JANET BOND ARTERTON, District Judge.
Plaintiff Robert Beamon brought this action against Defendant Yale-New Haven Hospital, Inc. ("YNHH") alleging employment discrimination based on race in violation of Title VII of the Civil Rights Act (Count One), retaliation in violation of Title VII (Count Two), retaliation in violation of the Family Medical Leave Act (Count Three), and retaliation in violation of § 31-51a of the Connecticut General Statutes (Count Four). Defendant now moves [Doc. # 24] to dismiss Count Four. For the following reasons, Defendant's Motion is granted.
Plaintiff alleges the following facts in his Amended Complaint [Doc. # 20]. He had been employed by Defendant since November 2011 as a surgical technician and had a productive work record through 2014. (Am. Compl. ¶¶ 5, 8.) On June 5, 2014 he assisted with a brain surgery on a seven-year-old child. (Id. ¶ 9.) During the procedure, Plaintiff "reached over to grab a line as part of his normal process," but was elbowed by the surgeon, Dr. Derek Steinbacher (the "Doctor"). (Id. ¶¶ 10, 13-14.) Plaintiff initially thought the contact was accidental, but when he "attempted to connect the line again, Dr. Steinbacher physically interfered again, but this time a bit harder." (Id. ¶¶ 14-15.) Finally, when Plaintiff attempted to connect the line a third time, "Dr. Steinbacher jabbed him hard in his abdomen," after which Plaintiff yelled to ask what Dr. Steinbacher thought he was doing and requested that he not hit him again. (Id. ¶ 19.) At that point, the Facilitating Nurse in the room "asked the Plaintiff to back away from the field [and] not to pass Dr. Steinbacher any scalpel blades" and after being relieved by another technologist, Plaintiff and the nurse left the operating room. (Id.)
Plaintiff reported the assault to the Charge Nurse and Department Manager, after which he met with the Medical Director of Peri-Operative Services and the Patient Services Manager for Peri-Operative Services. (Id. ¶¶ 11, 18-19.) He was reportedly advised that "it would be best for him to `forget' the incident." (Id. ¶ 19.) At some point thereafter, Plaintiff learned that Dr. Steinbacher had "verbally assaulted" minority coworkers in the past, and that "there were concerns regarding his anger and inappropriate behavior in other contexts."
In response to this report, Plaintiff was advised that an investigation was underway. However, Dr. Steinbacher was not placed on leave and was permitted to continue performing surgeries. (Id. ¶ 23.) "Based on the situation, [Plaintiff] consulted with his physician and was placed on a leave of absence pending the outcome of the investigation" because he "was uncomfortable participating in surgical procedures with a surgeon who was unable to physically control himself and make the patient's safety and well-being the priority." (Id. ¶ 24.) During his absence, Plaintiff "made multiple inquiries of the Hospital [Human Resources] department and the management team regarding the investigation," including "his concerns regarding safety of employees and patients and the assault, but was either ignored or told that the investigation was ongoing." (Id. ¶ 25.)
On June 17, 2014 Plaintiff suggested that his concerns were not being taken seriously because of his race (id. ¶ 6, 25), and on June 19 he reiterated his distress about Dr. Steinbacher's continued presence at the hospital (id. ¶ 30). More than a month later, on July 31, 2014, Defendant terminated Plaintiff's employment because he supposedly had not completed the paperwork required to take a leave of absence. (Id. ¶ 26-27.) Although Plaintiff explained "that he still needed information from his employer to complete the FMLA paperwork and that he was simply following the directions that Defendant's FMLA administrators had provided him," his request for reconsideration was denied. (Id. ¶ 27.)
In Count Four, Plaintiff alleges that "Defendant's conduct in subjecting Plaintiff to discipline and discharge constitutes a violation of § 31-51q of the Connecticut General Statutes."
"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.'" DiMartino v. Richens, 263 Conn. 639, 667 (2003) (quoting Connick v. Myers 461 U.S. 138, 150 (1983)); see also City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004) ("[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication."). The critical question is whether the employee's speech was calculated to redress personal grievances or whether it had a broader public purpose. Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008); see also Cappiello v. Fitzsimmons, No. CV030478253S, 2005 WL 2009569, at *5 (Conn. Super. Ct. Aug. 3, 2005) (Section "31-51q applies to situations where the employee is motivated to champion the rights of others as a concerned citizen rather than airing a personal grievance.")). It is a court's responsibility to determine, as a matter of law, which topics are considered to be of public concern. Daley, 249 Conn. at 782; see also Munafo v. Metro. Transp. Auth., 285 F.3d 201, 211 (2d Cir. 2002) ("The issue of whether the plaintiff has asserted a violation of a constitutional right at all is a purely legal question.") (internal quotation marks omitted). But, it is within the province of the jury to determine whether an employee's statements address such a topic by "looking to the content, form and context of the particular statements in question." Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 782 (1999) (citing Connick, 461 U.S. at 147-48).
Defendant argues that Plaintiff cannot meet the threshold "public concern" requirement of Section 31-51q because his claims are "clearly personal in nature, arising from a single, isolated event purportedly occurring in YNHH's operating room on June 5, 2014" and therefore that Plaintiff's Count Four must be dismissed. Plaintiff, however, contends that his "memorandum expressing safety concerns constitutes an exercise of free expression guaranteed by the First Amendment to the United States Constitution and Sections 3, 4 and 14 of Article First of the Constitution of the State of Connecticut." (Am. Compl. ¶ 33.) Therefore, the question posed by this motion to dismiss is whether, as a matter of law, Plaintiff's speech as alleged in the Complaint plausibly relates to a topic of public concern protected by Section 31-51q.
Plaintiff claims his speech is protected because it pertained both to employee and patient safety, both of which he asserts are topics of public concern. Defendant recognizes that in some circumstances patient and employee safety in a hospital may be a matter of public concern,
Plaintiff's claimed protected speech is his June 10 memorandum to Defendant's management in which he states "I understand that the Hospital may lose money if a surgeon has to be put on leave or dismissed but the patients['] safety and that of employees who work at this Hospital should supersede that" (Am. Compl. ¶ 30.) The basis for the alleged safety concern is that the Doctor's conduct during the incident "caused a disruption in the Operating Room, an unnecessary change in staffing and placed the patient's safety and well-being at risk" (Am. Compl. ¶ 20), and "there were concerns regarding his anger and inappropriate behavior in other contexts" such as instances of his having "verbally assaulted and threatened other minority workers" (Am. Compl. ¶ 19).
Defendant maintains that Plaintiff's allegations of other related conduct in Paragraph 19 are conclusory assertions that are "(i) insufficient to defeat a motion to dismiss . . . and (ii) completely devoid of specifics, making their purported connection to [Plaintiff's] complaint or some other matter of political, social, or other concern to the community nothing more than rank speculation." (Def.'s Mot. to Dismiss at 6) (internal citations and quotation marks omitted.)
The Court agrees. Plaintiff's allegations of verbal assaults against other co-workers lack any factual detail that would implicate patient or employee safety, and similarly the vague allegation that the Doctor behaved inappropriately in other contexts, without any facts describing this behavior and connecting it to the endangerment of patients or other employees, is no more than a conclusory allegation. See Milardo v. Town of Westbrook, 120 F. Supp. at 217 ("[A] plaintiff with a purely personal grievance against her employer cannot transform her suit into one affecting the public interest simply by adorning her complaint with conclusory allegations of widespread misconduct or systemic abuses."); Heusser v. Hale, 777 F.Supp.2d 366, 381 (D. Conn. 2011) ("These accusatory allegations are entirely conclusory. There are no specific or wellpleaded factual allegations regarding a practice or history or discriminatory treatment of the other individuals.") Therefore, the Court concludes that because Plaintiff's Complaint is devoid of any specifics supporting a link between the Doctor's other alleged verbal assaults or inappropriate behavior and any topic of public concern, the only possible basis for claiming protection under Section 31-51q is the single June 5 incident where Plaintiff alleges he was intentionally elbowed and jabbed several times by the Doctor.
The question then becomes whether this single workplace encounter constitutes a matter of public concern. Plaintiff's Opposition argues "the safety of a hospital [is a] matter[] of concern for every member of the public who may be a patient there" and therefore Plaintiff's "comments to Defendant were within the context of a matter of general public concern." (Pl.'s Opp'n at 9). However, such reasoning could render every dispute about conditions in a hospital a constitutional question. See Cotto, 251 Conn. at 17 (Warning that "a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question."). Instead, the Court is counseled to examine whether the speech had a broader public purpose or merely addressed a personal grievance. See Ruotolo, 514 F.3d at 189.
Plaintiff argues the facts here are analogous to those in Munafo, where the plaintiff public transit worker complained about safety problems with public transportation trains, including employees being required to operate trains without brakes, work without respiratory equipment, and operate in dangerous proximity to a live third rail. 285 F.3d at 212. The court determined that the worker's complaints pertained to ongoing, pervasive and system-wide safety issues impacting employees and public transit riders alike on a daily basis and therefore amounted to more than personal grievances. Id. at 212-13. It is difficult to see how Plaintiff's Complaint could be read to allege facts of this nature, given its clear focus on a single workplace incident essentially involving one doctor and Plaintiff.
Plaintiff's reliance on DiMarco v. Rome Hospital & Murphy Hospital is equally unavailing. No. 88-CV-1258, 1991 WL 336000 (N.D.N.Y. July 1, 1991). There, a plaintiff doctor complained to the hospital, and later the New York State Department of Health, about the competency of the individuals responsible for the overall management of the hospital, certain of the hospital's general practices, and the conduct and judgment of other doctors and the nursing staff. Id. at *1. The court held that based upon the overall record on summary judgment, the plaintiff's speech related to matters of public concern because he "continually expressed his concern for his patients' well-being and for the general workings of the [h]ospital" and because "overall, it [did] not appear that [the plaintiff's] complaints were based on his personal dissatisfaction, but were instead because of his concern as a professional." Id. at *8. Like Munafo, DiMarco is clearly distinguishable because Plaintiff in this case has identified no pattern or practice addressed by his speech that would constitute a matter of public concern and Plaintiff had a clear personal stake in complaining to Defendant about the Doctor.
The Court finds the allegations of this case more in line with those cited by Defendant where the courts determined that the plaintiffs' speech related to purely personal complaints. For instance, the Second Circuit affirmed a district court's determination that a state correctional facility nurse's speech focused on her own work situation where she complained that white employees with less seniority were promoted over her and received better treatment, despite the fact that she also specifically complained about forced overtime and under-staffing, both of which the Second Circuit noted might implicate concerns for staff and patient safety in another context. Norton v. Breslin, 565 F. App'x 31, 34-35 (2d Cir. 2014). Plaintiff admits he was at least in part "lamenting his personal situation after [the Doctor's] assault," (Pl.'s Opp'n at 9) which resembles the Norton plaintiff's acknowledgment in her brief that she was partially concerned for her own well-being when she complained of over-staffing. See id. at 35. The Second Circuit found that the plaintiff's race-based claims were "a quintessential employee grievance" not protected by the First Amendment. Id. at 34.
In Markese v. Manafort Brothers, the plaintiff jackhammer operator complained of constant exposure to hazardous breathing conditions on a road repair project due to an excess of concrete dust being produced by the jackhammers excavating the road beds. No. HHDCV116022852, 2012 WL 3264033, at *1 (Conn. Super. Ct. July 17, 2012). The defendant argued the plaintiff's Section 31-51q claim must be dismissed because his allegations of an unsafe workplace related to his job duties and not a topic of public concern, which the plaintiff attempted to rebut by arguing that because his speech contemplated illegal or dangerous activities by his employer it therefore plainly related to a matter of public concern. Id. at *3. The court agreed with the defendant, determining that the allegations in the complaint did "not concern anyone other than the plaintiff and his working conditions" and holding that his "comments about workplace safety and illegality . . . cannot be read as expressions regarding public concerns that were motivated by the plaintiff's desire to speak out as a citizen." Id. at 4. Thus, the Markese Court rejected the suggestion that any complaint relating to workplace safety implicates a matter of public concern. Id.
These cases, along with Cotto's caution to be mindful of the risk of transforming every dispute about conditions of employment in a hospital into a constitutional question, guide this Court's analysis. See 251 Conn. at 17. Here, looking at the Complaint as a whole, Plaintiff's focus in writing his June 10 memo was the conditions of his own work environment, an obviously personal matter. Although one line in his memo to Defendant claims concern for patient and employee safety, this alone does not automatically require finding that Plaintiff's speech is constitutionally protected. Unlike in Munafo and DiMarco, any purported concern for employee or patient safety was based entirely on one incident that potentially endangered only Plaintiff himself and the young patient in the operating room. Moreover, Plaintiff was admittedly "deeply concerned by [the Doctor's] conduct and the disruption it caused in the Operating Room" (Am. Compl. ¶ 20), which resulted in his taking a leave of absence because he was not comfortable continuing to work with the Doctor after the incident (Id. ¶ 24). Thus, Plaintiff's Complaint alleges a "quintessential employee grievance" stemming from the Doctor's conduct in the operating room on June 5. See Norton, 565 F. App'x at 34.
The Court concludes that even taking Plaintiff's factual allegations as true, his Complaint alleges only an isolated workplace encounter that is not a "subject of legitimate news interest." See City of San Diego, Cal., 543 U.S. at 83-84. Consequently, Plaintiff fails to meet the threshold pubic concern requirement for protected speech under Section 31-51q and his claim must be dismissed.
For the foregoing reasons, Defendants' Motion to Dismiss Count Four is granted.
IT IS SO ORDERED.
Conn. Gen. Stat. § 31-51q.
