Rigano v. Honey Hill Care Center, No. CV-0300195692-S (CT 5/24/2005), CV-0300195692-S

Decision Date24 May 2005
Docket NumberNo. CV-0300195692-S,CV-0300195692-S
CourtSupreme Court of Connecticut
PartiesDenise Rigano v. Honey Hill Care Center Opinion No.: 89030
MEMORANDUM OF DECISION

KARI A. DOOLEY, JUDGE.

The plaintiff, a licensed nurse practitioner, brought this action against her former employer, the defendant Honey Hill Care Center, alleging wrongful termination and negligent infliction of emotional distress. Specifically, in Count One, she alleges that she was terminated in violation of the so-called "whistle blower" statute, Conn. Gen. Stat. § 31-51m, for complaining to two state legislators about her employer's alleged violations of the Workers' Compensation Act. In Count Two, she alleges retaliatory discharge as a result of her claims for workers' compensation benefits and in Count Three, for the negligent infliction of emotional distress arising from her employer's conduct in connection with her efforts to seek workers' compensation benefits. By motions dated April 18, 2005 and April 27, 2005, the defendant seeks summary judgment as to all three counts.1 The case is scheduled for trial on June 28, 2005.

For the reasons set forth below, the motion for summary judgment is granted.

Standard of Review

A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material fact which, under applicable principles of law, entitles him to judgment as a matter of law. PB § 17-49; Appleton v. Board of Education, 254 Conn. 205, 209 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Appleton, supra. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).

Discussion

The plaintiff was hired as a nurse practitioner in March or April 1999. In June of that year, she injured herself in the performance of her duties. She made a claim for, and received workers' compensation benefits. During the next two plus years, she was either out of work or was permitted to work with restrictions. During this time period, depending on her ability to work, she received workers' compensation benefits. Eventually, in March 2002, her doctor cleared her to return to work on a full-time basis, which she did in early March 2002. However, on or about March 27, 2002, the plaintiff aggravated her pre-existing injury and was again unable to work.

At about this time, the defendant was in the process of becoming "self-insured" for purposes of workers' compensation coverage. It became self-insured as of April 1, 2002. Prior to this time, the Royal & SunAlliance Insurance Corporation insured the defendant against workers' compensation claims. Indeed, Royal & SunAlliance had paid the plaintiff's workers' compensation benefits as a result of the injury sustained in 1999 while at work.

Immediately following the March 27, 2002 injury, there was a period of approximately 8 weeks during which no workers' compensation benefits were paid. The defendant avers that this was as a result of the transition between being insured with Royal & SunAlliance and becoming self-insured. The defendant indicates that it was unclear as to whether Royal & SunAlliance was still the responsible insurer or whether the defendant would be responsible. Ultimately, this issue was resolved because the benefits were paid retroactively to cover the 8-week time period on or about June 3, 2002. Workers' compensation benefits were paid thereafter as well.2

The plaintiff remained out of work until her termination effective October 5, 2002. She was unable to return to work as a result of the injury. In fact she has been unable to return to work to this day.

Notwithstanding that the plaintiff was receiving benefits by early June 2002, the plaintiff, in mid-June, met with State Representative Robert Duff, from Norwalk, and complained to him that the defendant had violated the Workers' Compensation Act by failing to maintain workers' compensation insurance and had been uncooperative with her in her efforts to obtain workers' compensation benefits. She had no further communication with Mr. Duff prior to her termination. Thereafter, on September 20, 2002, she met with State Representative Lawrence Cafero, of Norwalk and complained to him that the defendant had violated the Workers' Compensation Act by failing to maintain workers' compensation insurance and had been uncooperative with her in her efforts to obtain workers' compensation benefits. She had no further contact with Representative Cafero prior to her termination. Both Representative Duff and Representative Cafero told the plaintiff that they would investigate her claim, to include, with respect to Representative Cafero, contacting the defendant.3

Approximately 6 months after the re-injury, by letter dated October 1, 2002, the plaintiff was terminated effective October 5, 2002. The defendant avers that it had not heard from the plaintiff as to her ability to work or her prognosis on a return to work; it needed to fill her position to meet its staffing needs at the nursing care facility; and determined to terminate her employment. On the other hand, the plaintiff alleges that her termination was retaliatory for her complaints to Representatives Cafero and Duff and that her termination was retaliatory for her claim for workers' compensation benefits.

Count One — Termination in violation of CGS § 31-51m

Conn. Gen. Stat. § 31-51m provides in pertinent part: "No employer shall discharge . . . any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . ."

Section 31-51m, . . . protects [an] employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation. Such whistle-blowing claims for retaliatory discharge typically invite analysis under the framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "In an action under §§ 31-51m(b), [the] plaintiff has the initial burden under McDonnell Douglas Corp of proving by a preponderance of the evidence a prima facie case of retaliatory discharge. See LaFond v. General Physics Services Corp., 50 F.3d 165, 172 (2d Cir. 1995) (holding that Connecticut courts would apply federal employment discrimination standards to a claim of retaliatory discharge under §§ 31-51m). This consists of three elements: (1) that [the plaintiff] engaged in a protected activity as defined by §§ 31-51m b); (2) that [the plaintiff] was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge." Ritz v. East Hartford, 110 F.Sup.2d 94, 98 (D.Conn. 2000); see also Beizer v. Dept of Labor, 56 Conn.App. 347, 355-56, 742 A.2d 821 (in retaliatory discharge actions, Connecticut courts look to federal courts to determine allocations of burdens of proof), cert. denied, 252 Conn. 937, 747 A.2d 1 (2000). Once the plaintiff has made a prima facie showing of a retaliatory discharge, the defendant is obligated to produce evidence that, if taken as true, would permit the conclusion that there was a nonretaliatory reason for the termination of employment. Ritz v. East Hartford, supra, 100. If the defendant provides a legitimate and nonretaliatory reason for the discharge, the plaintiff must offer some significantly probative evidence showing that the defendant's proffered reason is pretextual and that a retaliatory intention resulted in his discharge.

Arnone v. Enfield, 79 Conn.App. 501, 507 (2003) (some citations omitted).

At issue here is the third element of the plaintiff's case, that is, the causal connection between the protected activity and the discharge from employment.4

On this issue, the defendant provided affidavit testimony from two employees of the defendant; Steve A. Brown, Senior Human Resources Manager for the defendant, and Betty Karkut, the defendant's Administrator. In his Affidavit Mr. Brown states: that he is the individual who sent the plaintiff the letter by which her employment was terminated; that prior to her termination no one had ever informed him that the plaintiff was concerned about the defendant's compliance with the Workers' Compensation Act insofar as it relates to insurance coverage; that the plaintiff's termination had "absolutely nothing" to do with the plaintiff's reporting "to anyone" the defendant's alleged violations of the Act; that the defendant was "unaware of any such reporting, if in fact, it did occur." Similarly, Betty Karkut avers: that she was unaware that the plaintiff had made complaints to Representatives Duff and Cafero and that the plaintiff's termination had nothing to do with the plaintiff reporting to anyone Honey Hill's alleged violation of the Workers' Compensation Act.

In an effort to rebut this evidence and demonstrate the required "evidentiary foundation," the plaintiff offers her own affidavit and that of Mr. Bruno in which they both state that Representative Cafero told them that he had spoken with Robert Osbourne, the defendant's Chief Executive Officer, about the plaintiff's complaints. Both affidavits further aver that Representative Duff told them that he had "spoken with people affiliated with the defendant," at some point "subsequent to [the] meeting of June 6, 2003."5

The Court is not permitted to consider the out of court...

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