Opinion
CV136039686S
06-29-2016
Dwight Daley v. J.B. Hunt Transport, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION--DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, #135
William Wenzel, J.
I
BACKGROUND
The plaintiff, Dwight Daley, commenced this action on November 13, 2013, by service of process on the defendants, J.B. Hunt Transport, Inc. (Hunt) and David Bryant. In the eight-count amended complaint dated July 10, 2015, the plaintiff alleges the following facts. The plaintiff is a black, African-American male who was employed by Hunt as a driver at Bushwick Steel (Bushwick), located in Bridgeport, from March 28, 2011, to approximately August 8, 2011. At all relevant times, Bryant, a white, Caucasian male, was employed as the account manager for Hunt at the Bushwick location and was the plaintiff's direct supervisor.
On Sunday, June 19, 2011, the plaintiff, who had last reported to work that previous Friday, was riding his motorcycle when he was struck by an automobile and taken by ambulance to the hospital. As a result of the collision, which police later determined was the fault of the other driver, the plaintiff suffered " severe disabling injuries" and was unable to return to work for a period of time. Accordingly, the plaintiff's cousin went to Hunt to explain what had happened and to provide the company with copies of the police report as well as notes from the plaintiff's doctors.
On July 18, 2011, the plaintiff was given a note by his doctor, Jonathan P. Konecny, authorizing the plaintiff to return to work on July 20, 2011. Thereafter, the plaintiff went to Bushwick to give Hunt the authorization form and to arrange his return to work. While there, the plaintiff spoke with Bryant, Neil Castillo, and another company representative. The plaintiff was then told that he needed to sign some paperwork, which he did, and that his authorization from Konecny was " no good, " at which point he was given forms that he was told to have filled out and signed " by every doctor who treated him while he was out." Subsequently, when the plaintiff contacted the office of one of his treating physicians, " Dr. Katz, " he was told that the doctor could not fill out the form until the plaintiff came in for an office visit and that the first available appointment was August 8, 2011. The plaintiff then called Bryant to tell him he could not get a note from Katz until August 8, 2011, and Bryant replied, " No problem, just bring it in then."
When the plaintiff brought in Katz's note dated August 9, 2011, however, Bryant told him he was fired. The plaintiff questioned how that could be when Bryant had told him previously that it was " no problem, " and Bryant said that he would have to talk with corporate. Upon calling Hunt's corporate representatives, however, the plaintiff was told that he would need to speak to his supervisor. The plaintiff retained legal counsel, who contacted Hunt on his behalf, but Hunt refused to reconsider its position and refused to reinstate or consider reinstating the plaintiff. Hunt also provided the plaintiff's counsel with a number of letters purportedly sent to the plaintiff, the contents of which were " vague, inconsistent, conflicting, and contradictory."
After his termination, the plaintiff saw several advertisements for his old position with Hunt at Bushwick, but when the plaintiff called to inquire, the recruiters, who had initially indicated they could put him to work right away, informed him that Hunt's records indicated he had called out sick too much and walked off the job. On October 25, 2011, when the plaintiff noticed that the position was still being advertised, he called again and was told that Hunt's records indicated he had been terminated due to " failure to return to work." The plaintiff explained what had actually occurred, and the person set up a job interview for the plaintiff with Bryant. Accordingly, on October 26, 2011, the plaintiff went to the job interview and, after waiting for a long time, was interviewed by Bryant and another individual who was also a white, Caucasian male. They were both " laughing and smirking and seemed to treat the whole thing as a joke." At the end of the interview, they told the plaintiff that they could not use him.
The plaintiff ultimately alleges that the defendants' statements were false and pretextual because they had a continuous need for drivers throughout the relevant time period, and because the plaintiff was a good driver who was in good employment standing until he was involved in the June 2011 collision. The plaintiff then alleges that the defendants' decisions to terminate the plaintiff's employment, cancel his benefits, and refuse to reinstate or rehire him were all motivated, at least in part, by unlawful discriminatory animus based on the plaintiff's color, race, and/or disability status. Moreover, the plaintiff alleges he was discriminated against, harassed, retaliated against, forced to work in a hostile environment, and terminated without being rehired because of these same factors.
Count one alleges violations of subsections (1), (4), and (5) of General Statutes § 46a-60(a); count two alleges promissory estoppel; count three alleges negligent misrepresentation; count four alleges fraudulent misrepresentation; count five alleges breach of contract as to Hunt only; count six alleges breach of the implied covenant of good faith and fair dealing as to Hunt only; count seven alleges violations of General Statutes § § 38a-537 and 38a-538; and count eight alleges violations of the Employee Retirement and Income Security Act (ERISA) and the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq. In his prayer for relief, the plaintiff seeks lost wages; reimbursement for out-of-pocket medical and related expenses; compensatory damages including emotional distress, mental anguish, injury to reputation and loss of enjoyment of life's activities; statutory fines and penalties; exemplary and punitive damages; attorneys fees; pre-judgment and post-judgment interest; and reinstatement with restitution of rank and seniority.
General Statutes § 46a-60 provides, in relevant part: " (a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . . (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83, or 46a-84; (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so . . ."
General Statutes § 38a-537 provides, in relevant part: " (a) Any individual, partnership, corporation, or unincorporated association providing group health insurance coverage for its employees shall furnish each insured employee, upon cancellation or discontinuation of such health insurance, notice of the cancellation or discontinuation of such insurance. The notice shall be mailed or delivered to the insured employee not less than fifteen days next preceding the effect date of cancellation or discontinuation. Any individual or any such entity that fails to provide timely notice shall be fined not more than two thousand dollars for each violation . . ."
General Statutes § 38a-538, which was repealed effective July 10, 2015, provides: " Each employer shall allow individuals to elect to continue coverage under a group plan pursuant to section 38a-512a."
On January 11, 2016, the defendants filed a motion for summary judgment as to all eight counts of the complaint, citing various grounds for each count. The motion was accompanied by a memorandum of law in support as well as several exhibits. On February 15, 2016, and February 29, 2016, the plaintiff filed a memorandum of law in opposition to the motion and a supplemental memorandum of law in opposition, respectively, along with multiple exhibits of his own. The defendants filed a reply memorandum on March 3, 2016. Oral argument was heard on March 7, 2016. The court notes that the plaintiff filed a Surreply Memorandum of Law on March 7, 2016, the day of oral argument. During oral argument on the motion, however, the plaintiff sought and the court permitted him to file supplemental affidavits in opposition to the defendants' motion for summary judgment, which the plaintiff did on March 11, 2016. On April 13, 2016, the defendants filed a Reply and Objection (#154) with regard to the Motion for Summary Judgment arguing plaintiff's submissions were out of time, but also arguing why such did not avoid the pending motion, if they were to be considered. Given that the court allowed the belated affidavits, it will consider all such materials in ruling on this motion.
II
DISCUSSION
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such 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 under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
A
Count One
The defendants first argue that they are entitled to judgment on count one, which alleges violations of § § 46a-60(a)(1), 46a-60(a)(4), and 46a-60(a)(5), because there are no genuine issues that: the plaintiff's race or color was not a motivating factor in the defendants' decisions; the plaintiff was not disabled or regarded by the defendants as disabled; the plaintiff's alleged disability was not a motivating factor in the defendants' decisions; the plaintiff was not harassed on account of his race, color, or disability; the plaintiff was not treated differently from any other non-black or non-disabled employee who was similarly situated to the plaintiff; the plaintiff never reported discrimination internally and was offered an assignment after he filed an external complaint of discrimination; Hunt maintained a non-discrimination policy with reporting procedures that the plaintiff failed to utilize; and Bryant himself is not alleged to have perpetrated the discriminatory acts. Count One contains both disparate treatment claims and a retaliation claim which proceed along different legal theories.
The Disparate Treatment Claims
" The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny . . . We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both [the federal and the state frameworks] . . . In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question . . . This burden is one of production, not persuasion; it can involve no credibility assessment [by the court] . . . The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, 316 Conn. 65, 73-74, 111 A.3d 453 (2015).
" Unlike other areas of the law, [when] a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has an initial burden of persuasion, albeit an attenuated one." Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365472, (May 22, 1998, Levin, J.). " The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis . . . A trial court must be cautious about granting summary judgment to an employer when . . . its intent is at issue . . . [W]ritings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, [and for that reason] affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination . . . It is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to . . . the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge." (Citations omitted; internal quotation marks omitted.) Reddick v. Southern Connecticut State University, supra, Superior Court, Docket No. CV-11-6021301-S, .
In the present case, the plaintiff has put forth sufficient evidence to meet the minimally required showing at the prima facie stage. He is a member of a protected class in that he is black and African-American. Moreover, a review of the record, particularly the plaintiff's medical records from his time spent in the hospital after the June 19, 2011 collision, indicate that the defendants were aware of the plaintiff's disability/perceived disability prior to his termination. The plaintiff has also offered multiple instances of how black drivers were treated differently than non-black drivers at Hunt. For instance, the plaintiff testified that the trucks driven by white drivers were loaded first in the morning, and that only he and another black driver were ordered by Bryant to take out trucks with " homemade cardboard license plates, " resulting in the plaintiff getting a traffic ticket and a write-up in his employee file. In addition, another employee returning from a leave of absence who was not black or African-American was not required to obtain authorizations from each and every treating medical provider in order to return to work, which was the requirement allegedly given to the plaintiff.
Once the plaintiff has met his burden of establishing a prima facie case under the McDonnell Douglas analysis, the next inquiry is whether the defendant has proffered a legitimate, nondiscriminatory reason for firing the plaintiff, and whether the plaintiff has presented any evidence that the defendant's reason was a pretext. " To dispel the inference of discrimination arising from the establishment of a prima facie case, [the defendant] is required to articulate--but not prove--a legitimate, nondiscriminatory reason for the discharge . . . The [defendant's] explanation must be clear and specific." (Citations omitted; internal quotation marks omitted.) Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988). Once the defendant has done this, the plaintiff's burden is to present " evidence [that] must--at a minimum--create a genuine issue of fact as to [the defendant's] offered reasons or as to a discriminatory motive." Id. " [A] jury issue on the question of pretext may be created when an employer offers inconsistent and varying explanations for its decision to terminate the plaintiff." (Internal quotation marks omitted.) Colby v. Pye & Hogan LLC, 602 F.Supp.2d 365, 372 (D.Conn. 2009).
Here, the defendants proffered a legitimate, nondiscriminatory reason for firing the plaintiff: failure to return to work. Accordingly, the inquiry becomes whether the plaintiff has presented any evidence that the defendants' reason was a pretext.
Based on the evidence submitted, there is a question of fact as to whether the defendants offered varying explanations for their decision to terminate and not rehire the plaintiff. Although the reason the defendants gave for the plaintiff's termination was his failure to return to work, Bryant indicated in his deposition testimony that he would not have accepted the plaintiff back to work from his leave of absence based on his poor communication skills as well as his " previous safety events and write-ups." Moreover, Toyed acknowledged during her deposition testimony that on one of the company documents, the word " quit" was given as the reason the plaintiff no longer worked at Hunt, testifying that the word meant " failure to return from leave" in that context. Given these varying explanations for the defendants' decision to terminate the plaintiff, an issue of material fact exists on the question of pretext in this case. Accordingly, summary judgment must be denied, at least in part on count one, with regard to the plaintiff's disparate treatment claims.
The Retaliation Claim
" A retaliation claim under § 46a-60(a)(4) is separate from a disparate treatment claim under § 46a-60(a)(1), although, as with disparate treatment claims, [t]he McDonnell Douglas burden shifting analysis [also] applies to claims of retaliation under . . . the CFEPA." (Internal quotation marks omitted.) Reddick v. Southern Connecticut State University, supra, Superior Court, Docket No. CV-11-6021301-S, . " To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) [that the defendant took] adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
Given that count one alleges both claims of disparate treatment and retaliation under § 46a-60(a), before the court addresses whether or not the plaintiff has established a prima facie case, the court should first consider whether it would be appropriate to sever the multiple claims in the single count, considering summary judgment on some but not all the claims. " In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment . . . Despite the majority view on the issue, . . . some courts have found that the language of Practice Book § 17-51 authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." Reddick, supra.
Notwithstanding that Reddick proceeded to adopt the minority view and enter summary judgment on only some of the claims within a single count, the court here has sufficient concerns over the factual overlap which may exist between the basis for the disparate treatment claims and the retaliation claim that it cannot say no material issue exists as to the retaliation claim as well. Given these concerns, the court believes it would be more appropriate at this point to follow the majority rule and not consider summary judgment as to only part of this count. Accordingly, the motion is denied as to Count One.
B
Count Two
The defendants next argue that judgment should be granted in their favor on count two, which sounds in promissory estoppel, because there is no genuine issue that the defendants did not make a clear and definite promise to the plaintiff, nor that the plaintiff justifiably relied on the alleged promise. Under the doctrine of promissory estoppel, " [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). A fundamental element of the doctrine of promissory estoppel is the existence of a " clear and definite" promise which a promisor reasonably could have expected to induce reliance. Id. " Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer . . . Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire, or opinion which shows no real commitment, cannot be expected to induce reliance . . . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion . . . [T]he question of whether statements are promissory should be considered as a question of fact . . ." (Citation omitted; internal quotation marks omitted.) Saye v. Howe, 92 Conn.App. 638, 648, 886 A.2d 1239 (2005).
In support of their contention that Bryant's statement of " no problem" in response to the issue of plaintiff bringing in Dr. Katz's note late was not a " clear and definite" promise to the plaintiff, the defendants cite to the federal case Santiago v. Owens-Illinois, Inc., 477 F.Supp.2d 493, 502 (D.Conn. 2007). In Santiago, a supervisor made a statement to an employee during a company restructuring that " his employment was going to be retained"; the court, in dicta, discussed how the plaintiff cannot establish " a clear and unambiguous promise, inasmuch as such a promise must be sufficiently promissory [and] sufficiently definite to support contractual liability . . ." (Internal quotation marks omitted.) Id., n.9. In the present case, however, given the specific context in which Bryant's statement was made--that the alleged speaker was his direct supervisor who testified he had the authority to extend the plaintiff's leave of absence beyond the six-week maximum, that the alleged statement was not expressly qualified as an opinion, that the alleged statement was in direct response to the plaintiff asking if it would be okay if he brought in Katz's signed release after the August 8 examination--a trier of fact could find that it was sufficiently clear and definite.
Moreover, because the question of clarity and definitiveness goes to whether the statement is promissory in nature, and the question of whether statements are promissory should be considered as a question of fact; see Saye v. Howe, supra, 92 Conn.App. at 648; the defendants have not made a showing " that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 184, 579 A.2d 578 (1990) .
When documents submitted in support of a motion for summary judgment fail to establish that there are no genuine issues of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. Here, a genuine issue of material fact exists as to the plaintiff's claim for promissory estoppel. Accordingly, summary judgment on count two must be denied.
C
Counts Three and Four
The defendants additionally argue that judgment should be granted in their favor on counts three and four, which sound, respectively, in negligent misrepresentation and fraudulent misrepresentation, because there is no genuine issue that Bryant's alleged statement was an opinion and not a fact, that Bryant did not know nor should have known that it was false, and that the plaintiff did not reasonably rely on it.
" The essential elements of an action in common law fraud . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010). Similarly, the elements of a cause of action sounding in negligent misrepresentation are " (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). " In contrast to a negligent representation, [a] fraudulent representation . . . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it . . . This is so because fraudulent misrepresentation is an intentional tort." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, supra, 142.
Counts three and four allege that the defendants negligently and/or fraudulently represented to the plaintiff that he would be allowed to return to work following his accident and that his benefits would remain intact; moreover, they allege that the defendants " specifically assured the plaintiff that it was 'no problem' if he was unable to obtain a doctor's note from Dr. Katz until after actually seeing him on August 8, 2011, when the defendants knew that this statement was untrue and that the plaintiff would be terminated in advance of that date."
The court first addresses the defendants' argument that there is no genuine issue that Bryant's statement was not known to be false nor should have been known to be false when made. In support of this argument, the defendants cite to specific deposition testimony of Bryant and Xai Xiong X Toyed, a leave administrator for Hunt. In these transcript pages, Bryant testifies that he believed he had the authority to extend the plaintiff's leave of absence beyond six weeks if he were to run it by his boss, and Toyed attests that she could have extended the plaintiff's leave beyond August 2, 2011, if that was necessary for him to gather the appropriate paperwork. Because this testimony indicates Bryant believed he could make an exception to the six-week leave rule contained in the employee policy handbook, the defendants have met their burden of showing there is no genuine issue of material fact that Bryant did not know nor should have known his alleged statement to be false, that is, that it would be a problem for the plaintiff if he were to wait until after August 8 to bring in Katz's signed release.
The burden then shifts to the plaintiff to show evidence that there is a disputed factual issue as to whether Bryant knew or should have known his alleged statement to be false. The plaintiff first points out that Bryant denied in his deposition testimony that he ever had a conversation with the plaintiff in which he made the " no problem" representation at issue here, a denial that supports that Bryant " was aware of what he was doing, intentionally and fraudulently misleading [the] plaintiff." The plaintiff also cites to Toyed's deposition testimony in which she testified that she was not made aware of the July 19 meeting between Bryant and the plaintiff, nor about the alleged conversation in which Bryant told the plaintiff it was " no problem" to bring in the signed medical release after August 8; accordingly, she, as the leave administrator, would not have been made aware to extend the plaintiff's leave of absence. If Bryant truly believed he had the ability to extend the plaintiff's leave of absence and intended to extend the plaintiff's leave of absence beyond the six weeks when he made the alleged representation, he presumably would have had to contact Toyed, the leave administrator, to make that happen. Because Toyed attests this communication never took place, the plaintiff has shown there is a genuine issue of material fact as to whether Bryant knew, or should have known, that the alleged representation made to the plaintiff was false. Accordingly, the motion for summary judgment is denied as to counts three and four.
D
Count Five
The defendants next argue that judgment should be granted in their favor on count five, which sounds in breach of contract, because there is no genuine issue that the plaintiff and Hunt did not have a contract. " [A]ll employer-employee relationships not governed by express contracts involve some type of implied 'contract' of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working . . . It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." (Citations omitted; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999).
" [I]n order to find that an implied contract of employment incorporates specific representations orally made by an employer or contained in provisions of the employee manual, the trier of fact is required to find the following subordinate facts[:] . . . [t]hat the employer's oral representations or issuance of handbook to the employee was an 'offer'--i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those oral or written statements, or both. If [they] constitute an 'offer, ' the trier of fact then is required to find that the employee accepted that offer. Subsequent oral representations . . . must be evaluated by the same criteria. To be incorporated into the implied contract of employment, any such representation . . . must constitute an offer to modify the preexisting terms of employment by substituting a new implied contract for the old." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13-14, 662 A.2d 89 (1995).
At the same time, however, the Supreme Court has " stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract . . ." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 535. See also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n.5, 520 A.2d 208 (1987).
Here, count five alleges that Hunt published various policies with regard to employee leaves of absence, continuation of medical coverage and other benefits for employees on a leave of absence, and return to work following a leave of absence, as well as made verbal and written representations to the plaintiff with regard to his leave of absence, continuation of his medical coverage and other benefits, and his return to work following his leave of absence. It then alleges that " the defendant's words, actions, and conduct amount to a contract with the plaintiff that his medical coverage and benefits would be maintained while he was on leave, and that any missed premiums would be collected by Hunt upon the plaintiff's return to work." The plaintiff claims that Hunt breached its contract with the plaintiff by terminating the plaintiff's group health coverage and other benefits retroactively, without proper notice, and in violation of its own policies and procedures.
The defendants argue that no contract existed between the plaintiff and Hunt, because " Connecticut courts are clear that an employee manual is not a contract with an employee where the manual contains a clear disclaimer that it does not create a contract, which is the case here, " and that no words, actions, or conduct on the part of Hunt relating to the maintenance of the plaintiff's medical coverage and other benefits while on leave support the implied contract that he alleges existed. In support of this argument, the defendants offer a copy of Hunt's driver manual, accompanied by a certificate of understanding and agreement signed by the plaintiff that certifies he received a copy of the driver manual. The driver manual clearly contains the following disclaimer: " NOTHING IN THIS MANUAL SHALL BE CONSTRUED AS A CONTRACT OF EMPLOYMENT. IT IS UNDERSTOOD THAT ANY EMPLOYMENT OFFERED IS AT WILL AND CAN BE TERMINATED BY THE EMPLOYEE OR EMPLOYER AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT CAUSE . . . No written statements in this driver manual, or oral statements, are contracts of employment, and both the employee and the company understand that employment may be terminated by either at any time, for any reason." (Emphasis added.) Furthermore, in Hunt's " preliminary leave designation packet, " there exists a disclaimer stating that " [i]t is the employee's responsibility to ensure his/her absence is protected under the Leave of Absence Policy. [Hunt] is not legally responsible for initiating the FMLA or Personal leave process and does not assume any duty to do so." The defendants also provide proof of the various letters that Toyed testified she sent to the plaintiff while he was on leave, all of which indicate that the plaintiff's benefits would be maintained while he was on leave if he continued to pay his premiums and that any missed premiums would be collected by Hunt upon the plaintiff's return to work, if he returned to work upon the expiration of his leave on July 30, 2011.
Plaintiff in response denies receiving any of the Toyed letters which contained the conditions--payment of premiums and/or return to work--upon which his health care coverage would continue during the period of his leave. In the court's view, this difference creates some factual issue as to whether defendant Hunt has established the absence of a material fact on whether these conditions applied to continuation of healthcare benefits. If such conditions did not apply, then it is not clear that plaintiff's claim rests on the terms of the employee manual so much as the claim that his employer in fact was providing such healthcare benefits as part of the " bargain of some kind" referred to in Gaudio, 249 Conn. at 532. For this reason, the court denies the motion for summary judgment as to Count Five.
E
Count Six
The defendants also argue that judgment should be granted in their favor on count six, which sounds in bad faith and breach of the implied covenant of good faith and fair dealing, because there is no genuine issue that the plaintiff and Hunt did not have a contract, nor that there is any evidence of bad faith. " [T]he implied duty of good faith and fair dealing is a covenant implied into a contract or contractual relationship." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). " Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 564. " [B]ad faith is defined as the opposite of good faith, generally implying a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . . Bad faith is not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose of moral obliquity . . ." (Emphasis added; internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987).
For the reasons discussed in the previous subsection, the court finds that Defendant Hunt has failed to establish the absence of a genuine dispute on the existence of some contractual commitment. Given this, the court declines to grant summary judgment as to Count Six as well.
F
Count Seven
The defendants next argue that judgment should be granted in their favor on count seven, which sounds in violation of § § 38a-537 and 38a-538, as the court lacks subject matter jurisdiction to hear the claims because these statutory provisions are preempted by ERISA. Alternatively, they argue that summary judgment is appropriate because there is no genuine issue that (1) prior to the plaintiff's health insurance coverage being cancelled, Hunt informed the plaintiff that his insurance would be cancelled if he did not pay the premiums and informed him of his right to elect continuation coverage, and that (2) Bryant was not the plaintiff's employer who provided group health insurance to the plaintiff.
" Before considering whether a state claim is preempted by ERISA, the court must first determine whether the employee benefit plan at issue is a plan that is regulated by ERISA . . . Where there is no 'plan' within the meaning of ERISA, there is no right of action under ERISA . . . ERISA subjects to federal regulation plans providing employees with fringe benefits. [It] is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans . . . The term 'employee benefit plan' is defined as including both pension plans and welfare plans . . . Shaw v. Delta Airplanes, Inc., 463 U.S. 85, 90-91, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983) . . ." (Citations omitted; internal quotation marks omitted.) Duncan v. Junior Achievement, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-96-0335878-S (June 26, 1997, Skolnick, J.) (19 Conn.L.Rptr. 669, 670, ).
In the present case, both parties stipulated during oral argument that the employee benefit plan at issue is a plan that is regulated by ERISA. Accordingly, the question becomes whether the plaintiff's claims are preempted by ERISA.
" The preemption provision of ERISA, 29 U.S.C. § 1144(a) (1994), preempts any state law that may now or hereafter relate to any employee benefit plan . . . Consequently, the court's resolution of the question turns on whether the plaintiff's claims 'relate to' the employee benefits plans offered by [the defendant] . . . ERISA preempts state claims that relate to the administration of employee benefit plans, that is, claims that attempt to prescribe the substantive administrative aspects of the plan, such as a determination of an employee's eligibility, the nature and amount of employee benefits, the amount of an employer's contribution to a plan, and the rules and regulations under which the plan operates." (Citations omitted; internal quotation marks omitted.) Id., 670-71, .
With regard to whether § 38a-537 is preempted by ERISA, " [t]he Department of Labor issued an opinion . . . in which it concluded that subsections (a), (b), and (c) of subsection 38a-537 are preempted by ERISA insofar as they are applied, directly or indirectly, to employee benefits plans covered by Title I of ERISA . . . [T]he Labor Department stated that [a]lthough ERISA does not specify when or how an employer must notify employees about the termination of a welfare plan, an ERISA fiduciary has a duty not to misrepresent to employees that a plan continues to exist after the plan has been terminated without notice to employees . . . Section 404(a)(1) of ERISA provides that 'a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries . . . Since . . . § 38a-537 . . . claims are based on the same duty to inform that may give rise to a violation of a fiduciary duty claim under ERISA, the . . . claims are preempted by § 404(a)(1) of ERISA." (Citations omitted; internal quotation marks omitted.) Id., 671, . Furthermore, with regard to whether § 38a-538 is preempted by ERISA, former attorney general Richard Blumenthal concluded in an opinion letter dated March 24, 1993, that because § 38a-538 is not a law regulating insurance, but, rather, the relationship between the employer and the employee, it is preempted by ERISA. Opinions, Conn. Atty. Gen. No. 93-005 (March 24, 1993).
As the allegations that the plaintiff makes against the defendants in count seven are for violations of § § 38a-537 and 38a-538, and both of these statutory provisions have previously been held to be preempted by ERISA, the court lacks subject matter jurisdiction to hear these claims. Accordingly, count seven is dismissed.
G
Count Eight
Finally, the defendants argue that judgment should be granted in their favor on count eight, which alleges that the defendants improperly cancelled the plaintiff's health insurance without adequate notice of his right to continued coverage in violation of ERISA and COBRA, because there is no genuine issue that Hunt timely sent the plaintiff the required notices under COBRA and that Bryant was not the plaintiff's employer who provided group health insurance to the plaintiff.
Section 1166 of Title 29 of the United States Code provides, in relevant part: " (a) In accordance with regulations prescribed by the Secretary . . . (2) the employer of an employee under a plan must notify the administrator of a qualifying event [which includes an employee's employment termination] . . . within 30 days . . . of the date of the qualifying event . . . [and] (4) the administrator shall notify--(A) in the case of a qualifying event [including termination of employment] . . . any qualified beneficiary with respect to such event . . . of such beneficiary's rights under this subsection . . . (c) For purposes of subsection (a)(4) of this section, any notification shall be made within 14 days . . . of the date on which the administrator is notified under paragraph (2) . . . and any such notification to an individual who is a qualified beneficiary of the spouse of the covered employee shall be treated as notification to all other qualified beneficiaries residing with such spouse at the time such notification is made."
Here, the defendants argue that they provided adequate notice to the plaintiff of his right to elect continued health benefits under COBRA via a letter dated August 10, 2011, which was within the statutory period following the qualifying event, his termination. In response, the plaintiff does not dispute that he was provided with adequate notice of his COBRA rights going forward following his termination; rather, he takes issue with the termination of his insurance for the period of June 19 to July 31, 2011, which he claims was done retroactively and without notice.
In their reply brief, the defendants contend that the health insurance carrier, CIGNA, did not in fact deny any of the plaintiff's claims due to a lapse or retroactive termination of coverage. In support of this, the defendants provide the December 8, 2015 email of Samantha Bradshaw, senior human resources specialist, stating that " Cigna confirms there were no claims denied based on lapse of coverage or retroactive termination. All claims denied payment by insurance were denied for improper submission by the provider billing office (meaning claims ineligible for coverage not related to termination date). Explanation of benefit statements were mailed to the billing provider, as well as to the patient for response . . . No response received." Moreover, various medical bills for the plaintiff show that the insurance company made several adjustments and payments for charges that the plaintiff incurred during the time period the plaintiff takes issue with, June 19 to July 31, 2011.
Accordingly, the defendants have adequately shown there is no genuine issue that they complied with the statutory notice requirements of COBRA and ERISA with regard to the plaintiff's termination, and that no additional notice was required to be sent before July 31, 2011, because the insurance coverage was not, in fact, retroactively cancelled due to that qualifying event. The burden then shifts to the plaintiff to present evidence that demonstrates the existence of some disputed factual issue as to count eight. Because the plaintiff does not provide any evidence to support his claim that his insurance coverage was retroactively cancelled due to his termination and that, therefore, the defendant was required to give him notice of his ERISA and COBRA election rights earlier than they did, the plaintiff fails to meet this burden. Accordingly, the court grants the defendants' motion for summary judgment as to count eight.
III
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted as to count eight. The motion is denied as to count one, count two, count three, count four, count five and count six. In addition, count seven is dismissed for lack of subject matter jurisdiction.