Opinion
CV156014614S
03-16-2017
Ginamarie Hayes v. Pfizer, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT NO. 116
Edward S. Domnarski, J.
For the reasons that follow, the defendant's motion for summary judgment is granted as to all four counts of the plaintiff's complaint. Familiarity with the allegations and procedural history of the present action and with the general summary judgment standard will be presumed.
DISCUSSION
I
In count one, the plaintiff purports to state a claim for breach of contract for failure to pay her a prorated annual bonus for 2014, but she does not allege what contract, if any, the defendant is supposed to have breached. In arguing its motion for summary judgment, the defendant appears to construe the count as alleging a breach of an oral agreement reached in October of 2014, between the plaintiff and one of the defendant's human resources representatives. In opposing the motion, however, the plaintiff seems to construe the count as alleging a breach of a July 2013 employment contract between the parties. Regardless of which of these contracts forms the basis of count one, the claim fails.
To the extent the plaintiff alleges a breach of the 2013 employment contract, the undisputed evidence establishes that, although the parties did indeed enter into an express, written employment contract in 2013, this contract merely made the plaintiff eligible to receive a bonus that could be awarded on the basis of a number of discretionary factors. The defendant has submitted a copy of a July 1, 2013 letter from a recruiter for the defendant offering the plaintiff the position of district manager. See Def.'s Mem. Support Mot. Summ. J. (Def.'s Mem. Support) Ex. 10. The letter states that, at the level of district manager, " it is appropriate that a portion of your cash compensation be delivered via the Global Performance Plan (GPP)." Id., Ex. 10, p. 1. Importantly, the letter goes on to advise that the plaintiff's " annual bonus payout may vary from 0-200% of target, subject to the overall bonus pool funding based on Pfizer, Inc. performance." Id. The letter further provides that it " contains the complete terms of the [defendant's] offer of employment" and that, in order to accept the offer, the plaintiff must submit a response on the " Offer Details and Response Page" by July 8, 2013. Id., Ex. 10, p. 2.
The defendant has also submitted the affidavit of Stefanie Keyte, an employee of the defendant who is responsible for administering the defendant's incentive compensation plans, which indicates that the plaintiff accepted this offer on July 4, 2013. See id., Ex. 4, ¶ 6. The plaintiff does not dispute having received the offer letter; see Pl.'s Mem. Opp'n Mot. Summ. J. (Pl.'s Mem. Opp'n) Ex. B, 59:8-11 (Plaintiff stating at deposition, in response to question of whether she received offer letter for district manager position, " I believe I did. I must have but I don't recall"); and she has submitted no evidence to dispute having accepted it. There can thus be no dispute that the terms of the offer letter governed the plaintiff's employment. Because it was possible under the plain terms of the offer letter that the plaintiff might not receive an annual bonus for a given year, there likewise can be no dispute that the defendant was not contractually obligated to pay the plaintiff such bonus. Therefore, a claim that the defendant breached the 2013 employment contract by failing to pay the plaintiff an annual bonus would fail as a matter of law. See Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014) (" [a]n action in contract is for the breach of a duty arising out of a contract" [internal quotation marks omitted]); see, e.g., McNeff v. Vinco, Inc., 59 Conn.App. 698, 704, 757 A.2d 685 (2000) (concluding that, because subcontractor had no duty under contract with general contractor to inform general contractor of defects in work performed by other subcontractors, subcontractor could not have breached contract in this respect).
To the extent the plaintiff alleges a breach of a subsequent, oral agreement between the plaintiff and one of the defendant's human resources representatives, the undisputed evidence establishes that, even assuming the human resources representative had indeed promised the plaintiff a prorated annual bonus, the representative received nothing in consideration for this promise. In her affidavit, submitted in opposition to the defendant's motion, the plaintiff avers only that she asked the representative " if [she] would receive a pro-rated bonus if [she] left early before year end and [that she] was told that [she] would." Pl.'s Mem. Opp'n Ex. A, ¶ 10. The plaintiff does not present any evidence that, in exchange for the representative's promise, either the representative received a benefit or the plaintiff incurred a loss. There can thus be no genuine dispute that the alleged oral agreement was not supported by consideration. See Bedrick v. Bedrick, 300 Conn. 691, 704 n.5, 17 A.3d 17 (2011) (" [c]onsideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made"). Accordingly, a claim that the defendant breached this oral agreement would necessarily fail.
In sum, regardless of how the court interprets count one, the uncontroverted evidence establishes that the defendant is entitled to judgment as a matter of law.
II
In count two, the plaintiff alleges that the 2014 bonus she was due constitutes " wages" under General Statutes § 31-71a and that the defendant therefore violated General Statutes § 31-72 by failing to pay her the bonus. Because there is no genuine dispute that annual bonuses under the defendant's incentive compensation plan do not constitute wages, the plaintiff's § 31-72 claim fails.
For purposes of § 31-72, " 'wages' means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation." General Statutes § 31-71a(3). In a recent line of cases, our Supreme Court defined the circumstances under which a bonus will constitute wages under § 31-71a(3). In Weems v. Citigroup, Inc., 289 Conn. 769, 782, 961 A.2d 349 (2008), the court held in relevant part that " bonuses that are awarded solely on a discretionary basis . . . are not wages under § 31-71a(3)." Then, in Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, 588-89, 997 A.2d 453 (2010), the court clarified that, even in situations where " the payment of a bonus was contractually required and only the amount of the bonus was discretionary . . . such a bonus [still] does not constitute wages under § 31-71a(3)." (Footnote omitted.) In sum, under Weems and Ziotas, in order for a bonus to constitute " wages, " (1) payment of the bonus must be contractually required and (2) calculation of the amount of the bonus must be governed by an objective standard rather than the employer's discretion or whim. See Ass'n Res. v. Wall, 298 Conn. 145, 176, 2 A.3d 873 (2010) (" [g]uided by Ziotas and Weems, we conclude that the trial court properly determined that the bonuses in the present case were wages as defined by [§ 31-71a(3)] because, under the employment agreement, they were entirely nondiscretionary, both as to whether they would be awarded, and the amount thereof"); id., at 177, citing Fiorenti v. Central Emergency Physicians, P.L.L.C., 187 Misc.2d 805, 808-09, 723 N.Y.S.2d 851 (2001) (bonus was wage when contract set forth formula for calculating bonus that " takes into account the employee's personal productivity" by measuring contribution to billing as offset by expenses because " [t]he standard to be applied for entitlement to a bonus is objective and not subject to [the employer's] discretion or whim"), rev'd in part on other grounds, 305 App.Div.2d 453, 762 N.Y.S.2d 402 (2003).
As discussed in relation to count one, the undisputed evidence in the present case establishes that the defendant was not contractually required to pay the plaintiff any bonus, prorated or otherwise. Even if the court were to assume arguendo that the plaintiff did have a right to an annual bonus, the bonus would still not constitute " wages, " as there can be no dispute that the amount of the bonus is determined, at least in part, by subjective, discretionary considerations. Keyte avers in her affidavit that the terms and conditions associated with the plaintiff's incentive compensation plan were set out in a document entitled " The Global Performance Plan (GPP) Guide, " two versions of which were in effect during the plaintiff's employment as a manager. Def.'s Mem. Support Ex. 4, ¶ ¶ 8-9. Although the plaintiff stated at her deposition that she had never seen any incentive compensation plan documents; Pl.'s Mem. Opp'n Ex. B, 59:1-3; she did not deny the existence of such documents. Id., Ex. B, 81:15-18. Both plan guides state that the " incentive award payout is based on several factors, " including, inter alia, the employee's " individual performance against objectives, as assessed by [the employee's] manager" and " [t]he overall incentive pool funding approved by Pfizer's Compensation Committee of the Board of Directors (the [c]ommittee')." Def.'s Mem. Support Ex. 5, p. 4 (2014 version) and Ex. 6, p. 4 (2011 version). Regarding the funding of the incentive pool, both guides provide that, in addition to certain objective metrics, " the [c]ommittee may, in its sole discretion, choose to consider the favorable or unfavorable impact of material events not in management's control . . . in making a final determination of the funding of the GPP pool." (Emphasis added.) Id., Ex. 5, p. 5; see id., Ex. 6, p. 5 (using same language as later version but substituting " in its sole discretion" with " at its discretion"). Regarding assessment of employee performance, both guides provide that, although " [the employee's] manager will make a preliminary GPP incentive award recommendation based on [the employee's] target incentive and performance rating, " " [l]eadership will have the flexibility to make adjustments to" these recommendations. (Emphasis added.) Id., Ex. 5, p. 7 and Ex. 6, p. 6. It is apparent from the foregoing language that the amount of any bonus awarded under the plan was determined in part on the basis of completely subjective or discretionary considerations. The plaintiff does not offer any evidence to dispute the plan guides' description of how bonuses are calculated. Therefore, even if the plaintiff had been entitled to a bonus, such bonus still would not constitute wages.
In sum, the undisputed evidence establishes that the annual bonus at issue was neither contractually guaranteed nor calculated solely on the basis of nondiscretionary criteria. The bonus therefore cannot constitute " wages" under § 31-71a(3). Accordingly, the defendant is entitled to judgment as a matter of law on count two.
III
In count three, the plaintiff alleges that the defendant breached an implied covenant of good faith and fair dealing when it failed to pay her a prorated 2014 bonus. Because the court concludes that count three is legally insufficient, it need not consider whether the evidence submitted evinces a genuine issue of material fact.
" [A] plaintiff cannot state a claim for breach of the implied covenant simply by alleging a breach of the contract, in and of itself . . . Instead, to state a legally sufficient claim for breach of the implied covenant sounding in contract, the plaintiff must allege that the defendant acted in bad faith . . . If the plaintiff fails to set forth factual allegations that the defendant acted in bad faith, a claim for breach of the implied covenant will not lie." (Internal quotation marks omitted.) TD Bank, N.A. v. J& M Holdings, LLC, 143 Conn.App. 340, 349, 70 A.3d 156 (2013). Our Appellate Court has repeatedly recognized that claims for breach of the implied covenant are legally insufficient where the plaintiff merely alleges a breach of contract and " fail[s] to set forth any factual allegations that [the defendant], in [breaching] the agreement, committed a fraud, sought to mislead or deceive the plaintiff, acted with an improper motive, or did so with a dishonest purpose." (Emphasis in original.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 100-01, 30 A.3d 38 (2011), aff'd, 311 Conn. 123, 84 A.3d 840 (2014); see, e.g., id., 100-01 (holding claim of breach of implied covenant legally insufficient where plaintiff alleged defendant breached contract by terminating agreement but failed to allege facts indicative of bad faith); TD Bank, N.A. v. J& M Holdings, LLC, supra, 348-49. (" The defendants do not sufficiently allege a claim for breach of the covenant of good faith and fair dealing. The sixth special defense incorporates the facts alleged in the fifth special defense and adds a conclusory allegation that the actions of the plaintiff constituted a breach of the implied covenant of good faith and fair dealing. The fifth special defense states that the plaintiff agreed to modify the loan agreement if the related entity performed a certain act. The related entity performed and the bank did not perform. The sixth special defense simply realleges the breach of the modification agreement defense and does not allege facts regarding dishonesty in performance or enforcement of the contract.")
Just like the plaintiff in TD Bank, N.A. v. J& M Holdings, LLC, supra, 143 Conn.App. 340, the plaintiff in the present case incorporates into count three the facts alleged in count one and merely adds the conclusory allegation that " [the] [d]efendant's failure to pay [the] plaintiff her prorated 2014 bonus constitutes a breach of the covenant of good faith and fair dealing implied in her employment agreement with [the] defendant." Pl.'s Compl. Count 3, ¶ 15. In count one, the plaintiff does not allege any facts regarding dishonesty in the defendant's performance or enforcement of either the original employment contract or the purported, subsequent oral agreement. The plaintiff has thus failed to allege the element of bad faith necessary to support her claim of breach of the implied covenant. Consequently, the court declines to consider whether there exists an issue of material fact as to this element. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 132 Conn.App. 100-01 (holding that, where breach of implied covenant claim was " totally devoid of any factual allegations that [the defendant] acted in bad faith in [breaching] the agreement, " " the [trial] court properly declined to consider whether an issue of material fact existed as to whether the defendants had [breached] the agreement in bad faith" [emphasis in original]), citing DeCorso v. Calderaro, 118 Conn.App. 617, 622, 985 A.2d 349 (2009) (" [t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings" [internal quotation marks omitted]), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010); see also DeCorso v. Calderaro, supra, 626-27 (" it is fundamental to our law that a plaintiff's ability to recover is limited to the allegations of her complaint"). The defendant is therefore entitled to judgment as matter of law on count three.
IV
In count four, entitled promissory estoppel, the plaintiff alleges that, due in part to the human resources representative's assurance, she reasonably believed she would receive a prorated annual bonus if she left her employment prior to the end of 2014, and that she reasonably relied on this belief in deciding to leave before the new year. The plaintiff's claim fails, as there can be no genuine dispute that the assertion relied upon was not promissory in nature.
" [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 promisee 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. [1 Restatement (Second), Contracts § 90, p. 242 (1981).] A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise . . ." (Emphasis added; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003). " A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." 1 Restatement (Second), supra, § 2(1). A promise is thus distinguishable from a representation of fact, which is informational rather than promissory in nature. See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 533, 825 A.2d 72 (2003) (statement in general contractor's orientation and procedures manual given to employee of subcontractor, which stated that general contractor was charged with responsibility of maintaining a safe construction site, was " informational rather than promissory in nature" and was thus insufficient to create new contractual undertaking). Hence, our common law distinguishes between claims of estoppel founded upon a promise (promissory estoppel) and those founded upon a misrepresentation (equitable estoppel).
" [O]ur Supreme Court has underscored the fundamental difference between equitable estoppel and promissory estoppel by relying upon the second edition of American Jurisprudence. See Union Carbide Corp. v. Danbury, 257 Conn. 865, 874 n.2, 778 A.2d 204 (2001), citing 28 Am.Jur.2d 465, Estoppel and Waiver § 35 (2d Ed. 2000). The second edition of American Jurisprudence provides in particular that '[p]romissory estoppel involves a clear and definite promise while equitable estoppel involves only representations and inducements. Promissory estoppel is applicable to promises while equitable estoppel is applicable to misstatements of fact . The representations at issue in promissory estoppel go to future intent while equitable estoppel involves statements of past or present fact . . . Whereas promissory estoppel is used offensively, to create a cause of action, equitable estoppel functions defensively to bar a party from . . . instituting an action that it is entitled to institute.' . . . 28 Am.Jur.2d, supra, § 34, pp. 499-501." (Emphasis altered.) TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 339, 71 A.3d 541 (2013).
In the present case, the only evidence of the content of the plaintiff's conversation with the human resources representative is the plaintiff's own testimony. The entirety of the plaintiff's account, as stated in her affidavit, is as follows: " In October of 2014, [the plaintiff] was considering voluntarily terminating [her] employment. During the time period between October 6 and October 20, 2014, [she] reached out to a Pfizer human resource representative on the employee call line to ask questions about [her] bonus and was referred to a representative in compensation. [The plaintiff] identified [her]self as a [d]istrict [m]anager. [The plaintiff] specifically asked if [she] would receive a pro-rated bonus if [she] left early before year end and [the plaintiff] was told that [she] would in a clear and definite manner. This individual seemed knowledgeable about Pfizer policies, did not tell [the plaintiff] they would have to look into these issues or get authority to answer [her] questions. [The plaintiff] had no reason to doubt that this Pfizer representative lacked authority to speak on behalf of Pfizer or was speaking on topics that were outside the scope of their duties and responsibilities." Pl.'s Mem. Opp'n Ex. A, ¶ 10.
Although the defendant has not offered any evidence to contradict this testimony--and, thus, the court must accept it as true--the plaintiff's account is so devoid of specific facts that no reasonable fact finder would be able to conclude from it that the human resources representative's statement reflected an intent to commit to a new contractual undertaking, as opposed to a mere expression of the representative's (erroneous) interpretation of the then-existing employment contract. Indeed, it is apparent from the plaintiff's deposition that she is not claiming that the representative promised her anything but, rather, that the representative had simply given her incorrect information. See Pl.'s Mem. Opp'n Ex. B, 218:11-23 (Plaintiff testifying, in response to question of whether she claims that representative's statement was made with some improper purpose, " I don't believe anyone lied to me. I think that I was given the incorrect information that they were seeing and that was what was conveyed to me . . . I have no reason to believe any different"). Because the plaintiff has thus failed to present any evidence of a promise, her claim for promissory estoppel necessarily fails. To the extent the plaintiff would have the court construe this count as sounding in equitable estoppel rather than promissory estoppel, the court notes that such claim would fail as a matter of law because equitable estoppel is an affirmative defense, not an independent cause of action. See Dickau v. Glastonbury, 156 Conn. 437, 442, 242 A.2d 777 (1968) (holding that plaintiffs' equitable estoppel claim was without merit for several independent reasons, one of which being that " equitable estoppel is available only for protection and cannot be used as a weapon of assault" [internal quotation marks omitted]); Covey v. Comen, 46 Conn.App. 46, 49 n.5, 698 A.2d 343 (1997) (construing defendants' counterclaim of equitable estoppel as special defense because " estoppel is generally not considered a cause of action, but rather is pleaded as a special defense"); Kelley v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-08-5021701-S (August 25, 2009, Wilson, J.) (48 Conn.L.Rptr. 527, 532, ) (quoting Dickau and granting defendants' motion for summary judgment on plaintiff's equitable estoppel claim, noting that " Connecticut Superior Court judges have ruled that equitable estoppel does not constitute a proper cause of action" [internal quotation marks omitted)). The defendant is therefore entitled to judgment on count four.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted as to all four counts of the plaintiff's complaint.