company located in Wallingford, Connecticut, that specializes in the transportation and disposal of special and hazardous waste. The owner and president of the defendant is John Barry. The plaintiff testified that he was terminated by Barry after raising safety complaints to the defendant.
In July of 2015, the plaintiff complained of a problem with the steering link while driving in Pennsylvania. Barry denied the plaintiff’s request to buy a replacement and ordered the plaintiff to drive back to Wallingford. This was unsafe because the failed steering link, one of two, controlled the steering of one of the two front tires. The next day he was told not to show for work and he found out that his tractor had been driven, unrepaired, by another driver. The plaintiff was not paid for the day he missed. In August of 2015, while in Pennsylvania, a trailer he was driving suffered a blown tire. Barry denied the plaintiff’s requests to buy a replacement tire despite the plaintiff’s expression of concern that it was unsafe to drive the loaded trailer without the normal two-tire combination at the end of the axel. The plaintiff was nevertheless ordered to complete his trip with only one tire rather than the two tires with which he had been driving. Another incident occurred in August of 2015 in which the plaintiff complained over the course of weeks of a problem with vibration in his tractor and was told by Barry that it had been inspected, there was nothing wrong with it and he should continue to drive it. Ultimately, the plaintiff refused to drive the tractor and after continued complaints was finally told to take it to dealer who diagnosed it as failure of the universal joint. On November 10, 2015, one tire of a two-tire assembly on the plaintiff’s tractor blew. He pled with the office manager to buy a tire. She told him that Barry did not like to buy tires on the road. Ultimately, she told him to buy a used tire and he did so. Finally, on November 16, 2015, the plaintiff noticed a check engine light that appeared approximately twenty miles after he left the defendant’s location in the early morning hours to start a trip. He returned to the defendant’s garage and left the tractor there with the engine running so that the mechanic would be able to diagnose the problem. The plaintiff locked the truck before he left the defendant’s yard and returned home. He was fired that day without being given a reason. Barry testified at trial that he terminated the plaintiff because it was unsafe to permit the engine to idle for several hours.
The plaintiff testified that he was out of work for about six months. He was paid by the mile at a rate of .46 per mile and he averaged a little better than 2, 000 miles per week. He also testified that during the two years he worked for the defendant he drove approximately 230, 000 miles. At the conclusion of the plaintiff’s case, the defendant moved for a directed verdict. The court denied the motion.
The jury returned a verdict for $24,288.00. The jury’s responses to interrogatories revealed that they found that the defendant terminated the plaintiff in retaliation for his complaints about safety issues, that there was a causal relationship between protected speech and his discharge, his speech addressed serious wrongdoing or threats to the public’s health and safety on a matter of public concern and that his interest in the speech outweighed the defendant’s interest in promoting the efficient performance of services. As to damages, the jury’s response to the interrogatories disclosed that they found his lost wage was for a period of 24 weeks. The jury calculated damages by multiplying an average mileage of 2, 200 per week at a rate of pay of .46 per mile for total damages of $24,288.00.
The defendant’s motion for judgment notwithstanding the verdict, Entry No. 134 as corrected by Entry No. 140, is premised on the assertion that there was insufficient evidence for the jury to find: (1) that the defendant terminated the plaintiff’s employment in violation of public policy; (2) that the plaintiff was terminated in violation of § 31-51q and (3) that the plaintiff met his burden of proof to show a loss of damages for lost wages. By separate motion, Entry No. 138, the defendant asserts the court incorrectly defined the causal relationship between protected speech and the plaintiff’s termination as an inquiry into whether the termination was "substantially motivated by [the plaintiff’s] complaints."
A motion for judgment notwithstanding the verdict is a renewal of a motion for a directed verdict. MacDermid, Inc. v. Leonetti, 328 Conn. 726, 745, 183 A.3d 611 (2018). Accordingly, the court applies the same standard to both. Haynes v. Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014). "Directed verdicts are not favored." Bagley v. Adel Wiggins Group, 327 Conn. 89, 102, 171 A.3d 432 (2017). This is so because "[l]itigants have a constitutional right to have factual issues resolved by the jury ... This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded men passed upon by the jury and not by the court." Munn v. Hotchkiss School, 326 Conn. 540, 575, 165 A.3d 1167 (2017). A trial court’s inquiry on a motion to set aside a verdict is limited to "whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict. If the jury could reasonably have reached its conclusion, the verdict must stand." Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 754, 189 A.3d 587 (2018). This court is ever mindful that it does not sit as the seventh juror when it reviews the sufficiency of the evidence. Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 657, 904 A.2d 149 (2006). Instead, a trial court may set aside "a verdict only when a jury could not reasonably and legally have reached any other conclusion." Bagley v. Adel Wiggins Group, supra, 327 Conn. 102.
The plaintiff’s first claim was one under the common law, that is, a wrongful discharge in violation of public policy. This claim is based on a tort actionable when an otherwise at will employee is terminated for a "demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 407, 142 A.3d 227 (2016). The defendant does not dispute that termination for complaints related to the safety of vehicles transporting hazardous waste on our highways constitutes an important violation of a public policy. Rather, the defendant asserts that there was insufficient evidence before the jury for it to conclude that there was a causal connection between his safety complaints and his termination.
The plaintiff’s second claim is pursuant to statute. "Section 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees’ exercise of enumerated constitutionally protected rights." D’Angelo v. McGoldrick, 239 Conn. 356, 360, 685 A.2d 319 (1996). "The elements that a plaintiff must prove in order to establish a violation of § 31-51q are: (1) that he engaged in constitutionally protected speech, (2) that his employer took an adverse action against him, (3) that there was a [causal] relationship between the protected activity and the adverse action and that (4) the exercise of his [constitutional] rights did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer." (Citations omitted; internal quotation marks omitted.) Matthews v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. HHDCV116019959S , 2019 WL 1436656, at *19 (February 7, 2019, Noble, J.) As with the common-law unlawful discharge claim, the defendant asserts that the plaintiff failed in his proof that he was terminated on account of his exercise of speech protected by the first amendment to the United States Constitution or an equivalent provision of the Connecticut constitution. While it is true that the first amendment to the United States constitution does not protect the plaintiff, an employee of a private company, from discipline by his employer for speech made in the course of his employment duties; Schumann v. Dianon Systems, Inc., 304 Conn. 3585, 598, 43 A.2d 111 (2012); such speech is protected by article first, § § 3, 4 or 14 of the Connecticut constitution, through § 31-51q, where the speech is on a matter of public concern and implicates threats to health and safety. Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 123 A.3d 1212 (2015). In the present case, the order by Barry to drive a tractor trailer transporting hazardous waste on a single tire rather than a double tire combination and to drive with a failed steering link implicated a threat to health and safety of the public on the highway. Similarly, any complaints about the safety of the commercial motor vehicle the plaintiff was driving implicates the health and safety of the public.
The defendant asserts, correctly, that in the present case the testimony of the plaintiff is insufficient to establish directly the grounds for his termination. On direct examination, he responded to the question of what was the real reason for his termination with "I can’t really say what’s on my mind. What I feel is discriminatory though. That certain people at that job can smash up trucks, have tow-aways out of state, steal and don’t get terminated." Direct evidence, however, is not the only type of evidence properly considered by the finder of fact. Jurys are instructed universally, as in the present case, on the propriety of finding facts through circumstantial evidence. Indeed, it is a bedrock principle of our fact finding jurisprudence that there "is no distinction between direct and circumstantial evidence so far as probative forces is concerned. Triers of fact must often rely on circumstantial evidence and draw inferences from it. Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. In short, the ... fact finder, may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted, internal quotation marks omitted.) Keeley v. Ayala, 328 Conn. 393, 419-20, 179 A.3d 1249 (2018). The use of circumstantial evidence is common in employment cases. This is so because employers "are unlikely to leave a ‘smoking gun’ attesting to a discriminatory intent, a victim of discrimination is seldom able to prove his claim by direct evidence, and is usually constrained to rely on circumstantial evidence." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Such circumstantial evidence is found in the present case by the temporal proximity of the plaintiff’s expression of concern about vehicle safety and his termination. The plaintiff complained of a failed steering link in July of 2015, "singling out" a tire in August of 2015, a vibration ultimately found to be a failed universal joint, his purchase of a used tire on the road in November and his return of a vehicle with a check engine light the day of his termination, all within months and some literally days, before his termination. "A retaliatory purpose can be shown indirectly by timing protected activity followed closely in time by adverse employment action." Vega v. Hempstead Union Free School District, 801 F.3d 72, 90 (2d Cir. 2015). "Though this Court has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, we have previously held that five months is not too long to find the causal relationship." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). The temporal proximity between the plaintiff’s protected speech and his termination provide a factual basis upon which the jury may have concluded that his termination was caused by his safety complaints. This court’s role is not to sit as a thirteenth juror but rather must defer to the jury’s assessment of the credibility of the witnesses where sufficient evidence to support its verdict is present. State v. Bush, 325 Conn. 272, 305, 157 A.3d 586 (2017).
The defendant also moved for judgment notwithstanding the verdict on the grounds that the plaintiff did not meet his burden of proof to show a loss of damages. Specifically, the defendant asserts that the plaintiff offered only vague and speculative evidence relative to the damages, that is lost wages, that he suffered in consequence of his termination. It is true that "[l]oss of earnings capacity must be supported by more than speculation, [nevertheless it] need not be established with exactness as long as the evidence affords a basis for a reasonable estimate by the jury." (Citations omitted, emphasis applied, internal quotation marks omitted.) Duncan v. Mill Management. Co. of Greenwich, 308 Conn. 1, 36, 60 A.3d 222 (2013).
The defendant also moved for a remittitur on the same grounds as the motion for judgment notwithstanding the verdict. Because the court finds sufficient grounds for a damages award, the court also denies the motion for remittitur.
In the present case, the plaintiff provided sufficient evidence that the jury was able to, and did, arrive at a reasonable estimate of his lost wages. The plaintiff testified that he was paid 46 cents per mile and drove a little a better than 2, 000 miles per week. Trial Transcript, February 5, 2019, p. 107. Over a two-year period he drove "230-some-odd-thousand miles." Id. He was out of work "[a]bout six months." Id., p. 109. The jury found, as indicated on its responses to the jury interrogatories, that the plaintiff was owed for 2, 200 miles per week at a rate of .46 per mile over a period of 24 weeks for a total of $24,288. The jury reasonably and logically reached these conclusions based on a division of 230, 000 miles over two years by the number of weeks in two years, 104, to arrive at an estimate of weekly mileage of approximately 2, 211 miles rounded to the awarded figure of 2, 200. The latter figure, when multiplied by .46 per mile yields a weekly income of $1,012. In turn this number may be multiplied by 24 weeks- an estimate of 4 weeks per month for 6 months- to arrive at the jury’s award of damages in the amount of $24,288. While the calculations so inferred from the testimony and jury interrogatories are not reflective of absolute precision they nevertheless arrive at a reasonable estimate derived from the trial evidence.
Because the court concludes that the jury could reasonably and legally have reached the verdict that it did, the motion for judgment notwithstanding the verdict is denied in all respects.
The defendant also asserts that the court improperly instructed the jury on the necessary causal relationship between the plaintiff’s protected speech and his discharge. The court’s charge instructed the jury that it in order to find causation it would have to find that the plaintiff’s speech "was substantially motivated by his complaints. If you do not find that his protected speech was a substantially motivating factor in his discharge you must find in favor of the defendant." It repeated this definition in summarizing the elements the jury must find in order for the plaintiff to recover. "Again, in order for the plaintiff to recover, you must find that the plaintiff has proven by a fair preponderance of the evidence: (1) that his complaints addressed serious wrongdoing or threats to health and safety on a matter of public concern; (2) the employee’s interest in the speech outweighs the employer’s interest in promoting the efficient performance of its work; (3) that his discharge was substantially motivated by his complaints, and (4) the speech did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer." The plaintiff argues that the use of the term "substantially motivating factor" was legally erroneous and caused confusion. The court notes that the phrase "substantial motivating factor" was used only in conjunction with its instruction on a violation of § 31-51q and not on the claim of a violation of the common law. Thus, any error is harmless because the jury award is also based on a common-law violation of public policy by wrongful discharge. The court, nevertheless, addresses the defendant’s assertion.
In Schnable v. Tyler, 230 Conn. 735, 646 A.2d 152 (1994), our Supreme Court considered an appeal in an action by a police officer of a violation of his free speech rights under the first amendment to the United States constitution. The court employed a definition of causation that involved a determination of whether the speech was "at least a substantial or motivating factor in the adverse employment action." Id., 755. The similar "substantially motivating factor" phrase is employed by the federal courts to show a causal connection in first amendment retaliation claims. See Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) ("To demonstrate a causal connection a plaintiff must show that the protected speech was a substantial motivating factor in the adverse employment action"); Cotarelo v. Village of Sleepy Hollow Police Department, 460 F.3d 247, 251 (2d Cir. 2006) ("[T]he causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action"); and Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). Because Connecticut courts look to federal law for guidance on interpreting state employment discrimination law; Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453, 459 (2015); it is appropriate to adopt the "substantially motivating factor" definition of causation used by the federal court in the context of § 31-51q claims. Accordingly, the court denies the defendant’s motion to set aside the verdict on this ground.
For the foregoing reasons, the court denies motions ##134, 138 and 139.
THE COURT