179 Conn. 471 (1980) | Cited 195 times | Supreme Court of Connecticut | January 22, 1980

The issue in this case is whether an employerhas a completely unlimited right to terminatethe services of an employee whom it hashired for an indefinite term. The plaintiff, EmardH. Sheets, filed a complaint that as amendedalleged that he had been wrongfully dischargedfrom his employment as quality control directorand operations manager of the defendant, Teddy'sFrosted Foods, Inc. The defendant responded with amotion to strike the complaint as legallyinsufficient. The plaintiff declined to pleadfurther when that motion was granted. From theconsequent rendering of judgment for thedefendant, the plaintiff has appealed to thiscourt.

Since this appeal is before us pursuant to amotion to strike,1 we must take the facts tobe those alleged in the plaintiff's complaint asamended, and must construe the complaint in themanner most favorable to the pleader. StradmoreDevelopment Corporation v. Commissioners,164 Conn. 548, 550-51, 324 A.2d 919 (1973); Senior v.Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968);Rossignol v. Danbury School of Aeronautics, Inc.,154 Conn. 549, 557, 227 A.2d 418 (1967). The complaintalleges that for a four-year period, from November,1973, to November, 1977, the plaintiff was employed

[179 Conn. 473]

     by the defendant, a producer of frozen food products,as its quality control director and subsequentlyalso as operations manager. In the courseof his employment, the plaintiff received periodicraises and bonuses. In his capacity as qualitycontrol director and operations manager, theplaintiff began to notice deviations from thespecifications contained in the defendant'sstandards and labels, in that some vegetables weresubstandard and some meat components underweight.These deviations meant that the defendant'sproducts violated the express representationscontained in the defendant's labeling; false ormisleading labels in turn violate the provisionsof General Statutes 19-222,2 the ConnecticutUniform Food, Drug and Cosmetic Act. In May of1977, the plaintiff communicated in writing to thedefendant concerning the use of substandard rawmaterials and underweight components in thedefendant's finished products. His recommendationsfor more selective purchasing and conformingcomponents were ignored. On November 3, 1977, hisemployment with the defendant was terminated.Although the stated reason for his discharge wasunsatisfactory performance of his duties, he wasactually dismissed in retaliation for his effortsto ensure that the defendant's products wouldcomply with the applicable law relating tolabeling and licensing.

The plaintiff's complaint alleges that his dismissalby his employer was wrongful in three respects.He claims that there was a violation of animplied contract of employment, a violation of

[179 Conn. 474]

     public policy, and a malicious discharge. On thisappeal, the claim of malice has not beenseparately pursued, and we are asked to consideronly whether he has stated a cause of action forbreach of contract or for intentionally tortiousconduct. On oral argument, it was the tort claimthat was most vigorously pressed, and it is uponthe basis of tort that we have concluded that themotion to strike was granted in error.

The issue before us is whether to recognize anexception to the traditional rules governingemployment at will so as to permit a cause ofaction for wrongful discharge where the dischargecontravenes a clear mandate of public policy. Inaddressing that claim, we must clarify what is notat stake in this litigation. The plaintiff doesnot challenge the general proposition thatcontracts of permanent employment, or for anindefinite term, are terminable at will. SeeSomers v. Cooley Chevrolet Co., 146 Conn. 627,629, 153 A.2d 426 (1959); Fisher v. Jackson,142 Conn. 734, 736, 118 A.2d 316 (1955). Nor does heargue that contracts terminable at will permittermination only upon a showing of just cause fordismissal. Some statutes, such as the ConnecticutFranchise Act, General Statutes 42-133e through42-133h, do impose limitations of just cause uponthe power to terminate some contracts; see 42-133f;but the legislature has recently refused tointerpolate such a requirement into contractsof employment. See H.B. No. 5179, 1974Sess.3 There is a significant distinction

[179 Conn. 475]

     between a criterion of just cause and what theplaintiff is seeking. "Just cause" substantiallylimits employer discretion to terminate, byrequiring the employer, in all instances, toproffer a proper reason for dismissal, byforbidding the employer to act arbitrarily orcapriciously. See Pierce v. Ortho PharmaceuticalCorporation, 166 N.J. Super. 335, 341,399 A.2d 1023 (1979). By contrast, the plaintiff asks onlythat the employer be responsible in damages if theformer employee can prove a demonstrably improperreason for dismissal, a reason whose improprietyis derived from some important violation of publicpolicy.

The argument that contract rights which areinherently legitimate may yet give rise toliability in tort if they are exercised improperlyis not a novel one. Although private persons havethe right not to enter into contracts, failure tocontract under circumstances in which others areseriously misled gives rise to a variety of claimssounding in tort. See Kessler & Fine, "Culpa inContrahendo," 77 Harv. L. Rev. 401 (1964). Thedevelopment of liability in contract for actioninduced by reliance upon a promise, despite theabsence of common-law consideration normallyrequired to bind a promisor; see Restatement(Second), Contracts 90 (1973); rests uponprinciples derived at least in part from the lawof tort. See Gilmore, The Death of Contract 8-90(1974) - By way of analogy, we have longrecognized abuse of process as a cause of actionin tort whose gravamen is the misuse ormisapplication of process, its use "in an impropermanner or to accomplish a purpose for which it wasnot designed." Varga v. Pareles, 137 Conn. 663,667, 81 A.2d 112 (1951); Schaefer v. O.K. Tool Co.,110 Conn. 528, 532-33, 148 A. 330 (1930); Restatement

[179 Conn. 476]

     (Second), Torts 682 (1977); Wright & Fitzgerald,Connecticut Law of Torts 163 (1968); Prosser,Torts 121 (1971).

It would be difficult to maintain that the rightto discharge an employee hired at will is sofundamentally different from other contract rightsthat its exercise is never subject to judicialscrutiny regardless of how outrageous, howviolative of public policy, the employer's conductmay be. Cf. General Statutes 31-126 (unfairemployment practices). The defendant does notseriously contest the propriety of cases in otherjurisdictions that have found wrongful andactionable a discharge in retaliation for theexercise of an employee's right to: (1) refuse tocommit perjury; Petermann v. InternationalBrotherhood of Teamsters, 174 Cal.App.2d 184,189, 344 P.2d 25 (1959); (2) file a workmen'scompensation claim; Frampton v. Central IndianaGas Co., 260 Ind. 249, 252, 297 N.E.2d 425 (1973);Sventko v. Kroger Co., 69 Mich. App. 644, 648-49,245 N.W.2d 151 (1976); Brown v. Transcon Lines,284 Or. 597, 603, 588 P.2d 1087 (1978); (3)engage in union activity; Glenn v. Clearman'sGolden Cock Inn, Inc., 192 Cal.App.2d 793, 798,13 Cal.Rptr. 769 (1961); (4) perform jury duty;Nees v. Hocks, 272 Or. 210, 216-19, 536 P.2d 512(1975); Reuther v. Fowler & Williams, Inc.,255 Pa. Super. 28, 31-32, 386 A.2d 119 (1978). Whileit may be true that these cases are supported bymandates of public policy derived directly fromthe applicable state statutes and constitutions,it is equally true that they serve at a minimum toestablish the principle that public policy imposessome limits on unbridled discretion to terminatethe employment of someone hired at will. SeeBlades, "Employment at Will vs. Individual Freedom:

[179 Conn. 477]

     On Limiting the Abusive Exercise of EmployerPower," 67 Colum. L. Rev. 1404 (1967); Blumberg,"Corporate Responsibility and the Employee's Dutyof Loyalty and Obedience: A Preliminary Inquiry,"24 Okla. L. Rev. 279, 307-318 (1971) - No case hasbeen called to our attention in which, despiteegregiously outrageous circumstances, theemployer's contract rights have been permitted tooverride competing claims of public policy,although there are numerous cases in which thefacts were found not to support the employee'sclaim. See Larsen v. Motor Supply Co., 117 Ariz. 507,508, 573 P.2d 907 (1978); Scroghan v. KraftcoCorporation, 551 S.W.2d 811, 812 (Ky. 1977);Jackson v. Minidoka Irrigation District, 98 Idaho 330,333-34, 563 P.2d 54 (1977); Geary v. UnitedStates Steel Corporation, 456 Pa. 171, 183,319 A.2d 174 (1974); Roberts v. Atlantic RichfieldCo., 88 Wn.2d 887, 896, 568 P.2d 764 (1977);but cf. Hinrichs v. Tranquilaire Hospital,352 So.2d 1130, 1131 (Ala. 1977).

The issue then becomes the familiar common-lawproblem of deciding where and how to draw the linebetween claims that genuinely involve the mandatesof public policy and are actionable, and ordinarydisputes between employee and employer that arenot. We are mindful that courts> should not lightlyintervene to impair the exercise of managerialdiscretion or to foment unwarranted litigation. Weare, however, equally mindful that the myriad ofemployees without the bargaining power to commandemployment contracts for a definite term areentitled to a modicum of judicial protection whentheir conduct as good citizens is punished bytheir employers.

[179 Conn. 478]

The central allegation of the plaintiff'scomplaint is that he was discharged because of hisconduct in calling to his employer's attentionrepeated violations of the Connecticut UniformFood, Drug and Cosmetic Act. This act prohibitsthe sale of mislabeled food. General Statutes19-2134 19-222.5 The act, in 19-215,6imposes criminal penalties upon anyone who violates19-213; subsection (b) of 19-215 makes it clear thatcriminal sanctions do not depend upon proof ofintent to defraud or mislead, since special sanctionsare imposed for intentional misconduct. Theplaintiff's position as quality control directorand operations manager might have exposed him tothe possibility of criminal prosecution under thisact. The act was intended to "safeguard the publichealth and promote the public welfare byprotecting the consuming public from injury byproduct use and the purchasing public from injuryby merchandising deceit . . . ." General Statutes 19-211.

It is useful to compare the factual allegationsof this complaint with those of other recent casesin which recovery was sought for retaliatory discharge

[179 Conn. 479]

     In Geary v. United States Steel Corporation,supra, in which the plaintiff had disputedthe safety of tubular steel casings, he was deniedrecovery because, as a company salesman, he hadneither the expertise nor the corporate responsibilityto "exercise independent, expert judgmentin matters of product safety." Id., 181. Bycontrast, this plaintiff, unless his title ismeaningless, did have responsibility for productquality control. Three other recent cases in whichthe plaintiff's claim survived demurrer closelyapproximate the claim before us. In Trombetta v.Detroit, Toledo & Ironton R. Co., 81 Mich. App. 489,496, 265 N.W.2d 385 (1978), a cause of actionwas stated when an employee alleged that he hadbeen discharged in retaliation for his refusal tomanipulate and alter sampling results forpollution control reports required by Michiganlaw. There, as here, falsified reports would haveviolated state law. In Harless v. First NationalBank in Fairmont, 246 S.E.2d 270, 276 (W. Va.1978), an employee stated a cause of action whenhe alleged that he had been discharged inretaliation for his efforts to ensure hisemployer's compliance with state and federalconsumer credit protection laws. There, as here,the legislature had established a public policyof consumer protection. In Pierce v. OrthoPharmaceutical Corporation, 166 N.J. Super. 335,342, 399 A.2d 1023 (1979), the plaintiff wasentitled to a trial to determine whether she hadbeen wrongfully discharged for refusing to pursueclinical testing of a new drug containing a highlevel of saccharin; the court noted that theplaintiff's status as a physician entitled her toinvoke the Hippocratic Oath as well as statestatutory provisions governing the licensing andthe conduct of physicians. There, as here, thecase might have been dismissed as a conflict injudgment.

[179 Conn. 480]

In the light of these recent cases, whichevidence a growing judicial receptivity to therecognition of a tort claim for wrongfuldischarge, the trial court was in error ingranting the defendant's motion to strike. Theplaintiff alleged that he had been dismissed inretaliation for his insistence that the defendantcomply with the requirements of a state statute,the Food, Drug and Cosmetic Act. We need notdecide whether violation of a state statute isinvariably a prerequisite to the conclusion thata challenged discharge violates public policy.Certainly when there is a relevant state statute weshould not ignore the statement of public policythat it represents. For today, it is enough todecide that an employee should not be put to anelection whether to risk criminal sanction or tojeopardize his continued employment.

There is error and the case is remanded forfurther proceedings.

In this opinion BOGDANSKI and HEALEY, Js., concurred.

1. The motion to strike, Practice Book, 1978,151, in the modern equivalent of the former demurrer.

2. Section 19-222 provides in relevantpart: "MISBRANDED FOOD. A food shall be deemedto be misbranded: (a) If its labeling is falseor misleading in any particular."

3. Some statutes of course expresslyforbid retaliatory discharge. See, e.g., PublicActs 1979, No. 79.599, and 29 U.S.C. § 660 (c)(1)(1976), which is discussed in Marshall v.Whirlpool Corporation, 593 F.2d 715 (6th Cir.1979), cert. granted, 444 U.S. 1009, 100 S.Ct. 43,62 L.Ed.2d 29 (1979) (on other grounds).

4. "[General Statutes] Sec. 19-213. PROHIBITEDACTS. The following acts and the causing thereofshall be prohibited: (a) The sale in intrastatecommerce of any food, drug, device or cosmeticthat is adulterated or misbranded; (b) theadulteration or misbranding of any food, drug,device or cosmetic in intrastate commerce . . . ."

5. Section 19-222 provides in relevant part:"MISBRANDED FOOD. A food shall be deemed to bemisbranded: (a) If its labeling is false ormisleading in any particular."

6. Section 19-215 provides in relevantpart: "PENALTIES. (a) Any person who violates anyprovision of section 19-213 shall, on convictionthereof, be imprisoned not more than six months orfined not more than five hundred dollars orboth . . . . (b) Notwithstanding the provisions ofsubsection (a) of this section, any person whoviolates any provision of section 19-213, withintent to defraud or mislead, shall be imprisonednot more than one year or fined not more than onethousand dollars or both."

7. There is no allegation in the plaintiff'samended complaint that he was exposed to criminalliability by the defendant's alleged violationsand it should be noted that those presumedviolations could well fall within the UniformFood, Drug and Cosmetic Act's provision for minorviolations which the commissioner of consumerprotection is not required to report to thestate's attorney for possible institution ofcriminal proceedings. General Statutes 19-218.

8. As the trial court points out in itsmemorandum of decision, the 1974 bill was just oneof four bills introduced in recent years that theGeneral Assembly has failed to pass which were aimedat providing a remedy for employees who claimedunjust discharges. The other three bills were No.5151, 1975 Sess.; No. 5299, 1976 Sess.; No. 7568,1977 Sess.

9. Even the examples the majority citesof recent cases from other jurisdictions whichacknowledge a cause of action for retaliatorydischarge are distinguishable from the presentcase and exhibit considerable Circumspection. InPierce v. Ortho Pharmaceutical Corporation,166 N.J. Super. 335, 399 A.2d 1023, the court, upondeclaring that there should be a trial todetermine whether the plaintiff's allegedretaliatory discharge was in fact and in lawwrongful, stated (p. 1026), inter alia: "[I]fthere is to be such an exception to the at-willemployment rule, it must be tightly circumscribedso as to apply only in cases involving trulysignificant matters of clear and well-definedpublic policy and substantial violationsthereof. . . . [T]he adoption of any such newdoctrine must be grounded in a specific factual andlegal context resulting from a plenary hearing, atwhich the proofs and public policy considerationsinvolved will be fully developed and taken into accountin the final determination. As indicated, we expressno views on this issue. The matter should bedecided in the first instance by the trial courtafter a hearing." In Trombetta v. Detroit, Toledo & Ironton B.Co., 81 Mich. App. 489, 498, 265 N.W.2d 385, thecourt ruled that although a cause of action wasstated because the defendant's actions clearlyviolated the law of the state, the trial court'sgranting of the defendants' motion for summaryjudgment was not error because the plaintifffailed to submit any admissible evidence at trialto contradict the sworn statements made by thedefendants' agents. `In Harless v. First NationalBank in Fairmont, 246 S.E.2d 270 (W. Va.), the

Back to top