Cotto v. United Technologies Corp.

• Decision Date: 12 May 1998
• Docket Number: No. 16670,16670
• Citation: 711 A.2d 1180,48 Conn.App. 618
• Parties: , 13 IER Cases 1732 Gonzalo COTTO v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION.
• Court: Connecticut Court of Appeals

Page 1180

711 A.2d 1180

48 Conn.App. 618, 13 IER Cases 1732

Gonzalo COTTO v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION.

No. 16670.

Appellate Court of Connecticut.

Argued Jan. 12, 1998.

Decided May 12, 1998.

Karen Lee Torre, New Haven, for appellant (plaintiff).

Edward J. Dempsey, Hartford, for appellee (defendant).

Martin B. Margulies, Bridgeport, Philip D. Tegeler, New York City, and Rebecca Locketz, Hartford, filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.

Before FRANCIS X. HENNESSY, DUPONT and DALY, JJ.

DUPONT, Judge.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant on the granting of the defendant's motion to strike the plaintiff's two count complaint. ¹ The sole issue to be resolved is whether General Statutes § 31-51q ² provides the plaintiff employee with a cause of action for monetary damages against the defendant, his private employer, after discharge from his employment resulting from an alleged exercise by the plaintiff of his federal or state constitutional right of free speech, when the speech took place at the site of the workplace. The defendant, in its motion to strike, claimed that (1) a cause of action based on § 31-51q is unavailable to an employee whose alleged expressive activity occurs exclusively on the private property of his employer, and (2) the plaintiff employee's words and actions, as alleged in his complaint, were not constitutionally protected.

The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years. The relevant portions of other allegations of the plaintiff's complaint are quoted as follows: "On or about April 22, 1991, the defendant, acting through [its] management personnel, distributed American flags to employees in the plaintiff's department and it was expected that all employees would display American flags at their workstations. ³ The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag. As a result of the plaintiff's refusal to display the American flag and as a direct and proximate result of his comments with respect to displaying the flag, he was subjected to threats and harassment from his coworkers. Said threats and harassment were directed toward him by his coworkers with the full support and encouragement of the defendant. The plaintiff's refusal to display the American flag and his expression of his opinion regarding the company's policy that employees must display the American flag at their workstations were absolutely protected by the First Amendment of the United States Constitution and Article First of the Constitution of the State of Connecticut. Subsequent to the plaintiff's suspension from employment, he was permanently discharged from employment on or about May 16, 1992, on account of the plaintiff's aforementioned behavior and expression of opinion, all of which were constitutionally protected. The defendant's act of discharging the plaintiff from employment violated the plaintiff's rights pursuant to Connecticut General Statutes § 31-51q, as the plaintiff's refusal to display the American flag and his expression of opinion regarding the same did not substantially or materially interfere with his bona fide job performance or the working relationship between him and the defendant."

It is clear from the facts alleged in the complaint that the expressive conduct alleged by the plaintiff occurred exclusively in the workplace, on the private property of the defendant. The trial court held that the "[p]laintiff's speech at his workplace is not protected by the first amendment to the United States constitution ⁴ or §§ 3, 4 or 14 of article first of the Connecticut constitution," ⁵ and, therefore, § 31-51q cannot afford relief.

The trial court determined that § 31-51q did not protect the plaintiff's expressive activities occurring on his employer's private property because such on-site activities are not "guaranteed by" either the United States constitution or the constitution of this state. ⁶ In so holding, the trial court primarily relied on Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). In Cologne, the question was whether the rights of free speech and petition guaranteed by the Connecticut constitution ⁷ may be exercised on the private property of the defendants, which property consisted of a large regional shopping center.

No statute was involved in Cologne and no relationship, such as employer and employee, existed between the plaintiffs and the defendants, nor was any claim made that the speech was not otherwise constitutionally protected. The plaintiffs, relying on §§ 4 and 14 of article first of the state constitution, did not take the position that individuals may exercise their rights of free speech on any private property, but instead, limited their claim to speech activities occurring on private properties with a "uniquely public character." Id., at 64, 469 A.2d 1201. In analyzing this claim, the Cologne court reviewed the history of the adoption of the Connecticut bill of rights and found "no evidence of any intention to vest in those seeking to exercise such rights as free speech and petition the privilege of doing so upon the property of others." Id., at 62, 469 A.2d 1201. Accordingly, the court concluded that the free speech and petition rights of the state constitution do not extend to expressive activities exercised on private property against the wishes of the owner, even where the private property is vested with a public character. Id., at 65-66, 469 A.2d 1201.

The present case involves the determination of an issue not yet decided by an appellate court of this state. ⁸ Unlike Cologne, which was based entirely on a constitutional analysis, we are here determining whether § 31-51q provides a cause of action, under the circumstances alleged by the plaintiff, to an employee who is discharged for the exercise of an alleged constitutional right when, without the statute, no remedy or cause of action would be available. ⁹ In other words, the question is whether § 31-51q protects particular speech occurring on the private property of an employer when, pursuant to Cologne, such speech would not otherwise have been protected.

The defendant's motion to strike in the present case was based on two grounds. The defendant claimed, first, that the rights protected by § 31-51q do not apply when exercised on private property and, second, that even if they do apply the plaintiff's words and actions were not constitutionally protected free speech. Attached to the defendant's motion to strike were a memorandum of law and a decision of arbitrators who had determined that the plaintiff was properly discharged. The plaintiff's cause of action pursuant to § 31-51q does not, nor could it, seek reinstatement of employment, but, rather, seeks money damages.

"It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them." Schmidt v. Yardney Electric Corp., 4 Conn.App. 69, 74, 492 A.2d 512 (1985).

The trial court concluded that the plaintiff's speech was not protected because it occurred on private property. It did not consider the second ground for the defendant's motion, namely, that the particular words and actions of the plaintiff were not constitutionally protected. The basis for the latter claim, according to the memorandum of law filed with the motion to strike, was that the speech did not involve a matter of public concern, but instead involved a matter concerning a condition of private employment. Although the trial court did not consider this second ground, we may do so because on appeal an appellate court may conduct a de novo review of an issue of law, such as the interpretation of a statute. Squeglia v. Squeglia, 234 Conn. 259, 262-63, 661 A.2d 1007 (1995); Andover Limited Partnership I v. West Hartford Board of Tax Review, 232 Conn. 392, 395-96, 655 A.2d 759 (1995); see also Emerick v. United Technologies Corp., 104 F.3d 353 (2d Cir.1996). In this case, both grounds for the defendant's motion to strike must be discussed.

Statutory analysis is a search for the intention of the legislature. "[W]e look to the words of the statute itself, to the legislative history ... to the legislative policy it was designed to implement, and to its relationship to existing legislation ... governing the same general subject matter." Carriero v. Naugatuck, 243 Conn. 747, 753, 707 A.2d 706 (1998).

We begin our analysis of whether a cause of action pursuant to § 31-51q has been alleged with the words of the statute. First, a private employer is placed in the same category as a state employer because of the words "[a]ny employer, including the state...." (Emphasis added.) General Statutes § 31-51q. The statute next prohibits the discharge of an employee who exercises those rights that are guaranteed by particular sections of the state and federal constitutions, provided that the exercise of those rights do not interfere with the employee's bona fide job performance or the working relationship between the employee and the employer. ¹⁰ The question is whether the words of the statute were intended to extend constitutional protections of speech to the workplace. Nothing in the statute's legislative history answers that question, and the statute itself is silent. It is instructive, however, to review related state legislation governing the same general subject matter.

A state may adopt, in its own constitution, individual liberties more expansive than those conferred by the ...