Robert Vitello v. Kaiser Whitney Staffing, Inc. et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff has sued Kaiser Whitney Staffing, Inc. (KWS) in three counts.   The defendant has filed a motion for summary judgment directed at all counts.   The revised complaint, in factual allegations common to all courts, alleges KWS employed the plaintiff “on a full time basis as a maintenance person from March 9, 2007 through October 7, 2007.”   At hiring it further alleges that the plaintiff disclosed his criminal record and his parole status but the defendant still hired him and he performed his duties in reasonable reliance on the hiring.

It is then claimed that on October 19, 2007 the defendant terminated the plaintiff on the basis of his prior criminal record.   The sixth paragraph makes certain allegations of false representations made in an Unemployment Compensation Proceeding by KWS to the effect that it was unaware of plaintiff's criminal record.

The complaint alleges an agent of KWS had promised defendant a job at a low income housing development where Ms. Murray was the manager.   It is then alleged the KWS agent, James Kaiser, and Ms Murray told plaintiff not to look for a job because Murray would hire him.

On October 19, 2007 Murray called plaintiff to her office and indicated she was letting him go, offering him two and a half weeks severance pay.   She said “you are on parole.”

On October 22nd plaintiff met with James Kaiser to pick up his final checks and said he was aware of the termination.

Paragraph 11 relies on the foregoing to make a breach of contract claim asserting that KWS “breached its oral contract not to terminate the plaintiff's employment because of his criminal record and parole status.”   As a result of the breach the plaintiff claims he has suffered economic loss and emotional distress.

The second count relies on the foregoing allegations to make a claim in promissory estoppel.   The plaintiff was induced by KWS to forego other employment opportunities and take a job at the housing developments by promising not to terminate his job because of his record and parole status.   As a result plaintiff claims he suffered economic loss because of his unemployment.

The third count refers to the foregoing facts as listed in the first count and argues the conduct of KWS violated the state's public policy “that no employer shall intentionally misrepresent material facts to the Department of Labor for the purpose of evading responsibility for the payment of unemployment benefits.”   As a result the plaintiff claim to have suffered economic loss and “further suffered emotional distress.”

As indicated a motion for summary judgment has been filed as to all counts.

(1)

The standard to be employed when such motions are addressed is well-known.   If there is a material issue of fact which is determinative of the viability of the complaint, the court should not decide it, since a party has a constitutional right to a jury trial.   If no such issue of material fact is presented the court should decide the motion to prevent the parties from having to bear the costs and expenses of unnecessary litigation.

(2)

The first argument in support of the motion is directed against all counts and is focused on the position that the plaintiff has not suffered any damages.   Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 31-32 (2006), held the trial court was correct in granting a summary judgment motion because the plaintiff lacked sufficient evidence of its damages.   Quoting an earlier case the court held that proof of damages must be established with reasonable certainty and not speculatively and problematically,” id. page 35.

The defendant argues that in addressing another motion filed in the case, the plaintiff himself “provided proof that he had prevailed at the unemployment hearing and received unemployment compensation.”

It is further argued that the plaintiff's response to an interrogatory that he lost potential wages is “too speculative.”   A fair statement of the case law is set forth in Conaway v. Prestia, 191 Conn. 484 (1983) which stated that “although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier ․ this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the (trier) of that amount,” id. page 494.  Falco v. Fames Peter Associates, Inc., 165 Conn. 442, 445 (1973), said:  “Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must never the less provide sufficient evidence for the trier to make a fair and reasonable estimate ․”

The argument that the damage claim is “speculative at best” is made in the foregoing terms as to each of the counts and only in the terms set forth in the preceding argument.

The cite to the case law is certainly correct as far as it goes.   But an immediate problem presents itself as to counts one and three-the intentional misrepresentation to the Department of Labor count and the breach of contract count.   In addition to a claim for economic loss there are claims in these counts for emotional distress.   No motion to strike these specific claims for relief given their attachment to specific theories of recovery was made and the motion for summary judgment merely makes a general claim that any damage claim being made is speculative.

Emotional distress claims in breach of contract actions are rarely allowed, see Section 353 of Restatement (2d) contracts, Vol 3, cf discussion in Anderson v. Gordon, Muir, & Foley, CV03-08274115, Pellegrino JTR. Similarly such a claim would be difficult in a deceit or intentional misrepresentation claim.   But no specific argument is made to this effect is made by the defendant in its brief.   It would be inappropriate for the court to weave such an argument as to these emotional distress claims then move on to the monetary loss claims in order to dismiss both counts in their entirety.   Since the emotional distress claims in these counts stand because it is unchallenged, not because the court concludes such claims are appropriate, the counts must be assumed to be viable.

That being the case the general language quoted by the court from cases like Conaway, Falco, and Leisure Resort Technology involved economic loss claims of one type or another not claims for emotional distress.   In the latter type of claim the comment to section 912 at (b) of The Restatement (2d) Torts is instructive.   There it says “For harm to body, feelings, or reputation, compensatory damages reasonably proportioned to the intensity and duration of the harm can be awarded without proof of amount other than evidence of the nature of the harm.   There is no direct correspondence between money and harm to the body, feelings, or reputation.”   This same principle would apply if damages for emotional distress in a breach of contract claim were to be allowed.   The whole point of such damages is that they cannot be determined with mathematical precision.   The deference given to emotional distress awards by the trier of fact, when a claim of excessiveness is made underlines the point, Sorrentino v. All Seasons Services, 245 Conn. 756, 772 (1998).   The court therefore will not grant the motion on the first or third count based on this first argument made by the defendant.

However, it will address the viability of the promissory estoppel claim in the second count since the claim there is only for economic loss.   The defendant notes that the plaintiff admitted in discovery to another party that he in fact received unemployment compensation and in response to an interrogatory filed by KWS merely responded “The plaintiff claims list potential wages as an item of damages.”   This claim it is argued, is too speculative to be considered by a trier of fact under the case law previously cited by the court.

In a response to an interrogatory inquiring what public policy KWS violated, the plaintiff said in response” (3) employers should not obtain the services of workers by making false promises.”   That is the basis of the promissory estoppel damage claim although perhaps confusingly placed in response to interrogatories directed to the public policy violation allegation.   Another answer as to how the plaintiff claims he was damaged by the “violation” is the plaintiff's assertion that he “was unable to pay rent, lost my car ․”-i.e. there is a claim of loss of income based on an allegation of promissory estoppel, see Restatement (2d) Contracts § 90.   This then is rather a straight forward not uncommon claim that your wrong doing resulted in my not taking other jobs resulting in economic harm to me.   The plaintiff may not be able to prove any wrong doing, he may not be able to sufficiently establish the availability of other jobs.   But the task of calculating the loss does not depend on speculative analysis or assessment of abstruse financial contingencies.   This is not a case like Leisure Resort Technology, Inc. v. Trading Cove Associates, supra where the damage claim involved the alleged diminution in value of a beneficial interest in a business based on the status of negotiations for a sales price that had not been disclosed.

Or perhaps to put it another way, where there is an analytically simple claim for economic loss such as inability to rent, keep up car payments, or even, for example, loss due to pain and suffering on which a jury will have to place a monetary value, a defendant who has liberal discovery mechanisms at its disposal, which were apparently not exercised, should not be able at the summary judgment stage to broadly claim the plaintiff cannot prove damages and leave the plaintiff to set forth in detail the exact loss suffered at risk of dismissal of the claim.

(3)

But the defendant's motion is not based solely on the issue of inability to prove damages with any degree of non-speculative certainty.   It also raises arguments as to the legal viability of each of the three counts which the court will try to discuss separately.

(a)

The argument is made that summary judgment should be granted as to count one because there was no breach of contract by KWS. The plaintiff notes that KWS is alleged in the complaint to have “breached its oral contract not to terminate the plaintiff's employment because of his criminal record and parole status.”   The defendant argues that the plaintiff offers no proof that he had anything but an at will employment contract.   It notes that “contracts of permanent employment or for an indefinite term are terminable at will,” D'Ulise Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211(fn1) 1987.   There is no necessary allegation that the plaintiff was hired for a definite term which would remove himself from at-will status, Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474 (1979).   Finally the defendant argues that “the plaintiff must prove that the contract between the parties contained terms essential to a contract of employment, including not only duration, but terms such as salary and fringe benefits.   And in response to an interrogatory asking for the terms of any contract between the plaintiff and KWS, the plaintiff responded “The plaintiff was hired for a maintenance position”-this, it argued, will not meet the requirements of D'Ulise, 202 Conn. at page 215.

But it is clear that the plaintiff is relying on an implied contract theory, and basically argues that the rigors of the right to terminate at will should not prevail.   Toroysan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. (1995), is cited for the proposition that:  “Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties ․ “accordingly, to prevail on the ․ count of his complaint (that) alleged the existence of an implied agreement between the parties the plaintiff had the burden of proving by the preponderance of the evidence that (the employer) had agreed, either by words or action or conduct to undertake (some) forms of actual contract commitment to him under which he could not be terminated without just cause,” also see Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 112 (1988), Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-95 (1980).   In his response to interrogatories which were signed under oath the plaintiff stated the defendant promised him a full-time job he would be able to retire on.   He was told not to worry about his criminal record because he had the job.   It could be argued that it is for the trier of fact to decide whether the representations, if believed amounted to an agreement not to terminate the plaintiff except for cause.   This is a close case in that the offer of a job that the plaintiff could retire on is too general and not specific to translate into a firing only for cause contract.   But there is an interesting aspect to the problem as to which the court could not find case law.   Assuming the just mentioned analysis is incorrect and the alleged representations made at the time of hiring to not amount to an implied agreement not to terminate the plaintiff except for cause, why could there not be found an implied agreement at least limited to a promise not to terminate the plaintiff because of his prior criminal record.   In other words, if the plaintiff is to be believed, (1) he was told that he had a job despite his criminal record and could rely on having the job until he retired despite his disclosure of the record but (2) he was terminated for the very fact of having a criminal record.   Apart from showing a general implied agreement not to terminate but for cause broadly defined why can a plaintiff not rely, by way of implied contract theory, on a specific promise not to terminate for a particular reason disclosed in the hiring process for which is then breached as a result of termination, for that very reason?

Interestingly Toroysan and Coehlo also do not add the requirement of specific agreement as to terms of employment length etc, once implied contract theory is established.   The court will not dismiss the breach of contract count.

(b)

The defendant also requests dismissal of count two which makes a claim in promissory estoppel.   The only argument made is that there was no detrimental reliance, a requirement for making such a claim;  Stewart v. Cendant, 267 Conn. 96 (2003) is cited.   That case holds that to make a claim in promissory estoppel the plaintiff must have relied on the defendant's promise.   The reliance can display itself by action or forbearance but “the asserted reliance, regardless of its forum, must result in a detrimental change of position.”  267 Conn. 112-13.   The defendant points to a response to interrogatories by the plaintiff wherein he claims “lost potential wages.”   It is argued “potential” loss is not enough there must be an actual change of position, 267 Conn. at page 113.  Crosland v. Housing Authority for City of New Britain, 974 F.Sup. 161 (D.Conn.1997), which sought to apply our state's law is cited.   The court in discussing a claim of promissory estoppel stated “Forbearance from seeking job opportunities is not sufficient to show detrimental reliance for purposes of promissory estoppel.”  Id. page 168.   A New Jersey District Court opinion was cited to the effect that a plaintiff alleging forbearance could provide no evidence that earlier applications to other employers would have yield jobs and therefore, as in the case before it, the jury would have to resort to speculation on the issue of detrimental reliance.  Crosland and the case it cited both granted summary judgment on the promissory estoppel claim.

Interestingly enough the plaintiff in his opposition to the motion as to this court does not specifically address the detrimental reliance argument but generally argues the substantive requirements of promissory estopel have been met.

Addressing the defendant's argument the court still has the previously expressed difficulties with relying on it as a vehicle to dismiss the count at this pretrial stage.   Even more narrowly the plaintiff's response to interrogatories states, in part, that he was promised a job until retirement which would not of course, preclude dismissal for cause and he claims as a result of his firing he could not pay his rent and lost his car.

In any event our court appears to take a more lenient view on the requirements of detrimental reliance.   In Stewart v. Cendant Mobility Services Corp., 267 Conn. 96 (2003) the court upheld the jury's verdict in favor of the plaintiff on a promissory estoppel theory.   There the plaintiff had received assurances from the defendant that her position would not be terminated if her husband got a position with a competitor.   When he did, she was fired.   The court did not accept the defendant's argument that the prerequisites of promissory estoppel were not met because detrimental reliance had not been established.   The defendant had pointed out that the plaintiff herself testified that she was unaware that a sales position was open at the time she would have been seeking such a position.   The court rejected this argument and noted such positions were open generally to talented people, id. pages 112-14.¹  Here after all, we are talking about a position as a maintenance worker, although it is a close case, the court will not grant the motion as to this count.

(c)

The third count is based on a claim of violation of public policy, in that at the hearing held at the Department of Labor over the plaintiff's unemployment compensation benefits, KWS intentionally misrepresented material facts to avoid having to pay such compensation.   KWS represented that at the time it hired the plaintiff, it was unaware of his prior criminal record.

The defendant argues that even if KWS made such false representations, the unemployment security division of the Labor Department hearing these matters acts in a quasi-judicial capacity when it acts on unemployment compensation claims, thus statements made at such hearings are privileged, Peytan v. Ellis, 200 Conn. 243, 246-48 (1986).  Peytan explicitly so held and cited cases from other jurisdictions that have reached the same result, White v. United Mills Co., 208 SW 2d 803 (1948);  Kitchner v. State, 371 N.Y.S.2d 91 (1975).

The plaintiff counters with the argument that in a more recent case, Rioux v. Barry, 283 Conn. 338 (2007), the court said “in the context of a quasi judicial proceeding absolute immunity does not attach to statements that provide the ground for the tort of vexatious litigation” and “whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests,” id. pp. 346-48.   Reliance on this general language at least in the court's opinion cannot be used to overrule or modify Peytan.  Peytan has been cited seventy times by later Appellate and Supreme Court decisions, seven times in 2007, the year Rioux was decided, and twice in 2009.  Rioux itself cites Peytan.  Rioux and McHale v. W.B.S. Corp., 187 Conn. 444 (1982), merely stand for the proposition that in a subsequent action for malicious prosecution or vexatious litigation false statements made previously in a quasi-judicial proceeding, including, investigatory steps leading up to the conduct of such a hearing, cannot provide an absolute bar to pursuing those particular torts if the false information was given intentionally.   In Rioux the court examined the prerequisites to proving the tort of vexations litigation and notes that the tort provides for stringent proof requirements.   Thus as to that particular tort (as well as for malicious prosecution, see McHale with similar elements to prove the tort), it is not necessary to provide “an additional layer of protection to would be litigants in the form of absolute immunity,” id. page 347.   In effect the court went on to say that “were we to provide absolute immunity for the communications underlying the tort of vexatious litigation, we would effectively eliminate the tort,” id. page 348.

None of the foregoing comments applies to the situation here;  we are not involved with the particular torts involved in Rioux or McHale and their “stringent” requirements.

The court denies the defendant's motion for summary judgment as it applies to counts one and two but grants it as to count three.

Corradino, J.T.R.

FOOTNOTES

FN1. In the Croslan case, for example, the plaintiff was terminated from his position as Executive Director of a Housing Authority..  FN1. In the Croslan case, for example, the plaintiff was terminated from his position as Executive Director of a Housing Authority.

Corradino, Thomas J., J.T.R.