Opinion
No. CV 03-040 42 13 S
July 19, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION #116.00)
On July 8, 2003, the plaintiff, Jesus Ruiz, filed a four-count complaint against the defendant, Dunbar Armored, Inc. (Dunbar). This action arises out of the alleged wrongful discharge of the plaintiff by the defendant when the plaintiff did not take a required written driving test after an accident.
In count one, the plaintiff alleges a breach of an express and/or implied contract arising from the defendant's operations manual. Count two alleges a breach of the covenant of good faith and fair dealing. Count three alleges the defendant violated General Statutes § 31-290a by retaliating and discriminating against the plaintiff for exercising his rights under the Workers' Compensation Act. Count four alleges that the defendant made negligent misrepresentations concerning its employment polices and practices. On March 15, 2005, the defendant filed a motion for summary judgment and a supporting memorandum of law. On May 9, 2005, the plaintiff filed an objection to the defendant's motion for summary judgment and a memorandum of law. On May 23, 2005, the defendant filed a reply to the plaintiff's objection. In support the defendant has submitted excerpts from the Ruiz deposition and the signed affidavit of Paul E. Kielar, Dunbar's director of employee relations.
In support of its motion, the defendant has submitted an uncertified copy of Jesus Ruiz' deposition transcript, a signed copy of the driver/guard job description, a copy of employee handbook, a signed copy of disciplinary actions for safety violations, a copy of Dunbar's vehicle accident disciplinary matrix policy, a signed copy of employer's receipt for copy of handbook, a signed copy of Dunbar's general rules and regulations, a copy of documentation training, a copy of disciplinary action against the plaintiff dated April 1, 2002, a copy of acknowledgment of workers' compensation claim, a copy of doctor's release for plaintiff to return to work, a copy of a letter from doctor Staub to the plaintiff, a copy of accident cover letter and a copy of disciplinary action against the plaintiff dated November 22, 2002.
In support of his objection, the plaintiff submitted his signed and sworn affidavit, a copy of Dunbar's general rules and regulations, a copy of the notice of claim for compensation, a signed copy of disciplinary action for safety violations, a copy of Dunbar's vehicle accident disciplinary matrix policy, a copy of disciplinary action against the plaintiff dated November 20, 2002, a copy of disciplinary action against the plaintiff dated November 22, 2002 and a copy of employee handbook.
DISCUSSION I COUNT ONE: BREACH OF AN EXPRESS AND/OR IMPLIED CONTRACT
The defendant argues that it is entitled to summary judgment as to count one of the plaintiff's complaint because the plaintiff is unable to produce any evidence in support of a breach of contract claim. The defendant argues that its handbook and operations manual do not create an employment contract. The defendant maintains that there was never an existing contract because the handbook, in bold-faced language, states that employment with the defendant is at will. The defendant maintains that both the handbook and the manual are guidelines and cannot establish employment for a definite term.
The plaintiff argues that sufficient questions of material fact exist as to whether there was an express or implied contract. The plaintiff argues that the language in the defendant's operations manual can reasonably be construed as a contractual promise of employment. The plaintiff argues that the operations manual has no contract disclaimer and employees are offered an opportunity of continued employment and promotion with the defendant. The plaintiff argues that the defendant failed to follow its pre-announced remedial safety training policy. The plaintiff maintains that the defendant should not be allowed to use its discretion to determine when it should or should not follow its employment policy and procedures.
"[I]t is a general proposition that contract[s] of permanent employment, or for an indefinite term, are terminable at will." (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). "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." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). "[E]mployment at will can be modified by the agreement of the parties . . . [T]o prevail on the . . . count of his complaint [that] alleged the existence of an implied agreement between the parties, the plaintiff [has] the burden of proving by fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause." (Citation omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).
"[S]tatements in an employer's personnel manual [can] . . . give rise to an express or implied contract between employer and employee." (Internal quotation marks omitted.) Rodriguez v. Host International, Inc., Superior Court, judicial district of Hartford, Docket No. CV 99 0585323 (December 22, 2000, Peck, J.). "[E]mployers 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).
"Superior Courts have held [on numerous occasions] that contract claims based solely on the terms of an employee handbook must fail if the handbook has an effective disclaimer." Acevedo v. Ledgecrest Health Care, Superior Court, judicial district of New Britain, Docket No. CV 00 509027 (October 18, 2001, Shortall, J.). "Where employers have disseminated conflicting or contradictory information regarding handbooks, [however] courts have been reluctant to grant summary judgment . . . The existence of disclaimer language in an employee handbook, therefore, does not always defeat a claim for breach of an express or implied contract, particularly under circumstances where other representations have been made independent of a handbook which are not themselves disclaimed." (Citations omitted.) Rodriguez v. Host International, Inc., supra, Superior Court, Docket No. CV 990585323.
Further, " a progressive discipline procedure, [that is] a procedure based on a manual or company policy, absent appropriate disclaimers, can form the basis of an implied contract not to fire without following set procedures." (Emphasis added; internal quotation marks omitted.) Nguyen v. Newberry Industries, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 97 0571319 (October 31, 1997, Hale, J.T.R.). "The existence of disclaimer language in an employee handbook, therefore, does not always defeat a claim for breach of an express or implied contract, particularly under circumstances where other representations have been made independent of a handbook which are not themselves disclaimed." Rodriguez v. Host International, Inc., supra, Superior Court, Docket No. CV 98 0585323.
The defendant has not met its burden of proving that there is an absence of any genuine issue of material fact that would entitle it to judgment as a matter of law. Evidence relating to the progressive disciplinary procedure has been provided to demonstrate that a genuine issue of material fact exists as to whether there was an express or implied contract between the parties. Although the employee manual clearly has a disclaimer against the formation of an express or an implied contract, the defendant's operations manual contains no disclaimer. The conflicting information regarding what the defendant's policies are and what rights the plaintiff has raises a question of fact as to whether an express or implied contract was created. Therefore summary judgment is denied as to count one.
Even if, as the defendant argues in its reply, the disclaimer in the handbook was incorporated by reference in the operation manual, there is still a genuine issue of fact as to whether the handbook disclaimer also covers the operations manual. "Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. Where . . . the signatories execute a contract which refers to [other instruments] in such a manner as to establish that they intended to make the terms and conditions of [those other instruments] a part of their understanding, the [contract and the other instruments] may be interpreted together as the agreement of the parties." (Internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 20, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).
"Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings. [S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact . . . Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) Espinal v. Child And Family Agency of Southeastern Connecticut, Inc., Superior Court, judicial district of New London, Docket No. 0568897 (March 14, 2005, Devine, J.) ( 38 Conn. L. Rptr. 859, 861). The plaintiff has demonstrated through his sworn affidavit and a copy of Dunbar's general rules and regulations that the defendant had conflicting information regarding its employment at will policy.
II COUNT TWO: BREACH OF THE COVENANT OF GOD FAITH AND FAIR DEALING
The defendant argues that it is entitled to summary judgment as to count two of the plaintiff's complaint because the plaintiff is unable to produce any evidence to support his claim of breach of the covenant of good faith and fair dealing. The defendant argues that the implied covenant of good faith and fair dealing is a legal concept that is applied to parties that have entered into a contractual relationship. It further argues that an employer does not violate the principle of good faith and fair dealing by exercising its right to end an employment at will. The defendant maintains that there was no contract and it can exercise its right to terminate the plaintiff without violating the implied covenant of good faith and fair dealing. Conversely, the plaintiff argues that since material questions of fact exist as to whether a contract existed between the parties, material questions of fact also exist as to whether the defendant knowingly ignored its established policies regarding the pre-announcement of safety retraining.
"The common law implies into every contract, including employment agreements, a covenant of good faith and fair dealing." Jones v. H.N.S. Management Co., Inc., Superior Court, judicial district of New Haven, Docket No. 0471419 (September 17, 2004, Levin, J.). "[T]his principle should [not] be applied to transform a contract of employment terminable at the will of either party into one terminable only at the will of the employee or for just cause . . . [C]ourts should not lightly intervene to impair the exercise of management discretion or to foment unwarranted litigation." (Internal quotation marks omitted.) Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 569, 479 A.2d 781 (1984). "At the same time . . . many employees without bargaining power to obtain employment for a definite term are entitled to judicial protection when the cause for dismissal is delved from some important violation of public policy." Id.
"An implied covenant of good faith and fair dealing is [e]ssentially . . . a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." (Internal quotation marks omitted.) Eis v. Meyer, 213 Conn. 29, 36-37, 566 A.2d 422 (1989). "The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [the employer] without some evidence that it was intended to be bound to such a contract." Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989). "A contract implied in fact, like an express contract, depends on an actual agreement." (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn 106, 111, 544 A.2d 170 (1988). Provisions in personnel manuals can create binding employment contracts. See Finley v. Aetna Life Casualty Co., 202 Conn. 190, 198-99, 520 A.2d 208 (1987), overruled in part on other grounds, Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993). "[I]n the absence of definitive contractual language, the question whether the parties intended the manual to constitute part of the contract is a question of fact to be determined by the trier of fact." Carbone v. Atlantic Richfield Co., 204 Conn. 460, 471-72, 528 A.2d 1137 (1987).
"[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." ShareAmerica, Inc. v. Ernst Young, Superior Court, judicial district of Waterbury, Docket No. CV 93 0150132 (July 2, 1999, Sheldon, J.). "Bad faith in general implies . . . 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, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).
There is a genuine issue of material fact as to whether there was a breach of the covenant of good faith and fair dealing. There is no definitive contractual language between the parties. Although the employee manual contains a disclaimer that states that employment with the company is at will, the operations manual contains no disclaimer. The plaintiff has raised the question of whether the parties intended a contractual relationship or an employment at will. There is sufficient evidence to suggest that an express or implied contract was formed between the parties. The question of whether the defendant breached the covenant of good faith and fair dealing by not pre-announcing its safety or security retraining class is a question of fact. The motion for summary judgment as to count two is denied.
III COUNT THREE: DISCRIMINATION
The defendant argues that it is entitled to summary judgment as to count three of the plaintiff's complaint because the plaintiff is unable to produce any evidence to support his claim of wrongful termination. The defendant argues that the plaintiff has failed to state the public policy it violated when it terminated him. The defendant also argues that the plaintiff has failed to establish a prima facie case of discrimination. The defendant maintains that it did not prevent the plaintiff from receiving workers' compensation benefits. It maintains that the plaintiff cannot demonstrate that he was treated differently from any other employee who filed workers' compensation, or with respect to any terms and conditions of employment after he was injured.
The plaintiff argues that the defendant violated General Statutes § 31-290a when it terminated his employment. He argues that the timing of his termination is connected to the time in which he filed his workers' compensation claim. The plaintiff argues that the approximately three-month gap between the time he injured himself and exercised his rights under the Workers' Compensation Act and the time he was discharged by the defendant reflects a sufficient causal connection between the protected activity and the defendant's adverse action.
General Statutes § 31-290a provides in relevant part: "No employer who is subject to the provisions of this chapter shall discharge or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
"General Statutes § 31-290a permits an employee to file a civil action to recover damages from an employer for wrongful discharge if the discharge resulted from the employee's filing of a claim for workers' compensation benefits." Otero v. Housing Authority, 86 Conn.App. 103, 104, 860 A.2d 285 (2004). "In setting forth the burden of proof requirements in a § 31-290a action, [the court looks] to federal law for guidance." Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990). "[T]he United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions." (Citations omitted.) Id., 53-54.
"To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." Diaz v. Housing Authority, 258 Conn. 724, 731, 785 A.2d 192 (2001). The plaintiff "must establish (a) [protected activity, i.e.,] that he filed a claim for workers' compensation benefits or otherwise exercised his rights under chapter 568 of the Connecticut General Statutes [Workers' Compensation Act]; (b) an employment action disadvantaging the plaintiff; and (c) a causal connection between the protected activity and the adverse employment action . . . [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." (Citations omitted, internal quotation marks omitted.) Christophe v. People's Bank, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 0385621 (February 20, 2003, Levin, J.) (34 Conn. L. Rptr).
"The plaintiffs must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employees because they had exercised their rights under the Workers' Compensation Act . . . Without some proof of an improper motive, [a plaintiff's] case must fail." (Citation omitted; internal quotation marks omitted.) Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 711, 643 A.2d 898, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994). "[J]udges of the Superior Court have explained that [a] causal connection may be established indirectly by showing that the protected activity was followed closely by discriminatory treatment." (Internal quotation marks omitted.) Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 95 0377376 (October 29, 1999, Licari, J.). "A plaintiff may establish a causal connection indirectly by showing that the protected activity was followed by discriminatory treatment or directly through evidence of retaliatory animus." (Internal quotation marks omitted.) Langner v. Stop Shop Companies, Inc., Superior Court, judicial district of New Haven, Docket No. CV95 0377738 (May 18, 2000, Thompson, J.). A demonstration of "time sequence alone [however] is not sufficient to prevail in a retaliation case, when the employer presents substantial proof that a valid nondiscriminatory explanation for the termination exists." (Internal quotation marks omitted.) McDonald v. Connecticut Commission on Human Rights and Opportunities, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 970567160 (November 19, 1997 Mcweeny, J.).
"Once the plaintiff has made a prima facie showing of a retaliatory discharge, the defendant is obligated to produce evidence that, if taken as true, would permit the conclusion that there was a non-retaliatory reason for the termination of employment . . . If the defendant provides a legitimate and non-retaliatory reason for the discharge, the plaintiff must offer some significantly probative evidence showing that the defendant's proffered reason is pre-textual and that a retaliatory intention resulted in his discharge." (Citation omitted.) Arnone v. Enfield, 79 Conn.App. 501, 507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).
In the present case, the defendant has failed to meet its burden by showing that there is an absence of any genuine issue of material fact that would entitle it to a judgment as a matter of law. The evidence shows that one month after the plaintiff returned to work and within three months after his injury occurred, he was terminated. There could have been a "retaliatory animus" that was attributed to his filing his workers' compensation claim. The plaintiff stated in his sworn affidavit that his co-worker and supervisor told him that he was being watched and that the defendant was looking for an excuse to fire him. The defendant also may have not followed its written progressive discipline policy when it terminated the plaintiff. There is a genuine issue of fact whether the plaintiff has established a prima facie case of retaliation. The defendant's motion for summary judgment as to count three is denied.
IV COUNT FOUR: NEGLIGENT MISREPRESENTATIONS
The defendant argues that its actions were reasonable when it announced and expected re-training of the plaintiff on the same day of the accident. The defendant maintains that it was "eminently reasonable" for the plaintiff's supervisor to order and expect the plaintiff to immediately undergo re-training for the driving test on the same day of his accident and for the written test on the next day. The defendant argues it was reasonable because the plaintiff was scheduled to work the following day and it needed to ensure that the plaintiff was capable of driving safely.
The plaintiff argues that representations in the employee handbook and operations manual concerning pre-announced driving tests after accidents were false. He argues that he justifiably relied upon this information when he accepted employment and that he relied on this information when he did not take the written test after he finished work. The plaintiff maintains that the defendant did not comply with its representation that the test after a preventable accident retraining would be a pre-announced. The plaintiff argues that the defendant's request to take the test was not reasonable.
"[Our Supreme Court] has long recognized liability for negligent misrepresentation." (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 390, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000). "[An] innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted, internal quotation marks omitted.). D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987). "[T]he plaintiff need not prove that the representations made by the defendant[s] were promissory. It is sufficient that the representations contained false information." (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., supra, 50 Conn.App. 390-91. "[T]he plaintiff must allege and prove that the reliance on the misstatement was justified or reasonable. [The Supreme Court has] consistently held that reasonableness is a question of fact for the trier to determine based on all of the circumstances." Williams Ford, Inc, v. Hartford Courant Co., 232 Conn. 559, 579-80, 657 A.2d 212 (1995).
The plaintiff has demonstrated that a genuine issue of material fact exists as to whether the defendant negligently misrepresented (1) that the plaintiff would be terminated according to the procedures in its operation manual; and (2) that its safety and security retraining would be pre-announced. There are questions of fact concerning whether the defendant communicated false information, and whether the plaintiff reasonably relied upon the information transmitted. The reasonableness of the plaintiff's reliance is a question of fact and is not appropriate for a motion for summary judgment. The motion for summary judgment as to count four is denied.
CONCLUSION
Based on the forgoing, the defendant's motion for summary judgment is denied.
HILLER, J.