Terrence J. Madigan v. East Hartford Housing Authority (2013)

MEMORANDUM OF DECISION DEFENDANT'S MOTION TO SET ASIDE THE VERDICT ¹

This action arises out of the termination of the plaintiff, Terrence J. Madigan, from his position as the executive director of the East Hartford Housing Authority (EHHA).   The operative complaint against the defendant, EHHA, alleged claims of breach of his employment contract (count one) and breach of the covenant of good faith and fair dealing (count two).   The plaintiff's employment contract provided for an initial term of five years and was set to expire on January 25, 2010.²  On April 1, 2008, the plaintiff was placed on administrative leave from the EHHA and subsequently was terminated from his employment as of October 21, 2008.   After a fourteen-day trial, concluding on October 25, 2012, the jury found in favor of the plaintiff and awarded economic damages of $109,257.45 and noneconomic damages of $100,000 for a total award of $209,257.45.   Thereafter, on July 18, 2012, the defendant filed a motion to set aside the verdict on the grounds that the verdict was against the evidence, contrary to the law, the court erred in various evidentiary rulings, and the court erred in its instruction to the jury regarding the issues of “just cause,” breach of the covenant of good faith and fair dealing and emotional distress as it relates to count two.   The parties filed briefs both before and after oral argument, which was heard on January 7, 2013.³  On May 1, 2013, the motion was denied without a memorandum.⁴

I

LEGAL STANDARD—MOTION TO SET ASIDE VERDICT

The defendant moved for a directed verdict at the close of the plaintiff's evidence on the same grounds that it moved to set aside the verdict.   Although the court initially reserved on the motion for directed verdict, it was subsequently denied on May 1, 2013, at the same time as the motion to set aside the verdict.

Practice Book § 16–37 provides, in relevant part:  “Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.”  “A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ․ In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ․ Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation ․ A directed verdict is justified if ․ the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party․  A verdict may be directed ․ where the claim is that there is insufficient evidence to sustain a favorable verdict ․

“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ․ [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor.”  (Citations omitted;  internal quotation marks omitted.)  Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 738–39, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ․ A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion ․ This limitation on a trial court's discretion results from the constitutional right of litigants to have issues of fact determined by a jury.”  Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010).  “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.”  Murteza v. State, 7 Conn.App. 196, 208–09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986).

“[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence ․ rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier's] verdict ․ In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable ․ In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”   (Internal quotation marks omitted.)  O'Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

II

COUNT 1—BREACH OF CONTRACT

The plaintiff claimed that the defendant breached his employment contract by terminating him without just cause.   Although the defendant argues that the plaintiff did not present any evidence of a breach of contract, the jury apparently disagreed.  “A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is ․ unsupported by the evidence.   Kurti v. Becker, 54 Conn.App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).   A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.”  (Emphasis added;  internal quotation marks omitted.)  PAR Painting, Inc. v. Greenhorne & O'Mara, Inc., 61 Conn.App. 317, 322, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001).

In the present case, the defendant claims that there was insufficient evidence to support the finding that the defendant lacked just cause to terminate the plaintiff.   It contends that, at trial, the defendant presented three reasons for the plaintiff's termination, to wit:  the plaintiff did not follow the personnel policy of the EHHA in connection with hiring Marlene Walsh;  the plaintiff refused to work with the board of commissioners;  and, the plaintiff treated the staff of the agency improperly.   In light of this evidence, the defendant argues that there was insufficient evidence to prove the plaintiff was terminated without just cause.   The defendant also argues that the plaintiff failed to present any evidence to refute the investigative findings in the Dunn report.⁵

At trial, Commissioners Kate and Keating testified as to the reasons for the plaintiff's termination.   Commissioner Kate testified that the plaintiff was terminated for creating a hostile work environment by belittling and insulting the EHHA staff at a March 2008 staff meeting and because the plaintiff was not working with the board of commissioners.   Commissioner Keating testified that the plaintiff was terminated because he created a hostile workplace with the staff, he was not working with the board of commissioners, and he did not follow personnel rules in the hiring of Walsh.

A

Despite the defendant's claims, there was sufficient evidence from which the jury could have reasonably concluded that there was not just cause to terminate the plaintiff based on the claim that the plaintiff violated personnel rules in the hiring of Walsh.   Commissioner Keating testified that he did not recall approving the hiring of Walsh and the minutes of the board of commissioners' meetings were devoid of any record that it officially approved the hiring of Walsh.   Nevertheless, there was evidence to establish that the agency was experiencing some financial difficulty and, as a means of exploring alternative sources of revenue, the position of “director” was created.⁶  There was also evidence that the board of commissioners knew Walsh was a candidate for the newly created position of director, agreed that this position would be beneficial to the EHHA, and knew that Walsh was eventually hired for this position.   Commissioner Kate testified that the board of commissioners approved of Walsh being hired, approved of her employment contract and salary, and, when the plaintiff hired Walsh, the plaintiff was “doing exactly what the board of commissioners wanted him to do.”   Accordingly, there was evidence to establish that the board of commissioners approved and accepted the plaintiff's hiring of Walsh.   To the extent that the personnel rules of the authority were not followed to the letter, based on the foregoing evidence, the jury may well have determined that the board of commissioners was willing to overlook this technical omission at the time Walsh was hired and the defendant only raised it as an issue after April 1, 2008, when the plaintiff was put on administrative leave and it became one among several post hoc rationalizations necessary to build the defendant's case for a just cause termination.

B

There was also sufficient evidence from which the jury could have reasonably concluded that there was not just cause to terminate the plaintiff's employment based on the defendant's claim that the plaintiff created a hostile work environment by belittling and insulting the EHHA staff at the March 20, 2008 staff meeting.   Commissioner Keating testified that the plaintiff was yelling, swearing and terrorizing the staff over an anonymous letter that had surfaced, wherein the plaintiff was essentially accused of having an inappropriate relationship with Walsh.   However, there was also evidence establishing that the plaintiff was upset about the letter, which appeared to contain inside information.   The plaintiff testified that he was also upset and concerned about an anonymous survey concerning staff morale generated by the board of commissioners and merely wanted to address with the staff the rumors circulating about him and Walsh and did not use abusive language or harass them.   Even Keating admitted that such a reaction would be justified and that it would be “natural” for someone to feel upset over such allegations.   Thus, the jury could have reasonably concluded that the plaintiff merely sought to warn the staff about the dangers of anonymous comments and to be cautious about what they say to others about fellow employees.   The jury may have also considered that there was conflicting evidence of the plaintiff's demeanor at the meeting and that Keating and the town attorney overreacted to the secondhand information that circulated following the meeting.

C

Finally, the jury could have reasonably concluded that there was not just cause to terminate the plaintiff based on the defendant's claim that the plaintiff refused to work with the board of commissioners.   There was evidence that the plaintiff competently ran the EHHA, communicated with the board of commissioners to the best of his ability, and was communicative every time he met with the board of commissioners.   While there may have been evidence of tension between the plaintiff and Keating, there was also evidence that they had ongoing communications about official business.   Keating testified that the plaintiff was terminated for his insubordinate act of walking out of a board meeting on March 18, 2008.   However, the jury could have reasonably concluded that the plaintiff was not in fact insubordinate when he took leave of that board meeting based on other evidence that the plaintiff attended the meeting in question where he voiced his concern over the flaws inherent in the anonymous survey distributed to the staff regarding morale, and that, before leaving the meeting, he confirmed that the board of commissioners had no more questions for him, and, only then, announced that he would be excusing himself from the meeting.   Therefore, the jury could have reasonably concluded that the plaintiff was not insubordinate in leaving the meeting and this act did not constitute just cause for his termination.

To the extent that the evidence presented by the defendant suggested that the work environment at the EHHA was tense and the morale was low, there were several reasons also presented in evidence that may have contributed to this atmosphere.   For example, there was testimony that there was financial strain at the EHHA, and that the EHHA was in the midst of labor negotiations.   There was also evidence that Commissioner Keating often interfered with the day-to-day business of the EHHA and tended toward micro-managing the employees of EHHA.

Based on the foregoing, contrary to the claims of the defendant, there was sufficient evidence upon which the jury could have reasonably relied to conclude that the myriad reasons offered by the defendant in support its termination of the plaintiff's employment were not credible and did not constitute just cause for his termination.   The jury may have also found that the validity of the defendant's claim of just cause for the plaintiff's termination was undermined by the amount of hearsay information contained in the evidence that Keating, Kate and the commissioners obviously relied on in their judgments and decision making about the plaintiff, including but not limited to the January 2008 anonymous letter, the responses to the anonymous survey, the reports of some staff members about the March 20, 2008 staff meeting and the Dunn report.

III

COUNT 2—BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING AND EMOTIONAL DISTRESS DAMAGES

The defendant argues that the verdict should be set aside as to count two because the award of non-economic damages in connection with this claim is inconsistent with the law and the evidence.   In support of his argument, the defendant contends that the plaintiff's claim of emotional distress damages should not have gone to the jury, and further, that there was no evidentiary support to connect the plaintiff's claim of emotional distress to any conduct on the part of the defendant that could have constituted a breach of the covenant of good faith and fair dealing.   The court disagrees.   For all the reasons stated in connection the motion to set aside the verdict as to count one, the jury could have reasonably found that the actions of the defendant at a time in early 2008, predating his administrative leave commencing on April 1, 2008, up until the time of his formal termination from employment on October 21, 2008, constituted a breach of the covenant of good faith and fair dealing, which was a substantial factor in causing him to suffer significant emotional distress.

“[E]very contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  Jones v. H.N.S. Management Co., 92 Conn.App. 223, 227, 883 A.2d 831 (2005).  “[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Emphasis added;  internal quotation marks omitted.)  Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).   Bad faith involves “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Emphasis added;  internal quotation marks omitted.)  New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 661, 927 A.2d 333 (2007).

Emotional distress damages are legally warranted where a breach of the covenant of good faith and fair dealing claim is properly proved.   See generally Buckman v. People Express, Inc., 205 Conn. 166, 530 A.2d 596 (1987) (upholding an award for emotional distress damages in connection with the plaintiff's claim that the defendant breached the duty of good faith, but remitting the amount of the award).   Thus, those acts taken in bad faith which impede the plaintiff's rights under the contract must be the cause of the plaintiff's emotional distress in order for such damages to be warranted.   Id., 171.

The essence of the defendant's argument in support of its motion to set aside the verdict as to count two, is that the plaintiff's attorney failed to present evidence that the plaintiff's emotional distress was caused by the defendant's alleged breach of the covenant of good faith and fair dealing occurring in the course of the plaintiff's employment as opposed to the termination thereof.   In particular, the defendant argues that the plaintiff's attorney only asked the plaintiff what emotional distress resulted from being terminated and did not ask the plaintiff what emotional distress, if any, resulted from the defendant's alleged bad faith acts.   The defendant argues that because termination, by itself, cannot form the basis for recovery of emotional distress damages, the award of emotional distress damages fails as a matter of law.

The defendant focuses its attention on the following question posed by the plaintiff's attorney to the plaintiff regarding emotional distress:  “I want to ask you now about ․ the emotional impact that you're [sic] being terminated from East Hartford had on you;  so it's been, what, it's been a number of years now since you were terminated and started this lawsuit.   Could you describe to the jury what kind of emotional impact that's had?”  (Emphasis added.)   In response to this question, the plaintiff essentially explained that the process of being terminated had been devastating for him inasmuch as it caused him to experience depression, anxiety, self-doubt and sleeplessness.   He also testified regarding the struggle of finding comparable employment.

Beyond the foregoing exchange between the plaintiff's counsel and the plaintiff, there was substantial evidence whereby the jury could have reasonably concluded that the emotional distress described by the plaintiff in response to his attorney's question was the culmination of all the emotional distress caused by the bad faith acts that precipitated the plaintiff's actual termination.   For example, the plaintiff testified, “When I got the call about not coming back in [from the town attorney], I was in the driveway walking into the house and continued talking to the attorney, and he also relayed that one individual had a concern that I had an affair with this person, with the—with this Walsh, Marlene Walsh ․ And my wife was sitting right there on the couch.   She became very distraught.   It got pretty heated, pretty tense ․ It impacted me 100 percent.   It was devastation, and I found myself all of a sudden having to explain all kinds of things, and not knowing still because what was going to happen it was still fresh, but I became very depressed, lot of anxiety, lot of self-doubt, lot of, you know, why, what happened, and I kept questioning and going over and over in my mind and, obviously, not a lot a sleep, and things progressed it—it did get worse.”

In addition, it was implicit in the tenor of the plaintiff's testimony concerning all the events leading to his termination that he suffered from emotional distress during this entire period.   The plaintiff and others testified that he was extremely upset by the anonymous letter sent to the mayor and the board of commissioners and the fact that the person who wrote it seemed to have information from inside the authority;  that Kate and Keating informed him that they were going to discuss the anonymous letter with the town attorney and the mayor but not with him;  that the board of commissioners initiated an anonymous survey of his staff in February 2008, without any input from him, which was responded to by sixteen of the forty-four employees of the EHHA;  that Keating, while excluding the plaintiff from this process, involved the plaintiff's secretary in the survey process;  that at a board meeting held on March 18, 2008, the plaintiff was confronted by the allegations of the anonymous letter and negative comments made about him in responses from the anonymous survey and felt attacked;  that the plaintiff became agitated and upset during the March 18, 2008 meeting but never “disrespectful” or “insubordinate;” ⁷  that the plaintiff was upset and raised his voice during the March 20, 2008 staff meeting on the topic of the anonymous letter;  that the commissioners called an emergency board meeting without notice to the public or the plaintiff on April 1, 2008, during which they decided to place him on an indefinite administrative leave, a meeting which the Freedom of Information Commission (“FOIC”), ultimately determined was illegally convened;  that at the hearings held on September 4, 2008 and November 18, 2008, the FOIC found no evidence, “other than speculation” to suggest that the plaintiff's behavior created a volatile situation warranting concern for staff safety; ⁸  that the town attorney telephoned the plaintiff after the April 1, 2008 “emergency” board of commissioners' meeting and informed him that the board wanted him to go away quietly;  and that the defendant thereafter initiated an investigation of him by a private investigator, while the plaintiff was on administrative leave, which included interviews of the board of commissioners and the EHHA staff.   Based on this evidence, as well as the evidence of breach of the plaintiff's employment contract, the jury may have reasonably found that the defendant breached the covenant of good faith and fair dealing implied in the plaintiff's employment contract and that he suffered emotional distress as a result.   Therefore, the defendant's argument that the plaintiff failed to present evidence linking the emotional distress to the defendant's bad faith acts is without merit.

IV

EVIDENTIARY RULINGS

The defendant moves to set aside the verdict on the ground that the court erred in various evidentiary rulings and thus prevented the defendant from having a fair trial.   Specifically, the defendant argues that, throughout the course of the trial, the trial court “clearly showed a preference for the plaintiff” that ultimately prevented the jury from fairly assessing all issues in the case.

“ ‘[A]dverse rulings do not themselves constitute evidence of bias ․ Obviously, if a ruling against a party could be used as an indicia of bias, at least half of the time, every court would be guilty of being biased against one of two parties.   Moreover, the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.’  Massey v. Branford, 118 Conn.App. 491, 502, 985 A.2d 335 (2008) [, cert. denied, 295 Conn. 913, 990 A.2d 345 (2010) ].   The fact that [a] plaintiff strongly disagrees with the substance of the court's rulings does not make those rulings evidence of bias.”  Burns v. Quinnipiac University, 120 Conn.App. 311, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).

In support of its argument, the defendant provides only general examples of when the trial court did not make evidentiary rulings in the defendant's favor.   The defendant includes no specific examples or transcript references;  nor does it cite any case law in support of its argument.   Thus, the defendant has wholly failed to demonstrate the existence of any preferential treatment or bias on the part of the court that may have impacted the defendant's right to a fair trial.

V

VALIDITY OF JURY INSTRUCTIONS

The defendant moves to set aside the verdict on the ground that the court erred in the charge to the jury with regard to the issues of (1) just cause, (2) the claim of breach of the covenant of good faith and fair dealing and, (3) the emotional distress damages related the claim of breach of covenant and good faith and fair dealing.   Inasmuch as the defendant has made no argument and has provided no legal support for its claim that the court erred in its instruction to the jury on the issue of the breach of covenant of good faith and fair dealing, this claim is deemed abandoned.   See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ( “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned”).

The defendant argues that the court erred in instructing the jury on the issue of emotional distress damages as it relates to his claim of breach of the covenant of good faith and fair dealing.   As previously discussed, because there was sufficient evidence for the jury to consider the plaintiff's claim of a breach of the covenant of good faith and fair dealing arising out of his employment contract with the defendant and whether the plaintiff suffered emotional distress as a consequence of that breach, the defendant's claim that the court should not have instructed the jury on emotional distress as an element of the plaintiff's damages is without merit.

The defendant's third and final argument on the subject of the jury instructions is that the court erred in its instruction on just cause ⁹ because the court “marshaled the evidence” while giving the jury instruction on just cause and misled the jury by raising issues that were not presented in the evidence.   The defendant contends specifically that, at trial, there was no evidence presented that the plaintiff was terminated as a result of his non-compliance with an order of the employer, and thus, that there should have been no instruction regarding a managerial employee's discretion in complying with an employer's orders.

The defendant specifically takes issue with the following portion of the instruction:  “Not every act of insubordination or misconduct justifies an employer in firing an employee, because if that were the case, if an employee's conduct were less than perfect, he could be discharged for ‘just cause.’   In the case of a managerial employee, in particular, whose position gives him some latitude and discretion in working out the details of his service, a failure to immediately and literally comply with the employer's orders may not constitute disobedience.   It is a question of fact for the jury to determine whether the limits of that latitude and discretion have been exceeded.   In any contract of employment for a fixed period, an employee prematurely discharged without good or just cause may recover damages.”   The court notes that the plaintiff also took exception to the jury instruction on just cause.   The instruction that was ultimately given was compiled in an effort to ameliorate the concerns of each side.

“[T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.”  Gombos v. Aranoff, 53 Conn.App. 347, 351, 730 A.2d 98 (1999).   The Appellate Court has noted that, “[i]n reviewing a challenge to jury instructions, we must examine the charge in its entirety ․ While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.”  (Citation omitted;  internal quotation marks omitted.)  Barrenechea v. Lamonica, 44 Conn.App. 389, 395, 689 A.2d 1137 (1997).  “We do not critically dissect a jury instruction.”   (Internal quotation marks omitted.)  Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 715, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004).   Finally, “ ‘[a] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.’  Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 867, 794 A.2d 997 (2002).”  Savoie v. Daoud, 101 Conn.App. 27, 38, 919 A.2d 1080 (2007).

The court's instruction regarding a managerial employee's discretion finds support in Connecticut case law.  Pollak v. Danbury Mfg. Co., 103 Conn. 553, 131 A. 426 (1925);  Cruz v. Visual Perceptions, LLC, Superior Court, judicial district of Hartford, Docket No. CV 09 5026050S (October 29, 2010, Peck J.);   Berger v. Balmar Marine of Canton, Inc., Superior Court, judicial district of New Britain, Docket No. CV 90 0441360S (February 28, 1992, Hammer, J.).   The gravamen of the defendant's argument seems to be that the court's instruction regarding non-compliance with an employer's order was not proper because, at trial, there was no evidence suggesting the plaintiff had not complied with an order of the defendant.   This argument is hypertechnical and without merit.   The evidence showed that the plaintiff was a managerial employee who exercised discretion in performing his job functions.   Further, the defendant presented evidence suggesting that the plaintiff had been terminated for noncompliance with the defendant agency's rules and for failure to work with the board of commissioners.¹⁰  The phrase “comply with the employer's orders,” which was used in the jury instruction, could be reasonably construed to mean complying with the employer's rules or requests.   As such, the court's instruction was proper and cannot reasonably be said to have misled the jury.

Finally, reading the court's instruction on just cause, it is clear that the court did not refer to any evidence and so did not improperly marshal evidence in favor of the plaintiff.   The instruction regarding managerial employees such as the plaintiff was made in an effort to adapt a general instruction on this issue to the specific evidence presented in this case.   For this reason, the defendant's argument that the court improperly marshaled the evidence in its instruction on just cause is simply without merit.

CONCLUSION

Accordingly, for all the foregoing reasons, the defendant's motion to set aside the verdict was denied.

Peck, J.

FOOTNOTES

FN1. This memorandum is issued pursuant to an order of the Appellate Court, dated September 18, 2013, directing this court to articulate the legal and factual basis for its denial of the defendants' motion to set aside the verdict.   Although the defendant also filed motion for remittitur, which was also denied, it did not seek articulation concerning that motion..  FN1. This memorandum is issued pursuant to an order of the Appellate Court, dated September 18, 2013, directing this court to articulate the legal and factual basis for its denial of the defendants' motion to set aside the verdict.   Although the defendant also filed motion for remittitur, which was also denied, it did not seek articulation concerning that motion.

FN2. Thereafter, the employment contract provided for two-year terms, which were subject to additional conditions..  FN2. Thereafter, the employment contract provided for two-year terms, which were subject to additional conditions.

FN3. The defendant's initial memorandum of law in support of its motions, filed on November 1, 2012, contained only one case citation in support of the various grounds of the motion and no transcript or exhibit references.   The defendant filed a supplemental memorandum to which a transcript of the plaintiff's trial testimony was attached.   Finally, the defendant filed a supplemental memorandum on January 22, 2013, subsequent to oral argument.   No additional citations to either the law or the evidence were provided therein.   The single case and the only transcript reference contained in all three memoranda related to the issue of emotional distress in connection with count two..  FN3. The defendant's initial memorandum of law in support of its motions, filed on November 1, 2012, contained only one case citation in support of the various grounds of the motion and no transcript or exhibit references.   The defendant filed a supplemental memorandum to which a transcript of the plaintiff's trial testimony was attached.   Finally, the defendant filed a supplemental memorandum on January 22, 2013, subsequent to oral argument.   No additional citations to either the law or the evidence were provided therein.   The single case and the only transcript reference contained in all three memoranda related to the issue of emotional distress in connection with count two.

FN4. Neither Practice Book §§ 6–1 or 64–1 requires the court to issue a statement of decision when denying a motion to set aside the verdict and the court initially declined to do so..  FN4. Neither Practice Book §§ 6–1 or 64–1 requires the court to issue a statement of decision when denying a motion to set aside the verdict and the court initially declined to do so.

FN5. At trial, there was evidence that the EHHA hired an investigator by the name of David J. Dunn, who interviewed staff and board members and created a report containing six grounds for the plaintiff's termination.   Inasmuch as the Dunn report was replete with hearsay evidence, and most of the witnesses interviewed by Dunn were called to testify by the defendant, it was entered into evidence with a limiting instruction.   The plaintiff was not required to rebut the findings in the Dunn report as part of his case in chief..  FN5. At trial, there was evidence that the EHHA hired an investigator by the name of David J. Dunn, who interviewed staff and board members and created a report containing six grounds for the plaintiff's termination.   Inasmuch as the Dunn report was replete with hearsay evidence, and most of the witnesses interviewed by Dunn were called to testify by the defendant, it was entered into evidence with a limiting instruction.   The plaintiff was not required to rebut the findings in the Dunn report as part of his case in chief.

FN6. The actual title was Director of Policy and Affordable Housing Development.   See Plaintiff's Exhibit 4..  FN6. The actual title was Director of Policy and Affordable Housing Development.   See Plaintiff's Exhibit 4.

FN7. See Plaintiff's Exhibit 20..  FN7. See Plaintiff's Exhibit 20.

FN8. See Plaintiff's Exhibit 6..  FN8. See Plaintiff's Exhibit 6.

FN9. Regarding the issue of just cause, the court instructed the jury as follows:  “The question of whether an employer has terminated an employee for just cause is a question of fact for the jury to decide.“Good cause, or just cause, as distinguished from the subjective standard of unsatisfactory service, is defined as a substantial reason, which amounts in law to a legal excuse for failing to perform an act otherwise required by law, and one that affords a legal excuse or a legally sufficient ground or reason for not performing a contractual promise.   The employer rightfully has managerial discretion to make independent, good faith judgments in making such a decision.   Accordingly, jurors do not possess the authority to invade an employer's legitimate managerial discretion.   However, good cause or just cause substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, and by forbidding the employer to act arbitrarily or capriciously.   Not every act of insubordination or misconduct justifies an employer in firing an employee, because if that were the case, if an employee's conduct were less than perfect, he could be discharged for ‘just cause.’   In the case of a managerial employee, in particular, whose position gives him some latitude and discretion in working out the details of his service, a failure to immediately and literally comply with the employer's orders may not constitute disobedience.   It is a question of fact for the jury to determine whether the limits of that latitude and discretion have been exceeded.   In any contract of employment for a fixed period, an employee prematurely discharged without good or just cause may recover damages.“The burden of proof is on the plaintiff to prove by a preponderance of the evidence that the defendant breached his contract of employment by terminating him without just cause.”.  FN9. Regarding the issue of just cause, the court instructed the jury as follows:  “The question of whether an employer has terminated an employee for just cause is a question of fact for the jury to decide.“Good cause, or just cause, as distinguished from the subjective standard of unsatisfactory service, is defined as a substantial reason, which amounts in law to a legal excuse for failing to perform an act otherwise required by law, and one that affords a legal excuse or a legally sufficient ground or reason for not performing a contractual promise.   The employer rightfully has managerial discretion to make independent, good faith judgments in making such a decision.   Accordingly, jurors do not possess the authority to invade an employer's legitimate managerial discretion.   However, good cause or just cause substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, and by forbidding the employer to act arbitrarily or capriciously.   Not every act of insubordination or misconduct justifies an employer in firing an employee, because if that were the case, if an employee's conduct were less than perfect, he could be discharged for ‘just cause.’   In the case of a managerial employee, in particular, whose position gives him some latitude and discretion in working out the details of his service, a failure to immediately and literally comply with the employer's orders may not constitute disobedience.   It is a question of fact for the jury to determine whether the limits of that latitude and discretion have been exceeded.   In any contract of employment for a fixed period, an employee prematurely discharged without good or just cause may recover damages.“The burden of proof is on the plaintiff to prove by a preponderance of the evidence that the defendant breached his contract of employment by terminating him without just cause.”

FN10. For example, there was testimony that Commissioner Keating would ask for answers to particular questions and the plaintiff would not readily provide answers.   There was also testimony suggesting that the plaintiff failed to follow personnel policy or obtain the board of commissioners' approval for the hiring of Walsh..  FN10. For example, there was testimony that Commissioner Keating would ask for answers to particular questions and the plaintiff would not readily provide answers.   There was also testimony suggesting that the plaintiff failed to follow personnel policy or obtain the board of commissioners' approval for the hiring of Walsh.

Peck, A. Susan, J.