     11-3002-cv
     McClain v. Pfizer Inc.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOHN M. WALKER, JR.,
 9                              Circuit Judge,
10                SANDRA DAY O’CONNOR,
11                              Associate Justice (retired).*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       BECKY MCCLAIN,
15                Plaintiff-Appellee,
16
17                    -v.-                                               11-3002-cv
18
19       PFIZER INC.,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                The Honorable Sandra Day O’Connor, Associate Justice
         (retired), of the United States Supreme Court, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:         WILLIAM J. ANTHONY (Tanya A. Bovée,
 2                          on the brief), Jackson Lewis LLP,
 3                          Hartford, Connecticut.
 4
 5   FOR APPELLEE:          STEPHEN J. FITZGERALD (Bruce E.
 6                          Newman, Brown Paindiris & Scott,
 7                          LLP, Bristol, Connecticut, on the
 8                          brief), Garrison, Levin-Epstein,
 9                          Chimes, Richardson & Fitzgerald,
10                          P.C., New Haven, Connecticut.
11
12        Appeal from a judgment of the United States District
13   Court for the District of Connecticut (Eginton, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the District Court be
17   AFFIRMED.
18
19        Defendant-Appellant Pfizer Inc. (“Pfizer”) appeals from
20   a judgment, entered after a jury trial, in favor of Becky
21   McClain (“McClain”), a scientist at Pfizer who sued under
22   Connecticut law for retaliation against her speech regarding
23   workplace safety. We assume the parties’ familiarity with
24   the underlying facts, the procedural history, and the issues
25   presented for review.
26
27        Pfizer argues that it is entitled to judgment as a
28   matter of law on its motion under Rule 50. We review de
29   novo, applying the same standard as the district court.
30   Millea v. Metro-N. R.R., 658 F.3d 154, 161 (2d Cir. 2011).
31
32       Judgment as a matter of law is only granted when “(1)
33       there is such a complete absence of evidence supporting
34       the verdict that the jury’s findings could only have
35       been the result of sheer surmise and conjecture, or (2)
36       there is such an overwhelming amount of evidence in
37       favor of the movant that reasonable and fair minded
38       persons could not arrive at a verdict against it.”
39
40   Id. (quoting Cruz v. Local Union No. 3 of Int’l Bhd. of
41   Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)). In
42   general, judgment as a matter of law “‘should be granted
43   cautiously and sparingly.’” Meloff v. N.Y. Life Ins. Co.,
44   240 F.3d 138, 145 (2d Cir. 2001) (quoting 9A Charles A.
45   Wright & Arthur R. Miller, Fed. Prac. & Proc. § 2524, at 252
46   (1995)). In reviewing such a motion, this Court “must give
47   deference to all credibility determinations and reasonable

                                  2
 1   inferences of the jury, and may   not weigh the credibility of
 2   witnesses or otherwise consider   the weight of the evidence.”
 3   Brady v. Wal-Mart Stores, Inc.,   531 F.3d 127, 133 (2d Cir.
 4   2008) (internal quotation marks   omitted).
 5
 6   [1] The jury reasonably concluded, based on the evidence
 7   presented at trial, that McClain had established a violation
 8   of Connecticut General Statute Section 31-51q, which
 9   provides (in relevant part):
10
11       Any employer . . . who subjects any employee to
12       discipline or discharge on account of the exercise by
13       such employee of rights guaranteed by the first
14       amendment to the United States Constitution or section
15       3, 4 or 14 of article first of the Constitution of the
16       state, provided such activity does not substantially or
17       materially interfere with the employee's bona fide job
18       performance or the working relationship between the
19       employee and the employer, shall be liable to such
20       employee for damages caused by such discipline or
21       discharge . . . .
22
23   Conn. Gen. Stat. § 31-51q. To demonstrate a violation of
24   Section 31-51q, a plaintiff must establish that:
25
26       (1) she was exercising rights protected by the [F]irst
27       [A]mendment to the United States Constitution (or an
28       equivalent provision of the Connecticut Constitution);
29       (2) she was fired [or disciplined] on account of her
30       exercise of such rights; and (3) her exercise of her
31       [free speech] rights did not substantially or
32       materially interfere with her bona fide job performance
33       or with her working relationship with her employer.
34
35   Barlow v. Connecticut, 319 F. Supp. 2d 250, 265-66 (D. Conn.
36   2004).
37
38        The Connecticut Supreme Court has explained that
39   Section 31-51q “plainly was intended to protect the [F]irst
40   [A]mendment and related state constitutional rights of
41   working men and women.” Cotto v. United Techs. Corp., 251
42   Conn. 1, 8 (1999). “As a remedial statute, [Section] 31-51q
43   deserves a generous construction that implements its purpose
44   at one of the important places, the private workplace, in
45   which those rights may be impaired.” Id. at 8-9. Indeed,
46   “the legislative history of [Section] 31-51q supports a


                                  3
 1   literal reading of the statute that implements its remedial
 2   purpose.” Id. at 9.
 3
 4        McClain presented sufficient evidence at trial on each
 5   element of Section 31-51q. Pfizer concedes in its briefing
 6   to this Court that McClain’s speech regarding workplace
 7   safety was on a matter of public concern, and it neglected
 8   to advance any argument that her speech was made within the
 9   scope of her employment. Although Pfizer suggests, by post-
10   briefing letter, that Schumann v. Dianon Systems, 304 Conn.
11   585 (2012), requires us to hold that McClain was not
12   speaking as a citizen on a matter of public concern, Pfizer
13   has waived this argument by not raising it in its briefs
14   before this Court. See LoSacco v. City of Middletown, 71
15   F.3d 88, 92 (2d Cir. 1995); see also Fed. R. App. P.
16   28(a)(9) (requiring that appellant's brief include
17   contentions and reasons). Although we have prudential
18   discretion to consider waived arguments, we decline to do so
19   here.
20
21        As to the remaining elements, a reasonable jury could
22   conclude that McClain was discharged or disciplined because
23   of her protected speech, and that her speech did not
24   substantially or materially interfere with her job
25   performance or with her working relationships at Pfizer.
26   Pfizer has not shown a “complete absence” of evidence such
27   that the jury’s verdict was the result of “sheer surmise and
28   conjecture,” nor has Pfizer shown that the evidence was so
29   overwhelmingly in its favor such that no rational person
30   could have ruled against Pfizer.
31
32   [2] Pfizer also challenges the district court’s denial of
33   judgment as a matter of law as to the award of punitive
34   damages in favor of McClain. Section 31-51q explicitly
35   authorizes punitive damages, and Connecticut courts apply
36   the common law standard of punitive damages to determine
37   when such damages are warranted. See Arnone v. Town of
38   Edenfield, 79 Conn. App. 501, 521 (2003). Punitive damages
39   are appropriate where the evidence “reveal[s] a reckless
40   indifference to the rights of others or an intentional and
41   wanton violation of those rights.” City of West Haven v.
42   Hartford Ins. Co., 221 Conn. 149, 160 (1992). Again,
43   McClain presented sufficient evidence to support the jury’s
44   finding that Pfizer acted wilfully, maliciously, or with
45   reckless indifference. Pfizer presents no compelling reason
46   why we should disturb the jury’s verdict.
47

                                  4
1        Finding no merit in Pfizer’s remaining arguments, we
2   hereby AFFIRM the judgment of the District Court.
3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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