Employment Alerts

The Connecticut Supreme Court heard two companion cases on the scope of Conn. Gen. Stat. § 31-51q on May 18, 2011:

        In Schumann v. Dianon Systems Inc., 2009 WL 3838914, (Oct. 16, 2009 Conn. Super. Ct.)(Frankel, J.), a jury awarded the plaintiff-pathologist in excess of $4 million dollars in compensatory damages and $1.4 million in punitive damages after finding that the defendant, a medical laboratory, terminated the plaintiff’s employment in retaliation for his voicing concerns to supervisors about the safety of new diagnostic codes the defendant sought to implement.

        Conn. Gen. Stat. § 31-51q prohibits employers from disciplining or terminating employees for their exercise of constitutionally-protected speech in the workplace.  The U.S. Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that when public employees make statements pursuant to their official duties, they are not speaking as citizens for first amendment purposes and therefore, their speech is not protected.  At issue in Schumann is whether a private employee’s speech is protected when made pursuant to his/her official job duties.  In other words, does Garcetti apply to employees in the private sector.

        At oral arguments, the defendant argued that the same considerations applicable in Garcetti to public employees are applicable here.  Private employers, like government employers, need control over their employees to function and unbridled speech would make employee management difficult, if not impossible. 

        A second issue raised in Schumann of greater significance is whether the Garcetti analysis applies to the Free Speech Clauses of the Connecticut Constitution.

        If the Court adopts Garcetti on either issue it will significantly shield employers from exposure to First Amendment retaliation claims brought under state law.

        In Carmen Perez-Dickson v. City of Bridgeport et al.,2009 WL 4916389,(Nov. 24, 2009, Conn. Super. Ct.)(Gilardi, JTR), the City is appealing a jury verdict of $2 million awarded to the plaintiff, an elementary school principal, who claimed that she was retaliated against for reporting two teachers to the state Department of Children and Families (“DCF”).

        Carmen Perez-Dickson has been employed by the City’s Board of Education as a public school principal for 20 years.  In 1998 and 1999, she reported to DCF that she had observed two Caucasian teachers physically and emotionally abuse two minority students.  Thereafter, in 2000, she was transferred to a lesser-paying principalship.  Several years later, in 2005, Ms. Perez-Dickson herself became the subject of a DCF investigation, where she was put on administrative leave.  After DCF cleared Ms. Perez-Dickson of any wrongdoing, she brought a lawsuit against the City alleging, among other things, that her 2000 transfer and 2005 leave were in retaliation for her filing complaints of child abuse several years earlier.

        The City argued that Ms. Perez-Dickson’s speech does not qualify for first amendment protection because it was made pursuant to her statutorily-prescribed job duties as a mandated reporter.

If the Court determines in Schumann that Garcetti is applicable to the Free Speech Clauses of the Connecticut Constitution, then this verdict will certainly be overturned and will narrow a public employee’s ability to recover under Section 31-51q. 

• Thompson v. North American Stainless

  The Supreme Court determined that retaliation claims can be brought by a plaintiff when an employer takes adverse employment action against a third party in retaliation for the plaintiff’s protected activity. Moreover, it determined that a third party has standing to bring retaliation claims against the employer alleging that he/she is being retaliated against for a third party’s protected activity.

• Serricchio v. Wachovia Securities and Prudential Securities, Inc.

  The plaintiff, who had previously been employed as a financial advisor, a commission-based position, prior to his two year service in the Air Force, claimed that the defendants violated the Uniformed Services Employment and Reemployment Rights Act. When he was reinstated following his two year service, his accounts had been transferred to other financial advisors and he essentially was required to “start over.” Before his leave, he was earning $80,000/year and after his service, he was compensated $2,000 per month advance on his commissions. He alleged that his employer should have compensated him as it did prior to his leave. The jury returned a verdict for the plaintiff in the amount of approximately $800,000 plus attorneys fees and costs.