Kevin Geysen v. USA (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO.141

I.

Procedural history

This case involves a wage and hour claim for unpaid sales commissions.   The plaintiff, Kevin Geysen, alleges that he worked as a business development manager for the defendant, Securitas Security Services USA, Inc., from September 6, 2005, until May 22, 2008.   During that time, the plaintiff was paid a base salary of $50,000 per year and an additional one percent of the net revenue for security service contracts that he procured for the defendant.   The plaintiff's commissions agreement with the defendant provided that the plaintiff would forfeit his entitlement to any commissions that had not been invoiced at the time of his termination.   At the time of the plaintiff's termination on May 22, 2008, he alleges that he was owed commissions totaling $9,000 for the security contracts he procured with seven companies.

The plaintiff sued the defendant on August 4, 2009.   The plaintiff's three-count complaint alleged a violation of General Statutes § 31–72,¹ a breach of the implied covenant of good faith and fair dealing, and wrongful termination.   The defendant filed a motion to strike counts two and three of the plaintiff's complaint and the court, Bear, J., granted that motion.   The court later entered a judgment for the defendants on the stricken counts.   The defendant filed a motion for summary judgment on April 18, 2011, with an accompanying memorandum of law.   The plaintiff filed a memorandum of law in opposition to summary judgment on May 24, 2011.   The court heard the matter at short calendar on May 31, 2011.

II.

Discussion

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Having carefully reviewed papers on this matter, the court finds that there remain genuine issues of material fact.   There is no issue of fact as to the first two elements of a claim under § 31–72.   The defendant does not dispute that the plaintiff was an employee and that the commissions at issue in this case are wages.

As to the third element, the parties dispute whether the defendant wrongfully withheld wages that were due to the plaintiff.   The defendant meets its initial burden of demonstrating that there is no genuine issue of material fact by attaching a copy of the plaintiff's offer letter, the sales incentive plan in effect at the time of the plaintiff's termination, commission reports for accounts attributable to the plaintiff, and the plaintiff's payroll records.   The plaintiff, however, overcomes the defendant's showing and demonstrates that a genuine issue of material fact exists by citing his deposition and affidavit wherein he testifies and swears that he earned the commissions at issue in this case when he secured the customer's business for the defendant.

There remains an issue of fact as to whether the defendant wrongfully withheld commissions from the plaintiff at the time the plaintiff was terminated.   The defendant has therefore failed to meet its burden of demonstrating the absence of a genuine issue of material fact.   The court therefore denies the defendant's motion for summary judgment.

III.

Conclusion

Based upon the record presented and the applicable law the motion for summary judgment is denied.

SO ORDERED.

BY THE COURT,

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. General Statutes § 31–72 provides:  “When any employer fails to pay an employee wages in accordance with the provisions of sections 31–71a to 31–71i, inclusive, or fails to compensate an employee in accordance with section 31–76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.   The Labor Commissioner may collect the full amount of any such unpaid wages, payments due to an employee welfare fund or such arbitration award, as well as interest calculated in accordance with the provisions of section 31–265 from the date the wages or payment should have been received, had payment been made in a timely manner.   In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages, payments due to an employee welfare fund or arbitration award, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court.   The commissioner shall distribute any wages, arbitration awards or payments due to an employee welfare fund collected pursuant to this section to the appropriate person..  FN1. General Statutes § 31–72 provides:  “When any employer fails to pay an employee wages in accordance with the provisions of sections 31–71a to 31–71i, inclusive, or fails to compensate an employee in accordance with section 31–76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.   The Labor Commissioner may collect the full amount of any such unpaid wages, payments due to an employee welfare fund or such arbitration award, as well as interest calculated in accordance with the provisions of section 31–265 from the date the wages or payment should have been received, had payment been made in a timely manner.   In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages, payments due to an employee welfare fund or arbitration award, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court.   The commissioner shall distribute any wages, arbitration awards or payments due to an employee welfare fund collected pursuant to this section to the appropriate person.

Wiese, Peter E., J.