Venterina v. Cummings & Lockwood, Civ.A.3:98CV849(PCD).

• Decision Date: 24 February 1999
• Docket Number: No. Civ.A.3:98CV849(PCD).,Civ.A.3:98CV849(PCD).
• Citation: 117 F.Supp.2d 114
• Court: U.S. District Court — District of Connecticut
• Parties: Gerald VENTERINA and Annie Venterina, Plaintiffs, v. CUMMINGS & LOCKWOOD, Effective Security and Vincent Vodola, Defendants.

117 F.Supp.2d 114

Gerald VENTERINA and Annie Venterina, Plaintiffs, v. CUMMINGS & LOCKWOOD, Effective Security and Vincent Vodola, Defendants.

No. Civ.A.3:98CV849(PCD).

United States District Court, D. Connecticut.

February 24, 1999.

COPYRIGHT MATERIAL OMITTED

Charles F. Proctor, Oxford, MA, Marilyn Venterina, Antonia Sciretta, Sciretta & Venterina, Brooklyn, NY, for Plaintiffs.

David J. Belt, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, CT, Philip T. Newbury, Jr., Michael J. Rose, Howd & Ludorf, Mark R. Cramer, James A. Alissi, Halloran & Sage, Hartford, CT, Stephen l. Fox, Meiselman, Farber, Packman & Eberz, Mt. Kisco, NY, Stephen P. Horner, Stephen P. Horner & Assoc., Norwalk, CT, for Defendants.

RULING ON DEFENDANT CUMMINGS & LOCKWOOD'S MOTION TO DISMISS

DORSEY, District Judge.

Plaintiffs Gerald Venterina and Annie Venterina brought this case pursuant to 28 U.S.C. §§ 1332(a)(1) and 1441. Plaintiffs allege violation of CONN.GEN.STAT. § 31-290a, wrongful discharge, breach of the covenant of good faith and fair dealings, intentional and negligent infliction of emotional distress, defamation, and, on behalf of Anne Venterina, loss of consortium. Defendant Cummings & Lockwood move to dismiss. In response, plaintiffs filed a cross motion to amend the complaint along with their objection.

I. BACKGROUND FACTS

In May 1994, Gerald Venterina began employment at Cummings & Lockwood ("Cummings") in Stamford, Connecticut. Gerald Venterina and his spouse, Annie Venterina, are citizens of the State of New York, residing in Bronx, New York.

On May 8, 1997, while in his office at Cummings, Gerald Venterina was assaulted by defendant Vincent Vodola. As a result of this assault, Gerald Venterina suffered assorted physical injuries. Vincent Vodola is the spouse of an employee at Cummings, Lauren Vodola. The Vodolas live in Stamford, Connecticut.

On May 16, 1997, Gerald Venterina filed a workers' compensation claim for injuries arising from the alleged assault. Also on May 16, 1997, Gerald Venterina was terminated from his employment at Cummings

II DISCUSSION

A. Motion to Dismiss Standard

A motion to dismiss should be granted only when "it appears beyond doubt" that a plaintiff fails to state any claim upon which relief may be granted. FED.R.CIV.P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all factual allegations in the complaint and must construe any well-pleaded factual allegations in the plaintiff's favor. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998). A district court is limited to the facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991).

1. Count I.

In Count I, plaintiff alleges that defendant terminated him in violation of CONN.GEN.STAT. § 31-290a,¹ which provides:

(a) No employer who is subject to the provisions of [the Workers' Compensation Act] shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.

(b) Any employee who is so discharged or discriminated against may either:

(1) Bring a civil action in the Superior Court ... for the reinstatement of his previous job, payment of back wages and re-establishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged ...

The burdens of proof and order of presentation of proof in § 31-290a cases are as follows. Initially, plaintiff must prove, by a preponderance of the evidence a prima facie case of discrimination. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990). To meet this burden, plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Ford, 216 Conn. at 53, 578 A.2d 1054. If plaintiff meets this burden, the burden shifts to defendant to rebut the presumption by producing evidence of a legitimate, nondiscriminatory reason for its actions. Id. at 54, 578 A.2d 1054. If defendant carries this burden of production, plaintiff must then satisfy his burden by persuading the fact finder that he was discriminated against "either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).²

A violation of § 31-290a(a) may be proven by showing: (1) a discharge of an employee; (2) by an employer who is subject to the Workers' Compensation Act; (3) because the employer has filed a claim for workers' compensation benefits. Shearn v. Airborne Freight Corporation, 1994 WL 198099 (Conn.Super.1994). Here, the plaintiff alleges that he was employed by the defendant; that the defendant was subject to the workers' compensation laws; that plaintiff was injured during the course of his employment; that plaintiff filed a claim for workers' compensation benefits; and that defendant terminated plaintiff's employment because of such claim.

Plaintiff has sufficiently alleged a claim for statutory wrongful discharge pursuant to CONN.GEN.STAT. § 31-290a.

In addition to the statutory claim in Count I, plaintiff asserts a cause of action for common law wrongful discharge. The Connecticut Supreme Court recognized a cause of action for wrongful discharge when public policy is contravened. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980). Plaintiff's must allege that the discharge violates a state statute or constitutional provision or other public policy in such a wrongful discharge claim. Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986). Here, plaintiff alleges defendant wrongfully discharged his employment in retaliation for filing a workers' compensation claim, in violation of CONN. GEN.STAT. § 31-290a. Plaintiff has sufficiently alleged a claim for common law wrongful discharge.

Defendant asserts plaintiff is foreclosed from bringing a common law claim for wrongful discharge in addition to his statutory claim for retaliatory discharge pursuant to § 31-290a because plaintiff has an adequate remedy to enforce his rights under his statutory claim. Defendant argues that a full range of remedies exist for plaintiff, including reinstatement, compensatory damages, punitive damages, and attorney's fees. In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), the court held that available statutory remedies did not warrant judicial recognition of an independent cause of action. However, "[t]here is a split of authority in the Connecticut Superior Courts as to whether Atkins forbids a common law remedy where a statutory remedy exists, no matter the extent of the remedy available within the statute, or whether Atkins allows a common law remedy to be pursued where the statutory remedy available is adequate to compensate the plaintiff's injuries." Miller v. Alpha Systems, Inc., No. 0117227, 1995 WL 93424, at *3 (D.Conn. Feb. 23, 1995). A review of the cases indicate that a wrongful discharge claim may not be maintained on the basis of a public policy violation if adequate statutory remedies are available. In Friel v. St. Francis Hospital, No. 3:97CV-803, 1997 WL 694729 (D.Conn. Oct. 31, 1997), plaintiff's claims based on public policy considerations were dismissed because her allegations could be fully remedied by Title VII, ADA and CFEPA claims. See also Menard v. People's Bank, No. CV 970544627s, 1998 WL 177536 (Conn.Super. Apr. 6, 1998), (citing cases). In the case at bar, plaintiff has full and adequate remedy under his statutory claim.

Accordingly, the statutory claim under CONN.GEN.STAT. § 31-290 remains a cause of action. However, the common law wrongful discharge claim is dismissed.

2. Count II.

Count II alleges defendant breached an implied covenant of good faith and fair dealing by its actions. The Connecticut Supreme Court recognized that every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). "The implied covenant of good faith and fair dealing operates to `fulfill the reasonable expectations of the contracting parties as they presumably intended.'" Rose v. James River Paper Co., 2 F.Supp.2d 245, 255 (D.Conn.1998) (quoting Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567, 479 A.2d 781 (1984)).

To establish a claim for breach of an implied covenant of good faith and fair dealing, an employee must establish that his dismissal was for a demonstrably improper reason, the impropriety of which is derived from a violation of some important public policy. Id. Plaintiff argues that the alleged facts state a claim for retaliatory wrongful discharge pursuant to CONN.GEN. STAT. § 31-290, and that this statute codifies the public policy against such discharge. Therefore, the alleged retaliatory discharge is against public policy and states a cause of action for breach of the implied covenant of good faith and fair dealing. However, it is not enough to point to an important public policy. A plaintiff bringing this claim must also establish that he does not otherwise have an adequate means of vindicating that public policy. Bennett v. Beiersdorf, Inc., 889 F.Supp. 46, 49 (D.Conn.1995). As noted earlier, the public policy against wrongful termination already has a full and adequate statutory remedy under CONN.GEN. STAT. § 31-290.

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