Burnham v. Karl & Gelb, P.C.

MCDONALD, C. J.,

dissenting. I disagree with the majority’s conclusion that the plaintiffs common-law wrongful discharge claim is precluded because she had administrative remedies available under federal law; 29 U.S.C. § 660 (c) (2); for the defendants’ allegedly retaliatory termination of her employment. The majority concludes that the plaintiffs common-law wrongful discharge claim is prohibited because 29 U.S.C. § 660 (c) (2) provides an adequate remedy for employees who allege that they were discharged in retaliation for reporting conduct that is prohibited under the Occupa*172tional Safety and Health Act (OSHA) of 1970. 29 U.S.C. § 651 et seq.

In Sheets v. Teddy’s Frosted Food, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980), we recognized a common-law cause of action in tort for the discharge of an at-will employee “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.” More recently, this court concluded that “claims brought pursuant to the public policy limitation on the at-will employment doctrine can be predicated on the violation of public policy expressed in a federal statute.” Faulkner v. United Technologies Corp., 240 Conn. 576, 585-86, 693 A.2d 293 (1997).

The federal courts have interpreted Connecticut law to preclude a common-law wrongful discharge claim only when an adequate administrative remedy existed. See McCarthy v. Dept. of Mental Health, 55 F. Sup. 2d 110, 117 (D. Conn. 1999) (common-law remedy precluded where adequate statutory remedy available); Bennett v. Beiersdorf 889 F. Sup. 46, 49 (D. Conn. 1995) (common-law remedy precluded where sufficient statutory remedy available). Because the federal statutory remedy in the present case provides an inadequate remedy giving little justice to the plaintiff, this action should not be barred. Other jurisdictions have agreed with this view. See Flenker v. Willamette Industries, Inc., 266 Kan. 198, 967 P.2d 295, 300-303 (1998) (common-law remedy permitted because remedy under OSHA inadequate); D’Angelo v. Gardner, 107 Nev. 704, 719-22, 819 P.2d 206 (1991) (common-law remedy permitted because remedy under Nevada OSHA not comprehensive).

As the majority acknowledges, the plaintiffs remedy under 29 U.S.C. § 660 (c) (2) is not equivalent to a *173common-law wrongful discharge cause of action. The federal statute provides that any employee who believes that he has been discharged or otherwise discriminated against by any person for reporting violations of OSHA may file a complaint with the secretary of labor. If, after conducting an investigation, the secretary of labor determines that the employee was discharged for reporting such violations, the secretary shall bring an action in United States District Court against the employer. The decision to bring an action is in the sole discretion of the secretary of labor.

Because the secretary has broad discretion in determining whether to bring an action, there is a real possibility that a retaliatory discharge may go unre-dressed. “[T]he Secretary’s discretion is a significant limitation on the employee’s right of redress. What would, in a common-law tort action, be the decision of the plaintiff and plaintiffs counsel is, under [29 U.S.C. § 660 (c) (2)], the decision of a government employee. The concerns of the government employee could range from budget constraints to political pressure.” Flenker v. Willamette Industries, Inc., supra, 967 P.2d 301. Because of the many factors the secretary must consider before bringing an action, it may be that OSIIA’s important public policy would not be vindicated in this case. This would not occur if the plaintiff were allowed to bring an action and enforce that policy. I would also note that there is nothing in the language of 29 U.S.C. § 660 (c) to support the conclusion that the administrative remedy in 29 U.S.C. § 660 (c) is the exclusive remedy.

I accordingly respectfully dissent.