Lopez v. Burris Logistics Co.

• Decision Date: 23 September 2013
• Docket Number: No. 3:12–CV–1039 (CSH).,3:12–CV–1039 (CSH).
• Citation: 952 F.Supp.2d 396
• Parties: Edwin LOPEZ, Plaintiff, v. BURRIS LOGISTICS CO., Defendant.
• Court: U.S. District Court — District of Connecticut

952 F.Supp.2d 396

Edwin LOPEZ, Plaintiff,

v.BURRIS LOGISTICS CO., Defendant.

No. 3:12–CV–1039 (CSH).

United States District Court, D. Connecticut.

July 3, 2013.

Order On Reconsideration Sept. 23, 2013.

Michael T. Petela, Jr., Cicchiello & Cicchiello, LLP, Hartford, CT, for Plaintiff.

Ian T. Clarke–Fisher, Stephen W. Aronson, Robinson & Cole, LLP, Hartford, CT, for Defendant.

RULING ON DEFENDANT'S MOTION TO DISMISS

HAIGHT, Senior District Judge:

I. INTRODUCTION

In this consolidated action, plaintiffs Edwin Lopez, Richard Lester, Ryan Montalvo, and Jonathan Valdes (collectively “Plaintiffs”) seek recovery from their former employer, defendant Burris Logistics, Inc. (“Burris” or “Defendant”), for their wrongful terminations on February 21, 2012.¹ Pending before the Court is Defendant's motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss Count Two of each of Plaintiffs' Complaints, which sets forth a wrongful discharge claim in violation of public policy. Doc. # 16. Defendant contends that each wrongful discharge claim should be dismissed as “legally insufficient on the ground that an alternate remedy exists under Conn. Gen.Stat. § 31–51q” and such a statutory claim “has, in fact been pled in Count Three, thereby precluding the [P]laintiffs from bringing a wrongful discharge claim under Connecticut common[ ] law.” Doc. # 17, p. 1.

Plaintiffs object to the motion, arguing that they “are entitled to plead alternative and inconsistent causes of action.” Doc. # 23–1, p. 3. They reason that “[t]his is because when the factual allegations of each specific case are developed, they may render the statutory causes of action unavailable.” Id., p. 3. “If and when that occurs, the bar to the plaintiff[s'] common law claims will cease to exist, and the plaintiff[s] will be entitled to pursue them.” Id.

Furthermore, Plaintiffs rely on the Connecticut Supreme Court's decision in Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012), in which the “Court overturned the jury's verdict on the plaintiff's § 31–51q claim,” and then “remanded the case for a new trial on the plaintiff's common law wrongful discharge claim.” Doc. # 23–1, p. 4. Plaintiffs read that decision as validating alternative pleading of statutory and common law wrongful termination claims. Id.

The Court will resolve the motion, and thus the conflicts with respect to the parties' legal arguments, in Part IV. below.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORYA. Consolidation

On July 16, 2012, plaintiff Edwin Lopez initiated the present action against his former employer, Burris Logistics, Inc., alleging that he was wrongfully terminated on February 21, 2012. Case No. 3:12cv1039 (CSH), Doc. # 1, ¶ 54. The next day, on July 17, 2012, Lopez's counsel commenced three separate wrongful termination actions by other former employees against Burris. See Richard Lester v. Burris Logistics Co., No. 3:12cv1041 (RNC); Ryan Montalvo v. Burris Logistics Co., No. 3:12cv1044 (WWE), and Jonathan Valdes v. Burris Logistics Co., No. 3:12cv1045 (RNC).

On August 17, 2012, counsel for Burris, Ian T. Clarke–Fisher of Robinson & Cole, LLP, filed an identical “Unopposed Motion to Consolidate” in each of the four cases, seeking consolidation for purposes of pre-trial proceedings and discovery, pursuant to Fed.R.Civ.P. 42(a).²See No. 3:12cv1039, Doc. # 8; No. 3:12cv1041, Doc. # 8; No. 3:12cv1044, Doc. # 7; and No. 3:12cv1045, Doc. # 9. Burris based each motion on the grounds that “the four above-titled actions all arise from the same incident, name Burris as the sole defendant, hinge on the same set of central facts, involve many of the same witnesses[,] including each of the [P]laintiffs, and encompass common issues of law.” See, e.g., No. 3:12cv1039, Doc. # 9, p. 2, ¶ 1. “Due to their factual and legal overlap, and in the interests of judicial economy,” Burris “request [ed] that this Court consolidate the [four referenced] actions into a single unified set of proceedings for the purposes of pre-trial proceedings and discovery.” Id. Although Burris did not move to consolidate the matters for purposes of trial, in a footnote it explicitly “reserve[d] the right” to do so at a later time. Id., p. 2 n. 1.

As the Second Circuit explained in Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990), cert. denied,498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), “Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate actions for trial when there are common questions of law or fact to avoid unnecessary costs or delay.” Recognizing Rule 42(a) “as a valuable and important tool of judicial administration” in the case at bar, this Court exercised its discretion to grant the motion, thereby “invok[ing] [Rule 42(a) ] to ... eliminate unnecessary repetition and confusion,” Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir.1999).³ The cases were thus consolidated for pre-trial proceedings and discovery under docket number 3:12cv1039, Lopez v. Burris Logistics Co., the lead case. Accordingly, the Court interprets Burris's motion to dismiss (Doc. # 16), pending on the consolidated docket sheet, as addressed to all four Plaintiffs' Complaints.⁴

B. Factual Summary of Consolidated Actions

Defendant Burris “operates a refrigerated warehouse in Rocky Hill, Connecticut.” Doc. # 17, p. 2. According to Burris, “[m]anufacturers of refrigerated and frozen food products, such as milk, yogurt, and ice cream, deliver their products to the [Rocky Hill] warehouse and are placed onto stacks.” Id. “Retailers submit purchase orders to Burris and warehouse personnel select and load the identified merchandise onto pallets for shipment to the retailers.” Id. In their former employment positions with Burris, Plaintiffs were allegedly “responsible for selecting and loading food onto the pallets for shipment to retailers.” Id.

Specifically, Plaintiffs held the following positions with Burris: Edwin Lopez—Incentive Selector (July 25, 2011 to February 21, 2012), No. 3:12 cv1039; Doc. # 1 at ¶¶ 6–7; Richard Lester—Backhauler/Unloader (August 18, 2009 to February 21, 2012), No. 3:12cv1041, Doc. # 1, ¶¶ 6–7; Ryan Montalvo—Incentive Selector who occasionally performed the duties of Incentive Lift Operator and Incentive Loader (October 1, 2008 to February 21, 2012), No. 3:12cv1044, Doc. # 1, at ¶¶ 6–7; and Jonathan Valdes—Incentive Selector and Incentive Lift Operator (August 18, 2008 to February 21, 2012), No. 3:12cv1045, Doc. # 1, at ¶¶ 6–7.

According to Plaintiffs, Burris employed a “malleable time management system” to calculate incentive pay, utilizing variable rates of pay based on various factors. See, e.g.,No. 3:12cv1039, Doc. # 1, at ¶ 10. Plaintiffs each alleged that during certain periods of their employment they did not receive the full amount of compensation due from Burris. See, e.g., id., at ¶¶ 34–36. Each complained to Burris supervisors and/or the general manager at the Rocky Hill warehouse regarding such payment issues. Id., at ¶¶ 37–39.

All four Plaintiffs were terminated on February 21, 2012, one day following a water main break at the Rocky Hill warehouse, causing water to cover and freeze upon the warehouse floor. See No: 12cv1039, Doc. # 1, at ¶¶ 42–54; No. 3:12cv1041, Doc. # 1, at ¶¶ 47–59; No. 3:12cv1044, Doc. # 1, at ¶¶ 57–76; and No. 3:12cv1045, Doc. # 1, at ¶¶ 55–73. In particular, the leaking water “turned to ice in the freezer area of the warehouse.” No. 3:12cv1039, Doc. # 1, at ¶ 43; No. 3:12cv1041, Doc. # 1, at ¶ 48; No. 3:12cv1044, Doc. # 1, at ¶ 58; No. 3:12cv1045, Doc. # 1, at ¶ 56. Two Burris supervisors, Xavier Gomez and Christopher Costa, allegedly “asked for volunteers to help remove water from the warehouse.” See, e.g.,No. 3:12cv1039, Doc. # 1, at ¶¶ 45–46. Thereafter, a supervisor named Dexter Lee allegedly ordered the Plaintiffs to chip ice from the freezer area of the employer's warehouse. Id., ¶ 52.

Two of the four plaintiffs, Lopez and Lester, assert that they complied with Lee's request to chip ice. No. 3:12cv1039, Doc. # 1, at ¶ 53; 12cv1041, Doc. # 1, at ¶ 58. Plaintiffs Montalvo and Valdes, however, refused to chip ice based on their concerns about safety and belief that such chipping was not within their job descriptions. No. 3:12cv1044, Doc. # 1, at ¶¶ 67–68; No. 3:12cv1045, Doc. # 1, at ¶¶ 66–67.⁵ All Plaintiffs noted to their fellow employees that the removal of the water “seemed unsafe” because in the past, whenever a spill in the warehouse occurred, the custom and practice was to put cones around the spill and to tape off that area until it could be mopped and cleaned so that employees did not slip.” No. 3:12cv1039, at ¶ 49; No. 3:12cv1041, Doc. # 1, at ¶ 54; No.3:12cv1044, Doc. # 1, at ¶ 64; No. 3:12cv1045, Doc. # 1, at ¶ 62.

The next day Burris terminated all four Plaintiffs “and several other [Burris] employees,” allegedly using “the incident involving the water main as a pretext to terminate a number of employees [whom Burris] desired to terminate.” See, e.g.,No. 3:12cv1039, Doc. # 1, at ¶ 56. Specifically, according to Plaintiffs, Burris terminated them “on the pretext that [each] refused an order to remove water from the warehouse.” No. 3:12cv1039, Doc. # 1, at ¶ 54; No. 3:12cv1041, Doc. # 1, at ¶ 59; No. 3:12cv1044, Doc. # 1, at ¶ 75; and No. 3:12cv1045, Doc. # 1, at ¶ 72.

Plaintiffs maintain that Burris utilized the water main break “to cover its true motivations, which were illegal”—namely, retaliation for Plaintiffs' complaints regarding “wage violations,” “safety problems,” and “sexual harassment.” No. 3:12cv1039, Doc. # 1, at ¶ 56; No. 3:12cv1041, Doc. # 1, at ¶ 61; No. 3:12cv1044, Doc. # 1, at ¶ 77; and No. 3:12cv1045, Doc. # 1, at ¶ 74.⁶

In July of 2012, approximately five months after Plaintiffs were discharged, Attorney Michael Petela, Jr. of Cicchiello & Cicchiello, LLP, commenced a separate action for each Plaintiff in the United States District Court for the District of...