Opinion
No. UWY CV 06 6000206-S
June 4, 2010
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT — DOCKET #121
MOTION DENIED BACKSTORY
On September 25, 2006, the plaintiff, Jose Simoes, commenced this action by service of process against his former employer, the defendant, Olin Corporation. In the plaintiff's complaint, he alleges that he suffered injuries during the course of his employment at the defendant's facility in Waterbury, Connecticut. The plaintiff alleges that he exercised rights afforded to him pursuant to Connecticut Workers' Compensation Act in connection with his work-related injuries, and that he was then wrongfully terminated by the defendant in retaliation. The plaintiff also alleges that he relied to his detriment on promises made by the defendant in its employee manual that were not kept. The plaintiff seeks recovery in his second amended complaint under the legal theories of wrongful termination, pursuant to General Statutes § 31-290a, and promissory estoppel.
The plaintiff's request to file a second amended complaint was made on February 17, 2010. Because no objection was filed within fifteen days, this amended complaint is deemed filed by consent pursuant to Practice Book § 10-60.
In the operative answer, filed on March 26, 2010, the defendant denies that the plaintiff was terminated because of the exercise of his workers' compensation rights. The defendant also denies the allegations of the plaintiff's promissory estoppel claim.
The defendant filed the present motion for summary judgment, accompanied by a memorandum of law in support, on September 22, 2009. The plaintiff filed a memorandum of law in opposition on January 26, 2010. The defendant filed an additional memorandum of law in support on February 15, 2010. Oral argument was heard on the matter at short calendar held on March 8, 2010.
DISCUSSION
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . 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]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "[S]ummary judgment . . . is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
A First Count: Wrongful Termination
The first count of the second amended complaint provides that the plaintiff was injured while at work, exercised rights afforded to him under the Connecticut Workers' Compensation Act, and then was wrongfully terminated by the defendant in retaliation for the exercise of those rights in violation of General Statutes § 31-290a. The defendant argues it is entitled to summary judgment on the first count because the plaintiff cannot show a causal connection between the filing of his workers' compensation claim and the plaintiff's termination. The defendant maintains that the plaintiff has provided neither direct evidence to support his claim of retaliatory discharge nor any evidence demonstrating the existence of a discriminatory motive or intent. The defendant also maintains that, even if the plaintiff has presented a prima facie case for retaliatory discharge, he cannot provide evidence of pretext, which is necessary to overcome what the defendant claims is a legitimate, non-discriminatory reason for plaintiff's termination. In response, the plaintiff argues that sufficient evidence has been presented to allow a jury to find that the defendant's decision to terminate the plaintiff was causally connected to the filing of the plaintiff's workers' compensation claim, and that the reasons proffered by the defendant for his termination were mere pretext for discrimination.
Section 31-290a provides in relevant part: "(a) No employer . . . 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 . . . (b) Any employee who is so discharged or discriminated against may . . . [b]ring a civil action in the superior court . . ." The burden of proof for § 31-290a violations is set forth in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), which looks to federal law for guidance, and, in particular, incorporates the standard applied in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "In McDonnell Douglas Corporation v. Green . . . the 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." (Citations omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 53.
"Unlike other areas of law, where a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has the initial burden of persuasion, albeit an attenuated one . . . [T]he burden of persuasion that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." (Emphasis in original; internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 0365472 (May 22, 1998, Levin, J.). "To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [to him] under the [Workers' Compensation Act (act)] and that the defendant discriminated against [him] for exercising that right . . . [T]he plaintiff must show a causal connection between exercising [his] rights under the act and the alleged discrimination [he] suffered." (Internal quotation marks omitted.) Martin v. Westport, 108 Conn.App. 710, 717-18, 950 A.2d 19 (2008). "A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant." (Emphasis in original; internal quotation marks omitted.) Id., 719. "[T]he inquiry into whether temporal proximity establishes causation is factual in nature. There is no `bright line' to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action." (Emphasis added; internal quotation marks omitted.) Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009).
"If the plaintiff meets [its prima facie 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 . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy [his] burden of persuading the fact finder that [he] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54. "[T]o defeat a defendant's properly supported motion for summary judgment, a plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) more likely than not the [unlawful basis] was the real reason for the discharge . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Tordonato v. Colt's Mfg. Co., Superior Court, judicial district of New Britain, Docket No. CV 97 0481610 (December 26, 2000, Graham, J.). "An employee may demonstrate pretext by reliance on the evidence that established her prima facie case, without any additional evidence being required . . ." (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 223, 928 A.2d 586 (2007).
Uncontested evidence has been submitted demonstrating that, approximately eight months after the filing of his workers' compensation claim, his employment was terminated by the defendant. Whether an eight month lapse of time between the adverse action taken by the defendant, i.e. the plaintiff's termination, and the filing of the plaintiff's workers' compensation claim establishes the causal connection necessary to establish the plaintiff's prima facie case is an issue of material fact to be decided by the fact finder. In addition the plaintiff has submitted evidence that the call he made to the defendant's ethics hotline, the purpose of which was to complain about discrimination he felt he was enduring in connection with his work restrictions, was made only two and a half months before the plaintiff was terminated. Evidence was also offered showing that the defendant disciplined the plaintiff for submitting notes written by his physician requesting lighter duty assignments. Although the purported reason for the discipline was that the plaintiff did not immediately report the certain work restrictions to management as required by company policy, there is an issue of material fact as to whether the plaintiff was disciplined for having the restrictions in the first place, and management at least discouraged him from reporting such restrictions. Moreover, the call to the defendant's ethics hotline can be read to serve as direct evidence that, before he was terminated, the plaintiff felt he was suffering from workplace discrimination on account of his physical limitations. The inferences that can be drawn from this evidence are thus sufficient to meet the plaintiffs de minimis burden in stating a prima facie case on summary judgment.
Although the defendant has put forth what could be considered a very legitimate, nondiscriminatory reason for terminating the plaintiff's employment, i.e., that he intentionally damaged company property, the plaintiff has submitted at least some evidence in the form of deposition testimony indicating that this offense was not, in comparison with the treatment of other employees, serious enough to justify termination. The fact that other employees, at least to a lesser extent, intentionally damaged company property but were later promoted was conceded in testimony given by members of the defendant's plant management team. Additionally, the plaintiff's disciplinary record, which has been offered by the defendant as supporting his termination, includes the write-ups the plaintiff received when he reported his physician recommended work restrictions. Therefore reviewing the evidence demonstrates that there are genuine issues of material fact as to whether the reason proffered by the defendant for the plaintiff's termination was, in fact, the true reason for the plaintiff's termination. Therefore genuine issues of material fact exist with respect to the plaintiff's § 31-290a claim that make summary judgment inappropriate.
B Second Count: Promissory Estoppel
In paragraphs four and five of the second count of the amended complaint, the plaintiff alleges that the defendant made representations "concerning the progressive discipline policy it followed, specifically concerning discipline for misconduct causing damage to company property, for which termination for a first offense was not identified," and "represented in its employee manual that employees could use its Ethics Hotline to report complaints and expressly protected employees' rights to do this without fear of retaliation." The complaint also states that the plaintiff relied on these promises to his detriment.
The defendant argues it is entitled to summary judgment on the second count on the grounds that the employee manual does not constitute a contract between the plaintiff and the defendant, that the employee manual does not establish a clear and definite promise sufficient for a claim of promissory estoppel and that the plaintiffs reliance on the employee manual was unreasonable in light of the provisions in the employee manual. The plaintiff contends that when an employer's employee manual contains an explicit promise that no employee would suffer retaliation from using an open door procedure, that representation is adequate to support a promissory estoppel claim.
"[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promissee 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." Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003). "A fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance." Id. "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." Id., 105-06. Finally, "a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Internal quotation marks omitted.) Id., 104-05.
A "clear, emphatic, highly touted, and widely proclaimed" promise in an employee handbook stating that an employer will not retaliate against its employees for taking advantage of an open door policy may provide an adequate basis for a promissory estoppel claim. Holt v. Home Depot, USA., Inc., United States District Court, Docket No. 3:00 CV 1578 (D.Conn. January 22, 2004), aff'd, 135 Fed. Appx. 449 (2nd Cir. 2005). In particular, in Holt, the court determined that a jury finding for the plaintiff on a promissory estoppel claim was supported by sufficient evidence where it was demonstrated at trial that, six days after the plaintiff requested forms to initiate a formal complaint against his supervisor, he was terminated by a group of managers that included that same supervisor. Id.
In accordance with Holt, Superior Court cases support the proposition that an open door or antiretaliation clause found in an employee manual, even one containing a disclaimer that the manual does not create a contract between the employer and employee may provide an adequate promise for estoppel purposes. See Wilk v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.) (holding that jury could find that employee could reasonably be expected to rely on promise in employee manual providing that voicing concern would not adversely affect employee's job); Gaudio v. Griffin Health Services, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 91 0035730 (December 19, 1991, Sequino, J.) [ 5 Conn. L. Rptr. 785] (holding that promises of progressive discipline prior to termination are sufficiently promissory).
The court finds that there are genuine issues of material fact with respect to the plaintiff's promissory estoppel claims. In particular, the plaintiff has submitted evidence demonstrating that, under the provisions of the defendant's employee manual, complaints regarding harassment could be made under a so-called "open door policy" by using the company ethics hotline and that retaliation against workers for reporting harassment would be prohibited. There is no dispute that the plaintiff called this hotline and then was terminated by the defendant two and a half months later.
Whether the plaintiff's call actually resulted in his termination and whether his reliance on the employee manual was reasonable are both issues of fact hinging on the intent of the respective parties. Consequently, these questions are inappropriate for the court to decide in a motion for summary judgment.
CONCLUSION
The motion for summary judgment having been heard, it is hereby found that genuine issues as to material facts exist. The motion is therefore ordered DENIED. Practice Book §§ 17-44 through 17-51; Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989); Kakadelis v. DeFabritis, 191 Conn. 276, 464 A.2d 57 (1983).