Edward Murphy v. The Day Publishing Company (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 116)

The plaintiff, Edward Murphy, filed this motion to strike on December 21, 2012, seeking to strike the counterclaim of the defendant, The Day Publishing Company, on the ground that the counterclaim is legally insufficient to allege a claim for breach of contract.   Specifically, the plaintiff argues that the defendant erroneously bases its breach of contract claim on the allegation that, by bringing the present suit, the plaintiff breached a release executed by the parties in the settlement of a prior lawsuit.   The plaintiff contends that his present lawsuit does not breach the release, obviating the defendant's counterclaim.   The plaintiff has submitted a memorandum of law in support of his motion.   The defendant filed a memorandum in opposition to the motion on January 14, 2013, countering that its allegations are legally sufficient to support a claim for breach of contract and, regardless, a motion to strike is not the appropriate procedural mechanism to address this issue.   This matter was argued before the court on February 19, 2013.

BACKGROUND

The plaintiff commenced this action by serving the defendant with process on June 29, 2012.   In the plaintiff's three-count complaint, he alleges the following relevant facts.   The plaintiff worked for the defendant as a full-time employee in various positions for nearly thirty-four years, from August 1975 through April 2009.   The defendant terminated the plaintiff's employment in April 2009, at which time he was serving as custom publications editor for the defendant.   As a result of his termination, the plaintiff asserted various legal claims against the defendant, including age discrimination.   After extensive negotiations, the parties entered into a written agreement that resolved the dispute.   Over a year later, in December 2010, the defendant advertised that its custom publications editor position was open and it intended to hire someone to fill the position.   On December 12, 2010, the plaintiff applied for the position and the following day the defendant notified the plaintiff that it received his application.   Despite the plaintiff's allegedly superior qualifications, he was not granted an interview and a substantially younger female applicant was hired for the position.

Based on these facts, the plaintiff alleges in count one that the defendant's actions constitute age discrimination, because the “defendant did not hire the plaintiff for the custom publications editor position because of plaintiff's age.”   In count two, the plaintiff asserts gender discrimination, because the position description for the custom publications editor position reflects a bias in favor of hiring a woman and, thus, the “defendant did not hire the plaintiff ․ because of his gender.”   Lastly, in count three, the plaintiff asserts unlawful retaliation.   Specifically, the plaintiff alleges that the “defendant did not hire plaintiff for the custom publications editor position [in December 2010] because of his opposition to defendant's earlier discrimination against him because of his age in connection with the termination of his employment [in April 2009],” which the plaintiff claims constitutes unlawful retaliation.

The defendant filed an answer on August 31, 2012 and subsequently filed an amended answer on November 30, 2012.   The amended answer also added a counterclaim against the plaintiff for breach of contract.   In the counterclaim, the defendant alleges that on July 2, 2009, the plaintiff and defendant entered into an agreement, which the defendant attached and pleaded as “Exhibit A” to the counterclaim.   The attached settlement agreement is titled as a “Severance Agreement and General Release of Claims” (the release).   The release indicates that the plaintiff and defendant severed their employment relationship as of April 27, 2009.   In consideration for the severance, the defendant agreed to pay $43,680 to the plaintiff.   In exchange, the plaintiff agreed that he “irrevocably and unconditionally releases the [defendant] ․ from any and all causes of actions ․ relating in any way to [the plaintiff's] employment and/or separation from employment, which [the plaintiff] had, has, or may have against [the defendant], up through and including the effective date of this agreement.”  (Emphasis added.)   The plaintiff further agreed, through a covenant not to sue, to “waive the right and agree not to bring or pursue any judicial, quasi-judicial, or administrative action against [the defendant] for any reason whatsoever arising out of his employment and separation from employment with the [defendant] up through and including the effective date of this agreement.”   Importantly, the contract expressly states that the plaintiff “is not waiving any claims that he may have had that arise after the execution of this agreement.”   The agreement also includes an integration clause, providing that the contract “constitutes the entire agreement by and between the parties ․”

In addition to appending the release as an exhibit, the defendant also directly alleges the intent of the release in paragraph four of his counterclaim by paraphrasing language from the release.   Specifically, the defendant asserts in paragraph four that, in executing the release, the plaintiff agreed to waive the right to pursue judicial action “for any reason whatsoever arising out of his employment and separation from employment with the defendant up through and including the date of execution, July 2, 2009.”   (Emphasis added.)

The defendant further alleges that he has complied with all of his obligations under the contract, including full payment of the $43,680 to the plaintiff.   The defendant alleges, however, that the plaintiff breached the release by instituting “the present action alleging retaliation and/or discrimination,” because the plaintiff's allegations relate to matters of the plaintiff's employment with the defendant prior to execution of the release on July 2, 2009.   As a result of the alleged breach, the defendant asserts that he has been caused to suffer and will continue to suffer damages.¹

LAW RE MOTION TO STRIKE

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003) Furthermore, “[w]henever any party wishes to contest ․ the legal sufficiency of any answer to any complaint, counterclaim or cross complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a)(5);  see also JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008) (“[a] motion to strike ․ may properly be used to challenge the sufficiency of a counterclaim” [Internal quotation marks omitted.] ).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).   This court takes “the facts to be those alleged in the [pleading] ․ and ․ construe[s] the [pleading] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

ANALYSIS

As the basis for his motion to strike, the plaintiff argues that the defendant's counterclaim for breach of contract is legally insufficient.   Specifically, the plaintiff contends that he could not have breached the release contract by bringing this lawsuit, because the release only bars claims that existed at the time of its execution and the plaintiff's present lawsuit solely alleges new claims that arose after the release's execution.   In response, the defendant argues that the counterclaim is legally sufficient because the plaintiff's claim of retaliation “depends entirely upon facts and circumstances arising out of the plaintiff's prior employment relationship (or separation) with the defendant” and “attempts to revive the very same discrimination claim he waived years ago.”   The defendant also argues that a motion to strike is not the appropriate motion to address this issue, because the plaintiff has violated established procedure by “petition[ing] the court to look outside the pleadings and consider his arguments relating to contract interpretation.”   For the reasons set forth below, this court concludes that this issue is appropriately addressed on a motion to strike, and that the defendant's counterclaim is legally sufficient to state a claim for breach of contract.

When a written contract has been properly incorporated into a challenged pleading—such as by referring to it as an exhibit—and the contract can be interpreted as a matter of law, courts are free to consider the entire contract when determining the legal sufficiency of a claim that depends on the contract.   See Donar v. King Associates, Inc., 67 Conn.App. 346, 786 A.2d 1256 (2001) (affirming trial court's decision to strike portions of a defendant's counterclaim for indemnification where the specific terms of the parties' contract, which were quoted in the counterclaim, failed on their face to support the claim);  Practice Book § 10–29.   Numerous courts have determined the legal sufficiency of contract based claims on a motion to strike by conducting a thorough review of the contract that underlies the claim when it has been made a part of the challenged pleading.   See, e.g., State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 466–69, 54 A.3d 1005 (2012);  Cohn v. Pacfic Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990);  Brule v. Nerac, Inc., 127 Conn.App. 315, 320–22, 13 A.3d 723 (2011);  MacDermid, Inc. v. Cookson Group, PLC, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 09 5014518 (April 29, 2011, Dubay, J.);  LaPointe v. Sansone, 17 Conn.Sup. 241 (1951).   Therefore, although it arises more commonly on a motion for summary judgment, it is axiomatic that thoroughly reviewing and construing the intent of a full-length contract on a motion to strike is not outside the scope intended by such a motion,² as long as the review is conducted within the scope of the movant's grounds specified in the motion.³

Accordingly, on a motion to strike a claim arising from a written contract, the claim can be stricken based on interpretation of the terms in the underlying contract when the following conditions are met:  (1) the contract is incorporated into the claim as an exhibit, or the relevant contract terms are quoted or paraphrased directly into the claim;  (2) the relevant terms are interpretable as a matter of law;  and (3) the terms are insufficient to support the alleged claim.   Because the defendant has made arguments that pertain to each of these requirements, the court shall proceed to address each requirement in turn.

I

INCORPORATION INTO THE PLEADING

Initially, for a court to consider the terms of a written contract on a motion to strike, the contract or its relevant terms must be incorporated into the pleading.   This can be accomplished in two ways.   First, the contract can be incorporated as an exhibit to the claim, as provided by Practice Book § 10–29,⁴ which permits the parties to reference any document as an exhibit in their pleadings and treats the document as if it had been fully set out at length in the pleading.   See also Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007) (when reviewing a complaint on a motion to strike, “[the] complaint includes all exhibits attached thereto” [Internal quotation marks omitted] ).   Secondly, contract terms also can be considered by a court when they are quoted or paraphrased directly within the pleading.⁵  See Donar v. King Associates, Inc., supra, 67 Conn.App. 348–50 (affirming the granting of a motion to strike based on the terms of the parties' contract when the terms were quoted directly in the defendant's counterclaim).

In this case, the defendant has done both—first, he has pleaded the contract as “Exhibit A” in paragraph one of the counterclaim in his answer and attached the entire contract to his pleading, and, second, he has paraphrased terms directly from the release's covenant not to sue into paragraph four of his counterclaim.   As such, the pleaded terms and the entire release itself are within the purview of this court's review on the present motion to strike.

II

INTERPRETATION AS A MATTER OF LAW OR FACT

Second, the court must determine whether the contract terms relevant to the defendant's counterclaim are interpretable as a matter of law, since courts may not address issues of fact on a motion to strike.   It is the defendant's contention that this motion is not the appropriate procedural device to address the release because matters of contract interpretation are not appropriate on a motion to strike.

“[A] release ․ is subject to rules governing the construction of contracts.”  (Internal quotation marks omitted.)  Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994).  “[O]rdinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact.”  (Internal quotation marks omitted.)  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000).   Nonetheless, “[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.”  (Internal quotation marks omitted.)  Id. “[T]he interpretation and construction of a written contract present only questions of law, within the province of the court ․ so long as the contract is unambiguous and the intent of the parties can be determined from the agreement's face ․” (Internal quotation marks omitted.)  Gould v. Mellick & Sexton, 263 Conn. 140, 150–51, 819 A.2d 216 (2003).  “[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008).

Here, there is no ambiguity in the release.   The contract language definitively states that the plaintiff releases all claims against the defendant that it had “up through and including the effective date of this agreement,” but that he “is not waiving any claims that he may have had that arise after the execution of this agreement.”   The meaning of those clauses in the release is clear, unambiguous and interpretable as a matter of law, regardless of the defendant's assertion to the contrary.   Therefore, interpreting the intent of the release is proper on this motion to strike.

III

LEGAL SUFFICIENCY OF THE COUNTERCLAIM BASED ON THE RELEASE

Lastly, because the release is incorporated into the counterclaim and its terms are interpretable as a matter of law, the court must determine whether the release's terms are legally sufficient to support the defendant's claim for breach of contract.   A valid claim for breach of contract is comprised of four elements:  (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the other party, and (4) damages.  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004).   In his motion to strike, the plaintiff attacks the counterclaim only as to the element of “breach.”   The plaintiff does so by arguing that the defendant has not established that the plaintiff breached the release, because the release only bars legal action pertaining to claims that existed at the time of its execution and all of the plaintiff's present claims arose after the execution of the release.

Because the release itself is properly before the court, resolution of this issue is guided by the principle that “when specific contract terms are alleged and they do not support the claim presented, the claim cannot withstand a motion to strike.”  Commissioner of Labor v. CJM Services, Inc., 268 Conn. 283, 294, 842 A.2d 1124 (2004) (interpreting the holding of Donar v. King Associates, Inc., supra, 67 Conn.App. 346).   Conversely, if the contract terms sufficiently support the claim, the motion to strike must be denied.

Analysis of the release in this case is assisted by an understanding of how releases operate in general.  “A release is an agreement to give up or discharge a claim ․ It terminates litigation or a dispute and [is] meant to be a final expression of settlement ․ Accordingly, [r]eleases and settlements ․ represent a surrender of a cause of action ․” (Citations omitted;  internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 427–28, 927 A.2d 843 (2007).  “Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred ․ [A] dispute that had not emerged, or a question which had not arisen at all, cannot be considered as bound and concluded by the anticipatory words of a general release ․ [A] release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties ․ and, where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future.”  (Citation omitted;  internal quotation marks omitted.)  Muldoon v. Homestead Insulation Co., supra, 231 Conn. 481–82.

In cases where parties have previously settled litigation and released existing claims, our courts have consistently permitted the bringing of future claims that arise after the execution of the release.   See, e.g., id., 479–83 (claimant who had previously settled and released workers' compensation claims based on exposure to asbestos from 1947 to 1974 was entitled to file a subsequent claim for exposure to asbestos from 1975 to 1984, because it was a new injury and not a recurrence or exacerbation of the old injury);  Sakon v. Manager, 113 Conn.App. 802, 804–05, 969 A.2d 781 (2009) (although parties had settled a property dispute and signed a release in 1992, it did not prevent the defendant from opposing the plaintiffs' zoning application in 2004 regarding the same property that was the subject of the 1992 release).

Based on a cursory review, this case could seemingly present a scenario similar to Muldoon and Sakon.   The plaintiff's argument is in line with those cases.   His contention is that, because the parties' settlement in July 2009 only released claims existing “up through and including the effective date of [the] agreement,” the plaintiff's current claims arising from the December 2010 decision not to rehire him qualify as new claims that could not have breached the 2009 release.   The defendant argues otherwise in support of his counterclaim, which alleges that “[i]n contravention of the clear contract terms regarding waiver, the plaintiff has instituted the present action alleging retaliation and/or discrimination ․” Hence, the court shall individually examine the plaintiff's claims of retaliation and discrimination to determine if the plaintiff's present action actually breaches the release.

A

Does the Retaliation Claim Breach the Release?

If an employee claims discrimination against an employer and subsequently settles and releases only his then-existing claims against the employer, then retaliation that occurs thereafter is a new claim not subject to the release.   See Cotton v. Franklin, 494 Fed.Appx. 518, 522–23 (6th Cir.2012);  Harrington v. Aggregate Industries–Northeast Region, Inc., 668 F.3d 25, 35 (1st Cir.2012).⁶  This principle is premised on common sense and public policy.   First, considered logically, the retaliation claim in this case is clearly a new injury to the plaintiff that was not contemplated within the release.   When the plaintiff agreed to the release in July 2009, he could not possibly have contemplated that he was agreeing to waive the right to legal recourse for future acts of retaliation against him by the defendant.

In opposing this point, the defendant misconstrues the legal effect of the release.   The defendant is seemingly arguing that, because the retaliation claim requires reference to facts that existed before the release's execution, the release somehow precludes the plaintiff from asserting retaliation for not being hired in December 2010.   As the defendant puts it in its opposition memorandum, the retaliation claim depends “on facts and circumstances arising out of the plaintiff's prior employment relationship (or separation) with the defendant.”   That much is true.   Nevertheless, while a release can cause all existing claims to vanish, it does not thereby cause all of the facts that occurred before the release to vanish.  Cotton v. Franklin, supra, 494 Fed.Appx. 522 (a release does not bar “use of evidence existing prior to the signing date of the settlement agreement in support of a later accrued claim”).   Therefore, as long as the harm that forms the basis of the retaliation claim arose after the release, as it did here, then facts that occurred prior to the release can be alleged in order to provide support for the new claim, such as to show the employer's reason for retaliating.   After all, if a plaintiff is claiming that an employer has retaliated against him for prior litigation, then the plaintiff will obviously have to reference the prior litigation to factually support the new claim.

Moreover, from a public policy standpoint, interpreting the release in the manner argued by the defendant would create an untenable result.   Interpreting a release to bar future retaliation claims would create a situation where an employer and employee could settle an employee's lawsuit and release all existing claims, and the employer could then, forever thereafter, retaliate against the employee for bringing the suit because the employee would be legally barred from asserting future retaliation claims that reference the settled litigation.   For instance, an employer could settle an employee's discrimination suit and immediately thereafter fire him for bringing the suit, and the employee would be without legal recourse because the release supposedly bars a retaliation claim that requires reference back to the earlier litigation.   Clearly then, avoiding the defendant's construction of the release “is further justified by considerations of public policy regarding the effect of the release on the parties' future relationship.”  (Internal quotation marks omitted.)  Muldoon v. Homestead Insulation Co., supra, 231 Conn. 482.   As noted in Muldoon, “a release covering all claims that might later arise between the parties would constitute a consent to the [forgoing] of ․ legal protection for the future and would plainly be against public policy.”  (Internal quotation marks omitted.)  Id.

Consequently, the legal sufficiency of the breach of contract counterclaim is not bolstered by looking to the plaintiff's retaliation claim, because the retaliation claim is a new claim that cannot be construed as breaching the release.   Yet, the counterclaim broadly states that the plaintiff has instituted “the present action” in contravention of the release's terms, so the court must also proceed to consider whether the counterclaim can survive based on a breach by the plaintiff's claim of either gender discrimination or age discrimination.

B

Do the Discrimination Claims Breach the Release?

The defendant's counterclaim also alleges that the plaintiff's causes of action for gender discrimination and age discrimination breach the release.   In the plaintiff's complaint, he alleges that, following his April 2009 termination, he asserted claims of age discrimination against the defendant, which ultimately led to the negotiation of the settlement and release at issue here.   In December 2010, the plaintiff applied to be rehired for the identical position that he held prior to his termination, and again asserts that his failure to be rehired was predicated on discrimination.   Nevertheless, pursuant to Burnam v. Amoco Container Co., 755 F.2d 893 (11th Cir.1985), the federal courts follow the principle that “a failure to rehire subsequent to an allegedly discriminatory firing, absent a new and discrete act of discrimination in the refusal to rehire itself, cannot resurrect the old discriminatory act.” ⁷  Id., 894;  see also Riddle v. Citigroup, 449 Fed.Appx. 66, 71 (2d Cir.2011), Knowles v. Postmaster General, United States Postal Service, 656 F.Sup. 593, 601 (D.Conn.1987).   This rule applies to failure to rehire claims because “[a] simple request for reinstatement seeks to redress the original termination.”  (Internal quotation marks omitted.)   Burnam v. Amoco Container Co., supra, 894;  see also Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482, 485 (5th Cir.1995), cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996) (“[T]he rehiring claim [in this case] is not a future claim ․ The employees' cause of action for failure to rehire is simply an attempt to revive claims they were paid to release [after their termination].   Any claim concerning failure to rehire certainly arises out of their termination and was extant when the release was ratified”).   Under the Burnam standard, the court shall separately assess the plaintiff's claims of gender discrimination and age discrimination to determine if either could sufficiently support the breach alleged in the counterclaim.

1

Gender Discrimination

Based on the facts alleged in the pleadings, the plaintiff has never previously claimed that the defendant discriminated against him on the basis of gender, nor did he have any grounds to make such a claim upon his termination.   Therefore, the plaintiff's claim of gender discrimination is a “new and discrete act of discrimination” and not an attempt to revive an old claim.   As a result, it does not qualify as a breach of the release and does not support the defendant's counterclaim.

2

Age Discrimination

The plaintiff previously brought a claim of age discrimination against the defendant after his termination in 2009, which was resolved with a settlement whereby the plaintiff received compensation to release his claims.   Thus, for the age discrimination claim in this case, there is a factual issue as to whether it represents a revival of the old claim or if it is a “new and discrete act of discrimination in the refusal to rehire itself.”   The plaintiff would be breaching the release if he revived the released claim simply by reapplying for the same job and claiming an identical act of discrimination.   See Burnam v. Amoco Container Co., supra, 755 F.2d 894–95 (after allegedly being terminated due to her age without bringing a timely claim, employee was barred from bringing a subsequent claim for age discrimination after she applied for the same position over seven months later and was not rehired, because there was no new act of discrimination).   This determination does not imply that the plaintiff's age discrimination claim is without merit or that the defendant's counterclaim has merit;  rather, it presents an issue that cannot be determined on the pleadings as a matter of law.   Thus, when construed as an admitted fact for the purposes of this motion, the allegation that the present age discrimination claim relates back to the 2009 age discrimination claim is sufficient to support the element of breach.   As a result, the specific terms of the release do support the claim presented, such that the counterclaim is sufficient to survive a motion to strike, in accordance with Commissioner of Labor v. CJM Services, Inc., supra, 268 Conn. 294, and Donar v. King Associates, Inc., supra, 67 Conn.App. 346.

The other elements of a breach of contract claim, as outlined at the outset of part III, are also sufficiently pleaded by the defendant and undisputed by the plaintiff.   Therefore, the defendant's counterclaim for breach of contract is legally sufficient to withstand this motion to strike, albeit only in connection with the plaintiff's age discrimination claim.   Because the defendant broadly claims that the plaintiff's “present action alleging retaliation and/or discrimination” breaches the release, it is not enough that the gender discrimination claim in count two and the retaliation claim in count three do not breach the release as a matter of law.  (Emphasis added.)   The counterclaim is legally sufficient as long as any part of the plaintiff's “present action” could support the element of breach and, because the age discrimination claim in count one meets that criteria, the counterclaim sufficiently pleads breach of contract.

ORDER

For the foregoing reasons, the plaintiff's motion to strike the defendant's counterclaim is hereby denied.

Devine, J.

FOOTNOTES

FN1. After the defendant filed its amended answer and counterclaim, the plaintiff filed an amended complaint on January 4, 2013, which added a fourth count to the complaint.   The new count asserts another claim of unlawful retaliation, alleging that the defendant filed its counterclaim in retaliation against the plaintiff for filing the present lawsuit.   This amended complaint is now the operative complaint, but it adds no additional pertinent facts and is not relevant for the purposes of considering this motion to strike the defendant's counterclaim..  FN1. After the defendant filed its amended answer and counterclaim, the plaintiff filed an amended complaint on January 4, 2013, which added a fourth count to the complaint.   The new count asserts another claim of unlawful retaliation, alleging that the defendant filed its counterclaim in retaliation against the plaintiff for filing the present lawsuit.   This amended complaint is now the operative complaint, but it adds no additional pertinent facts and is not relevant for the purposes of considering this motion to strike the defendant's counterclaim.

FN2. This principle does not violate the well established rule that “a motion to strike must be considered within the confines of the pleadings and not external documents, such as the agreement between the parties”;  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  because referencing or attaching the contract as an exhibit brings it within the confines of the pleadings and it is no longer regarded as an external document..  FN2. This principle does not violate the well established rule that “a motion to strike must be considered within the confines of the pleadings and not external documents, such as the agreement between the parties”;  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  because referencing or attaching the contract as an exhibit brings it within the confines of the pleadings and it is no longer regarded as an external document.

FN3. See Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980) (“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion”)..  FN3. See Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980) (“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion”).

FN4. Practice Book § 10–29 provides in relevant part:(a) Any plaintiff ․ desiring to make a copy of any document a part of the complaint shall refer to it as Exhibit A, B, C, etc․(c) When either the plaintiff or the defendant in any pleading subsequent to the complaint desires to make a copy of any document a part of his or her pleading, such party may, without reciting it therein, either annex it thereto, or refer to it therein..  FN4. Practice Book § 10–29 provides in relevant part:(a) Any plaintiff ․ desiring to make a copy of any document a part of the complaint shall refer to it as Exhibit A, B, C, etc․(c) When either the plaintiff or the defendant in any pleading subsequent to the complaint desires to make a copy of any document a part of his or her pleading, such party may, without reciting it therein, either annex it thereto, or refer to it therein.

FN5. Although an opposing party can attack a contract incorporated into a pleading on a motion to strike, this principle should not be taken to discourage the incorporation of a contract or its terms into the pleadings.   Parties must bear in mind that “[t]he generalized allegation of a breach of an agreement without supporting allegations of issuable facts constitutes the assertion of nothing more than a legal conclusion and should be stricken”;  Wilshire Funding Corp. v. Geffrard, Superior Court, judicial district of Fairfield, Docket No. CV 98 0356133 (April 24, 2000, Mottolese, J.);   and, thus, it is often necessary to plead contract terms in order to factually support the allegation that the opposing party had a contractual obligation and failed to uphold it..  FN5. Although an opposing party can attack a contract incorporated into a pleading on a motion to strike, this principle should not be taken to discourage the incorporation of a contract or its terms into the pleadings.   Parties must bear in mind that “[t]he generalized allegation of a breach of an agreement without supporting allegations of issuable facts constitutes the assertion of nothing more than a legal conclusion and should be stricken”;  Wilshire Funding Corp. v. Geffrard, Superior Court, judicial district of Fairfield, Docket No. CV 98 0356133 (April 24, 2000, Mottolese, J.);   and, thus, it is often necessary to plead contract terms in order to factually support the allegation that the opposing party had a contractual obligation and failed to uphold it.

FN6. “In drafting and modifying the Connecticut Fair Employment Practices Act ․ General Statutes § 46a–51 et seq., our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and it has sought to keep our state law consistent with federal law in this area ․ Accordingly, in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance.”  (Citation omitted.)  Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009)..  FN6. “In drafting and modifying the Connecticut Fair Employment Practices Act ․ General Statutes § 46a–51 et seq., our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and it has sought to keep our state law consistent with federal law in this area ․ Accordingly, in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance.”  (Citation omitted.)  Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009).

FN7. The purpose for Burnam 's holding was to prevent employees from reviving time-barred claims of discriminatory termination simply by reapplying with the employer to create a fresh claim for failure to rehire;  Burnam v. Amoco Container Co., supra, 755 F.2d 894;  and courts, at least in the Eleventh Circuit, generally do not apply the rule when the failure to rehire claim is not deemed to be an attempt to revive time-barred claims;  see Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 n.3 (11th Cir.2000), but see Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482, 485 (5th Cir.1995), cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996).   In this case, the plaintiff's claim for discriminatory termination in 2009 was brought in a timely manner, so he is not attempting to revive a time-barred claim.   Nonetheless, an analogous situation is present that warrants the application of Burnam.   The expiration of a prescribed time limitation to bring a claim, as in Burnam, and the signing of a release, as here, both have equivalent effects—they represent a termination and surrender of the right to bring a once-viable claim.   Thus, Burnam 's rationale is equally applicable to claims precluded by a release, whereby it prevents employees from reviving released claims simply by applying to be rehired.   See Blakeney v. Lomas Information Systems, Inc., supra, 485 (reaching this conclusion but without reliance on Burnam )..  FN7. The purpose for Burnam 's holding was to prevent employees from reviving time-barred claims of discriminatory termination simply by reapplying with the employer to create a fresh claim for failure to rehire;  Burnam v. Amoco Container Co., supra, 755 F.2d 894;  and courts, at least in the Eleventh Circuit, generally do not apply the rule when the failure to rehire claim is not deemed to be an attempt to revive time-barred claims;  see Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 n.3 (11th Cir.2000), but see Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482, 485 (5th Cir.1995), cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996).   In this case, the plaintiff's claim for discriminatory termination in 2009 was brought in a timely manner, so he is not attempting to revive a time-barred claim.   Nonetheless, an analogous situation is present that warrants the application of Burnam.   The expiration of a prescribed time limitation to bring a claim, as in Burnam, and the signing of a release, as here, both have equivalent effects—they represent a termination and surrender of the right to bring a once-viable claim.   Thus, Burnam 's rationale is equally applicable to claims precluded by a release, whereby it prevents employees from reviving released claims simply by applying to be rehired.   See Blakeney v. Lomas Information Systems, Inc., supra, 485 (reaching this conclusion but without reliance on Burnam ).

Devine, James J., J.