Violette v. Catalyst Solutions, LLC

          MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO DISMISS (ECF NO. 18)

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE.

         Preliminary Statement of the Case

         The Plaintiff, Mark Violette, brings this action against the Defendant, Catalyst Solutions, LLC, alleging wrongful termination in violation of Section 31-51q of the Connecticut General Statutes^[1] (Count One) and wrongful termination in violation of public policy (Count Two). (ECF No. 1-1.) The Defendant moves to dismiss the Plaintiff's Complaint in its entirety. (ECF No. 18.) For the following reasons, the Defendant's Motion is GRANTED in part and DENIED in part.

         Facts Alleged

         The Defendant, a property management company, hired the Plaintiff in December 2017 to serve as a maintenance supervisor for the Defendant's property at 198-222 South Marshall Street in Hartford. (ECF No. 1-1, ¶¶ 3-5.) There, the Plaintiff oversaw all maintenance and residential repairs. (Id. at ¶ 5). In March 2018, the Defendant instructed the Plaintiff to install gas-fired hot water heaters on the property. (Id. at ¶ 6.) The Plaintiff “understood that to install such hot water heaters in the State of Connecticut, a professional license was required.” (Id. at ¶ 8.) The Plaintiff did not possess the requisite license. (Id. at ¶ 9.) The Plaintiff contacted Hartford's licensing department, which confirmed that a professional license was required to install gas-fired hot water heaters. (Id. at ¶¶ 10-11.) The Plaintiff thereafter refused to install the heaters.

         Later that month, the Plaintiff spoke with the Defendant's Property Manager, Nancy Samarco, and Manager/Vice President, Marci Carbaugh. (Id. at ¶¶ 13-14.) The Plaintiff was provided with a “Final Written Warning” - which contained “falsified accusations which were backdated to March 15, 2018” - and then “expressly terminated.” (Id. at ¶¶ 15-16.) The Defendant “claimed that such termination was for not completing tasks, including not installing water heaters[.]” (Id. at ¶ 17.) Although the Plaintiff “expressly informed” Samarco and Carbaugh that a professional license was required, (id. at ¶ 18), Carbaugh stated that the Plaintiff was “expected to perform that type of work, ” (id. at ¶ 19.) Samarco told the Plaintiff that another employee of the Defendant had asked her, “What are the chan[c]es of an inspector coming in here?” (Id. at ¶ 20.)

         Standard of Review

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must determine whether the Plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts all of the Complaint's factual allegations as true when evaluating a motion to dismiss. Id. at 572. The Court must “draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant [a] defendant[']s motion to dismiss.” Scott v. Town of Monroe, 306 F.Supp.2d 191, 198 (D. Conn. 2004). In general, the Court's review on a motion to dismiss pursuant to Rule 12(b)(6) “is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

         Applicable Law

         Count One

         In Count One, the Plaintiff alleges a violation of § 31-51q insofar as he was terminated for challenging the directive that he install gas-fired hot water heaters without a license. He alleges that in so doing, he was exercising “his rights under United States and Connecticut Constitutions.” (Id. at ¶ 22.) Accordingly, the Court's analysis will be guided by both the First Amendment and the Connecticut Constitution, as discussed below.

         First Amendment

         In Schumann v. Dianon Systems, Inc., 304 Conn. 585, 598 (2012), the Connecticut Supreme Court concluded that the holding of the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), that speech pursuant to a public employee's official job duties is not protected by the First Amendment, applies to claims brought pursuant to § 31-51q against a private employer. The Connecticut Supreme Court further observed that Garcetti requires courts to determine, in the first instance, whether an employee is speaking pursuant to his official duties before turning to the remainder of the First Amendment analysis.^[2] Schumann v. Dianon Systems, Inc., 304 Conn. at 604. “[W]hen … employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Garcetti, 547 U.S. at 421).

         In rendering this determination, courts are directed to answer the question of whether the speech fell outside of the employee's official responsibilities. Garcetti counseled “a functional approach toward evaluating an employee's job duties.” Id. at 173. If an employee's “expressions were made pursuant to his duties, ” they would not be protected. However, while job descriptions are “relevant to the inquiry, the Court cautioned that, ‘[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform' and ‘the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.'” Id. (quoting Garcetti, 547 U.S. at 424-25). The analysis is a “practical one.” Id. Even where speech is not required by the job, it may “still be ‘pursuant to official duties' so long as it is in furtherance of such duties.” Weintraub v. Bd. of ...