Conn. SC reverses $10M award in suit over wrongful termination

Jessica M. Karmasek Apr. 27, 2012, 7:30am


HARTFORD, Conn. (Legal Newsline) - The Connecticut Supreme Court has reversed a trial court's award of more than $10 million to an employee who alleged he was wrongfully terminated.

Plaintiff G. Berry Schumann, a senior pathologist at defendant Dianon Systems Inc., brought a two-count complaint against his former employer, including a common law wrongful termination of employment.

Schumann, who was a 12-year employee of Dianon, had expressed his disapproval of MicrocytePlus, a new urine testing service being used at the Stratford-based medical testing laboratory.

Specifically, he told James Amberson, the then-vice president of pathology services and laboratory director, that he took issue with the lack of clinical research supporting the reasoning and methodology behind the integrated test, and the lack of any validation studies showing that the laboratory could accurately perform and replicate the test inside its own facilities.

Schumann also told Amberson that the proposed diagnostic language was inappropriate for urine cytology results, could confuse the requesting physicians and, ultimately, harm patients.

He explained that these changes posed a safety issue and that it was Amberson's responsibility to ensure that patient safety was being maintained.

Schumann voiced his concerns to others and, eventually, he was removed from urine services.

A couple of months after launching the new test, Schumann's employment was terminated. The company cited an unexcused absence and his refusal to use the new test.

After not being able to find another full-time job, Schumann sued Dianon.

A trial court entered judgment -- rendered after a jury trial -- in Schumann's favor for $10,136,015.

On appeal, Dianon claims that the court improperly disregarded controlling principles under the First Amendment by declining to apply the rule in Garcetti v. Ceballos in instructing the jury and in denying its post-trial motions for a new trial.

In Garcetti, the U.S. Supreme Court concluded "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Connecticut's high court, in this case, was asked to determine whether the rule in Garcetti is applicable in an action brought against a private employer.

Justice Flemming L. Norcott Jr. wrote for the Court that the trial court "improperly failed" to grant judgment in Dianon's favor because Schumann's speech was in the course of his employment duties for the defendant.

Therefore, it is not entitled to First Amendment protection under Garcetti, the Court said.

"We further decline to reach the plaintiff's proffered alternative ground for affirmance, namely, that Garcetti is not applicable under article first, § 4, of the constitution of Connecticut, because even if it is properly before us, the plaintiff's speech would not have been protected under the pre-Garcetti standards that he would have us apply," Norcott wrote in the ruling, which won't be officially released until Tuesday.

From Legal Newsline: Reach Jessica Karmasek by email at

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