Opinion
NHCV166062007S
12-11-2018
Ghulam AHMED et al. v. Andrew ANASTASIO, Jr. et al.
UNPUBLISHED OPINION
PIERSON, J.
FACTUAL AND PROCEDURAL BACKGROUND
This action was brought by the plaintiffs, twenty airport shuttle drivers, against the defendants, Connecticut Limo, LLC (CT Limo) and CT Limo’s principal officer, Andrew Anastasio, Jr., in connection with the plaintiffs’ provision of airport transportation services to CT Limo’s customers. The plaintiffs contend that they were erroneously classified by the defendants as independent contractors, rather than employees, and that the defendants’ deduction of various expenses from the plaintiffs’ pay violated General Statutes § 31-71e and constituted unjust enrichment. The defendants dispute this characterization, arguing that the plaintiffs were properly classified as independent contractors and that the deductions from the plaintiffs’ pay were lawful.
The defendants filed the present motion for summary judgment on May 8, 2018, asserting that the plaintiffs are statutorily exempt from classification as employees by General Statutes § 31-222(a)(5)(P). The plaintiffs filed simultaneously their own motion for summary judgment, arguing, inter alia, that no genuine issue of material fact exists as to whether they should have been classified as employees rather than independent contractors. In support of their respective motions, the parties submitted documentation, including sworn affidavits from the plaintiff drivers, excerpted transcripts of the deposition testimony of individuals employed by the defendants, and communications from the defendants to the plaintiffs. The plaintiffs and the defendants filed opposition memoranda on July 6, 2018. Argument on the motions was held on August 20, 2018.
DISCUSSION
I
The motion for summary judgment is designed to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The standard of review applicable to motions for summary judgment is well established in our law. "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 summary 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 ... [I]ssue-finding, rather than issue determination, is the key to the procedure ... [T]he trial court does not sit as a trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Brackets in original; internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn.App. 223, 230-31, 167 A.3d 443 (2017). "It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward ... evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis in original; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). The legal standard applicable to the movant is strict. See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008) ("courts hold the movant to a strict standard"); Anderson v. Gordon, Muir & Foley, LLP, 108 Conn.App. 410, 416, 949 A.2d 488 (2008). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 431.
In response to a summary judgment motion, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... To oppose a motion for summary judgment successfully, the non-movant must recite specific facts in accordance with Practice Book ... §§ 17-45 and 17-46 ... which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue of material fact for trial. If he does not so respond, summary judgment shall be entered against him." (Citation omitted; internal quotation marks omitted.) Id., 430. A party opposing the motion "must present an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Mere assertions of fact are insufficient to establish the existence of a material fact and cannot rebut properly presented evidence in support of the motion. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. "The existence of [a] genuine issue of material fact must be presented by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). In the context of a motion for summary judgment, a material fact "[is] a fact that will make a difference in the result of the case." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
II
"The determination of the status of an individual as an independent contractor or employee is often difficult ... and, in the absence of controlling considerations, is a question of fact." (Internal quotation marks omitted.) Tianti ex rel. Gluck v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995). Connecticut courts analyzing a party’s disputed employment status look beyond any contract in existence between the parties and apply the "ABC test," as codified in our unemployment compensation statutes, with each letter corresponding to parts I, II, and III of the statutory language.
The ABC test is a three-prong test whereby an individual is presumptively an employee "unless and until it is shown ... that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of the service and in fact; (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ..." General Statutes § 31-222(a)(1)(B)(ii).
The plaintiffs’ argument is based on A and C of the test, asserting that the defendants controlled the plaintiffs’ performance and that the plaintiffs were not engaged in independently-established businesses. Both of these elements are determined by a totality of the circumstances, with no one factor being determinative. See, e.g., Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act, 324 Conn. 822, 839, 155 A.3d 738 (2017) ("part C must be considered in relation to the totality of the circumstances, with that inquiry guided by a multifactor test"); Tianti, supra, 231 Conn. 698 ("[t]he determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive" [internal quotation marks omitted]). In the present matter, the evidence submitted by the parties demonstrates a genuine issue of material fact regarding both the defendants’ control over the plaintiffs and the plaintiffs’ engagement in independent commercial pursuits. For instance, although the plaintiffs submitted affidavits stating that drivers were forbidden from refusing work, other evidence suggests that drivers were able to turn down previously-scheduled shifts without consequence. By way of further example, although the plaintiffs argue that they were not engaged in independent businesses, the defendants offer evidence that several plaintiffs registered with the state of Connecticut as independent business entities and that several plaintiffs subcontracted the defendants’ work to other individuals with varying frequency. Accordingly, the issue of the plaintiffs’ employment status raises genuine issues of material fact that preclude the entry of summary judgment.
Because the plaintiffs’ remaining claims would first require a finding that they were improperly classified as independent contractors, those claims need not be addressed.
III
The defendants contend that General Statutes § 31-222(a)(5)(P) exempts the plaintiffs from classification as employees. Regardless of whether the plaintiffs fall within the category of persons referenced by § 31-222(a)(5)(P), our Supreme Court has made clear that statutory exemptions from Connecticut’s unemployment compensation statutes apply only to matters involving unemployment compensation, absent additional statutory language broadening their reach. See Tianti, supra, 231 Conn. 699. The defendants have presented no evidence to suggest that the legislature intended § 31-222(a)(5)(P) to apply to § 31-71e. Accordingly, summary judgment may not enter on those grounds.
General Statutes § 31-222(a)(5)(P) exempts "[s]ervice performed by the operator of a motor vehicle transporting property or capable of carrying eight passengers or more, including the driver, for compensation pursuant to an agreement with a contracting party[, ]" provided that certain enumerated conditions are met.
CONCLUSION
For the foregoing reasons, the plaintiffs’ motion for summary judgment (docket entry no. 137.00) and the defendants’ motion for summary judgment (docket entry no. 136.00) are denied.