Potential Employment Causes Of Action Under Connecticut Law

Potential Employment Causes Of Action Under Connecticut Law

By:         Lewis Chimes
Garrison, Levin-Epstein,Chimes,
Richardson & Fitzgerald

Attorneys representing individuals for employment claims in federal court appreciate the difficulties of pursuing those claims in that particular forum. Litigating federal claims in federal court is generally more time consuming, and often less cost effective, due to many of the filing requirements. Briefing summary judgment and preparing trial preparation orders in federal claims can be onerous. Moreover, unlike state court, where summary judgment is the exception rather than the rule, employment if federal court There is substantial Second Circuit and Connecticut District Court jurisprudence justifying resolution of employment claims at the summary judgment stage. If the case does go to trial, there is very limited voir dire. For these reasons, defendants generally remove employment cases to federal court whenever possible.

 

Connecticut statutory and common law provides an expansive range of workplace protections, with a variety of different filing and administrative requirements, statutes of limitation, and remedies. These should be included along with any federal claims when the particular claim will provide additional coverage or advantage. But more importantly, identifying the available state claims and remedies may make the need to file federal claims unnecessary (with the consent of the client), and allow the employee to keep his or her claims in the state courts.

This article summarizes the various types of state claims available, along with their elements, administrative filing requirement, and remedies. To the extent that the state law follows federal law, the differences will be highlighted.

The appendix contains various complaints for the claims discussed.

DISCRIMINATION/STATUTORY CLAIMS

1. Equal Pay Act

 

The Connecticut Equal Pay Act (Conn. Gen. Stat. §31-75, 31-76) was revised this past year. CTLA played a significant role in drafting the new legislation and lobbying for its passage. The Equal Pay Act prohibits wage disparities on the basis of sex. The old statute was of limited utility, and rarely utilized.

 

The new statute combines elements of the federal Equal Pay Act, the federal Paycheck Fairness Act, which is currently before the United States Congress, and the Lilly Ledbetter Act, which has recently been enacted. It clearly sets forth the standards, such as seniority, merit rating systems, and incentive-based compensation that allow for legitimate pay differentiation.

However, it also, facilitates enforcement when an employee makes a showing paycheck discrimination based on gender, because it places the burden on the employer to demonstrate a legitimate basis for pay differentiation.

The Act also affords a more practical remedy for victims of wage discrimination. It clarifies that they may either seek a remedy through the Department of Labor or by initiating a civil action. It also clarifies the remedies that are available through a civil action, making it a more viable alternative for victims of wage discrimination. The Act recognizes that wage discrimination is a continuing violation, and does not penalize victims who have hesitated to come forward by barring their claims for ongoing wage discrimination. The Act also recognizes that many persons will fear coming forward out of fear of retaliation, and provides a real and practical remedy for persons who have suffered retaliation for asserting claims of wage discrimination or opposing wage discrimination. The remedy provided is also cost effective, because it does not require exhaustion through either the Commission on Human Rights or the Department of Labor.

Finally, Connecticut’s Act covers many employers who are not covered by the federal Equal Pay Act, since the statute applies to all employers rather than the federal statute, which only applies to employers who have more than fifteen workers.¹ In addition, a federal equal pay claim may also not be economically feasible for many lower wage earners, so Connecticut’s Act will provide a more viable remedy for them.

A.   Elements

 

An Equal Pay Act Plaintiff makes out a prima facie case of wage discrimination on the basis of gender if the plaintiff can show:

1. different wages are paid to employees of the opposite sex;
2. the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
3. the jobs are performed under similar working conditions.

 

See Corning Glass Works v. Brennan, 417 U.S. 188, 203 fn. 24 (stating that jobs need to be substantially equal fall within the EPA); Jamilik v. Yale University 2009 WL 3228775, 1 (2d Cir. 2009); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). The issue of whether or not the positions are substantially similar is generally an issue for the trier of fact. Jamilik, 2009 WL 3228775 at 2; Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir.2001); Tomka v. Seiler, 66 F.3d 1295, 1311 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

¹ Conn. Gen. Stat. §31-71a; 42 U.S.C. § 2000e-2(h); County of Washington v. Gunther, 452 U.S. 161, 171 (1981).

Once the plaintiff makes out the prima facie case, the defendant has the burden of proving one of the four affirmative defenses. In order to overcome the plaintiff’s prima facie case, the defendant must prove by a preponderance of the evidence that the disparity in the plaintiff’s compensation was due to:

• a seniority system;
• a merit system;
• a system which measures earnings by quantity or quality of production; or
• a differential system based upon a bona fide factor other than sex, such as education, training or experience.

Under the Federal Equal Pay Act, the fourth affirmative defense had been sufficiently open-ended that it has permitted employers to avoid liability with a very cursory factual showing. Connecticut’s Equal Pay Act strengthens the federal act by incorporating the proposed amendment to this fourth affirmative defense under the Paycheck Fairness Act to limit the broad catch-all language of this defense by putting the burden on the Employer to affirmatively prove that it is not based-upon or derived from a sex-based differential in compensation, and also for the employer to prove that it is job-related and consistent with business necessity. Conn. Gen.Stat. 31-75(b)(4)(a)-(b).

B. Retaliation

 The Equal Pay Act also protects an employee who “opposed any discriminatory compensation practice or because such person has filed a complaint or testified or assisted in any proceeding.” Conn. Gen. Stat. §31-75(b).

The Equal Pay Act also protects an employee who “opposed any discriminatory compensation practice or because such person has filed a complaint or testified or assisted in any proceeding.” Conn. Gen. Stat. §31-75(b).

The elements of a retaliation claim are:

1. The plaintiff is an individual who “opposed any discriminatory compensation practice or . . . filed a complaint or testified or assisted in any proceeding;”

 

2. The employer knows that plaintiff is an individual who “opposed any discriminatory compensation practice or . . . filed a complaint or testified or assisted in any ”

 

3. The plaintiff was discriminated against or discharged because of the protected

 

C.     Forums

 Under the Amended Equal Pay Act, the plaintiff may either proceed by filing a claim directly in state court.² Alternatively, the plaintiff may pursue her claims through the Department of Labor. Conn. Gen. Stat. §31-76(b).

There is no requirement that the plaintiff exhaust her remedies either in the state labor department or the Connecticut Commission on Human Rights and Opportunities.

D.    Remedies

 Under the new Equal Pay Act, a prevailing plaintiff is entitled to the difference between the amount of wages paid and the maximum wage paid any other employee for equal work, compensatory damages, attorney’s fees and costs, punitive damages if the violation is found to be intentional or committed with reckless indifference to the employee’s rights under section 31-75, and such legal and equitable relief as the court deems just and proper. Conn. Gen. Stat. §31-76.

Most importantly, the new Equal Pay Act adopted the rationale of the federal Lilly Ledbetter Fairness Act³ and recognizes that an equal pay violation is a continuing violation. Each paycheck will not be considered a discrete act under the Connecticut Equal Pay Act. As long as any instance of the continuing conduct occurred within the statute of limitations, the plaintiff will be able to recover for the entire period that she was receiving disparate pay. Conn. Gen. Stat. §31-76©.⁴

E.    Statute of Limitation

 The statute of limitations for a violation under Connecticut’s Equal Pay Act is two years. The statute of limitations for a claim that alleges that the violation was committed with  intentional or reckless indifference to the employee’s rights is three years.

²     The plaintiff may also file in federal court if there is diversity or supplemental jurisdiction.

³     P.L. 111-2 (2009); The Lilly Ledbetter Fairness Act statutorily overruled Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007). Ledbetter held that for statute of limitations purposes, the triggering date was the date of the initial decision to pay the female employee at a lower rate of pay. Ledbetter also rejected the continuing violation theory as applies to wages under the Equal Pay Act.

⁴           This is different than how Connecticut courts have generally interpreted Connecticut’s wage statute, where each paycheck has been considered a separate cause of action. Conn. Gen. Stat. §52-596; Shortt v. New Milford Police Department, 212 Conn. 294, 298 (1989); Warzecha v. Nutmeg Companies, Inc. 48 F. Supp. 2d 151, 158 (D.Conn.,1999); Williams v. Cushman and Wakefield of Conn., Inc., 1998 WL 246493, at *2 (Conn. Super. 1998);

For purposes of calculating the statute of limitations, each discriminatory paycheck is an ongoing discriminatory act.

II.           Fair Employment Practices Act

 The Connecticut Fair Employment Practices Act (Conn. Gen. Stat. §46a-60 et seq.)(“FEPA”) is Connecticut’s general anti-discrimination statute. Substantively, proof of discrimination is done in a similar manner to the federal discrimination statutes. Com mission on Human Rights & Opportunities v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005); Ware v. State 2009 WL 3856471 *8, (Conn. App. 2009); Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998); Malasky v. Metal Products Corp., 44 Conn. App. 446, 454, 689 A.2d 1145, cert. denied, 241 Conn. 906, 695 A.2d 539 (1997). For example, Connecticut courts utilize McDonnell-Douglas analysis in determining the sufficiency of discrimination claims.

A.    Substantive Differences Between FEPA and the Federal Discrimination                 Statutes⁵

 

1. Individual Claims

 

Unlike Title VII and most of the federal discrimination statutes, an employee can bring a discrimination claim against an individual supervisor or harasser under FEPA. Conn. Gen. Stat. 46a-60(a)(5).

PRACTICE NOTE: If you plan to file a discrimination claim against an individual, you need to file a separate CHRO complaint at the time of the initial filing with the Connecticut Commission on Human Rights and Opportunities.

2.      Covered Employers

 FEPA covers all employers who employ more than three employees. Conn. Gen. Stat. 46a-51(10). This covers a much broader range of employers than Title VII or most of the other federal statutes which cove r employers with a minimum of 15 employees.

3.      Sexual Orientation

 FEPA explicitly prohibits discrimination in employment on the basis of sexual orientation. Conn. Gen. Stat. 46a-81c. Title VII does not prohibit discrimination on the basis of sexual orientation.

4.      Pregnancy Discrimination

 Unlike the federal pregnancy discrimination statute, FEPA imposes upon employers certain more explicit obligations than federal law, including:

⁵           This discussion is not all inclusive.

• an obligation to make reasonable efforts to transfer a pregnant employee to a suitable temporary position if her current position may cause injury to the employee or her fetus;
• an obligation to give notice to a pregnant employee of her right to a transfer to a temporary position;
• and the right to an immediate appeal of such a transfer.

Conn. Gen. Stat. § 46a-60(7)(E)-(G).

5.                   Disability Discrimination

A What Constitutes a Disability

 The definition of disability under FEPA is very different than the federal Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. Under FEPA, a physical disability is defined simply as “any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness . . .” Conn. Gen. Stat. 46a-51(15). “Mental disability” refers to an individual who has a record of, or is regarded as having one or more mental disorders as defined under the DSM. Conn. Gen. Stat. §46a-51(20). Historically, Connecticut’s disability statute covered a much broader protected class for persons with physical or mental disabilities than the ADA. It remains to be seen whether the recent amendments to the ADA will extend federal coverage to the same extent as coverage for persons with physical and medical disabilities under FEPA.

a.                  Reasonable Accommodation

 

Unlike the ADA, FEPA is silent about the obligation of an employer to make reasonable accommodations for persons with disabilities. Last year, the Supreme Court held that the disability provision of FEPA does incorporate the federal reasonable accommodation standard. Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 944 A.2d 925 (2008).

 

b.                  Perceived Disability

 

The ADA protects both disabled persons and non-disabled persons who are “regarded as” disabled from discrimination in the workplace. 42 U.S.C. §11202(1)©.

The Second Circuit has held that FEPA does not afford similar discrimination protectionto persons who are “regarded as” being physically disabled.⁶ Beason v. United Technologies Corp., 337 F.3d 271 (2d Cir. 2003) . Several Connecticut Superior Court judges have rejected the Second Circuit’s reasoning in Beason and sustained claims based upon a perceived physical disability. Graham v. Boehringer Ingelheim Pharmaceuticals, 2007 WL 3317528, 10 (Conn. Super., 2007); Mills v. RE/MAX Heritage 2005 WL 941400, 1 (Conn. Super.,2005) (both citing Ann Howard’s Apricots Restaurant v. Commission on Human Rights and Opportunities, 237 Conn. 209, 676 A.2d 844 (1996)). 

⁶                       FEPA’s definition of mental disability does include person perceived as having a mental disability as falling within the protected class. Conn. Gen. Stat. 46a-51(20).

6.               Age Discrimination

 

     A .Differing Standard of Proof

 

Under FEPA, the plaintiff has the burden of proving age discrimination was a motivating factor in the discharge/discipline.

Under the recent U.S. Supreme Court decision, Gross v. FBL Financial Services,⁷ an employee under the Federal Age Discrimination in Employment Act must prove that age discrimination was the “but for” cause of the adverse employment action. This heightened standard may be a reason to rely on state age claims moving forward.

B.       Damages

 

Under FEPA, a plaintiff in an age discrimination case may recover damages for emotional distress. The ADEA does not permit such recovery.

Under the federal ADEA, the plaintiff in an age discrimination case may recover liquidated double damages for their economic damages if the discrimination was wilful. FEPA does not permit such liquidated damages.

 

7.       Punitive Damages

 

Last week the Appellate Court held that punitive damages are not available in FEPA actions against the state.  Ware v. State, — A.2d————- , 2009 WL 3856471 (2009).

There remains a split as to whether FEPA permits the recovery of punitive damages for wilful or deliberately indifferent acts of discrimination as to municipalities and private employers.

Cases permitting punitive damages or implying that punitive damages are permitted:

Chopra v. General Elec. Co., 527 F. Supp.2d 230 (D. Conn. 2007); Oliver v. Cole Gift Centers, Inc., 85 F. Supp.2d 109 (D. Conn. 2000); Cantoni v. Xerox Corp., 24 Conn. L. Rptr. 38, 38 (Conn. Super. 1999).

⁷           — U.S—– , 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)

Cases denying punitive damages awards:

Shaw v. Greenwich Anesthesiology Assocs., P.C., 200 F.Supp.2d 110, (D. Conn. 2002); Peckinpaugh v. Post-Newsweek Stations Conn., Inc., 1999 WL 334838, at *4 (D.Conn. Mar.17, 1999); Roman v. Department of Corrections, 2006 WL 2556376, 42 Conn. L. Rptr. 35, (Conn.Super. 2006); Trimachi v. Connecticut Workers’ Compensation Commission, 27 Conn. L. Rptr. 469, 471 (Conn. Super. 2000); Craine v. Trinity Coll., 1999 WL 1315017, at *11 Conn.Super.), rev’d in part on other grounds, 259 Conn. 625, 791 A.2d 518 (2002).

In those cases permitting punitive damages under FEPA, the measure of punitive damages is attorney’s fees and costs. Chopra, 527 F. Supp. at 146; Oliver, 85 F. Supp. 2d 112.

B.     Available Forums

 

FEPA claims may be litigated in either the Commission on Human Rights and Opportunities or state court. Conn. Gen. Stat. §46a-82, et seq., Conn. Gen. Stat. §46a-102

PRACTICE POINTER: Never litigate claims in the CHRO. The CHRO is not authorized to award attorney’s fees, punitive damages, or emotional distress damages.

A.   Administrative Exhaustion/Statutes of Limitation

 

FEPA’s filing requirements and deadlines are a testament to judicial and administrative inefficiency and present traps for those unfamiliar with the process.

 

1. The “Normal” Path to Court

 A  An aggrieved employee must file a complaint with the CHRO within 180 days of the most recent discriminatory event. Gen. Stat. §46a-82(f).

B  The employee must allow the CHRO 210 days to “investigate” their claim prior to asking for a “release” to bring a lawsuit. Conn. Gen. Stat. §46a- 101(b). After         210 days have elapsed, the employee or their attorney may ask for a release from the Executive Director of the CHRO. 46a-101(a).

 C  The Executive Director will issue a “Release” within 10 days of a request for release, unless the case has already been scheduled for a public hearing. 46a-              101(b). The Employee must file their claim within 90 days after their receipt of the release from the Commission. §46a-101(e).

 D  The Employee must file their case within 2 years of the initial CHRO 46a-102.

2  Other Paths to Court

 A An employee may ask for the release anytime after filing the CHRO complaint and prior to the expiration of the 210 day period if the respondent agrees to jointly ask for the release. 46a-101(b).

 PERSONAL OBSERVATION: Yeah, right, that’s going to happen. An employer/potential defendant is going to voluntarily give up their statutorily permitted right to delay the filing of a lawsuit. I would be curious if anyone has escaped the CHRO early on this basis.

B Merit Assessment (“MAR”) Dismissal

 The CHRO has the authority to dismiss a case pursuant to its 90 day review. If the case is dismissed, and the employee does not request reconsideration, then the Executive Director shall issue a release to bring a suit. The employee may then file a lawsuit within 90 days after receipt fo the release. Conn. Gen. Stat. §§46a-83(b); 46a-83a.

 If, however, the employee requests reconsideration of the dismissal, then the grant of a release is only discretionary. §§46a-83a.

                  PRACTICE POINTER:     Do not fight a MAR dismissal to hard. It is                                                                the fastest way to get your case to court                                                              If the case is dismissed, do not request                                                              reconsideration Just get the release.

C CHRO Finding of Reasonable Cause

 If the CHRO makes a finding of reasonable cause, the employee has 20 days to request a release. Conn. Gen. Stat. §46a-83(d). After that the case will be scheduled for a public hearing.

D. CHRO Finding of No Reasonable Cause

 

If the CHRO investigator does a complete fact-finding and makes a finding of no reasonable cause, the case is dismissed, with no right to bring a lawsuit. Conn. Gen. Stat. §46a-83(e)

The CHRO investigator will share the proposed findings prior to formally issuing a no cause finding. An attorney who wishes to pursue a case through a lawsuit must request a release prior to the formal no cause finding.

III.    Family and Medical Leave Act

         A  Substantive Differences Between the state and federal FMLA.

1. Covered Employers 

The state FMLA covers employers who employ more than 75 employees. Conn. Gen.Stat. §31-51kk(4).

The federal FMLA covers employers who employ more than 50 or more employees within a 75 mile radius of a worksite. 29 U.S.C. §2611(4).

2.Forums

 The exclusive forum for the FMLA is the state Department of Labor. There is no private right of action in the state courts for the FMLA.

 

3. Scope of FMLA Coverage

 The state Family and Medical Leave Act protects eligible employees for up to 16 weeks of eligible family and/or medical leave over a 24 month period.. Conn. Gen. Stat. §31-51ll. Federal FMLA protects up to 16 weeks coverage for a one year period. 29 U.S.C. §2612.

4. Statute of Limitations

 An employee claiming a violation of the state FMLA must file their complaint with the Department of Labor within 180 days. A late filing will be accepted, however, if the DOL determines that there is good cause for the delay. Regs., Conn. State Agencies §31-51qq-43.

5. Damages and Remedies

 The Connecticut Department of Labor is authorized to relief that may include but is not limited to restoration of any rights, benefits, entitlements or protections afforded to the employee by the Act, reinstatement to employment, back pay and any other monetary compensation for any loss which was the direct result of the employer’s violation, discharge or discrimination.” Conn. Gen. Stat. §31-51pp; Regs., Conn. State Agencies § 31-51qq-47. This can include bonuses and commissions that the employee would have earned if they had remained employed but for the FMLA violation. Cendant Corp. v. Commissioner 2004 WL 574880, 15 (Conn.Super.,2004).⁸

Although the language in the statute is open-ended, the DOL has not interpreted it to permit an award of emotional distress damages or attorney’s fees.

⁸           In the Cendant case, the employee subsequently brought a federal FMLA claim and collected liquidated damages and was awarded attorney’s fees based upon the state court FMLA ruling. Persky v. Cendant Corp., 547 F.Supp.2d 152 (D. Conn. 2008)

IV.  State Free Speech Claims (Conn. Gen. Stat. §31-51q)

 Connecticut is the only state in the country that has statutorily extended the constitutional protections of free speech to the private sector. Conn. Gen. Stat. §31-51q “protects an employee from retaliatory discharge due to that employees’s exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and Article First, § 4, of the Connecticut constitution …Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999); Cotto United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999); DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court, but whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made necessarily involves a question of fact. Daley, 249 Conn. at 782.

In addition, the speech must not substantially or materially interfere with the employee’s bona fide job performance or the working relationship with their employer.

No Appellate Court has addressed the applicability of Garcetti v. Ceballos 457 U.S. 410, 126 S. Ct. 1951 (2006) to a 31-51q claim. Garcetti held that there is no violation of 42 U.S.C.1983 for disciplining a public official who speaks out in the course of his official duties. Those Connecticut Superior Courts that have addressed the issue have held that Garcetti is inapplicable to private employees who invoke their free speech rights relating to matters of public concern under Conn. Gen. Stat. §31-51q. Horton v. Windham Commun. Mem. Hosp., 2007 WL 1121469, at *2 -3 (Conn. Super. 2007); Lehmann v. Conn. Legal Rights Project, Inc., WL 1053941, *1 (Conn. Super. 2007); Dubowsky v. New Britain General Hosp., 2 Conn. L. Rptr. 17 (Conn. Super. 2006). But See, Schumann v. Dianon Sys., Inc., 44 Conn. L. Rptr. 195 (Conn. Super., Sept. 24, 2007) St. Fleur v. R.C. Bigelow, 2007 WL 1247306, at *2 (Conn. Super. 2007). In both cases, Judge Hiller noted the potential applicability of Garcetti, but denied summary judgment based upon the fact that there remained an issue of fact as to whether the plaintiffs were speaking out within the course of their duties.

 

A.    Damages

 A prevailing plaintiff under Conn. Gen. Stat. §31-51q is entitled to economic damages, emotional distress damages, punitive damages, when applicable, and attorney’s fees.

B.  Statute of Limitations 

A claim under Conn. Gen. Stat. §31-51q must be brought within three years.

V.   Wage Claim (Conn. Gen. §31-72, et seq.)

 A Types of Claims   

1 Unpaid Wages

Connecticut provides broad protection for unpaid wages. Wages in Connecticut include weekly compensation, commissions, and earned bonuses. Ziotas v. Reardon Law Firm, P.C., 111 Conn. App. 287, 313-14, 959 A.2d 1013 (2008). Bonuses that are purely discretionary are not covered by Connecticut’s wage statute. Weems v. Citigroup, Inc., 289 Conn. 769, 782 (2008). Severance pay and pensions are not covered by Connecticut’s wage statute.

Except for statutorily protected wages, such as minimum wages and overtime, Connecticut’s wage statutes do not create an independent cause of action; it is merely an enforcement mechanism. The determination of when wages become due is determined by reference to the employer’s commission or bonus plan. Mytych v. May Dept. Stores Co., 260 Conn. 152, 159, 793 A.2d 1068 (2002). Therefore, unvested commissions and bonuses are not protected by the wage statute.

2.     Misclassification/Overtime Claims

 

Since the revisions to the federal Fair Labor Standards Act there has been significant litigation on the federal level, and to a lesser extent on the state level, on behalf of exempt employees who have been misclassified in order to avoid the obligation of paying them overtime_.

B. Damages

 A prevailing plaintiff is entitled to any unpaid wages, liquidated double damages if the employer’s behavior is wilful, and attorney’s fees.

C. Forums

 A wage claim may be brought in the Superior Court or filed directly with the Department of Labor. There is no exhaustion requirement.

D.  Statute of Limitations

 Wage claims must be filed within two years. Each paycheck, commission, or bonus is a separate claim, and there is no continuing violation doctrine. Filing a claim with the Department of Labor tolls the statute of limitation, so any attorney investigating a potential wage claim should file with the DOL immediately.

  COMMON LAW CLAIMS

I Breach of Contract

A Oral Contracts/Implied Contracts

“[E]mployer-employee relationships not governed by express contracts involve some type of implied contract of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). An “implied contract … [may incorporate] the terms of … oral statements.” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 12-13, 662 A.2d 89 (1995). See, Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 523, 733 A.2d 197 (1999)(plaintiff allegation that the defendant’s personnel made oral statements to him when he began working for the defendant, that if he did a good job, he would have a job as long as he wished sufficient for trier of fact to find that a contract existed); Guccione v. Paley, 2006 WL 1828363 (Conn.Super. 2006)(Oral assurances to plaintiff that she would have a job “as long as she wanted it,” made to induce plaintiff to give up her other clients, who had provided her with a source of income, sufficient to support claim of implied contract); Greene v. HMP Industries, Inc. 2001 WL 950979 (Conn.Super. 2001)(Plaintiff alleged that the defendant represented to him that, if plaintiff joined defendant, his employment would be for life; he would be “set for life”; and, that defendant would at all times treat him fairly and on the same basis as if he were a member of the defendant’s immediate family).

In order for oral and written representations to be considered an implied contract, they must be clear and definite in content, and both employer and employee must manifest an intention to be bound by the oral and written representations made. The employer and employee can demonstrate their intention to be bound by the provisions of the oral and written representations by their conduct, their actions, and their words. Their intention can be inferred by considering the relationship of the parties, what each has said and done, the writings that are in evidence, and all of the surrounding circumstances. Torosyan, 234 Conn. at 8; Coelho, 208 Conn. at 133; Heller, 891 F.2d at 456; Rahmatti v. Nehri, 188 Conn. 583 (1982).

B.       Contracts Implied From Handbooks

 

Employee Handbooks are generally not considered binding employment contracts as long as employers use clear and unambiguous language disclaiming any intent for the handbook to form a contract. Gaudio 249 Conn. at 536, n. 9, Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n. 5, 520 A.2d 208 (1987).

The existence of disclaimer language in an employee handbook, does not defeat a claim for breach of an express or implied contract where other or subsequent representations have been made which are not themselves disclaimed. Torosyan v. Boehringer Ingelheim Pharmaceuticals, 234 Conn. 1, 18, 662 A. 2d 89 (1995): Rodriguez v. Host Intern., Inc., 2000 WL 1995589 (Conn.Super. 2000); Morris v. Tri-Town Teachers Credit Union, 2000 WL 1058882, (Conn. Super. 2000).

C.    Implied Contracts For Wages, Bonuses, Commissions, and Benefits

 

Torosyan indicates that implied contracts re: wages and bonuses are enforceable:

Although “all employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment”; the terms of such a contract do not typically “limit the terminability of the employee’s employment but [rather an implied contract] merely includes terms specifying wages, working hours, job responsibilities and the like. Torosyan v. Boehringer Ingleheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995). Typically, an implied contract of employment does not limit the terminability of an employee’s employment but merely includes terms specifying wages, working hours, job responsibilities and the like. Id. at 14-15.

See also, Mytych v. May Dept. Stores Co., 260 Conn. 152, 159, 793 A.2d 1068 (2002)(Allocation of employee wages left to employer-employee agreement).

D.  Statute of Limitation

 The statute of limitation for oral contracts in Connecticut is three years for oral executory contracts (contracts not yet performed by either party). Conn. Gen. Stat. §52-581. All other oral or implied contracts have a six year statute of limitations. Conn. Gen. Stat. §52-581.

E.  Damages

 Damages for breach of contract are limited to economic damages that flow from the contract. In cases claiming breach of an employment contract, the measure of damages generally are the wages and benefits that the employee earned less any subsequent earnings during the period of the contract. An employee has a duty to mitigate damages by making reasonable efforts to obtain other employment.

II.                   Promissory Estoppel

 The elements of a claim of promissory estoppel are:

1. A clear and definite promise;
2. The promise is one which a promisor would reasonably have expected to induce reliance;
3. The promise reflects a present intent to commit as opposed to a mere statement of intent to contract in the future;
4. The promisee relies upon the promise to his detriment.

Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003); Saye v. Howe, 92 Conn.App. 638, 648, 886 A.2d 1239 (2005); D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).

Whether a given representation rises to that level is a question of fact to be determined in light of the circumstances under which the representation was made. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995).

In Stewart, The plaintiff was concerned about how her employment with Cendant might be affected if her husband ultimately accepted a position with a competitor. Defendant represented that she should not be concerned and that her husband’s reemployment in the relocation services business would have no bearing on her employment with Cendant. Simon further represented Cendant’s president and chief executive officer, also wished to assure the plaintiff that she had no reason to be concerned about her continued status as a highly valued employee in the event that her husband were to become associated with a competitor. On the basis of those assurances, the plaintiff continued in her position with Cendant and did not pursue other employment opportunities. These representations were found to satisfy the elements of plaintiff’s promissory estoppel claim. Stewart, 267 Conn. 100.

A.  Statute of Limitations

claims for promissory estoppel are governed by the same three and six year statutes of limitations, under the same circumstances, as contract claims.

B. Damages

Since Promissory Estoppel is an equitable remedy, the damages are fact specific.

Ordinarily, the employee prevailing in a claim of promissory estoppel is entitled to “benefit of the bargain,” i.e. contractual damages. Torringford Farms Ass’n v. City of Torrington, 75 Conn.App. 570, 576, 816 A.2d 736 (2003). Brookridge Funding Corp. v. Northwestern Human Resources, Inc. 170 Fed.Appx. 170, 172, 2006 WL 508356, 2 (2d Cir. 2006). Connecticut thus follows the approach of the Restatement (Second) of Contracts, under which “full-scale enforcement by normal remedies is often appropriate.” Restatement (Second) of Contracts § 90 comment d.

Under certain circumstances, damages in a claim for promissory estoppel may be limited to “reliance” damages, i.e., what the plaintiff actually gave up when they relied upon the promise. Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981); see Grant v. New Departure Mfg. Co., 85 Conn. 421, 425-26, 83 A. 212 (1912); Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1272 (9th Cir.1990) (limiting plaintiff’s remedy to “reliance damages”). Goldstein v. Unilever 2004 WL 1098789, 7 (Conn.Super., 2004).

III.   NEGLIGENT MISREPRESENTATION

 

A Elements

 In Connecticut, a person 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 the loss caused to the other person by virtue of the other person’s justifiable reliance on the information, if the person who supplied the information failed to exercise reasonable care or competence in obtaining or communicating the information.

 

To establish a claim for negligent misrepresentation, plaintiff has the burden of proving three things:

A  The employer, by and through its agents, made false representations of fact to him that were material to the plaintiff’s decision to accept employment or make a decision relevant to their employment;

B The employer failed to use reasonable care in making the statements or representations to him;

©  The plaintiff reasonably relied on the statements or representations to his detriment.

Even an innocent misrepresentation of fact may be actionable If the employer know or reasonably should have known that the representation or statement was not true.

 

D’Ulisse v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987); Giametti v. Inspections, Inc., 76 Conn. App. 352, 363, 824 A.2d 1 (2003);Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998); Wright and Daly, Connecticut Jury Instructions, Section 343, pp. 523-27, Section 522, pages 778-780 (3^rd Ed. 1981); Restatement Second of Torts § 552 (1979).

Withdrawal of an at-will offer letter does not constitute negligent misrepresentation. Petitte v. DSL.net, Inc., 102 Conn.App. 363, 925 A.2d 457 (2007).

In negligent misrepresentation cases, principle of contributory negligent does not act as a complete defense; The doctrine of comparative negligence applies. Kramer v. Petisi, 285 Conn. 674, 682, 940 A.2d 800 (2008),

B.     Damages

 

Damages include losses incurred due to reasonable reliance upon any misrepresentation. This may include amounts to compensate for consequential damages which are or should have been reasonably foreseeable to be the natural and probable results of a misrepresentation. Sovereign Bank v. Licata 116 Conn.App. 483, 506, 977 A.2d 228, 245 (Conn.App.,2009).

In other contexts, Connecticut courts have permitted the award of benefit of the bargain damages in the context of a negligent misrepresentation claim. Miller v. Appleby, 183 Conn 51 (1981); Lipshie v. George M. Taylor and Son, Inc., 265 Conn. 173, 828 A.2d 110 (2003); Capital Mortg. Associates, LLC v. Hulton 2009 WL 567057 (Conn.Super. 2009).

Damages for negligent misrepresentation appear to be limited to pecuniary loss.

C. Statute of Limitations

 

The Appellate Court has held that the two year statute of limitations for negligence cases (Conn. Gen. Stat. §52-584), rather than the three years statute of limitations for other torts (Conn. Gen. Stat. §52-577). Lombard v. Edward J. Peters, Jr., P.C. 79 Conn.App. 290, 830 A.2d 346 (2003).

If your client shows up two years after his claim arose, however, a number of Superior Court decisions since Lombard, have applied the three year statute of limitations, limiting Lombard to cases involving injury to property. Baghdady v. Baghdady 2008 WL 4630487, 8 (D.Conn.,2008); Piazza, v. First American Title Ins. Co. 2007 WL 988713, 2 (D.Conn.,2007); Estate of Axelrod v. Flannery, 476 F.Supp.2d 188 (D.Conn. 2007); Larobina v. First Union National Bank, Superior Court, 37 Conn. L. Rptr. 509 (Conn. Super 2004); Larobina v. First Union National Bank, 2006 WL 437396 (Conn.Super. 2006).

IV.    Negligent Infliction of Emotional Distress

A Elements 

The elements of a claim for negligent infliction of emotional distress are:

• that the plaintiffs’ conduct created an unreasonable risk of causing her emotional distress;
• that her distress was foreseeable;
• that the distress was severe enough that it might result in illness or bodily harm; and
• that the plaintiffs’ activity proximately caused the emotional

   Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269 (2008).

Negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process. The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior. Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002); Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).

B.   Damages

 Damages for intentional infliction of emotional distress are limited to non–economic emotional distress damages proximately caused by the unreasonable conduct during the termination process. In addition, the costs of medical and psychiatric treatment related to the emotional distress may also be claimed.

C.  Statute of Limitations

 A claim for negligent infliction of emotional distress is subject to the two year statute of limitations applicable in negligence claims(Conn. Gen. Stat. §52-584). Rivera v. Double A Transportation, Inc., 248 Conn. 21, 23, 727 A.2d 204 (1999).

V.  Intentional Infliction of Emotional Distress

A Elements

 The elements of a claim for intentional infliction of emotional distress are:

• that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;
• that the conduct was extreme and outrageous;
• that the defendant’s conduct was the cause of the plaintiff’s distress; and
• that the emotional distress sustained by the plaintiff was severe.

                                  Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

Liability for intentional infliction of emotional distress requires meeting a high threshold. It requires conduct that exceeds all bounds usually tolerated by decent society. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Appleton v. Board of Education, 254 Conn. at 210-11. Physical and/or sexual abuse or harassment, and overt racist behavior are examples where courts have sustained claims of intentional infliction of emotional distress.

Unlike a claim for negligent infliction of emotional distress, a claim for intentional infliction of emotional distress is not limited to conduct during the termination process However, if the conduct results in physical injury that is compensable under the workers’ compensation statutes, then it would ordinarily be precluded.

B. Damages

 A claim for intentional infliction of emotional distress is generally for non-economic emotional distress damages, although if the plaintiff can prove that they are disabled and unable to work due to the conduct, a claim may be made for lost earnings. In addition, medical and psychiatric treatment related to the emotional distress may also be claimed.

Due to the intentional nature fo the conduct, punitive damages claims should also be made.

C.Statute of Limitations

The statute of limitations for a claim of intentional infliction of emotional distress is three years. Conn. Gen. Stat. §52-577.

VI. Wrongful Discharge

  A  Elements

Connecticut recognizes the tort of wrongful discharge when the discharge is in contravention of public policy. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980). Like statutory discrimination and retaliation statutes:

• the employee’s conduct must be protected by some public policy;
• the employer must be aware of the employee’s protected conduct;
• the employee’s discharge must be causally connected to the protected

The public policy may be inferred from state or federal law. Faulkner v. United Technologies, 240 Conn. 576 (1997). Some examples of public policy where wrongful discharge claims have been permitted where employees have claimed to have been discharged for:

1. Complaints about violations of food labeling statutes; Sheets
2. Complaints about company’s submissions of fraudulent insurance claims; Schmidt Yardney Electric Corp., 4 Conn. App. 69, 492 A.2d 512 (Conn. App. 1985).
3. Complaints about safe operation of movie theaters; Girgenti v. Cali-Con, Inc., 15 App. 130, 136-37 (Conn. App. 1988).
4. Reporting violation of Attorney Rules of Professional Conduct; Matzkin v. Delaney Zemetis, Donahue, Durham & Noonan, P.C., 39 Conn. Rptr. 627 (Conn. Super. 2005).
5. Refusal to participate in scheme to defraud the federal government; Faulkner v. United Technologies, 240 Conn. 576 (1997);
6. Cook Wrongful Discharge Claims

Discharging employees in order to avoid the vesting of important benefits has been recognized be an important public policy that permits a Sheets claim. Okon v. Medical Marketing Group, Inc., 1994 WL 463659, (Conn. Super. 1994); Cook v. Alexander & Alexander of Connecticut, Inc., 40 Conn. Sup. 246 (1985) (Employees discharged to avoid vesting of stock options and commissions found to be in violation of public policies embodied by Connecticut’s wage statutes).

Many employment bonus or commission plans require an employee to be actively employed at the time of the payout. For example, many bonus plans are paid out in the first quarter of the year after the work has been done. Cook claims are an extremely important protection because it prevents an employer from discharging an employee before an important wage or benefit, such as a bonus or commission in order having to pay out the bonus or other vesting benefit, even though the employee might not protected under Connecticut’s wage statutes.

B. Limits on Wrongful discharge Claims

 Wrongful discharge claims are limited to at-will employees. Burnham v. Karl & Gelb, P.C., supra, 252 Conn. at 159.

A wrongful discharge claim is not permitted if there is a statutory cause of action protecting employees from the wrongful conduct.  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). This is true even if the statutory remedy is not as extensive as the wrongful discharge claim. Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 699, 802 A.2d 731 (2002).

C. Damages

 An employee who prevails in a wrongful discharge claim is entitled to tort damages, i.e. economic damages (back and front pay), and non-economic damages. Punitive damages are permissible under the common law standard for punitive damages.

D. Statute of Limitations

The statute of limitations for wrongful discharge claims is three years pursuant to Conn. Gen. Stat. §52-577.

VII. Defamation

A Elements

The elements of a claim for defamation are:

• the defendant published or communicated statements;
• the statements were false; and
• the statements were defamatory or harmful to a person’s

Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27 (1995); Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 693 (1992).

In the employment context, intra-corporate communications are considered communications sufficient for a defamation claim. Torosyan.

A number of Superior Court cases have held that defamation there is a heightened specificity requirement in pleading defamation.

B.  Defenses

1. Truth is an absolute defense to
2. Absolute privileges: Statements made in court or in a judicial or quasi-judicial proceedings, legislative proceedings, or administrative proceedings are absolutely privileged.
3. Qualified Privileges: Certain types of statements have a qualified privilege. An employer whose statement is privileged is not liable for a false and defamatory statement unless the defendant through its agents communicated the defamatory statements with either:

 

A  Knowledge of their falsity; or

   B    Reckless disregard as to the truth of the defamatory statements. Recklessness requires an awareness of facts that could or would disclose the falsity of the                                 defamatory      statements to a reasonable person. Torosyan, supra, 234 Conn. at 29; Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236, (1985); Restatement                           (Second) Torts 600; Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (Conn. 1988).

In the employment context, communications within the workplace are privileged if:

A Defendants communicated all of the defamatory statements for a legitimate business purpose; Torosyan, supra, 234 Conn. at

B All of the defamatory communications were made on a proper occasion; Miles Perry 11 Conn. App. at 595; and

C Publication of all of the alleged defamatory communications were made in a proper manner to proper parties only; Bleich, supra, 196 Conn. 498; Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987).

Employee references are also privileged. Miron v. University of New Haven Police Department, 284 Conn. 35, 931 A.2d 847 (2007).

C.  Damages

 A claim of libel or slander per se permits a plaintiff to recover general tort damages, including economic damages, emotional distress damages, and damages for injury to reputation. Punitive damages may also be recovered.

[L]ibel is actionable per se if it charges improper conduct or lack of skill, honesty, or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business … Libel … is also actionable per se if it charges a crime involving moral turpitude, theft, or to which an infamous penalty is attached. Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A .2d 199 (1987).

Libel or slander per quod, on the other hand, is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication … When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . Lega Siciliana Social Club, Inc. v. St Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

VIII. Invasion of Privacy

A Types

There are four types of invasion of privacy claims: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other’s name or likeness; © unreasonable publicity given to another’s private life; (d) unreasonably places the other in a false light before the public. Goodrich v. Waterbury Republican American, 188 Conn. 107, 128, 448 A.2d 1317 (1982); Restatement (Second) Torts 652A .

In order to bring a claim for invasion of privacy by unreasonable intrusion upon the seclusion of another an invasion of privacy under the first category, an unreasonable intrusion upon the seclusion of another, the intrusion must be highly offensive to a reasonable person. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). See also Pane v. Danbury, 267 Conn. 669, 676-77, 841 A.2d 684 (2004). Such claims may include the discussion of the private sex lives or others, or unauthorized taping of conversations or wiretapping. Numerous Connecticut trial courts have held that allegations of sexual assault or sexual misconduct can support a claim of invasion of privacy under an unreasonable seclusion theory.

B. Damages

 An individual bringing an invasion of privacy claim will be entitled to general tort damages.

C. Statute of Limitations

 A claim of invasion of privacy is subject to a three year statute of limitations. Conn. Gen. Stat. §52-577.

VIII Unjust Enrichment

 Plaintiffs seeking recovery for unjust enrichment must prove “(1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006); Rossman v. Morasco 115 Conn.App. 234, 248, 974 A.2d 1, 12 (Conn.App.,2009) Unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999). Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC 114 Conn.App. 671, 678, 970 A.2d 807, 811 – 812 (Conn.App.,2009)

The terms of an express contract may preclude recognition of a claim of an implied contract. Meaney, supra, at 511.

Unjust enrichment should be pleaded as an alternative remedy in any inequitable situation where an employee who has clearly earned a benefit, i.e. a bonus, or commission, equity in the company, from work that has benefitted the employer, where other remedies are not clearly applicable.

A  Statute of Limitations

 The statute of limitations for claims of unjust enrichment claims is determined by reference to the statute of limitations of the particular facts governing the claim and what types of claims is derived from. Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 957 A.2d 836 (2008)

                                APPENDIX- Sample Complaints

FEPA/DEFAMATION

 

RETURN DATE: September 12, 2000

——————————————————-x

LAKISHA FRANKLIN,                                :                                                 SUPERIOR COURT

                                                                    :

Plaintiff,                                                      :                                                J.D. OF NEW HAVEN

                                                                    :

V.                                                                 :                                                AT NEW HAVEN

                                                                    :

    CITY OF NEW HAVEN,                          : 

   DEPARTMENT OF POLICE SERVICES :

   and SCOTT NABEL,                                :

                                                                     :

Defendants.                                                 :                                               August 18, 2000

——————————————————-x

 

COMPLAINT

1.        At all times mentioned herein, the plaintiff, Lakisha Franklin, was a resident of New Haven,
2.        Lakisha Franklin is African-American.
3.        Lakisha Franklin has no criminal
4.        At all times mentioned herein, the defendant City of New Haven was a municipality organized pursuant to the charter and ordinances of the City of New Haven and         laws of the State of Connecticut. At all times mentioned herein, the defendant, City of New Haven, maintained a Department of Police Services in order to provide           its citizens with municipal police services.
5.        At all times mentioned herein, the defendant, Scott Nabel, was the Director of Human Resources for the City of New Haven Department of Police
6.        On or about April 8, 1999, Lakisha Franklin applied for a position as an Assistant Police Dispatcher with the City of New Haven Department of Police
7.       Lakisha Franklin took and passed the City of New Haven civil service examination.
8.       Lakisha Franklin was interviewed for the position of Assistant Police Dispatcher by the defendant, Scott Nabel, on or about June 11,
9.       At the interview, defendant Nabel indicated that she would be offered the position, subject to a background
10.       On June 28, 1999, Lakisha Franklin received a letter indicating that the “Department has conducted its background investigation, and has decided not to pursue              your candidacy for the position of Dispatcher ”
11.       Shortly thereafter, Ms. Franklin contacted defendant Nabel by telephone, to question the defendant City’s failure to hire her.
12.        During the conversation, defendant Nabel indicated that she had “three strikes” against her
13.   Specifically, he indicated that she had lost her position because there was “major drug trafficking” in her house in New Haven, because she had a role in a murder,          and because she failed to disclose a prior arrest in her job
14. The allegations that defendant Nabel contended were revealed in Lakisha Franklin’s background investigation were false.
15. There was never any drug trafficking in Lakisha Franklin’s house.
16.  Lakisha Franklin never played any role in a murder; her former boyfriend was murdered and she was interviewed by the Police.
17. Lakisha Franklin never had any legal obligation to reveal her prior arrest; the case had been dismissed and sealed.
18. As a result of the false allegations that arose as a result of Lakisha Franklin’s background investigation, and improper reliance upon her failure to disclose an arrest that had previously been dismissed, Lakisha Franklin was not hired for the position of Assistant Police Dispatcher for the defendant, City of New Haven Department of Police Services.
19. As a result of the defendants improper failure to hire Lakisha Franklin, she has suffered and will continue to suffer economic loss, to wit, lost earnings and lost
20. As a result of the defendants improper failure to hire Lakisha Franklin, she has suffered emotional distress.

 

COUNT ONE            (Connecticut Fair Employment Practice Act – Failure to Hire Conn. Gen. Stat. §46a-60(1) – Defendant, City of New Haven)

21.  Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of this First Count.

22. On December 8, 1999, the plaintiff, Lakisha Franklin, filed a complaint with the Commission on Human Rights and Opportunites.

23. On June 19, 2000, the Commission on Human Rights and Opportunities has provided the plaintiff with a release to sue. Less than 90 days have elapsed since the release was issued

24  The plaintiff, Lakisha Franklin, grew up in an overwhelmingly African-American neighborhood, and most of her acquaintances were African-American.

25  The defendant, through its agents, servants, and employees, drew improper inferences based upon where she lived, and with whom she was acquainted.

26  Plaintiff’s race and color were a motivating factor in the improper inferences drawn leading to the defendant’s failure to hire the Plaintiff

27  On information and belief, white persons similarly situated to Lakisha Franklin were hired for positions with the City of New Haven, Department of Police Services

28    As a result of the improper inferences drawn on the basis of plaintiff’s race and color, plaintiff was improperly denied the position of Assistant Dispatcher

COUNT TWO           (Connecticut Fair Employment Practice Act – Failure to Hire Conn. Gen. Stat. §46a-60(5) – Defendant of Scott Nabel)

29. Paragraphs 1-28 of the First Count are incorporated by reference herein as paragraphs 1-28 of this Second Count

30. The defendant, Scott Nabel, aided, abetted, incited, compelled and/or coerced the discrimination of Lakisha Franklin on the basis of her race and Color

COUNT THREE       (Defamation – Both Defendants)

 31   Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of this Third Count.

32   False information concerning drug trafficking in plaintiff’s home, and her role in a homicide were communicated within the defendant, City of New Haven, Department of            Police Services.

33.  Defendants knew or reasonably should have known that the information communicated pertaining to drug trafficking in her home, and her alleged role in a homicide were         false

34.  The false information was damaging to Lakisha Franklin’s reputation.

35   As a result of the communication of false information concerning Lakisha Franklin, she was rejected for the position of Assistant

COUNT FOUR         (Invasion of Privacy – Both Defendants)

 36 Paragraphs 1-35 of the Third Count are incorporated by reference herein as paragraphs 1-35 of the Fourth Count.

37  Defendants’ false portrayal of Lakisha Franklin as an individual who had a role in a homicide and who lived in a home in which there was “major drug trafficking” unreasonably placed her in a false light before others.

38 Defendants’ false portrayal of Lakisha Franklin was highly offensive to a reasonable person.

39 As a result of the defendants’ conduct, Lakisha Franklin suffered humiliation and embarrassment, mental and emotional distress, personal and professional humiliation

40 As a result of defendants’ false portrayal of Lakisha Franklin, she was rejected for the position of Assistant Dispatcher.

COUNT FIVE           (42 U.S.C. §1983 – Equal Protection – Defendant, Scott Nabel)

41 Paragraphs 1-30 of the Second Count are incorporated by reference herein as paragraphs 1-30 of the Fifth Count

42 At all times mentioned herein, the defendant, Scott Nabel, was acting under color of law, to wit, municipal ordinances and state laws governing the hiring of civil service employees.

43 Defendant, Scott Nabel’s, failure to hire Lakisha Franklin as a result of improper inferences drawn from false or misleading information deprived her of rights, privileges, and immunities guaranteed by the Constitution of the United States, and the State of Connecticut, to wit, the guarantee of equal protection of the laws under the Fourteenth Amendment of the Untied States Constitution and Article 1 Section 20 of the Constitution of the United States.

COUNT SIX              (42 U.S.C. §1983 – Freedom of Intimate Association – Defendant, Scott Nabel)

44  Paragraphs 1-43 of the Fifth Count are incorporated by reference herein as paragraphs 1-43 of the Sixth Count.

45  Defendant, Scott Nabel, has subsequently attempted to justify his decision not to hire Lakisha Franklin on the basis of her “intimate association with a convicted felon”

46 Defendant, Scott Nabel’s, failure to hire Lakisha Franklin on the basis of what he claims was her alleged “intimate association with a convicted felon” deprived her of rights, privileges, and immunities guaranteed by the Constitution of the United States, to wit, the freedom of intimate association guaranteed by the Fourteenth Amendment of the United States Constitution.

COUNT SEVEN        (Negligent Infliction of Emotional Distress – Both Defendants)

 47 Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of the Seventh Count.

48 Defendants knew or should have known that their conduct involved an unreasonable risk of causing the plaintiff emotional distress.

49 Defendants knew or should have known that such emotional distress was likely to result in plaintiff’s illness or bodily harm.

50 Defendants conduct in falsely suggesting that there was major drug trafficking in Lakisha Franklin’s home, that she had a role in a homicide, and that she had improperly failed to disclose a prior arrest, in the context of a job application caused her emotional distress

CLAIM FOR RELIEF

WHEREFORE, the plaintiff claims damages in excess of fifteen thousand dollars, excluding costs, including:

1. A money judgment for compensatory damages, back pay, lost benefits and other fringe benefits and consequential damages;
2. A money judgment for physical and emotional distress suffered by the plaintiff;
3. An award of reasonable attorney’s fees and costs;
4. Punitive damages; and
5. Such other and further relief as may be just and Proper

 

    RESPECTFULLY SUBMITTED,

THE PLAINTIFF

By:                           
Lewis H. Chimes

Juris No. 303446

GARRISON, PHELAN, LEVIN-EPSTEIN

CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 (203) 777-4425

 

 

 

Please enter my appearance on behalf of the plaintiff.

ORAL CONTRACT /PROMISSORY ESTOPPEL/NEGLIGENT MISREPRESENTATION

 

RETURN DATE: August 6, 2002
FRANK DALO,	x	SUPERIOR COURT
	x
Plaintiff,	x	J.D. OF FAIRFIELD
	x
v.	x	AT BRIDGEPORT
	x
IMAGISTICS INTERNATIONAL, INC.,	x
	x
Defendant.	x	July 8, 2002

                                                                                    x

COMPLAINT

 

• PARTIES

1. The plaintiff, Frank Dalo, is a resident of Mahopac, New York.

 

2. The defendant, Imagistics International, Inc., is a company which is authorized to do business in the State of Connecticut and maintains a business facility at 100 Oakview Drive, in Trumbull, CT.

II. FACTS

 

3. Plaintiff was hired by the defendant as a salesman, in 1992. At the time, defendant was known as Pitney Bowes but, as a result of a corporate spinoff, defendant subsequently became known as Imagistics International,Inc.
4. A major aspect of plaintiff’s job is selling and servicing photocopiers. At all times during the course of his employment, plaintiff performed his job in a satisfactory manner
5. Although he started with no base accounts, plaintiff built his own territory and has maintained good relations with his customer base
6. One of the customers that plaintiff recruited and served was Verizon. From 1998 through the present, plaintiff had performed a substantial amount of work on the Verizon account and was responsible for placing approximately 3,250 photocopiers with Verizon. Plaintiff’s efforts have and will continue to generate a significant amount of revenue for defendant over the next three years.
7. Under the commission plan that existed at the time, plaintiff was due to receive a very large commission for his efforts on the Verizon account
8. After a letter of intent was signed by Verizon, defendant imposed a single account commissions cap. Although the cap was said to be company wide, it really only affected plaintiff.
9. After the cap was imposed, plaintiff expressed concerns to Joseph Higgins (VP, Sales/ National Account). More specifically, plaintiff told them that he thought the cap was unfair and directed at him.
10. In response, plaintiff was assured that the cap was not specifically addressed at him and was promised that, with respect to the Verizon account, the company would pay him in excess of the newly imposed cap. When plaintiff asked what percentage the company was willing to pay him above the cap, Mr. Higgins told him it could be as much as fifty to seventy cents on the dollar (in terms of dollars, this translated into approximately $107,390.00).
11. Based on this representation, plaintiff incurred certain financial obligations
12. On September 4, 2001, when plaintiff reached the $200,000.00 cap on commissions, he had a follow-up conversation with Mr. Higgins reminding him of defendant’s promise to pay him above the commissions cap. During the conversation, Mr. Higgins confirmed that defendant would pay plaintiff an amount above the cap but told him that he could not quantify the exact amount until October, 2001.
13. Although plaintiff expressed displeasure with the delay, he agreed to wait until October,2001.
14. Following his September 4^th conversation with Mr. Higgins, plaintiff sent an e-mail to Mr. Higgins, confirming the substance of their conversation. Mr. Higgins subsequently replied to plaintiff’s e-mail on September 10, 2001, with a carbon copy to Christopher Goodwin (Regional Vice President).
15. In his e-mail reply, Mr. Higgins confirmed defendant’s promise to pay plaintiff above the cap and stated “[i]t has always been my intent to pay you over the cap but not until all factors are evaluated.” Mr. Higgins’ e-mail message indicated that there was apparently some confusion as to the date on which the exact amount to be paid to plaintiff would be quantified.
16. Higgins’ e-mail informed plaintiff that “you have my guarantee that as soon as we see September’s results for all areas we will get you a response. It will be a partial solution as we will wait, as we do for everyone else, for year end results for a final exception solution.” The message further stated that “we have every intention of granting a commission plan exception in regards to your payment on Verizon.”
17. Thereafter, at the end of the year, plaintiff had a follow-up conversation with Higgins and was told that Joe Skrzypczak and Mark Breslawsky had not approved any additional money to be paid to him due to a volume and profitability report that Mr. Skrzypczak had run. This was the first time that the Company had indicated that it would not honor its commitment to plaintiff.

 

III.       COUNT ONE– BREACH OF CONTRACT

 

18 . The statements made by defendant’s agents and representatives created a contract between plaintiff and Defendants.

19  In reliance on the agreement, plaintiff continued to remain employed by the defendant.

20   Defendant breached its agreement with the plaintiff, thereby causing plaintiff harm.

 

IV.     COUNT TWO– PROMISSORY ESTOPPEL

 

21  Paragraphs 1 through 17 are hereby reincorporated the same as if fully pled in this Second Count

22 During the course of plaintiff’s employment, defendant, by and through its agents and representatives, promised plaintiff that he would be paid an amount above a newly instituted commissions cap. Defendant told plaintiff that he would be paid as much as fifty cents to seventy cents on the dollar above the cap.

23 Plaintiff relied upon defendant’s promises by continuing to work for the defendant company and by incurring certain financial obligations in anticipation of the promised

24 Defendant failed to honor its promises to Plaintiff

25 Plaintiff suffered economic and emotional harm as a result of his reliance on defendant’s Promises.

v.     COUNT THREE– NEGLIGENT MISREPRESENTATION.

 

26.  Paragraphs 1 through 17 are hereby reincorporated the same as if fully pled in this Third Count.

27. During the course of plaintiff’s employment with the defendant company,defendant’s agents made factual representations to plaintiff that he would be paid above and beyond a newly instituted cap on commissions.

28. These factual statements were false and defendant acted negligently in communicating the statements to plaintiff

29.  Plaintiff reasonably relied upon these factual statements to his detriment by remaining employed by defendant and by incurring financial obligations in anticipation of the money he had been promised.

30 Plaintiff suffered economic and emotional harm as a result of defendant’s false Statements

                WHEREFORE, the plaintiff respectfully prays that this Court take jurisdiction over this case and grant judgment against the defendant. Plaintiff pays that the following relief be ordered:

A   declaratory judgment that defendant breached its contract with plaintiff, pursuant to Count One;

B   that plaintiff be awarded the economic losses that he has suffered to date;

C  that plaintiff be awarded damages for emotional harm suffered under Counts Two and Three;

D  that plaintiff be granted such other relief as the Court deems appropriate.

RESPECTFULLY SUBMITTED,

THE PLAINTIFF,

 

 

 

By:                                                                                                  

Robert A. Richardson – #405610 GARRISON, LEVIN-EPSTEIN,

CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 Ph: (203) 777-4425

Fax: (203) 776-3965

[email protected]

 

 

RETURN DATE: August 6, 2002
FRANK DALO,	x	SUPERIOR COURT
	x
Plaintiff,	x	J.D. OF FAIRFIELD
	x
v.	x	AT BRIDGEPORT
	x
IMAGISTICS INTERNATIONAL, INC.,	x
	x
Defendant.	x	July 8, 2002

                                                                                    x

 

STATEMENT OF AMOUNT IN DEMAND

 

“The amount in demand is in excess of Fifteen Thousand ($15,000.00) Dollars.

 

 

 

 

 

RESPECTFULLY SUBMITTED,

THE PLAINTIFF,

By:                                                   

Robert A. Richardson – #405610.

 

 

GARRISON, LEVIN-EPSTEIN, CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 Ph: (203) 777-4425

Fax: (203) 776-3965

[email protected]

 

BREACH OF CONTRACT/NEGLIGENT MISREPRESENTATION/WAGE CLAIM/COOK WRONGFUL DISCHARGE CLAIM CLAIM

 

RETURN DATE:

                                                          x

JOHN HANNON,                               :           SUPERIOR COURT

Plaintiff,                                  :

:           JUDICIAL DISTRICT OF WATERBURY

1. :

:

CARRIER ACCESS CORP.,             :

TURIN NETWORKS, INC., and      :

1998 CARRIER ACCESS                  :

STOCK INCENTIVE PLAN,             :                                                            :

:           February 14, 2008

Defendants.                                                :

                                                          x

 

COMPLAINT

  VI. Plaintiff John Hannon (“Hannon”), a former employee of Carrier Access Corporation (“Carrier”), brings this claim to redress his wrongful discharge in violation of public policy, breach of contract, and associated common law tort claims, under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1132(a)(1)(B) et seq., and §1140 et seq.

VII Hannon is a United States citizen who resides in Woodbury, Connecticut.

VII Defendant Carrier Access Corporation (“Carrier”) is a publicly-traded Delaware corporation with its principal place of business at 5395 Pearl Parkway, Boulder, Colorado.

IX At all times mentioned herein, the defendant Carrier Access Corporation maintained an employee benefit plan, to wit, the 1998 Carrier Access Stock Incentive Plan for the benefit and as an incentive for its employees, including the plaintiff. The 1998 Carrier Access Stock Incentive Plan is a welfare benefit plan within the meaning of ERISA, 29 U.S.C. §1002(1). A copy of the complete Severance plan is attached as Exhibit A

X Defendant Turin Networks (“Turin”) is a private Delaware corporation with its principal place of business at 1415 North McDowell Boulevard, Petaluma, California.

XI On December 17, 2007, Turin agreed to purchase Carrier in a cash-for-stock On information and belief, the sale was finalized on February 8, 2008.

XII Turin is the successor in interest to all the assets and liabilities of Carrier.

XIII Hannon formerly was the Chief Financial Officer and a principal of Mangrove Systems. (“Mangrove”), based in Wallingford, Connecticut. Mangrove manufactured computer networking equipment.

XIV On or about February 27, 2007, Carrier acquired the assets of Mangrove Systems.

XV On February 28, 2007, and as required by the asset purchase agreement between Carrier and Mangrove Systems, Carrier executed an employment agreement with Hannon (“the February contract”). Under the February contract, Hannon became Vice President- Integration of Carrier and remained based in Wallingford.

XVI The February contract provided for Hannon’s continued employment with Carrier for a term of one year, except that the company could terminate the agreement at any time for cause, or without cause upon sixty days’ advance written notice. If the contract was terminated without notice, Hannon was entitled under the contract to be paid for the remaining term of the contract (e., through February 28, 2008).

XVII Hannon’s February 28, 2007 employment contract also included stock options and an incentive bonus.

XVIII Paragraph 4(b) of the February 28, 2007 contract provided:

Mutually Agreed Termination: After six months of employment, we will review your employment status. If you and Carrier Access mutually agree that your services are no longer needed or Carrier Access does not offer you an equivalent job, you will receive a severance equal to six months of your base pay. Equivalent job is defined as a job with a vice president title with comparable scope, responsibility and authority.

XIX Between February and August 2007, Hannon assumed his responsibilities as Vice President-Integration of Carrier. In that position, he supervised 25 employees and had direct responsibility and authority for the Edgeflex product line.

XX On August 28, 2007, Carrier and Hannon had their six month review as provided under his employment agreement.

XXI Carrier offered Hannon a revised employment agreement (“the August proposal”). The August proposal offered Hannon the title of Vice President – Business Development, which was an entirely new position to Hannon. Hannon had no prior marketing or sales experience. In contrast to Hannon’s prior position, as Vice President-Business Development he would have no direct reports and no product development responsibility or authority.

XXII The August proposal did not offer Hannon an equivalent job, and for that reason Hannon’s right to six months’ severance under the February 28, 2007 contract ¶4(b) was triggered.

XXIII Carrier’s initial proposal in August would have continued the prior severance agreement, namely that Hannon would only be entitled to severance through February 28, 2008 if discharged prior to that date.

XXIV  Hannon requested, and Carrier subsequently agreed, however, that Hannon would receive a six month severance no matter what the date of termination.

XXV  The new severance agreement was material to Hannon’s decision to accept the new position and in his continued employment at Carrier.

XXVI The August proposal also specified that Hannon would receive a bonus in the amount of 30% of his base salary if he booked sales of Edgeflex exceeding $1 million in calendar year 2007.

XXVII Hannon booked sales of Edgeflex exceeding $1 million in 2007.

XXVIII In the August proposal, Hannon was given 10,000 restricted stock shares that were scheduled to vest over the next three years. Additionally, under the August proposal Hannon was granted an additional 21,000 performance-based restricted stock shares, with two separate milestone criteria for vesting. At the time of his discharge, 13,000 of these shares remained unvested.

XXIX. On December 15, 2007 Turin Networks, Inc. entered into an agreement to acquire Carrier

Turin was a privately-held corporation, and agreed to pay $2.60 per share for all of Carrier’s outstanding stock. The acquisition was finalized on Febraury 8, 2008.

XXX. Four days later, Mr. Hannon was terminated effective December 19, 2007, allegedly “due to a change in business circumstances” and a “reduction in  force”

XXXI. Carrier did not pay Hannon’s six months severance.

XXXII. The sale of Carrier constituted a change of control under Carrier’s restricted stock plan and agreement. This resulted in the immediate vesting of Hannon’s remaining 23,000 shares with a total value of $59,000.

XXXIII. During the negotiations for the sale of Carrier to Turin, representatives of Turin initially indicated that they did not wish to purchase the former Mangrove business unit

XXXIV. Carrier’s CEO approached Hannon and promised that Carrier would pay Hannon $50,000 if Hannon could find a buyer for the Mangrove business unit (“finder’s fee”).

XXXV. Hannon found two companies willing to buy Mangrove and began the due diligence process.

XXXVI. Turin indicated that it viewed Mangrove as a potential competitor for its own products, and it did not want Mangrove sold. Thereafter, Carrier decided to shut down the former Mangrove unit.

XXXVII. Although Hannon had produced willing buyers for Mangrove, Carrier did not honor its promise to pay Hannon a finder’s fee

COUNT ONE: BREACH OF CONTRACT (SEVERANCE PAY) XXXVIII. Paragraphs 1 through 32 are hereby incorporated by refernce.

XXXIX. Carrier and Hannon entered into an agreement that if Carrier terminated Hannon without cause prior to February 28, 2008, Carrier would pay Hannon six months’ salary as severance.

XL The consideration for this agreement was Hannon’s agreement to assume the reduced position of Vice President-Business Development, rather than exercising his right under the February 2007 contract to an immediate severance payment of six months’ salary.

XLI. Carrier terminated Hannon without cause, effective December 19, 2007.

XLII. Based upon the parties’ agreement, Carrier was obligated to pay Hannon six months’ severance, in the amount of $100,000.

XLIII. Defendants failed to pay Hannon his severance package owed and owing, in violation of the parties’ agreement.

XLIV.  Hannon has suffered pecuniary loss in the amount of $100,000 as a result of the defendants’ breach.

COUNT TWO: BREACH OF CONTRACT (BONUS) XLV.   Paragraphs 1 through 39 are hereby incorporated by reference.

XLVI.   Carrier and Hannon entered into an agreement that if Hannon booked $1 million in sales of the Edgeflex product during calendar year 2007, he would be paid a bonus of $30,000.

XLVII. Hannon booked at least $1 million in sales of Edgeflex during 2007.

XLVIII.  Carrier failed to pay Hannon his $30,000 bonus, in violation of the parties’ contract.

XLIX. Hannon has suffered pecuniary loss in the amount of $30,000 as a result of the defendants’ breach

COUNT THREE: BREACH OF CONTRACT (STOCK OPTIONS). L. Paragraphs 1 through 44 are hereby incorporated by refernce.

LI. In the August proposal, Carrier promised Hannon a total of 31,000 of stock options to vest at various points in 2007. The terms of the stock option plan provided that the options would vest immediately upon a change in control of Carrier.

LII. On or about December 15, 2007, Turin agreed to acquire Carrier for the price of $2.60 per share, thus effecting a change in control. Hannon’s stock options were vested as of this date.

LIII. Hannon was terminated effective December 19, 2007.

LIV.  At the time of his discharge, 13,000 of Hannon’s options remained unexercised.

LV. However, Carrier has refused to allow Hannon to exercise these options.

LVI. Hannon has suffered pecuniary loss of approximately $59,000 as a result of the defendants’ breach.

COUNT FOUR: BREACH OF CONTRACT (PURCHASE OF MANGROVE) LVII. Paragraphs 1 through 51 are hereby incorporated by reference.

LVIII. Carrier promised to pay Hannon a finder’s fee of $50,000 if he found a company that was ready, willing and able to purchase the Mangrove business unit of Carrier.

LIX.  Hannon found a company ready, willing and able to purchase the Mangrove business unit, and began the due diligence process.

LX. However, Turin then decided it did not want Mangrove sold, and the defendants refused to pay Hannon the finder’s fee on which the parties had agreed.

LXI.  annon has suffered pecuniary loss of approximately $50,000 as a result of the defendants’ breach.

    COUNT FIVE: NEGLIGENT MISREPRESENTATION LXII. Paragraphs                  through      are hereby incorporated by reference.

LXIII.  Carrier promised to pay Hannon six months’ salary as severance if he were terminated without cause between August 28, 2007 and February 28, 2008.

LXIV. Carrier promised to pay Hannon a bonus of $30,000 if he closed more than $1 million in sales of Edgeflex in calendar year 2007.

LXV.  Carrier promised Hannon stock options if he accepted a new position with the company as of August 2007, and promised that those options would vest upon a change in control of the company.

LXVI.    Carrier promised to pay Hannon a finder’s fee of $50,000 if he found a purchaser ready, willing and able to purchase the Mangrove business unit.

LXVII. Hannon reasonably relied on the above promises, to his detriment. lxviii. Defendants have failed to keep their promises.

. LXVIII. Defendants have failed to keep their promises.

LXIX. As a result of defendants’ failure to keep their promises, Hannon has suffered pecuniary loss.

COUNT SIX: WAGE CLAIM (Conn. Gen. Stat. ‘ 31-72 et seq.)(Bonus) LXX. Paragraphs 1 through 64 are hereby incorporated by reference.

LXXI.  The bonus owed by the defendants to Hannon constitutes wages as that term is defined under Conn. Gen. Stat. ’31-71a(3).

LXXII. Defendants have failed to pay Hannon his earned bonus.

LXIII.   Defendants’ failure to pay Hannon his earned bonus violates Conn. Gen. Stat. ‘ 31-71b. lxxiv. Hannon has suffered pecuniary loss as a result of defendants’ actions.

LXIV. Hannon has suffered pecuniary loss as a result of defendants’ actions.

COUNT SEVEN: WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY LXV Paragraphs 1 through 69 are hereby incorporated by reference.

LXVI. . Hannon was entitled to immediate vesting of his remaining restricted stock upon Turin’s agreement to acquire Carrier on December 15, 2007.

LXVII. Ratification of the agreement was not scheduled until February 8, 2008.

LXVIII.  Defendants discharged Hannon on December 19, 2007.

LXIX.   Defendants manipulated the timing of Hannon’s discharge to avoid the vesting of his remaining restricted stock.

LXXX.    There are strong federal and state public policies protecting wages and earned bonuses.  See Connecticut Wage Statutes, Conn. Gen. Stat. ‘ 31-71a et seq.; Fair Labor Standards Act, 29 U.S.C. ‘ 201 et seq.

LXXXI. These statutes represent a public policy against discharging employees to avoid payment of monies otherwise due to employees by employers.

 

LXXXII.  The timing of Hannon’s discharge in December 2007 to avoid payment of his 2007 bonus and stock options that would have vested upon completion of Carrier’s sale to Turin constituted a wrongful discharge in violation of public policy.

LXXXIII.    Hannon has suffered pecuniary and compensatory loss as a result of his wrongful discharge.

COUNT EIGHT: (Denial of Benefits under Severance Plan, 29 U.S.C. §1132(a)(1)(B))

LXXXIV. Paragraphs 1 – 78 are hereby incorporated by reference.

LXXXV. The defendants breached their obligations to the plaintiff under the provisions of his August 2007 restricted stock grant and the 1998 Carrier Access Stock Incentive Plan

LXXXVI. Plaintiffs have exhausted their administrative remedies under the 1998 Carrier Access Stock Incentive Plan.

LXXXVII.  29 U.S.C. §1132(a)(1)(B) entitles plaintiffs to enforce their right to benefits under the 1998 Carrier Access Stock Incentive Plan.

 

COUNT NINE: (ERISA §510 Claim – 29 U.S.C. §1140) LXXXVIII.       Paragraphs 1 – 82 are hereby incorporated by reference.

LXXXIX.     Plaintiff was entitled to benefits protected under ERISA.

LXXXX. The defendants, through their agents, servants, and/or employees, interfered with the plaintiffs efforts to obtain benefits protected under ERISA, to wit, his restricted stock, by terminating his employment prior to the final vote on Turin’s acquisition of Carrier in order to attempt to avoid the vesting of his restricted stock.

CLAIM FOR RELIEF

 

Wherefore, the plaintiff requests damages in excess of $15,000, double damages pursuant to Conn. Gen. Stat. §31-72, reasonable attorney=s fees and costs incurred in connection with this action, and such other additional and alternative relief as may appear to this Court to be just and equitable.

THE PLAINTIFF, John Hannon

 

 

 

 

BY:                

Lewis H. Chimes Juris 303446 Alexandra K. Block Juris

GARRISON, LEVIN-EPSTEIN, CHIMES & RICHARDSON

405 Orange Street New Haven, CT 06511 Tel. (203) 777-4425

Fax (203) 776-3965

[email protected] [email protected]

 

 

 

 

PLEASE ENTER OUR APPEARANCES ON BEHALF OF THE PLAINTIFF

 

31-51Q CLAIM (COUNT SIX); WRONGFUL DISCHARGE (COUNT SEVEN)

 

 

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES ex rel.                              :

1. RICHARD WEST and :
2. RICHARD WEST, individually : CIVIL NO. 3:04-CV-212 (JBA)

Plaintiffs                                 :

:

1. :

:

TIMEX CORPORATION                              :

Defendant                               :                                                JULY 18, 2005

                                                                        :

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Introduction

 

1. Richard West brings this action on behalf of the United States of America against defendant Timex Corporation for treble damages and civil penalties arising from defendant’s false statements and false claims in violation of the Civil False Claims Act, 31 U.S.C. §§ 3729 et seq. The violations arise out of false “most favorable price” certifications and warranties in Timex contracts with the United States Government, including the Army and Air Force Exchange Service (AAFES), Navy Exchange Service Command (NEXCOM) and Marine Corps Exchange (MCX). West also brings “whistleblower” claims under the False Claims Act, a free speech claim under Connecticut General Statutes, and a common law claim.

1. As required by the False Claims Act, 31 U.S.C. § 3730(b)(2), West has provided to the Attorney General of the United States and to the United States Attorney for the District of Connecticut a statement of all material evidence and information related to the complaint. This disclosure statement is supported by substantially all material evidence known to relator at his filing establishing the existence of defendant’s false claims. Because the statement includes attorney-client communications and work product of relator’s attorneys, and is submitted to the Attorney General and to the United States Attorney in their capacity as potential co-counsel in the litigation, West understands this disclosure to be confidential.

Jurisdiction III.  Counts one through five of this action arise under the False Claims Act, 31 S.C. § 3729 et seq. This Court has jurisdiction over these counts pursuant to 31 U.S.C. §§ 3732(a) and 3730(b). This court also has jurisdiction over these counts pursuant to 28 U.S.C. §§ 1345 and 1331. This Court has jurisdiction over counts six and seven pursuant to 28 U.S.C. §§ 1332(a)(1) and 1367(a).

IV. Venue is proper in this District pursuant to 31 U.S.C. § 3732(a), because the acts proscribed by 31 U.S.C. §§ 3729 et seq. and complained of herein took place in this District, and is also proper pursuant to 28 U.S.C. § 1391(b) and (c), because at all times material and relevant, Timex transacts and transacted business in this District.

Parties

V. Richard West is a citizen of the United States and a resident of the State of Texas. From 1994 to 2003, he was the Military Account Sales Manager for Timex. West brings this action based on his direct, independent, and personal knowledge and also on information and belief.

VI. West is an original source of this information to the United States. He has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under the False Claims Act which is based on the information

VII. Timex is a Delaware private stock corporation with headquarters located at 550 Christian Road, Middlebury, Connecticut. Timex makes and sells watches.

Facts Common to All Counts

Timex Sales to the United States Military Exchanges

VIII. Timex has been selling watches to the U.S. military exchange services for over fifty years.

IX. Since May 1958, Timex has used a manufacturer’s sales representative, C. Lloyd Johnson Co., Inc. (CLJ).

X. Timex ships watches to CLJ’s Norfolk, Virginia warehouse from the Timex factory in Cebu,Philippines.

XI. Each branch of the United States military has an exchange service: the Army and Air Force Exchange Service (AAFES), the Navy Exchange Command (NEXCOM), and the Marine Corp Exchange (MCX). The Coast Guard Exchange System (CGES) serves the Coast Guard. The exchanges buy goods and services for resale to active duty personnel and their dependants, military and Coast Guard retirees and their dependents, and exchange civilian employees. A large portion of the exchanges’ net profits fund Morale, Well-being and Recreation (MWR) spending for active duty personnel. There are about 450 base exchanges around the globe, and about 800 total exchange posts altogether, including temporary exchanges in forward military bases.

XII. The exchanges are integral parts of their respective departments. For instance, AAFES is a joint command of the Army and Air Force, under the jurisdiction of the Chiefs of Staff of the Army and the Air Force. The exchanges are nonappropriated fund instrumentalities of the United States Government. The contracts of the exchange services are United States contracts, enforceable against the United States Government. See 28 U.S.C. §1491(a)(1); 31 U.S.C. 1304(c).

XIII. CLJ then ships the watches around the country and the world, in response to the exchanges’ purchase

XIV. CLJ then invoices the exchanges on Timex’s behalf. CLJ never takes title to the watches, but rather takes delivery, ships and invoices the watches on a consignment basis for tiex.

XV. The watches are sold under the terms and conditions of each exchange, which are similar in all relevant respects. Each exchange demands that Timex warranty or certify that the exchange is receiving the most favorable price for Timex’s products. For instance, Section C(2)(a) of the NEXCOM General Provisions Publication Number 61 provides:

Most Favored Customer The Contractor certifies that prices, terms and conditions offered under this contract, including consideration of any discount rebate arrangements, do not exceed prices then charged the Contractor’s most favored customer or other military exchange for like items.

These general provisions apply to all nonappropriated fund contracts and purchase orders for supplies and services issued by NEXCOM. All of the exchanges’ contracts with Timex contain a provision similar to or identical with the NEXCOM provision.

XVI. As part of the “most favored customer” provisions, Timex was required by contract with each exchange to offer the exchanges the same special offers, coupons, co-opt advertising, rebates, or other special terms that were offered to any other

XVII. This universal “most favored customer” provision is the cornerstone of the exchanges’ success, as it is only way that the exchanges can achieve their twin goals of: (1) providing low cost goods and services to eligible servicemen and women and their dependents; and (2) returning funds for morale, well-being and recreation.

XVIII. In 2002, Timex enjoyed over $12 million in gross sales to the military exchange services.

XIX. The military exchanges are one of Timex’s biggest customers.

                     Timex Sales to WalMart

XX. Timex has been selling watches directly to the discount retailer WalMart for about the past fifteen years.

XXI. Timex charges WalMart lower prices, and offers WalMart better terms and conditions than all of Timex’s other customers, including the United States military exchanges. Upon information and belief, WalMart has received this preferential treatment throughout the limitations period

XXII. For instance, WalMart pays $23.53 for the Timex Ironman Triathalon (model T62962), while no other customer, including the United States military exchanges, pays less than $24.00.

XXIII. Timex has also afforded WalMart special offers, coupons, co-op advertising, rebates or other special terms that it has not offered to the exchanges.

XXIV. A two to three percent “WalMart discount” is representative for all Timex waches.

XXV. The goods Timex sells to WalMart and to the exchanges are identical.

 

Timex Gives NEXCOM Preferential Markdown and Return Terms

XXVI. Until 2003, Timex offered all the exchanges the same markdown and return terms for discontinued Timex inventory.

XXVII. In early 2003, NEXCOM had a significant amount of discontinued Timex inventory.

XXVIII. NEXCOM’s buyer demanded that Timex offer NEXCOM more favorable return and markdown terms than Timex offered the other exchanges.

XXIX. Timex offered NEXCOM more favorable markdown and return terms than the other exchanges enjoyed, and NEXCOM accepted Timex’s Offer.

                                                            J Richard West’s Discoveries

XXX. West first learned of the pricing inequality between the United States military exchanges and WalMart in November 2002 at a Timex corporate meeting in Waterbury, Connecticut.

XXXI. At that meeting, Joe Santana, president of Timex, and his senior staff attended a series of business presentations by each key account manager.

XXXII. During the course of the WalMart presentation, Scott Machado, Timex’s key account manager for WalMart, told the group about WalMart’s preferential pricing.

XXXIII. At this point, West stood up and interrupted the presentation, telling the assembled group that Timex had to offer the military the lowest price.

XXXIV. West’s comment went unanswered, and Mr. Machado’s presentation Continued.

XXXV. Timex subsequently offered West no defense or explanation for the pricing practice, despite his repeated demands.

XXXVI. Thereafter, in or about September of 2003, West saw, for the first time, a price list which showed Timex’s prices to the exchanges and to WalMart side by side.

XXXVII. West saw that Timex was providing a more favorable price to WalMart for each and every model of watch which it sold to the military exchanges.

XXXVIII. West again raised the pricing issue with his direct supervisor and told him that he believed such pricing to be a violation of Timex’s contractual obligations to the exchanges and unlawful under applicable federal law.

XXXIX. Again, West received no response, explanation or justification.

XL. West made several oral complaints regarding the inequalities between Walmart, the exchanges, and NEXCOM to Timex managers between November, 2002 and November 2003, but Timex failed to respond to his comments and complaints.

XLI. In November 2003, despite job performance which put West in line to be Timex’s key account/team leader of the year for the second straight year, Timex discharged him from its employ.

XLI. At the time of his discharge, West was assured expressly that his discharge was not performance related.

COUNT ONE – Violation of 31 U.S.C. §3729(a)(1) as to WalMart Sales XLIII. Paragraphs 1-42 are realleged as set forth herein.

XLIV.     Timex knowingly submitted thousands of invoices to the United States military in the period from November 2002 to November 2003, and on information and belief, did so before that period and continues to do so.

XLV.      Each of those invoices accepted the terms and conditions of the relevant exchange.

XLVI.     Timex had actual knowledge that it sold watches to WalMart at a better price than it sold watches to the United States Military exchanges, Timex acted in deliberate ignorance of the fact that it sold watches to WalMart at a better price than it sold watches to the United States Military exchanges, or, with reckless disregard, Timex sold watches to the United States Military exchanges at a higher price than it sold watches to WalMart.

XLVII.    Timex knowingly breached the terms and conditions of each exchange’s acquisition contract by selling watches to the United States military exchange at a higher price than it sold watches to WalMart.

XLVIII. Timex failed to offer the exchanges the same special offers, coupons, co-op advertising, rebates, or other special terms it offered to Walmart and other customers.

XLIX. Timex violated 31 U.S.C. §3729(a)(1).

L. The United States suffered damage in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watches.

LI. The United States suffered damage in that Timex failed to extend the same special offers, coupons, co-op advertising, rebates, or other special terms to the exchanges that it offered to Walmart, which caused the exchanges to pay a higher price for Timex products that Walmart.

LII.    Based on Timex’s annual sales to the exchanges of over $12 million, the United States suffered over $250,000 in damages because of the “WalMart discount” that Timex did not offer to the exchanges.

COUNT TWO – Violation of 31 U.S.C. §3729(a)(1) as to NEXCOM Sales LIII. Paragraphs 1-42 are realleged as set forth herein.

LIV.   Timex knowingly submitted over a thousand invoices to the United States military in the period from May 2003 to November 2003, and on information and belief, continues to do so.

 

LV. Each of those invoices accepted the terms and conditions of the relevant exchange..

LVI.  Timex had actual knowledge that it sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges, Timex acted in deliberate ignorance of the fact that it sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges, or, with reckless disregard, Timex sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges.

LVII. Timex knowingly breached the terms and conditions of each exchange’s acquisition contract by selling watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges.

LVIII.Timex violated 31 U.S.C. §3729(a)(1).

 

LIX The United States suffered damages in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watched and that it bough the watches without receiving the same special offers, coupons, co-op advertising, rebates, or other special terms to Timex’s most favored customer.

 

COUNT THREE – Violation of 31 U.S.C. §3729(a)(2) arising from WalMart Sales

LX. Paragraphs 1-69 are realleged as if set forth more fully herein.

 

LXI.    With each invoice it presented to the Government, Timex certified and/or warranted that the Government was receiving the price paid by Timex’s most favored customer and the same special offers, coupons, co-op advertising, rebates, or other special terms were offered to the exchanges as to Timex’s most favored customer.

LXII. These certifications were false.

LXIII.    Timex violated 31 U.S.C. §3729(a)(2).

 

LXIV.The United States suffered damage in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watches.

COUNT FOUR  – Violation of 31 U.S.C. §3729(a)(2) arising from NEXCOM

Sales LXV. Paragraphs 1-64 are realleged as if set forth more fully herein.

 

LXVI. With each invoice it presented to the Government, Timex expressly certified and/or warranted that the Government was receiving best terms and conditions offered to Timex’s most favored customer.

LXVII. These certifications were false as to AAFES, MCX and CGES. lxviii.

LXVIII. Timex violated 31 U.S.C. §3729(a)(2).

 

LXIX.The United States suffered damage in that it paid a higher net price for the watches it bought from Timex than it would have done if Timex offered the terms and conditions it offered NEXCOM to all of the United States Military exchanges.

COUNT FIVE – Violation of 31 U.S.C. §3730(h)

LXX. Paragraphs 1-69 are realleged as if set forth more fully herein

 

LXXI. West was harassed in and terminated from his employment by Timex as a result of his lawful acts done in furtherance of this action, including complaints to corporate officials regarding the false claims described herein. This harassment and termination was in violation of 31 U.S.C. § 3730(h).

LXXII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial.

COUNT SIX – Violation of General Statutes §31-51q LXXIII. Paragraphs 1-72 are re-alleged as if set forth more fully herein.

LXXIV. West’s reports, complaints, comments, objections, concerns and investigations concerning Timex’s differential pricing and failure to offer same special offers coupons, co-opt advertising, rebates, or other special terms offered to its most favored customer were protected by the First Amendment of the Constitution of the United States and/or Article first, §§ 4 & 14 of the Constitution of the State of Connecticut.

LXXV. West’s reports, complaints, comments, objections, concerns and investigations concerning Timex’s differential pricing between the United States Military exchanges and WalMart did not substantially or materially interfere with West’s job performance or his working relationship with Timex.

LXXVI. . Timex violated Connecticut General Statutes § 31-51q..

LXXVII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial.

 

COUNT SEVEN – Common Law Wrongful Discharge LXXVII. Paragraphs 1-77 are re-alleged as if set forth more fully herein.

LXXIX. Public policy mandates that companies and persons who do business with the government do so with integrity, honesty and in full compliance with relevant regulations, contract provisions and terms. See, e.g., 31 U.S.C. § 3730.

LXXX.  Timex forced West to choose between his integrity in dealing with the government and his continued employment.

LXXXI. Timex wrongfully discharged West after he complained, commented, objected to and investigated Timex’s violations of public policy.

LXXXII. Timex’s discharge of West was wrongful.

LXXXIII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial.

WHEREFORE, relator respectfully requests this Court to enter judgment against the defendant, as follows:

A.  That the United States be awarded damages in the amount of three times the damages sustained by the United States because of the false claims and fraud alleged within this Complaint, as the Civil False Claims Act, 31 U.S.C. §§ 3729 et seq. provides;

B.That civil penalties of $11,000 be imposed for each and every false claim that defendant presented to the United States and/or its agents;

C. That pre- and post-judgment interest be awarded, along with reasonable attorneys’ fees, costs, and expenses which West incurred in bringing and pressing this case;

D. That the Court grant permanent injunctive relief to prevent any recurrence of the False Claims Act for which redress is sought in this Complaint;

E. That West be awarded the maximum amount allowed to him pursuant the False Claims Act;

F. On Count Five, that West be granted all relief necessary to make him whole, including but not limited to two times his back pay, interest on the back pay and    other compensatory damages sustained as a result of defendants’ harassment and retaliation;

G On Count Six that West be granted all relief necessary to make him whole, including but not limited to his back pay and other compensatory damages sustained as a result of defendants’ harassment and retaliation, and attorney’s fees;

H.On Count Seven, that West be granted all relief necessary to make him whole, including but not limited to his back pay and other compensatory damages sustained as a result of defendants’ harassment and retaliation, and punitive damages; and

I. That this Court award such other and further relief as it deems

DEMAND FOR JURY TRIAL

J.Richard West, on behalf of himself and the United States, demands a jury trial on all claims alleged herein.

Dated on this        day of July, 2005 at New Haven, Connecticut,

 

 

 

UNITED STATES OF AMERICA

ex rel. J. RICHARD WEST and

J  RICHARD WEST and

 

 

 

By: Lewis H. Chimes (ct07023) David C. Nelson (ct26640)

Garrison, Levin-Epstein, Chimes & Richardson

405 Orange Street New Haven, CT 06511 (203) 777-4425

Fax: (203) 776-3965

[email protected] [email protected]