Sheets v. Teddy's Frosted Foods, Inc.

Cotter, C. J.

(dissenting). I cannot agree that, on the factual situation presented to us, we should abandon the well-established principle that an indefinite general hiring may be terminated at the will of either party without liability to the other. Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629 , 153 A.2d 426 ; Fisher v. Jackson, 142 Conn. 734, 736 , 118 A.2d 316 ; Carter v. Bartek, 142 Conn. 448, 450 , 114 A.2d 923 ; Boucher v. Godfrey, 119 Conn. 622, 627 , 178 A. 655 . The majority by seeking to extend a “modicum” of judicial protection to shield employees from retaliatory discharges instead offers them a sword with which to coerce employers *481 to retain them in their employ. In recognizing an exception to the traditional rules governing employment at will and basing a new cause of action for retaliatory discharge on the facts of this case, the majority is necessarily led to the creation of an overly broad new cause of action whose nuisance value alone may impair employers’ ability to hire and retain employees who are best suited to their requirements. Other jurisdictions which have recognized a cause of action for retaliatory discharge have done so on the basis of a much clearer and more direct contravention of a mandate of public policy.

The majority seeks to minimize the fact that in Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184 , 344 P.2d 25 (refusing to commit perjury); Frampton v. Central Indiana Gas Co., 260 Ind. 249 , 297 N.E.2d 425 (filing workmen’s compensation claim); Sventko v. Kroger Co., 69 Mich. App. 644 , 245 N.W.2d 151 (same); Brown v. Transcon Lines, 284 Ore. 597 , 588 P.2d 1087 (same); Glenn v. Clearman’s Golden Cock Inn, Inc., 192 Cal. App. 2d 793 , 13 Cal. Rptr. 769 (engaging in union activity); Nees v. Hocks, 272 Ore. 210 , 536 P.2d 512 (performing jury duty); Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28 , 386 A.2d 119 (same); the retaliatory discharges directly contravened a clear statutory or constitutional mandate by viewing these cases as having a least common denominator of establishing “the principle that public policy imposes some limits on unbridled discretion to terminate the employment of someone hired at will.” Nevertheless, the thrust of these cases is that a retaliatory discharge in the particular circumstances at issue would be within certain statutory prohibitions; Frampton v. Central Indiana *482 Gas Co., supra, 252; defeat the purpose of the legislative scheme; Sventko v. Kroger Co., supra, 648; or undermine the state’s declared policy; Petermann v. International Brotherhood of Teamsters, supra, 189.

In contrast, the purposes of the statute the majority would rely on, the Connecticut Uniform Food, Drug and Cosmetic Act, General Statutes §§ 19-211 through 19-239, can only be considered as, at most, marginally affected by an allegedly retaliatory discharge of an employee who observed the supposed sale of shortweight frozen entrees and the use of U. S. Government Certified “Grade B” rather than “Grade A” vegetables. A retaliatory discharge in the present case would not necessarily thwart or inhibit the Connecticut Uniform Food, Drug and Cosmetic Act’s purpose of protecting the consumer. The plaintiff, if he desired to protect the consumer, could have communicated, even anonymously, to the commissioner of consumer affairs his concerns that his employer was violating the Food, Drug and Cosmetic Act so as to invoke the statute’s enforcement mechanisms. See General Statutes §§ 19-214 through 19-217. To further and comply with the public policy expressed in Connecticut’s Uniform Food, Drug and Cosmetic Act and to avoid the exceedingly remote possibility of criminal sanctions, 1 the plaintiff need not have jeopardized his continued employment. There is no indication that the plaintiff has either, before or after his dis *483 charge, informed or even attempted to inform the commissioner of consumer protection of violations the plaintiff claims to have first noted in his fourth year as the defendant’s quality control director and fourth month as its operations manager. Unlike those cases where an employer allegedly discharged employees for engaging in union activities or filing workmen’s compensation claims and the discharge itself contravened a statutory mandate, in the present case the discharge itself at most only indirectly impinged on the statutory mandate.

Consequently, the majority seemingly invites the unrestricted use of an allegation of almost any statutory or even regulatory violation by an employer as the basis for a cause of action by a discharged employee hired for an indefinite term. By establishing a cause of action, grounded upon “intentionally tortious conduct,” for retaliatory discharges which do not necessarily in and of themselves directly contravene statutory mandates, the majority is creating an open-ended arena for judicial policy making and the usurpation of legislative functions. To base this new cause of action on a decision as to whether an alleged reason for discharge “is derived from some important violation of public policy” is not to create adequate and carefully circumscribed standards for this new cause of action but is to invite the opening of a Pandora’s box of unwarranted litigation arising from the hope that the judicial estimate of derivation, importance, and public policy matches that of the plaintiff.

Moreover, this is policy making that the Connecticut legislature recently declined to undertake. In 1974, the Connecticut General Assembly considered and rejected a bill which would have provided that “[a]ny employee [including private *484 sector employees] hired for an indefinite term, may be dismissed only for just cause or because of the employer’s reduction in work force for business reasons.” H.B. No. 5179,1974 Sess. Representative Francis J. Mahoney, the bill’s sponsor, gave examples of the kind of discharges he intended the bill to cover: discharges for overlooking violations of building codes or for campaigning for the wrong political party. 17 H.R. Proc., Pt. 5, 1974 Sess., pp. 2689, 269A-95. 2 Thus, “just cause” in the overwhelmingly rejected 1974 bill was meant to encompass the kinds of retaliatory discharge that the majority approves as a new cause of action. Furthermore, the most recent legislature enacted a statute protecting “whistle blowing” state employees; Public Acts 1979, No. 79-599; and in Public Acts 1979, No. 153, addressed the problem of retaliatory dismissals of building officials. The legislature is thus adopting appropriate remedies for certain types of retaliatory discharges at its own considered pace and there appears to be no urgency for this court to violate that measured momentum by creating a broadly based new cause of action. In these circumstances, this court should consider itself precluded from substituting its own ideas of what might be wise policy in place of a clear expression of legislative will. See Penfield v. Jarvis, 175 Conn. 463, 475 , 399 A.2d 1280 ; United Aircraft Corporation v. Fusari, 163 Conn. 401, 415 , 311 A.2d 65 .

Finally, it should be reiterated that the minority of jurisdictions which have created a cause of action *485 for retaliatory discharges have done so with cantion and when the employee termination contravenes a clear mandate of public policy. 3 It is because the majority abandons that caution and for the reason that the factual situation before us does not demonstrate a “wrongful discharge where the discharge contravenes a clear mandate of public policy” that I feel compelled to dissent.

In this opinion Loiselle, J., concurred.

There is no allegation in the plaintiff’s amended complaint that he was exposed to criminal liability by the defendant’s alleged violations and it should be noted that those presumed violations could well fall within the Uniform Food, Drug and Cosmetic Act’s provision for ' minor violations which the commissioner of consumer protection is not required to report to the state’s attorney for possible institution of criminal proceedings. General Statutes § 19-218.

As the trial court points out in its memorandum of decision, the 1974 bill was just one of four bills introduced in recent years that the General Assembly has failed to pass which were aimed at providing a remedy for employees who claimed unjust discharges. The other three bills were No. 5151, 1975 Sess.; No. 5299, 1976 Sess.; No. 7568, 1977 Sess.

Even the examples the majority cites of recent cases from other jurisdictions which acknowledge a cause of action for retaliatory discharge are distinguishable from the present ease and exhibit considerable circumspection. In Pierce v. Ortho Pharmaceutical Corporation, 166 N.J. Super. 335 , 399 A.2d 1023 , the court, upon declaring that there should be a trial to determine whether the plaintiff’s alleged retaliatory discharge was in fact and in law wrongful, stated (p. 1026), inter alia: “[I]f there is to be such an exception to the at-will employment rule, it must be tightly circumscribed so as to apply only in cases involving truly significant matters of clear and well-defined public policy and substantial violations thereof. . . . [T]he adoption of any such new doctrine must be grounded in a specific factual and legal context resulting from a plenary hearing, at which the proofs and public policy considerations involved will be fully developed and taken into account in the final determination. As indicated, we express no views on this issue. The matter should be decided in the first instance by the trial court after a hearing.”

In Trombetta v. Detroit, Toledo & Ironton R. Co., 81 Mich. App. 489, 498 , 265 N.W.2d 385 , the court ruled that although a cause of action was stated because the defendant’s actions clearly violated the law of the state, the trial court’s granting of the defendants’ motion for summary judgment was not error .because the plaintiff failed to submit any admissible evidence at trial to contradict the sworn statements made by the defendants’ agents. In Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W. Va.), the court was confronted with outrageous circumstances: initial firing, rehiring, demotion, harassment, destruction of incriminating files, collusion between bank officers and bank directors, false promises of confidentiality by bank officers and auditors, an acknowledgment of illegality by a bank director, and finally discharge. In Harless , the plaintiff informed outside regulatory authorities of his employer’s violations and those violations of a statute were clearly substantial and intentional. Id., 275 .