Opinion
CV166066564S
01-19-2018
Thomas Arciuolo v. Tomtec, Inc. et al.
UNPUBLISHED OPINION
Caption Date: January 18, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wahla, M. Nawaz, J.
MEMORANDUM OF DECISION IN RE MOTION FOR SUMMARY JUDGMENT #110
Wahla, J.
ISSUE
The issues presented to the court are, in light of the statutory requirements for filing an action, state and federal statutes of limitations, and the nature of the employment agreement between the defendants and the plaintiffs, whether the claims of the complaint in the present case should be dismissed or whether summary judgment should be entered in favor of the defendant. As each count alleged in the complaint fails for one of the reasons set forth below, the motions to dismiss and for summary judgment is granted as to all counts.
FACTS
On March 27, 2017, the plaintiffs in the present action, Thomas Arciulo, William J. Harris, George F. Mancini, and Howard Tomlin filed a revised complaint (complaint) against the defendants, Tomtec, Inc. (Tomtec) and Thomas W. Astle. The complaint alleges the plaintiffs were terminated from employment by the defendants on November 29, 2012, in retaliation against the plaintiffs and in violation of existing employment contracts between the plaintiffs and the defendants. The complaint includes counts of breach of contract, promissory estoppel, the maintenance of a hostile work environment in violation of General Statutes § 46a-60 (Connecticut Fair Employment Practices Act, or CFEPA), intentional infliction of emotional distress, and wrongful discharge in violation of General Statutes § 31-51q. Additional facts will be provided as necessary.
The complaint alleges violations of General Statutes § 46a-60(a)(1), (4), and (8), which provide, in relevant part:
General Statutes § 31-51q provides, in relevant part: " Any employer ... who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
On May 5, 2017, the defendants filed an answer denying the core features of the plaintiffs’ complaint and issued a series of special defenses, alleging that a variety of statutes of limitations bar each of the claims, that the employment agreements between the plaintiffs and the defendants were at-will, that equitable estoppel should apply to the plaintiffs’ claims, and that the plaintiffs failed to mitigate their damages. On June 28, 2017, the plaintiffs filed a reply generally denying the defendants’ special defenses. On July 7, 2017, the defendants filed a motion to dismiss and for summary judgment, followed by a memorandum of law in support on July 10, 2017, arguing that the plaintiff’s claims are time barred by several statutes of limitations and that there is no genuine issue of material fact that the employment agreements between the plaintiffs and the defendants were oral and at-will, and, therefore, that the defendants could not have violated any duty in terminating the plaintiffs. On October 2, 2017, the plaintiffs filed an objection to the defendants’ motion, arguing, in part, that federal tolling provisions save their claims and that there exists a genuine issue of material fact as to the written and at-will nature of the employment agreements. The defendants filed a memorandum in reply to the plaintiffs’ objection on October 13, 2017, arguing the objection is untimely, that the plaintiffs’ failure to plead reliance on tolling provisions bars their argument now, that the plaintiffs’ interpretation of the federal tolling provision is untenable, and reiterating that there is no genuine issue of material fact as to the oral and at-will nature of the employment agreement. Oral argument on the defendants’ motion was heard on October 16, 2017.
DISCUSSION
I. Preliminary Matters in Considering the Plaintiffs’ Objection
In their reply brief to the plaintiffs’ objection, the defendants argue that the objection should not be considered by the court because it was untimely filed. Practice Book § 17-45(b) provides, in relevant part, that " any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence." The present motion was filed on July 7, 2017. On August 18, 2017, the plaintiffs requested an extension of the filing period until September 25, 2017. The defendants did not object to the motion, and the motion was not ruled on by the court. The defendants reclaimed their motion for summary judgment on October 3, 2017, and the plaintiffs filed their objection to the motion on October 13, 2017. Oral argument was heard on the motion on October 16, 2017. This record shows the plaintiffs’ objection was not submitted in compliance with the requirements of Practice Book § 17-45 and, therefore, the court is empowered to reject the objection and grant the defendants’ motion for summary judgment. The court, however, may exercise discretion in the application of § 17-45; Martinez v. Zovich, 87 Conn.App. 766, 770 n.3, 867 A.2d 149 (2005). Because the objection was submitted shortly after the defendants reclaimed their motion, hence, the court sees no particular prejudice worked by the plaintiffs’ late submission and will address the merits of the arguments.
As to the defendants’ contention that the plaintiffs’ failure to properly plead reliance on tolling provisions must lead to summary judgment in the defendants’ favor, the court is unpersuaded. The defendants rely on Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 689-91, 974 A.2d 764 (2009), for the proposition that a trial court must rule against a plaintiff who has failed to specifically plead the applicability of a tolling of a statute when the defendant has pleaded a statute of limitations special defense and has raised a timely objection to the plaintiff’s failure to so plead.
Our Supreme Court has found that reading too narrow. " Beckenstein Enterprises-Prestige Park, LLC, does not ... stand for the proposition that the pleading requirements are so rigid as to require that potentially meritorious claims in avoidance of the statute of limitations be categorically barred in all cases because of pleading lapses. Beyond the trial courts’ discretion to overlook violations of the rules of practice in the absence of a timely objection from the opposing party ... it may be just to reach the merits of a plaintiff’s claim to a toll of the statute of limitations, even when not properly pleaded pursuant to Practice Book § 10-57, if the issue is otherwise put before the trial court and no party is prejudiced by the lapse in pleading." (Citation omitted.) Flannery v. Singer Asset Finance Co., 312 Conn. 286, 301, 94 A.3d 553 (2014). " In the statute of limitations context in particular, the Appellate Court has deemed nonjurisdictional statute of limitations defenses to be waived only when the record demonstrates that a party has been prejudicially confused by its adversary’s failure to comply with the direction of Practice Book § 10-3(a) ... Thus, we conclude that the plaintiff’s failure to plead specifically his entitlement to a particular tolling doctrine pursuant to Practice Book § 10-57, while not a good practice, does not operate as a bar or waiver of that doctrine if the record demonstrates that the defendant, nevertheless, was sufficiently apprised of the plaintiff’s intention to rely on that doctrine and that the defendant has not been prejudiced by the plaintiff’s lapse in pleading." (Citations omitted.) Id., 302-03. Ultimately, the court in Flannery found that the plaintiff in that case had sufficiently described its intent to rely on a matter that required specific pleading so as to prevent any prejudice against the defendant. The court similarly finds that, in the present case, the plaintiffs have made it sufficiently clear that they intend to rely on the tolling provisions provided by 28 U.S.C. § 1367(d) (2017) and that the failure to specifically plead reliance on the tolling statute works no prejudice for the defendant.
28 U.S.C. § 1367(d) (2017) provides, in relevant part: " The period of limitations for any claim asserted under subsection (a) [heard by the federal court under its supplemental jurisdiction], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."
II. Motion to Dismiss on the Defendants’ Challenge to the Court’s Subject Matter Jurisdiction Regarding CFEPA Claims
Turning now to the substance of the parties’ arguments in the present motion, the court must consider first the defendants’ contention that the court lacks subject matter jurisdiction over the plaintiffs’ CFEPA claims (counts three, seven, eleven, and fifteen), which are time barred, being initially brought after the running of the limitations period. " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, when " a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
The plaintiffs’ memorandum of law in opposition to the present motion fails to directly address the defendants’ challenge to the CFEPA claims. Given the final nature of a motion to dismiss on the ground of subject matter jurisdiction, the court will, nevertheless, evaluate the defendants’ challenge in full.
According to General Statutes § § 46a-82, 46a-100, and 46a-101, plaintiffs may bring an action for a violation of § 46a-60 within ninety days of receiving a notice of release of jurisdiction from the Connecticut Commission on Human Rights and Opportunities. The plaintiffs in the present action received release of jurisdiction for their claims on January 28, 2014. Defs.’ Mem. Supp. Mot. Summ. J. Ex. B, Docket No. 112. The plaintiffs filed their federal action on May 5, 2014, beyond the conclusion of the ninety-day period permitted by § 46a-101(e). Defs.’ Mem. Supp. Mot. Summ. J. Ex. C, Docket No. 112. Finding no federal claim, the federal court declined to exercise supplemental jurisdiction and dismissed the state claims on October 22, 2015. Defs.’ Mot. Summ. J. Ex. E, Docket No. 112. Given the evidence on record, had the federal court examined the plaintiffs’ CFEPA claims, it would have discovered that they had not been timely brought. For the same reason, counts three, seven, eleven, and fifteen are dismissed for lack of subject matter jurisdiction.
General Statutes § 46a-82 provides, in relevant part: " Any person claiming to be aggrieved by an alleged discriminatory practice ... may, by himself or herself or by such person’s attorney, file with the [Commission on Human Rights and Opportunities] a complaint in writing under oath ... The complaint shall state the name and address of the person alleged to have committed the discriminatory practice, provide a short and plain statement of the allegations upon which the claim is based and contain such other information as may be required by the commission."
III. Motion for Summary Judgment on the Defendants’ Statutes of Limitations Defense to Claims of Wrongful Discharge Under General Statutes § 31-51q
The defendants also argue that the plaintiffs’ claims of wrongful termination brought under § 31-51q (counts seventeen, eighteen, nineteen, and twenty) are barred by state and federal statutes of limitations. In their answer, the defendants allege a statute of limitations special defense against the plaintiffs’ wrongful termination claims; Defs.’ Answer, p. 31, Docket No. 105; and move for summary judgment on the applicable counts; Mot. Summ. J., p. 1, Docket No. 110. The plaintiffs contend in their objection that the provisions of § 1367(d) toll Connecticut statute of limitations and that their claims under § 31-51q are therefore timely brought.
" Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). " Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
Nevertheless, the burden remains " on the moving party to establish that a party did not act in a timely manner when the statute they are relying on specifically provides for tolling as an alternative method of timeliness." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 322-23. In such circumstances, " the party moving for summary judgment should not be able to prevail by showing the absence of a genuine issue of fact solely with respect to one part of the statute upon which it relies, while ignoring the statutory tolling provisions which provide an alternate means of commencing a timely action. Accordingly, defendants moving for summary judgment pursuant to [such a statute] should have the initial burden of demonstrating the nonexistence of a genuine issue of material fact with respect to both the [statutory] limitation period and the statute’s compulsory tolling provision." (Emphasis omitted.) Id., 323.
To prevail on their motion against the plaintiffs’ claims alleging wrongful termination, the defendants must first carry their burden to present evidence that there is no genuine issue of material fact that the present action was commenced after the statute of limitations had run. Absent specific provisions in § 31-51q, the general Connecticut statute of limitations rule applies to the counts alleging wrongful termination, providing that " [n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-577. According to the complaint, the alleged injury giving rise to the wrongful termination claims occurred on November 29, 2012. See Revised Compl., ¶34, Docket No. 104. The wrongful termination claims were first brought against the defendants in the complaint, filed March 27, 2017, much later than three years after the alleged violation of § 31-51q. The court finds that the plaintiffs’ claims under § 31-51q (counts seventeen, eighteen, nineteen, and twenty) are barred by the statute of limitations and summary judgment is granted in favor of the defendants in the counts concerning wrongful termination and any derivative claims for punitive damages.
Inasmuch as the statutory cause of action does not indicate any time limitations, a motion to dismiss challenging subject matter jurisdiction is precluded, but the statute of limitations special defense may be appropriately invoked. Ross Realty Corp. v. Surkis, supra, 163 Conn. 391.
IV. Motion for Summary Judgment on the Defendants’ Statute of Limitations Defense to Claims of Intentional Infliction of Emotional Distress
The defendants have also filed a statute of limitations special defense against the claims sounding in intentional infliction of emotional. distress (counts four, eight, twelve, and sixteen). In the present motion for summary judgment, the defendants assert there exists no genuine issue of material fact as to the applicability of the statute of limitations to these claims. The plaintiff’s object, contending that the plain language of the federal tolling provision in § 1367(d) requires a " suspension" reading of the statute, requiring the entire suspension of state statutes of limitations while claims are pending in federal courts and for thirty days thereafter. The plaintiffs argue, therefore, that because the counts sounding in intentional infliction of emotional distress were timely filed in federal court and were admitted under that court’s exercise of supplemental jurisdiction, the plaintiffs filed the Connecticut claims well within the limitations period. The defendants disagree in their reply, arguing that § 1367(d) should be read as providing to claimants a " grace period" of thirty days after the dismissal of federal claims to file an action in state court unless the state period of limitations has not yet run. Thus, the defendants contend that the plaintiffs’ claims were not timely brought.
See footnote 3 of this decision for the text of the statute.
Connecticut courts have not interpreted § 1367(d) definitively, nor has the United States Court of Appeals for the Second Circuit. This court must, therefore, interpret the statute according to federal standards of statutory interpretation. " With respect to the construction and application of federal statutes, principles of comity and consistency require us to follow the plain meaning rule for the interpretation of federal statutes because that is the rule of construction utilized by the United States Court of Appeals for the Second Circuit ... Accordingly, our analysis of the federal statutes in the present case begins with the plain meaning of the statute ... If the text of a statute is ambiguous, then we must construct an interpretation consistent with the primary purpose of the statute as a whole ... Under the plain meaning rule, [l]egislative history and other tools of interpretation may be relied upon only if the terms of the statute are ambiguous ... Thus, our interpretive process will begin by inquiring whether the plain language of [each] statute, when given its ordinary, common meaning ... is ambiguous." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Szewczyk v. Dept . of Social Services, 275 Conn. 464, 474-76, 881 A.2d 259 (2005).
On its face, the precise nature of the tolling action in § 1367(d) is unclear and can be reasonably understood in multiple ways, leading to a split in authority on the interpretation of the statute. See, e.g., Los Angeles v. County of Kern, 59 Cal.4th 618, 625, 328 P.3d 56, 174 Cal.Rptr.3d 67 (2014) (" Courts confronting tolling in the context of section 1367(d) generally recognize the statute is susceptible of multiple reasonable interpretations"); Turner v. Knight, 406 Md. 167, 176, 957 A.2d 984 (2008) (" We have regarded statutory language as ambiguous if it has more than one reasonable interpretation ... Unquestionably, under that test, the language is ambiguous." [Citations omitted.]) Some courts have applied what has been characterized as a " grace period" theory of the statute, interpreting the tolling provision as requiring state courts to allow plaintiffs to file claims in state court 30 days after they have been dismissed by the federal courts unless state law provides for a longer tolling period. See, e.g., Los Angeles v. County of Kern, supra, 59 Cal.4th 634 (interpreting § 1367(d) as providing 30-day " grace period" for filing of state claims after federal dismissal). Other courts have applied what has been characterized as a " suspension" theory of the statute, which requires state courts to suspend the running of the statute of limitations entirely while the federal action is pending and for 30 days afterward, at which point the state statute of limitations continues to run. See, e.g., Turner v. Knight, supra, 406 Md. 181-82 (" The intent of Congress must be measured by what it said, not by what it might have said ... We agree, therefore ... that § 1367(d) must be read as adopting the suspension approach." [Footnote omitted.]) Given that neither interpretation of the statute is unreasonable, this court agrees that the usage of " tolling" in § 1367(d) is ambiguous.
In attempting to resolve the ambiguity in the meaning of " tolling" in § 1367(d), courts such as the California Supreme Court have referenced the Congressional Record, which indicates the main purpose of the statute was " to prevent the loss of claims to statutes of limitations where state law might fail to toll the running of the period of limitations while a supplemental claim was pending in federal court." (Emphasis in original.) Los Angeles v. County of Kern, supra, 59 Cal.4th 630; see Jinks v. Richland County, 538 U.S. 456, 459, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003) (" [t]o prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts"). Finding in favor of the " grace period" interpretation of the statute, the California Supreme Court further noted that " [§ ]1367(d) is no paragon of clarity, but among those readings plausible from the text, the grace period construction cleaves closest to the goal of avoiding the loss of claims that otherwise would be barred, while impinging least on state sovereign prerogatives to establish statutes of limitations. In the absence of evidence Congress intended any more, we must adopt that interpretation." Los Angeles v. County of Kern, supra, 59 Cal.4th 633. Many other courts have found similarly. See, e.g., Artis v. District of Columbia, 135 A.3d 334, 337-38 (2016) (listing state and federal cases adopting grace period interpretation), cert. granted, 137 S.Ct. 1202, 197 L.Ed.2d 245; Turner v. Knight, supra, 406 Md. 178 (listing cases rejecting suspension interpretation). Given the ambiguity of the language in § 1367(d), and considering the interpretive options available to the court, this court finds the " grace period" interpretation persuasive.
According to the complaint in the present action, the plaintiffs were terminated on November 29, 2012. For general torts, the statute of limitations period provided under Connecticut law is three years, as provided in § 52-577. The claims of intentional infliction of emotional distress were timely brought before the federal court on May 5, 2014; see Defs.’ Mem. Supp. Mot. Summ. J., Ex. C, Docket No. 112; and were dismissed on October 22, 2015. See Defs.’ Mem. Supp. Mot. Summ. J., Ex. E, Docket No. 112. The marshal’s return in the present action indicates that the defendants were served on November 22, 2016, initiating the action in Connecticut court more than one year later. See Return of Service, Docket No. 100.30. By that time, the thirty days plus the Connecticut period of limitations had long since run. A resort to Connecticut’s accidental failure of suit statute, General Statutes § 52-592, is unavailing, as it provides only one year in which plaintiffs may file an action. Inasmuch as the claims were not filed within thirty days of federal dismissal, § 1367(d) can also provide no assistance to the plaintiffs.
General Statutes § 52-592(a) provides, in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because ... the action has been dismissed for want of jurisdiction ... the plaintiff ... may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
This court finds that in the present case, there exists no genuine issue of material fact that the claims sounding in intentional infliction of emotional distress (counts four, eight, twelve, and sixteen) are barred by the statute of limitations, as are any accompanying claims for punitive damages, having been untimely brought before this court.
V. Motion for Summary Judgment on the Defendants’ Special Defenses to Claims of Breach of Contract and Promissory Estoppel
As with the claim of intentional infliction of emotional distress, the defendants have filed a statute of limitations special defense against the complaints counts sounding in breach of contract (counts one, five, nine, and thirteen) and promissory estoppel (counts two, six, ten, and fourteen). See Answer, p. 30, Docket No. 105. The defendants now move for summary judgment, asserting that there exists no genuine issue of material fact as to the applicability of § 1367(d) or § 52-592 to the plaintiffs’ claims of breach of contract and promissory estoppel. In their memorandum in support of their motion for summary judgment, the defendants first argue that the contract and estoppel claims should be barred as oral contracts governed by the three-year statute of limitations provided in General Statutes § 52-581. In support of their contention that the employment contracts were based entirely on an oral agreement, the defendants produce responses to interrogatories from the prior federal litigation in which two of the plaintiffs state that the employment contracts between them and the defendants were oral in nature. Defs.’ Mem. Supp. Mot. Summ. J., Ex. G, p. 7, and Ex. H, p. 7, Docket No. 112.
General Statutes § 52-581 provides in relevant part: " No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
Citing exhibits attached to the defendants’ memorandum of law in support of the motion, the plaintiffs respond that the employment contracts at issue had been partially reduced to writing, allowing a claim to be brought within six years under General Statutes § 52-576. The plaintiffs provide as evidence written communication made by the defendant. Astle, including references to " agreements" between Astle and each plaintiff; Defs.’ Mem. Supp. Mot. Summ. J., Ex. 4, pp. 184-86, Docket No. 112; a " current employment contract" between the defendants and the plaintiffs; Defs.’ Mem. Supp. Mot. Summ. J., Ex. 7, p. 202, Docket No. 112; and, in a letter sent to each plaintiff, language explaining that the defendants required the plaintiffs to accept a change of the terms of employment from salaried to hourly positions; Defs.’ Mem. Supp. Mot. Summ. J., Exs. 5b-5d, pp. 203-10, Docket No. 112. The offer letter sent to the plaintiff Arciuolo, included as Exhibit 1 to the defendants’ present motion, appears to constitute a written offer of employment and directs Arciuolo to the employee handbook for more, although apparently not all, details concerning the nature of the employment offer. The defendants’ inclusion of the employee handbooks, along with the signatures of each plaintiff in receipt of their handbook, suggests that employment with the defendants is predicated on the terms of the handbook. At the same time, identical language in the various handbooks denies the role of the handbook in establishing an employment agreement between the defendants and the plaintiffs:
Section 52-576 provides, in relevant part: " No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ..."
This handbook outlines Tomtec, Inc. policies, procedures and benefits. However, nothing contained in this handbook, or in oral statements made to you, is intended to create a promise of employment with Tomtec, or an employment contract between you and Tomtec. No one has authority to enter into any contract of employment with any employee without written consent of the President .
Your employment is at will . You may terminate your employment at any time, for any reason, with or without cause, with or without notice, and Tomtec may do the same.
Tomtec policies including employee pay, benefits, hours of work, shift assignments, and conditions of employment may be changed at any time, with or without notice, at the sole discretion of management ." (Emphasis added.) Defs.’ Mem. Supp. Mot. Summ. J., Ex. 2a, p. 2, Docket No. 112.
The defendants argue that the signatures of the plaintiffs on their employee handbooks supercede any prior oral agreement concerning the at-will nature of the plaintiffs’ employment, but also emphasize that the employee handbooks were not intended to create a contract. Defs.’ Mem. Supp. Summ. J., pp. 28-29, Docket No. 112. This argument does not provide clarity as to the written or oral nature of the employment agreements: either the employee handbooks are evidence of a modification to the original employment agreement, reducing at least portions of it to writing, or they are not, and cannot serve as evidence that the employment agreements between the plaintiffs and the defendants were at-will. The language of the handbook indicates the policies contained in it are binding conditions of employment, but are not the whole employment agreement. The court finds that the plaintiffs have demonstrated with sufficient evidence that there remains a genuine issue of material fact as to whether the employment contracts between the defendants and the plaintiffs were of a written or oral nature and, therefore, whether the limitation period had run before the plaintiffs filed the present action in this court. In light of the foregoing, the court finds that the defendants’ motion for summary judgment on the breach of contract and promissory estoppel claims should be denied on the ground of the running of the statute of limitations.
In the alternative to finding summary judgment on the running of the period of limitations, the defendants contend that the agreements nonetheless allow for no ambiguity as to the at-will nature of the plaintiffs’ employment. Any understanding of the employment agreement as a written document, the defendants argue, must take into account the employee handbooks, which state clearly that employment at Tomtec is at-will. Defs.’ Mem. Supp. Summ. J., Exs. 2a-2c, Docket No. 112. " A ... manual that sets forth terms of employment may be considered a binding employment contract." Craine v. Trinity College, 259 Conn. 625, 655, 791 A.2d 518 (2002). However, " [t]he mere providing of a personnel policy and procedure manual to an employee does not convert an at-will employee to a contract employee." Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-98-0352686-S (October 22, 2001, Sheedy, J.). " We have stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract ..." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).
Citing the language of the employee handbook, the defendants have carried their burden to provide evidence that the employment agreements between the defendants and the plaintiffs were understood as an at-will relationship. The plaintiffs, however, fail to carry their burden to demonstrate a genuine issue of material fact as to the at-will nature of the employment agreements. Although they submit several pieces of evidence in support of the contention that the employment agreement had been at least partially reduced to writing, the plaintiffs have not provided any evidence that the employment agreement contained any assurances against at-will termination, or any statement by the defendants that would induce reliance on the assurance of continued employment. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987) (" [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise"). In view of the evidence before the court, there is no genuine issue of material fact that the employment agreement, whether oral or written, was based in an at-will understanding.
The court finds that summary judgment should be found for the defendants on the counts alleging breach of contract (counts one, five, nine, and thirteen) and promissory estoppel (counts two, six, ten, and fourteen) inasmuch as the defendants have shown there is no genuine issue of material fact concerning the at-will nature of the employment agreement.
CONCLUSION
In light of foregoing, the court concludes that the defendants’ motion to dismiss on the counts alleging violations of CFEPA (counts three, seven, eleven, and fifteen) is granted for lack of subject matter jurisdiction.
The defendants’ motion for summary judgment on the counts alleging violation of § 31-51q (counts seventeen, eighteen, nineteen, and twenty) and alleging intentional infliction of emotional distress (counts four, eight, twelve, and sixteen), along with any accompanying claims for punitive damages, is granted.
The defendants’ motion for summary judgment on the counts sounding in breach of contract (counts one, five, nine, and thirteen) and promissory estoppel (counts two, six, ten, and fourteen) is granted.
(a) It shall be a discriminatory practice in violation of this section:
(1) For an employer, by the employer or the employer’s agent ... to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness
...
(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 ...
(8) For an employer, by the employer or the employer’s agent ... to harass any employee, person seeking employment or member on the basis of sex or gender identity or expression. " Sexual harassment" shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment ...
General Statutes § 46a-100 provides, in relevant part: " Any person who has filed a complaint with the commission in accordance with section 46a-82 and who has obtained a release of jurisdiction in accordance with section ... 46a-101, may bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred, the judicial district in which the respondent transacts business or the judicial district in which the complainant resides ..." General Statutes § 46a-101 provides, in relevant part: " (a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section. (b) The complainant and the respondent, by themselves or their attorneys, may jointly request that the complainant receive a release from the commission at any time from the date of filing the complaint ... (e) Any action brought by the complainant in accordance with section 46a-100 shall be brought not later than ninety days after the date of the receipt of the release from the commission." (Emphasis added.)