Opinion
No. HHD CV 09-5026050-S
October 29, 2010
MEMORANDUM OF DECISION
The plaintiff, Norma I. Cruz ("Cruz") brought suit against her former employer, the defendant, Visual Perceptions, LLC ("Visual Perceptions") and its principal, Robert W. Aube, O.D. ("Aube"), a doctor of optometry. The plaintiff's claims arise out of the termination of her employment. The plaintiff was hired as a lab manager at Visual Perceptions in February 2006. On February 2, 2006, the plaintiff and Aube signed a document entitled "Norma Cruz Employment Contract Proposal" (plaintiff's exhibit 1), which outlined the plaintiff's rate of compensation, commission opportunities, benefits and work schedule. Thereafter, on April 6, 2006, the plaintiff and Aube signed a second document entitled "Norma Cruz Employment Contract Proposal" (plaintiff's exhibit 2). The April 6, 2006 document revised the terms of the plaintiff's employment. On March 1, 2007, the plaintiff and Aube signed a third document entitled "Norma Cruz Employment Contract" (plaintiff's exhibit 3), which is the document at issue in this case. In relevant part, the March 1, 2007 document states: "This will cover the 36-month period starting April 1, 2007 and ending March 31, 2010." Aube terminated the plaintiff's employment at Visual Perceptions on October 16, 2008.
Plaintiff's exhibits 1 through 3 were drafted by Aube entirely. Plaintiff's exhibit 4 was drafted by Aube based on a form purchased from LawDepot.com.
On January 6, 2010, the plaintiff filed a revised amended complaint which was the operative complaint at the commencement of trial. Count one of the complaint alleges that the March 1, 2007 document constitutes a contract of employment between the plaintiff and Visual Perceptions for a fixed term of thirty-six months, and that her employment was terminated in breach of that contract. The defendants filed an answer on March 19, 2010, wherein they denied the existence of a contract and asserted four special defenses and three counterclaims against the plaintiff. The defendants alternatively allege that if the April 6, 2006 document does constitute a contract of employment, there was no breach because there was good cause to terminate the plaintiff.
The revised amended complaint contains six counts. Counts four and five were withdrawn by the plaintiff following final argument held on July 6, 2010. Count six was dismissed by the court at the conclusion of the plaintiff's case in chief. Accordingly, counts one through three are presently before the court. Count one alleges breach of contract by Visual Perceptions. Counts two and three seek an accounting and payment of commissions for the term of the alleged employment contract against Visual Perceptions (count two) and Aube (count three).
By way of special defense, the defendants claim rescission, payment and accord and satisfaction (as to all counts of the revised amended complaint) and that Aube cannot be personally liable pursuant to General Statutes § 34-134 (as to counts three and five of the revised amended complaint). The defendants' counterclaims against the plaintiff include breach of contract (count one), breach of the covenant of good faith and fair dealing (count two) and statutory theft pursuant to General Statutes § 52-564 (count three). As noted later on in this memorandum of decision, the court finds that the defendants have failed in their proof of these claims.
The case was tried before the court on March 23, 2010, and April 27, 2010. The plaintiff and the defendants submitted post-trial briefs on June 25, 2010. Final argument was held before the court on July 6, 2010. Other facts will be discussed as necessary.
I Count One — Breach of Contract A. Whether the Parties had an Employment Contract for a Definite Term
The principal issue in this case is whether the March 1, 2007 document constitutes a contract of employment for a definite term. Specifically, the plaintiff claims that the document, entitled "Norma Cruz Employment Contract," outlines the terms of her employment for a period of thirty-six months, beginning on April 1, 2007, and ending on March 31, 2010. In opposition, the defendants maintain that the March 1, 2007 document is not a contract and that the plaintiff's employment at Visual Perceptions was at will. Specifically, the defendants claim that Aube considered the document to be a recitation of the plaintiff's employment terms, but that he did not consider it to be a guarantee of employment.
In his submissions to the court, Aube claims that the plaintiff repeatedly sought to modify the terms of her employment, and that his inclusion of specific dates in the March 1, 2007 document was done to "avoid having to re-negotiate the terms of [the plaintiff's] employment every few months."
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary." (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 225, 837 A.2d 759 (2004). "Pursuant to traditional contract principles . . . the default rule of employment at will can be modified by the agreement of the parties." (Citation omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). "The rules governing contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms . . . between the parties." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). "Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 51, 873 A.2d 929 (2005). "Certain material terms such as the duration, salary, fringe benefits and other conditions of employment are deemed essential to an employment contract." Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 628, 760 A.2d 969 (2000); see also D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 215, 520 A.2d 217 (1987) (material terms essential to an employment contract include "the duration and conditions of the plaintiff's employment, and her salary and fringe benefits").
The March 1, 2007 document (plaintiff's exhibit 3) is titled "Norma Cruz Employment Contract," and is signed by the plaintiff and Aube. The document states that "[t]his will cover the 36-month period starting April 1, 2007 and ending March 31, 2010." The document further states that the plaintiff's title is "Optical Lab Manager" and outlines the duties and responsibilities of that position. The document provides a breakdown of the plaintiff's weekly and yearly salaries and states "you [the plaintiff] are a salaried employee and any overtime is included in your salary." The document states the terms under which the plaintiff would receive a monthly bonus, which was tied to Visual Perceptions' monthly net receipts. The document further provides information regarding the plaintiff's receipt of health and dental insurance, and her eligibility to participate in a 3% employer match of her IRA retirement fund. The document concludes with a description of the vacation and/or sick days the plaintiff was entitled to take as an employee: "You will have 10 paid personal days in 2007 that can be used for vacation/sick time. Once the 10 days are used up your salary would be reduced $250 per day for any days missed. The days will be counted from January 1 to December 31, and reset to zero on January 1. You will have 12 days in 2008 and 14 days in 2009 and 15 days in 2010."
On its face, the March 1, 2007 document contains the terms and conditions that were essential to the plaintiff's employment at Visual Perceptions. The document contains the plaintiff's job title and description, schedule, salary, conditions for the receipt of a bonus, health insurance and retirement contribution benefits. Most significantly, the document explicitly states the duration of the plaintiff's employment: thirty-six months, from April 1, 2007, to March 31, 2010. Because the March 1, 2007 document is definite and certain as to its terms and requirements, it constitutes a valid and binding term employment contract.
B. Whether the Plaintiff was Discharged in Violation of the Employment Contract
The plaintiff argues that the defendants' termination of her employment at Visual Perceptions was in violation of the March 1, 2007 document, her employment contract. The plaintiff claims that there existed no just cause to terminate her employment prior to the expiration of the contract. The defendants respond that if the court has determined that a valid employment contract exists, then the plaintiff was terminated for just cause. The defendants further claim that the plaintiff had multiple unexcused absences from work and a history of "abusing office policies."
The plaintiff's employment at Visual Perceptions was terminated on October 16, 2008. Her employment contract, the March 1, 2007 document, contained provisions for her employment through March 31, 2010.
"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.) Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 225. "An employment contract for a definite or determinable term, however, may be terminated by either party only for good or just cause." Slfkin v. Condec Corp., 13 Conn.App. 538, 549, 538 A.2d 231 (1988). The question of whether an employer has terminated an employee for just cause is an issue to be determined by the trier of fact. Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 122-23, 544 A.2d 170 (1988).
"[G]ood cause is defined as `a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.' Black's Law Dictionary (6th Ed. 1990) . . ." Roberto v. Honeywell, Inc., 33 Conn.App. 619, 626, 637 A.2d 405, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994); see also Slifkin v. Condec Corp., supra, 13 Conn.App. 549 ("Good cause, as distinguished from the subjective standard of unsatisfactory service, is defined as [s]ubstantial reason, one that affords a legal excuse . . . [or a] legally sufficient ground or reason." [citation omitted; internal quotation marks omitted]). "Good cause or [j]ust cause substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, and by forbidding the employer to act arbitrarily or capriciously . . . In any contract of employment for a fixed period, an employee prematurely discharged without good or just cause may recover damages." (Citations omitted; internal quotation marks omitted.) Slifkin v. Condec Corp., supra, 549.
In Slifkin, the only Connecticut appellate case to explicitly address the "just cause" or "good cause" requirement in the context of an express contract of employment for a definite term, the court distinguished the just cause standard from the standard of unsatisfactory service and stated: "Performance of satisfactory service is not a measurable standard that would prevent an employer from dismissing without reason an employee under contract for a definite or determinable term. Being subjective in nature, its only measure is the personal choice of the employer. It does not require that there be an accountable reason for termination of employment that is subject to judicial scrutiny. Its scope does not reach that of good or just cause for termination of employment." Slifkin v. Condec Corp., supra, 13 Conn.App. 548.
The principles set forth by the court in Slifkin concerning the just cause requirement in express employment contracts for definite or determinable terms have been applied by numerous trial courts in Connecticut. See, e.g., Puglia v. Westbrook, Superior Court, judicial district of Middlesex, Docket No. CV 06 5000446 (July 9, 2008, Jones, J.) ( 46 Conn. L. Rptr. 105, 107); Espinal v. Child Family Agency of Southeastern Connecticut, Inc., Superior Court, judicial district of New London, Docket No. 568897 (March 14, 2005, Devine, J.) ( 38 Conn. L. Rptr. 859, 860); Mast v. Harmon, Superior Court, judicial district of Fairfield, Docket No. CV 92 0291675 (October 5, 1993, Spear, J.); Berger v. Balmar Marine of Canton, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 90 0441360 (February 28, 1992, Hammer, J.).
In Berger v. Balmar Marine of Canton, Inc., supra, Superior Court, Docket No. CV 90 0441360 (February 28, 1992, Hammer, J.), the trial court cited the principles espoused by the Appellate Court in Slifkin and, relying on the well-established principles of other jurisdictions, further defined the meaning of "just cause" in the employment contract context. The court stated: "Not every act of insubordination or misconduct justifies an employer in firing an employee, because if that were the case, if an employee's conduct and performance were less than perfect he could be discharged for `just cause.' . . . In the case of a managerial employee, in particular, whose position gives him some latitude and discretion in working out the details of his service, a failure immediately and literally to comply with the master's orders may not constitute disobedience, and it is a question of fact for the jury in each case whether the limits of that latitude and discretion have been exceeded . . . There may also, of course, be derelictions of duty by an employee that are so trivial or inconsequential that the law will not take note of them . . . Slight or occasional omissions do not constitute conduct justifying dismissal, the proper test being whether the conduct is so inconsistent with the employer-employee relationship that it prejudices a valid business interest of the employer, which is ordinarily a question of fact, with the burden on the employer to justify the discharge . . . If an employer retains an employee after he has knowledge of misconduct warranting his discharge, such retention is prima facie a waiver, and condonation is presumed, unless circumstances are shown that tend to establish a reasonable and proper reason for the delay . . . Where the employer makes no complaint about the employee's conduct when he was aware of it, and waits until the matter is in litigation to assert it as a defense, such delay tends to show that there was nothing in the employee's conduct to justify his discharge and that the assertion of such claims was purely an afterthought prompted by considerations of trial strategy . . ." (Citations omitted; emphasis added; internal quotations omitted.) Berger v. Balmar Marine of Canton, Inc., supra, Superior Court, Docket No. CV 90 0441360S.
In the present case, the plaintiff maintains that there was no just cause for the defendants' termination of her employment prior to the expiration of her contract. Specifically, the plaintiff argues that her absences were due to illness, that she called out of work on the days she was unable to come in and that she provided Aube with note(s) from her treating physician to document her illness. The plaintiff further alleges that the March 1, 2007 contract of employment made no provision for the plaintiff's termination in the event that she exceeded the permitted number of paid vacation and/or sick days. Rather, the document explicitly protected the defendants by stating that the plaintiff's paycheck would be docked for the days she was absent in excess of the permitted number of paid vacation and/or sick days per year. The plaintiff maintains that Aube had no good faith reason to believe that she was abusing her right to take time off and that there is no evidence that the plaintiff was warned, advised or notified that she was at risk of termination.
The plaintiff was diagnosed first with a migraine condition and was later diagnosed with a mass on her head that required surgical removal in November of 2008.
The defendants respond that the plaintiff's termination was for just cause "due to her unexcused absences," "excessive absenteeism" and "lack of diligence when employed." Specifically, the defendants claim that the plaintiff regularly failed to call in and notify the office of her absences and that, on days when Aube was not in the office, the plaintiff would take extended lunches, arrive late and leave early. As a result of several unexcused absences from work in 2007, the defendants claim, the plaintiff and Aube entered into a verbal agreement wherein the plaintiff was required to produce a doctor's note if she was absent for three or more consecutive days. The defendants claim that the plaintiff was absent from work twenty-two times in 2008. Regarding the plaintiff's absences in October of 2008, the defendants assert that the plaintiff did not provide Aube with "any details or further explanation regarding the reasons for her absences" apart from a doctor's note and, when she was absent from work from October 11 to October 16, 2008, she provided "no note, phone call or explanation as to her absence." The defendants further argue that "[t]his final incident was the culmination of years of abuse of Visual Perceptions policies which caused [the plaintiff's] termination."
As described above, the court finds that the plaintiff has proved, by a preponderance of the evidence, that the contract at issue in the present case, the March 1, 2007 document, is an express employment contract between the plaintiff and the defendants for a definite term of thirty-six months. Accordingly, it was terminable only for good or just cause. Slifkin v. Condec Corp., supra, 13 Conn.App. 549. The contract contains no provision for the plaintiff's termination in the event that she exceeded the permitted yearly paid vacation and/or sick days. It makes no provisions for the plaintiff's termination whatsoever. It is, therefore, the defendants' burden to justify the plaintiff's discharge. See, e.g., Berger v. Balmar Marine of Canton, Inc., supra, Superior Court, Docket No. CV 90 0441360.
The trial record reflects that Aube prepared three letters to the plaintiff (defendants' exhibits N, O and P) dated October 13, 14 and 15, 2008, respectively. Aside from the dates, the letters were otherwise identical, and stated: "This is official written notice that if you are late, take more than a one hour lunch, leave early without permission, or miss one more day of work in 2008, I will have to terminate your employment." The letters were given to the plaintiff when she returned to work on October 16, 2008. Notwithstanding the plaintiff's attendance at work on October 16 and her not having engaged in any of the specifically prohibited actions stated in the letters, Aube terminated the plaintiff later that same day. These letters are the only written documentation of Aube's claimed dissatisfaction with the plaintiff's attendance and work performance.
The contract provides that the plaintiff was to have twelve paid "personal" days available to her during 2008 and that any days in excess of the permitted twelve would result in her pay being docked. The evidence and testimony admitted at trial establish that the plaintiff was absent from work eleven days in 2008, up until her termination on October 16, 2008. The court concludes, therefore, that the plaintiff did not exceed the permitted number of paid vacation and/or sick days.
The doctor's notes and testimony admitted at trial support a finding that the plaintiff was absent from work when Visual Perceptions' office was open on April 30, May 1, and October 6, 7, 8, 9, 10, 11, 13, 14 and 15, 2008. Although Aube offered testimony that the plaintiff was absent from work twenty-two times from April 1, 2008, through October 16, 2008, the defendants provided no documentation or other evidence to substantiate that claim.
The evidentiary record further establishes that the plaintiff was a valuable and productive employee. The defendants have also offered evidence which reflects that the plaintiff was Visual Perceptions' "main salesperson," that "she was good at what she did" and that "Visual Perceptions' net earnings were higher after she started working there." The defendants have not, however, presented evidence from which it may be determined that the plaintiff's absences were so inconsistent with the employer-employee relationship that they prejudiced a valid business interest of the defendants. Nor have the defendants proffered a legally sufficient ground or reason for having terminated the plaintiff's employment prior to the expiration of the contract term. Because the defendants have not presented evidence which supports a finding of good or just cause to terminate the plaintiff's employment, the court concludes that the plaintiff was discharged in violation of the March 1, 2007 contract.
III Aube's Personal Liability
Although Aube is sued individually, apart from the allegation that he is the "owner" of Visual Perceptions in count one, which is admitted by the defendants, the only remaining claim specifically directed toward him is count three, which seeks an accounting and payment of commissions during the term of the contract. The claim for commissions is also made in count one. While the court notes that the March 1, 2007 contract (plaintiff's exhibit 3), which is the centerpiece of this case, is on the letterhead of "Robert W. Aube, Jr., O.D.," and is signed by him personally with no mention of Visual Perceptions, there is no other indication in the evidence that the parties ever intended or understood that the plaintiff's employer was anyone other than Visual Perceptions. The allegations of breach of contract in count one are only made against Visual Perceptions. In addition, the termination letter (plaintiff's exhibit 4), is on the letterhead of "Visual Perceptions" and is signed by Robert W. Aube, Jr., O.D. as "Owner." Based on the plaintiff's allegations, the tacit agreement between the parties that Visual Perceptions was the plaintiff's employer and the lack of any evidence or legal argument by the plaintiff evidencing a legal basis for the personal liability of Aube, the court finds that the contract at issue was at all times intended to be one between the plaintiff and Visual Perceptions, and that any monetary compensation due to the plaintiff arising out of that employment is owed by Visual Perceptions only. The court concludes, therefore, that there is no basis for the plaintiff's claim of personal liability as to Aube for commissions, as distinguished from her other monetary claims.
In his post-trial memorandum, the plaintiff does make the argument that Aube is personally liable for unpaid wages in the form of commissions pursuant to General Statutes § 31-72 in accordance with Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463-64, 704 A.2d 222 (1997) ("an individual personally can be liable as an employer pursuant to § 31-72, notwithstanding the fact that a corporation is also an employer . . . if the individual is the ultimate responsible authority . . . to pay wages and is the specific cause of the wage violation"). The court rejects this argument for the reason that, unlike Butler, the plaintiff in the present case has not made a Section 31-72 claim. "It is fundamental in our law that the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief." Kovacs Construction Corp. v. Water Pollution Control Authority, 120 Conn.App. 646, 659, 992 A.2d 1157, cert. denied, CT Page 20992 297 Conn. 912, 995 A.2d 639 (2010).
The court is further persuaded to this view by an examination of Chapter 613 of the General Statutes governing limited liability companies. While there is no recognized designation of "owner" in these provisions (only members, managers, agents or employees), it is clear that Aube cannot be held personally liable "solely by reason of being a member or manager" of the LLC. See General Statutes § 34-133.
IV Counterclaims and Special Defenses
By way of special defense, the defendants claim rescission, payment and accord and satisfaction (as to all counts of the revised amended complaint), and that Aube cannot be personally liable to the plaintiff pursuant to General Statutes § 34-134 (as to counts three and five of the revised amended complaint). Implicit in the court's ruling on the plaintiff's claims and elsewhere in this memorandum of decision is that the defendants have failed to establish the first three of their claims of special defense. There is no basis in the evidence supporting a claim of rescission on the part of the plaintiff. Further, the fact that the plaintiff cashed a check voluntarily issued to her and characterized by the defendants as severance pay, for which there was no negotiation or release, does not constitute an accord and satisfaction. Nor does it amount to payment of the amounts claimed by plaintiff in her claim for breach of contract. In addition, for the reasons previously stated in Part III of this memorandum, the court finds in favor of the defendants on their fourth special defense of lack of personal liability as to Aube.
As previously noted, by way of counterclaims against the plaintiff, the defendants have alleged breach of contract (count one), breach of the covenant of good faith and fair dealing (count two) and statutory theft pursuant to General Statutes § 52-564 (count three). Based on the evidence presented, the defendants have failed to prove any one of these claims by a preponderance of the evidence. In particular, the court notes that, beyond mere suspicion, there is no evidentiary basis for the defendants' claim of statutory theft under General Statutes § 52-564.
V Damages and Other Relief
Pursuant to count one of the revised amended complaint, the court finds that the plaintiff is entitled to compensatory damages from the date of her termination, October 16, 2008, through March 31, 2010, the end date of her contract (plaintiff's exhibit 3), as follows:
Beyond disputing liability, the defendants have presented no evidence contradicting the plaintiff's calculation of damages.
In addition to the foregoing amount, the plaintiff is also entitled to a sum representing any further amount due her by way of a bonus/commission pursuant to the terms of her contract. To that end, the court hereby orders that the defendant shall produce, within thirty (30) days, an accounting in accordance with count two of the revised amended complaint which reflects Visual Perceptions' sales receipts during the period April 1, 2007, through March 31, 2010, the entire three-year term of the contract, for the purpose of calculating whether and how much the plaintiff is owed for bonus/commissions during this period. The plaintiff has a need of discovery from the defendants in order to settle the amount due. There is no alternative adequate remedy. See Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460-61, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004). Alternatively, the parties may submit a stipulated amount that will be added to the calculation of damages.
CONCLUSION
Accordingly, for all the foregoing reasons, judgment is ordered enter in favor of the plaintiff against the defendant, Visual Perceptions, LLC, as to counts one and two of the revised amended complaint, subject to a recalculation of the damage award pending an accounting to be produced by the defendant as ordered in Part V of this memorandum. A hearing on this issue will be held on December 6, 2010 at 2 p.m.