G. BERRY SCHUMANN v. DIANON SYSTEMS, INC., SC 18655

Judicial District of Fairfield

 Employment; General Statutes § 31-51q; Whether Pathologist was Wrongfully Terminated from his Employment in Violation of § 31-51q after he Complained that New Measures Adopted by Employer were Medically Unsafe.  The plaintiff was employed as a pathologist in the defendant's medical laboratory.  During his employment, the plaintiff developed a test to monitor medical conditions based on an examination of blood cells found in urine.  After the defendant updated the test and implemented new diagnostic codes, the plaintiff complained to his supervisors that the new measures were medically unsafe.  Thereafter, the defendant terminated the plaintiff's employment.  The plaintiff subsequently initiated this action, alleging, among other things, that his discharge violated General Statutes § 31-51q, which provides, in part, that "[a]ny 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 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 between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge. . . ."  After the jury returned a verdict in favor of the plaintiff, the defendant filed a motion for judgment notwithstanding the verdict, arguing that the plaintiff failed to establish the elements of his § 31-51q claim.  Relying on Garcetti v. Ceballos, 547 U.S. 410 (2006), which held that a public employee's statements made pursuant to the employee's official duties cannot form the basis of a first amendment claim, it maintained that the plaintiff's statements were not constitutionally protected because they were made pursuant to his official duties as a staff pathologist.  It further claimed that the statements did not, as required by § 31-51q, involve a matter of public concern because they merely represented the plaintiff's purely personal concerns about his ability to perform his job under the new measures.  It also contended that the plaintiff's statements interfered with his job performance and his working relationship with the defendant in that his complaints led to his refusal to perform half of his job responsibilities.  Additionally, the defendant argued that upholding the jury's verdict would amount to an infringement of its first amendment right to espouse new methodologies that would be more beneficial for patients.  The trial court denied the defendant's motion, finding that the jury's verdict was not contrary to law and that, viewing the evidence in the light most favorable to the prevailing party, the jury resolved the factual issues in a reasonable manner.  In this appeal, the Supreme Court will determine whether the trial court properly upheld the jury's verdict.