Connecticut Bar Journal
70 CBJ 245.
Labor Relations and Employment Law: 1999 Developments in Connecticut
445Labor Relations and Employment Law: 1999 Developments in ConnecticutBY: JOSHUA A. HAWKS-LADDS (fn*)This article reviews significant 1999 employment-related decisions of the Connecticut Supreme, Appellate and Superior Courts and the State Board of Labor Relations. It also discusses important 1999 employment legislation.
The most significant 1999 court decisions dealt with General Statutes Section 31-51q, the statute that protects employees from discharge or discipline for invoking certain enumerated federal and state constitutional rights, most notably free speech rights. Referring to constitutional law sources, the Connecticut Supreme Court had earlier suggested that the statute's protection of employee speech extended only to statements regarding matters of public concern. In Dale-y v. Aetna Life & Casualty Co., (fn1) the court confirmed that this was so, but more importantly, it established the test for deciding whether a statement involves a matter of public concern and explained when that issue is for the court rather than the jury.
In perhaps an even more important, and certainly a more interesting 1999 case, Cotto v. United Technologies Corp.,(fn2) the court reviewed a two-to-one Appellate Court decision holding that Section 31-5lq (fn3) protects speech occurring at a private employer's workplace. The issue merited Supreme Court consideration because the Appellate Court's ruling, like the statute itself, seemed to do the impossible; it made purely private actors (employers) liable for discharging or disciplining an employee in retaliation for the employee's exercise of what were referred to as constitutional free speech rights under circumstances in which the constitution itself would not have protected the speech. The Supreme Court, with all seven justices sitting, affirmed the decision, with four justices (Peters, Palmer, Katz and Berdon) subscribing to the Appellate Court majority's view that the statute applied to the private workplace. (fn4)
Significant Appellate Court decisions in 1999 include a wrongful termination case involving General Statutes Section 31-51q. In Emerick v. Kuhn, (fn5) the Appellate Court analyzed whether the plaintiff employee's speech, critical of the defendant employer, was private speech or addressed matters of public concern. Additionally, in Williams v. Commission on Human Rights and Opportunities, (fn6) the court determined that the 180-day limitation for filing a claim of discrimination with the Commission on Human Rights and Opportunities (fn7) is jurisdictional and, therefore, mandatory. Among other employment-related decisions, the court also decided a discrimination claim brought under General Statutes Section 31-290a, as well as several Freedom of Information Act cases concerning employment issues.
SUPREME COURT DECISIONS
In Daley v. Aetna Life & Casualty Co., (fn8) the Supreme Court confirmed that Section 31-51q protects only speech that involves a matter of public concern. It then established the test for meeting this requirement. The plaintiff in that case was a terminated Aetna employee whose principal claim (fn9) was that she was discharged for sending a memorandum to Aetna's chairperson, Ronald Compton, expressing dissatisfaction with Aetna's failure to implement its "flexible family work policies" (the "Compton Memorandum"). (fn10) At trial, the court decided not just to submit this claim to the jury but to instruct the jury that it was to decide whether the Compton Memorandum addressed a matter of public concern. In so doing, it rejected the plaintiff's assertion that the public concern question was inherently one for the court to decide as a matter of law. After the jury returned a verdict against her, the plaintiff appealed, pressing her point that the public concern determination was a question of law for the court and arguing that the trial court had erroneously submitted it to the jury.
The appeal squarely presented the Supreme Court with the task of establishing a test for determining whether an employee's speech addresses a matter of public concern. Relying on federal precedents relating to public employment - principally the United States Supreme Court's decision in Connick v. Myers (fn11) - the court held that the test "for determining whether an employee's speech addresses a matter of public concern" is whether the statements can be "fairly considered as relating to any matter of political, social, or other concern to the community." (fn12) It further held, consistent with these precedents, that this determination is to be made by evaluating "the content, form, and context of a given statement as revealed by the whole record." (fn13) However, the court's articulation of the test did not end with these formulations.
It next considered what role, if any, the employee's motives in speaking plays in deciding whether the speech relates to a matter of public concern and, therefore, is statutorily protected. Turning again to the federal public employment cases, the court noted that some federal courts of appeals concluded that employee speech that deals with a matter of public concern, but was intended merely to promote personal interests, fails to achieve protected status under the constitution. (fn14) Other courts had concluded that the determination must be made solely on the basis of the speech itself and that the speaker's motives were irrelevant. (fn15)
The plaintiff urged the court to adopt the latter view. However, based on it's reading of Connick , and distinguishing its own public employment, employee speech case, Schnabel v. Tyler, (fn16) the court concluded that motivation was, indeed, relevant: [The plaintiffs] argument overlooks the fact that whether the [the Compton] memorandum falls within the purview of the first amendment does not turn solely on whether the statements contained therein are of general interest to work at large]. Even if the availability of flexible work schedules at Aetna was a matter of [public] concern... [the plaintiff] still bears the burden of establishing that she was motivated to champion the rights of others, rather than to air her own personal grievance with Aetna management. (fn17)
Once the court had established the essential test and concluded that the plaintiff's motivation is an element to be considered in administering that test, deciding the respective roles of the court and the jury became a relatively simple matter. Specifically, the court concluded: it is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern. The resolution of whether an employee's statements address such a topic, is, however, within the province of the jury, to be determined by looking to the content, form and context of the particular statements in question. (fn18)
In other words, the jury was correctly charged to determine whether the plaintiff had the requisite protection-producing motive, whether she was championing the rights of others in society (or some segment thereof), or merely "airing a personal grievance." (fn19) The jury decided that it was the latter and that the plaintiff's speech was not worthy of protection under 31-51q.
Daley adds yet another important point to the emerging Section 31-51q jurisprudence. In the process of upholding the trial court's charge on motive, it placed its imprimatur on the view that the presence of a protected motive is not an either/ or proposition. The employee's motive may be a mixture of public and private concerns. Although unstated, it is reasonable to infer that the jury is to decide which predominates and to conclude that protection is present only when the public concern motive is predominant. (fn20)
Dalty presented the Supreme Court with the opportunity to decide the threshold issue of whether Section 31-51q even applies to employee speech at a private workplace. Because the case could be decided on other grounds, however, the court postponed its consideration of that issue to another day. That day came just two months later in Cotto v. United Technologies Corp.(fn21)
In Cotto, the plaintiff alleged that his employer distributed American flags to all employees in his department and directed them to place them on display at their workstations. He further alleged that he declined to do so, expressing his opinion to his employer that it was improper for it to require its employees to display the flag at their workstations. (fn22) He concluded by alleging that he was fired on account of his refusal to display the flag and for expressing his views concerning the propriety of the employer's direction - activity that he claimed was protected by the free speech provisions of the federal and state constitutions in violation of Section 31-51q.(fn23)
After analyzing Section 31-51q's language, legislative history, broad purpose, analogous statutes and the public policy behind the law, justice Peters concluded that the legislature meant what it said: Section 31-51q extends protection of rights of free speech under the federal and the state constitutions to employees in the private workplace. The statute is not limited to freedom of speech in the public arena. (fn24) However, the court also determined that the plaintiff did not state a cause of action under the statute.
The court noted that the plaintiff merely alleged...