Opinion
No. CV 09-6003936S
June 15, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Before the Court is a motion to strike the complaint because, as the defendant argues "while it can be alternatively characterized as sounding in breach of contract or promissory estoppel neither claim lies in the at-will employment setting present." In addition defendant moves to strike the complaint insofar as it requests reinstatement in that personal service contracts for services that are not extraordinary or unique are not specifically enforceable."
The complaint makes the following allegations:
(1)
The defendant states in its motion to strike that the complaint can be read as setting forth either a breach of contract or promissory estoppel theory. In the court's view the allegations lie in promissory estoppel. Nowhere is it stated in the complaint that the job offer was for a definite term or that the position could be terminated only for cause. In her response to the motion to strike this count, the plaintiff in effect admits it is proceeding on a promissory estopple theory since it only argued for its right to maintain that allegation without addressing the motion to strike insofar as it is directed at a breach of contract allegation.
In arguing against the plaintiff's right to bring a breach of contract claim given the facts of this case the defendant relies on Petitte v. DSL Net, Inc. 102 Conn.App. 363 (2007). That case upheld the trial court's dismissal of a breach of contract claim on a fact pattern similar to the one before the court. It did not discuss the viability of a promissory estoppel claim in a job offer situation where the plaintiff accepts the offer, resigns a job he or she held, then is told by the prospective defendant employer that the offer of hire was withdrawn. But the discussion in that case is also relevant for the promissory estoppel issue now before the court. In Petitte the offer letter said the job offer was made "contingent on the plaintiff's understanding that this letter is not a guarantee of employment for any specified length of time." It went on to say it was the company's hope that the plaintiff would have a long career with it, but then said "your employment would be `at will' which means that either you or the company can terminate your employment at any time for any reason with or without cause." The Petitte court said it was not persuaded by the plaintiff's breach of contract claim "because we agree with the trial court that the employment at will doctrine applies to all aspects of the employment relationship and is not conditional on the prospective employee actually commencing employment," id. at page 367.
Thibodeau was quoted to the effect that "in Connecticut an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. 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," 260 Conn. at 697-98.
If there is an offer to hire and employment has not begun, it is difficult to see how an employment relationship can be said to exist which is the predicate for saying it can be terminated at will. What the Petitte court apparently was addressing is an alleged contractual commitment to hire for at will employment.
From that perspective, Petitte is relevant to the defendant's promissory argument and in fact one case relied on by Petitte, Slate v. Saxon, Bertoni and Todd, 999 P.2d 1152, 166 Or.App. 1, rev. denied, 330 Or. 375 (one, 2000), not only is relevant on any claim of breach of contract claim. In Slate the court granted summary judgment on both a breach of contract claim and a promissory estoppel claim on a theory that if you cannot make one claim, how can you make the other.
In Slate the plaintiff worked as a law clerk for the defendant attorneys and after his clerkship was offered a job in December 1993. The offer was made contingent on his taking the Oregon bar and getting a juvenile court contract and a contract to represent indigent defendants reviewed. The offer was not for a fixed term and was not terminable only for cause. The plaintiff took the Oregon bar and passed but in March 1994 was told that the job offer was withdrawn.
The plaintiff made a claim in breach of contract and promissory estoppel which the court analyzed under section 90 of the Restatement (2d) of Contracts. The plaintiff under his promissory estoppel theory argued that he foregoed a chance for a more extensive job search and he did not take the Massachusetts's bar which he otherwise would have taken because he was offered a job with the defendant.
The court recognized that Section 90 of the Restatement can be invoked "if injustice can be avoided only by enforcement of (a) promise." But Slate, relying on an employment at will argument, said a promissory estoppel could not be made. Basically the court reasoned that if Slate had been hired but terminated immediately after being hired, as a result of the employment at will status, he would have incurred the same losses as he claimed after he came to work as before he came to work.
The court said there was no substantial change of position for the plaintiff and said "it is circular and not based on reality to argue, as he does, that either his reliance or his change in position was attributable to the promise of an at will employment rather than the at will contract itself;" id. page 7. The court went on to say "no injustice (referencing section 90 of the Restatement) would be avoided by allowing a party to achieve a remedy for revocation of the promise under circumstances that are logically and practically indistinguishable from a termination of the consummated contract, for which no judicial remedy were available," id. page 8 also see Rushing v. Saif, 223) Or.App 665, 196 P.3d 115 (2008), which accepts the general reasoning in Slate to the effect that in Oregon "At will employment may be terminated for any reason, or for no reason at all, and at any time — even as here before the job has begun," 223 Or.App. at p. 669.
What the defendant's position in this case, which appears to be the law in Oregon, is that promissory estoppel does not lie as a remedy in cases where, pre-employment, an at will job offer is made and then withdrawn despite the fact that the withdrawal has resulted in detrimental reliance. No Connecticut appellate cases have decided this issue although several trial courts have apparently agreed with the defendant.
First the court will briefly review the nature of a promissory estoppel claim. In our state both D'Ulisse-Cupo v. Board of Education, 202 Conn. 206, 213 (1987), and Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 475 (1980), explicitly sought to apply Section 90 of the Restatement.
Section 90 of the Restatement reads as follows:
A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
The prerequisites for application of the doctrine are discussed in the Law of Contracts, Calamari Perrillo, § 6.1, pp. 249-50.
First a promise is necessary to create promissory estoppel. Thus a statement of intent to take future action is not sufficient . . . The content of the promise must be clear. Second, the promise must be one which the promisor should reasonably anticipate will lead the promise to act or forbear; this requirement takes into account the expectations of the promisor. In addition, the promisee must be reasonable in relying on the promise. Furthermore, the reliance of the promise must be of a definite and substantial character . . . In other words, the conduct in reliance must not only be reasonable but also must be foreseeable . . . Finally, the promise will be enforced only if injustice can be avoided by the enforcement of the promise.
Certainly nothing in the language or policy behind Section 90 and the doctrine of promissory estoppel itself precludes the application of Section 90 in a case such as the one now before the court as long as its premises and requirements have been met.
This court at least does not accept an argument from the language of Thibodeau or what it believes is the conclusory reasoning of Oregon's Supreme Court in Slate so as to thereby conclude promissory estoppel could never apply in circumstances such as presented in this case, thereby warranting the granting of a motion to strike. For one thing it should be noted that Oregon itself seems to recognize the possibility that in some situations a promissory estoppel claim can be made where an offer to here is made, and the plaintiff claims detrimental reliance on the offer which is then withdrawn. The trial court in the Slate case dismissed the promissory estoppel argument by way of a motion for summary judgment not a motion to strike and the Slate court somewhat equivocally said "Assuming that promissory estoppel ever could provide a basis for recovery under circumstances of this general kind . . . it cannot here," 166 Or.App. page 7. An invitation to a factual inquiry not a motion to strike analysis. The Oregon court basically reasoned an at will situation is involved so that it would be illogical to give a job applicant more rights than employee — in other words if X had been hired and thereby resigned from a previously held job but was immediately fired no recovery could be given for detrimental harm under promissory estoppel theory so how can Y who was told he would be hired and was to start in a week and therefore resigns his current job make a claim under this tort when the job offer was withdrawn — they both suffer the same damages.
As quoted, Thibodeau at 260 Conn. pp. 697-98 says "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." (Emphasis by this court.) Can the underlined language in Thibodeau stated in a context not applicable to the situation before the court be used to arrive at the same conclusion reached by the Oregon court in Slate as regards promissory estoppel?
But the court would respectfully suggest that such a result would be flawed. There are two distinct analytical categories — rights before and rights after hiring — that cannot be bridged by conclusory reasoning. It is important to review the basis for the formulation of the employment at will doctrine and note, as Thibodeau certainly does, that it was to apply in an existing employer-employee relationship already commenced. In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 563 (1984), the court said, speaking of the doctrine:
The rule fostered in part by the predominant laissez faire philosophy of the period, reserved to the employer the absolute power to dismiss the employee, and was considered necessary to preserve the autonomy of managerial discretion in the work place and the freedom of the parties to make their own contract.
Allowing promissory estoppel to apply in a situation such as the one before the court is not violative of the purposes of the employment at will rule in the management of the work place. The plaintiff necessarily had not yet entered the particular work place when any promissory estoppel action occurred. Permitting a promissory estoppel claim would not interfere with managerial discretion in the work place — i.e. a place where people are in fact employed.
It is one thing to pay homage to laissez faire notions and managerial autonomy in running a business and quite another to say that when a person is given every reason to believe he has been hired for a job and the putative employer has every reason to know the prospective hiree would have to give up a current job in a tight economy to accept the offer, the prospective employer can escape application of promissory estoppel when the job offer is summarily withdrawn. What laissez-faire principles are involved? Employment at will cases often refer to the right of both employer to fire and employee to quit at any time for any reason. What matching right to withdraw the job offer by the prospective employer does the prospective employee have? Query can he or she collect unemployment benefits from a job he or she quits because of good faith reliance on the job offer?
This is not to say that summary judgment cannot be used to test a claim such as the one made here as opposed to a motion to strike and that the application of the tort cannot be adjusted for the employment context or even the fact that the job offer involves an employment at will context.
In other words the employer must be aware of the detriment that would be caused to the job applicant if the firm job offer is withdrawn, e.g. resignation from current job, residential move, etc. Furthermore the job offer must be unequivocal without reference to the possibility of its being withdrawn. See generally above reference to § 6.1 of Contracts by Perrillo and Calamari.
The court denies the motion to strike but would note that the court does not necessarily conclude the complaint meets all the criteria of Restatement § 90. Here, however, the motion to strike was an attack on the right to make a promissory estoppel claim not that the complaint does not set forth the factual prerequisites to such a claim.
In any event the motion to strike is denied.
(2)
The motion also seeks to strike that aspect of the claim for relief seeking the court to order reinstatement. It argues that "personal service contracts for services that are not extraordinary or unique are not specifically enforceable." The defendant refers to several Connecticut cases Burns v. Gould, 172 Conn. 210 (1977), which cites William Rogers Mfg. Co. v. Rogers, 58 Conn. 356 (1890), Mele v. High Standard Mfg. Co., 13 Conn.Sup. 47 (1944), Carter v. Bartek, 142 Conn. 448 (1955). The court found a more recent case adopting this position, Burns v. Gould, 172 Conn. 210, 215 (1977).
The plaintiff never addressed this aspect of the motion to strike in her objection to it and the court could find no reference to it in the oral argument. The court considers the opposition to this aspect of the motion as not being pursued and will grant the motion to strike the claim for reinstatement. If the plaintiff takes issue with the just stated basis of the court's ruling, the court will grant re-argument.