Alexandra Place v. Connecticut College (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 147)

The plaintiff, Alexandra Place, brings various causes of action against the defendant, Connecticut College, which are based on the alleged employment agreement entered into by the plaintiff and defendant and wages/compensation to which the plaintiff claims she is entitled.   In her nine-count amended complaint, the plaintiff sets forth the following claims:  1) breach of contract;  2) fraud, deceit and intentional misrepresentation;  3) breach of implied covenant of good faith and fair dealing;  4) violation of the Connecticut Unfair Trade Practices Act (CUTPA);  5) wrongful termination in violation of public policy;  6) negligent misrepresentation;  7) negligent infliction of emotional distress;  8) quantum meruit;  and 9) unjust enrichment.   The plaintiff has withdrawn the claims for CUTPA, negligent infliction of emotional distress and unjust enrichment.

On November 15, 2012, the defendant filed a motion for summary judgment on the remaining six counts.   In support of its motion, the defendant has submitted, along with an accompanying memorandum of law, the following documents:  1) excerpts of the defendant's interrogatory responses;  2) excerpts from the plaintiff's deposition transcript;  3) excerpts from the deposition transcripts of Roger Brooks, the dean of the faculty of the defendant;  4) excerpts from the deposition transcripts of Catherine Spencer, the department chair of the defendant's French department;  5) excerpts from the deposition transcript of Julie Rivkin, assistant dean of the faculty of the defendant;  6) the plaintiff's appointments letters;  and 7) various emails sent between the plaintiff and the defendant.

On December 17, 2012, the plaintiff filed an objection to the defendant's motion for summary judgment on the ground that a genuine issue of material fact exists as to all counts.   In support of her objection, the plaintiff has submitted, along with an accompanying memorandum of law, the following documents:  1) the plaintiff's deposition transcript;  2) the various appointment letters;  3) copies of emails sent between the plaintiff and Rivkin, Spencer and Rhonda Garelick, who was interim chair of the French department;  4) the pay-rates of visiting faculty;  5) an excerpt of the American Association of University Professors (AAUP) publication;  6) a copy of the Modern Language Association's recommendation on minimum per-course compensation for part-time faculty members;  7) deposition transcripts of Brooks, Spencer and Rivkin;  8) a biography of Isabelle Servant Whelton;  9) a copy of “Faculty Searches” from the defendant's website;  10) a copy of “French:  Lecturer, full-time” from the defendant's website;  and 11) a copy of “About the AAUP” from the AAUP's website.   The defendant filed a reply on January 14, 2013.   The matter was heard on short calendar on March 4, 2013.

BACKGROUND

The plaintiff alleges the following facts in her complaint.   The plaintiff was employed by the defendant as a French language instructor from approximately 2002 to 2009.   On various days in 2008, the plaintiff discovered that she was not receiving pay at the same rate as other similarly situated instructors.   The defendant represented to the plaintiff that the plaintiff was receiving a fair wage and that no other compensation was available to her.   The defendant also failed to inform the plaintiff of the compensation to which she was entitled, specifically compensation on a pro-rated basis rather a per-course basis.   When the plaintiff approached the defendant about her rate of pay and request that her pay be adjusted she was terminated.   The plaintiff performed certain services that the defendant knowingly accepted and represented to the plaintiff that she would be compensated in full for the services performed, which the defendant has failed to do.   The plaintiff is seeking various compensatory monetary damages.

LAW RE MOTION FOR SUMMARY JUDGMENT

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   Accompanying the motion, “the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   A party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   In regard to deposition transcripts, “[w]hile [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).

Moreover, “it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy his burden the movant must make a showing that is quite clear what the truth is ․ When documents submitted in support of a motion for summary judgment fail to establish that there is a no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Accordingly, “[m]ere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).

COUNT ONE (BREACH OF CONTRACT)

The defendant argues that it is entitled to summary judgment on count one of the plaintiff's complaint because there is no genuine issue of material fact as to whether there was a breach in the employment contact.   Specifically the defendant argues that the plaintiff was paid according to the terms in the appointment letters to which the plaintiff agreed.   The plaintiff argues that there is a genuine issue of material fact as to whether the defendant acted in “bad faith” by not compensating the plaintiff for all of her services.   The plaintiff further argues that 1) there is evidence establishing that the plaintiff was mislead as to her compensation and 2) the defendant breached a duty by failing to follow the AAUP recommendation for pro-rated compensation.

Generally, “[t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  300 State, LLC v. Hanafin, 140 Conn.App. 327, 330, 59 A.3d 287 (2013).   Under established principles of contract law, “[a]n agreement must be definite and certain as to its terms and requirements ․ [N]umerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement.”  (Internal quotation marks omitted.)  Pan Handle Realty, LLC v. Olins, 140 Conn.App. 556, 567, 59 A.3d 842 (2013).  “[T]there must be a mutual understanding of the terms ․ between the parties ․ If the minds of the parties have not truly met, no enforceable contract exists.”  (Internal quotation marks omitted.)   Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).   Therefore, courts have held that “[c]ontracts are not created by evidence of customs and usage.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 843, 888 A.2d 104 (2006) (in regard to allegation of implied contract, plaintiff had burden to establish that adherence to policies and procedures was result of contract commitment by defendant).  “A contractual promise cannot be created by plucking phrases out of context;  there must be a meeting of the minds between the parties.”  (Internal quotation marks omitted.)  Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

In determining whether a contract is “expressed” or implied,” our Appellate court has explained:  “A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated.   In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is one in which the parties arrive at their agreement and express it in words, either oral or written.   17A Am.Jur.2d 48–49, Contracts § 12 (2004).

An express contract is a contract whose terms are stated by the parties;  an implied contract is a contract whose terms are not so stated.   1 S. Williston, Contracts (4th Ed. Lord 1990) § 1:5, pp. 18–20.”  (Internal quotation marks omitted.)  Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).  “A contract implied in fact, like an express contract, depends on actual agreement.”  (Internal quotation marks omitted.)   Coelho v. Posi–Seal International, Inc., 208 Conn. 106, 111, 544 A.2d 170 (1988).   In regard to employment contracts, to sustain a cause of action based on the alleged existence of an implied agreement, “the plaintiff has the burden of proving ․ that the [employer] had agreed, by either words or action or conduct, to undertake [some] form of actual contract commitment ․” (Internal quotation marks omitted.)  Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn.App. 730.

In this case, as to the first element required for a breach of contract claim, the defendant submits various appointment letters in order to demonstrate that there is no genuine issue of material fact as to whether the plaintiff and the defendant entered into various employment contracts.   Courts have found that material terms that would be essential to an employment contract include terms regarding the duration and conditions of the plaintiff's employment, as well as salary and fringe benefits.  Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 628, 760 A.2d 969 (2000).

The letters submitted by the defendant in support of its motion set forth all the essential terms of such a contract:  1) Duration, which has predominately been for a year;  2) Conditions, such has the enrollment of certain number of student for the courses;  3) Salary for each year;  and 4) Benefits, such as medical coverage.   In addition to this, the letters set forth the position/title of the plaintiff, the title descriptions of each course, and the method of payment (i.e.installments).  Each letter has required a written acceptance and/or signature, which the plaintiff has submitted as to each letter.   Collectively, this demonstrates that the plaintiff and the defendant had a “mutual understanding” and there was a definite agreement on the essential terms, thereby resulting in an enforceable employment agreement.

Moreover, it is undisputed that both parties performed its obligations under the terms of the contract.   The defendant does not dispute whether the plaintiff taught the courses listed in the appointment letters, nor does the plaintiff dispute whether the defendant paid the plaintiff the salary set forth in each appointment letter or provided the plaintiff with the benefits.   The plaintiff states in her deposition that she was, in fact, compensated for each of the courses that she taught throughout the years.   Thus, the defendant has established, through evidentiary support, that there is no genuine issue of material fact as to whether there was a formation of an agreement, specifically an express contract, and whether each party has fulfilled its obligation under the contract.

In response, the plaintiff does not provide any evidentiary support as to whether there is a genuine issue of material fact as to the terms set forth in the appointment letters or whether the plaintiff and the defendant actually agreed upon those terms.   Moreover, the plaintiff does not dispute the contents or the terms of the letters.   Instead, the plaintiff argues that “because the defendant followed the AAUP recommendation ․ defendant had a duty to pay plaintiff on a pro-rated salary during her employment with the defendant.”   The plaintiff also argues that the plaintiff was entitled to additional compensation for her “services.”   It is worth noting that services in addition to teaching the courses, as well as being compensated at a pro-rated rate, are not provided for in the appointment letters.   Thus, there is no express contract as to these terms.   As a result, the question arises as to whether there is an implied contract as to 1) compensation calculated on a pro-rated basis and 2) compensation for additional services.

The defendant has submitted multiple deposition transcripts in support of the position that there is no genuine issue of material fact as to whether there was an implied contract as to either of these terms.   Rivkin stated in her deposition that “[v]isiting part-time instructors ․ were paid on a per-course basis ․” Rivkin further stated that when the plaintiff was hired, the per-course rate “was the rate for all part-time visiting instructors” and it was the standard from which there were rare occasions of deviation.   Rivkin explained that certain deviations occurred in situations regarding “emergency staffing situations” and “fields of study where it's hard to hire people.”   This is buttressed by Brooks' deposition, in which Brooks states how the per-course basis was the “exclusive” method of compensation for part-time visiting professors and there may be occasion the defendant would deviate from the “general rate” given the “field or the search.”   There is no indication that the plaintiff was hired in either of these situations.   Moreover, Rivkin also stated how the pay rate to a pro-rated basis did not occur until 2007.   As evidenced by the appointment letters for the academic years of 2008–2009 and 2009–2010, the plaintiff was offered a pro-rated salary subsequent to the 2007–2008 academic year.

In response, the plaintiff has offered no evidence that the defendant had agreed, by either words or action or conduct, to undertake an actual contractual commitment in regard to paying the plaintiff a pro-rated salary for her academic years prior to 2007.   The plaintiff stated in her deposition that Rivkin told the plaintiff that the defendant “absolutely” followed the AAUP. This, however, does not create a genuine issue of material fact as to the precise method used by the university in calculating part-time visiting professors' salaries.   Firstly, the AAUP sets forth “recommendations.”   As Rivkin stated in her deposition, the college is not an institutional member of the AAUP or bound by its recommendations.   Further, there is no evidence demonstrating that the recommendations of AAUP have been incorporated in any written policy or directive of the university.

Although the recommendations of AAUP may be a custom outside of Connecticut College, generally, “[c]ontracts are not created by evidence of customs and usage.”  Gagnon v. Housatonic Valley Tourism District Commission, supra, 92 Conn.App. 843.   Moreover, there is no evidence as to whether the defendant intended to be bound by the AAUP recommendations as to all professors, including part-time visiting professors.   Wallace v. Gaylord Farm Ass'n., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 89 0233770 (August 11, 1992, Dorsey, J.) [7 Conn. L. Rptr. 155], citing Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989) (“[t]he mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract.”).

There is also no evidence supporting the position that all part-time visiting professors were, in fact, paid on a pro-rated basis.   Although there is discussion regarding the use of a “staffing plan,” the defendant has demonstrated that the assignment of a “staffing level” does not necessarily entail that each faculty member that was assigned such a number was compensated in a pro-rated manner.   As the defendant explains in its response to the interrogatories, there are different categories of faculty, specifically “continuing” versus “visiting.”  “Continuing” faculty carry a less course load because they are expected to fulfill additional obligations such as research and service expected of a tenure-track faculty.   Meanwhile, a “visiting” professor carries a slightly higher course load because they are not held to the same responsibilities.   The plaintiff provides no evidentiary support to dispute whether her status was “continuing” rather than “visiting.”

Similarly, in regard to whether there is an implied contract as to whether the plaintiff was to be compensated for additional services, the plaintiff states that “because [she] went above and beyond her contractual terms of teaching the courses, [the] defendant had a duty to pay [the] plaintiff on a pro-rated salary during her employment with the defendant.”   Firstly, the plaintiff attempts to make a distinction between the compensation to which she was entitled in regard to her “work,” and compensation to which she is entitled in regard to her additional “services.”   Although the defendant's response to interrogatory number seventeen (17) states that “continuing” professors were responsible for research and services, the plaintiff has offered no evidence to support the contention that the particular “services” to which she refers were beyond the scope of the plaintiff's duties and obligations as a part-time visiting faculty member and were therefore not a part of her “work.”   The plaintiff also does not provide any evidentiary support as to whether other similarly situated faculty members, specifically part-time visiting instructors, were compensated for similar “services.”   The plaintiff primarily relies on the statement made by Spencer in response to the plaintiff serving as an advisor for four students' honor theses, specifically that Spencer stated how the plaintiff was doing her a service.   This statement does not demonstrate that the defendant had agreed, by either words or action or conduct, to compensate the plaintiff for this service.   Spencer's statement does not contain any term regarding compensation or amount of compensation.   Thus, the plaintiff has failed to demonstrate through evidentiary support that the defendant had agreed, by either words or action or conduct, to compensate the plaintiff for any additional services.

Accordingly, there is no genuine issue of material fact as to whether the terms of the express contract were met and whether a contract implied in fact existed between the plaintiff and the defendant as to whether the plaintiff would be paid on a pro-rated basis.   Because there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the defendant's motion for summary judgment on count one is granted.

COUNT TWO (FRAUD, DECEIT AND INTENTIONAL MISREPRESENTATION) AND COUNT SIX (NEGLIGENT MISREPRESENTATION)

The defendant argues that it is entitled to summary judgment on count two and six the plaintiff's complaint because the plaintiff cannot demonstrate that the defendant made any false statements regarding the plaintiff's salary.   The plaintiff argues that the defendant made a false representation as to whether the plaintiff was being paid a fair salary and that the representations were made to the plaintiff in order to induce her to teach for the defendant.   Specifically, the plaintiff argues that there is evidence indicating that the plaintiff could presume her salary to be “competitive,” the plaintiff was told that the defendant “absolutely” following the AAUP, and the plaintiff was told that no other compensation was available.

Our courts have long recognized liability for negligent misrepresentation.   “One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”  (Internal quotation marks omitted.)  Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).  “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).  “Proving a false representation is, however, only one part of a claim of actionable misrepresentation.   To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation.”  Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 682, 825 A.2d 210 (2003).

“The requirement that a representation be made as a statement of fact focuses on whether, under the circumstances surrounding the statement, the representation was intended as one of fact as distinguished from one of opinion ․ It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the question ․ [E]ach case must in a large measure be adjudged upon its own facts.”  (Internal quotation marks omitted.)   Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn.App. 471, 478, 767 A.2d 118 (2001).   Nonetheless, “[e]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.”  (Internal quotation marks omitted.)   Kramer v. Petisi, 285 Conn. 674, 681, 940 A.2d 800 (2008).  “[A] promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation.”  Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970).

In this case, the plaintiff argues that the defendant made false representations to the plaintiff in regard to whether the plaintiff was receiving a “fair” salary and primarily relies upon the statements made by Rivkin, Spencer and Garelick.   In support of its motion, the defendant has submitted the deposition transcripts of each of these individuals.   The plaintiff claims that Rivkin's statement that the defendant “absolutely” followed the AAUP, as well as the defendant stating on its website that salary is “competitive,” lead her to believe that her salary was “fair.”   There is no evidence indicating that the plaintiff's salary, although on a per-course basis, was not “competitive.”   Moreover, despite Rivkin's statement that the defendant “absolutely” followed the AAUP recommendations, there is nothing indicating that this statement was intended to represent as a fact to the plaintiff that each and every part-time visiting professor was paid on a pro-rated basis, rather than a per-course basis, prior to 2008.   Although the plaintiff refers to Rivkin's deposition in which she stated that she thought it would be “fairer” to have a prorated salary, this does not demonstrate that the plaintiff's salary was unfair when calculated on a per-course basis.   Rivkin stated that it would be fairer “[b]ecause I equated becoming benefits eligible with having a prorated full-time salary, but it wasn't the practice or the policy.   I just thought it would be fairer.”  (Emphasis added.)   This shows that at the time Rivkin made this statement, she nevertheless knew that the defendant did not follow a pro-rated policy for visiting part-time instructors and merely opined that being paid on such a basis would be “fairer.”   In addition, as similarly stated above, there is no evidence demonstrating that the recommendations of AAUP had been incorporated in any written policy or directive of the university that governs salaries for part-time visiting professors.   In fact, the excerpts from Brooks' deposition upon which the plaintiff relies demonstrates that other faculty, although slightly higher in comparison to the plaintiff, were being paid on a per-course basis.   Thus, there is no genuine issue of material fact as to whether factual representations were made as to whether the plaintiff was being paid an “unfair” salary.   Accordingly, because there is no genuine issue of material fact and the defendant is entitled to summary judgment as a matter of law, the court grants the defendant's motion for summary judgment on count six of the plaintiff's complaint.¹

Next, in regard to the intentional misrepresentation claim, the plaintiff argues that the representations were made to the plaintiff in order to “induce her to teach for the defendant since they were in a bind.”  “A claim of reckless or intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation ‘to induce the other party to act upon it.’   “ Studio Zee, LLC v. Edge Tattoo Co., Superior Court, judicial district of New Haven, Docket No. CV 01 0449758 (March 25, 2002, Zoarski, J.T.R.) (31 Conn. L. Rptr. 701, 702–03).   Thus, “[t]he essential elements of an action in [fraudulent or intentional misrepresentation] are:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”  (Internal quotation marks omitted.)  Cadle Co. v. Ginsberg, 70 Conn.App. 748, 769, 802 A.2d 137 (2002).

Although it has already been established that there is no genuine issue of material fact as to whether the defendant made any false representations to the plaintiff regarding her salary, the plaintiff nevertheless argues that the defendant made the representations in order to induce the plaintiff, mainly because the university was “in a bind.”   In support of this position, the plaintiff refers to her own deposition in which she stated that she was contacted on a Friday to begin teaching on the following Monday.   The abovementioned representations upon which the plaintiff relies in support of her position that she was being paid “unfairly,” however, all occurred subsequent to her initial appointment letter.   The plaintiff has offered no evidence demonstrating that any statements were made to the plaintiff in regard to either the “fairness” or the “competitiveness” of her salary prior to or at the time of the offer that induced her to accepting the position as a part-time visiting professor.   Thus, there is no genuine issue of material fact as to whether the alleged misrepresentations induced the plaintiff to rely upon the statements when accepting the teaching position.

Accordingly, because there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the defendant's motion for summary judgment on two and six is granted.

COUNT THREE (BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING)

The defendant moves from summary judgment on count three of the plaintiff's complaint on the ground that there is no genuine issue of material fact as to whether the defendant engaged in bad faith by not paying the plaintiff more than the amount stated in the appointment letters.   Specifically, the defendant argues that similar to the argument the breach of contract claim, the plaintiff fails to allege an actual breach.   The plaintiff argues that bad faith is evidenced by the defendant not paying the plaintiff in accordance with the AAUP guideline and similarly situated professors, as well as not paying the plaintiff for her additional services.

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or 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.”  (Internal quotation marks omitted.)  Ulster Savings Bank v. 28 Brynwood Lane Ltd., 134 Conn.App. 699, 713, 41 A.3d 1077 (2012).  “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 ․ 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 negligence;  it involves a dishonest purpose.”  (Internal quotation marks omitted.)  Rafalko v. University of New Haven, 129 Conn.App. 44, 51, 19 A.3d 215 (2011).  “The implied covenant of good faith and fair dealing requires faithfulness to an agreed common purpose and consistency with the justified expectation of the other party in the performance of every contract ․ Essentially, it is a rule of construction designed to fulfill the reasonable expectation of the contracting parties as they presumably intended.   The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.”   (Internal quotation marks omitted.)  LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 834, 798 A.2d 445 (2002).

Firstly, as explained under count one, the defendant has met its burden in establishing that there is no genuine issue of material fact as to the breach of contract claim.   Along with the evidentiary support, it is undisputed that the defendant paid the plaintiff the salary set forth in each appointment letter.   Because the underlying contract claim fails, it follows that the claim for breach of convenant of good faith and fair dealing fails as well.   See Brule v. Nerac Corp., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 08 5023811 (December 9, 2009, Shapiro, J.), aff'd, 127 Conn.App. 315, 13 A.3d 723 (2011).   Regardless, the evidence submitted by the plaintiff does not establish that there is a genuine issue of material fact as to whether the defendant acted in bad faith or failed to fulfill its contractual obligations with an interested or sinister motive.   There is nothing indicating that the defendant acted in bad faith to deceive or mislead the plaintiff or deprive or impede her from receiving benefits that she reasonably expected to receive pursuant to the underlying contract.   Furthermore, there is no evidence suggesting that at the time the plaintiff entered into her employment contracts that she reasonably expected to be compensated for additional services, or that these services were not within the scope of her duties and obligations as a part-time visiting professor.

The plaintiff also argues that the defendant failed to fulfill its duty of compensating the plaintiff in accordance with the AAUP guidelines.   As previously explained in regard to the breach of contract claim, there is nothing indicating that the defendant strictly adhered to the AAUP guidelines in regard to part-time visiting professors or that the policy of paying such professions on a pro-rated basis was a policy of the university.   As the depositions of Brooks and Rivkin demonstrate, part-time visiting professors were paid on a per-course basis, although the amount of compensation may have varied based on the department.   In addition to the lack of evidence as to whether other part-time visiting professors were paid on a prorated basis, there is also a lack of evidence suggesting that other part-time visiting professors were additionally compensated for services, such as advising multiple honors theses.

Because there is no genuine issue of material fact as to whether there was a breach of contract and whether the defendant acted in bad faith to deceive or mislead the plaintiff, the defendant is entitled to summary judgment as matter of law on count three of the plaintiff's complaint.   Accordingly, the defendant's motion for summary judgment on count three is granted.

COUNT FIVE (WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY)

The defendant moves for summary judgment on count five of the plaintiff's complaint on the ground that the wrongful discharge claim is groundless.   Because the plaintiff was employed pursuant to a contract and not an employee at will, the defendant argues that the plaintiff's claim is barred.   The plaintiff argues that because the defendant was “terminating” the plaintiff after two years, the employment must be characterized as “at-will.”   The plaintiff also argues that the plaintiff was terminated for “demanding” wages owed to her, which is in violation of General Statutes § 31–72.

The Connecticut Supreme Court has defined employment at will as “contracts of permanent employment, or for an indefinite term ․” Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980).  “In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.   Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability.”  (Internal quotation marks omitted.)   Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697–98, 802 A.2d 731 (2002).   The parties to an employment agreement, however, may modify the default rule of employment at will by contract and make an employee terminable only for good cause.  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).   Regardless, an employee under an express written contract for a determined term can be terminated only upon a showing of just cause for dismissal.  Slifkin v. Condec Corp., 13 Conn.App. 538, 549, 538 A.2d 231 (1988).  “ ‘Just cause’ substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, by forbidding the employer to act arbitrarily or capriciously.”  Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 475.

In this case, the plaintiff argues that “because the termination notice occurred between appointments and the terms of plaintiff's employment were changing,” the plaintiff's employment was “essentially at-will employment.”   The plaintiff further states that “since the defendant had the right to terminate the relationship for any reason, or no reason, rather than good cause,” the employment must be characterized as “at-will.”   In regard to these arguments, it is first worth noting that the plaintiff has asserted a breach of contract claim in count one, as well as a breach of implied covenant of good faith and fair dealing in count three, both of which are premised on the existence of an underlying contract.   The plaintiff specifically sets forth the following allegations in her complaint:  “Defendant entered into various contracts with the plaintiff” and “Plaintiff and defendant entered in several contracts on the strength of defendant's representation and promises.”   The plaintiff's claim for wrongful termination also incorporates these allegations.   As seen in the complaint, in paragraph one (1) of the count five specifically states “plaintiff repeats and re-alleges the allegation set forth above as though fully set forth herein.”   This paragraph entails the entire allegations of count four, which has incorporated all the allegations of count three, two and one.   Thus, the plaintiff has incorporated her allegations in regard to the employment contract into her wrongful discharge claim.   Because the plaintiff's wrongful discharge claim is based on the existence of an underlying employment contract between the plaintiff and the defendant, the plaintiff's claim for wrongful discharge is legally insufficient.  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 789 n.26, 23 A.3d 1192 (2011), citing D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 211 n.1, 520 A.2d 217 (“the right to recover in tort for wrongful discharge extends only to employees at will” and “[t]he plaintiff in this case, who was employed by the defendants pursuant to a term contract of fixed duration, was not an employee at will.   She therefore was not entitled to invoke the doctrine of wrongful discharge.”).

Furthermore, even if assuming that the employment relationship between the plaintiff and defendant was “at-will” rather than contractual, the plaintiff specifically argues that “what this situation boils down to is that the plaintiff was terminated for demanding the wages already owed to her per the defendant's policies, practices and representations, but were never paid to her” and refers to the public policy embedded in General Statutes §§ 31–71a through 31–71i and 31–72.   Although the payment of wages in consideration of an employee's labor is in fact a deeply held public policy consideration, the plaintiff has an adequate statutory remedy for all claims for wages under 31–72.²  In Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223 (1985), our Appellate court held that an employee discharged in violation of public policy may not bring a common law action in tort or contract when there is an adequate statutory remedy available.   The court relied upon the language of Wehr v. Burroughs Corp., 438 F.Sup. 1052 (E.D.Pa.1977), which made clear the underlying rationale of recognizing the public policy exception to at-will cases is the protection of certain strong community policies, which policies are sufficiently served if in fact the employee has a statutory remedy to enforce those same considerations.   Atkins v. Bridgeport Hydraulic Co., supra, 648.   See also Good v. Goodway Technologies Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 325462 (September 27, 1996, Hartmere, J.) (finding that since General Statutes § 31–72 provided a “remedy to address the plaintiff's claim for wrongful discharge in violation of the public policy against withholding wages,” defendant's motion to strike was granted).   The plaintiff particularly refers to the pro-rated basis and is seeking the difference between the pay she received and the pay she could have received if she were compensated on a pro-rated basis.   Thus, the plaintiff is specifically seeking wages that she believes were owed to her for teaching the courses, as well as her additional services.   The plaintiff therefore has an adequate remedy pursuant to § 31–72.

Accordingly, because there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the defendant's motion for summary judgment on count five is granted.

COUNT EIGHT (QUANTUM MERUIT)

The defendant moves for summary judgment on count eight of the plaintiff's complaint on the ground that there is no genuine issue of material fact as to whether the plaintiff was required to perform additional services or that there was any representation that she would be compensated for those services.   The plaintiff argues that summary judgment should be denied because the plaintiff provided services that were not a part of her express contract and the defendant requested and benefitted from those services.

“Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered ․ The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered.”  (Internal quotation marks omitted.)  Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n.5, 889 A.2d 950, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006).

In this case, the plaintiff primarily relies upon Garelick's statement that certain services were “beyond [the plaintiff's] contract” and Spencer's statement that the plaintiff was “doing [her] a service.”   Although these statements may represent that the defendant knowingly accepted the services, they do not show that the defendant made any representation to the plaintiff that she would be compensated for these services in the future.   As similarly explained in regard to the plaintiff's breach of contract claim, these statements do not contain any term regarding compensation or amount of compensation and the plaintiff does not provide any evidence as to whether advising honor theses was beyond the scope of duties required of part-time visiting professors or whether other part-time visiting professors were compensated for these additional services.

The plaintiff has failed to establish that there is a genuine issue of material fact as to whether an implied contract existed between the plaintiff and the defendant.   Accordingly, because there is no genuine issue of material fact and the defendant is entitled to summary judgment as a matter of law, the court grants the defendant's motion of summary judgment on count eight.

ORDER

For the foregoing reasons the court grants the defendant's motion for summary judgment on counts one, two, three, five, six, and eight of the plaintiff's complaint.

Devine, J.

FOOTNOTES

FN1. Because there is no genuine issue of material fact as to whether false representations were made, the court need not address whether there is an issue of fact as to the other elements for negligent misrepresentation..  FN1. Because there is no genuine issue of material fact as to whether false representations were made, the court need not address whether there is an issue of fact as to the other elements for negligent misrepresentation.

FN2. General Statutes § 31–72 provides a statutory remedy that the plaintiff may pursue:  “When any employer fails to pay an employee wages in accordance with the provisions of sections 31–71a to 31–71i, inclusive ․ such employee may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court ․” Also, General Statutes § 31–71a(3) defines “wages” as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.”   Our Supreme Court “has specifically acknowledged § 31–72 as a remedial statute for the collection of wages that provides penalties in order to deter employers from deferring wage payments once they have accrued.”  (Internal quotation marks omitted.)   Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463, 704 A.2d 222 (1997)..  FN2. General Statutes § 31–72 provides a statutory remedy that the plaintiff may pursue:  “When any employer fails to pay an employee wages in accordance with the provisions of sections 31–71a to 31–71i, inclusive ․ such employee may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court ․” Also, General Statutes § 31–71a(3) defines “wages” as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.”   Our Supreme Court “has specifically acknowledged § 31–72 as a remedial statute for the collection of wages that provides penalties in order to deter employers from deferring wage payments once they have accrued.”  (Internal quotation marks omitted.)   Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463, 704 A.2d 222 (1997).

Devine, James J., J.