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Bailey v. Grocery Haulers Inc.

United States District Court, D. Connecticut

March 16, 2017



          Janet Bond Arterton, U.S.D.J.

         Plaintiff Andrew Bailey brings this action against Defendant Grocery Haulers, Inc. ("GHI") alleging wrongful discharge in violation of § 31-49 of the Connecticut General Statutes (Count One) and employment discrimination in violation of §§ 46a-60 and 46a-81c[1] of the Connecticut General Statutes (Count Two). Defendant moves [Doc # 38] to dismiss the Complaint in its entirety.

         I. Facts Alleged[2]

         Beginning in 2006 Plaintiff was employed by Defendant as a tractor trailer truck driver. (Second Amended Complaint ("Am. Compl") [Doc. # 33] ¶¶ 1-2.) Plaintiffs position required him to hold a commercial driver's license, which in turn required him to follow the rules and regulations established by the United States Department of Transportation. (Id. ¶¶ 2-3.)

         On October 2, 2014, after Plaintiff had been driving and on duty over nine hours without adequate rest, Defendant asked him "to drive to East Brunswick[, ] New Jersey from Connecticut despite the fact that the assignment would put the Plaintiffs driving time in excess of the United States Department of Transportation rules and regulations for on duty time and drive time." (Id. ¶ 6.) Plaintiff refused the assignment and was subsequently discharged by Defendant, purportedly because of this refusal.[3] (Id.)

         Plaintiff further alleges that employees and agents of Defendant, specifically a new dispatcher hired by Defendant in June 2014, made offensive comments to Plaintiff because they perceived him to be bisexual. (Id. ¶ 9 of Count Two.) These individuals harassed and treated Plaintiff differently than all other employees. (Id. ¶ 10 of Count Two.) Before filing this lawsuit, Plaintiff filed an administrative complaint charging Defendant with violating Conn. Gen. Stat. § 46a-60, 46a-81a and Title VII of the Civil Rights Act of 1964 with the State of Connecticut Commission on Human Rights and Opportunities (the "CHRO"), which granted him a release of jurisdiction. (Id. ¶ 12.)

         The following additional facts are not included in the Complaint, but are part of the record for this motion to dismiss.[4] Plaintiff was a member of a union and party to a collective bargaining agreement (the "CBA"), which document is integral to the Complaint.[5] See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) ("[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment."); Local 1035, Int'l Bhd. of Teamsters v. Pepsi-Cola Allied Bottlers, Inc., 83 F.Supp.2d 301, 305 n.4 (D. Conn. 1999) (On a motion to dismiss, a court may consider "'integral' agreements and documents ... even though they are not otherwise attached or referenced in the Complaint" such as a CBA which "defines the rights, duties and obligations by and among the named parties to [the] action and [is] integral to the Amended Complaint.").

         The Court also takes judicial notice of the complaints Plaintiff filed with CHRO. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) ("In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.) (emphasis added); Johnson v. Cty. of Nassau, 411 F.Supp.2d 171, 178 (E.D.N.Y. 2006) (Court "may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.") (internal quotation marks and citations omitted).

         On December 16, 2014, Plaintiff filed a complaint with the CHRO against the union, claiming that the union failed to represent him at an arbitration because of his race (Jamaican) and color (Black). (Ex. A-5 (Union CHRO Complaint) to Def.'s Mot. to Dismiss.) On that same date, Plaintiff filed a complaint with the CHRO against Defendant, claiming he was terminated on the basis of his sexual orientation (perceived bi-sexual) in violation of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §§ 46a- 60(a)(1), 46a-81c, and under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e and the Civil Rights Act of 1991 (the "CHI CHRO Complaint"). (See Am. Compl. ¶ 12; Ex. A-6 (GHI CHRO Complaint) to Def.'s Mot. to Dismiss.)

         II. Discussion[6]

         A. Count One

         Count One of Plaintiffs Complaint alleges "Defendant's discharge of the Plaintiff was wrongful and in violation of public policy... [as] reflected by Connecticut General Statutes Section 31-49, which requires employers to provide employees with safe work places. (See Am. Compl. ¶ 8 Count One.) Defendant maintains that Plaintiffs claim for wrongful discharge is a common law claim, which must fail because Plaintiff has not pled "that he was an at-will employee whose discharge violated the public policy embodied by Conn. Gen. Stat. § 31-49." (Def.'s Mot. to Dismiss at 22.)

         It is well established under Connecticut law that "contracts of permanent employment... are terminable at will, meaning no just cause need be established." Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474 (1980). However, Sheets carved out an exception to that rule, recognizing that "public policy imposes some limits on unbridled discretion to terminate the employment of someone hired at will." Id. at 476. Thus, Sheets recognized a common law cause of action for wrongful discharge in situations where the reason for the discharge involved impropriety "derived from some important violation of public policy." Id., at 475. This common law cause of action was created because "the employee [would] otherwise [be] without remedy and . . . permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648 (1985) (internal quotations marks and citations omitted).

         Therefore, an at-will employee may bring an action under Connecticut common law for wrongful discharge when the termination of his employment contravenes public policy and he would otherwise be without a remedy. See e.g., Anderson v. Coca Cola Bottling Co., 772 F.Supp. 77, 82 (D. Conn. 1991). This cause of action is only available to workers who could be discharged at will. Sheets, 179 Conn, at 475; see also Tomlinson v. Bd. of Educ. of City of Bristol, 226 Conn. 704, 734, 629 A.2d 333, 349 (1993) (citing D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987) ("As an exception to the general rule that contracts of employment are terminable at will, the right to recover in tort for wrongful discharge extends only to employees at will.") (internal quotation marks omitted). The Connecticut Supreme Court later clarified that the public policy serving as an exception to the at-will employment doctrine "refer[s] generally to violations of public policy as expressed in explicit statutory or constitutional provisions, or judicial decisions." Faulkner v. United Techs. Corp., Sikorsky Aircraft Div., 240 Conn. 576, 585 (1997).

         Here, Plaintiffs wrongful discharge claim is based upon Section 31-49, codified in 1902.[7] In Parsons v. United Technicians Corporation, Sikorsky Aircraft ...

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