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Exceptions to the broad employment-at-will doctrine are mapped case by case, when courts find a public policy reason to make such a firing illegal, such as unconstitutional racial, sex, or religious discrimination. Another exception is whistleblowers fired for alerting authorities to a public danger, as in the landmark 1980 state Supreme Court case of Sheets v. Teddy’s Frosted Foods. A new application of the Sheets doctrine occurred June 23, in a decision by Danbury Superior Court Judge Thomas L. Nadeau, invoking Connecticut’s Article first, �10, “open access to courts” clause, to protect a third party’s right to sue. It arose from the case of Gail Fortunato, who was on leave from the dental offices of Stephen M. Silston and Nicholas Cucharale in Bethel, Conn., after being diagnosed with cancer in August 2001. She alleged in a negligent misrepresentation count that Cucharale, the president of the dental practice, promised her job would be held until she returned from chemotherapy treatments. During her leave, Fortunato’s adult daughter, Michelle Dargon, received the first of a planned five tissue grafts to her gums. Dargon contends the graft failed and fell out. She and Cucharale had a falling out of their own, after a second dentist told Dargon the procedure was unnecessary. According to the complaint, Cucharale returned insurance money paid for the procedure in exchange for a release of Dargon’s malpractice claims. In February 2002, Cucharale hired his wife to fill Fortunato’s billing and bookkeeping role, and then permanently hired another employee, Jill Potter. The dentist defendants contend that Fortunato asked to be replaced. But Fortunato claims that, when she attempted to return to work, her telephone calls went unreturned. In a second count alleging interference with a business expectancy, she said she had two job interviews that went well, but ended unsuccessfully. Suspecting a bad reference from the dentists, Fortunato had her son-in-law call her former employer on her behalf. He claims Potter told him that Fortunato left because she had cancer, and that she was a poor performer. The third count of wrongful discharge contended Fortunato’s discharge violated public policy as an unfair trade practice, the state constitution’s freedom of association guarantees, and its open access to courts clause. Nadeau rejected the unfair trade and association arguments, but found a public policy rationale for allowing the wrongful discharge case to go forward, based on interference of a third party’s right to sue. “The situation at bar portrays at least two wrongs — one directly relevant, one indirectly so,” the judge wrote. The direct one is the purportedly Sheets-violative retaliation against the mother; the indirect one is the impact on the daughter’s constitutional right to sue. The judge recast the Sheets scenario as a retaliation-by-proxy: “[W]ould a termination of a quiet, faithful brother be countenanced if the employer’s motivation were that a whistle-blowing brother might thus be cowed into silence?” He concluded that by retaliating against a third party, an employer creates an arguably more egregious offense against public policy than direct retaliation, where only one person is harmed. In this case, the malignant conduct is “focused upon, and motivated by, the exercise of an important right and that is what the Sheets exception seems not to tolerate.” Jeffrey S. Bagnell, of Darien’s newly-formed employment firm Horner & Bagnell, represents Fortunato. Bagnell said Nadeau allowed nearly two hours of oral argument on this new issue. Had the defense won its motion to strike the Sheets claim, future litigants would be afraid to go to court if an employer could retaliate by firing a close relative, he warned. “It does represent a development in the area of wrongful discharge in violation of public policy,” Bagnell said, adding, “No decision has really held this before.” The defendants’ lawyer, Kevin S. Coyne of Stratford’s Coyne, von Kuhn, Brady & Fries, declined to comment on the case.

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