United States District Court, D. Connecticut
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
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