Steven F. Avitabile v. II LLC (2011)

MEMORANDUM OF DECISION

The plaintiff in this action, Steven F. Avitabile, claims that the, 1 Burr Road Operating Company II, LLC, d/b/a Westport Health Care Center (Burr Road) and Healthbridge Management, LLC (Healthbridge) breached an employment agreement with him by terminating his employment and subsequently defamed him.¹  In the operative pleading, the plaintiff's “revised complaint” dated June 21, 2010,² the plaintiff alleges the following facts.   Sometime prior to July 7, 2008, Burr Road offered the plaintiff employment as the activity director at its Westport Health Care Center and agreed to pay the plaintiff at the rate of $20 per hour and provide the plaintiff with health insurance.   The plaintiff contends that the parties entered into an employment contract which included Burr Road's “Code of Conduct.”   That Code states that its employees “will be expected to attest to the Center that [they have] read the Code of Conduct and agree to be bound by its terms.”   The Code ostensibly provided Burr Road's employees with guidance on how to “Do the Right Thing” in various situations that would arise during the course of Burr Road's day-to-day operations.   The Code further stated that staff who refused to conduct themselves in accordance with the principles set forth therein would be subject to discipline in accordance with relevant human resources policies and procedures as outlined in the Code.

The plaintiff claims that he accepted the terms of employment with Burr Road that were set forth in the Code. The plaintiff alleges that he “was bound by the terms of the Code which sets forth the conduct and disciplinary measures to be taken, should a violation of the Code occur ․ [and][b]y accepting the terms of employment set forth in the ‘Code of Conduct,’ the plaintiff and [Burr Road] entered into an implied employment contract whereas the defendant, Burr Road, made a contractual commitment not to terminate the plaintiff, except for cause, following appropriate disciplinary procedures.”   On March 2, 2009, the plaintiff was fired by Burr Road because it alleged that the plaintiff failed to report timely a statement of suicidal ideation by a patient.   The plaintiff alleges that Burr Road breached this implied employment contract and it fired him without just cause because neither the Code nor any policy explicitly requires the plaintiff to report a suicidal ideation.   Additionally, the plaintiff contends that he was not provided with any policy indicating that he had to report a patient's suicidal ideation.

Following the termination of the plaintiff's employment from Burr Road, the plaintiff alleges that Kimberly Coleman, an administrator at Burr Road, sent him a letter that falsely accused him of “unprofessional and inappropriate conduct” at work, including his failure to report the suicidal ideation.   The plaintiff also claims that in the context of an employment security appeal, Coleman, in the course of “pursuing a willful misconduct claim” stated that the plaintiff did not report a statement of suicidal ideation in violation of an employment policy.   That statement was allegedly made to Deanna R. Green, an associate appeals referee, Paul Sapienza and Eileen Avitabile.   The plaintiff contends that Coleman's statements were false and that he suffered injury as a result.

In his revised complaint, the plaintiff brings the following claims:  (1) count one—breach of implied employment contract against Burr Road;  (2) count two—breach of the implied covenant of good faith and fair dealing against Burr Road;  (3) count three—wrongful discharge based on an implied employment contract against Burr Road;  (4) count four—defamation against Burr Road and (5) count five—promissory estoppel against Burr Road. Counts six through ten allege the same causes of action against the defendant Healthbridge.³  All of the plaintiff's claims against Healthbridge appear to arise out of the same factual background as those he brought against Burr Road. The plaintiff's claims against Healthbridge stem from the fact that it is Burr Road's parent company and that on March 24, 2009, Lisa Crutchfield, Healthbridge's vice president of human resources, sent a letter to an attorney representing the plaintiff regarding the plaintiff's termination.   This letter was sent on Healthbridge letterhead, and the plaintiff contends that it indicates that Burr Road's human resources department is linked, intermingled or controlled by Healthbridge.   The plaintiff contends that Healthbridge is a proper defendant in this case because it controls and/or monitors Burr Road's employment practices, including the decision to terminate the plaintiff's employment.

On July 22, 2011, the defendants filed a motion for summary judgment (# 162.00) along with a memorandum of law in support of their motion.   Attached to the defendants' motion is the notarized affidavit of Edmund Remillard, a regional human resources manager for Healthbridge, which incorporates the following exhibits:  (1) the plaintiff's employment application with Healthbridge;  (2) a copy of notes taken by Peter Showstead, Burr Road's administrator, during an interview with the plaintiff on September 17, 2008;  (3) a copy of Healthbridge's human resources policies and procedures manual;  (4) a signed statement made by the plaintiff dated September 19, 2008;  (5) a letter from Showstead to the plaintiff dated September 24, 2008;  (6) a letter dated February 29, 2009, indicating that the plaintiff had been placed on suspension pending an investigation;  (7) a copy of the defendants' policy regarding “managing “resident infections and need for isolation precautions;” (8) a copy of a statement prepared by Coleman regarding the incidents leading up to the plaintiff's suspension;  9) a signed statement made by the plaintiff dated February 20, 2009, in which the plaintiff indicated that a patient had threatened suicide and (10) a letter on Westport Health Care Center letterhead dated March 2, 2009, indicating that the plaintiff's employment was terminated.   The defendant's motion also attaches sworn excerpts from the plaintiff's deposition transcript.

In response, on August 30, 2011, the plaintiff filed a memorandum of law in opposition to the defendants' motion.   Attached to the plaintiff's opposition are:  (1) uncertified excerpts from the plaintiff's deposition transcript;  (2) the Burr Road/Westport Health Care Center's Code of Conduct;  (3) the plaintiff's sworn affidavit;  (4) an excerpt from a “fact finding report” from the Connecticut Department of Labor regarding the plaintiff's termination of employment;  (5) the decision of a state of Connecticut employment security appeals division referee regarding the plaintiff's claim for unemployment benefits;  (6) a copy of the plaintiff's March 2, 2009 termination letter;  (7) a portion of Burr Road's responses to interrogatories;  (8) a copy of definitions from an online dictionary;  (9) an excerpt of Healthbridge's human resources policies and procedures manual;  (10) an additional excerpt from Healthbridge's human resources policies and procedures manual regarding employee discipline;  (11) an email attaching a copy of the plaintiff's termination letter and (12) an excerpt of Healthbridge's responses to the plaintiff's interrogatories.⁴

On September 2, 2011, the plaintiffs filed a reply memorandum, which attaches Coleman's sworn affidavit.   Coleman's affidavit incorporates:  (1) various excerpts from Healthbridge's human resources policies and procedures manual;  (2) a copy of the job description for the plaintiff's former position;  (3) a visit log from the Westport Health Care Center;  (4) a signed statement from the plaintiff dated February 20, 2009, and (5) a typed statement made by Coleman that is dated February 22, 2009.   The parties appeared before the court and argued the merits of this motion during the September 3, 2011 short calendar.

LEGAL DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”   (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 ․ 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.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19 (2006).

I

IMPLIED EMPLOYMENT CONTRACT

The defendants first move for summary judgment as to counts one, two, three, six, seven and eight, in which the plaintiff alleges causes of action for breach of implied employment contract, breach of the implied covenant of good faith and fair dealing and wrongful discharge based upon an implied employment contract.   As all of these claims require the existence of an implied employment contract between the parties, the court first needs to determine if there is a genuine issue of material fact regarding whether there was such a contract.   In its memorandum of law and reply memorandum, the defendants argue that there was no implied employment contract because:  (1) there was no “meeting of the minds” between the parties that could give rise to a contract;  (2) the plaintiff admitted that the defendants did not promise him continued employment and (3) the facts are clear that the plaintiff was an at-will employee.   In response, the plaintiff argues that there are genuine issues of material fact as to the issue of whether there was an implied employment contract between the parties.   Specifically, the plaintiff points to statements found in the Code of Conduct, which indicate that the parties agreed to be bound by the document's terms.   From this document, the plaintiff contends that there was an agreement between the parties indicating that the plaintiff would only be discharged for just cause and pursuant to disciplinary procedures set forth in the defendants' human resources policies.

“Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity.”  Campbell v. Plymouth, 74 Conn.App. 67, 74 (2002).   Nevertheless, “[p]ursuant to traditional contract principles ․ the default rule of employment at will can be modified by the agreement of the parties.”  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15 (1995).   In its Torosyan decision, our Supreme Court discussed at length the criteria for the formation of an implied employment contract.  “[T]o prevail on the ․ count of his complaint [that] alleged the existence of an implied agreement between the parties, [a] plaintiff [has] the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause ․ Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Id., 15.  “[I]n order to find that an implied contract of employment incorporates specific representations orally made by the employer or contained in provisions in an employee manual, the trier of fact is required to find the following subordinate facts.   Initially, the trier of fact is required to find that the employer's oral representations or issuance of a handbook to the employee was an ‘offer’—i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those oral or written statements, or both.   If the oral representations and/or the handbook constitute an ‘offer,’ the trier of fact then is required to find that the employee accepted that offer.”  Id., 13–14.

The Code of Conduct promulgated by Burr Road/Westport Health Care Center is attached to the plaintiff's memorandum of law in opposition as exhibit B. Section III of this document provides that employees “will be expected to attest to the Center that you have read the Code of Conduct and agree to be bound by its terms.”   In his affidavit, which is attached to his opposition memorandum as exhibit C, the plaintiff attests that he read this document as an agreement between the parties indicating that his employment would only be terminated for just cause.   Moreover, the plaintiff attests that he relied on the statements made in the Code of Conduct to his detriment in that he continued to work for the defendants and did not seek other employment.   Section III.A of the Code of Conduct further provides that employees “who fail or refuse to conduct themselves in accordance with the principles and guidance set forth in this Code of Conduct ․ will be subject to discipline up to and including termination in accordance with Center Human Resources Policies and Procedures.”   The plaintiff also has provided the court with copies of excerpts from the Healthbridge “human resources policies and procedures manual”;  exhibit J;  which outlines certain disciplinary procedures to be taken against employees who are “in violation of any policy or procedure and/or behave in an unacceptable manner ․

If construed in a manner most favorable to the non-moving party, this evidence could lead the finder of fact to conclude that there was some sort of agreement between the parties.   In common parlance, the word “bound” means that a party has an obligation to perform a certain task, and that could imply that the Code of Conduct constituted a contractual agreement between the plaintiff and the defendants.   Pursuant to language found in the Code of Conduct, employees who failed to comply with the terms of the document were subject to discipline “in accordance with ․ [the defendants'] Human Resources Policies and Procedures.”   In paragraphs thirteen and fourteen of count one, which are incorporated by reference into each of the other counts at issue, the plaintiff alleges that the defendants breached this implied contract when they did not follow appropriate disciplinary procedures and “without just cause and in bad faith discharged [the][p]laintiff from his position as activity director ․” Although the evidence submitted by the defendants demonstrating that the plaintiff signed documents indicating that he was an at-will employee strongly implies that the plaintiff had at-will status, this fact does not necessarily mean that the defendants could not have violated the terms of the parties' contract by failing to adhere to the disciplinary policies outlined in the relevant employment documents.   The court finds that the plaintiff has raised some genuine issues of material fact regarding the existence of such an agreement and the requirements found in these documents indicating that his employment should be terminated pursuant to certain procedures.   ConsequentIy, the court finds that the defendants have failed to meet their burden to establish that there are no genuine issues of material fact regarding whether there was an implied employment contract between the parties indicating that the plaintiff's at will employment could only be terminated for disciplinary reasons after procedures set forth in the Code of Conduct were complied with.   Under these circumstances the court denies the defendant's motion for summary judgment as to counts one, three, six and eight, which allege breach of an implied employment contract and wrongful discharge.

II

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Next, the defendants move for summary judgment as to counts two and seven, which allege violations of the implied covenant of good faith and fair dealing.   The defendants' first argument with respect to these counts is that the plaintiff cannot “recover because there was no contract between the parties.   As the court has found that there are outstanding issues of material fact regarding existence and terms of a contract between the parties the defendants cannot prevail on this ground.

The defendants also claim that the plaintiff cannot establish that his employment discharge was misleading, deceptive, sinister or otherwise in bad faith.   In his memorandum of law in opposition, the plaintiff points to the following facts as indicating there is a genuine issue of material fact regarding the defendants' motives when they terminated his employment:  (1) the plaintiff believes that his failure to report timely a patient's suicidal ideation was not the real reason that he was fired, but rather his employment was terminated because he complained about working with a patient infected with MRSA and the defendants were using him as a “scapegoat”;  (2) the plaintiff's attempts to contact human resources regarding his termination were met with stone silence” and (3) the defendants' written policies did not contain any requirement that he report that a patient had a suicidal ideation.

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Internal quotation marks omitted.)  Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240 (2007).  “Bad faith has been defined in our jurisprudence in various ways.   Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose ․ [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain ․” (Internal quotation marks omitted.)  Brennan Associates v. OBGYN Speciality Group, P.C., 127 Conn.App. 746, 759–60, cert. denied, 301 Conn. 917 (2011).  “Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient.”   Alexandru v. Strong, 81 Conn.App. 38, 81, cert. denied, 268 Conn. 906 (2004).

After reviewing the pleadings and evidence submitted by the plaintiff in opposition to the motion for summary judgment, it becomes apparent that the sole “reference to the plaintiff's theory that he was made a “scapegoat” and fired for a reason other than his alleged failure to report a suicidal ideation is found in some conclusory statements in his deposition.   The plaintiff does not allege this theory of the case in his complaint or make any such attestations in his affidavit.   It is a well established principle of law that, “[t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings.”  (Internal quotation marks omitted.)  DeCorso v. Calderaro, 118 Conn.App. 617, 622 (2009), cert. denied, 295 Conn. 919 (2010).  “A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.”   (Internal quotation marks omitted.)  New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 15, cert. denied, 258 Conn. 942 (2001).   Our Appellate Court has also held that “a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit.”  (Internal quotation marks omitted.)  LaBow v. Rubin, 95 Conn.App. 454, 471, cert. denied, 280 Conn. 933 (2006).   A similar conclusion is mandated for issues that are only raised in a party's deposition.   Consequently, although the plaintiff's new position that he was made a “scapegoat” and that the defendants actually fired him for a different reason that his failure to report a suicidal ideation could conceivably rise to the level of bad faith, this factual contention cannot defeat summary judgment because it was not alleged in the plaintiff's complaint.

Moreover, it is clear that the allegations of malfeasance that are actually found in the complaint do not rise to the level of bad faith.   Essentially, the plaintiff simply alleges that the defendants violated the implied covenant of good faith and fair dealing because they “intentionally” breached the subject implied employment contract.   As stated by one Superior Court judge in an employment law case, “[t]he allegation that the defendant refused or neglected to abide by the terms of the parties' agreement, standing alone, is not enough to maintain a cause of action sounding in a breach of the duty of good faith and fair dealing.   Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive.”  (Internal quotation marks omitted.)   Vitarius v. Security Link From Ameritech, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 98 063327 (August 18, 2000, Grogins, J.), quoting, Feinberg v. Berglewicz, 32 Conn.App. 857, 862 (1993).   Without some evidence to raise a genuine issue of material fact that the defendants breached the parties' agreement in bad faith, the plaintiff cannot maintain this cause of action.   Although it is a familiar maxim that summary judgment ordinarily should not be granted when issues of motive and intent are implicated, “even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”   (Internal quotation marks omitted.)  Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603 (2010).   Having determined that the plaintiff has failed to meet this burden, the court grants the defendant's motion for summary judgment with respect to counts two and seven.

III

DEFAMATION

The defendants next argue that they are entitled to summary judgment as to counts four and nine alleging defamation on the grounds that the alleged defamatory statements were either not published to a third party or protected by privilege.   In the revised complaint, the plaintiff alleges two instances of defamation.   The first is “[o]n March 2, 2009, Kimberly Coleman ․ sent the plaintiff a letter falsely stating that plaintiff engaged in unprofessional and inappropriate conduct at work, including failing to timely report a statement of suicidal ideation.”   Second, the plaintiff alleges that “[o]n June 3, 2009, the defendant Burr Road, via Kimberly Coleman, at a State of Connecticut Employment Security Appeal, pursuing a willful misconduct claim, stated that the plaintiff did not report a statement of suicidal ideation in violation of employment policy.”   The defendants contend that the allegations of defamation arising out of the termination letter authored by Coleman are not cognizable because the plaintiff admits that nobody else received this letter.   Moreover, the defendants argue that the statements allegedly made by Coleman at a state of Connecticut security appeal are protected by absolute privilege.   The defendants further argue in their reply memorandum that the statements at issue do not constitute defamation because they are true and are matters of opinion.   In his memorandum of law in opposition, the plaintiff does not directly address either of the two main arguments raised by the defendants.   Rather, the plaintiff simply argues that there is a genuine issue of material fact regarding whether these statements constitute defamation because the statements made by Coleman were false.   The plaintiff does not address the issues of whether the March 2, 2009 termination letter was published to a third party or whether Coleman's statements before the state of Connecticut employment security appeal are protected by privilege.

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Internal quotation marks omitted.)   Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28 (2009).  “As a general rule ․ no action for defamation exists if the defendant publishes the defamatory statements to only the plaintiff, and the plaintiff subsequently disseminates the statements to a third person.”  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004).

With respect to the alleged defamation stemming from the March 2, 2009 termination letter, the plaintiff fails to allege that this letter was published to a third party.   Moreover, in his deposition, the plaintiff admits that with the possible exception of his employer's personnel file, that “no one else that [he] is aware of received a copy of [the subject letter].”   The plaintiff's opposition papers raise no questions of fact “regarding the publication of this letter.   Without the necessary element of publication, the defendants cannot be held liable for defamation.

Turning to the statements allegedly made by Coleman on June 3, 2009, it is clear that these utterances are protected by privilege.  “It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.”  (Internal quotation marks omitted.)  Hopkins v. O'Connor, 282 Conn. 821, 830–31 (2007).  “The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly.   It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not ․ It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.”  (Internal quotation marks omitted.)  Craig v. Safford Construction, Inc., 271 Conn. 78, 84–85 (2004).   For instance, in Petyan v. Ellis, 200 Conn. 243 (1986), the Connecticut Supreme Court explicitly held that this absolute privilege extends to employers who give statements before the employment security division of the state Department of Labor regarding the reasons that they fired their employees.  Id., 247–49.   The court's explanation for this holding is that “[i]n the processing of unemployment compensation claims, the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law.  General Statutes §§ 31–241, 31–242 and 31–249.   The employment security division of the labor department, therefore, acts in a quasi-judicial capacity when it acts upon claims for unemployment compensation.”  Id., 248–49.   Once it has been determined that an absolute privilege applies to the facts of a case, “there is no liability, although defamatory words are falsely and maliciously published.”  (Internal quotation marks omitted.)   Bessoni v. Cadley, Superior Court, judicial district of Middlesex, Docket No. CV 09 5005966 (April 6, 2010, Burgdorff J.), quoting, Hasset v. Carroll, 85 Conn. 23, 35 (1911).

Because the plaintiff alleges that Coleman's statements were germane to the issue before the employment security division, that being whether the plaintiff was fired for cause, they are protected by absolute privilege under our Supreme Court's holding in Peytan v. Ellis, supra, 200 Conn. 243.   The defendants have appropriately pleaded their privilege defense in their respective answers,⁵ and the plaintiff fails to raise any genuine issues of material fact regarding this defense as to the statements allegedly made by Colemen on June 3, 2009.   Accordingly, the court grants the motion for summary judgment in favor of the defendants as to counts four and nine.

IV

PROMISSORY ESTOPPEL

Next, the defendants move for summary judgment on counts five and ten, in which the plaintiff alleges a cause of action for promissory estoppel.   Specifically, the defendants argue that the plaintiff cannot maintain his promissory estoppel claim because he neither alleges nor can demonstrate a “clear and definite” promise that his employment would only be terminated for just cause.   Additionally, the defendants contend that it was impossible for the defendants to have made a promise of continued employment because the plaintiff signed numerous documents indicating that he was an at-will employee.   In response, the plaintiff argues that he can demonstrate the applicability of the doctrine of promissory estoppel to this case because “he believed that he would have a job at Westport Health Care Center for as long as he performed his job in a manner consistent with the Code of Conduct.”   It is the plaintiff's position that the language of the Code of Conduct is sufficient to raise a genuine issue of material fact regarding whether the defendants made a clear promise of continued employment to the plaintiff so long as he adhered to regulations found in the Code of Conduct.

“Under the law of contract, a promise is generally not enforceable unless it is supported by consideration ․ [Our Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor.”  (Internal quotation marks omitted.)  Saye v. Howe, 92 Conn.App. 638, 647 (2005).  “[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise ․ A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance.”  (Citation omitted;  internal quotation marks omitted.)  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 676–77, cert. denied, 298 Conn. 901 (2010).  “Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for ․ application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer.”  (Internal quotation marks omitted.)   Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 105 (2003).   “Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future ․ [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance ․ and, therefore, is not sufficiently promissory.   The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion.”  (Citations omitted;  internal quotation marks omitted.)  Id., 105–06.   Indeed, in the specific context of an employment dispute such as the present matter, at least one Superior Court judge has held that it was appropriate to grant summary judgment in favor of the defendant employer when the “language contained in the compliance handbook and flyers [did] not demonstrate a clear commitment on the part of [the employer] to discharge [the plaintiff] only for cause.”   Rotzal v. Jewish Home for the Elderly, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412065 (May 26, 2006, Rodriguez, J.) (41 Conn. L. Rptr 462, 464).

In the present case, the alleged basis for the plaintiff's promissory estoppel claim is that “[t]he defendant Burr Road promised through its ‘Code of Conduct’ that The plaintiff would have a job at Westport Health Care Center for as long as he performed his job in a manner consistent with the ‘Code of Conduct.’   “ The plaintiff's memorandum of law in opposition fails to cite to any specific language in the Code of Conduct where the defendants made such an explicit promise of continued employment.   Additionally, a search of this document has also revealed no such promise.   In his memorandum of law in opposition, the plaintiff merely cites to language from the Code of Conduct indicating that employees agreed to be “bound” by the document's contents.   Although that language may give rise to a genuine issue of material fact as to whether there was a contract between the parties, it falls far short of a “clear and definite” promise that the plaintiff would have continued employment so long as he adhered to the mandates of the Code of Conduct.   Accordingly, the court finds that the plaintiff fails to raise any genuine issues of material fact with respect to his promissory estoppel counts, and, as a result, the court grants summary judgment in favor of the defendants as to counts five and ten.

V

CLAIMS AGAINST HEALTHBRIDGE

Finally, the defendants move for summary judgment as to all of the claims levied against Healthbridge, which are counts six through ten.   As the court has already granted summary judgment in favor of Healthbridge on counts seven, nine and ten, only counts six and eight remain at issue.   The defendants' argument is that summary judgment is warranted for the causes of action brought against Healthbridge because Healthbridge serves as the management company for Burr Road and that under Connecticut law the management company of a limited liability company is not liable for the debts and liabilities of the subsidiary company.   The defendants also argue that there is no independent basis for holding Healthbridge liable for Burr Road's decision to terminate the plaintiff's employment.   In response, the plaintiff argues that facts demonstrate that Healthbridge and Burr Road are clearly intermingled business entities, and, as a result, Healthbridge is potentially liable for the acts of Burr Road.

In the revised complaint, the plaintiff alleges that the basis of his claims against Healthbridge stem from the fact that it is the parent corporation of Burr Road and “it controls and/or monitors, Burr Road's employment decisions and specifically the decision to terminate the plaintiff's employment.”  “[I]t is a fundamental principle of corporate law that the parent corporation and its subsidiary are treated as separate and distinct legal persons even though the parent owns all the shares in the subsidiary and the two enterprises have identical directors and officers.   Such control, after all, is no more than a normal consequence of controlling share ownership ․ Furthermore, the separate corporate entities or personalities of affiliated corporations will be recognized, absent illegitimate purposes, unless:  (a) the business transactions, property, employees, bank and other accounts and records are intermingled;  (b) the formalities of separate corporate procedures for each corporation are not observed ․ (c) the corporation is inadequately financed as a separate unit from the point of view of meeting its normal obligations ․ (d) the respective enterprises are not held out to the pubIic as separate enterprises;  (e) the policies of the corporation are not directed to its own interests primarily but rather to those of the other corporation.”   (Citation omitted;  emphasis added;  internal quotation marks omitted.)  SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232–33, cert. denied, 501 U.S. 1223, 111 S.Ct. 2839, 115 L.Ed.2d 1008 (1991).   Consequently, it can be seen that although the general rule in Connecticut is that parent and subsidiary corporations are treated separately for legal purposes, there is an exception to this rule when there is an intermingling of transactions, property and employees.

In their moving papers, the defendants failed to attach any evidence indicating the precise corporate relationship of Healthbridge and Burr Road. On the other hand, both parties have provided the court with numerous documents indicating that there is some type of close relationship between these two entities.   For instance, the plaintiff's application for employment with Burr Road had Healthbridge's name on the top of the document.   Similarly, the excerpts from the human resources manual that allegedly serve as some of the foundation of the plaintiff's implied employment contract came from Healthbridge.   The plaintiff's revised complaint also attaches a letter dated March 24, 2009, on Healthbridge letterhead to the plaintiff's counsel that discusses the termination of the plaintiff's employment.   All of this documentary evidence raises genuine issues of material fact regarding the precise relationship between Burr Road and Healthbridge and the level of corporate integration between these two organizations.   Consequently, the court finds that the defendants have not provided a sufficient basis to grant summary judgment in favor of Healthbridge as to count six and eight.

CONCLUSION

For all of the reasons stated above, the court grants the defendants' motion for summary judgment as to counts two, four, five, seven, nine and ten, but denies it as to counts one, three, six and eight.

David R. Tobin, Judge

FOOTNOTES

FN1. The defendants will both be referred to collectively as “the defendants” and separately by their individual names when appropriate..  FN1. The defendants will both be referred to collectively as “the defendants” and separately by their individual names when appropriate.

FN2. On June 4, 2010, the court, Adams, J., granted a motion to strike the entirety of the plaintiff's revised complaint.   That version of the plaintiff's complaint alleged claims against these defendants for:  (1) wrongful discharge pursuant to a violation of an important public policy;  (2) breach of contract/violations of the implied covenant of good faith and fair dealing;  (3) negligent infliction of emotional distress;  (4) intentional infliction of emotional distress and (5) defamation.   In response to the court's granting of this motion to strike, the plaintiff then filed this “revised complaint.”   Although the plaintiff claimed that he filed his revised complaint pursuant to the provisions of Practice Book § 10–44, which authorizes the filing of a substitute complaint within fifteen days of the striking of a previous complaint, the plaintiff did not file this revised complaint until June 21, 2010.   The defendants subsequently filed a motion to strike this new complaint on July 6, 2010.   This motion to strike was denied in its entirety by the court, Karazin, J.T.R., on September 13, 2010..  FN2. On June 4, 2010, the court, Adams, J., granted a motion to strike the entirety of the plaintiff's revised complaint.   That version of the plaintiff's complaint alleged claims against these defendants for:  (1) wrongful discharge pursuant to a violation of an important public policy;  (2) breach of contract/violations of the implied covenant of good faith and fair dealing;  (3) negligent infliction of emotional distress;  (4) intentional infliction of emotional distress and (5) defamation.   In response to the court's granting of this motion to strike, the plaintiff then filed this “revised complaint.”   Although the plaintiff claimed that he filed his revised complaint pursuant to the provisions of Practice Book § 10–44, which authorizes the filing of a substitute complaint within fifteen days of the striking of a previous complaint, the plaintiff did not file this revised complaint until June 21, 2010.   The defendants subsequently filed a motion to strike this new complaint on July 6, 2010.   This motion to strike was denied in its entirety by the court, Karazin, J.T.R., on September 13, 2010.

FN3. Specifically, the plaintiff brings the following claims against Healthbridge:  (1) count six—breach of implied employment contract;  (2) count seven—breach of the implied covenant of good faith and fair dealing;  (3) count eight—wrongful discharge based upon an implied employment contract;  (4) count nine—defamation and (5) count ten—promissory estoppel..  FN3. Specifically, the plaintiff brings the following claims against Healthbridge:  (1) count six—breach of implied employment contract;  (2) count seven—breach of the implied covenant of good faith and fair dealing;  (3) count eight—wrongful discharge based upon an implied employment contract;  (4) count nine—defamation and (5) count ten—promissory estoppel.

FN4. Some of the documents filed by the plaintiff in opposition to the summary judgment motion are not certified or otherwise authenticated by affidavit.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92 (2006).   The defendants have not raised any objection to the uncertified attachments offered by the plaintiff, consequently, the court has discretion to consider all of the evidence when ruling on this motion for summary judgment..  FN4. Some of the documents filed by the plaintiff in opposition to the summary judgment motion are not certified or otherwise authenticated by affidavit.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92 (2006).   The defendants have not raised any objection to the uncertified attachments offered by the plaintiff, consequently, the court has discretion to consider all of the evidence when ruling on this motion for summary judgment.

FN5. “Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant.”  Miles v. Perry, 11 Conn.App. 584, 594 n.8 (1987)..  FN5. “Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant.”  Miles v. Perry, 11 Conn.App. 584, 594 n.8 (1987).

Tobin, David R., J.