Opinion
No. X06-CV01-0176326S
August 31, 2005
MEMORANDUM OF DECISION
The plaintiff has brought this action against the defendants O'Keefe Associates, John O'Keefe, Kathleen O'Keefe, and Paul Sampson claiming that they failed to pay him the proper compensation due him by contract and statute during his period of employment. According to the complaint, the plaintiff was employed from April 4, 1994 through October 30, 2001 as a recruiter at O'Keefe Associates, a company engaged in the business of providing executive search and recruiting services for large, national companies. The plaintiff alleges that he entered into a contract with O'Keefe Associates pursuant to which he was to be paid a commission of 25% of his employer's fee for any new corporate business that he brought to his employer which resulted in a completed job order and a commission of 25% of the fee for his successful placement of an individual job applicant. The plaintiff also claims that he was entitled to certain "support and assistance" payments. The plaintiff further alleges that the defendants John O'Keefe, Kathleen O'Keefe, and Paul Sampson are officers and owners of O'Keefe Associates. The plaintiff seeks damages for the alleged failure to pay him the money due. The defendants have moved for summary judgment on various counts of the plaintiff's complaint. I will address each of the claims of the defendants in turn.
The plaintiff has sued three business entities, O'Keefe Associates, O'Keefe Associates, Inc., and John O'Keefe Associates, Inc., which he alleges were the same business conducted under various names. I will refer to all three entities as O'Keefe Associates.
First, let me state the obvious. "Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). 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. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, CT Page 11768-kd 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997). See also Practice Book § 17-49. The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
The defendants seek entry of summary judgment on count six of the plaintiff's complaint which alleges that the defendants failed to pay him overtime in violation of General Statutes § 31-76c. The defendants contend that the undisputed facts establish that the plaintiff was not entitled to the payment of overtime wages because, pursuant to General Statutes § 31-76i, he was a person employed in a bona fide administrative capacity and exempt from the overtime wage provision. I do not agree.
Section 31-76c provides that "No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
Section 31-76i provides in pertinent part that "The provisions of sections 31-76b to 31-76j, inclusive, shall not apply with respect to . . . (e) any person employed in a bona fide executive, administrative or professional capacity as defined in the regulations of the Labor Commissioner issued pursuant to section 31-60 . . ."
Contrary to the defendants' assertions, I do not have before me sufficient evidence which establishes that the plaintiff was an employee employed in a bona fide administrative capacity as defined in the regulations of the Labor Commissioner. Section 31-60-15 of the Regulations of Connecticut State Agencies provides in pertinent part that an "employee employed in a bona fide administrative capacity" means any employee "whose primary duty consists of . . . the performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers . . ." The defendants maintain that the plaintiff's services as an executive recruiter consisted of office or nonmanual work directly related to the general business operations of the customers of O'Keefe Associates because he, in effect, performed human resource or personnel services for those customers through the recruitment of executives for them. While it is undisputed that the plaintiff performed such work, it is not evident from the evidence before me that such tasks constituted the plaintiff's "primary duty." It is undisputed that a major portion of the plaintiff's duties entailed generating new business for O'Keefe Associates, that is, in addition to finding executives for customers, he was involved in finding new corporate customers in need of executive recruitment services. Such work involves the marketing and selling the services of his employer, not performing traditional personnel tasks, and, as such, it is not necessarily directly related to management policies or general business operations of his employer or its customers. Since I do not have before me the percentage of time that the plaintiff spent on the recruitment and placement of individual executives versus the percentage of time that he spent on tasks developing new corporate clients, I do not CT Page 11768-ke know which task, if either, can be considered primary.
The defendants next move for summary judgment on counts seven and eight which allege negligent misrepresentation and intentional misrepresentation, respectively. The defendants first contend that both counts are deficient because a broken promise to pay compensation is not a false statement of fact which is actionable as a misrepresentation. I do not agree. The plaintiff alleges that the defendants uttered false statements by stating that they would pay him 25% commissions on executives he placed and new corporate business he obtained plus a proportionate share of "support and assistance" payments. The law is well established that a representation of one's intent to do an act which is false at the time it was made constitutes a misrepresentation. Meyers v. Cornwell Quality Tools, Inc., 41 Conn.App. 19, 29 (1996). See also Restatement (Second), Torts § 525, comment (c).
The defendants further maintain judgment should enter on the negligent misrepresentation count because the plaintiff has submitted no evidence that the defendants knew or should have known that their statements regarding the plaintiff's pay were false at the time that they were made and judgment should enter on the intentional misrepresentation count because there is no evidence of an intent to deceive the plaintiff. I am persuaded that judgment should enter in the defendants' favor with respect to the plaintiff's claim of negligent misrepresentation, but not as to his claim of intentional misrepresentation.
In count seven, the plaintiff asserts that the false statements made by the defendants concerning his compensation constitute negligent misrepresentation. The plaintiff however fails to allege in his complaint or supply any evidence as to how the defendants were negligent in making their statements. Connecticut recognizes liability for negligent misrepresentation where "the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217 (1987). Put another way, "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." Id., 218. Here, the plaintiff has not come forward with any facts which would show that the defendants failed to exercise due care in making their statements to the plaintiff concerning his compensation.
I surmise that this is so because this case is not at root about negligence at all. Rather, the plaintiff asserts that the defendants failed to fulfill their promises about compensation, which is a breach of contract claim, and never intended to fulfill their promises, which is an intentional misrepresentation claim.
In count eight, the plaintiff asserts a claim of intentional CT Page 11768-kf misrepresentation. The defendants assert that this claim fails because the plaintiff has not brought forth any evidence that the defendants' statements were false at the time that they were made or that they were made with the intent to deceive the plaintiff. The plaintiff counters that he has presented evidence that he was not paid as promised and that the defendants have offered varying and inconsistent reasons for failing to pay him the full compensation due. Based on the evidence presented to me, I cannot conclude that it would be unreasonable for a fact finder to determine that the proffered reasons are pretextual and that the defendants never intended to pay the plaintiff as they promised.
The defendants also seek summary judgment on count nine which asserts a claim of invasion of privacy by placing the plaintiff before the public in a false light. In count nine, the plaintiff alleges that the defendants sent false and fraudulent bills regarding the plaintiff to his clients. The bills were false and fraudulent in that duplicate bills were sent to multiple clients and bills were submitted for work which had not been performed. The plaintiff asserts that the submission of these bills placed him in a false light before his clients because it suggested that he was a party to the fraudulent activity. The defendants contend that this count fails because the plaintiff has not come forth with facts which establish that the allegedly false information was communicated to the public at large. I agree.
"In order to establish invasion of privacy by false light, the plaintiff must show (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Jonap v. Silver, 1 Conn.App. 550, 557-58 (1984) citing 3 Restatement (Second), Torts 652E; and Goodrich v. Waterbury Republican American, Inc., 188 Conn. 107 (1982). Liability for false light invasion of privacy is limited to situations in which the false information regarding the plaintiff is given publicity. 3 Restatement (Second), Torts 652E, comment a. "Publicity' . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." 3 Restatement (Second), Torts 652D, comment a.
The sole evidence that the plaintiff has submitted in support of his false light claim is his assertion that he was instructed by John O'Keefe on several occasions to bill the same expenses to up to five different clients. A disclosure made several times to five individuals or business entities is insufficient to establish that the false information was CT Page 11768-kg communicated to the public at large or in a manner that it is reasonably certain to reach the public. See Doe v. Hartnett, Superior Court, judicial district of Waterbury, Docket No. CV96-0134840 (May 8, 2002) (Pittman, J.) ( 32 Conn. L. Rptr. 91).
The defendants Kathleen O'Keefe and Paul Sampson further seek the entry of summary judgment on count five which asserts violations of General Statutes §§ 31-71b, 31-71c, 31-71e and 31-73 related to the payment of wages and count six which asserts a violation of General Statutes § 31-76c for failure to pay overtime wages because the plaintiff has failed to proffer evidence that they possessed the ultimate authority to pay the plaintiff his wages. I concur.
General Statutes § 31-72 authorizes a civil action for double damages by an employee against an employer who fails to pay an employee wages in accordance with §§ 31-71a to 31-71i and General Statues § 31-68(a) similarly authorizes a civil action against an employer for double damages for the failure to pay overtime wages. The plaintiff seeks double damages pursuant to § 31-72 and § 31-68 for the alleged failure to properly pay him wages. He alleges in his complaint that he had an employment agreement with the corporate entity O'Keefe Associates, Inc. In Butler v. Hartford Technical Institute, Inc., 243 Conn. 454 (1997), our Supreme Court addressed the issue of whether an individual can be held personally liable pursuant to § 31-72 for the failure to pay wages. The Court concluded "that an individual personally can be liable as an employer pursuant to §§ 31-72, notwithstanding the fact that a corporation is also an employer of the claimant, if the individual is the ultimate responsible authority to set the hours of employment and to pay wages and is the specific cause of the wage violation." Id., 463-64. The plaintiff has not submitted evidence that either Kathleen O'Keefe or Paul Sampson had such authority or that either was the specific cause of the alleged wage violations.
Section 31-72 provides in relevant part: "When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court . . ."
Section 31-68(a) provides in pertinent part: "If any employee is paid by his employer less than the minimum fair wage or overtime wage to which he is entitled under sections 31-58, 31-59 and 31-60 or by virtue of a minimum fair wage order he may recover, in a civil action, twice the full amount of such minimum wage less any amount actually paid to him by the employer, with costs and such reasonable attorneys fees as may be allowed by the court . . ."
The plaintiff alleges in his complaint that the terms of his employment agreement was embodied in a letter dated April 4, 1994 to him from John O'Keefe. That letter offered the plaintiff a position with O'Keefe Associates, Inc.
John O'Keefe has submitted an affidavit in which he states that he is the CEO, President, sole shareholder and owner of O'Keefe Associates, Inc. He also states that he determined the appropriate commissions and amount of payments paid to recruiters and that, while he discussed compensation for recruiters with Paul Sampson, he possessed the ultimate decision-making authority. In response, the plaintiff has submitted evidence that Sampson participated in decisions concerning the plaintiff's compensation and that Kathleen O'Keefe was Executive Vice President, Secretary and Treasurer of O'Keefe Associates, Inc. and a member of its board of directors. Such evidence is insufficient to establish that either Paul Sampson or Kathleen O'Keefe was the ultimate responsible authority as to the payment of the plaintiff's wages or that CT Page 11768-kh either was the specific cause of the alleged wage violations and therefore personally liable for any statutory wage violations. The plaintiff also states in his affidavit that Paul Sampson and Kathleen O'Keefe together with John O'Keefe were responsible for determining how much compensation was paid to recruiters, including himself. This statement however is conclusory and the affidavit fails to provide the factual basis for this conclusion or show that it is based on the personal knowledge of the plaintiff. See Practice Book § 17-46 ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.") Since "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment," Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03 (1995), the plaintiff's unsupported conclusion will not be considered by this court. Kathleen O'Keefe and Paul Sampson are entitled to the entry of summary judgment on counts five and six as no competent evidence has been submitted by the plaintiff which would support a finding that they bore ultimate authority for paying the plaintiff his wages or that their actions were a specific cause of the alleged wage violations.
The plaintiff also asserts that Kathleen O'Keefe was an owner of the company. In support of this assertion, he submitted to the court an unsigned document purporting to be a letter from John O'Keefe with an attachment stating that Kathleen O'Keefe was an owner of O'Keefe Associates, Inc. and his own affidavit which states that Kathleen O'Keefe was an owner. The unsigned document may not be considered by the court because it has not been authenticated, New Haven v. Pantani, 89 Conn.App. 675, 679 (2005), and the affidavit is insufficient because it fails to show that this fact is based on his personal knowledge or other admissible evidence, Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03 (1995). Moreover, establishing that Kathleen O'Keefe was an owner of O'Keefe Associates, Inc. does not by itself establish that she was the ultimate responsible authority for determining the plaintiff's wages and that she was the specific cause of the alleged wage violations. Owners can and do delegate that authority to others.
The defendants further seek the entry of summary judgment on count one (breach of written contract), count two (breach of contract), count three (breach of implied contract), count four (estoppel), count five (failure to pay statutory wages), and count ten (unjust enrichment) on the grounds that each of these counts asserts claims for payment of remuneration for employment that are barred by the two-year statute of limitations contained in General Statutes § 52-596. Specifically, the defendants contend that, since the writ, summons and complaint in this case was served on the defendants in early November 2001, any claim for compensation from employment payable prior to October 31, 1999 is barred by § 52-596.
General Statutes §§ 52-596 provides: "No action for the payment of remuneration 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 pursuant to the provisions of chapter 558." Our Appellate Court has held in Burns v. Koellmer, 11 Conn.App. 375, 388 (1987), that a cause of action for payment of remuneration for employment does not arise until the employer refuses to fully compensate the plaintiff for his services. See also Warzecha v. Nutmeg Companies, Inc., 48 F.Sup.2d 151, 158 (D.Conn., 1999). Here, I do not have before me any evidence as to when the defendants rejected the plaintiff's requests CT Page 11768-ki for additional compensation. Accordingly, the defendants have not fulfilled their burden of establishing that they are entitled to the entry of summary judgment on this ground.
For the aforementioned reasons, summary judgment shall enter for all defendants on count seven (negligent misrepresentation) and count nine (invasion of privacy) and for the defendants Paul Sampson and Kathleen O'Keefe on count five (failure to pay wages) and count six (failure to pay overtime). In all other respects, the defendants' motion for summary judgment is denied.
BY THE COURT
Judge Jon M. Alander