NO.

HHD CV 19-6107278S : SUPERIOR COURT

JASMINE ROBINSON : J.D. OF HARTFORD

VS. : AT HARTFORD

PURPLE HEARTS HOME CARE, LLC : MAY 4, 2020

MEMORANDUM OF DECISION
MOTION TO STRIKE (#111)

The plaintiff, Jasmine Robinson, has brought a five count complaint alleging

employment discrimination and wrongful termination against her former employer, the

defendant Purple Hearts Home Care, LLC (Purple Hearts). Purple Hearts is a home healthcare

provider owned by Samuel Twumasi. Count one alleges retaliation in violation of General

Statutes § 46a-60 (b) (4); count two alleges sexual harassment and hostile work environment in

violation of General Statutes § 46a-60 (b) (1) and (b) (8); count three alleges discrimination

based on perceived disability in violation of General Statutes § 46a-60 (b) (1); count four alleges

wrongful termination in violation of General Statutes § 31-51q; and count five alleges common

law wrongful termination.

In support of her complaint, the plaintiff alleges the following facts. On February 7,

2018, the defendant was scheduled to undergo a regulatory audit by the state of Connecticut. In

anticipation of the audit, Twumasi instructed the plaintiff, a senior care manager, who was

employed by the defendant, to falsify numerous documents, including referral forms, call sheets,

and incident reports, so that the defendant could receive payment from the state for work it had

not actually performed. In response, the plaintiff voiced her concern to Twumasi that she was

not comfortable falsifying the documents. As a result, Twumasi became upset at the plaintiff.

Subsequently, Twumasi made belittling comments about another employee who has a

disability that makes his handwriting difficult to read. The plaintiff expressed that if Twumasi
had an issue with that employee, he should speak to him directly. In response, Twumasi stated

to the plaintiff, “Are you slow? Because if you can read that you must be slow too.” The

plaintiff told Twumasi that it was inappropriate for him to talk about someone’s disability that

way, and that she felt offended by being called “slow.”

On February 9, 2018, when the plaintiff arrived at work she found her desk cleaned out

and discovered that she no longer had access to the defendant’s computer system. That same

day, when Twumasi arrived at work he told the plaintiff, “I don’t want you here today,” and that

he wanted her to see a mental healthcare provider in order to obtain a note stating that she was

competent to handle her work. The plaintiff explained that she did not have any mental health

issues and that she did not need to see a mental health provider. Twumasi became upset and told

the plaintiff to leave and that she could not return until she was cleared by a professional.

Following Twumasi’s instructions, the plaintiff left work to see a mental health counselor, who

gave the plaintiff a note confirming that she had no mental health issues requiring treatment.

When the plaintiff returned to work later that day and provided the note Twumasi requested,

Twumasi refused to allow the plaintiff to return to work. Instead, Twumasi gave the plaintiff a

letter indicating that she was suspended for two weeks, without pay. When the plaintiff

questioned the reason behind her suspension, Twumasi said that her employment was

terminated.

The plaintiff further alleges that prior to these events occurring, Twumasi regularly

injected inappropriate sexual discussions into the workplace, including at one point suggesting

that the defendant host its annual holiday party at a strip club. Twumasi also frequently made

comments about the size of his genitals, and the plaintiff’s physical appearance, including

suggesting that she wear certain outfits in order to attract new clients. On September 19, 2019,

2
the defendant filed the instant motion to strike and memorandum of law in support. The plaintiff

filed an objection to the motion to strike on November 20, 2019. The matter was argued at short

calendar on December 23, 2019.1

DISCUSSION

“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations

of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation

marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188

(2003). “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a

defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the

allegations are taken as admitted. . . . The role of the trial court . . . is to examine the

[complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has]

stated a legally sufficient cause of action.” (Citation omitted; internal quotation marks omitted.)

Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011).

“Moreover [our Supreme Court notes] that [w]hat is necessarily implied [in an

allegation] need not be expressly alleged.” (Internal quotation marks omitted.) Connecticut

Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 240

(2010). “[P]leadings are to be construed broadly and realistically, rather than narrowly and

technically . . . .” (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49

A.3d 180 (2012). “In ruling on a motion to strike, the court is limited to the facts alleged in the

complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240

Conn. 576, 580, 693 A.2d 293 (1997). “A motion to strike is properly granted if the complaint

1
On March 19, 2020, Governor Ned Lamont, issued an executive order which included
suspension of all non-critical court operations and associated time requirements. The issuance of
this memorandum of decision has been delayed pursuant to that order.

3
alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation

marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). On the

other hand, “[i]f facts provable in the complaint would support a cause of action, the motion to

strike must be denied.” (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn.

133, 173, 851 A.2d 1113 (2004).

COUNT ONE - VIOLATION OF GENERAL STATUTES § 46a-60 (b) (4)

The defendant moves to strike the first count of the plaintiff’s complaint alleging

retaliation in violation of General Statutes § 46a-60 (b) (4),2 on the ground that the plaintiff has

failed to sufficiently plead all the required elements of that provision. Specifically, the

defendant argues that the plaintiff failed to allege either that she engaged in a protected activity

or that there was a causal connection between her actions and her discharge. The plaintiff

counters that she engaged in protected activity when she opposed Twumasi’s discriminatory

conduct regarding a disabled employee and that she was terminated in retaliation for her

opposition.

Section 46a-60 (b) (4) provides in relevant part: “It shall be a discriminatory practice in

violation of this section: For any person, employer, labor organization or employment agency to

discharge, expel or otherwise discriminate against any person because such person has opposed

any discriminatory employment practice or because such person has filed a complaint or testified

or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84.”

2
The court notes that P.A. 17-118 amended § 46a-60, to add a new subsection (a) redefining and
redesignating the existing subsections (a) and (b) as subsections (b) and (c). Accordingly, § 46a-
60 (a) (4) is now § 46a-60 (b) (4), as of October 1, 2019. No substantive changes were made to
the text of this provision as relates to this case.

4
 “To establish a prima facie case of retaliation, a plaintiff must show four elements: (1)

that [s]he participated in a protected activity; (2) that the defendant knew of the protected

activity; (3) an adverse employment action against [her]; and (4) a causal connection between

the protected activity and the adverse employment action.” Phadnis v. Great Expression Dental

Centers of Connecticut, P.C., 170 Conn. App 79, 94-95, 153 A.3d 687 (2017). “The term

‘protected activity’ refers to action taken to protest or oppose statutorily prohibited

discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). “The law

protects employees in the filing of formal charges of discrimination as well as in the making of

informal protests of discrimination, including making complaints to management, writing critical

letters to customers, protesting against discrimination by industry or society in general, and

expressing support of coworkers who have filed formal charges.” (Internal quotation marks

omitted.) Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000), cert. denied, 534 U.S. 810, 122 S.

Ct 31, 151 L. Ed. 2d. 9 (2001).

“An employee’s complaint may qualify as protected activity . . . so long as the employee

has a good faith, reasonable belief that the underlying challenged actions of the employer

violated the law.” (Internal quotation marks omitted.) Kelly v. Howard I. Shapiro & Associates

Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013). “The reasonableness of the

plaintiff’s belief is to be assessed in light of the totality of the circumstances.” (Citation

omitted.) Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 292 (2d

Cir. 1998). In the present case, the plaintiff has not alleged facts sufficient to demonstrate that

she had a “good faith, reasonable belief that the underlying challenged actions of the employer

violated the law.” Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C., supra,

14.

5
 “A plaintiff's belief on this point is not reasonable simply because he or she complains of

something that appears to be discrimination in some form. For example, when a hospital

administrator asserted that he had been terminated after complaining that a white employee had

been chosen over qualified black and other minority applicants, we held that the administrator

failed to make out a prima facie case because his objections at the time neither pointed out

discrimination against particular individuals nor discriminatory practices by [the employer] and

were thus directed at something that, as it was alleged, is not properly within the definition of an

unlawful employment practice.” (Emphasis in original; internal quotation marks omitted.) Kelly

v. Howard I. Shapiro & Associates Consulting Engineers, P.C., supra, 716 F.3d 15. “Similarly,

a black police officer who reported overhearing racial slurs made by [other] police officers

against black citizens had not engaged in protected activity despite opposing discrimination by

co-employees against non-employees because his opposition was not directed at an unlawful

employment practice of his employer.” (Emphasis in original; internal quotation marks omitted.)

Id.; see also Drumm v. SUNY Geneseo College, 486 Fed. Appx. 912, 914 (2d Cir. 2012)

(“[P]laintiff’s allegations that her supervisor ‘berated’ her and made other harsh comments . . .

amount only to general allegations of mistreatment, and do not support an inference that plaintiff

had a reasonable good faith belief that she was subject to gender discrimination.”). Further, “in

the context of an ongoing employment relationship . . . . [I]ndividuals reasonably should expect

to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality

conflicts and the like.” (Emphasis added.) Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d

752 (2003).

The plaintiff’s opposition to Twumasi’s alleged comments does not constitute a protected

activity because the plaintiff was not opposing conduct that rose to the level of statutorily

6
prohibited discrimination, but is instead more akin to “workplace gossip, rivalry, personality

conflicts and the like.” Perodeau v. Hartford, supra, 259 Conn. 729. While inappropriate,

Twumasi’s alleged belittling comments about a disabled employee do not rise to the level of a

violation of the law because the plaintiff has not alleged any facts to indicate that Twumasi’s

actions went beyond a few comments, nor has the plaintiff alleged any facts to indicate

discrimination against the disabled employee he made comments about. See Kelly v. Howard I.

Shapiro & Associates Consulting Engineers, P.C., supra, 716 F.3d 10. Therefore, the plaintiff

has failed to state a sufficient claim of retaliation in violation of § 46a-60 (b) (4) in count one of

the complaint.

II

COUNT TWO - VIOLATION OF GENERAL STATUTES §§ 46a-60 (b) (1) & (8)

The defendant moves to strike count two of the plaintiff’s complaint alleging sexual

harassment and hostile work environment in violation of General Statutes §§ 46a-60 (b) (1) and

(8).3 The defendant argues that the plaintiff has not alleged facts sufficient to support a claim of

sexual harassment or a claim of hostile work environment because she has not alleged conduct

that permeated the work environment or altered the conditions of the plaintiff’s employment.

The plaintiff alleges that Twumasi made several lewd comments that were inappropriate for the

workplace, including comments regarding his genitals.

3
General Statutes §§ 46a-60 (b) (1) and (8) state in relevant part: “It shall be a discriminatory
practice in violation of this section: (1) For an employer . . . to discriminate against such
individual in compensation or in terms, conditions or privileges of employment because of the
individual’s race, color, religious creed, age, sex, gender identity or expression . . . . (8) For an
employer . . . to harass any employee, person seeking employment or member on the basis of sex
or gender identity or expression . . . .”

7
 Sexual harassment is defined by statute “[as] any unwelcome sexual advances or requests

for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made

either explicitly or implicitly a term or condition of an individual’s employment, (B) submission

to or rejection of such conduct by an individual is used as the basis for employment decisions

affecting such individual, or (C) such conduct has the purpose or effect of substantially

interfering with an individual’s work performance or creating an intimidating, hostile or

offensive working environment . . . .” (Emphasis added.) General Statutes § 46a-60 (b) (8).

“[C]ourts have uniformly held . . . that a plaintiff may establish a violation of Title VII by

proving that discrimination based on sex has created a hostile or abusive work environment.”

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 91 L. Ed. 2d. 49 (1986).

“[T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to

show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that

is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment. . . . [I]n order to be actionable . . . a sexually objectionable

environment must be both objectively and subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the victim in fact did perceive to be so . . . .”

(Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 699, 41 A.3d

1013 (2012). “Generally, unless an incident of harassment is sufficiently severe, incidents must

be more than episodic; they must be sufficiently continuous and concerted in order to be deemed

pervasive.” (Internal quotation marks omitted.) Gorzynski v. JetBlue Airways Corp., 596 F.3d

93, 102 (2d Cir. 2010).

Ultimately, it is incumbent upon the plaintiff to allege that the level of harassment went

beyond a few stray comments and instead permeated the workplace to such an extent that it

8
affected an employee’s work on a day to day basis. See Patino v. Birken Mfg. Co., supra, 304

Conn. 679. In the present case, the plaintiff has not alleged facts sufficient to indicate that she

was the victim of sexual harassment as defined by the statute or that Twumasi’s conduct created

a hostile work environment because she has not alleged that the comments were a continuous

and pervasive aspect of her working life, nor has she alleged facts to indicate that the comments

had a negative impact on her day to day work. See Redd v. New York State Division of Parole,

678 F.3d 166 (2d Cir. 2012) (isolated incidents are generally not enough to prove hostile work

environment, unless the incident is sufficiently severe).4

The plaintiff alleges that Twumasi made inappropriate comments in that he discussed the

size of his genitals on more than one occasion, mentioned having the office holiday party at a

strip club, and suggested that the plaintiff wear more revealing clothing to attract more clients.

The plaintiff, however, has not alleged that the comments were a frequent and constant feature of

the plaintiff’s employment experience, nor has she alleged that one incident was sufficiently

severe to interfere with her employment, or that the impact of the comments caused anything

4
See also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (plaintiff’s claims
that her supervisor had told her that she had been voted “sleekest ass” in office and that he
deliberately had touched her breasts with some papers that he was holding were “sufficiently
isolated and discrete that a trier of fact could not reasonably conclude that they pervaded [the
plaintiff’s work]”); Bailey v. Synthes, 295 F. Supp. 2d 344, 358 (S.D.N.Y. 2003) (plaintiff’s
claims that supervisors had shown vacation photographs displaying male genitalia, had engaged
in sexually suggestive dancing, had told plaintiff of sexual experience, and had given plaintiff
smaller cigar than those provided to male colleagues not sufficient because actions were
infrequent and isolated, not physically threatening, occurred outside of plaintiff’s daily work
routine, and no evidence they affected her work performance); Lamar v. Nynex Service Co., 891
‘F. Supp. 184 (S.D.N.Y. 1995) (female plaintiff's claim that female supervisor grasped hand to
admire rings and told her she “looked really hot,” made vulgar sexual remarks to groups of
employees, displayed sexually revealing garment to several employees, stared at plaintiff in
hostile manner, and behaved abusively toward her were not sufficiently severe or pervasive to
create hostile work environment).

9
more than momentary discomfort. Therefore, count two fails to state a sufficient claim of sexual

harassment or hostile work environment.

III

COUNT THREE - VIOLATION OF GENERAL STATUTES § 46a-60 (b) (1)

The defendant moves to strike count three of the complaint alleging discrimination

pursuant to § 46a-60 (b) (1), on the ground that the plaintiff fails to allege sufficient facts to state

a claim. Specifically, the defendant argues that the plaintiff fails to allege that she belonged to a

protected class, that she suffered from a disability, that the defendant perceived her to belong to

a protected class, and that her discharge was a result of her perceived disability. The plaintiff

alleges that on February 9, 2018, Twumasi told the plaintiff that he wanted her to go see a

mental healthcare provider to obtain a note stating that she was competent to handle her work.

Although she complied with his requests, Twumasi nonetheless terminated her employment.

Section 46a-60 (b) (1) states in relevant part: “It shall be a discriminatory practice in

violation of this section: For an employer . . . to discriminate against such individual in

compensation or in terms, conditions or privileges of employment because of the individual’s . . .

present or past history of mental disability, intellectual disability, learning disability, [and]

physical disability . . . .” Further, as stated by our Supreme Court, “[a]fter considering the

intended scope of the term physically disabled in the context of the legislative history of the act .

. . we conclude that § 46a–60 (a) (1) protects individuals who are regarded as physically

disabled from employment discrimination. . . . As a result, we conclude that § 46a–60 (a) (1)

prohibits employers from discriminating against individuals whom they regard as physically

10
disabled . . . .” (Citations omitted; emphasis added, internal quotation marks omitted.)

Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 794, 105 A.3d 103 (2014).

“In order for an individual to prove that he or she has been the object of discrimination

because of a perceived mental disability, the person must first show that he or she in fact has

been perceived to have a recognized mental disorder.” Eaddy v. Bridgeport, 156 Conn. App.

597, 598, 112 A.3d 230 (2015). “[A]n individual meets the requirement of being regarded as

having such an impairment if the individual shows that an action (e.g., disqualification from a

job, program, or service) was taken because of an actual or perceived impairment, whether or

not that impairment actually limits or is believed to limit a major life activity.” (Citation

omitted; emphasis in original; internal quotation marks omitted.) Hilton v. Wright, 673 F.3d

120, 129 (2d Cir. 2012).

“Often, a plaintiff cannot prove directly the reasons that motivated an employment

decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through

inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for

an employment action . . . . From a showing that an employment decision was not made for

legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons . . .

.” (Citation omitted.) Poach v. Doctor’s Associates, Inc., Superior Court, judicial district of

New Haven, Docket No. CV-07-40233906-S (September 22, 2008, Zoarski, J.T.R.).

In the present case, reading the complaint in the light most favorable to sustaining the

legal sufficiency of the plaintiff’s claim, the plaintiff has alleged facts that adequately support

her claim of discrimination based on perceived disability. The plaintiff alleges that when she

arrived at work on February 9, 2018, her desk had been cleared out and she no longer had access

to the defendant’s computer system. When Twumasi arrived, the plaintiff inquired about why

11
her desk was empty and why she no longer had computer access. Twumasi allegedly responded

that he wanted her to go see a mental health provider in order to obtain a note stating that she

was competent to handle her work, and that she could not return unless she was cleared. When

the plaintiff returned to work after visiting a mental healthcare provider, however, and provided

a note of competency to Twumasi, he suspended and subsequently terminated her employment.

These allegations are sufficient to support an inference that Twumasi perceived the plaintiff to

have a mental health disability when he called the plaintiff “slow,” when he required her to

provide a letter of mental competency from a mental healthcare provider, and subsequently

terminated her employment despite affirmation of her lack of disability.5 Thus, his action

suggests the lack of a legitimate reason for her termination. See Eaddy v. Bridgeport, supra, 156

Conn. App. 597; see also, Poach v. Doctor’s Associates, Inc., supra, Superior Court, Docket No.

CV-07-40233906-S. For this reason, count three of the complaint alleging perceived disability

discrimination in violation of § 46a-60 (b) (1), cannot be resolved by way of a motion to strike.

5
“Where the legal grounds for [a motion to strike] are dependent upon underlying facts not
alleged in the plaintiff’s pleadings, the defendant must await the evidence which may be adduced
at trial, and the motion should be denied.” Commissioner of Labor v. C.J.M. Services, Inc., 268
Conn. 283, 293, 842 A.2d 1124 (2004). The defendant argues that Twumasi could not have
perceived the plaintiff to have a mental disability at the time he terminated her because she
provided a note from a mental healthcare provider indicating that she did not have a mental
disability. Nevertheless, the facts as alleged, raise the question of whether Twumasi questioned
the plaintiff’s mental competence at the time he terminated her as well as his motivation for
doing so. Because the defendant’s argument depends on facts outside the complaint that may be
further developed during discovery and/or trial, it cannot support granting the present motion to
strike.

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 IV

COUNT FOUR – VIOLATION OF GENERAL STATUTES § 31-51q

The defendant moves to strike count four of the plaintiff’s complaint alleging wrongful

termination, pursuant to General Statutes § 31-51q.6 The defendant contends that the plaintiff’s

complaint is legally insufficient because it does not allege facts that demonstrate she was acting

as a citizen attempting to speak out on a matter of public concern, rather than as an employee

attempting to resolve a private issue, and that the plaintiff failed to direct her speech to the public

or inform the public of her concern regarding Twumasi’s fraud. The defendant further argues

that the plaintiff failed to allege a causal connection between the plaintiff’s comments and her

subsequent termination. The plaintiff alleges that when she opposed the fraudulent activity and

expressed that she did not feel comfortable creating false documentation, she was speaking on a

constitutionally protected matter of public concern as a citizen, which resulted in her

termination.

“Section 31–51q creates a statutory cause of action for damages against [a]ny employer

for any employee who has been subjected to discipline or discharge on account of the exercise

by such employee of rights guaranteed by the first amendment to the United States Constitution

6
General Statutes § 31-51q provides in relevant part: “Any employer . . . who subjects any
employee to discipline or discharge on account of the exercise by such employee of rights
guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of
article first of the Constitution of the state, provided such activity does not substantially or
materially interfere with the employee’s bona fide job performance or the working relationship
between the employee and the employer, shall be liable to such employee for damages caused by
such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as
part of the costs of any such action for damages.”

13
or section 3, 4, or 14 of article first of the Constitution of the state.” (Internal quotation marks

omitted.) Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999). “In order

to plead a violation of § 31–51q, the plaintiff must allege: (1) that [she] was exercising rights

protected by the first amendment to the United States Constitution or by an equivalent provision

of the Connecticut Constitution; (2) that [she] was fired on account of [her] exercise of such

rights; and (3) that [her] exercise of first amendment or equivalent state constitutional rights did

not substantially or materially interfere with [her] bona fide job performance or with [her]

working relationship with [her] employer.” (Citation omitted; internal quotation marks omitted.)

Cassidy v. University of Connecticut Health Center, Superior Court, judicial district of Hartford,

Docket No. CV-10-6010807-S (July 27, 2011, Domnarski, J.).

The Connecticut Supreme Court has held that “under the state constitution, employee

speech pursuant to official job duties on certain matters of significant public interest is protected

from employer discipline in a public workplace, and § 31–51q extends the same protection to

employee speech pursuant to official job duties in the private workplace.” Trusz v. UBS Realty

Investors, LLC, 319 Conn. 175, 179, 123 A.3d 1212 (2015). “Section 31–51q protects from

retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights

that, in turn, protect statements that address a matter of public concern.” Daley v. Aetna Life &

Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). “Whether an employee’s speech

addresses a matter of public concern must be determined by the content, form, and context of

[the speech] as revealed by the whole record. . . . An employee’s speech addresses a matter of

public concern when the speech can be fairly considered as relating to any matter of political,

social, or other concern to the community.” (Citation omitted; internal quotation marks

omitted.) DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). “The statute applies

14
only to expressions regarding public concerns that are motivated by an employee’s desire to

speak out as a citizen.” Cotto v. United Technologies Corp., supra, 251 Conn. 17.

Further, “[w]hen employees speak out about potentially illegal activities of their

employers that affect third parties or the community at large . . . public concerns are implicated.”

(Citation omitted.) Buscetto v. Saint Bernard High School, Superior Court, judicial district of

New London, Docket No. CV-11-6011089-S (July 25, 2014, Devine, J.); see also Kennedy v.

Coca-Cola Bottling Co. of New York, Inc., 170 F. Supp. 2d 294 (D. Conn. 2001) (court

concluded employee’s speech about the sale and use of drugs on defendant’s premises was a

matter of public concern); Miller v. O’Meara, Superior Court, judicial district of Hartford,

Docket No. CV-02-0817587-S (November 23, 2004, Booth, J.) (reports of severely disabled

resident receiving inferior care was a matter of social concern for the community and therefore a

matter of public concern); Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of

New London, Docket No. CV-03-0564783-S (August 19, 2003, Hurley, J.T.R.) (35 Conn. L.

Rptr. 295) (“speech made by an employee concerning an employer’s potential tax evasion

implicates public policy”).

In the present case, the plaintiff alleges that she exercised her first amendment rights

when she declined Twumasi’s direct request and expressed her discomfort in falsifying

documents to defraud the state, which resulted in her termination. Specifically, the complaint

alleges that the plaintiff spoke out as a citizen on a matter of public concern when she opposed

Twumasi’s request to generate fraudulent documents for the upcoming state audit and when she

opposed the request to create fraudulent time sheets for the purpose of receiving payment for

services that the defendant had not rendered.

15
 “As a preliminary matter, in the context of protected speech, there is no difference

between compelled speech and compelled silence. . . . The First Amendment protects both the

right to speak freely and the right to refrain from speaking at all. . . . No entity has the authority

to require a witness to retract his true statements and make statements that are false. . . .

Accordingly, making compelled false statements—which often are prohibited by law—can never

be part of a public employee’s official duties, and thus the refusal to make false statements is

protected by the First Amendment.” (Citations omitted; internal quotation marks omitted.)

Brown v. Office of State Comptroller, 211 F. Supp. 3d 455, 469 (2016).

“In explaining the difference between an affirmative statement and a refusal to speak

dishonestly, the Court highlighted the fact that a refusal to speak dishonestly could never be part

of . . . job responsibilities. . . . Furthermore, the Court pointed out that an employee who accedes

to such demands might subject himself to criminal liability. . . . Surely, an employer does not

have a protectable interest in forcing its employees to commit a crime.” (Citations omitted.)

Brown v. Office of State Comptroller, supra, 211 F. Supp. 3d 469-70. Thus, the plaintiff was not

acting within her role as an employee when she refused to participate in the fraud Twumasi

attempted to induce because such actions can never be part of one’s duties as an employee.

As to the defendant’s second argument that the plaintiff failed to direct her speech to the

public, “an employee may be considered to be speaking as a citizen even though the speech is to

a supervisor, relates to her employment, and was spoken in the workplace. . . . Indeed, courts

have noted the importance of permitting employees to speak about information gained through

the course of their employment. . . . The unique nature of their positions as public employees

enables them to have access to information that other citizens do not have.” (Citations omitted.)

Brown v. Office of State Comptroller, supra, 211 F. Supp. 3d 465.

16
 “We emphasize that our holding that [the plaintiff’s] . . . speech was unprotected does not

rest on the fact that her speech was made in the workplace as opposed to elsewhere. Speech to a

supervisor even in the workplace can be protected as that of a private citizen if it is not made

pursuant to the employee’s official duties as an employee.” (Emphasis added.) Ross v. Breslin,

693 F.3d 300, 307 (2d Cir. 2012). “The First Amendment forbids abridgement of the freedom of

speech. Neither the Amendment itself nor our decisions indicate that this freedom is lost to the

public employee who arranges to communicate privately with his employer rather than to spread

his views before the public. We decline to adopt such a view of the First Amendment.”

(Citation omitted.) Schnabel v. Tyler, 230 Conn. 735, 755, 646 A.2d 152 (1994). Thus, it is

clear that a plaintiff’s speech need not be directed to the public in order for that speech to be

protected. See id. As in the present case, the plaintiff’s refusal to participate in fraud although

directed to Twumasi, is still considered protected speech even though the plaintiff did not

“inform the public.” Thus, the defendant’s argument on this point is unpersuasive.

Finally, both the temporal proximity of the plaintiff’s exercise of her first amendment

rights (on February 7, 2018), and her termination (on February 9, 2018), which were two days

apart, and Twumasi’s alleged anger at the plaintiff’s refusal are sufficient to allege a claim

sounding in wrongful termination pursuant to § 31-51q. The defendant argues that the plaintiff

failed to assert that the defendant discharged the plaintiff because she expressed discomfort with

Twumasi’s alleged request to falsify documents for a state audit. Nevertheless, count four of the

plaintiff’s complaint does allege the causal connection that the defendant claims is absent.

Specifically, the plaintiff’s complaint alleges: “The Defendant’s termination of Plaintiff’s

employment is in violation of Conn. Gen. Stat. § 31-51q in that the Defendant terminated the

Plaintiff on account of her exercise of her free speech rights under Connecticut Constitution on

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matters of public concern.” Complaint, count four, ¶ 39. Therefore, the court finds that the

plaintiff has sufficiently set forth a claim pursuant to § 31-51q.

COUNT FIVE - COMMON LAW WRONGFUL TERMINATION

The defendant argues that the plaintiff cannot properly claim a cause of action for

common law wrongful termination because she has a statutory remedy available and, therefore,

is precluded from asserting a common law claim. The defendant also argues that the plaintiff

failed to allege that her discharge violated an explicit statutory or constitutional provision, or a

judicially conceived notion of public policy. The plaintiff maintains that she has properly

asserted a cause of action for common-law wrongful termination in violation of public policy

because she “alleged that her termination violated numerous public policies as explicitly stated

in counts two and three.”

“[T]he tort of wrongful discharge permits an employee whose employment is otherwise

terminable at will to bring a claim challenging the termination of his employment if the

discharge contravenes a clear mandate of public policy.” (Citation omitted; internal quotation

marks omitted.) Markie v. Red Wolf Broadcasting Corp., Superior Court, judicial district of

Hartford, Docket No. CV-13-6018648-S (June 26, 2014, Devine, J.). Our Supreme Court stated

that “[we] are mindful that courts should not lightly intervene to impair the exercise of

managerial discretion or to foment unwarranted litigation. We are, however, equally mindful

that the myriad of employees without the bargaining power to command employment contracts

for a definite term are entitled to a modicum of judicial protection when their conduct as good

citizens is punished by their employers.” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471,

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477, 427 A.2d 385 (1980). “[P]ublic policy imposes some limits on unbridled discretion to

terminate the employment of someone hired at will.” Id., 476.

“[A] common law cause of action in tort for the discharge of an at-will employee [will be

recognized] if the former employee can prove a demonstrably improper reason for dismissal, a

reason whose impropriety is derived from some important violation of public policy.”

(Emphasis in original; internal quotation marks omitted.) Carbone v. Atlantic Richfield Co., 204

Conn. 460, 466-67, 528 A.2d 1137 (1987), quoting Sheets v. Teddy’s Frosted Foods, Inc., supra,

179 Conn. 475. “A finding that certain conduct contravenes public policy is not enough by itself

to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases

which have established a tort or contract remedy for employees discharged for reasons violative

of public policy have relied upon the fact that in the context of their case the employee was

otherwise without remedy and that permitting the discharge to go unredressed would leave a

valuable social policy to go unvindicated.” (Emphasis in original; internal quotation marks

omitted.) Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 159-60, quoting Atkins v. Bridgeport

Hydraulic Co., 5 Conn. App. 643, 648, 501 A.2d 1223 (1985).

“A common-law approach to a claim of wrongful discharge is barred as long as a remedy

has been made available to address the particular public policy concerns. The question is not

whether the statutory cause of action remains viable as to a particular plaintiff. The fact that a

remedy later becomes unavailable due [to] the running of a limitation period does not mean that

there was no remedy available and therefore a common-law cause of action arises.” Campbell v.

Plymouth, 74 Conn. App. 67, 76, 811 A.2d 243 (2002).

In the present case, the plaintiff has put forth both a claim for statutory wrongful

termination, pursuant to General Statutes § 31-51q, as well as a claim for common law wrongful

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termination alleging the same underlying facts, which indicates that the plaintiff is not without

remedy. Thus, because the plaintiff has a statutory claim for wrongful termination, the common

law claim based on the same facts is unavailable to her. See Burnham v. Karl & Gelb, P.C.,

supra, 252 Conn. 159-60; see also Beauregard v. BTC West Hartford, LLC, Superior Court,

judicial district of Hartford, Docket No. CV-12-6033774-S (December 27, 2013, Peck, J.)

(motion to strike common law wrongful termination granted because plaintiff had pursued

statutory remedies alleging the same facts). Therefore, count five does not sufficiently allege a

cause of action for common law wrongful termination.

CONCLUSION

Accordingly, for all the foregoing reasons, the defendant’s motion to strike counts one,

two and five are hereby granted and the motion to strike counts three and four are hereby denied.

BY THE COURT,

412190
______________________________
PECK, J.T.R.

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