Opinion
CV6051926S
01-04-2017
Augusto G. DePina v. Alloy Engineering Company, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
Defendant Alloy Engineering Company, Inc. (" Employer") has moved for summary judgment against plaintiff Augusto G. DePina to dismiss all the claims in his revised complaint. For the reasons stated below, the motion is granted.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of 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 to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting HO.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
The Breach of Express and Implied Contract Claims in the First and Second Counts Are Dismissed
To prevail on either the express or implied contract counts plaintiff must prove the formation of an agreement, performance by the non-breaching party, breach of a material term by the other party and damages caused by the breach. See Seligson v. Brower, 109 Conn.App. 749, 753, 952 A.2d 1274 (2008).
The First and Second Counts allege plaintiff's discharge violated an express and/or implied agreement that the progressive disciplinary policy would be followed and plaintiff would only be discharged for just cause. Plaintiff alleges that the express and/or implied contract was based on the progressive disciplinary policy stated in the Employer's employment manual and oral representations by plaintiff's supervisor " [w]hen [he] started employment" that plaintiff would not be discharged except for just cause under the Employer's progressive disciplinary policy. Plaintiff alleges that he relied on the representations made to him by his supervisor and in the employment manual by maintaining employment at the company and not seeking other employment opportunities. Plaintiff alleges that the Employer breached the agreement by discharging him after the machine he was operating became inoperable as a result of a mistake he made in the operation of the machine.
The Employer asserts that plaintiff's employment was " at will, " as acknowledged by plaintiff in writing at the time he was hired. The Employer also submitted affidavits and transcripts that indicate plaintiff was neither disciplined nor discharged, but was sent home and encouraged to take vacation while the machine he damaged was being repaired because there was no work available for him when the only machine he could operate was inoperable. The Employer issued a " pink slip" at plaintiff's own request and understood plaintiff was resigning.
Defendant submitted affidavits that showed plaintiff was only competent to operate the damaged machine, that plaintiff was sent home pending the repair, repairs were attempted for " weeks", that after it was supposedly fixed, the machine still was inoperable and was later " scrapped."
The parties dispute whether plaintiff was discharged or quit. The evidence submitted by both parties suggests that plaintiff was discharged after he was sent home and refused the Employer's suggestion he go on vacation. Plaintiff states he wanted a pink slip so he could claim unemployment benefits. The Employer acquiesced and issued the pink slip, in effect terminating plaintiff's employment.
There is at least a disputed issue of fact as whether plaintiff was discharged but it would not be a dispute about a material issue of fact because " [a] material fact is a fact that will make a difference in the result of the case . . ." and the other reasons cited herein demonstrate summary judgment is warranted even if plaintiff was discharged. Walker v. D.C.F., 146 Conn.App. 863, 870, 80 A.3d 94 (2013), quoting Macellaio v. Newington Police Dep't, 145 Conn.App. 426, 429, 75 A.3d 78 (2013).
However, it is equally clear from the undisputed evidence that plaintiff was not disciplined for his mistake in operating machine that damaged it irreparably. At the time plaintiff was sent home, the Employer assumed the machine could be repaired. Both parties understood plaintiff would remain employed but on vacation for at least two weeks while the machine was being repaired and he would resume his work when repairs were made. Instead, plaintiff demanded the Employer immediately issue a pink slip so he could collect unemployment benefits while he was not working. There was no other work at defendant available for plaintiff, who was only proficient in operating the damaged machine. Thus, this was not a case where the progressive discipline system was applicable and the discharge could not be construed as disciplinary.
That the machine could not be repaired was not known at the time plaintiff was sent home.
Any disputed issue as to discharge would not preclude summary judgment on the contract claims because it is equally clear from the evidence plaintiff was employed " at will."
In Morrissey-Manter v. Saint Francis Hospital and Medical Center, 166 Conn.App. 510, 520-23, 142 A.3d 363 (2016), the Appellate Court denied an implied contract argument similar to that advanced by plaintiff here in the face of contract disclaimer language contained in an employee handbook because the burden is on plaintiff to show actual agreement by the employer to enter into a contract with the discharged employee; this requires proof of an intention by the employer to enter into an employment contract, particularly when needed to rebut express contract disclaimer of the sort authorized as a defense by the Supreme Court in Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999). The Morrissey-Manter Court reiterated the basic law on wrongful discharge from employment:
" '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.' . . . Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). 'In order to prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant to have an employment contract with [her]. A contract implied in fact, like an express contract, depends on actual agreement . . . Accordingly, to prevail on [her] wrongful termination claim, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause [following progressive disciplinary measures] . . . To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant had agreed to some form of contract commitment.'
'A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties . . . The mere fact that the plaintiff believed [certain actions or policies] to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract." . . . Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).'" Morrissey-Manter, 166 Conn.App. at 520-21.
Among the documents produced by defendant that disclosed defendant's intention to employ its employees " at will" was the cover letter to the February 26, 2014, version of the employment manual that declared " Alloy Engineering Company, Inc. is an 'at-will' employer, which means an employee can be dismissed by the employer for any reason without just cause and that the employee may leave his or her job without reason." There is no proof plaintiff received that letter, but there are other documents with similar disclosure of " at will" employment for which there is a record of plaintiff's receipt. Plaintiff testified he received the application when he was hired. Above his signature dated July 11, 2005, is a contract disclaimer: " I understand this application does not constitute an employment contract of any kind. Should I be employed by the Company, I may resign such employment at any time at my discretion with or without prior notice and the Company may terminate my employment at any time at their discretion, with or without cause and with or without prior notice." On July 18, 2005, the date he was employed by defendant, plaintiff received a copy of the employment manual and signed a notice which stated " I have read this notice and retained a copy to be inserted in my employee booklet of benefits, rules and regulations. I understand that signing this notice does not change my status as an employee 'at will.'" No evidence was offered to contradict the definitive contract disclaimer or to show that defendant ever changed its intention to employ plaintiff " at-will." Without evidence that the Employer ever intended to enter into a " just cause" employment contract with him, or that plaintiff could reasonably interpret or rely on oral statements about the progressive discipline process as creating a " just cause" contract in the face of clear expressions of intention by the Employer to employ him only on an " at-will" basis, there is no issue of material fact as to the existence of an express or implied employment contract. See Morrissey-Manter, 166 Conn.App. at 522. Compare, Gallo v. Eaton Corp., 122 F.Supp.2d 293, 310 (D.Conn. 2000) (Covello, J.) (no reasonable jury could find contract disclaimer did not apply to entire handbook); Parker v. Price Chopper, Inc., 2008 WL 4249796 *2 (Conn.Super. 2008) (Upson, J.) (no implied contract because of definitive contract disclaimer).
Plaintiff's unsigned and unsworn affidavit, appended as Exhibit A to his objection, is carefully worded to create an appearance of an issue of fact concerning his knowledge of the contract disclaimer in the cover letter. " The handbook did not create any contract disclaimer language. The handbook also did not contain a welcome letter with language that I was employed at will." However, whether or not plaintiff received the 2014 cover letter, it remains undisputed evidence that the Employer intended that his employment would be " at will" as of the date of his termination seven months later and together with the documents he sign in July 2005, when he was hired, constitute undisputed evidence that defendant did not intend to enter into an express or implied contract with plaintiff based on the progressive discipline provision in the handbook or any contemporaneous oral representations by the supervisor who interviewed him on hiring or thereafter.
" Furthermore, as previously quoted from the defendants' policies and employee handbook, the defendants disclaimed anything other than an at-will employment relationship with any of their employees who did not have written contracts. Our 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., 249 Conn. 523, 535, 733 A.2d 197 (1999).
Summary judgment is granted to dismiss the breach of express/implied contract claims in the First and Second Counts of the complaint.
The Negligent Misrepresentation Claim in the Third Count is Dismissed
In Stuart v. Freiberg, 316 Conn. 809, 821-22, 116 A.3d 1195 (2015), the Supreme Court reiterated the elements of a claim for negligent misrepresentation:
'To establish liability for negligent misrepresentation, a plaintiff must be able to demonstrate by a preponderance of the evidence: " (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 Mut. Ins. Co., supra, 280 Conn. [619] at 626, 910 A.2d 209 [2006].
Plaintiff alleges the Employer misrepresented that he would only be discharged for just cause in accordance with the progressive discipline system. As noted above, plaintiff's discharge was not disciplinary but was instigated by plaintiff himself to collect unemployment compensation. Assuming that the representations were made to plaintiff at the time he started working, the facts surrounding his discharge would not support a misrepresentation claim. There is no evidence that the representation was false and known by the Employer to be false when made. See Barry v. Posi-Seal Intern'l Inc., 36 Conn.App. 1, 21, 647 A.2d 1031 (1994); Presley v. Pepperidge Farm, Inc., 356 F.Supp.2d 109, 135-36 (2005). There was a disciplinary process in the employee handbook that called for progressive discipline and immediate discharge for " just cause." Nor is there any evidence of pecuniary loss caused by reliance on the representations made. Plaintiff was discharged because he requested a " pink slip" to collect unemployment. No reasonable jury could conclude that plaintiff satisfied its burden of proving negligent misrepresentation based on the undisputed evidence submitted on this motion.
The Promissory Estoppel Claim in the Fourth Count is Dismissed
The District Court in McKinstry v. Sheridan Woods Health Care Center, Inc., 994 F.Supp.2d 259, 266 (D.Conn. 2014), recited the elements of a claim of promissory estoppel:
'Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: [1] the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and [2] the other party must change its position in reliance on those facts, thereby incurring some injury.' . . .
To establish the first element, a plaintiff must allege facts to show " the existence of a clear and definite promise which a promisor could have reasonably expected to induce reliance.' . . .'Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because the prerequisite for application of the doctrine of promissory estoppel is a promise and not a bargain and not an offer' . . .
To establish the second element, [plaintiff] must allege that she changed her position in reliance on the promise of continued employment and incurred some injury as a result. " Without providing evidence of action or forbearance in reliance [on] a promise amounting to a detrimental change of position, [a plaintiff] cannot establish a prima facie promissory estoppel claim.' (Citations omitted.)
Assuming plaintiff can establish a clear and definite promise that he would not be discharged without just cause following the progressive discipline process, and assuming that reliance on such promise in the face of contemporaneous written statements his employment was " at will, " the facts shown by the evidence submitted by the parties fail to prove breach of that promise because plaintiff's discharge was not disciplinary, but in fulfillment of his own request.
Nor has plaintiff presented any evidence of reliance, such as any action or forbearance undertaken in reliance on such promise. See McKinstry, 994 F.Supp.2d at 266; Colby v. Pye & Hogan, LLC, 602 F.Supp.2d 365, 373-74 (D.Conn. 2009). In his affidavit plaintiff is vague as to when the representations were made only that they were made " [w]hen I started employment." He does not state that he relied on the representations in accepting the job; rather he states " I relied on these representations to continue my employment with the Defendant and not seek other employment opportunities." Merely continuing employment without any proof of detrimental reliance is not sufficient. See Saye v. Howe, 92 Conn.App. 638, 649, 886 A.2d 1239 (2005) (" plaintiff did not change his position or status with the corporation in reliance on any representations by [defendant]"). Defendant provided no facts concerning other employment opportunities he turned down. Compare, Colby, 602 F.Supp.2d at 373-74; McKinstry, 994 F.Supp.2d at 266.
Summary judgment is granted dismissing the promissory estoppel claim in the Fourth Count.
The Discrimination Claim in the Fifth Count is Dismissed
In Feliciano v. AutoZone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453 (2015), the Supreme Court recited the wellestablished standards for proving employment discrimination:
The legal standards governing discrimination claims involving adverse employment actions are well established. '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, 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 . . . Under this analysis, the employee must first make a prima facie case of discrimination . . . 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 . . . 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; emphasis added.)
Plaintiff alleges his discharge was discriminatory in violation of C.G.S. § 46a-60 because it was based on his race and national origin, i.e. a black man from Cape Verde. He claims he was treated differently from other similarly situated employees, who were not black or of Cape Verdean ancestry, and whose machine was damaged by operator error and they were not discharged. Plaintiff has failed to make out a prima facie case of discrimination because he has not submitted proof of an adverse job action caused by the alleged discrimination and because he has not produced sufficient evidence from which a discriminatory intent could be inferred. If he had, plaintiff has not offered evidence that the legitimate, non-discriminatory reasons for its actions proffered by the Employer were a pretext for discrimination.
The Employer submitted an affidavit that stated: " Occasionally, a machine operator makes an error that renders a machine inoperable until it can be repaired. When that happens, if there is no other work available for the employee to perform, the machine operator is sent home until the machine is repaired. Other employees beside Mr. DePina had that experience." The president of defendant testified that she sent plaintiff home to use his vacation time because his machine was inoperable and there was no other work available for him to do; he was sent home until the machine was fixed and she did not know how long it would take; plaintiff insisted on getting a " pink slip."
Discriminatory intent may be inferred from disparate treatment of similarly situated employees. See Feliciano, 111 A.3d at 460, citing Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012) (to establish that adverse employment action took place under circumstances permitting inference of discrimination, " a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was"); id. at 519, 43 A.3d 69 (to raise inference of discrimination on basis of disparate treatment, evidence must reveal " a stark pattern of discrimination").
" 'In summary, when a plaintiff attempts to establish racial discrimination through the use of circumstantial evidence, the plaintiff must first present some evidence from which an inference may be drawn that other similarly situated individuals not in the protected class were treated more favorably than the plaintiff . . . If the defendant then articulates a nondiscriminatory reason for the disparate treatment, the presumption of discrimination arising from the prima facie case 'drops from the picture.' . . . The burden will then be on the plaintiff to prove by a preponderance of the evidence that the employment action was discriminatory. Id. Finally, although the evidence that a plaintiff presented in support of her prima facie case may be sufficient to satisfy her ultimate burden of proof, that will not necessarily be the case . . . ('[t]he level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor').'" Perez-Dickson, 304 Conn. at 516-17 (citations omitted).
Here, plaintiff has not presented evidence of disparate treatment of similarly situated employees let alone a " stark pattern of discrimination." Perez-Dickson, 304 Conn. at 491. The Employer's treatment of plaintiff was consistent with its treatment of similarly situated employees who damaged machines and were not discharged, including plaintiff in 2011. Both sides agree plaintiff was sent home and told to take vacation until the machine was repaired and was not discharged until he insisted defendant issue a " pink slip." The other employees who damaged machinery were not discharged and the company president testified no other employee who had damaged machinery was discharged. There is no proof other employees had asked for a " pink slip." There was also no evidence of other work available to Plaintiff, who has not provided any evidence that he was able to operate any other equipment or that there was other available work he was able and willing to do. To the contrary, plaintiff did not object to being sent home but stated: " I only asked for a pink-slip to permit me to collect unemployment while I was out of work." Also, plaintiff's affidavit states that his real complaint is that he was not allowed to return to work after getting the pink slip and collecting unemployment. No other employee was said to be similarly situated. Compare, Walker v. DCF, 146 Conn.App. 863, 874 n.9, 875-76, 80 A.3d 94 (2013) (court may grant summary judgment when " no reasonable [fact-finder] could find the similarly situated prong met"). If plaintiff had shown a prima facie case, he could not show issuance of the " pink slip" at his request was a pretext for discrimination given the legitimate, non-discriminatory reasons for sending him home until the machine was repaired and the Employer's acquiescence in his own request for " a pink slip." Nor is there evidence of discriminatory animus. The evidence showed that the Employer employed nine black, Cape Verdean employees, out of a total workforce of thirty-eight persons employed during the relevant period. There is no evidence linking plaintiff's race and ancestry to the issuance of the " pink slip." Plaintiff's subjective belief he was a victim of discrimination does not suffice to prove discriminatory intent. See Centeno v. New York City, 2005 WL 126811 *5 (E.D.N.Y. 2005).
Summary judgment is granted dismissing the employment discrimination claim in the Fifth Count.
Conclusion
For the reasons stated above, the motion for summary judgment is granted in its entirety.
The evidence presented to the trial court by the defendants in support of their motion for summary judgment reveals the existence of such disclaimers in their policies and employee handbook, and the plaintiff presented no competent summary judgment evidence that contradicts that evidence. See Brusby v. Metro. Dist., supra, 160 Conn.App. [638] at 646, 127 A.3d 257 [(2015)]. Accordingly, the trial court properly rendered summary judgment as to this count because the plaintiff failed to present evidence that established that there was a genuine issue of material fact regarding whether an implied contractual agreement existed that would prohibit the termination of her employment except for just cause." Morrissey-Manter, 166 Conn.App. at 522.