Opinion
No. CV08-4010421S
March 24, 2010
MEMORANDUM OF DECISION
FACTS
The Defendant, Taylor Freezer of Connecticut, Inc. (Taylor Freezer), maintains its principal place of business at 166 Universal Drive, in North Haven, Connecticut. It is engaged in the sale and servicing of refrigeration equipment, designed for use at commercial restaurants and retail stores.
The Plaintiff, Ann Carol Maratea, was employed by the corporation at its North Haven facility between 1998, and July 11, 2008 when she was terminated from employment. The economic climate was cited as the reason for the termination.
Ann Maratea was initially hired as a dispatcher, with specific duties and responsibilities (Ex. 1). Later, at the request of the personal friend who had hired her, the late Joseph Duva, the Plaintiff agreed to perform coding and billing work.
According to the Plaintiff, because the billing department was not operating properly, she expended many hours bringing all of Taylor Freezer's accounts current, and organizing the department's files.
During the entire time she was employed by Taylor Freezer, Ann Maratea's work hours were assigned as 8 a.m. to 4:30 p.m., including one-half hour for lunch. These hours are reflected on weekly time cards which were completed for 2006 (Ex. A), 2007 (Ex. 3), and 2008 (Ex. C). There is no indication on any of the time records that the Plaintiff worked hours other than 8 a.m. to 4:30 p.m., or that accommodations were made due to unique circumstances affecting Ann Maratea.
Notwithstanding the absence of documentary evidence, the evidence reveals that Ann Maratea was given a key to the office, and routinely arrived at work prior to 8 a.m.
Testimony also revealed that she often left work prior to 4:30 p.m., particularly during the winter months. This was attributed to a medical condition, which made driving during evening hours difficult. No mention of the medical accommodation is listed in the time records.
All of the parties agree that the Plaintiff's work hours were not rigid, and that flexibility was both permitted and encouraged.
The plaintiff testified that she would begin work at approximately 6 a.m., and that she was able to work productively, before the numbers of telephone calls increased after the office was open for business. In addition to performing billing work, the Plaintiff would accept telephone calls between 6 and 8 a.m., and would give assignments to service technicians who began their work day prior to 8 a.m.
Although it was known to management personnel that Ann Maratea would arrive at 166 Universal Drive well before the official 8 a.m. start of the work day, she did not request any adjustment in her hours, or seek any additional compensation from Taylor Freezer, based upon the hours worked.
The informal arrangement seemed to be accepted, by both parties, prior to the Plaintiff's termination from employment in July of 2008.
This action was instituted to recover wages which were not paid to the Plaintiff, during her tenure with Taylor Freezer, pursuant to § 31-76c of the General Statutes. The statute reads:
No employer . . . shall employ any of his employees for a work week 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.
The Plaintiff's right to recover for wages which were not paid, is limited by the provisions of § 52-596 of the General Statutes, which reads:
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.
No complaint was filed by Ann Maratea with the Connecticut Labor Commissioner.
Because service of process of the writ, summons and complaint in this matter was effected on August 20, 2008, the Plaintiff is barred from recovering for any unpaid wages prior to August 20, 2006.
During 2006, the Plaintiff was compensated at the rate of $24.31 per hour. Her hourly rate increased to $25.04, effective August 12, 2007.
In addition to Taylor Freezer of Connecticut, Inc., the Plaintiff has also named Joseph E. Sekelsky, the President of Taylor Foods, as a defendant, in his individual capacity. Sekelsky served as President of the corporation in 2006, and was the chief executive officer when Ann Maratea was terminated from employment in 2008.
The Plaintiff seeks damages at one and one-half times her hourly rate for the overtime hours worked from August of 2006 until her date of termination. She also seeks double damages and attorneys fees, pursuant to § 31-72 of the General Statutes, and prejudgment interest, pursuant to General Statute § 37-3a.
Section 31-72, C.G.S. — "When any employer fails to pay an employee wages in accordance with the provisions of sections 71a to 76i inclusive . . . 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 . . . and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action."
Section 37-3a, C.G.S. — ". . . interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . ."
PLAINTIFF HAS PROVEN THAT SHE WAS NOT COMPENSATED FOR HOURS WORKED BETWEEN AUGUST OF 2006, AND THE DAY SHE WAS TERMINATED IN JULY OF 2008
The Plaintiff seeks to recover for overtime hours which she claims to have worked, notwithstanding the absence of any records or documents which would substantiate her claim.
Section 31-66 of the General Statutes imposes certain duties upon Connecticut employers. The statute requires each employer to:
. . . keep at his place of employment for a period of three years a true and accurate record of the hours worked by, and the wages paid by him to each employee . . .
It is clear that Exhibits A, B and C do not accurately reflect the hours worked by Ann Maratea, in that there is no mention of hours worked before 8 a.m., or any indication that the Plaintiff would leave work early during the winter months due to her medical situation.
The Court finds, based upon the evidence presented at trial, that Ann Maratea would routinely begin her work day at approximately 6 a.m., rather than the 8 a.m. starting time reflected in the weekly employee wage records.
It is further found, that during periods of the year when darkness fell early, she would leave at 4 p.m. each day. It is found that she observed this custom, between November 1 and March 1 of each year, a period of four months.
In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210 (2003), the Connecticut Supreme Court explicitly adopted a burden shifting standard announced by the United States Supreme court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), in situations where an employer's records were inaccurate or incomplete.
Schoonmaker involved a claim that an employer had failed to pay prevailing (union) wages to its employees, on a public works project. The court held that when an employer fails to comply with a statutory requirement for record keeping, and the employee is not in a position to offer any convincing substitute, if the employee proves that he performed work for which he did not receive proper compensation, the burden shifts to the employer to produce evidence to negate the reasonableness of the employee's evidence. Schoonmaker v. Lawrence Brunoli, Inc., supra, 239-40.
This is true, even though the burden of proof on the ultimate issue in the case remains with the Plaintiff.
Here, it is found that the Plaintiff, Ann Maratea, worked at Taylor Freezer between 6 a.m. and 8 a.m., notwithstanding the contrary information contained in the weekly time sheets. She has therefore proven that she worked hours for which she was not compensated. In the absence of any rebuttal evidence, the Court credits the testimony of Ann Maratea on this issue.
Section 31-76c, C.G.S. declares that no employer "shall employ" any employee for a week longer than forty hours, without compensating the employee at no less than one and one-half times his regular rate of pay. It might therefore be argued, that any work week of less than five days did not exceed the forty-hour standard.
However, given the fact that vacation time and sick time were offered as a condition of employment, hours worked during any week in which the Plaintiff worked less than five days, but worked between 6 a.m. and 8 a.m. have been counted in the award of damages to which the Plaintiff is entitled. However, the Court has awarded overtime hours only during those days which were actually worked, and has made no overtime award for vacation or sick days.
Furthermore, any days worked between November 1 and March 1 have been calculated at one and one-half hours, in light of the Plaintiff's early departures during those months.
It is found that the Plaintiff shall recover the following, pursuant to § 31-76a of the General Statutes:
PERIOD O.T. HRS. DAYS REG. PAY 172.0 86 $ 4,306.88
9-18-06 to 10-31-06 44.0 22 $ 1,069.64 10-30-06 to 12-31-06 55.5 37 $ 1,349.21 1-7-07 to 3-4-07 66.0 44 $ 1,604.46 3-5-07 to 8-5-07 208.0 104 $ 5,056.48 8-6-07 to 11-2-07 114.0 57 $ 2,854.56 11-5-07 to 12-30-07 51.0 34 $ 1,277.04 1-7-08 to 3-2-08 48.0 32 $ 1,201.92 3-3-08 to 7-13-08 TOTALS 758.5 416 $18,720.19Section 31-76 of the General Statutes mandates that an employee be paid a minimum of one and one-half times her regular salary, for hours worked in excess of 40 hours per week.
Therefore, it is found that the Plaintiff shall recover the sum of $28,082.29, or one and one-half times her regular rate of pay, calculated as follows:1.5
$18,720.19 x______ $28,080.29PLAINTIFF IS NOT ENTITLED TO RECOVER DOUBLE DAMAGES, ATTORNEYS FEES, OR PREJUDGMENT INTEREST
Ann Maratea, in addition to seeking to be compensated for the overtime hours which she worked, seeks an award of double damages and attorneys fees, pursuant to § 31-72 of the General Statutes.Section 31-72, C.G.S. provides for a discretionary award of double damages with costs and attorneys fees to employees who are successful in actions against their employers for wages. Ravetto v. Triton Tha-lassic Technologies, Inc., 285 Conn. 716, 724 (2008); Crowther v. Gerber Garment Technologies, Inc., 8 Conn.App. 254, 265-66 (1986). Although § 31-72 does not set forth a standard by which to determine whether double damages should be awarded, in particular cases, it is well established that double damages and attorneys fees are appropriate only when it has been found that the defendant acted with bad faith, arbitrariness, or unreasonableness. Saunders v. Firtel, 293 Conn. 515, 530 (2009); Schoonmaker v. Lawrence Brunoli, Inc., supra, 269; Commissioner of Labor v. Wall, 69 Conn.App. 450, 461 (2002).
Here, based upon the evidence, it is found that the Defendants, Taylor Freezer of Connecticut and Joseph Sekelsky, did not act in bad faith, in their employment relationship with the Plaintiff, Ann Maratea. Nor can it be found that the conduct of either of the defendants was arbitrary, or unreasonable.
The first claim made by the Plaintiff concerning wages which were allegedly unpaid, was made following her termination from employment in July of 2008.
It is found that the defendants were unaware of their obligation to pay additional compensation to the Plaintiff, during the decade during which she was an employee of Taylor Freezer.
Although this is not a defense to a claim by the Plaintiff for unpaid wages, it is sufficient to preclude any finding that the Plaintiff should recover double damages or attorneys fees.
The Plaintiff also seeks to impose prejudgment interest on the defendants, pursuant to § 37-3a of the General Statutes.
In order for a party to recover interest pursuant to § 37-3a, that party assumes the burden of proving that the retention of the money was wrongful, under the circumstances. Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275 (1971); Spearhead Construction Corp. v. Bianco, CT Page 7418 39 Conn.App. 122, 134-35 (1995). This requires more than a finding that the party detained money, when it should not have done so. Travelers Property Casualty Co. v. Christie, 99 Conn.App. 747, 763 (2007).
The allowance of interest as an element of damages is primarily an equitable remedy, and one made in terms of the demands of justice, rather than through the application of some arbitrary rule. McCullough v. Waterside Associates, 102 Conn.App. 23, 33 (2007). Therefore, the determination of whether monies were wrongfully detained under the circumstances is necessarily one of fact. N'oreaster Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482 (1988); Spearhead Construction Corp. v. Bianco, supra, 135.
Based upon the evidence presented in this case, and considering all of the circumstances involved, it is found that interest pursuant to § 37-3a, should not be awarded.
The employer and the employee, for many years, maintained a mutually satisfactory arrangement, that seemed to work to the advantage of both.
Both employer and employee accepted the fiction that Ann Maratea worked only between the hours of 8 a.m. and 4:30 p.m., as reflected in the weekly payment records.
Although, as previously indicated, the facts and circumstances of this case do not excuse the failure to pay wages, they mitigate against the award of prejudgment interest to the Plaintiff. It is found that the Plaintiff should not recover, and the court should not award, interest, pursuant to § 37-3a.
THE PLAINTIFF MAY NOT PREVAIL ON HER CLAIM AGAINST THE DEFENDANT JOSEPH SEKELSKY, INDIVIDUALLY
The Plaintiff seeks to impose personal liability upon the Defendant, Joseph Sekelsky, for the payment of overtime compensation which she is due.
Sekelsky served as President of Taylor Freezer during 2006 through 2008, when Ann Maratea was terminated from employment.
In order for an individual defendant to be held liable for wages, the Plaintiff must prove 1) that the individual defendant had the ultimate responsibility and authority to set the hours of employment, and to pay wages, and 2) the individual defendant was the specific cause of the wage violation. Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463-64 (1997).
Butler involved an individual who controlled virtually every aspect of the employee's work environment.
The employee was specifically urged, by the individual in question, to work long hours and to stay late. The employee had been told by the individual to expect to work long hours, possibly weekends, and was twice required by the individual to stay late, so that a project which was due the next day could be completed. Time cards were approved by the individual defendant, and only that specific individual could approve overtime compensation. Butler v. Hartford Technical Institute, Inc., supra, 264-65.
In this case, flexibility was not only permitted, it was encouraged. There was no specific requirement that Ann Maratea be at work at 6 a.m., and there was no effort to prevent her from leaving prior to 4:30 p.m., in order to attend to personal matters, or to permit her to drive only during daylight hours.
She completed her own weekly time sheets, and was not compelled to work longer hours on short notice, or to meet arbitrary deadlines imposed by Joseph Sekelsky.
The Plaintiff did not inform her employer, through Joseph Sekelsky, that she was entitled to overtime compensation, and kept no detailed records of the hours worked.
Based upon the facts presented, it cannot be found that Joseph Sekelsky was the specific cause of the wage violation which prompted this action. The arrangement with Ann Maratea existed when the late Joseph Duva played a significant role in managing Taylor Freezer, and continued during the time Sekelsky served as its President.
The facts presented at trial do not meet the Butler test, and no personal liability may attach to Joseph Sekelsky.
CONCLUSION
Judgment may enter in favor of the Plaintiff, Ann Maratea, as against the Defendant, Taylor Freezer of Connecticut, Inc., in the amount of $28,080.29.
Judgment may enter in favor of the individual defendant, Joseph Sekelsky. Costs are not awarded to any party.