Opinion
This case concerns the applicability of General Statutes § 31-Slq1 to a private workplace dispute involving the placement of American flags at
The plaintiff, Gonzalo Cotto, filed a two count complaint against the defendant, Sikorsky Aircraft, Division of United Technologies Corporation,2 seeking damages for his wrongful discharge, both as a statutory claim under § 31-51qand as a common-law claim under Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980). These claims arose out of the plaintiffs discharge from employment by the defendant following the plaintiffs refusal to display an American flag at his workstation. The trial court, after granting the motion of the defendant to strike the complaint in its entirety, rendered a judgment in favor of the defendant.
The plaintiff appealed to the Appellate Court only with respect to the denial of his statutory claim for relief. The majority of that court, Dupont, J., and Daly,
The opinion of the Appellate Court recites the relevant background. “The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years. The relevant portions of other allegations of the plaintiffs complaint are ... as follows: ‘On or about April 22, 1991, the defendant, acting through [its] management personnel, distributed American flags to employees in the plaintiffs department and it was expected that all employees would display American flags at their workstations. The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag. As a result of the plaintiff’s refusal to display the American flag and as a direct and proximate result of his comments with respect to displaying the flag, he was subjected to threats and harassment from his coworkers. Said threats and harassment were directed toward him by his coworkers with the full support and
To determine whether the plaintiff has stated a valid cause of action, we must decide two questions. First, as a matter of statutory construction, does § 31-51q provide any remedy for an alleged impairment of constitutional rights of free speech at a privately owned workplace? We conclude that the statute does provide such a remedy under the proper circumstances. Second, as a matter of statutory application, does the statute provide a remedy for the employer conduct alleged to have occurred in the present case? We conclude that the statute has no application to the facts alleged in the complaint presently before us. Accordingly, we affirm the judgment of the Appellate Court.
I
STATUTORY CONSTRUCTION
To determine whether the conduct of private employers is within the scope of § 31-51q, we turn to well
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 or section 3, 4 or 14 of article first of the Constitution of the state . . . .” On its face, the statute extends the protection of federal and state constitutional rights in two respects. It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers.4 What is at issue is whether, in so doing, it provides coverage for an employee’s exercise of constitutional rights on private property, namely at a private employer’s workplace.
Our point of departure must be the language of the statute itself. The statute identifies, as the class of those
Read literally, the language employed by the legislature unconditionally includes private employers as well as public employers within the terms of the statute. The phraseology of expressly “including” governmental employers is not readily transmuted into the manifestation of an intention of impliedly “excluding” private employers. The use of the word “any” at the outset of the statutory language reenforces its natural reading to encompass rights at a private workplace. Had the legislature meant to confine the statute to the conduct of governmental actors, as the defendant urges us to conclude, the legislature presumably could have done so directly, by adding “public” or “governmental” before “employer.” To read the statute as limited to governmental actors requires either the deletion of words that the statute contains or the addition of a word that it does not contain. That is not a preferred method of statutory analysis.5
Construing § 31-51q to encompass the infringement of constitutional rights at the private workplace, as the statute literally reads, is entirely consistent with the purpose of the statute. The statute plainly was intended to protect the first amendment and related state constitutional rights of working men and women. As a remedial statute, § 31-51q deserves a generous construction
The legislative history of § 31-51q supports a literal reading of the statute that implements its remedial purpose. The following colloquy among Senator Howard T. Owens, Jr., who sponsored the bill, and three opponents of the bill, namely, Senators Eugene A. Skowronski, John G. Matthews and Anne P. Streeter, is illuminating:6
“Senator Owens: This bill, Mr. President, would make any employer, including the state or any municipality, liable to any employee who is disciplined or discharged because such employee exercises . . . rights guaranteed by the First Amendment to the United States Constitution unless such activity substantially interfered with the employee’s bona fide job performance, the liability would be for damages including punitive damages and reasonable attorney’s fees ....
“Senator Skowronski: Senator Owens, what have been the instances or examples of such discharge in the State of Connecticut that would require passage of this bill which I think has many, many potential problems to it? . . .
“Senator Skowronski: Only partly .... Have there been cases of discharges and disciplines? Have they been numerous? . . .
“Senator Owens: Sometimes, there [are] not always serious abuses and there might not be a proliferation of complaints coming in, but in order to make sure that the rights are protected under the Constitution of the United States, and also under our State Constitution, we have to make sure that there is a warning and a safeguard going out. So that’s why it makes it a very excellent bill.” 26 S. Proc., Pt. 11, 1983 Sess., pp. 3597-600.
Next, Senators Skowronski, Matthews and Streeter all voiced their opposition to the bill. “Senator Skowronski: I rise to oppose the bill because I think it really has the potential for creating many, many problems. We are talking about the exercise of First Amendment rights, some of the broadest rights we have the Freedom of Speech, in particular. I think it is going to really create strain and uncertainty in the labor-management area and in the employer-employee relationship to pass this law and to say that someone can’t be disciplined or discharged for exercising their right of free speech. I would assume this may give anyone the right to say anything to his employer or any other employee and say, well, I’m just exercising my right of free speech even though the exercise of that right of free speech may have a very adverse impact on the orderly operation of the business, and on the relationship between the
“Senator Matthews: I rise in support of Senator Skowronski’s position on the bill. It seems to me that what we have here, as I think has been touched upon, is you have the First Amendment under the Federal Constitution which indicates there are certain elements which are available and free, ah, it doesn’t seem to be necessary that we now have to identify that again in the state statutes by providing the kind of a bill that we have here which does, as it has been pointed out, restrict, in my mind at least, a lot of potential employer-employee relationships which already are being tied down severely. I am not going to go into further detail because I think most of the ideas have been expressed. I think that we don’t need this bill in the sense that it is indicated in the comments of Senator Owens. I think it is a bill which just adds something more to something that is already in existence through the Federal First Amendment of the Constitution. . . .
“Senator Streeter: I also rise to oppose this bill for the same reasons that Senator Skowronski outlined. It seems to me that we have the Federal First Amendment right to cover the general aspect and yesterday we passed the whistle blowing legislation which does guarantee that an employee who is trying to speak out
This colloquy demonstrates that the problem that the legislature intended to address could well be located at aplace of private employment. Senator Owens’ references to “complaints” involving the federal occupational safety laws and to “labor affairs” can readily be understood to relate to the concerns of employees at a private workplace. Id., p. 3599. Those who opposed enactment of the legislation were addressing the same situs. It is hard to see what else Senator Skowronski would have had in mind when he commented that the bill “may give anyone the right to say anything to his employer or any other employee and say, well, I’m just exercising my right of free speech . . . .” Id., p. 3601. It is not plausible that the senators’ colloquy impliedly was limited to issues of employee discipline arising out of expressions of employee opinions only on public property.7
Concededly, there is one piece of legislative history that can be read to support the narrower reading of the statute that the defendant urges us to adopt. The remarks of Representative Richard D. Tulisano, the bill’s sponsor in the House of Representatives, were as follows: “Mr. Speaker, this legislation would establish
The question raised by Representative Tulisano’s remarks is whether he intended to convey a job site limitation by his use ofthe phrase “on the job.’’Although his referent is not entirely clear, in context we are persuaded that he should be understood to have stated that an employee should not be disciplined for the exercise of his “first amendment rights,” as long as that exercise does not affect his performance “on the job.”
Finally, a literal construction of § 31-51q to encompass the protection of employee constitutional rights at a private workplace is entirely consistent with the broad array of statutory and common-law rights that are an acknowledged part of the wider legal landscape of relationships between employers and employees. See generally Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461, 704 A.2d 222 (1997) (statutes should be interpreted in light of existing statutes because legislature is presumed to have created consistent body of law).
As the Appellate Court aptly observed, § 31-51q is analogous to other state statutes that safeguard an employee from discharge for expressions of opinion at
In addition, this court has recognized the existence of a common-law “public policy exception to the employment at-will rule in an effort to balance the competing interests of employer and employee.” Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994) (application of doctrine appropriate where defendant is accused of discharging plaintiff in order to be able to violate statute), citing Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 471 (creating tort of wrongful discharge where defendant allegedly discharged plaintiff because he insisted that defendant comply with
The public policy represented by this broad panoply of existing statutory and common-law rights in the private workplace makes it entirely reasonable to conclude that the legislature, in enacting § 31-51q, intended to afford similar rights to freedom of expression in the same place.9 It is the contrary conclusion that would be more difficult to justify.
In light of all the foregoing, we are persuaded that the legislature meant what it said. Section 31-51q extends protection of rights of free speech under the federal and the state constitutions to employees in the private workplace. The statute is not limited to freedom of speech in the public arena.
II
STATUTORY APPLICATION
Our conclusion that § 31-51q includes protection for free speech rights under some circumstances does not mean that it does so under all circumstances. We must decide whether, on the facts as alleged in his complaint, the plaintiff has stated a cause of action under the statute. Like the majority of the Appellate Court, we conclude that he has not done so.
As a statutory matter, 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. The legislature made its intention in that respect clear by stating expressly, in § 31-51q, that the statute provides a cause of action only against discharge for expressions of opinion that do “not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the. employer . . . .” The statute applies only to expressions regarding public concerns that are motivated by an employee’s desire to speak out as a citizen. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 783-84, 734 A.2d 112 (1999); see also Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999).
As a constitutional matter, the fact that the plaintiff protested an order to display the flag does not mean that he automatically has stated a cognizable constitutional claim. Although the United States Supreme Court has identified the “expressive element in conduct relating to flags”; Texas v. Johnson, 491 U.S. 397, 405, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989); it also has held that the constitutional implications, under the first amendment, of conduct with respect to the flag depend on “the context in which [that conduct] occurred.” Id.
In the present case, the nub of the plaintiffs allegation of employer misconduct implicating his first amendment rights is that “[o]n or about April 22, 1991, the
The long and short of the performance that the defendant allegedly required of the plaintiff was that he was directed to take a flag from place A, a box containing such flags, and move it to place B, his workstation. Even though the flag is a symbol of government, the plaintiff has cited no judicial authority for the proposition that every work assignment involving the flag implicates an employee’s constitutional rights of free speech. See Troster v. Pennsylvania State Dept. of Correction, 65 F.3d 1086, 1092 (3d Cir.), cert. denied, 516 U.S. 1047,
It is instructive to compare the plaintiffs case with that which would have arisen if, hypothetically, he had arrived at his workstation to find that his supervisor had affixed a flag to every workstation including his own. Although the plaintiff might have felt aggrieved by finding the flag there, he would have been hard put to articulate a viable constitutional basis for his grievance. He could not have relied on Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), because of the absence of any direction that he do or say anything related to his own political beliefs. He could not have relied on Wooley v. Maynard, 430 U.S. 705, 713, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), because his own property would not have been commandeered to convey to the public a political belief to which he did not subscribe. He could not have relied on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569-70, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), because he would not have been required to be identified or associated with his employer’s political message. In sum, the message of the flag reasonably could not have been attributed to him personally. Under such circumstances, even though the symbolism of the flag may often be a matter of public concern, a complaint based on having to see the flag at a workstation would not, in all probability, have stated a valid constitutional claim.
From a first amendment point of view, it is difficult to see a persuasive distinction between that hypothetical case and the case presently before us. A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs. Because a flag was to be affixed to
The plaintiffs claim, therefore, devolves into the assertion that, although he was not, in law, compelled to articulate or to refute any political belief, his aversion to the positioning of a flag at his workstation gave him a constitutional right to protest. It may be that a managerial decision about a new placement of flags in the workplace is a grievable change in working conditions, but that would not be a constitutional claim. With respect to any such constitutional claim, it suffices in this case that the plaintiff has not made it.11 Throughout, his argument has focused on the proposition that the conduct of the employer has compelled him to engage in an expression of political speech. See footnote 1 of this opinion. That is the argument that cannot be sustained either by the pleadings or by the case law cited by the plaintiff.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, J., concurred, and CALLAHAN, C. J., and BORDEN and MCDONALD, Js., concurred in the result.
1.
General Statutes § 31-51q provides: “Any employer, including the state and any instrumentality or political subdivision thereof, 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
2.
Although the plaintiff named as defendants both Sikorsky Aircraft and United Technologies Corporation, the parties throughout this litigation have considered these two entities as one. Following the practice of the parties, we refer to the defendant in the singular.
3.
We granted certification to appeal limited to the following issue: “Did the Appellate Court properly hold that the plaintiffs expression or his refusal to display a political symbol was not protected by the first amendment to the United States constitution or by article first of the constitution of Connecticut.” Cotto v. United Technologies Corp., 245 Conn. 915, 719 A.2d 1167 (1998).
The defendant filed a statement of alternative grounds for affirmance premised on the proposition that § 31-51q does not guarantee the right of free speech on an employer’s private property.
4.
It is undisputed that the first amendment protects expressions of public interest by government employees that occur at the workplace. Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987); Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Schnabel v. Tyler, 230 Conn. 735, 749, 646 A.2d 152 (1994).
5.
The contrary view expressed by Justice Borden’s concurring and dissenting opinion relies, in part, on the constitutional rights of employers to express their own political views. The defendant in the present case has articulated no such claim. In particular, unlike (he defendant in Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888 (1st Cir. 1988), cert. denied, 488 U.S. 1043, 109 S. Ct. 869, 102 L. Ed. 2d 993 (1989), the defendant in the present case has not alleged that statutory protection of appropriately limited expressions of points of view on matters of public concern by its employees would pose a threat to its economic or physical well-being.
We disagree, therefore, with Justice Borden’s view that Redgrave sheds significant light on the outcome of this case. As a matter of law, we note that the court’s opinion in Redgrave expressly eschews a decision based on constitutional grounds, finding “no need to discuss the existence or content of a First Amendment right not to perform an artistic endeavor.” Id., 911. More important, as a matter of fact, in this case, unlike Redgrave, the defendant has not proffered a factual claim that it was confronted with the risk that its own views about the flag would be confused with that of the plaintiff, who is not a celebrity and who is not otherwise known to the public at large. We need not decide today, therefore, howpossibly conflicting rights of free speech between employer and employee should be resolved pursuant to § 31-51q.
6.
When analyzing the legislative history of a statute, we attach special significance to the statements of the legislators who sponsor the bill at issue, such as Senator Owens in the present case. See, e.g., Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 395 n.22, 709 A.2d 1116 (1998).
7.
Although the comments of opponents of a bill ordinarily are entitled to less weight than are those of its proponents, there are instances in which we have found them to be relevant. See, e.g., Castagno v. Wholean, 239 Conn. 336, 349, 684 A.2d 1181 (1996) (citing statement made on Senate floor by senator who opposed bill); Washington v. Meachum, 238 Conn. 692, 713-14, 680 A.2d 262 (1996) (citing statements made on Senate floor by two senators who opposed bill). Statements made on the floor of the legislature may be relevant even if they are not controlling. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991).
8.
Although it can be argued that many of these statutes are somewhat distinguishable because the employees’ protected expressions relate to the upholding of a law, that is not true for all of the statutes. See, e.g., General Statutes § 31-48b (providing criminal sanctions against private employer who records or monitors employee’s activities in areas designed for personal health or comfort of employees, or in areas for safeguarding employee possessions); General Statutes § 31-51g (providing fine against private employer if it requires employee to take polygraph test); General Statutes § 53-303e (b) (prohibiting private employer from retaliating against employee for not working on Sabbath day because of religious observance).
9.
The legislature’s understanding of the policy implications of § 31-51q is demonstrated, furthermore, by its inclusion of a safety net to protect employers from frivolous claims of constitutional violations. The section provides, in relevant part: “If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.” Therefore, an employer that successfully defends itself from an unwarranted claim under § 31-51q is not left without a remedy.
10.
We recognize that the plaintiff also alleges that the defendant supported the threats and harassment that he received from his coworkers when he refused to display the flag. As we read the complaint, however, the alleged culpability of the defendant’s conduct depends upon whether the plaintiff was justified in his refusal to follow the defendant’s direction. The plaintiff states in his brief that the reason that he is entitled to relief is that his expression of his beliefs “was in reaction to the act of the employer itself coercing him to display the symbol.”
11.
The plaintiff states, in his brief, that he is entitled to relief because his expression of his beliefs “was in reaction to the act of the employer itself coercing him to display the symbol.” (Emphasis added.)