Zweig v. Marvelwood School

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AARON M. ZWEIG v. THE MARVELWOOD SCHOOL
(AC 42660)
Alvord, Elgo and Devlin, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for, inter alia,
his allegedly wrongful discharge from employment. The trial court
granted the defendant’s motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to this court. The
plaintiff asserted that genuine issues of material fact existed as to
whether the defendant’s termination of his employment violated public
policy for the protection of children. The plaintiff was employed by the
defendant independent school as a history teacher and he also served
as the defendant’s Director of Food Studies, a role that required him
to establish and maintain a garden on campus and use it to teach a class
on food studies. In May, 2015, the plaintiff objected to the defendant’s
suggestion that telephone poles that had been treated with creosote, a
pesticide and wood preservative, be used to make raised beds in the
garden because he believed that the chemical posed a health risk to
himself and his students. Following the dispute, the plaintiff was relieved
of his duties relating to the garden but remained employed as a teacher
at the school, entering into at-will employment agreements with the
defendant in July, 2015, and April, 2016. In September, 2016, the plaintiff’s
employment was terminated. Held that the trial court properly granted
the defendant’s motion for summary judgment because no genuine issue
of material fact existed as to whether the plaintiff set forth a valid
wrongful discharge claim: the plaintiff failed to demonstrate that his
dismissal occurred for a reason that violated public policy because it
did not violate any explicit statutory or constitutional provision, as there
were no state or federal regulations prohibiting the use of creosote-
treated wood, and it did not violate any judicially conceived notion of
public policy, as, although the courts may have recognized a public policy
of protecting children in their prior interpretations of child protection
statutes, they have not articulated any judicially conceived notion of
public policy relating to the protection of children; moreover, the public
policy exception to the at-will employment doctrine is narrow, requiring
conduct that violates a clearly articulated public policy, as a broad
interpretation would impair the exercise of managerial discretion and
render the at-will employment doctrine meaningless; furthermore, even
if this court assumed that the defendant’s conduct violated public policy,
the plaintiff could not have prevailed on his claim because he failed to
satisfy his burden of demonstrating a causal connection between his
allegedly protected activity and the discharge of his employment, as
the defendant’s decision to enter into employment contracts with the
plaintiff in July, 2015, and April, 2016, despite the May, 2015 dispute,
broke the causal connection between the dispute and the plaintiff’s
September, 2016 termination of employment.
Argued March 5, 2020—officially released April 20, 2021

Procedural History

Action to recover damages for, inter alia, the allegedly
wrongful termination of the plaintiff’s employment, and
for other relief, brought to the Superior Court in the
judicial district of Litchfield, where the court, Shaban,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Thomas W. Meiklejohn, with whom, on the brief, was
Henry F. Murray, for the appellant (plaintiff).
Daniel A. Schwartz, with whom were Christopher E.
Engler and, on the brief, Gary S. Starr, for the appellee
(defendant).
Opinion

ELGO, J. The plaintiff, Aaron M. Zweig, appeals from
the summary judgment rendered by the trial court in
favor of the defendant, The Marvelwood School, in this
action for wrongful discharge. On appeal, the plaintiff
claims that the court improperly determined that no
genuine issue of material fact existed as to whether he
set forth a valid wrongful discharge claim. We disagree
and, accordingly, affirm the judgment of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to this appeal. The defendant is an independent board-
ing school for grades nine through twelve, plus a post-
graduate year. In June, 2012, the plaintiff executed an
at-will employment contract with the defendant for the
2012–2013 school year as a history teacher, as well
as a newly created position titled ‘‘Director of Food
Studies.’’ The latter position required the plaintiff to
establish a garden on campus and use it to teach a class
on food studies.1 The plaintiff also was responsible for
maintaining the garden and, like other faculty at the
school, he was responsible for supervising sports, com-
munity service activities and the dormitory. The plain-
tiff subsequently executed similar employment con-
tracts for the 2013–2014 and 2014–2015 school years,
which required him to teach three classes, coach sports
for two seasons, continue as Director of Food Studies,
serve as head of the community service program and
continue with dormitory supervisory responsibilities.
In the spring and summer of 2014, the defendant’s
headmaster, Arthur Goodearl, expressed to the plaintiff
his concern that the garden, which was located at the
entrance to the campus, was not being maintained prop-
erly. The plaintiff responded that maintenance staff had
not been helpful in his requests for assistance. Goodearl
recommended that he engage students for this work,
a suggestion that the plaintiff considered impractical
because ‘‘teenagers . . . aren’t necessarily interested
in hard labor . . . .’’
On May 22, 2014, Alicia Winter, a parent of students
enrolled at the school who also had expressed concerns
about the garden, sent an e-mail to Goodearl with sug-
gestions for improving its appearance, which were then
forwarded to the plaintiff. In an e-mail exchange on June
4, 2014, Winter sent photographs of telephone poles on
her property, which she offered to donate for use in
the garden, but advised that they would probably need
to be lined because they were filled with creosote.2 The
plaintiff responded that ‘‘they seem a bit big and heavy.
And with the creosote, maybe [it’s] best not to use them.
Not really sure how to even get them into the garden.’’
In an at-will employment agreement dated February
21, 2015 (February, 2015 contract), Goodearl offered
the plaintiff employment for the 2015–2016 school year
as Director of Food Studies at an annual salary of
$45,900, which represented a 1.6 percent increase in
salary. The plaintiff’s responsibilities would have
required him to teach four instead of three classes, as
well as to continue to coach for two seasons and to
serve as the head of the community service program.
The agreement specified that ‘‘[r]esponses must be
received on or before April 3, 2015. After which, those
who have not signed & returned the agreement, may
have their position made available to any other qualified
applicants.’’ The plaintiff never signed the February,
2015 contract.
On April 7, 2015, Goodearl advised the plaintiff of
his intention to offer Winter the position of ‘‘Garden
Manager.’’ Winter accepted the offer to fill that role on
April 19, 2015, thereby reducing the plaintiff’s responsi-
bilities as Director of Food Studies. As Garden Manager,
Winter went forward with her plan to build raised beds
for the garden using the donated telephone poles, which
were delivered to the campus on or after May 7, 2015.
On May 15, 2015, the plaintiff e-mailed Goodearl and
informed him that he objected to the use of the tele-
phone poles to make raised beds ‘‘because they are
made with carcinogenic chemicals that leech into the
soil.’’ The plaintiff further indicated his preference to
make raised beds out of pine or cedar ‘‘because they
do not put cancer in the soil.’’ In response, Goodearl
stated in relevant part: ‘‘Regarding the poles, [Winter] has
used them for years, but [she] is researching to make sure
that there is no adverse effect. Your comment about
putting cancer into the soil is gratuitous in the extreme,
and frankly, unworthy of you.’’ The plaintiff then sent a
reply e-mail to Goodearl, in which he stated: ‘‘[Y]ou may
feel that protecting our community from known sources
of cancer is ‘unworthy’ of my efforts, but I feel as though
preventing cancer and known poisons from our environ-
ment is a duty.’’ Winter thereafter decided not to use the
telephone poles for the garden and arranged for their
removal.
In an e-mail dated June 15, 2015, Goodearl advised the
plaintiff that he had not yet signed the February, 2015
contract, which at that point had expired. In his e-mail
response on June 25, 2015, the plaintiff stated that he was
aware that he had not signed his contract and that he
had considered resigning his position. He asked Goodearl
whether he would consider discussing a part-time posi-
tion. Following negotiation with Goodearl and given assur-
ances that he would maintain his health insurance, the
plaintiff signed a new at-will employment agreement
(2015–2016 Agreement) on July 14, 2015, for a full-time
position that required him to teach four classes and admin-
ister the community service program. That agreement,
which provided for an annual salary of $37,000, also elimi-
nated his responsibilities for the Food Studies program
and reduced his dormitory duties and coaching responsi-
bilities.
Approximately nine months later, the plaintiff executed
another at-will employment contract (2016–2017 Agree-
ment)3 with the defendant for the 2016–2017 school year.
That agreement included the same terms as the 2015–2016
Agreement, with two exceptions: the plaintiff’s commu-
nity service obligation was eliminated and his annual sal-
ary was increased to $38,000.
Approximately five months later, on September 6, 2016,
the defendant terminated the plaintiff from its employ,
and this wrongful discharge action followed. The plaintiff
filed a two count amended complaint against the defen-
dant in September, 2017. In count one, the plaintiff alleged
that the defendant had ‘‘reduced the plaintiff’s pay because
he opposed the use of carcinogens in the defendant’s
vegetable garden.’’4 In count two, the plaintiff alleged that
the defendant had terminated his employment for the
same reason.5 The plaintiff alleged that both adverse
employment actions ‘‘violate[d] the public policy of the
state of Connecticut.’’
On March 30, 2018, the defendant filed a motion for
summary judgment as to both counts of the complaint
on the ground that the plaintiff had failed to establish ‘‘an
important public policy which supports his claim.’’6 On
September 4, 2018, the court heard oral arguments on the
defendant’s motion. In its subsequent memorandum of
decision, the court granted the defendant’s motion for
summary judgment because ‘‘the plaintiff . . . failed to
identify any explicit public policy contained in an appli-
cable statute, regulation, constitutional provision, or
judicial decision that was violated by the defendant
. . . .’’ The plaintiff thereafter filed a motion to reargue
the decision, which the court denied, and this appeal
followed.
The issue presented in this appeal by the plaintiff
is whether the court properly granted the defendant’s
motion for summary judgment on the ground that the
plaintiff failed to demonstrate as a matter of law that
his dismissal occurred for a reason violating public policy.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. Practice Book [§ 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. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle [him/her] to a judgment as a matter of law
. . . and the party opposing such a motion must pro-
vide an evidentiary foundation to demonstrate the exis-
tence of a genuine issue of material fact. . . . A mate-
rial fact . . . [is] a fact which will make a difference
in the result of the case.’’ (Internal quotation marks
omitted.) Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 312–13, 77 A.3d 726 (2013). ‘‘When a court
renders summary judgment as a matter of law, our
review is plenary, and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Armshaw v. Greenwich Hos-
pital, 134 Conn. App. 134, 137, 38 A.3d 188 (2012).
‘‘In Connecticut, an employer and employee have an
at-will employment relationship in the absence of a
contract to the contrary. Employment at will grants
both parties the right to terminate the relationship for
any reason, or no reason, at any time without fear of
legal liability.’’ (Internal quotation marks omitted.) Thi-
bodeau v. Design Group One Architects, LLC, 260 Conn.
691, 697–98, 802 A.2d 731 (2002). However, in Sheets v.
Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427
A.2d 385 (1980), our Supreme Court recognized an
exception to the at-will employment doctrine: a com-
mon-law cause of action for wrongful discharge exists
‘‘if the former employee can prove a demonstrably
improper reason for dismissal, a reason whose impro-
priety is derived from some important violation of pub-
lic policy.’’ (Emphasis omitted.) Id. As our Supreme
Court subsequently explained, the ‘‘public policy excep-
tion . . . carved out in Sheets attempts to balance the
competing interests of employer and employee. Under
the exception, the employee has the burden of pleading
and proving that his dismissal occurred for a reason
violating public policy. The employer is allowed, in ordi-
nary circumstances, to make personnel decisions with-
out fear of incurring civil liability. Employee job secu-
rity, however, is protected against employer actions that
contravene public policy.’’ Morris v. Hartford Courant
Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). ‘‘The ques-
tion of whether a challenged discharge violates public
policy . . . is a question of law to be decided by the
court . . . .’’ (Internal quotation marks omitted.)
Geysen v. Securitas Security Services USA, Inc., 322
Conn. 385, 407, 142 A.3d 227 (2016).
‘‘Given the inherent vagueness of the concept of pub-
lic policy, it is often difficult to define precisely the
contours of the exception.’’ Morris v. Hartford Courant
Co., supra, 200 Conn. 680. Although Sheets and its prog-
eny recognize a claim for wrongful termination in appro-
priate cases, our Supreme Court has ‘‘repeatedly . . .
underscored . . . that the public policy exception to
the general rule allowing unfettered termination of an
at-will employment relationship is a narrow one . . . .’’
(Emphasis added; internal quotation marks omitted.)
Thibodeau v. Design Group One Architects, LLC, supra,
260 Conn. 701. Indeed, the court in Sheets emphasized
that ‘‘courts should not lightly intervene to impair the
exercise of managerial discretion or to foment unwar-
ranted litigation.’’ Sheets v. Teddy’s Frosted Foods, Inc.,
supra, 179 Conn. 477. Consequently, our Supreme Court
has ‘‘rejected claims of wrongful discharge that have
not been predicated upon an employer’s violation of an
important and clearly articulated public policy.’’ Thibo-
deau v. Design Group One Architects, LLC, supra, 701.
Thus, in evaluating wrongful termination claims, a
reviewing court must ‘‘look to see [1] whether the plain-
tiff has . . . alleged that his discharge violated any
explicit statutory or constitutional provision . . . or
[2] whether he alleged that his dismissal contravened
any judicially conceived notion of public policy.’’ (Inter-
nal quotation marks omitted.) Faulkner v. United Tech-
nologies Corp., 240 Conn. 576, 581, 693 A.2d 293 (1997).
I
On appeal, the plaintiff concedes that the defendant’s
conduct does not violate any explicit statutory or consti-
tutional provision.7 The plaintiff also does not dispute
the absence of state or federal regulations prohibiting
the use of creosote-treated wood and concedes that
discarded telephone poles are exempt from regulation
as a hazardous waste. Instead, the plaintiff seeks to
bring his claim within the narrow confines of Sheets
and its progeny by asserting that Connecticut courts
have ‘‘judicially recognized a public policy in the protec-
tion of children.’’ The plaintiff relies on Morris v. Hart-
ford Courant Co., supra, 200 Conn. 680, which states
in dicta an exception to the at-will employment doctrine
where an employee alleges that his or her dismissal
contravened a ‘‘judicially conceived notion of public
policy.’’ The plaintiff contends that judicial decisions
that have ‘‘recognized the public policy of protecting
children,’’ as articulated in, for example, General Stat-
utes § 17a-101,8 constitute the basis for a judicially con-
ceived notion of public policy, the violation of which
can serve as an exception to the at-will employment doc-
trine.9 We disagree.
In Sheets, our Supreme Court declined to address
‘‘whether violation of a state statute is invariably a pre-
requisite to the conclusion that a challenged discharge
violates public policy.’’ Sheets v. Teddy’s Frosted Foods,
Inc., supra, 179 Conn. 480. At the same time, the court
observed that ‘‘when there is a relevant state statute
we should not ignore the statement of public policy
that it represents.’’ Id. Relying on Sheets and its progeny,
the defendant argues that ‘‘courts should not impute a
statement of public policy beyond [the] express statu-
tory language.’’ See also Geysen v. Securitas Security
Services USA, Inc., supra, 322 Conn. 408–409.
Even if we were to accept the plaintiff’s premise that
the exemption of the reuse of creosote from state and
federal environmental regulation is not fatal to his
Sheets claim, we first note that the plaintiff misstates
the standard articulated in Morris.10 The court in Morris
stated in dicta that an employer could be liable for
wrongful termination if the discharge violated ‘‘any judi-
cially conceived notion of public policy.’’ (Emphasis
added.) Morris v. Hartford Courant Co., supra, 200
Conn. 680. In his brief, the plaintiff justifies his foray
into invoking public policy language from case law that
applies child protection statutes by repeatedly asserting
that ‘‘[t]here is a judicially recognized public policy of
protecting children’’ in a wide range of circumstances.
(Emphasis added.)
This distinction between a judicially conceived
notion and a judicially recognized one is not mere
semantics. Although we are not aware of any appellate
court cases that have found an exception to the at-
will employment doctrine based on a violation of a
‘‘judicially conceived notion of public policy,’’ our
courts routinely ‘‘recognize’’ public policy in interpre-
ting statutes. See, e.g., State v. Burns, 236 Conn. 18,
22–23, 670 A.2d 851 (1996) (in discerning legislative
intent, courts ‘‘look to the words of the statute itself,
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter’’ (internal quotation marks omit-
ted)). Nevertheless, although our courts may appropri-
ately recognize and consider public policy, particularly
as an aid to statutory construction, this function can
in no way be construed as ‘‘conceived’’ by our courts.11
We emphasize this distinction because much of the
authority on which the plaintiff relies for his contention
that there is a judicially recognized policy of protecting
children draws from child protection statutes. See Ward
v. Greene, 267 Conn. 539, 560, 839 A.2d 1259 (2004) (in
considering public policy underlying § 17a-101, court
rejected claim that all children are encompassed in
class of persons referenced therein); State v. AFSCME,
Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793,
798–99, 801–802, 758 A.2d 387 (court relied on public
policy underlying General Statutes §§ 17a-90 (a), 17a-
101 (a), 17a-114 (b), and 17a-115 in considering author-
ity of commissioner to terminate Department of Chil-
dren and Families employee convicted of drug
offenses), cert. denied, 255 Conn. 905, 762 A.2d 910
(2000); Bridgeport v. National Assn. of Government
Employees, Local R1-200, Superior Court, judicial dis-
trict of Fairfield, Docket No. CV-XX-XXXXXXX (August
2, 1994) (12 Conn. L. Rptr. 271) (rejecting claim that
arbitration award reinstating school custodian violated
public policy expressed in § 17a-101). Our examination
of these cases reveals that, although the court may
have ‘‘recognized’’ the public policy expressed by child
protection statutes, the court did not articulate judi-
cially conceived notions of public policy. Rather, as is
self-evident, the public policy in question emanated not
from our courts, but from the statutes themselves and
were thus conceived and promulgated by our legisla-
ture.
Numerous Supreme Court decisions since Morris
demonstrate that, whatever the court suggested in dicta
regarding judicially conceived notions of public policy,
public policy exceptions to the at-will employment doc-
trine arising from statutes nonetheless must allege vio-
lations specific to those provisions. As our Supreme
Court has explained, generalized statements of public
policy contained in our statutes ‘‘should not be read to
provide a broader public policy mandate than that
which is represented.’’ Geysen v. Securitas Security
Services USA, Inc., supra, 322 Conn. 408. Although we
note that the plaintiff fails to mention the references
to child protection statutes such as § 17a-101 (a) in his
citation to cases in which courts have ‘‘recognized’’ the
public policy to protect children, this does not obviate
the fact that the legislature, and not the courts, deter-
mined the public policy articulated therein. The plain-
tiff’s characterization of those cases as examples of
judicially conceived notions of public policy as contem-
plated by Morris, therefore, is untenable.
Moreover, in its admonition that a wrongful discharge
action must allege a violation of an explicit statutory
or constitutional provision, our Supreme Court has spe-
cifically rejected a more explicit attempt to invoke
§ 17a-101 (a) in a wrongful discharge action based on
a violation of the public policy expressed therein. See
Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 802,
734 A.2d 112 (1999). In Daley, an employee brought an
action for wrongful discharge alleging, inter alia, that
her employer terminated her because she advocated
for flexible schedules for working parents. Id., 772–74.
She alleged that the public policy contained in a variety
of statutes—including § 17a-101 (a), the Connecticut
Family and Medical Leave Act, General Statutes § 31-
51kk et seq., and the federal Family and Medical Leave
Act of 1993, 29 U.S.C. § 2601 et seq.—not only required
employers to provide flexible work schedules, but also
prohibited discrimination against employees pursuing
these arrangements. Id., 799–801. Although our
Supreme Court acknowledged that each of the statutes
regulates workplace conduct to some degree, noting
that § 17a-101 (a) includes the reporting and investiga-
tion obligations of certain professionals, the court nev-
ertheless emphasized that ‘‘[n]one of these statutes
requires that an employer accommodate employee
requests for flexible work schedules.’’ Id., 802.
In rejecting general public policy statements as a
basis for wrongful discharge actions, the Supreme
Court reiterated that courts ‘‘do not lightly intervene
to impair the exercise of managerial discretion or to
foment unwarranted litigation.’’ (Internal quotation
marks omitted.) Id., 802–803. ‘‘In declining to recognize
an important public policy to that effect, we are mindful
that we should not ignore the statement of public policy
that is represented by a relevant statute. . . . Nor
should we impute a statement of public policy beyond
that which is represented. To do so would subject the
employer who maintains compliance with express stat-
utory obligations to unwarranted litigation for failure
to comply with a heretofore unrecognized public policy
mandate.’’ (Citation omitted.) Id., 804.
In Thibodeau v. Design Group One Architects, LLC,
supra, 260 Conn. 706, our Supreme Court similarly reaf-
firmed the principle that general statements of public
policy in our statutes are an insufficient basis for a
wrongful discharge action. The plaintiff in that case
alleged that she was wrongfully discharged by her
employer, the defendant, in violation of the public pol-
icy against pregnancy discrimination outlined in the
Fair Employment Practices Act, General Statutes § 46a-
51 et seq. Thibodeau v. Design Group One Architects,
LLC, 64 Conn. App. 573, 574, 781 A.2d 363 (2001), rev’d,
260 Conn. 691, 802 A.2d 731 (2002). That statute, how-
ever, only applied to employers with three or more
employees and the defendant admittedly employed only
two individuals. Id., 575. The defendant successfully
moved for summary judgment on the ground that the
exemption was an expression of public policy against
claims like that raised by the plaintiff. Id. On appeal,
this court disagreed and reversed the judgment of the
trial court in favor of the defendant, observing that the
statute ‘‘announced a general public policy against sex
discrimination in employment’’; id., 584; and that ‘‘the
language, history and public policy underlying the act
. . . reflect a cognizable legislative and societal con-
cern for eliminating discrimination on the basis of sex
in Connecticut.’’ Id., 586. Although it conceded that the
statute exempted small employers like the defendant
from pregnancy discrimination claims, this court con-
cluded that the statute’s statement of public policy, at
most, was ‘‘simply to limit the statutory remedy, but
[was] not an affirmative policy to exempt . . . small
employers from . . . discrimination suits.’’ (Internal
quotation marks omitted.) Id., 587.
The defendant then appealed to the Supreme Court,
which reversed the judgment of the Appellate Court,
concluding that ‘‘the exemption contained in the act
for employers with fewer than three employees is, itself,
an expression of public policy that cannot be separated
from the policy reflected in the act’s ban on discrimina-
tory employment practices.’’ Thibodeau v. Design
Group One Architects, LLC, supra, 260 Conn. 706. As
the court rhetorically asked: ‘‘Why would the legislature
have exempted small employers from the act unless it
had concluded, as a policy matter, that such employers
should not be required to defend against sex discrimina-
tion claims, notwithstanding this state’s general public
policy against sex discrimination?’’ Id., 718. The court
thus concluded that it saw ‘‘no reason why the legisla-
ture would have excluded small employers from the
act unless it had decided, as a matter of policy, that
such employers should be shielded from liability for
employment discrimination, including sex and preg-
nancy-related discrimination. . . . The legislature may
wish to revisit its policy judgment regarding small
employers. We, however, are not free to ignore the clear
expression of public policy embodied in the statutory
exemption currently afforded small employers under
the act.’’ Id.
We are also not persuaded that Ruiz v. Victory Prop-
erties, LLC, 315 Conn. 320, 107 A.3d 381 (2015), or
Hanford v. Connecticut Fair Assn., 92 Conn. 621, 103
A. 838 (1918), have any application to our jurisprudence
in wrongful termination cases involving at-will employ-
ment. The primary issue in Ruiz involved ‘‘whether
public policy [supported] the imposition of a [legal]
duty’’ in the context of a negligence case involving
attractive nuisances on a landowner’s property. (Inter-
nal quotation marks omitted.) Ruiz v. Victory Proper-
ties, LLC, supra, 323, 337. Hanford likewise is inapplica-
ble because it merely stands for the proposition that a
contract to hold a baby show during the 1916 ‘‘infantile
paralysis’’ epidemic12 was void because holding the
event ‘‘would [have been] highly dangerous to the health
of the community’’ and, thus, contrary to public policy.
Hanford v. Connecticut Fair Assn., supra, 622–23.
Although the plaintiff acknowledges that these cases
do not involve exposure of children to creosote or any
carcinogen, he argues that public policy ‘‘is not limited
to narrowly defined circumstances.’’ Ruiz and Hanford,
however, did not address public policy in the context
of the at-will employment doctrine, which presents
countervailing public policy concerns that we are not
free to ignore.
As our Supreme Court repeatedly has emphasized,
Sheets is a narrow, not a broad, exception to the at-will
employment doctrine. See, e.g., Thibodeau v. Design
Group One Architects, LLC, supra, 260 Conn. 700–701;
Parsons v. United Technologies Corp., 243 Conn. 66,
79, 700 A.2d 655 (1997). By circumscribing the parame-
ters of the public policy exception, our Supreme Court
has underscored the principle that, when its conduct
violates some clearly articulated public policy, an
employer forgoes its otherwise unfettered right to ter-
minate an employee in an at-will employment relation-
ship. The logic underlying this requirement is obvious.
In those instances where the legislature has clearly
spoken, the impropriety of the alleged conduct is, as a
matter of law, not in dispute. See Geysen v. Securitas
Security Services USA, Inc., supra, 322 Conn. 407
(‘‘[t]he question of whether a challenged discharge vio-
lates public policy . . . is a question of law to be
decided by the court’’ (internal quotation marks omit-
ted)). Thus, notwithstanding ‘‘the inherent vagueness
of the concept of public policy,’’ which renders the
contours of exceptions, as the court in Morris v. Hart-
ford Courant Co., supra, 200 Conn. 680, observed,
‘‘often difficult to define precisely,’’ the requirement
that violations assert some ‘‘explicit statutory or consti-
tutional provision’’; Faulkner v. United Technologies
Corp., supra, 240 Conn. 581; ensures that an employer is
effectively and constructively apprised of the improper
conduct. As our Supreme Court noted in Daley v. Aetna
Life & Casualty Co., supra, 249 Conn. 804, ‘‘absent [a]
clear breach of public policy, the employer must be
allowed to make personnel decisions without fear of
incurring civil liability.’’ (Internal quotation marks omit-
ted.) To do otherwise ‘‘would subject the employer who
maintains compliance with express statutory obliga-
tions to unwarranted litigation for failure to comply
with a heretofore unrecognized public policy man-
date.’’ Id.
Furthermore, actions that are premised on conduct
that is alleged to violate public policy founded on gen-
eral statements, rather than on clearly proscribed con-
duct, run the risk that our courts will be faced with
arbitrating the merits of the alleged public policy itself.
The present case, if it were permitted to advance to
trial, illustrates precisely why our Supreme Court has
foreclosed litigation of at-will employment cases that
fall short of alleging violations of a clearly articulated
public policy. Because the plaintiff concedes, as he
must, the absence of state or federal statutes or regula-
tions prohibiting the use of creosote in telephone poles
used in garden beds, the plaintiff’s proffer of the opin-
ions of experts and statements in agency brochures
effectively seeks to have the court litigate the merits
of his public policy claim.13 These sources, however,
are opinions subject to dispute, such that the defendant
would be entitled to challenge with its own experts and
evidence the degree to which creosote is unsafe and
whether it was reasonable for the defendant to be dis-
missive of the plaintiff’s concerns because it relied on
Winter’s belief that, if dry and/or lined, creosote tele-
phone poles did not pose a risk to students.
Permitting a plaintiff to litigate conduct that is not
clearly proscribed by statute would eviscerate the
underlying premise of the at-will employment doctrine.
‘‘Employment at will grants both parties the right to
terminate the relationship for any reason, or no reason,
at any time without fear of legal liability.’’ Thibodeau
v. Design Group One Architects, LLC, supra, 260 Conn.
697–98. The purpose of the at-will employment doctrine
is to ‘‘preserve the autonomy of managerial discretion
in the work place and the freedom of the parties to make
their own contract.’’ Magnan v. Anaconda Industries,
Inc., 193 Conn. 558, 563, 479 A.2d 781 (1984). As our
Supreme Court emphasized in Sheets, ‘‘courts should
not lightly intervene’’ into the motivations behind an
employer’s termination of an at-will employee. Sheets
v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 477.
To adopt the plaintiff’s argument in the present case
would ‘‘impair the exercise of managerial discretion’’
and render the at-will employment doctrine meaning-
less. Id. For that reason, anything less than an express
violation of a statutory or constitutional mandate would
undermine the salutary purpose of balancing the right
of an employee to have a remedy for clear violations
of public policy and the right of the employer to manage-
rial discretion as contemplated by Sheets.
‘‘[J]ust as the primary responsibility for formulating
public policy resides in the legislature . . . so, too,
does the responsibility for determining, within constitu-
tional limits, the methods to be employed in achieving
those policy goals.’’ (Citations omitted.) Thibodeau v.
Design Group One Architects, LLC, supra, 260 Conn.
715. ‘‘In areas where the legislature has spoken . . .
the primary responsibility for formulating public policy
must remain with the legislature.’’ State v. Whiteman,
204 Conn. 98, 103, 526 A.2d 869 (1987); see also Sic v.
Nunan, 307 Conn. 399, 410, 54 A.3d 553 (2012) (declin-
ing to recognize duty of ‘‘drivers to keep their wheels
pointed in a particular direction when stopped at an
intersection waiting to turn’’ in part because ‘‘it is undis-
puted that the legislature, which has the primary
responsibility for formulating public policy . . . has
not seen fit to enact any statutes requiring [such con-
duct]’’ (citation omitted; internal quotation marks omit-
ted)); General Motors Corp. v. Mulquin, 134 Conn. 118,
132, 55 A.2d 732 (1947) (‘‘it is for the legislature, which
is the arbiter of public policy, to determine what [public
policy] shall be’’); New Haven Metal & Heating Supply
Co. v. Danaher, 128 Conn. 213, 222, 21 A.2d 383 (1941)
(‘‘the legislature determines the public policy of the
state’’); State v. Gilletto, 98 Conn. 702, 714, 120 A. 567
(1923) (‘‘[t]he legislature is the arbiter of public policy’’);
Nichols v. Salem Subway Restaurant, 98 Conn. App.
837, 846, 912 A.2d 1037 (2006) (‘‘[t]he legislature speaks
on matters of public policy through legislative enact-
ments and through the promulgation of regulations by
state agencies as authorized by statute’’ (internal quota-
tion marks omitted)).
Moreover, ‘‘[t]he wisdom of deferring questions of
public policy to the legislature is exemplified by the
problems that judicial intervention would create
. . . .’’ Burnham v. Administrator, Unemployment
Compensation Act, 184 Conn. 317, 325, 439 A.2d 1008
(1981). The plaintiff relies on an Environmental Protec-
tion Agency report, which classifies creosote as a ‘‘prob-
able human carcinogen.’’ United States Environmental
Protection Agency, ‘‘Chemical Assessment Summary:
Creosote; CASRN 8001-58-9,’’ (last modified December
3, 2002), p. 2, available at https://iris.epa.gov/static/pdfs/
0360_summary.pdf (last visited April 7, 2021). Although
such a report might be influential to a legislative deter-
mination of public policy, it does not establish that the
substance offends a clearly articulated public policy.
We therefore decline the plaintiff’s invitation to
‘‘[exceed] our constitutional limitations by infringing
on the prerogative of the legislature to set public policy
through its statutory enactments.’’ State v. Reynolds,
264 Conn. 1, 79, 836 A.2d 224 (2003), cert. denied, 541
U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); see
also Tannone v. Amica Mutual Ins. Co., 329 Conn. 665,
684 n.7, 189 A.3d 99 (2018) (noting distinction between
court articulating public policy versus ‘‘vindicating our
legislature’s public policy, articulated in state statute’’
(emphasis in original)); Schofield v. Loureiro Engi-
neering Associates, Inc., Superior Court, judicial dis-
trict of Waterbury, Docket No. CV-XX-XXXXXXX-S (March
9, 2017) (64 Conn. L. Rptr. 252) (‘‘[i]n the absence of a
clearly articulated judicially conceived notion of public
policy on the issues presented . . . this court will not
re-write existing statutes’’).
We agree with the plaintiff that, as a general matter,
protecting the health and welfare of children is an
important public policy. The plaintiff nonetheless bore
the burden of demonstrating that his discharge was
‘‘predicated upon an employer’s violation’’ of a ‘‘clearly
articulated public policy.’’ Thibodeau v. Design Group
One Architects, LLC, supra, 260 Conn. 701. In advancing
his claim that the defendant violated public policy, the
plaintiff relies on case law premised on statutes promul-
gated by our legislature and, thus, not conceived by the
court. As such, we are bound by Sheets and its progeny
that public policy embodied in our statutes ‘‘should not
be read to provide a broader public policy mandate
than that which is represented.’’ Geysen v. Securitas
Security Services USA, Inc., supra, 322 Conn. 408. We
therefore conclude that the trial court properly deter-
mined that no genuine issue of material fact exists as to
whether the plaintiff set forth a valid wrongful discharge
claim because the defendant’s conduct does not violate
any statutory or constitutional provision or any judi-
cially conceived notion of public policy.
II
Even if we were to conclude that the defendant’s
conduct constituted a violation of public policy, the
plaintiff still could not prevail. The defendant argues,
as an alternative ground for affirmance, that the plaintiff
has failed to demonstrate a genuine issue of material
fact as to whether his termination was caused by his
May, 2015 objection to the defendant’s attempted use
of creosote.14 We agree.
Under the Sheets doctrine, one of the elements the
plaintiff must prove for wrongful discharge is causa-
tion—’’that is, that the discharge occurred for a reason
violating public policy.’’ Sophia v. Danbury, 116 Conn.
App. 68, 74–75, 974 A.2d 804 (2009). This causation
requirement is reflected in the text of Sheets itself,
because the court required the plaintiffs to ‘‘prove a
demonstrably improper reason for dismissal, a reason
whose impropriety is derived from some important vio-
lation of public policy.’’ (Emphasis omitted.) Sheets v.
Teddy’s Frosted Foods, Inc., supra, 179 Conn. 475. If
the employee is terminated for other reasons unrelated
to the claimed public policy violation, then no wrongful
discharge claim will lie against the employer. But see
Li Li v. Canberra Industries, 134 Conn. App. 448, 457,
39 A.3d 789 (2012) (reversing grant of employer’s
motion for summary judgment on wrongful discharge
claim because discharge occurred within months of
protected activity).
A common-law cause of action for wrongful dis-
charge ‘‘logically should be analyzed in the same frame-
work as a statutory cause of action’’ for wrongful dis-
charge. Id., 455. ‘‘Statutory actions for wrongful
discharge typically follow the analytic route outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this
analysis, the plaintiff has a minimal burden of establish-
ing a prima facie case by showing that he or she engaged
in a protected activity or otherwise fell within the pro-
tection of the statute, that he or she was subsequently
discharged, and that there was a causal connection
between the two. If a prima facie showing is made,
the burden of going forward shifts to the employer to
demonstrate a permissible reason for the termination
of employment. If the employer’s burden of going for-
ward is satisfied, the plaintiff has the ultimate burden
of proving by the preponderance of the evidence that
the employer’s reason is pretextual or, even if true,
[that] the improper reason likely motivated the
employer in the decision to terminate.’’ Li Li v. Can-
berra Industries, supra, 134 Conn. App. 454.
The defendant argues that the plaintiff failed to estab-
lish the element of causation. More specifically, it con-
tends that the plaintiff cannot establish that his reduc-
tion in pay and termination was causally related to
the May, 2015 dispute over his objection to the use of
creosote in light of the undisputed fact that the defen-
dant thereafter renewed the plaintiff’s employment con-
tract for both the 2015–2016 and 2016–2017 school
years. We agree.
In the present case, the facts are undisputed that the
defendant’s remarks evidencing hostility to the plain-
tiff’s concerns regarding creosote occurred in e-mails
exchanged in May, 2015. Prior to that exchange, the
defendant offered to renew the plaintiff’s employment
for another year on February 15, 2015, with an annual
salary of $45,900, representing a 1.6 percent increase in
salary and a commensurate increase in responsibilities.
The plaintiff does not dispute that he was aware of the
contract offer and allowed it to lapse according to its
terms on April 3, 2015, an event occurring prior to
the May, 2015 e-mail exchange.15 Instead, the plaintiff
admitted that he had considered resigning his position
and asked for the defendant to consider a part-time
position. Following discussions with Goodearl and
given assurances that he would maintain his health
insurance, the plaintiff signed a new contract on July
14, 2015, for a full-time position, which included respon-
sibility for teaching four classes and administering the
community service program. The agreement also
included the elimination of his responsibilities for the
Food Studies program and a reduction of dormitory
duty to one evening per week and coaching responsibil-
ity to one season instead of two for an annual salary
of $37,000.
It is also undisputed that the defendant subsequently
entered into yet another at-will employment contract16
with the plaintiff for the 2016–2017 school year on April
8, 2016. That agreement included the same terms as
the prior year with the exception of responsibility for
community service, which was eliminated, and the
increase of the plaintiff’s annual salary to $38,000.
As the defendant correctly observes, the plaintiff
chose to allow the February offer to lapse on April 3,
2015, and the defendant, as an at-will employer, was
under no obligation to renew its offer. The defendant
nevertheless did so and the plaintiff subsequently
entered into a new at-will employment contract on July
14, 2015, for the 2015–2016 year, the terms of which
were negotiated between him and the defendant. In the
absence of duress, fraud or mutual mistake, which is
not claimed here, the agreement between the plaintiff
and the defendant under negotiated terms is the sine
qua non of contract. Because both parties entered into
the contract freely, any claim that the defendant
reduced the plaintiff’s salary or terminated the plaintiff
in September, 2016, because of the intervening May,
2015 dispute defies logic. If any inference can be reason-
ably made relative to the May, 2015 dispute, it is that
the defendant rehired the plaintiff despite that dispute.
That decision, and the renegotiation and renewal of the
subsequent 2016–2017 employment agreement, operate
to break the causation connection between the May,
2015 incident and the plaintiff’s eventual termination
in September, 2016.17
Accordingly, we agree that the plaintiff has failed
to demonstrate a genuine issue of material fact as to
whether his termination was caused by his objection
to the defendant’s attempted use of creosote. The court,
therefore, properly rendered summary judgment in
favor of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff previously was employed by the defendant as a teacher
from 2005 until 2010. In the fall of 2010, the plaintiff left his position with
the defendant to obtain a master’s degree in food studies.
2
Creosote is a pesticide used as a wood preservative. See United States
Environmental Protection Agency, ‘‘Ingredients Used in Pesticide Products:
Creosote,’’ (last modified December 15, 2016), available at https://19january2-
017snapshot.epa.gov/ingredients-used-pesticide-products/creosote_.html
(last visited April 7, 2021).
3
All of the plaintiff’s prior annual employment contracts with the defen-
dant were at will.
4
At oral argument on the motion for summary judgment, the defendant
argued that count one does not allege any legally recognized tort because
the common-law exception to at-will employment articulated in Sheets v.
Teddy’s Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980), only
applies to wrongful discharge, not to reduction in pay. The trial court
declined to address that argument because the defendant raised this issue
for the first time at oral argument and not in its pleadings.
5
The plaintiff also alleged that he was wrongfully terminated because he
(1) ‘‘opposed policies that condoned failure to fulfill community service
obligations’’ and (2) ‘‘called upon the defendant to take adequate steps to
discourage drug and alcohol use by minors.’’ The court granted the defen-
dant’s motion for summary judgment as to those alternative grounds, and the
plaintiff does not challenge the propriety of that determination in this appeal.
6
The defendant raised several other grounds in support of its motion for
summary judgment, contending that (1) there was no evidence of a ‘‘causal
connection between [the plaintiff’s] May 15, 2015 e-mail in which he com-
plained about the use of creosote treated telephone poles . . . and his
2015–2016 contract terms’’; (2) the time gap between his 2015 e-mail
objecting to creosote and later employment contracts ‘‘is too great a time
gap to permit an inference of retaliation’’; and (3) the defendant ‘‘had a
legitimate, nonretaliatory reason for [the plaintiff’s] termination.’’ Because
the court granted the defendant’s motion for summary judgment for lack
of an explicit public policy, it declined to address those alternative grounds.
7
In the absence of any state or federal statutory provisions that prohibit
the defendant from reusing a creosote-treated telephone pole for gardens,
the plaintiff submitted government studies on creosote in opposition to the
defendant’s motion for summary judgment. For example, the plaintiff relies
on a 2002 brochure from the Agency for Toxic Substances and Disease
Registry (ATSDR), an agency within the United States Department of Health
and Human Services, which states that ‘‘exposure to coal tar creosote . . .
may harm you . . . .’’ Agency for Toxic Substance and Disease Registry,
‘‘Public Health Statement: Creosote,’’ (September 2002), p. 1, available at
https://www.atsdr.cdc.gov/ToxProfiles/tp85-c1-b.pdf (last visited April 7,
2021). The plaintiff also relies on an Environmental Protection Agency
report, which classifies creosote as a ‘‘probable human carcinogen,’’ and
found a ‘‘well-documented carcinogenicity of other coal tar [creosote] prod-
ucts to humans.’’ United States Environmental Protection Agency, ‘‘Chemical
Assessment Summary: Creosote; CASRN 8001-58-9,’’ (last modified Decem-
ber 3, 2002), p. 2, available at https://iris.epa.gov/static/pdfs/0360_summa-
ry.pdf (last visited April 7, 2021). The defendant counters that the Environ-
mental Protection Agency study ‘‘do[es] not discuss the hundreds of other
employees who were similarly exposed to creosote for whom there were
apparently no reported incidents of cancer,’’ and that the ATSDR brochure
does not establish that limited creosote exposure poses a significant risk
of cancer. We deem it unnecessary to rule on this dispute because, even if
it were properly before this court, these studies do not bear on the issue
before us, as they do not address whether the reuse of creosote-treated
wood violates federal or state law. Although the sources for materials like
an agency brochure and academic study might be influential to a legislative
determination of public policy, these materials standing alone do not estab-
lish a violation of a statutorily based public policy.
8
General Statutes § 17a-101 (a) provides: ‘‘The public policy of this state
is: To protect children whose health and welfare may be adversely affected
through injury and neglect; to strengthen the family and to make the home
safe for children by enhancing the parental capacity for good child care; to
provide a temporary or permanent nurturing and safe environment for chil-
dren when necessary; and for these purposes to require the reporting of
suspected child abuse or neglect, investigation of such reports by a social
agency, and provision of services, where needed, to such child and family.’’
9
See, e.g., Ward v. Greene, 267 Conn. 539, 558, 839 A.2d 1259 (2004)
(‘‘[t]he public policy concerns inherent in the present case are of profound
importance, namely, the protection of children’s health and welfare, which
may be affected adversely through injury and neglect’’); State v. AFSCME,
Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793, 795, 798–99, 758 A.2d
387 (arbitration award reinstating Department of Children and Families bus
driver convicted of drug offenses violated public policy to protect children
in state custody), cert. denied, 255 Conn. 905, 762 A.2d 910 (2000); Bridgeport
v. National Assn. of Government Employees, Local R1-200, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX (August 2, 1994) (12
Conn. L. Rptr. 271) (rejecting claim that arbitration award reinstating school
custodian violates public policy expressed in § 17a-101).
10
The plaintiff’s assertion that Magnan v. Anaconda Industries, Inc., 193
Conn. 558, 479 A.2d 781 (1984),’’is the only decision of the Connecticut
Supreme Court to find wrongful termination based upon ‘judicially conceived
notions of public policy’ in the absence of a specific statute’’ mischaracterizes
the court’s analysis and holding. In Magnan, the plaintiff was terminated
for refusing to sign a statement that he claimed was an inaccurate account
of his complicity in another employee’s theft of company property. Id.,
560–61. As an at-will employee, the plaintiff brought an action in two counts:
(1) breach of the implied covenant of good faith and fair dealing and (2)
wrongful discharge based on retaliation for his refusal to sign an untrue
statement. Id., 573. With respect to the first count, which the jury found for
the plaintiff, the court rejected the proposition that the requirement of good
faith and fair dealing be transformed into ‘‘an implied condition that an
employee may be dismissed only for good cause’’ in an at-will employment
relationship. Id., 559, 571. In so doing, it observed that ‘‘[t]o hold otherwise
would render the court a bargaining agent for every employee not protected
by statute or collective bargaining agreement . . . .’’ Id., 571. Notably, it
deferred to our legislature to determine what categories of employment
should be given protection and what criteria should determine whether
good cause exists for discharge, observing that ‘‘the General Assembly may
deal . . . more comprehensively [with such questions] than the courts.’’
Id., 572. In citing Sheets, it specifically declined ‘‘to enlarge the circumstances
under which an at-will employee may successfully challenge his dismissal’’
beyond the violation of an important public policy. Id. Having set aside the
verdict on the first count, the court addressed the second count, for which
the jury returned a verdict for the defendant. Id., 573. In reviewing the jury
instructions as to that count, the court observed that the underlying factual
underpinnings for the first and second counts were essentially the same
and remanded the case for a new trial on the second count on the basis of
its conclusion that the jury verdicts were inconsistent. Id., 576–78. Although
the second count was premised on the question of whether the defendant’s
conduct violated some important public policy, specifically whether the
defendant terminated the plaintiff for his refusal to sign a statement that
the defendant knew not to be true, the court did not specifically characterize
this discharge as constituting a violation of a ‘‘judicially conceived notion
of public policy.’’ In fact, that language emerged for the first time two years
later as dicta with no analysis or discussion in Morris v. Hartford Courant
Co., supra, 200 Conn. 680. Although our Supreme Court has recited the
‘‘judicially conceived notion of public policy’’ exception to the at-will employ-
ment doctrine in subsequent decisions; see Geysen v. Securitas Security
Services USA, Inc., supra, 322 Conn. 408; Thibodeau v. Design Group One
Architects, LLC, supra, 260 Conn. 699; Faulkner v. United Technologies
Corp., supra, 240 Conn. 581; it has not had occasion to be interpreted or
applied by our appellate courts in the context of at-will employment wrongful
discharge cases.
11
See 2B N. Singer & J. Singer, Statutes and Statutory Construction (7th
Ed. 2020) § 56:1 (‘‘‘Public policy’ is a vague and indefinite concept not
susceptible of application as a precise rule of decision, yet often serves as
a shorthand reference for a wide variety of factors which may influence
and condition the formation, validation, interpretation, and application of
legislation. Precise identification, particularization, and definition of relevant
policy considerations is helpful to clarify issues in particular cases. Courts
locate public policy considerations by examining a statute’s history, purpose,
language and effect.’’ (Footnotes omitted.)).
12
The infantile paralysis was caused by polio. See 30 S. Williston, Contracts
(4th Ed. 2004) § 77:72, p. 496.
13
For example, the defendant contends that not only does the opinion of
the plaintiff’s expert, Jeffrey Cordulack, fail to establish that creosote use
in garden beds is proscribed under state or federal law, but also that Cordu-
lack’s report should not be considered because ‘‘[Cordulack] has not been
qualified as an expert. His undergraduate degree is in forestry, not a relevant
field, and he has no advanced degrees.’’ Moreover, in rendering his opinion
that the use of creosote-treated telephone poles in organic gardens ‘‘is
an unwise and unsafe decision,’’ Cordulack relies on the United States
Environmental Protection Agency statement that ‘‘[c]reosote is not approved
to treat wood for residential use, including landscaping timbers or garden
borders.’’ United States Environmental Protection Agency, ‘‘Ingredients
Used in Pesticide Products: Creosote,’’ (last modified December 15, 2016),
available at https://19january2017snapshot.epa.gov/ingredients-used-pesti-
cide-products/creosote .html (last visited April 7, 2021). In response, the
defendant claims that ‘‘the reuse of creosote-treated wood is not subject to
federal regulation under pesticide laws.’’ In its decision, the trial court noted
that, under Connecticut law, discarded creosote-treated wood is specifically
exempted from the definition of hazardous waste under the Resource Con-
servation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (2018), ‘‘because
of an existing exemption [codified] at 40 [C.F.R.] § 261.4 (b) (9) . . . .’’
(Internal quotation marks omitted.) See also General Statutes § 22a-115 (1)
(A). These competing contentions illustrate not only that the use of creosote
in garden beds is subject to dispute, but also that the very nature of the
dispute is one that is quintessentially a matter to be resolved by the legislature
and the executive branch.
14
The defendant properly preserved that alternative ground in its motion
for summary judgment before the trial court.
15
On June 15, 2015, Goodearl e-mailed the plaintiff about the fact that he
had not signed the February, 2015 contract, indicating that he would be
away from June 23, 2015, through the next weekend and that they should
set a time to discuss the matter. On June 22, 2015, Goodearl contacted the
plaintiff stating that the contract offer was ‘‘so far beyond the due date’’
that it was no longer valid. On June 25, 2015, the plaintiff replied by e-mail,
‘‘I am aware that I did not sign my contract, and have been discussing with
Sunny what will be best for myself and my family. I was of the mind to
resign from my position at Marvelwood, as I did not have an enjoyable year
and thought it would be best. However, Bing and Sunny would both like
me to stay, and suggested that perhaps a part-time contract might be more
conducive to my situation. If you are interested in discussing a part-time
position, I would be willing to meet either Monday or Tuesday of next week.
Let me know what time works well, or if offering a revised contract is
something that is not possible.’’
16
As discussed in footnote 3 of this opinion, all of the plaintiff’s prior
annual employment contracts with the defendant were at will, each with a
term beginning on July 1 and concluding on June 30 of the given con-
tract year.
17
We also note that the May, 2015 dispute between the parties occurred
nearly sixteen months before his termination. As the United States Court
of Appeals for the Second Circuit has explained, ‘‘[t]he causal connection
needed for proof of a retaliation claim can be established indirectly by
showing that the protected activity was closely followed in time by the
adverse action.’’ (Internal quotation marks omitted.) Lovejoy-Wilson v.
NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001). Although the
Second Circuit ‘‘has not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relation-
ship between the exercise of a federal constitutional right and an allegedly
retaliatory action’’; Gorman-Bakos v. Cornell Cooperative Extension of
Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001); ‘‘[i]n the Second
Circuit and district courts within the Second Circuit, time periods greater
than one year have been found, in general, to be insufficient to establish
this temporal relationship.’’ (Emphasis added.) Wilks v. Elizabeth Arden,
Inc., 507 F. Supp. 2d 179, 196 (D. Conn. 2007). The uncontroverted fact that
the dispute between the parties regarding creosote occurred sixteen months
prior to the defendant’s termination of the plaintiff’s employment further
undermines the plaintiff’s claim that the September 6, 2016 termination of
his employment was caused by that dispute.