loveWhile the calendar may read Valentine’s Day, I’ve tackled more than my fair share of love-themed posts in the past filled with roses and chocolates.

So instead, I’m going to go in a different direction entirely: Guns. (Though query whether the music group Guns ‘n’ Roses would care to disagree with me.)

See, there was this employee who worked at a car dealership wasn’t in love with guns.  But he believed his supervisor was.  So much so that, according to a complaint filed in state court, the supervisor would sit in “his office looking at and ordering guns.”  The employee then observed that packages containing “guns, including AR-15s, clips, handguns, suppressors and [rifles]” were being delivered to work.

The employee raised the concern to the dealership’s owner. Later that date, the supervisor said allegedly told the employee to “stay the [expletive] out” of the supervisor’s business.  Two days later, the employee was fired.

The employee brought suit claiming that he was wrongfully discharged in violation of a public policy in consideration of Conn. Gen. Stat. 31-49 — which requires employers to exercise reasonable care to provide employees with a reasonably safe place to work.

The Superior Court found that such a claim could survive a motion to strike.   In doing so, it court concludes that there is an important public policy of having an employee “raising his concern over firearms in the employer’s workplace”.

The case, Schulz v. Auto World, is an important reminder that not all causes of actions are clearly spelled out in the law. Sometimes courts look to general principles to take the law in different directions.

In this instance, employers should take notice of the public policy articulated by the court that guns in the workplace in Connecticut are still to be considered unusual.

There is an unspoken truth about the Superior Courts in Connecticut: Summary judgment for employers in employment-related claims is typically a long shot. Of course, there are exceptions to the rule.

A case to be released by the Connecticut Appellate Court next week shows the difficulty but also shows that at least with regard to defenses of res judicata and collateral estoppel, an employer has a fighting chance. 

(What is res judicata or collateral estoppel? In simple terms, it is the civil equivalent of "double jeopardy" and typically prevents a party from relitigating an issue or case already decided in a similar case with the same parties.) 

The case is described by the court has being of the "most unusual of summary judgment cases" so the procedural history is bit convoluted but important to understand the outcome.

In Singhaviroj v. Board of Education of Fairfield (officially released October 5, 2010), the plaintiff was terminated in April 2004 for reasons that are not important. In March 2005, he filed an action alleging that he was denied equal protection and due process.  One month later, he filed a separate lawsuit (the subject of the appeal) alleging wrongful discharge.  

The cases were consolidated in February 2006 and about 18 months later, the court granted a motion to strike the entire first action in its entirety.  The Plaintiff did not replead and thus in March 2008, the court rendered judgment in favor of the Defendants in the first action.  

The Defendants then filed for summary judgment claiming that the remaining claims by the Plaintiff were barred by res judicata and collateral estoppel. With a trial date about 5 weeks away, at oral argument, the judge denied the summary judgment motion saying "I’m going to deny the motions for summary judgment, but I’m not making any findings that there are, in fact, issues of material fact.  I’m denying them because there is insufficient time…for the court to make that determination."  

The Defendants appealed. There were several issues that flowed from that.

1) The Appellate Court at first rejected the Defendants argument that the court erred when it didn’t find a material issue of fact, saying that it was within the lower court’s discretion generally to deny a summary judgment motion when a trial is close at hand. 

Lesson learned from that portion: If you have a summary judgment motion in state court, file it well in advance of any trial date.

2) Even though the Defendants never pleaded res judicata or collateral estoppel as a special defense, the court said it would consider those issues because the Plaintiff never objected to the issue and argued the merits of the issue in the court below.

Lesson learnedIf you’re defending the matter, be sure to plead res judicata or collateral estoppel as a special defense. 

3) The Court said the trial court’s fatal flaw was not considering the merits of the res judicata or collateral estoppel arguments which are more than just a run-of-the-mill defense:

Because a res judicata or collateral estoppel claim is the ‘‘civil law analogue’’ to a double jeopardy challenge, a court faced with such a claim must resolve that question before trial may commence.  We therefore conclude that the court improperly denied the defendants’ motions for summary judgment without determining whether a genuine issue of material fact existed with respect to their res judicata and collateral estoppel defenses.

Indeed, the court noted that the court never even allowed oral argument on that issue.  Because of that, the court remanded the matter back to the trial court for consideration of the merits of the issue. 

Lesson learned: If you have a res judicata or collateral estoppel defense, this opinion may be cited to suggest to the trial court that it is improper for the court not to rule on the merits of such a defense.

UPDATED 2/10/09

Sometimes, by coincidence, two unrelated decision get released in close proximity to one another that they bring some greater clarity to the law.

Yesterday, I discussed a Connecticut Superior Court cacourtesy morgue file - NOT public domainse that found that certain discussions did not create an employment contract and that the employee was properly classified as "at-will".

Earlier this week, a federal court in Connecticut granted an employer’s motion for summary judgment after finding that a Corrective Action memorandum did not create an employment contract either (and did not create any other claims).

In Ide v. Winwholesale, Inc. (download here), Judge Squatrito was asked to address whether the employee’s termination — after allegedly being "coerced" into signing a Corrective Action memorandum — violated an important public policy. The court found that it did not and found that there was nothing inherently wrong with the memorandum either. 

The court indicated that, in essence, the plaintiff and a co-worker were engaging in a back-and-forth tit-for-tat that ultimately led to them both being disciplined.  The employer then issued a Corrective Action memorandum to address the issues.  The memo is similar to the type that many companies use to address disciplinary and performance issues with their employees: it spells out what was unacceptable and sets forth a plan to make sure the employee follows procedures on a going-forward basis. 

The employee blamed a fellow co-worker for his problems. But the court rejected that argument calling it the "But he started it!" defense.  This court did not stop there; the Court also found that the employee’s argument that there was a "genuine issue of fact" concerning the Corrective Action memorandum forced the court to ask "So what?" 

The court then delivers the knockout punch to the plaintiff’s case:

[The plaintiff] further argues that the Corrective Action memorandum constituted a contract, but, because he was coerced into signing the Corrective Action memorandum, the contract was void. The merit of this argument escapes the Court. There is no indication that the parties expected or intended the Corrective Action memorandum to be a “contract,” nor has Ide established in any way that the Corrective Action memorandum satisfies the legal standard for a contract (i.e., offer, acceptance, consideration).

What’s the takeaway for employers here?

Courts will still use common sense in deciding employment cases.  Here, the employer had detailed the reasons for its decision is a clear and concise fashion and used a corrective action memorandum that backed up its reasoning.  The importance of documentation and, at least the appearance of, fairness, made this a fairly easy case for the Court to dispose of.

In essence, the employer did what would be expected of it. It learned about violations of the company’s policies, addressed them, and then fired the employee when he failed to correct the deficiencies noted.

One important last note for employment law practitioners: The court takes the employer to task on one procedural issue — namely the filing of a motion to strike portions of the plaintiff’s affidavit that was filed in response to the motion for summary judgment. The court suggests that the federal rules of civil procedure do not allow for such a practice and "The parties to an action ‘should have faith . . . that the court knows the difference between admissible and non-admissible evidence, and
would not base a summary judgment decision simply upon the self-serving ipse dixit of a particular party.’"

The court suggests that if a party wants to object to portions of an affidavit, that the party should argue it in the summary judgment briefing itself.

UPDATE: Portions of the underlying decision, which have no impact on the outcome of the case, have been redacted by request.