Opinion
No. CV09-5030221 S
September 19, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(A)
The defendant has filed a motion for summary judgment as to all eight counts of the complaint. First the court will set forth the factual assertions in the complaint.
The plaintiff was hired on February 8, 2005 by the defendant as a Team Manager; her employment commenced on February 21st. She claims that from the date she began working through the date of her promotion to Director of Admissions in October 2005 she was required to perform job duties beyond the scope of her position as explained to her when she was hired and set forth in the defendant's Policy Manual thus violating the State Department of Public Health regulations. Plaintiff claims she was not compensated for this work. The first count is a claim for unpaid compensation.
In the second count the plaintiff claims that when she was hired agents of the defendant made false representations about her job duties to induce her to accept it, she accepted the job and suffered damages as a result. The claim lies in intentional misrepresentation.
The third count lies in negligent misrepresentations claiming those agents of the defendant negligently provided her with false information about the job at the time she was hired. This count lies in negligent misrepresentation as a result of which she suffered injury.
The fourth count makes another claim for unpaid compensation. After her October 5, 2005 promotion the plaintiff alleges she went to defendant's corporate headquarters and said she would be able to perform the new job only if she was not required to perform the additional duties referred to in the first count as violative of representations made when she was hired. She states she was assured this would not happen but she was required to perform these duties and was not compensated for the work after her October 5, 2005 promotion.
The fifth count lies in intentional misrepresentation claiming that at the time of her promotion false representations were made to the plaintiff about the new job position.
The sixth count lies in negligent misrepresentation based on alleged negligent representations concerning the new job position.
The seventh count is based on a claim of wrongful termination. She was fired on June 23, 2006; she alleges she was not compensated for duties connected to her job title having nothing to do with her position, she was promised bonuses but was fired a week before the end of the quarter and did not receive a bonus "when it was likely she would have done so," she was told by the defendant that if she resigned, her unemployment compensation claim would not be contested although defendant knew or should have known that such benefits are generally not available to employees who resign. All of the foregoing is the basis for her claim that she "was terminated in a wrongful manner."
In the eighth count the plaintiff repeats much of the previous allegations and claims that as a result of the defendant's actions she suffered emotional and physical injury and the defendant knew or should have known that such conduct involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm. The count lies in negligent infliction of emotional distress.
The complaint is dated June 19, 2009. The sheriff's return indicates "due and legal service" was made on the defendant on June 22, 2009. The return date for the complaint is July 7, 2009.
Before turning to the merits of the motion the court will now briefly discuss the nature of the defendant's motion for summary judgment which is directed at all counts and as to seven counts is based on a claimed violation of the statutes of limitation applicable to these counts; the wrongful termination count is claimed to be not legally viable.
(B) CT Page 20032
(1) The defendant characterizes the first and fourth count of the complaint as based on a claim for unpaid compensation. Section 52-596 sets forth the statute of limitations for such a claim.
"Section 52-596
No action for the payment of renumeration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages."
The defendant notes the plaintiff was hired February 8, 2005, she was terminated June 23, 2006. These claims are based on work she alleges to have performed during her employment. The statute, it is argued, ran at the latest on June 8, 2008. But as noted the complaint is dated June 19, 2009, the return date is July 7, 2009, the marshal made service June 22, 2009 — all these dates being clearly beyond the statutory time limit.
(2) The defendant also argues the tort claims set forth in the second, third, fifth, sixth counts lie in tort and they are similarly barred by the applicable statute of limitations.
The statutory limitation for torts is set forth in Section 52-577 of the general statutes; it says "no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
These claims are based on representations made when she was hired and at the time of her promotion. Given the dates previously referred to regarding the complaint, return date and date of service these claims are also barred.
(3) The defendant argues that the seventh count which is based on a claim of wrongful termination must also fail because (a) the plaintiff cannot identify a violation of public policy and (2) in any event the plaintiff had other statutory remedies available to her.
(C) CT Page 20033
The rules to be applied in deciding a motion for summary judgment are well-known. Where no issue of material fact is present to prevent its granting, the motion should be granted to avoid the expense and burden of litigation. But where there is a material issue of fact the motion should not be granted since a plaintiff has a constitutional right to a trial.
(D)
As noted the motion is first directed against the first and fourth count which generally make a claim for unpaid compensation.
In regards to these counts, the plaintiff claims the applicable statute of limitations should be § 52-596. It reads as follows:
"No action for the payment of renumeration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint for failure to pay wages."
The plaintiff's response is that "the statute explicitly pertains only to the `payment of renumeration for employment payable periodically.' The claim, although the last paragraph of the first does assert non payment, also asserts that plaintiff was given the duties of other jobs, including admitting nurse, registered nurse whose duties were attending to and serving patients, being on call nightly and performing marketing functions, which involved the duties of the job of Director of Admissions."
But the point, at least to the court, is that these jobs the plaintiff was required to perform, were in addition to the job of Team Manager, she was hired for by the defendant, and she seeks compensation for these jobs. How would the claimed injury she suffered be determined but by reference to the wages people doing these jobs received, admittedly beyond her job description as Team Manager. There is no claim that these extra jobs were not paid as a matter of course by the defendant according to a schedule of periodic payments. The issue is not that a claim could not be made for extra duties imposed on the plaintiff beyond the job description for which she was hired — of course she can. The issue is rather the claim even if valid was not brought within the time provided for in Section 52-596.
The real difficulty, however, lies in the appropriate application of LaRobina v. McDonald, 274 Conn. 394 (2005). What we really appear to have here is a motion to strike. Discussing LaRobina Horton and Knox in their commentary to Practice Book § 17-44 at page 875 of Volume 1 of the Connecticut Practice Series says that case holds: "that summary judgment is an appropriate means of testing the legal sufficiency of the complaint when the defendant shows that the plaintiff could not establish a cause of action by repleading." The comment goes on to say that the court said "it would not reverse a motion for summary judgment on legal grounds where it was clear that it was being used to test the legal sufficiency of the complaint and the plaintiff did not object to the use of the motion for that purpose."
The plaintiff here in objecting to the motion does not oppose it by saying the extra fill-in jobs were not otherwise subject to renumeration on a periodic basis but seems to argue it would be hard to calculate the amount owing because there were numerous different duties performed for which she was not paid. That just underlines the proof problem to be faced on the calculation of damages; it does not bring the case out of § 52-596.
The plaintiff also argues that in any event the limitations statute which applies here is really § 52-576. It states that "(a) No action for account on any simple or implied contract any contract in writing shall be brought but within six years after the right of action accrues." If § 52-576 were to apply the action was brought within the six-year period. However, the court does not believe this statute of limitations applies.
The plaintiff's argument is not persuasive. Every claim for unpaid wages arises out of some form of contractual relationship whether the contract is considered, implied, oral, express, or written. The legislature has carved out one type of contract claim — for unpaid wages — and explicitly determined such claims are governed by the limitations period in § 52-596. In fact the limitations period is specifically tied into a regulatory scheme as evidenced by the fact that the statute itself provides that the limitations period shall be tolled upon the filing of a complaint with the Labor Department for failure to pay wages.
Finally the court would observe that if a person could bring a claim for uncompensated wages under § 52-596 or § 52-576 would compromise that reasonable degree of certainty regarding the bringing of claims sought to be achieved by limitations statutes, St. Paul Travelers Companies v. Kuehl, 299 Conn. 800, 809 (2011).
The foregoing discussion also applies to the fourth count.
Due to the complexities of LaRobina as to these counts the court grants the motion but stays its ruling until October 5, 2011. The court would only reconsider its position if, on or before September 29, 2011, the plaintiff were able to submit affidavits to the effect that for all the extra positions and duties attached thereto she was asked to perform (see par. 5 of counts one and four) it was the practice of the defendant to not pay employees a periodic wage but by way of profit sharing, bonus arrangements, share of profits, etc.)
(E)
The plaintiff concedes that the second, third, fifth, sixth and eighth counts lie in tort and the limitations statutes as to torts, § 52-577, applies which sets forth a three-year statute of limitation.
The plaintiff was dismissed June 23, 2006. Service was made on the defendant on June 22, 2009. The second and third counts arise out of false representations allegedly made to her when she was hired in February 2005. The fifth and sixth counts arise out of representation made upon her promotion in October 2005. Application of the statute on its face would seem to dictate suit on counts two and three would had have to have been filed by February 2008, and as to counts five and six by October 2008.
The plaintiff's response to the motion is to argue that the statute of limitations did not begin to run until the date of her discharge — "when wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until the course of conduct is completed."
The court does not accept the plaintiff's argument and relies on the recent case of Watts v. Chittenden, 301 Conn. 575 (2011) which discusses the continuous course of conduct doctrine. The court relies heavily upon and cites with approval Judge Posner's discussion of the doctrine in Heard v. Sheahan, 253 F.3d 316 (CA 7, 2011). Our court quoted extensively from this opinion. Judge Posner noted:
"A violation is called `continuing,' signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct. The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous and continuous series of events . . . When a single event gives rise to continuing injuries . . . the plaintiff can bring a single suit based on an estimation of his total injuries, and that mode of proceeding is much to be preferred to piecemeal litigation despite the possible loss in accuracy. But in [cases in which the continuing course of conduct doctrine is applicable, each incident increases the plaintiff's injury]. Not only would it be unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue . . . to bring separate suits [during the limitations period] after each [incident giving rise to the claim]; but it would impose an unreasonable burden on the courts to entertain an indefinite number of suits and apportion damages among them.
In between the case in which a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries, as in suits for lost wages. If our plaintiff were seeking back pay for repeated acts of wage discrimination (suppose that every pay day for five years he had received $100 less than he was entitled to), he would not be permitted to reach back to the first by suing within the limitations period for the last. As emphasized in Pollis the damages from each discrete act of discrimination would be readily calculable without waiting for the entire series of acts to end. There would be no excuse for the delay. And so the violation would not be deemed `continuing.'" Id. pp. 319-20. (emphasis by this court.)
Pollis v. New School for Social Research, 132 F.3d 115 (CA2, 1997).
Our court further elaborated on its position by quoting from an earlier opinion of Judge Posner, Taylor v. Meirick, 712 F.2d 1112, 1119 (CA7, 1983), where he discussed the purposes of the doctrine, Judge Posner went on to say that "When the final act of an unlawful course of conduct occurs within the statutory period, these purposes (of the doctrine) are adequately served, in balance with the plaintiff's interest in not having to bring successive suits, by requiring the plaintiff to sue within the statutory period but letting him reach back and get damages for the entire duration of the alleged violation. Some of the evidence, at least, will be fresh. And the defendant's uncertainty as to whether he will be sued at all will be confined to the statutory period. His uncertainty about the extent of his liability may be greater, but that is often true in litigation," id. page 1119.
In other words here the basis of the claims in the tort counts rests on an allegation of misrepresentations on two separate occasions which led to injuries that can be characterized as not being compensated for work beyond her job title. The cause of action accrued when all elements of it were established "including damages however trivial," Burke v. Klevan, 130 Conn.App. 376, 381 (2011). The damages alleged here, as they accrued, are not difficult to ascertain as the defendant notes and if the plaintiff had sued within the statutory period she could have fairly presented her claim for them.
(F)
The court will now discuss the motion for summary judgment as it relates to the seventh count which lies in wrongful termination. In this count she makes several claims. First the court will try to discuss the applicable law in this area. Our state has accepted the employer's right to terminate at will. A former employee can pursue a claim for wrongful discharge if the discharge "involved `impropriety' . . . derived from some important violation of public policy," Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 475 (1980). In Morris v. Hartford Courant Co., 200 Conn. 676, 680 (1986) realized there was a certain vagueness in the concept of public policy; the court tried to explain the concept further by saying, in examining such a claimed exception to the employment at will doctrine, "we look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy," see generally Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81 (1997).
The court will apply these principles to the various arguments made by the plaintiff to advance her wrongful termination claim.
In paragraph 20 of this count the plaintiff says the company's policy manual provided for a yearly evaluation but she never received such evaluation and thus "never knew there was any perception of any problems with her performance." This allegation is difficult to understand, as a reading of the complaint indicates, she was hired as a Team Manager with employment to commence February 21, 2005. Little more than seven months later she was promoted in October 2005 to Director of Admissions. How can she complain about failure to give a yearly evaluation as to the Team Manager position when she was employed in that position for less than a year and more to the point received a promotion into a new higher position five months before the year tolled on the yearly evaluation for Team Managers.
She began her job as Director of Admissions in October 2005 but was terminated June 23, 2006. Again this is only seven months into her new position. In effect the logical result of the plaintiff's position would be that an employee fired well within the first year of work or work in a new position cannot be so fired without having been evaluated under a yearly evaluation provision. Given the foregoing discussion the court does not believe the failure to evaluate claim can be considered a violation of public policy.
In paragraph 21 there is an attempt to fashion a claim of violation of public policy by the alleged misleading of the plaintiff as to her rights under the Workers' Compensation Act, § 31-290a. It is certainly a violation of public policy for an employer to terminate or discriminate against an at-will employee for the exercise of his or her rights under the act, Chiaia v. Pepperidge Farm, 24 Conn.App. 362 (1991). Given the purposes of the act it would not stretch this reasoning if it were held that an employer's intentional misleading of any employee to take an action that would prejudice her right to apply for relief under the act would violate public policy.
But if the complaint is read along with the plaintiff's affidavit it is difficult to understand this claim. The plaintiff was in fact terminated, a fair reading is that she did not leave the employment because of a resignation. Paragraph 16 of the complaint alleges "On or about June 16, 2006, plaintiff was fired by defendant corporation through its agents, servants, or employees."
The seventh count also alleges she was promised bonuses "for achieving goals as provided by defendant corporation." It says she was not provided goals and was fired one week before the end of the month which was one week before the end of the quarter. Thus, it is alleged "she was deprived of the opportunity to achieve such bonuses when it was likely she would have done so."
This argument requires preliminary discussion as to the nature of any payment by the employer — is it not a bonus but really wages or is a bonus involved? In Cook v. Alexander Alexander, 40 Conn.Sup. 246 (1985) the court held that bonuses "based on individual bonus production" were "wages" within the broad definition of "wages" as defined in § 31-71a(3) of the general statutes. The complaint alleged the plaintiff was fired with only two months remaining on the year to avoid paying a bonus which it was alleged he earned by his work performance. Based on these factual representations the court refused to strike the first count which claimed the termination of the plaintiff was wrongful because it violated the public policy as set forth in Chapter 558 of the general statutes against the withholding of wages.
Bonuses are considered wages, however, only if they are tied to the efforts of supervisory performance of the party claiming them, Association Resources, Inc. v. Wall, 298 Conn. 145, 172-80 (2010), cf Weems v. Citigroup, Inc., 289 Conn. 769 (2008). The plaintiff's affidavit submitted in opposition to the motion for summary judgment does not specifically address this issue interestingly in the brief in opposition to the motion for summary judgment the following is said:
"Regarding the bonus, plaintiff was fired one week prior to the end of the bonus period. Although the bonuses were based not only on her performance, but also that of others on her team, more often than not plaintiff achieved the goals and received a bonus. Plaintiff had not received goal for this period."
Arguably this falls within the equation of bonuses with wages set forth in the Association Resources case. The plaintiff's affidavit does describe her duties as that of "team" manager so if bonuses are paid on the basis of her performance and that of the rest of her "team" the supervisory criteria of Association Resources can be met. Although the plaintiff's evidence is flimsy in this regard it is also true that the defendant offers no counter affidavits addressing the nature of the bonus and the terms under which it was to be received.
The problem with the plaintiff's position on the public policy argument is that if the bonus is not a wage it cannot resort to the statute on wages or a constitutional provision to claim failure to pay it constituted a violation of public policy. On the other hand if bonuses are wages then as said in Labor and Employment in Connecticut, Hirsch, 2d. ed., § 16-6(a)(1), page 16-24: "A claim of common law wrongful discharge is available to employees only if they are otherwise without a remedy. Thus, if the employee claims that the conduct of his or her employer violated a statute which itself provides for a remedy, the employee cannot forego this statutory remedy in favor of a common law claim of wrongful discharge," see Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643 (1985), Campbell v. Plymouth, 74 Conn.App. 67, 74 (2002).
Chapter 559 at § 31-72 appears to provide that remedy.
The same observation can be made regarding the incorporation of the various allegations that she was not compensated for job duties beyond the position for which she was hired or to which she was promoted.
But to descend from the ethereal to real world issues such as causation there is no allegation or inference to be drawn from the plaintiff's affidavit that the failure to pay wages or a bonus was the reason for or even a factor leading to or providing a motive for the termination. Only the failure to provide an evaluation can be indirectly tied to a reason why the termination qua termination was wrongful but for the reasons discussed the court cannot accept the reliance on the failure to evaluate argument.
At the end of her brief in opposition to the motion for summary judgment the plaintiff seems to rely on some application of the doctrine of the covenant of good faith and fair dealing for the termination count and indeed all the counts. Magnan v. Anaconda, Ind., 193 Conn. 558 (1984) is cited but there the court said at page 572.
"although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right."
As Hirsch said at page 16-25:
"The implied covenant of good faith and fair dealing, therefore, does not enlarge the circumstances under which an at-will employee may successfully challenge his or her dismissal beyond the situation where the reason for discharge involves impropriety derived from some important violation of public policy. Thus, the cause of action in contract for discharge in violation of an implied covenant of good faith and fair dealing is coterminous with and extends no further than the cause of action for wrongful discharge in tort."
For the foregoing reasons the motion for summary judgment is granted.