Client Advisory

Conn. Gen. Stat § 31-51q allows employees to recover against an employer 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” and certain state constitutional provisions, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” In Michel v. City of Hartford, the Connecticut Appellate Court resolved a Superior Court split, making it the employer’s burden to plead interference with the employee’s job or working relationship as a special defense, rather than requiring a plaintiff to plead noninterference.

In February 2016, a Hartford Police Department detective reported to Plaintiff, a sergeant, that the detective’s supervisor was discriminating against him on the basis of his race. Plaintiff reported the allegations to his lieutenant, who ordered him not to get involved and that he would take care of the complaint. After Plaintiff learned that the lieutenant had told the detective he could not help him, the Plaintiff voiced disagreement with the lieutenant’s approach and recommended that the detective contact their union or internal affairs.

Subsequently, Plaintiff was removed from supervisory roles, denied assignments that would result in overtime, assigned to inconvenient shifts, and given undesirable assignments. After giving testimony supporting the detective’s complaint, he was denied a promotion to commander, assigned to unfavorable shifts, and threatened with discipline for taking medical leave. Plaintiff then sued Defendants for retaliating against him on the basis of his opposition to racial discrimination and providing truthful testimony in support of the detective. The trial court dismissed Plaintiff’s claims under § 31-51q, finding that Plaintiff had not sufficiently established that his speech was on a matter of public concern and that he had not adequately pleaded noninterference (i.e., that his speech had not interfered with his job performance or working relationship).

In overturning the trial court’s ruling, the appellate court explained, first, that the plaintiff’s testimony on behalf of the detective constituted speech on a matter of public concern. The appellate court held, as a matter of first impression, that plaintiffs do not carry the burden of proving noninterference under § 31-51q; instead, defendants must raise interference as a special defense.

Key Takeaway: Employers intending to discipline employees for conduct implicating § 31-51q claims should seek counsel on whether the effects of the conduct satisfy the interference requirement before undertaking the discipline. In responding to a claim pursuant to § 31-51q employers must be prepared to plead interference as a special defense and put forth evidence related to interference at the time of trial.