BURNHAM v. KARL AND GELB, P.C

FOTI, J.

The plaintiff appeals from the judgment of the trial court rendered following the granting of the defendants' motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly granted summary judgment in favor of the defendants as to her claims (1) of breach of contract, (2) of negligent misrepresentation and (3) of wrongful discharge. We affirm the judgment of the trial court.

The following facts are undisputed. The defendant, Karl Gelb, P.C., is a dental office located in West Hartford that employs two periodontists, the defendants Edward Karl and David Gelb. On July 6, 1993, the plaintiff, Carole Burnham, was hired by the defendants as an office manager. On November 5, 1993, the plaintiff filed an anonymous complaint with the Connecticut State Dental Association (dental association) alleging that the defendants engaged in unsanitary and unhealthy practices in violation of the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. On November 22, 1993, the plaintiff was terminated by the defendants and thereafter filed a complaint with the Hartford office of the Occupational Safety and Health Administration alleging that she was terminated by the defendants in retaliation for her complaint to the dental association. The plaintiff's complaint was administratively closed in February, 1994, due to the plaintiff's "lack of response" to correspondence from the Hartford office of the Occupational Safety and Health Administration.

On January 24, 1995, the plaintiff filed a three count amended complaint alleging breach of contract, negligent misrepresentation and wrongful termination. On September 23, 1996, the defendants moved for summary judgment. On March 7, 1997, the trial court granted the defendants' motion for summary judgment as to each count of the plaintiff's amended complaint.

"The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 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.' See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). `Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.' Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). `It is not enough, however, for the opposing party merely to assert the existence of . . . a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].' . . . Water Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994)." Branford v. Monaco, 48 Conn. App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

The plaintiff first claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of breach of contract. The plaintiff asserts that an implied employment contract existed between the parties as a result of representations made to her by the defendants. The plaintiff alleges that, at the time she was hired, the defendants agreed to evaluate her performance based on certain "performance expectations and goals." The plaintiff also alleges that the defendants agreed that she would be terminated only for cause. We disagree.

"[T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant[s] to have an employment contract with [her]. `A contract implied in fact, like an express contract, depends on actual agreement. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).' . . . Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on [her breach of contract] claim, `which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause . . . . D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 212 n. 2; Therrien v. Safeguard Mfg. Co., supra, 94-95.' . . . Coelho v. Posi-Seal International, Inc., supra, 112. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment." Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

"A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923)." Christensen v. Bic Corp., 18 Conn. App. 451, 458, 558 A.2d 273 (1989). In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a "present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214-15.

In the present case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the parties. The trial court concluded that, at most, the facts establish that the plaintiff completed a three month "probationary period" and that "[t]here are no facts in the record . . . from which it can be concluded that in completing this brief probationary period, [the] plaintiff's status changed from that of an at-will employee." This conclusion is supported by the plaintiff's own deposition testimony. In her deposition, the plaintiff testified that she was not given a guarantee as to how long she would be employed. The plaintiff also testified that she was never told that, after the completion of the probationary period, she could be fired only if she did something wrong. Moreover, the plaintiff's claim that the defendants agreed to evaluate her performance based on certain "performance expectations and goals" is contradicted by her own deposition testimony. The plaintiff testified that no performance expectations or goals were ever set for her and that she was unaware of any standard by which the defendants were judging her performance. Given these admissions by the plaintiff, we conclude that there was no meeting of the minds between the plaintiff and the defendants regarding the existence of an employment contract.

Since the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied employment contract, we conclude that the trial court properly granted the defendants' motion for summary judgment as to the plaintiff's claim of breach of contract.

The plaintiff next claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of negligent misrepresentation. The plaintiff asserts that the defendants negligently misrepresented that the plaintiff's job performance would be evaluated on the basis of her progress toward the achievement of "performance expectations and goals" established at the beginning of her employment. The plaintiff also asserts that the defendants negligently misrepresented that she would be terminated only for cause. We disagree.

"[Our Supreme Court] has long recognized liability for negligent misrepresentation. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 217. The governing principles are set forth in . . . § 552 of the Restatement Second of Torts (1977): 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. Id., 217-18. [T]he plaintiff need not prove that the representations made by the defendant[s] were promissory. It is sufficient . . . that the representations contained false information. Id., 218." (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 20, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).

The facts on which the plaintiff relies to support her claim of negligent misrepresentation are the same as those relied on to support her claim of breach of an implied employment contract. In part I, we relied on the plaintiff's deposition testimony to conclude that the plaintiff failed to present any evidence disclosing the existence of an implied employment contract. In her deposition, the plaintiff testified that (1) she was not given a guarantee as to how long she would be employed and (2) the defendants never set any performance expectations or goals for her. The plaintiff concedes, therefore, that the allegedly false information, on which she bases her negligent misrepresentation claim, was never communicated to her by the defendants.

Since the plaintiff has provided no evidence from which a trier of fact reasonably could infer that the defendants made representations to the plaintiff that were untrue, we conclude that the trial court properly granted the defendants' motion for summary judgment as to the plaintiff's claim of negligent misrepresentation.

The plaintiff's final claim is that the trial court improperly granted summary judgment in favor of the defendants as to her claim of wrongful discharge. The plaintiff alleges that she was terminated for reporting the unsanitary and unhealthy practices of her employers and, therefore, that she was terminated in violation of public policy. Specifically, the plaintiff claims that she was terminated by the defendants for reporting their alleged OSHA violations to the dental association. In granting the defendants' motion for summary judgment, the trial court stated that "[i]n the absence of any clear appellate Connecticut authority to the contrary, and in light of similar holdings in other jurisdictions, I conclude that [the] plaintiff's attempted use of OSHA violations to support a cause of action for wrongful termination fails as a matter of law because the plaintiff had a statutory administrative remedy available with OSHA. Accordingly, the violation does not fall under the public policy exception to the terminable at will doctrine." We agree with the trial court.

"In Sheets v. Teddy's Frosted Foods, Inc., [ 179 Conn. 471, 480, 427 A.2d 385 (1980)], in an effort to balance the competing interests of employers and employees, [the Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine. Antinerella v. Rioux, 229 Conn. 479, 492, 642 A.2d 699 (1994). In Sheets, [the court] sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy. Sheets v. Teddy's Frosted Foods, Inc., supra, [475]; see Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). In Morris v. Hartford Courant Co., supra, 680, [the court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [an appellate court must] look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy. . . . Antinerella v. Rioux, supra, 492, quoting Morris v. Hartford Courant Co., supra, 680. . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997)." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 76-77, 700 A.2d 655 (1997). "[W]e note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . . We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." (Citation omitted; internal quotation marks omitted.) Id., 79.

In the present case, the plaintiff relies on the public policy prohibiting employers from terminating employees in retaliation for reporting violations of state or federal laws, as embodied in 29 U.S.C. § 660 (c) and General Statutes § 31-51m, to support her claim of wrongful discharge. Although the plaintiff relies on § 31-51m to support her cause of action for public policy wrongful discharge, she has not brought a separate claim under that statute. The trial court, therefore, improperly concluded that the plaintiff failed to satisfy the statutory requirements of a § 31-51m claim (i.e., a report made to a "public body" and exhaustion of administrative remedies). Section 660(c)(1) of Title 29 of the United States Code prohibits employers from discharging or discriminating against employees for filing complaints, instituting proceedings or otherwise exercising rights afforded by OSHA. Section 660(c)(2) provides a remedy for employees who allege that they were discharged in retaliation for reporting violations of OSHA. Pursuant to § 660(c)(2), an employee who believes that she was discharged in violation of § 660(c) may, within thirty days of the discharge, file a complaint with the Secretary of Labor. If the Secretary determines that the employee was terminated in retaliation for reporting violations of OSHA, he is required to bring an action against the employer in the United States District Court. 29 U.S.C. § 660 (c)(2). In any action brought pursuant to § 660(c)(2), the court has jurisdiction to "restrain violations of [ 29 U.S.C. § 660 (c)(1)] and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay." (Emphasis added.) 29 U.S.C. § 660 (c)(2).

In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), we limited the circumstances under which an employee can bring a common-law cause of action for wrongful discharge. In Atkins, we stated that "[a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated." (Emphasis added; internal quotation marks omitted.) Id., 648.

OSHA provides a specific remedy for an employee who is terminated by her employer in retaliation for participating in any action to carry out the purpose of the federal statute. Here, the plaintiff availed herself of that remedy when she filed a complaint with the Hartford office of the Occupational Safety and Health Administration. We conclude that because OSHA provides a remedy for employees that claim retaliatory termination, the plaintiff cannot maintain her wrongful discharge action against the defendants.

Our conclusion that the existence of a statutory remedy under OSHA precludes the plaintiff's public policy wrongful discharge claim is supported by our decision in Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 648, and by several Connecticut Superior Court decisions. See, e.g., Brotherton v. Burndy Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 87-022481-S (September 24, 1990) ( 2 Conn. L. Rptr. 508) (right to file OSHA complaint precludes civil tort action based on Sheets doctrine for wrongful discharge); Dais v. Laidlaw Transit, Inc., Superior Court, judicial district of Stamford-Norwalk Docket No. CV 95-0146079-S (March 29, 1996) ( 16 Conn. L. Rptr. 392) (cause of action for wrongful discharge exists only when discharge violates public policy and employee is otherwise without statutory remedy). In addition, in Napoleon v. Xerox Corp., 656 F. Sup. 1120, 1125 (D. Conn. 1987), the United States District Court for the district of Connecticut held that a plaintiff cannot maintain a common-law claim for wrongful discharge where she has an explicit statutory remedy for the defendant's alleged misconduct. See also Donahue v. Unisys Corp., United States District Court for the district of Connecticut, Docket No. H-89-670 (February 15, 1991) (interpreting Sheets to provide cause of action for public policy wrongful discharge only to those employees otherwise without remedy).

Accordingly, for the reasons stated, we conclude that the trial court properly granted the defendants' motion for summary judgment as to the plaintiff's claim of wrongful discharge.