Opinion
No. UWY-CV-07-5006986
November 21, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
I. BACKGROUND
Initially, the Plaintiff brought various claims against Robert W. Fiondella, Sr., Robert J. Fiondella, Fiondella Insurance and Retirement Planning, Inc. (hereinafter referred to as "FIRP"), Jerob Enterprises, LLC (hereinafter referred to as "Jerob") and Wealth Management Advisors, LLC (hereinafter referred to as "WMA") arising from his alleged employment relationship with the defendants. Plaintiff claims that he was improperly terminated from his employment.
On October 17, 2008, this Court granted a Summary Judgment Motion and entered Judgment on behalf of Jerob. Thereafter, the plaintiff withdrew his cases against FIRP, WMA, and Jerob. On said date the Court also granted defendant Robert W. Fiondella's Motion to Strike certain counts of the complaint. The Court also ordered that a non-suit would enter in five days unless the Plaintiff filed an Amended Complaint which complied with prior orders entered by the Court. On October 22, 2008, the Plaintiff filed an Amended Complaint. In his Amended Complaint he alleges claims against Robert W. Fiondella, Sr. and Robert J. Fiondella. He claims in Count One a Breach of Implied Contract as to Robert W. Fiondella, Sr. In Count Two he claims a Breach of Implied Contract as to Robert J. Fiondella. In Count Three he claims Reliance against both defendants. In Count Four he claims a Failure to Pay Overtime as to both defendants.
Both defendants have moved for Summary Judgment on all counts that pertain to them. The Court heard arguments on the matter on November 17, 2008, and reserved its decision at that time.
II. DISCUSSION A. Implied Contract CT Page 18471
In both his original complaint and subsequent revised complaints the plaintiff claimed that he was hired by WMA, FIRP, or Jerob and/or Robert W. Fiondella, Sr. and/or Robert J. Fiondella to be a limo driver and property manager. He based the nature of the employment agreement on a written sheet of paper which he attached as Exhibit A to the Complaint. In his Amended Complaint dated October 22, 2008, he alleges in Count One that Robert W. Fiondella, Sr. had substantial control over plaintiff's working conditions and pay. He further alleges that Mr. Fiondella, Sr. made statements regarding plaintiff's ability to work to age 66 and committed actions concerning the terms and conditions of the employment, together with the plaintiff's acceptance of the employment, which created an implied contract of employment with Mr. Fiondella, Sr. He claims further that Mr. Fiondella, Sr. breached his implied employment contract with the plaintiff when he terminated the plaintiff without just cause on February 15, 2007. In Count Two he makes similar allegations against Robert J. Fiondella. In Count Three he claims reliance as to both defendants. In Count Four he claims that both defendants failed to pay him overtime.A principal element of the plaintiff's claim is that he was promised a job until age 66. He indicated in his deposition that he requested defendant Robert W. Fiondella, Sr. to commit to promise him a job until age 66. Yet the only answer he ever received in this regard was a statement that "we would work toward that goal."
It is established by the affidavits and exhibits attached thereto that FIRP hired the plaintiff and it controlled the hours that the plaintiff worked and the functions that he performed. FIRP controlled the plaintiff's compensation and paid the plaintiff as an employee through FIRP's payroll accounts. As the plaintiff's employer, FIRP issued to the plaintiff a W-2 Form for each of the years the plaintiff worked for FIRP. When the plaintiff became a FIRP employee, he directed that his payroll checks be directly deposited into his account by signing employee deposit forms which indicate that his employer was FIRP. In addition, when he filed for unemployment compensation, the benefits received were charged to FIRP. In his application for unemployment compensation the plaintiff stated that FIRP was his employer. He cited "lack of work" as the reason for his termination.
FIRP is wholly owned by Robert J. Fiondella. As the sole owner and operator of FIRP, Robert J. Fiondella makes all management decisions, including hiring and firing. It is a Connecticut Corporation with its principal place of business at 92 Hopmeadow Street, Simsbury, Connecticut. Mr. Robert W. Fiondella, Sr. does not have an ownership interest in FIRP.
If the pleadings and the proof submitted establish that there is no genuine issue as to any material fact preventing judgment as a matter of law, summary judgment shall enter. P.B. Sec. 17-49. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). "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." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). The moving party has the burden of showing the absence of a genuine issue of material fact, and the reviewing court must view the evidence in favor of the non-moving party. Harp v. King, 266 Conn. 747, 778 n. 36, 835 A.2d 953 (2003). However, the non-moving party cannot resist a motion for summary judgment by resting upon mere allegations, conclusions or denials; it has the burden of marshaling actual evidence to demonstrate that disputed issues exist. Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995). The plaintiff has neither submitted a brief nor affidavits in this matter.
Under Connecticut law, the existence of an employment relationship is determined under the "right to control" test. Latimer v. Administrator, 216 Conn. 237, 248, 579 A.2d 497 (1990). "The right to control test determines the relationship between a worker and a putative employer by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." Doe v. Yale Univ., 252 Conn. 641, 680-81, 748 A.2d 834 (2000). "Other relevant factors to be considered are: who selected and engaged the Plaintiff to perform the work; who furnished the tools with which the work was performed; who paid the Plaintiff his wages for the performance of his work; the amount of scale of such wages; and who had the power to fire or dismiss the Plaintiff from the work." De Paola v. New York, New Haven Hartford R.R. Co., 198 F.Sup. 12, 14 (D.Conn. 1961).
An analysis of the "right to control test" to the facts of this case makes it clear that FIRP was the plaintiff's employer. FIRP paid his wages. FIRP provided the vehicle which he drove in the performance of his duties. He managed a building which was leased by FIRP. He was sent a W-2 by FIRP. FIRP hired and fired him. When he applied for unemployment compensation he listed FIRP has his employer. Defendant Robert W. Fiondella, Sr. is not involved in FIRP. There is no allegation that the defendant Robert J. Fiondella, as the sole owner and operator of FIRP, made any statements upon which the plaintiff relied that could form an implied contract.
Assuming, arguendo, that the plaintiff were able to prove the implied contract of employment as to either or both of the defendants, such allegations "do not constitute a contractual commitment to discharge the plaintiff only for good or just cause." See Fleming v. Sedgewick James of Connecticut, Inc., Superior Court, Judicial District of Hartford, CV 94 0541429 (August 11, 1995, Corradino, J.) (promises of continued employment until plaintiff reached retirement age fail to state either an express or implied contract that alters at-will employment relationship). Plaintiff's testimony, established through his deposition, demonstrates that there was no "actual contract commitment" to employ him for any specific length or time or limit his termination to just cause. Therefore, there was no change in his at-will status. Cweklinsky v. Mobil Chemical Co., 364 F.3d 68, 77 (2d Cir. 2004) ("To establish an implied contract, one must show by a preponderance of the evidence that the other party agreed, either by words or actions or conduct, to undertake some form of actual contract commitment.").
In this case the plaintiff cannot establish that there was a meeting of the minds with either defendant from which a reasonable person could conclude that plaintiff could only be terminated for just cause. Pecoraro v. New Haven Register, 344 F.Sup.2d 840 (D.Conn. 2004). A "general assertion that an implied contract existed based upon defendant's "words, comments, and actions' without more is insufficient to establish such an undertaking or a meeting of the minds." Id. at 844. The sole phrase upon which plaintiff seeks to fashion an implied contract is we will work toward that goal." That phrase cannot represent a contractual commitment to employ plaintiff for a definite term or an agreement to limit his termination to just cause. The mere fact that the plaintiff believed the words uttered by Defendant Robert W. Fiondella, Sr. to constitute a contract limiting plaintiff's termination to just cause does not bind either defendant without some evidence that they intended to be bound by those words. Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989). The issue is not what plaintiff believed or hoped, but, rather, what the defendants agreed to perform. Plaintiff has not submitted any evidence with respect to either defendant of a meeting of the minds on the issue of just cause. See Miller v. United Technologies Corporation, Superior Court, Judicial District of New Haven, D.N. CV 94 0365249 (October 26, 2001, Jones, J.), (representation that plaintiff's job was "secure" fails to state a claim for implied contract because it does not allege that plaintiff would not be terminated without just cause); See also Manning v. Cigna Corp., 807 F.Sup. 889 (D.Conn. 1991) (granting summary judgment where employer's employee handbook contained various provisions that employer was to provide "continuous and secure employment" were insufficiently definite and promissory to form a contractual commitment.). Thus, the phrase "we will work toward that goal" is much too indefinite to form the basis of an implied contract. Further, the claimed "contract" does not begin to discuss any termination for just cause. The plaintiff was an at-will employee who could be terminated without just cause. Further, he was terminated by an employer who is no longer a party to this lawsuit.
B. Reliance
"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. A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisors could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). "Any challenged representations concerning future employment must be sufficiently promissory and definite to support contractual liability." Id. at 214. "A mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment, as opposed to expressions of intention, hope, desire or opinion." Stewart v. Cendant Mobility Serv. Corp., 267 Conn. 96, 105-06, 837 A.2d 736 (2003).
It must be emphasized that the plaintiff relies upon statements made by Robert W. Fiondella, Sr. There are no relevant statements made by Robert J. Fiondella. In addition, the statements made by Robert W. Fiondella, Sr. that they would work "toward the goal" of the plaintiff working to age 66 and that he should "have no concern" about working to that age, at best, represent "expressions of intention, hope desire, or opinion." Barbuto v. William Backus Hosp., Superior Court, Judicial District of New London at Norwich, D.N. 105452 (April 13, 1995, Hendel, J.) The statements alleged are too vague to establish liability on the basis of a promissory estoppel reliance.
C. Overtime
Absent control over an employee's rate of pay, there can be no individual liability for a wage claim. Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463-64, 704 A.2d 222 (1997). Mr. Robert W. Fiondella, Sr. was not involved with FIRP who was the plaintiff's employer. It is not alleged that Robert J. Fiondella controlled the plaintiff's rate of pay. Indeed, the plaintiff was paid by FIRP. When the plaintiff claimed unemployment compensation he claimed that FIRP was his employer. The claim for overtime should have been made against FIRP, his employer. Individuals cannot be held liable, in the absence of ultra vires allegations, for the actions of the corporation.
D. Bankruptcy
It should be noted that, just prior to the arguments in this matter, the plaintiff filed a Petition for Bankruptcy. Pursuant to Federal Statutes the filing of the bankruptcy petition operated as an automatic stay of the defendant's companion case against the plaintiff. It does not, however, operate as a stay in the plaintiff's case against the defendant. The decision whether or not to proceed with this matter will be made by the Trustee in Bankruptcy. However, there are a number of Federal cases which have allowed cases to proceed, especially at the Summary Judgment stage, in the absence of a decision from the Trustee in Bankruptcy. This Court has not received notice from the Trustee. He did not appear at the hearing. However, in view of the fact that the defendants had filed this motion prior to the Bankruptcy petition, the Court is deciding the motions at this time. If the Trustee in Bankruptcy chooses to pursue this matter he will be able to exercise his remedies on appeal. See Gordon v. Whitmore (In Re Merrick, 175 B.R. 333 (9th Cir. B.A.P. 1994); and Kilmer v. Flocar, Inc., 212 F.R.D. 66 (N.D.N.Y. 2002).
III. CONCLUSION
Based upon the foregoing reasons, the Motions for Summary Judgment on all relevant counts filed by both defendants are granted in toto. Judgment shall enter for the defendants.