Sylvester Ellis v. Xerox Corporation et al. (2012)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 104)

The defendants, Xerox Corporation (“Xerox”) and Roland Vermette (“Vermette”), have moved for summary judgment on the plaintiff's complaint and on their counterclaims.   The defendants have accompanied their motion with an affidavit to which various documents are appended and have filed a Reply to the plaintiff's Objection which contains a second affidavit which has additional appended documents.   The plaintiff, Sylvester Ellis, who is representing himself, has filed an Objection to the Motion for Summary Judgment.   While it is in affidavit form, it is not sworn to under oath and has no notary acknowledgment.   It also fails to address the defendants' legal arguments.

Undisputed Material Facts

The plaintiff commenced employment with Xerox in 1999.   In December 2008, Xerox offered a Voluntary Reduction in Force (“VRIF”) program to eligible employees, including the plaintiff, who had ten years of service and was over the age of fifty-five.   At the time the program was offered, the plaintiff was performing mail room duties at a client's facility in Windsor, Connecticut and was reporting to the defendant Vermette.

In connection with the VRIF, Xerox provided its employees with a Fact Sheet which stated:

UNEMPLOYMENT COMPENSATION

Since unemployment compensation is a statutory program controlled by state laws, the rules for eligibility for unemployment compensation vary from state to state.   No one at Xerox has the authority to tell you that you will be, or that you will not be, eligible for unemployment compensation if you participate in this VRIF program, and you should not rely on any such statements in deciding whether or not to participate.   If you need further eligibility information, you should contact your state unemployment compensation authority.

On January 31, 2009, Vermette provided the plaintiff with VRIF related paperwork including a “REQUEST TO PARTICIPATE—GENERAL RELEASE” and a “Reduction in Force—Salary Continuance Payment Option Election” form.

The “REQUEST TO PARTICIPATE—GENERAL RELEASE” provided, in pertinent part:

I have not relied on any oral representation, promises, or agreements of any kind in connection with my decision to apply to participate in the VRIF.

․ I, release Xerox from all claims described in this Release.   For the purposes of this Release, ‘Xerox’ includes its employees, directors, officers, agents, stockholders, subsidiaries, affiliates, successors, assignees ․

I also release Xerox from claims based on the laws of the state(s) where I am employed and reside, such as state fair employment practice laws or any other law, whether federal, state or local, concerning employment ․ Finally, I also release Xerox from claims under state contract or tort law, and from all claims for punitive or compensatory damages, costs or attorneys fees.

․ I agree that I will not file or pursue any charge or claim with any governmental agency or court against Xerox based on anything that occurred before I signed this Release.   If I do not comply with my obligation under this paragraph, I shall repay Xerox upon demand all of the monies paid to me by Xerox as salary continuance in consideration for this release, and I agree to pay all of Xerox's costs and expenses in defending the claim or action, including Xerox's reasonable attorneys fees.

Emphasis added.

On February 2, 2009, the plaintiff signed the “REQUEST TO PARTICIPATE—GENERAL RELEASE” and submitted it to Xerox, along with a completed “Reduction in Force—Salary Continuance Payment Option Election Form.” On February 9, 2009, Xerox accepted the plaintiff's request to participate in the VRIF and the plaintiff's last day of work was February 13, 2009.   Pursuant to the terms of the VRIF agreement, Xerox issued the plaintiff a check for separation pay in the amount of $12,218.98.

Thereafter the plaintiff filed a claim for unemployment compensation benefits.   The plaintiff's claim was denied by the Department of Labor because it determined that the plaintiff's separation was a “voluntary quit” from his job at Xerox.   The plaintiff appealed that determination.   On September 24, 2009, Vermette appeared on behalf of Xerox at the Department of Labor hearing considering the plaintiff's appeal.   The plaintiff has alleged in Count Two of the complaint that Vermette testified that the plaintiff “asked for the VRIF program to have time to work on [his] tax business.”   The plaintiff's appeal of the denial of his claim for unemployment compensation benefits was dismissed.

The plaintiff has brought this action against the defendants for misrepresentation in connection with his decision to participate in the VRIF program and for defamation in connection with Vermette's testimony before the Department of Labor unemployment compensation hearing.

Discussion of the Law and Ruling

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 ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”   (Citations omitted;  internal quotation marks omitted.)  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251–52, 819 A.2d 773 (2003).  “A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citation omitted;  internal quotation marks omitted.)   H.0. R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001).   Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

Count One of the plaintiff's complaint asserts a claim for misrepresentation based on statements Vermette allegedly made to the plaintiff before he decided to participate in the VRIF program.   The defendants argue that the plaintiff signed a General Release that expressly disclaimed his reliance on any representations or promises made and, therefore, any claim based on prior representations is waived and released.   The defendants further argue that Xerox advised employees considering the VRIF program that, “No one at Xerox has the authority to tell you that you will be, or that you will not be, eligible for unemployment compensation if you participate in this VRIF program, and you should not rely on any such statements in deciding whether or not to participate.”   See Fact Sheet referred to on page 2 hereof.

A release is a contract to which ordinary rules of contract interpretation apply.  Muldoon v. Homestead Insul.   Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994).   It is a “general rule of contract construction that unambiguous contract provisions are to be given their plain meaning without reference to evidence outside the four corners of the agreement.”  Sims v. Honda Motor Corp., 225 Conn. 401, 405, 623 A.2d 995 (1993).   Where there is definitive contract language, the “determination of what the parties intended by their contractual commitments is a question of law.”  Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994).   When the intention conveyed by the terms of an agreement is “clear and unambiguous, there is no room for construction.”   Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984).

In the present case the General Release signed by the plaintiff provided:

I have not relied on any oral representations, promises, or agreements of any kind in connection with my decision to apply to participate in the VRIF.

The misrepresentation claim alleged in Count One of the complaint is expressly contradicted and barred by the unambiguous language of the General Release.   Therefore, summary judgment enters in favor of the defendant on Count One.

Count Two of the complaint alleges common law defamation.   There is no dispute that the remarks which form the basis of this claim were made during Vermette's testimony at an unemployment compensation hearing.   The defendants argue that those alleged statements were made during a quasi-judicial hearing and, therefore, are subject to an absolute privilege.

There is a “long-standing common law rule 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.”   Petyan v. Ellis, 200 Conn. 243, 245, 510 A.2d 1337 (1986) (citation omitted).   That privilege extends to statements made in “quasi-judicial” proceedings, and it protects statements regardless of whether they were published falsely or maliciously.  Preston v. 0'Rourke, 74 Conn.App. 301, 312, 811 A.2d 753 (2002);  Kelley v. Bonney, 221 Conn. 549, 565, 606 A.2d 693 (1992).   The reason for the protection is that “the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.”   Petyan, 200 Conn. at 250–51.

In this case, the defendants do not concede that Vermette's alleged statements were either false or defamatory.   However, those statements are alleged to have been made before a Hearing Officer during an unemployment compensation hearing.   The plaintiff alleges that Vermette testified before the Hearing Officer that “Plaintiff asked for the VRIF program to have time to work on [his] tax business”;  and “plaintiff had a job in the company and that his former job continues to be performed.”   Therefore, under Petyan v. Ellis the statements are absolutely privileged.   In Petyan the Supreme Court held that a false statement submitted by the employer about the plaintiff in connection with an unemployment claim was privileged and not actionable.  200 Conn. at 245–49.

The plaintiff's allegation that Vermette's statements were made with malice does not alter the analysis or result.  Petyan, 200 Conn. at 250–51;  see also Kelley, 221 Conn. at 572–77 (remarks made in connection with Department of Education teacher decertification proceeding found to be absolutely privileged despite plaintiff's allegation that accusations of incompetence and inappropriate conduct were false and made maliciously);  Preston, 74 Conn.App. at 312 (remarks made in connection with arbitration challenging prosecutor's termination found to be absolutely privileged despite plaintiff's allegation that accusations of incompetence and inappropriate conduct were false and made maliciously).

Based on the foregoing, summary judgment enters in favor of the defendants on Count Two of the complaint.

The defendants have also moved for summary judgment on their Counterclaims.   The First Counterclaim seeks declaration that the “REQUEST TO PARTICIPATE—GENERAL RELEASE” signed by the plaintiff is a valid and enforceable General Release Agreement.   The Second Counterclaim alleges that by filing the complaint against Xerox the plaintiff has breached the “REQUEST TO PARTICIPATE—GENERAL RELEASE.”   The Third Counterclaim alleges that by accepting consideration from Xerox under the VRIF program and then bringing this action, the plaintiff has received an unjust benefit.

The language of the General Release at issue is:

I agree that I will not file or pursue any charge or claim with any governmental agency or court against Xerox based on anything that occurred before I signed this Release.

By bringing Count One of his complaint, the plaintiff has brought an action based on something (alleged misrepresentations concerning unemployment) which occurred prior to the plaintiff's signing of the release.   Therefore, the plaintiff did breach his obligations under the General Release.   Summary judgment as to liability only may enter in favor of Xerox on the First and Second Counterclaims.

Generally, unjust enrichment cannot occur in the face of an express Contract.  New Hartford v. Connecticut Res. Recovery Auth., 291 Conn. 433, 454, 970 A.2d 592 (2009).   Therefore, the court does not grant summary judgment on the Third Counterclaim, which alleges unjust enrichment.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.