author: FOTI, J. LAVERY, J.,

text:
    CAROLE BURNHAM v. KARL AND GELB, P.C., ET AL.
    (AC 17022)
    Foti, Lavery and Hennessy, Js.
    Argued March 27
    officially released September 15, 1998

      James S. Brewer, for the appellant (plaintiff).

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment of the trial court rendered following the granting of the defendants’ motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly granted summary judgment in favor of the defendants as to her claims (1) of breach of contract, (2) of negligent misrepresentation and (3) of wrongful discharge. We affirm the judgment of the trial court.

The following facts are undisputed. The named defendant, Karl and Gelb, P.C., is a dental practice located in West Hartford that employs two periodontists, the defendants Edward Karl and David Gelb. On July 6, 1993, the plaintiff, Carole Burnham, was hired by the defendants as an office manager. On November 5,1993, the plaintiff filed an anonymous complaint with the Connecticut State Dental Association (dental association) alleging that the defendants engaged in unsanitary and unhealthy practices in violation of the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. On November 22, 1993, the plaintiff was terminated by the defendants and thereafter filed a complaint with the Hartford office of the Occupational Safety and Health Administration, alleging that she was terminated by the defendants in retaliation for her complaint to the dental association. The plaintiffs complaint was administratively closed in February, 1994, due to the plaintiffs “lack of response” to correspondence from the Hartford office of the Occupational Safety and Health Administration.

On January 24, 1995, the plaintiff filed a three count amended complaint alleging breach of contract, negligent misrepresentation and wrongful termination. On September 23,1996, the defendants moved for summary judgment. On March 7, 1997, the trial court granted the defendants’ motion for summary judgment as to each count of the plaintiffs amended complaint.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). ‘Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.’ Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). ‘It is not enough, however, for the opposing party merely to assert the existence of ... a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].’ . . . Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994).” Branford, v. Monaco, 48 Conn. App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ” (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

I

The plaintiff first claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of breach of contract. The plaintiff asserts that an implied employment contract existed between the parties as a result of representations made to her by the defendants. The plaintiff alleges that at the time she was hired, the defendants agreed to evaluate her performance based on certain “performance expectations and goals.” The plaintiff also alleges that the defendants agreed that she would be terminated only for cause. We disagree.

“[T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendants] to have an employment contract with [her], ‘A contract implied in fact, like an express contract, depends on actual agreement. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).’. . . Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on [her breach of contract] claim, ‘which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause .... D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, [211-12] n.2; Therrien v. Safeguard Mfg. Co., supra, 94-95.’ . . . Coelho v. Posi-Seal International, Inc., supra, 112. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendants] had agreed to some form of contract commitment.” Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

“A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport, Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923).” Christensen v. Bic Corp., 18 Conn. App. 451, 458, 558 A.2d 273 (1989). In order to support contractual liability, the defendants’ representations must be sufficiently definite to manifest a “present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214-15.

In the present case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the parties. The trial court concluded that at most, the facts establish that the plaintiff completed a three month “probationary period” and that “[t]here are no facts in the record . . . from which it can be concluded that in completing this brief probationary period, [the] plaintiffs status changed from that of an at-will employee.” This conclusion is supported by the plaintiffs own deposition testimony. In her deposition, the plaintiff testified that she was not given a guarantee as to how long she would be employed. The plaintiff also testified that she was never told that, after the completion of the probationary period she could be fired only if she did something wrong. Moreover, the plaintiffs claim that the defendants agreed to evaluate her performance based on certain “performance expectations and goals” is contradicted by her own deposition testimony. The plaintiff testified that no performance expectations or goals were ever set for her and that she was unaware of any standard by which the defendants were judging her performance. Given these admissions by the plaintiff, we conclude that there was no meeting of the minds between the plaintiff and the defendants regarding the existence of an employment contract.

Since the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied employment contract, we conclude that the trial court properly granted the defendants’ motion for summary judgment as to the plaintiffs claim of breach of contract.

II

The plaintiff next claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of negligent misrepresentation. The plaintiff asserts that the defendants negligently misrepresented that the plaintiffs job performance would be evaluated on the basis of her progress toward the achievement of “performance expectations and goals” established at the beginning of her employment. The plaintiff also asserts that the defendants negligently misrepresented that she would be terminated only for cause. We disagree.

“[Our Supreme Court] has long recognized liability for negligent misrepresentation. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 217. The governing principles are set forth in ... § 552 [(1)] of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment. . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Id., 217-18. [T]he plaintiff need not prove that the representations made by the defendants] were promissory. It is sufficient . . . that the representations contained false information. Id., 218.” (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 20, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).

The facts on which the plaintiff relies to support her claim of negligent misrepresentation are the same as those relied on to support her claim of breach of an implied employment contract. In part I of this opinion, we relied on the plaintiffs deposition testimony to conclude that the plaintiff failed to present any evidence disclosing the existence of an implied employment contract. In her deposition, the plaintiff testified that (1) she was not given a guarantee as to how long she would be employed, and (2) the defendants never set any performance expectations or goals for her. The plaintiff concedes, therefore, that the allegedly false information, on which she bases her negligent misrepresentation claim, was never communicated to her by the defendants.

Since the plaintiff has provided no evidence from which a trier of fact reasonably could infer that the defendants made representations to the plaintiff that were untrue, we conclude that the trial court properly granted the defendants’ motion for summary judgment as to the plaintiffs claim of negligent misrepresentation.

Ill

The plaintiffs final claim is that the trial court improperly granted summary judgment in favor of the defendants as to her claim of wrongful discharge. The plaintiff alleges that she was terminated for reporting the unsanitary and unhealthy practices of her employers and, therefore, that she was terminated in violation of public policy. Specifically, the plaintiff claims that she was terminated by the defendants for reporting their alleged OSHA violations to the dental association. In granting the defendants’ motion for summary judgment, the trial court stated that “[i]n the absence of any clear appellate Connecticut authority to the contrary, and in light of similar holdings in other jurisdictions, I conclude that [the] plaintiffs attempted use of OSHA violations to support a cause of action for wrongful termination fails as a matter of law because the plaintiff had a statutory administrative remedy available with [the Occupational Safety and Health Administration]. Accordingly, the violation does not fall under the public policy exception to the terminable at will doctrine.” We agree with the trial court.

“In Sheets v. Teddy’s Frosted Foods, Inc., [179 Conn. 471, 480, 427 A.2d 385 (1980)], in an effort to balance the competing interests of employers and employees, [the Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine. Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994). In Sheets, [the court] sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy. Sheets v. Teddy’s Frosted Foods, Inc., supra, [475]; see Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). In Morris v. Hartford Courant Co., supra, 680, [the court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [an appellate court must] look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy. . . . Antinerella v. Rioux, supra, 492, quoting Morris v. Hartford Courant Co., supra, 680. . . . Faulkner v. United, Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997).” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 76-77, 700 A.2d 655 (1997). “[W]e note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one .... We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.” (Citation omitted; internal quotation marks omitted.) Id., 79.

In the present case, the plaintiff relies on the public policy prohibiting employers from terminating employees in retaliation for reporting violations of state or federal laws, as embodied in 29 U.S.C. § 660 (e) and General Statutes § 31-51m, to support her claim of wrongful discharge. Although the plaintiff relies on § 31-51m to support her cause of action for public policy wrongful discharge, she has not brought a separate claim under that statute. The trial court, therefore, improperly concluded that the plaintiff failed to satisfy the statutory requirements of a § 31-51m claim (i.e., a report made to a “public body” and exhaustion of administrative remedies). Section 660 (c) (1) of title 29 of the United States Code prohibits employers from discharging or discriminating against employees for filing complaints, instituting proceedings or otherwise exercising rights afforded by OSHA. Section 660 (c) (2) provides a remedy for employees who allege that they were discharged in retaliation for reporting violations of OSHA. Pursuant to § 660 (c) (2), an employee who believes that she was discharged in violation of § 660 (c) may, within thirty days of the discharge, file a complaint with the secretary of labor. If the secretary determines that the employee was terminated in retaliation for reporting violations of OSHA, he is required to bring an action against the employer in the United States District Court. 29 U.S.C. § 660 (c) (2). In any action brought pursuant to § 660 (c) (2), the court has jurisdiction to “restrain violations of [29 U.S.C. § 660 (c) (1)] and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.” (Emphasis added.) 29 U.S.C. § 660 (c) (2).

In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), we limited the circumstances under which an employee can bring a common-law cause of action for wrongful discharge. In Atkins, we stated that “[a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” (Emphasis added; internal quotation marks omitted.) Id., 648.

The Occupational Safety and Health Act provides a specific remedy for an employee who is terminated by her employer in retaliation for participating in any action to carry out the purpose of the federal statute. Here, the plaintiff availed herself of that remedy when she filed a complaint with the Hartford office of the Occupational Safety and Health Administration. We conclude that because OSHA provides a remedy for employees that claim retaliatory termination, the plaintiff cannot maintain her wrongful discharge action against the defendants.

Our conclusion that the existence of a statutory remedy under OSHA precludes the plaintiffs public policy wrongful discharge claim is supported by our decision in Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 648, and by several Connecticut Superior Court decisions. See, e.g., Brotherton v. Burndy Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 87-022481-S (September 24, 1990) (2 Conn. L. Rptr. 508) (right to file OSHA complaint precludes civil tort action based on Sheets doctrine for wrongful discharge); see also Dais v. Laidlaw Transit, Inc., Superior Court, judicial district of Stamford-Nor-walk at Stamford, Docket No. CV 95-0146079-S (March 29, 1996) (16 Conn. L. Rptr. 392) (cause of action for wrongful discharge exists only when discharge violates public policy and employee is otherwise without statutory remedy). In addition, in Napoleon v. Xerox Corp., 656 F. Sup. 1120, 1125 (D. Conn. 1987), the United States District Court for the District of Connecticut held that a plaintiff cannot maintain a common-law claim for wrongful discharge where she has an explicit statutory remedy for the defendant’s alleged misconduct. See also Donahue v. Unisys Corp., United States District Court, Docket No. H-89-670 (D. Conn. February 15, 1991) (interpreting Sheets to provide cause of action for public policy wrongful discharge only to those employees otherwise without remedy).

Accordingly, for the reasons stated, we conclude that the trial court properly granted the defendants’ motion for summary judgment as to the plaintiffs claim of wrongful discharge.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

LAVERY, J.,

dissenting. I respectfully disagree with the majority opinion affirming the trial court’s granting of summary judgment on the plaintiffs common-law allegation of wrongful discharge because the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., provides a remedy and, therefore, I dissent.

I would find that there are sufficient facts alleged to show that the plaintiff was discharged in retaliation for her reporting to the Connecticut State Dental Association (dental association) what she later reported to the Occupational Safety and Health Administration, that the defendants, dentists, left blood soaked debris in the office kitchen, on files, did not change surgical gloves between patients and did not practice universal precautions, all in violation of Occupational Safety and Health Administration standards and regulations.

There is no doubt that if the allegations set forth in the complaint are true, the conduct is violative of public policy. In American Dental Assn. v. Martin, 984 F.2d 823, 824 (7th Cir.), cert. denied sub nom. American Dental Assn. v. Reich, 510 U.S. 859, 114 S. Ct. 172, 126 L. Ed. 2d 132 (1993), in upholding the regulation on blood-borne pathogens, the Seventh Circuit stated: “In 1991 the Occupational Safety and Health Administration promulgated a rule on occupational exposure to blood-borne pathogens. 56 Fed. Reg. 64004,57 Fed. Reg. 29206, 29 C.F.R. § 1910.1030. The rule is designed to protect health care workers from viruses, particularly those causing Hepatitis B and AIDS, that can be transmitted in the blood of patients.”

Since the majority upheld the trial court’s granting of a summary judgment on the basis of failure to exhaust administrative remedies, I will not review the many violations of 29 C.F.R. § 1910.1030 that occurred if the plaintiffs allegations, which have not been tested, are true.

In Parsons v. United Technologies Corp., 243 Conn. 66, 76, 700 A.2d 655 (1997), our Supreme Court stated: “In Sheets v. Teddy’s Frosted Foods, Inc., [179 Conn. 471, 480, 427 A.2d 385 (1980)], in an effort to balance the competing interests of employers and employees, we recognized a public policy limitation on the traditional employment at-will doctrine. Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994). In Sheets, we sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy.” (Internal quotation marks omitted.)

“As a preliminary matter, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one that is only to be invoked when the reason for [the employee’s] discharge . . . involves impropriety derived from some important violation of a public policy. Carbone v. Atlantic Richfield Co., 204 Conn. 460, 470, 528 A.2d 1137 (1987). We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation. Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 477. Nevertheless, when there is a relevant state statute we should not ignore the statement of public policy that it represents. Id., 480.

“As a result of our careful review of the language, history, and public policy underlying the statutory provisions cited by the plaintiff in support of his claim, we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees. We note, for example, that although [General Statutes] § 31-49 was originally codified in 1902, the legislature has not repealed it despite the subsequent enactment of other statutes, such as the Workers’ Compensation Act, which regulate safety in the workplace. . . . The legislature also enacted [General Statutes] § 31-370, which is part of the Connecticut Occupational ’Safety and Health Act, to regulate safety in the workplace. Both §§ 31-49 and 31-370 reflect a broad legislative concern for the physical welfare and safety of Connecticut employees. Consequently, we are persuaded that the mandate of public policy that these statutes embody gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee’s duties.” (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 79-80.

1 would hold contrary to the majority that when an Occupational Safety and Health Administration complaint is made, it is not the exclusive remedy for wrongful discharge and that a private, common-law state action for wrongful discharge exists.

Although there is disagreement among some jurisdictions on this issue, I believe the reasoning set forth by the New Jersey Appellate Division in Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, 538 A.2d 1292 (1988), is more consistent with Connecticut’s long held public policy of providing a safe workplace for employees.

The New Jersey Appellate Division stated: “As to plaintiffs OSHA claim, the trial judge dismissed plaintiffs suit because he viewed the OSHA statute as providing the exclusive remedy for retaliatory discharge for the filing of an OSHA complaint. 29 U.S.C. § 660 (c) prescribes: ‘(1) No person shall discharge or in any manner discriminate against any employee beca,use such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this [chapter] or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this [chapter], (2) Any employee who believes that he has been discharged or otherwise discriminated against by a,ny person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of para graph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. (3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection. . . .’ It is clear that this statute does not ‘create’ a private right of action for an employee who is discharged for reporting a safety violation. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). The question, however, is whether it prohibits such an action. On its face, no such prohibition exists in the statute, and it seems to us that the statute does not preclude an employee from instituting an action in New Jersey, under a recognized tort or contract theory. A similar conclusion was reached in Kennard v. Louis Zimmer Communications, Inc., 632 F. Supp. 635 (E.D. Pa. 1986), where the court allowed a discharged employee to bring a retaliatory discharge suit in federal court based on the Pennsylvania public policy tort exception to the employment-at-will doctrine where the employee alleged that her termination was in retaliation for having lodged a complaint with OSHA regarding work and health conditions. Although the court recognized that the prevailing authority is that no private right of action for an unlawful discharge exists under 29 U.S.C. § 660 (c), it observed that the employee was not alleging a private right of action pursuant to this section, but rather, was seeking to recover damages for wrongful discharge under a tort theory. 632 F. Supp. at 637 n.1. But see King v. Fox Grocery Co., 642 F. Supp. 288 (W.D. Pa 1986); Braun v. Kelsey-Hayes Co., 635 F. Supp. 75 (E.D. Pa. 1986); Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 563 P.2d 1205 (Sup. Ct. 1977).

“That is the situation here as well. Plaintiff is not asserting a claim under 29 U.S.C. § 660, and indeed could not because that statute preempts such a filing except by the Secretary of Labor. On the contrary, plaintiff has filed a tort action to recover damages based upon his discharge in violation of the public policy of this State. See Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 191-192 [536 A.2d 237] (1988). This is a Pierce claim which is entirely separate from the assertion of a claim under OSHA. It is clear to us that there is a strong public policy in New Jersey favoring safety in the workplace. As Pierce directs, we have gleaned this policy from legislation, more particularly N.J.S.A. 34:6A-3 which provides: ‘Every employer shall furnish a place of employment which shall be reasonably safe and healthful for employees. Every employer shall install, maintain and use such employee protective devices and safeguards including methods of sanitation and hygiene and where a substantial risk of physical injury is inherent in the nature of a specific work operation shall also with respect to such work operation establish and enforce such work methods, as are reasonably necessary to protect the life, health and safety of employees, with due regard for the nature of the work required. L. 1965 c. 154 § 3.’ See also Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516 [368 A.2d 408] (Ch. Div. 1976). ... In our view, the reporting of unsafe conditions in the workplace by an employee is action in furtherance of this firmly held policy. Concomitantly, retaliation against the reporting employee as a punitive measure and as a deterrent to other observers of unsafe conditions, directly affronts our policy in favor of safety. Thus, we hold that under Pierce, an employee in New Jersey may maintain a private action in tort or contract for retaliatory discharge as a result of the filing of an OSHA complaint because such discharge contravenes our public policy.” (Emphasis in original.) Cerracchio v. Alden Leeds, Inc., supra, 223 N.J. Super. 444-46.

In this case, the plaintiff complained to the dental association, which is a professional society of dentists and not a state agency. The plaintiffs legitimate complaint resulted in her termination because the defendants learned from the dental association that she had made the complaint. After the discharge, the plaintiff complained to the Occupational Safety and Health Administration. There is at least a question of fact as to whether she pursued her Occupational Safety and Health Administration complaint as far as she could. I would reverse not only because there is a question of fact but, more importantly, because the Occupational Safety and Health Administration complaint is neither the exclusive remedy nor an adequate remedy for the same reasons set forth in Cerracchio v. Alden Leeds, Inc., supra, 223 N.J. Super. 444-46. As set forth in Parsons v. United Technologies Corp., supra, 243 Conn. 79, it has long been the public policy of Connecticut to require an employer to provide a reasonably safe workplace.

In the two main cases cited by the majority, Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), and Napoleon v. Xerox Corp., 656 F. Sup. 1120 (D. Conn. 1987), the plaintiffs had an explicit state statutory remedy that was the exclusive remedy. In this case, the plaintiff does not have an explicit state statutory remedy providing an exclusive remedy.

“However, in the instant case, unlike Sheets, the plaintiff has an explicit state statutory remedy for the defendant’s alleged misconduct under the comprehensive procedural provisions of the Connecticut Fair Employment Practices Act (‘CFEPA’), [General Statutes] §§ 46a-51 et seq. Under these circumstances, the plaintiff may not circumvent the CFEPA by the assertion of [a] private cause of action. See Powell v. Feroleto Steel Co., 659 F. Supp. 303, 304-305 (D. Conn. 1986) (TFGD). As stated in Murray v. Bridgeport Hospital, 40 Conn. Supp. 56, 480 A.2d 610 (1984): ‘when an allegation is made with respect to a protected category under the Fair Employment Practices Act . . . the exclusive remedy is in the procedures established by the act, and there is no cause of action for a private lawsuit.’ Id., at 60, 480 A.2d 610. See also Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985) (the CFEPA does not provide claimants with a private right of action unless the discriminatory employer is a state agency); accord Atkins v. Bridgeport Hydraulic Co., [supra, 5 Conn. App. 647].” Napoleon v. Xerox Corp., supra, 656 F. Sup. 1125.

For the reasons stated, I would hold that the plaintiff has a common-law claim of wrongful discharge and that her complaint to the Occupational Safety and Health Administration does not prevent her from pursuing that claim. I would reverse the judgment and remand the case to the trial court for further proceedings on the count of wrongful discharge only, as I agree with the majority on the other claims.

       During oral argument on the defendants’ motion for summary judgment, the plaintiffs attorney conceded that the same factual issues are involved in both the plaintiffs claims of breach of an implied contract and negligent misrepresentation. The plaintiffs attorney stated, “The next count, I agree with [the defendants’ attorney], essentially kind of bootstraps from the first one as far as the factual issues. It’s the same factual issues.”

       Title 29 of the United States Code, § 660 (c), provides in relevant part: “(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
      “(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. . .

       General Statutes § 31-51m provides in relevant part: “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. . . . The provisions of this subsection shall not be applicable when the employee knows that such report is false.
      “(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. . . . Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal. ...”

       In opposing the defendants’ motion for summary judgment, the plaintiff also relied on the public policy against racial discrimination, as embodied in 42 U.S.C. § 2000e and General Statutes § 46a-60, to support her claim of wrongful discharge. The plaintiff has neither raised nor briefed this issue on appeal. Issues that are not briefed are deemed to be abandoned. See, e.g., State v. James, 211 Conn. 555, 588, 560 A.2d 426 (1989); State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985); Daniels v. Warden, 28 Conn. App. 64, 65 n.1, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).

       Although the plaintiffs complaint was administratively closed in February, 1994, due to the plaintiffs “lack of response” to correspondence from the Hartford office of the Occupational Safety and Health Administration, the plaintiff was not deprived of her statutory remedy under OSHA. See Holmes v. Schneider Power Corp., 628 F. Sup. 937, 939 (W.D. Pa.), aff'd, 806 F.2d 252 (3d Cir. 1986) (secretary’s decision not to bring suit did not deprive plaintiff of statutory remedy).

       The dissent attempts to distinguish this case from Atkins by emphasizing that in Atkins the plaintiff had an explicit state statutory remedy under the Connecticut Fair Employment Practices Act. General Statutes § 46a-51 et seq. In Atkins, however, we did not distinguish between state and federal statutory remedies for wrongful discharge. Instead, we stated that the cases that have recognized a cause of action for wrongful discharge “have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” (Emphasis added; internal quotation marks omitted.) Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 648, quoting Wehr v. Burroughs Corp., 438 F. Sup. 1052, 1054 (E.D. Pa. 1977).

       Other courts that have considered the issue also have concluded that the existence of a statutory remedy precludes a common-law action based on the public policy exception to the employment at-will doctrine. See, e.g., Miles v. Martin Marietta Corp., 861 F. Sup. 73, 74 (D. Colo. 1994) (plaintiff may not base public policy wrongful discharge claim on alleged retaliation for filing OSHA report because statutory remedy available under OSHA); Braun v. Kelsey-Hayes Co., 635 F. Sup. 75, 80 (E.D. Pa. 1986) (statutory remedy available under OSHA for retaliatory termination exclusive and preemptive of any state tort action); Holmes v. Schneider Power Corp., 628 F. Sup. 937, 939 (W.D. Pa.), aff'd, 806 F.2d 252 (3d Cir. 1986) (noting Pennsylvania courts have found common-law action based on public policy exception only in cases where no statutory remedy available); Wolk v. Saks Fifth Ave., Inc., 728 F.2d 221, 223-24 (3d Cir. 1984) (claim for wrongful discharge under common law may be maintained only in absence of statutory remedy); Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 351-52, 563 P.2d 1205 (1977) (plaintiff cannot maintain cause of action for wrongful discharge where alleged retaliatory nature of defendant’s conduct falls within remedies afforded plaintiff under OSHA).

      Sections 1910.1030 (b) of title 29 of the Code of Federal Regulations provides in relevant part: “Universal Precautions is an approach to infection control. According to the concept of Universal Precautions, all human blood and certain human body fluids are treated as if known to be infectious for HIV, HBV and other bloodbome pathogens. . . .”

       General Statutes § 31-49 provides: “It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master.”
      General Statutes § 31-370 provides: “(a) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
      “(b) Each employer shall, upon the written request of any employee, furnish such employee with a written statement listing the substances which such employee uses or with which such employee comes into contact that have been identified as toxic and hazardous by occupational safety and health standards, under Title 29 CFR 1910.1000 ‘Air Contaminant Code of Federal Regulations.’
      “(c) Each employer shall comply with occupational safety and health standards promulgated under this chapter.

        “(d) Each employee shall comply with occupational safety and health standards and all regulations and orders issued pursuant to this chapter which are applicable to his own actions and conduct.”

       See the majority opinion and the annotation in 75 A.L.R.4th 13 (1990) on liability for retaliation against at-will employees for public complaints or efforts relating to health or safety.

        Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505 (1980), is New Jersey’s counterpart to Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 471, which recognized that an employee may maintain an action for wrongful discharge when the discharge is in violation of a clear mandate of public policy.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    SOPHIA P. ROSALES v. DAVID W. LUPIEN, JR.
    (AC 17476)
    O’Connell, C. J., and Landau and Spear, Js.

      Submitted on briefs June 5
    officially released September 15, 1998

      Angelo A. Ziotas filed brief for the appellant (plaintiff).

      Claudia A. Baio and Kenneth G. Williams filed a brief for the appellee (substitute defendant).
   Opinion

O’CONNELL, C. J.

In this action for personal injuries, the plaintiff appeals from the judgment for the substitute defendant following a jury trial. The plaintiff claims that the trial court improperly (1) excluded evidence that was admissible under the dead man’s statute and (2) ruled that the plaintiff could not ask the defendant administrator in the jury’s presence whether he was willing to waive the attorney-client privilege. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. Beginning in December, 1993, the plaintiff, a nurse’s aide, provided companionship and light cleaning for the original defendant, David W. Lupien, Jr., who was bedridden. During this time, the plaintiff stayed at Lupien’s home seven nights a week. On May 28, 1994, the plaintiff was injured in a fall while moving a washing machine into Lupien’s basement. She claims that her fall was caused by defects in the basement staircase.

Lupien died on April 30, 1996, and the defendant Thomas F. Foley, administrator of Lupien’s estate, was substituted as the defendant.

I

The plaintiff sought to introduce evidence of certain statements made by Lupien before his death. These included oral statements that Lupien (1) apologized for the condition of the stairs, (2) admitted responsibility for the plaintiffs injuries, (3) offered to pay the plaintiffs medical bills, (4) urged her to make a claim against his homeowner’s insurance policy and (5) offered to split the insurance proceeds with her.

The trial court admitted into evidence Lupien’s apology for the fall, and his statements that he knew the steps were bad and intended to have them fixed. The court, however, did not admit Lupien’s statements concerning offers to pay the plaintiffs medical bills or his statements regarding the homeowner’s policy and proceeds therefrom.

The plaintiff contends that the excluded statements were admissible under General Statutes § 52-172, commonly known as the dead man’s statute.The dead man’s statute creates an exception to the hearsay rule. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 11.1-11.25. Its purpose is to create an equal footing between the living and the dead parties. Id., § 11.8.7; Rowland v. Philadelphia, Wilmington & Baltimore R.R. Co., 63 Conn. 415, 417, 28 A. 102 (1893). Although the statute is to be interpreted liberally, “it does not follow that the privilege conferred by it is entirely without exceptions or limitations in operation.” Doyle v. Reeves, 112 Conn. 521, 526-27, 152 A. 882 (1931). In other words, every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died. This is particularly true where its admission would violate another well established rule of evidence.

The defendant argues that the statements were properly excluded because they were offers of compromise. “It has long been the law that offers relating to compromise are not admissible on the issue of liability. . . . Where it is not clear whether the statement is an offer of compromise or an admission of liability . . . and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.” (Citations omitted; internal quotation marks omitted.) Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 313-14, 696 A.2d 363 (1997). Unlike Lupien’s apology and his statements concerning the poor condition of the stairs, his statements about the homeowner’s policy and paying the plaintiffs medical bills were not clearly admissions of liability. Rather, they are more accurately characterized as offers of compromise and hence are not admissible. See id.

The dead man’s statute was intended to remove the unfair advantage previously possessed by living litigants as against the representatives of deceased persons. Doyle v. Reeves, supra, 112 Conn. 526. Because the statute is primarily designed for the benefit of the decedent, to deny the decedent the benefit of an evidentiary rule, such as the exclusion of offers of compromise, to which he would have been entitled had he lived, would defeat the purpose of the statute. Id., 527 (holding that dead man’s statute does not operate to bring in evidence otherwise protected by attorney-client privilege).

This interpretation of the statute is further supported by Plisko v. Morgan, 148 Conn. 510, 172 A.2d 621 (1961). In Plisko, a negligence action for the death of the plaintiffs decedent, a statement of the decedent was offered as evidence under the dead man’s statute. The trial court excluded one sentence of the statement because it gave the decedent’s opinion about what caused him to fall. Id., 511. The trial court reasoned that such an opinion would not have been admissible had the decedent been alive and able to testify. Id. Our Supreme Court reversed the trial court, holding that the dead man’s statute should be liberally construed and the fact that the statement contained an opinion did not make it inadmissible. Id., 511-12. Thus, Plisko interpreted the statute liberally so as to benefit the decedent and not to put him at a disadvantage.

Accordingly, in view of the purpose of § 52-172 and the rule against admitting offers of compromise on the issue of liability, the decedent’s statements were properly excluded.

II

In her next claim, the plaintiff argues that the trial court improperly ruled that she could not ask the defendant administrator in the jury’s presence whether he was willing to waive the attorney-client privilege. We do not agree.

The following additional facts are relevant to this issue. Foley testified in his capacity as administrator of Lupien’s estate. At one point during the plaintiffs cross-examination of Foley, the jury was excused and the court discussed several evidentiary matters with counsel. At that time, the plaintiffs counsel asked Foley questions regarding his discussions with the attorney representing Lupien’s estate. In response to the questions, defense counsel objected on the ground that the information sought was protected by the attorney-client privilege, and the court sustained the objection.

The plaintiffs counsel then asked Foley if he understood that he could waive the privilege, and defense counsel objected to that question’s being asked in the presence of the jury. The plaintiffs counsel indicated that he did not plan to ask this question in front of the jury and that he was merely “creating an offer of proof.” He then asked Foley whether he was willing to waive the privilege, and Foley responded: “No. I don’t choose to waive it.” Following a brief colloquy, the trial court summarized its ruling as follows: “[Y]ou could ask him in front of the jury whether he waived the privilege, but if you choose to ask him, in the instructions I would instruct that he had the right to the privilege, and they should draw no conclusion from his action exercising the privilege.”

The plaintiffs claim appears to be that he was prevented from asking Foley, in the jury’s presence, whether he was willing to waive the attorney-client privilege. The problem with this claim is that the court did not prohibit the question, but instead ruled explicitly that the plaintiffs counsel “could ask him in front of the jury whether he waived the privilege . . . .” (Emphasis added.) Accordingly, the plaintiffs claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-172 provides in relevant part: “In actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, ma.y be received as evidence. . . .”

       The plaintiff stated this claim as follows: “The trial court erred in ruling that the jury would not be permitted to draw an adverse inference from the defendant’s invocation of the attorney-client privilege.” This is a mischaracterization of the trial court’s ruling, which was much more narrow and merely addressed whether 1he plaintiff would be allowed to ask certain questions of the defendant administrator.


author: SCHALLER, J.

text:
    WILLIAM V. RAYMOND, JR., ET AL. v. ROCK ACQUISITION LIMITED PARTNERSHIP ET AL.
    (AC 17322)
    O’Connell, C. J., and Schaller and Dupont, Js.
    Submitted on briefs June 2
    officially released September 15, 1998

      Nancy Burton filed a brief for the appellants (plaintiffs).

      Robert G. Skelton filed a brief for the appellees (named defendant et al.).

      Hilary Fisher Nelson and Andrew S. Wildstein filed a brief for the appellee (defendant Dyno New England, Inc.).
   Opinion

SCHALLER, J.

In this nuisance action seeking monetary damages and injunctive relief, the plaintiffs appeal from the judgment rendered by the trial court upon granting the defendants’ motion to dismiss. On appeal, the plaintiffs claim that the trial court improperly (1) dismissed the action for failure to exhaust administrative remedies, (2) dismissed the action where a motion to strike was appropriate, (3) dismissed the action against the defendant Dyno New England, Inc., and (4) denied the plaintiffs’ motion for recusal. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The defendant Fairfield Resources Management, Inc. (Fair-field), is the operator of a sand and gravel mine that is located within a residential zone on Laurel Hill Road in the town of Brookfield. The mine is located on land owned by the defendant Rock Acquisition Limited Partnership (Rock). The defendant Dyno New England, Inc. (Dyno), supplies explosives to Fairfield and Rock for use at the site. The plaintiffs, William V. Raymond, Jr., Angela D. Raymond, Rose Klubko, Anne Grossen-bacher, Louise Henion, Fred Krancher, Johanna Krancher and Lloyd Wilcox, own and occupy various residential properties that adjoin the sand and gravel mine.

On February 22, 1996, the town of Brookfield zoning commission issued a natural resources removal permit to Rock and Fairfield to allow for the operation of the mine. On March 15, 1996, the plaintiffs filed an administrative appeal in the Superior Court challenging the commission’s issuance of the permit. This action was later dismissed by the trial court on mootness grounds because the one year permit had expired. After a renewal permit was issued, the plaintiffs filed a second administrative appeal to challenge the renewal of the permit. The second administrative appeal is currently pending.

The plaintiffs commenced this action in the Superior Court on March 20, 1996, seeking to enjoin the defendants from the continued operation of the mine. The complaint was based solely on a nuisance theory, but sought both a temporary and a permanent injunction, money damages, attorney’s fees and costs. The complaint alleged, inter alia, that the defendants’ operation of the sand and gravel mine constitutes a private nuisance because the permit issued by the commission was issued illegally. The plaintiffs claimed that the operation of the mine has caused them to suffer, inter alia, excessive noise, air pollution, structural damage to and devaluation of their properties, and physical and emotional distress. The plaintiffs claimed damages for their injuries sustained both before and after the natural resources removal permit was issued by the commission.

On April 4, 1996, the defendants Rock and Fairfield filed a motion to dismiss this action, claiming that the trial court was without subject matter jurisdiction to hear the case because the plaintiffs failed to exhaust their administrative remedies and the action is barred by the prior pending action doctrine. In addition, Rock and Fairfield claimed that the plaintiffs admitted in their pleadings that they have an adequate remedy at law. On August 27,1996, the trial court dismissed this action because the plaintiffs failed to exhaust their administrative remedies. This appeal followed.

I

The plaintiffs first claim that the trial court improperly dismissed the action for failure to exhaust administrative remedies. Specifically, the plaintiffs claim that the administrative remedy is inadequate because money damages are not available in an administrative appeal. They also claim that their complaint in this action does not require an adjudication of the zoning issue that is in controversy in the administrative appeal because they are claiming damages for the defendants’ activities that occurred before the natural resources removal permit was issued. Furthermore, the plaintiffs argue that the trial court improperly inteipreted the relevant case law that controls exhaustion of administrative remedies in this situation. On the basis of our analysis of the controlling cases, we agree with the plaintiffs.

In its memorandum of decision, the trial court analyzed the relevant cases, Cummings v. Tripp, 204 Conn. 67, 527 A.2d 230 (1987), and Cretaro v. Equitec Real Estate Investors Fund XII, 6 Conn. App. 317, 505 A.2d 22 (1986), and concluded that Cretaro controlled the situation presented in this case. In so concluding, the trial court determined that in Cretaro the zoning authority had issued a permit, while in Cummings there was no action by the zoning authority that could be challenged in an administrative appeal.

In this case, because a permit was issued by the commission, the trial court concluded that Cretaro required the plaintiffs to exhaust their administrative remedies prior to bringing an action for damages and injunctive relief. The trial court based its decision on the Cretaro court’s statement that “the common gist of [the plaintiffs’] claims is premised on the illegality of the action of the [commission]. We conclude, therefore, that the plaintiffs’ taxpayers’ action and nuisance counts come within the established rule that a party may not bring an independent action to test the very issues which the zoning appeal was designed to test.” Id., 321.

While this may be an accurate statement of the law, it is not applicable here. We conclude that the trial court’s reliance on the absence in Cummings of the issuance of a permit by the zoning authority that could be challenged in an administrative appeal was misplaced. See also Lewis v. Swan, 49 Conn. App. 669, 716 A.2d 127 (1998). The Cummings court did not rest its holding on the lack of a permit issued by the zoning authority. Instead, the court relied on the existence of allegations of specific and material damages caused by zoning violations that qualified as an exception to the exhaustion doctrine. Cummings v. Tripp, supra, 204 Conn. 75-76. The Cummings court concluded that in such a situation, a direct appeal was permissible because the doctrine of exhaustion of administrative remedies did not apply. Additionally, we conclude that the fact that a permit has been issued that may later be challenged in an administrative proceeding is insignificant. To rest the applicability of the exhaustion doctrine on such a relatively insignificant factual distinction would elevate form over substance. We conclude, therefore, that the trial court’s use of Cretaro as controlling in this case was improper. Accordingly, the trial court should have evaluated the defendants’ motion to dismiss under the test set forth in Cummings.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 Davis, Administrative Law § 20.01; General Statutes §§ 4-175, 4-183. Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Despite this principle, in Reynolds [v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981)] we held that [a]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation [without exhausting administrative remedies]. Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 [1977]; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A. 483 [1927]; see also, 3 Rathkopf, The Law of Zoning and Planning (4th Ed.) c. 66. Reynolds v. Soffer, supra, 69, quoting Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401, 426 A.2d 784 (1980); see Brainard v. West Hartford, 140 Conn. 631, 636, 103 A.2d 135 (1954). ... In their complaint, the plaintiffs clearly allege that they will be specifically and materially damaged by a violation of the zoning ordinances which has occurred ... on another’s land. . . . See Reynolds v. Soffer, supra [69]. We note that the plaintiffs’ assertion is more than a conclusory allegation of nuisance. See Butzgy v. Glastonbury, 203 Conn. 109, 523 A.2d 1258 (1987). In addition, the trial referee specifically concluded that the defendants’ use of the property has caused, and if not enjoined will continue to cause, the plaintiffs irreparable damage and harm. The trial referee also concluded that the defendants’ use of the property has caused the plaintiffs much annoyance, personal inconvenience and irritation. The court, therefore, was correct in concluding that the plaintiffs were not required to exhaust their administrative remedies before bringing this action in the trial court. The trial court had subject matter jurisdiction to hear this case. We cannot state too strongly, however, the necessity for clear and precise allegations of specific and material claims of damage in order to establish the threshold requirement for this exception to the exhaustion doctrine.” (Citation omitted; internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 75-76.

In this case, the plaintiffs have made allegations of specific and material damages that they suffered as a result of the defendants’ alleged zoning violations. Specifically, the plaintiffs claim in their revised complaint dated June 14, 1996, that they “have all suffered and continue to suffer substantial damages to their persons and properties as a direct result of the said quarrying operations, in one or more of the following ways: (a) Excessive noise from drilling, blasting, rock crushing, rock processing, other machinery operations and trucking; (b) air pollution; (c) damage and threat of damage to domestic wells and quality of drinking water; (d) damage to structure; (e) fright, shock and anxiety associated with blasting and related activities; (f) devaluation of their properties; (g) loss of peaceful and quiet enjoyment of their properties; (h) physical and emotional distress; (i) loss of wetlands habitat and associated flora and fauna; (j) other damages resulting from the defendants’ reckless conduct.” We conclude that the plaintiffs have made sufficient allegations of specific and material damages suffered as a result of the defendants’ activities and, consequently, have satisfied the requirements of Cummings, which create an exception to the exhaustion doctrine.

The policies on which the exhaustion doctrine rest have particular applicability to this case. The Cummings court noted: “As the United States Supreme Court has recognized, the ‘[application of the [exhaustion] doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved’ and that the doctrine should not be ‘applied blindly in eveiy case.’ McKart v. United States, 395 U.S. 185, 193, [201], 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). It has also been said that ‘[e]xhaustion law is too complex for a meaningful simple statement of when exhaustion is required and when it is not, but clearly the courts generally do what they obviously should do— they weigh the reasons pulling in each direction and decide whether requiring exhaustion is desirable.’ 4 K. Davis, Administrative Law (2d Ed. 1983) § 26.1.

“In McKart v. United States, supra, [395 U.S.] 193-94, the United States Supreme Court summarized some of the purposes of the exhaustion doctrine. Although some of these considerations are equally applicable to the facts of this case, we nevertheless recognize that certain very practical notions of judicial efficiency come into play as well. See id. At common law, property owners have the right to seek an injunction as well as damages for a nuisance affecting the enjoyment of their property. This right is supplementary to the right to seek injunctive relief from the zoning authorities for the violation of a zoning ordinance. See Brainard v. West Hartford, supra, [140 Conn.] 635-36. In deciding whether a nuisance exists, a court will often find it necessary to interpret the pertinent zoning regulations because the nuisance issue is intertwined with the lawfulness of the conduct involved. From a judicial viewpoint, it would be both inefficient and time consuming to require a litigant, as a prerequisite to judicial consideration of the nuisance claim, to exhaust his or her administrative remedies by first obtaining a ruling from the zoning board of appeals as to the lawfulness of the defendant’s conduct. A fortiori, it would be inefficient and inequitable for a court, based on an ultimate finding of the absence of a nuisance, to dismiss the case for failure to exhaust administrative remedies when that court had already found that a zoning violation had been established and that that violation had caused the plaintiff special harm. We think it appropriate in such a situation for the court to give the relief, based on the zoning violation, which the plaintiff has requested.” Cummings v. Tripp, supra, 204 Conn. 78-80.

The facts and procedural posture of this case justify application of the rule enunciated in Cummings. In addition, the sound policy considerations set forth in Cummings are applicable to this case. Here, the plaintiffs are seeking both injunctive relief and money damages for the defendants’ operation of the mine. It is clear that money damages are not an available remedy in an administrative action. See Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 48-49, 526 A.2d 1329 (1987). The plaintiffs seek damages based on the operation of the mine both before and after the natural resources removal permit was issued. Thus, interpretation of the zoning regulations and the propriety of the permit issuance is not the sole determinative factor in assessing the plaintiffs’ nuisance claim. Therefore, to require the plaintiffs to exhaust their administrative remedies in this case prior to seeking both injunctive relief and money damages would not serve the public policy of preserving judicial resources.

In summary, we conclude that Cummings rather than Cretaro applies to the facts of this case and, accordingly, hold that the plaintiffs are not required to exhaust their administrative remedies prior to proceeding in this action for injunctive relief and damages.

II

The plaintiffs next claim that the trial court improperly dismissed the action because a motion to strike was the appropriate procedural mechanism. The plaintiffs also claim that the trial court improperly dismissed the action against Dyno because the motion to dismiss was filed by only Rock and Fairfield. Because we concluded in part I of this opinion that the trial court improperly dismissed the suit, we need not address either of those claims.

Ill

The plaintiffs finally claim that the trial court improperly denied the plaintiffs’ motion for recusal. Because the plaintiffs have failed to present any facts in support of this claim, including any reason why the trial court should have recused itself, we decline to review this claim due to inadequate briefing.

“We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

In their brief, the plaintiffs make a bare, conclusory assertion, without providing any factual support for their argument, that the trial court should have disqualified itself from hearing this case. They claim that the mere appearance of impropriety justifies recusal, yet fail to articulate the basis for the claimed appearance of impropriety. As a result, we are left to speculate as to why the trial court should have recused itself. We refuse to engage in such speculation. We conclude, therefore, that the plaintiffs’ analysis of their recusal claim is inadequate and, accordingly, decline to review this claim.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.