Dunn v. Northeast Helicopters Flight Services, L.L.C. ( 2021 )

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TIM DUNN v. NORTHEAST HELICOPTERS
FLIGHT SERVICES, L.L.C.
(AC 43594)
Prescott, Moll and Alexander, Js.
Syllabus
The plaintiff sought to recover damages for the allegedly wrongful termina-
tion of his employment by N Co., which operated a helicopter flight
training school, claiming that J, the owner of N Co., in violation of
statute (§ 31-73 (b)), had demanded 50 percent of future proceeds from
a separate flight examination business the plaintiff sought to undertake
as a condition of his continued at-will employment as N Co.’s chief flight
instructor. The Federal Aviation Administration had approached the
plaintiff about an open independent flight examiner position and the
possibility of the plaintiff starting his own business as a certified FAA
flight examiner. The plaintiff and J viewed the opportunity as a positive
development for the plaintiff and for N Co. The plaintiff thereafter
approached J about a loan to cover the costs related to a training program
the plaintiff had to attend to obtain FAA flight examiner certification.
J expressed willingness to loan the plaintiff the money if the plaintiff
would remit to N Co. any examination fees he would later receive,
until the loan was paid off, and agree to share equally with N Co. all
examination fees he would thereafter collect. The plaintiff did not
respond to J’s proposals and did not take a loan from J. The plaintiff
later explained in a text message to R, J’s wife and an employee of N
Co., that he had paid the costs of the training program because he
wanted to keep his employment with N Co. and his new flight examina-
tion business separate. R responded to the plaintiff, stating that J had
said that he should clean out his desk and that he no longer worked
for N Co. The trial court denied the plaintiff’s motion for summary
judgment and granted N Co.’s motion for summary judgment, concluding
that the undisputed facts did not raise a genuine issue of material fact that
N Co. violated the public policy underlying § 31-73 (b), which prohibits
employers from demanding money from employees as a condition of
continued employment. The court thereafter rendered judgment for N
Co., and the plaintiff appealed to this court. Held that the trial court
properly granted N Co.’s motion for summary judgment and denied the
plaintiff’s motion for summary judgment, as § 31-73 was inapplicable to
the undisputed facts of the case and could not, as a matter of law,
provide a basis for the plaintiff’s wrongful termination action: although
J’s onetime proposal for a potential fee sharing relationship occurred
in the context of an existing employer-employee relationship, it did not
fall within the type of coercive behavior that § 31-73 forbids, as J’s
request or demand for money from the plaintiff could not reasonably
be attributed to the plaintiff’s employment relationship with N Co. but,
rather, involved negotiations related to a separate, albeit related, future
business venture between the parties, and, as the employment at will
doctrine permits an employer to discharge an employee for any reason,
including anger or displeasure that arises from an employee’s refusal
to participate in a future side business proposed by the employer, an
employer that discharges an at-will employee on that basis has not
violated § 31-73 or any clear public policy that should subject the
employer to a claim of wrongful termination; moreover, § 31-73 limits
the employment at will doctrine only by carving out an exception that
prohibits an employer from coercing financial considerations from an
employee or by conditioning future or continued employment on the
employee’s capitulation to the employee’s demands, and, even if § 31-
73 were applicable as a matter of law, the plaintiff failed to present
evidence to raise a genuine issue of material fact that J had ever condi-
tioned his continued employment on acceptance of the fee sharing offer
or that there was an understanding to that effect, the temporal proximity
between the plaintiff’s rejection of J’s proposal and the termination of
the plaintiff’s employment was insufficient to trigger the exception to
the employment at will doctrine pursuant to § 31-73, the plaintiff did
not indicate whether he was interested in J’s proposal at the time it
was made, J never asked him again or sought any commitment or
threatened retaliation, and, contrary to the plaintiff’s assertion, a trier
of fact could not reasonably infer from the termination of his employ-
ment alone that J had implicitly conditioned continued employment on
the plaintiff’s agreement with the fee sharing proposal, the plaintiff
having failed to present any evidentiary basis from which to conclude
that J ever actually used the prospect of renewed or continued employ-
ment as leverage to obtain a fee splitting agreement with him.
Argued January 19—officially released August 3, 2021
Procedural History
Action to recover damages for the alleged wrongful
termination of the plaintiff’s employment, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Tolland, where the defendant filed a counter-
claim; thereafter, the defendant withdrew the counter-
claim; subsequently, the trial court, Farley, J., granted
the defendant’s motion for summary judgment as to
the first count of the complaint, denied the plaintiff’s
motion for summary judgment on the complaint and
the defendant’s claim for setoff, and rendered judgment
for the defendant; thereafter, the plaintiff withdrew the
second count of the complaint and appealed to this
court. Affirmed.
Megan L. Michaud, for the appellant (plaintiff).
Michael C. Harrington, for the appellee (defendant).
Opinion
PRESCOTT, J. In this civil action, the plaintiff, Tim
Dunn, alleges wrongful termination of employment in
violation of public policy. See Sheets v. Teddy’s Frosted
Foods, Inc., 179 Conn. 471, 474–77, 427 A.2d 385 (1980).
The issue before us is whether the trial court improperly
concluded that the plaintiff failed to demonstrate the
existence of a genuine issue of material fact pertaining
to whether, by terminating his at-will employment in
the manner alleged, the defendant, his former employer,
Northeast Helicopters Flight Services, L.L.C., violated
General Statutes § 31-73 (b) and the public policy under-
lying that statute, which prohibits employers from
coercing an employee to refund wages or related sums
of money to the employer, or from withholding wages
due and owing to an employee, as a condition either
to secure or to continue employment.1 The plaintiff
appeals from the summary judgment rendered in favor
of the defendant.2 Because we agree that there are no
genuine issues of material fact and that the defendant
is entitled to judgment as a matter of law, we affirm
the judgment of the court.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party on the
prevailing motion for summary judgment, reveals the
following facts and procedural history. The defendant
is owned by John Boulette. It operates a helicopter
flight training school in Ellington. The defendant hired
the plaintiff in 2006 as a flight instructor. The defendant
later promoted the plaintiff to chief flight instructor,
and he held that position through October, 2017, at
which time the defendant terminated his employment.
The plaintiff did not have an employment contract with
the defendant and, thus, was an at-will employee. See
Thibodeau v. Design Group One Architects, LLC, 260
Conn. 691, 697, 802 A.2d 731 (2002).
For a student pilot to become a certified helicopter
pilot, that person must be certified by the Federal Avia-
tion Administration (FAA) following an examination
(exam). Although the defendant and the plaintiff were
authorized to provide classroom and flight training to
pilots in preparation for that exam, they were not
licensed by the FAA to administer the exam. Without an
FAA certified flight examiner on its staff, the defendant
would make arrangements for an FAA examiner to
come to the defendant’s facility in Ellington to adminis-
ter the exam to its students. As of 2017, the nearest
certified flight examiner was located two hours away
from the defendant’s facilities, and students often had
to wait weeks to schedule an exam.
Throughout his employment with the defendant, the
plaintiff and Boulette had discussed the potential advan-
tages of having a certified flight examiner on staff.3 In
May, 2017, the FAA approached the plaintiff about an
open independent flight examiner position and the pos-
sibility of the plaintiff starting his own business as an
FAA examiner. The FAA indicated that the plaintiff
would be a suitable candidate but that he would need
to apply and to complete the required training. The
plaintiff advised Boulette of the flight examiner posi-
tion, and Boulette told him that ‘‘we should jump on
the opportunity.’’ The plaintiff and Boulette each
viewed the plaintiff’s opportunity to become a flight
examiner as a positive development for both the plain-
tiff and the defendant.4
To obtain his FAA flight examiner certification, the
plaintiff had to attend a training program in Oklahoma
in late September, 2017. In August, 2017, the plaintiff
approached Boulette about a loan to cover the costs
of his travel to Oklahoma and other related expenses.
Boulette stated his willingness to loan the plaintiff the
money if the plaintiff agreed to remit to the defendant
any exam fees he later would receive until the loan was
paid off. At that time, Boulette also proposed that, after
the loan debt was satisfied, the plaintiff and the defen-
dant should agree to share equally in all future examina-
tion fees collected by the plaintiff. The plaintiff did
not respond to Boulette’s proposals at that time either
positively or negatively and never again spoke with
Boulette directly about the proposed loan or fee sharing
plan. Several weeks later, however, the plaintiff had a
conversation with Boulette’s wife, Rhonda Boulette, an
employee of the defendant, and told her that he was not
willing to share any fees from the examination business
with the defendant. Rhonda Boulette’s response was,
‘‘that is fine,’’ and, ‘‘[d]on’t worry about it.’’
Toward the end of September, 2017, the plaintiff
attended the FAA training program. On October 16,
2017, after he had returned from the training program,
he received a text message from Rhonda Boulette ask-
ing him why his expenses related to the FAA training
had not shown up on the defendant’s company credit
card statement. He replied that he had paid the
expenses himself because he wanted to keep his
employment with the defendant and his new flight
examination enterprise separate—his intention being
to retain all exam fees for himself. Rhonda Boulette
responded that John Boulette said that he should clean
out his desk and that he no longer worked for the
defendant. The plaintiff stated simply, ‘‘[w]ill do.’’5
Throughout his employment with the defendant, the
plaintiff earned a weekly salary of $1000 plus an addi-
tional hourly rate of $25 for time spent flying, which
amount varied from week to week. Following the termi-
nation of the plaintiff’s employment, the defendant paid
him his full hourly rate for all the flight training hours
he had worked during his last week of employment.
The defendant, however, did not pay him his $1000 base
salary for that week. The defendant reasoned that it
was not required to pay the plaintiff his final weekly
salary because he had received a salary for the week
that he had attended the FAA training program in Sep-
tember.
The plaintiff commenced the underlying action
against the defendant in November, 2017. He filed the
operative second amended complaint on February 21,
2018. Count one of that complaint asserted a cause of
action for common-law wrongful discharge premised
on the principles first established in Sheets v. Teddy’s
Frosted Foods, Inc., supra, 179 Conn. 474–77 (recogniz-
ing common-law cause of action in tort for discharge
of at-will employee if former employee able to prove
‘‘demonstrably improper reason for dismissal, a reason
whose impropriety is derived from some important vio-
lation of public policy’’). Specifically, the plaintiff
claimed that the termination of his employment was
unlawful because the defendant had demanded that he
pay the defendant a sum of money—50 percent of any
future proceeds resulting from the plaintiff’s examina-
tion business—allegedly in violation of § 31-73 (b) and
the public policy underlying that statute. Count two
asserted a claim pursuant to General Statutes § 31-726
for nonpayment of wages, which was based on the
defendant’s withholding of the plaintiff’s base salary
for his final week of employment.
The defendant thereafter filed a motion to strike
count one of the complaint. It claimed that the facts
alleged in the complaint failed to state a claim on which
relief could be granted. In part, the defendant argued
that the complaint contained no allegation that the
defendant ever expressly conditioned the plaintiff’s
continued employment on remittance to the defendant
of a share of future exam proceeds collected by the
plaintiff, and that the plaintiff needed to allege and to
prove that such a quid pro quo had occurred to establish
a violation of § 31-73. In response to the motion to
strike, the plaintiff argued, inter alia, that, although the
defendant ‘‘did not specifically say it was a condition
of [the] plaintiff’s continued employment to pay 50 per-
cent of the proceeds from his separate business, it can
reasonably be inferred that this was a condition of [his]
continued employment . . . .’’ Following argument,
the court, Sferrazza, J., issued a one sentence decision
on June 19, 2018, denying the motion to strike. The
court stated: ‘‘The factual allegations of the first count
are sufficient, if proved, to support a cause of action
for wrongful [discharge from] employment under the
doctrine of Sheets v. Teddy’s Frosted Foods, Inc., [supra,179 Conn. 471].’’
On August 17, 2018, the defendant filed an answer
to the complaint. The answer included special defenses,
a two count counterclaim sounding in breach of con-
tract and unjust enrichment, and a claim to a right of
setoff that was based on the plaintiff’s failure to repay
in full a loan allegedly provided by the defendant to the
plaintiff and his wife for a down payment on a home.
On March 1, 2019, the plaintiff filed a motion seeking
summary judgment in his favor on both counts of the
complaint, on the defendant’s counterclaim, and on the
claim of setoff. Together with the motion, the plaintiff
filed a memorandum of law, to which he attached
excerpts of deposition testimony by the plaintiff and
the Boulettes; copies of text messages between the
plaintiff and Rhonda Boulette; and a copy of the plain-
tiff’s final pay stub from the defendant. According to the
plaintiff, he was entitled to summary judgment because
there were no material facts in dispute, and certain
‘‘admissions’’ contained in the deposition excerpts dem-
onstrated that the plaintiff had established liability for
both wrongful termination and failure to pay wages.
Further, according to the plaintiff, both counts of the
defendant’s counterclaim and the claim of setoff were
entirely frivolous and unsupported by any evidence.
The defendant, on March 7, 2019, filed a motion for
summary judgment with respect to count one of the
complaint only. It agreed that there were no issues of
material fact in dispute but that judgment should be
rendered in its favor as a matter of law. The defendant
essentially argued that § 31-73 (b) is inapplicable with
respect to the factual circumstances present and that
it had a number of valid and permissible reasons for
terminating the plaintiff’s employment, including, but
not limited to, the way in which he had chosen to handle
the FAA examiner issue. The defendant also submitted
additional portions of deposition testimony and other
exhibits along with its memorandum of law in support
of its motion for summary judgment.
On April 15, 2019, the defendant filed a memorandum
of law in opposition to the plaintiff’s motion for sum-
mary judgment. The following day, the defendant filed
a withdrawal of the unjust enrichment count of its coun-
terclaim. That same day, the plaintiff filed his memoran-
dum of law in opposition to the defendant’s motion for
summary judgment. On May 6, 2019, the day that the
motions for summary judgment were calendared for
oral argument, the defendant filed a withdrawal of the
remaining breach of contract count of its counterclaim.
During oral argument on the motions for summary judg-
ment, the court, Farley, J., clarified with the parties
that all that remained in the action before the court
following the withdrawal of both counts of the defen-
dant’s counterclaim were the two counts of the com-
plaint and the defendant’s claim of setoff.
After hearing argument on the motions for summary
judgment, the court, on August 30, 2019, issued a memo-
randum of decision disposing of the motions. The court
stated in part: ‘‘In this case, the court is asked to decide
whether an employer’s termination of an at-will
employee, after the employee refused to share the
future proceeds generated by the employee’s proposed
new business venture in a field related to the employer’s
business, violates . . . § 31-73 (b) and gives rise to a
cause of action for wrongful termination based on a
violation of public policy. Both parties have moved for
summary judgment on count one of the [operative com-
plaint] alleging wrongful termination, and both motions
turn on this question. The court concludes that the
undisputed facts, construed favorably to the plaintiff,
do not establish a violation of § 31-73 (b), and, therefore,
the plaintiff cannot pursue a wrongful termination
claim.
‘‘The plaintiff has also moved for summary judgment
on the second count of the complaint, alleging nonpay-
ment of wages, as well as the defendant’s claim of
setoff. Summary judgment on those claims is precluded,
however, by the existence of genuine issues of mate-
rial fact.
‘‘The court denies the plaintiff’s motion for summary
judgment as to both counts [of the complaint] and the
defendant’s setoff claim, and grants the defendant’s
motion for summary judgment as to count one [of the
complaint].’’ This appeal followed.7
The plaintiff claims on appeal that, with respect to
count one of the complaint alleging wrongful discharge
in violation of public policy, the court improperly
granted the defendant’s motion for summary judgment
and denied his own motion for summary judgment. The
plaintiff argues that the court incorrectly determined
that he had failed as a matter of law to establish a
violation of § 31-73 (b) on the basis of the undisputed
facts presented.8 We are not persuaded.
We begin with relevant legal principles, starting with
the applicable standard of review. The standard that
governs our review of a court’s ruling on a motion for
summary judgment is well settled. ‘‘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. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . .
[I]ssue-finding, rather than issue-determination, is the
key to the procedure. . . . [T]he trial court does not
sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Internal quotation marks omitted.)
Barbee v. Sysco Connecticut, LLC, 156 Conn. App. 813,
817–18, 114 A.3d 944 (2015). Moreover, to the extent
that our review requires us to engage in statutory con-
struction, that presents a question of law over which
we also exercise plenary review. See, e.g., Kayla M. v.
Greene, 163 Conn. App. 493, 499, 136 A.3d 1 (2016).9
We turn next to the law applicable to common-law
wrongful discharge claims premised on the very narrow
public policy exception to at-will employment first rec-
ognized in Sheets v. Teddy’s Frosted Foods, Inc., supra,179 Conn. 471. ‘‘In Connecticut, an employer and
employee have an at-will employment relationship in
the absence of a contract to the contrary. Employment
at will grants both parties the right to terminate the
relationship for any reason, or no reason, at any time
without fear of legal liability. Beginning in the late 1950s,
however, courts began to carve out certain exceptions
to the at-will employment doctrine, thereby giving rise
to tort claims for wrongful discharge. Certain employer
practices provoked public disfavor, and unlimited
employer discretion to fire employees eventually
yielded to a more limited rule. . . .
‘‘Following that trend, [our Supreme Court], in Sheets
v. Teddy’s Frosted Foods, Inc., [supra, 179 Conn. 471],
sanctioned a common-law cause of action for wrongful
discharge in situations in which the reason for the dis-
charge involved impropriety derived from some
important violation of public policy. . . . In doing so,
[the court] recognized a public policy limitation on the
traditional employment at-will doctrine in an effort to
balance the competing interests of employers and
employees. . . . In Morris v. Hartford Courant Co.,
[200 Conn. 676, 513 A.2d 66 (1986)], [our Supreme
Court] recognized the inherent vagueness of the con-
cept of public policy and the difficulty encountered
when attempting to define precisely the contours of the
public policy exception. In evaluating claims,
[reviewing courts] 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.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Thibodeau v. Design Group One Architects, LLC, supra,
260 Conn. 697–99.
‘‘Although [our Supreme Court has] been willing to
recognize, pursuant to Sheets and its progeny, a claim
for wrongful termination in appropriate cases, [it]
repeatedly ha[s] underscored [an] 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 . . . . Con-
sequently, [courts] have rejected claims of wrongful
discharge that have not been predicated upon an
employer’s violation of an important and clearly artic-
ulated public policy.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 700–701;
see also Sheets v. Teddy’s Frosted Foods, Inc., supra, 179
Conn. 477 (warning of difficulties inherent in ‘‘deciding
where and how to draw the line between claims that
genuinely involve the mandates of public policy and
are actionable, and ordinary disputes between
employee and employer that are not,’’ and cautioning
courts that they should ‘‘not lightly intervene to impair
the exercise of managerial discretion or to foment
unwarranted litigation’’).10
In the present case, the plaintiff advances § 31-73 (b)
as the statutory basis for the defendant’s alleged public
policy violation. Accordingly, we examine that statute
and available precedent applying it to determine what,
if any, important public policy it embodies and whether
there exists a genuine issue of material fact as to
whether the defendant’s actions violated the statute.
As previously noted, the text of § 31-73 (b) provides in
relevant part that ‘‘[n]o employer . . . shall, directly
or indirectly, demand, request, receive or exact any
refund of wages, fee, sum of money or contribution
from any person, or deduct any part of the wages agreed
to be paid, upon the representation or the understand-
ing that such refund of wages, fee, sum of money, contri-
bution or deduction is necessary to secure employment
or continue in employment. No such [employer] shall
require, request or demand that any person agree to
make payment of any refund of wages, fee, contribution
or deduction from wages in order to obtain employment
or continue in employment. A payment to any person
of a smaller amount of wages than the wage set forth
in any written wage agreement or the repayment of any
part of any wages received, if such repayment is not
made in the payment of a debt evidenced by an instru-
ment in writing, shall be prima facie evidence of a viola-
tion of this section.’’ General Statutes § 31-73 (b). Sub-
section (d) of § 31-73 sets forth various criminal
penalties that may be imposed on an employer who
violates subsection (b), including incarceration and
fines.
We are aware of only two appellate cases that pre-
viously have construed § 31-73 (b). See Mytych v. May
Dept. Stores Co., 260 Conn. 152, 165–66, 793 A.2d 1068(2002); Lockwood v. Professional Wheelchair Transpor-
tation, Inc., 37 Conn. App. 85, 654 A.2d 1252, cert.
denied, 233 Conn. 902, 657 A.2d 641 (1995). We discuss
each of these cases in turn.
In Lockwood v. Professional Wheelchair Transporta-
tion, Inc., supra, 37 Conn. App. 85, this court reversed
the judgment of the trial court, which had directed a
verdict in favor of the defendant employer in an action
brought by a former employee for wrongful discharge
in violation of public policy. The plaintiff employee had
been in a work-related accident that triggered coverage
under the employer’s insurance policy. The employee
thereafter was suspended from work. The employer
made repeated demands to the employee that he pay
the employer $1000 to cover the deductible required
under the insurance policy and expressly conditioned
the plaintiff’s return to work on that payment, despite
a ruling in small claims court that the employee was
not legally liable for the insurance deductible. Id., 87–88.
This court held that, ‘‘[a]t the close of evidence, suffi-
cient facts existed to allow a jury to find that [the
employee] was discharged from his employment . . .
because he refused to pay the $1000. A finding of these
facts by the jury would support the conclusion that
[the employer discharged the employee] in violation of
public policy as set forth in § 31-73.’’ Id., 92.
In reaching that conclusion, this court construed the
language of § 31-73 (b) as ‘‘clear and unambiguous,’’
and stated that ‘‘[i]t prohibits an employer from
demanding any sum of money from an individual as a
requirement of employment or as a requirement for
continued employment.’’ Id. This court noted that the
trial court mistakenly had ‘‘relied on two [a]ttorney
[g]eneral [o]pinions [by] limiting the application of § 31-
73 to preventing a . . . kick-back . . . system from
being used to exact a payment from an employee to an
employer in return for that employee’s hiring. The trial
court’s interpretation of § 31-73 is not in accord with
the clear language of the statute and therefore runs
afoul of the well recognized rules of statutory construc-
tion adopted by our Supreme Court.’’11 (Internal quota-
tion marks omitted.) Id. In other words, this court con-
cluded that the trial court had construed the statute far
too narrowly in directing a verdict for the employer.
In discussing whether § 31-73 contains ‘‘an important
public policy,’’ the court in Lockwood held: ‘‘Section
31-73 represents a clear public policy prohibiting an
employer from taking advantage of the employment
relationship by using the acquisition or continuation
of employment as a mechanism for exacting sums of
money from an employee. The statute is written in
broad and sweeping language to prohibit such actions
by an employer. The discharge of an employee for . . .
refusing to refund a portion of his wages violates public
policy as expressed in § 31-73.’’ (Emphasis added.) Id.,
94–95. Although nothing in Lockwood directly linked
the deductible payment sought by the employer to any
specific wages paid to the employee or to the withhold-
ing of any wages due, the court plainly construed any
payment made by the plaintiff of the $1000 deductible
as necessarily coming from wages attributable to his
employment and, as a result, construed the employer’s
demand as a ‘‘refund [of] a portion of his wages,’’ which
was prohibited under the statute. Id., 95.
We now turn to Mytych v. May Dept. Stores Co.,
supra, 260 Conn. 155–57, in which the issue before the
court was whether an employer’s practice of deducting
from an employee salesperson’s compensation the cost
of returned merchandise violated § 31-73. The court
held that it did not. Id., 166. The court reasoned that,
although an employer cannot require an employee to
refund wages that have previously been earned as a
condition of continued employment, calculating wages
in the manner described did not violate § 31-73 because
the employee was aware of the practice when she was
hired and in fact had agreed to the employer’s making
the deduction at issue. Id., 156–57, 166.
Our Supreme Court in Mytych discussed the legisla-
tive purpose underpinning § 31-73 (b). It stated that
the statute was intended to be remedial in nature ‘‘to
prevent the employer from taking advantage of the legal
agreement that exists between the employer and the
employee’’ and ‘‘to protect the sanctity of the wages
earned by an employee pursuant to the agreement she
or he has made with her or his employer.’’ (Emphasis
added.) Id., 160–61. Discussing this court’s decision in
Lockwood, the Supreme Court stated: ‘‘The Appellate
Court properly concluded that the language of § 31-73
(b) was clear and unambiguous in that it prohibits an
employer from demanding any . . . sum of money or
contribution from any person . . . upon the represen-
tation or the understanding that such . . . sum of
money . . . is necessary to secure employment or con-
tinue in employment.’’ (Internal quotation marks omit-
ted.) Id., 166.12 With the following legal background in
mind, we turn to our discussion of the present case.
We conclude that the court properly granted the
defendant’s motion for summary judgment and denied
the plaintiff’s motion. We reach this conclusion for prin-
cipally two reasons. First, we agree with the main thrust
of the defendant’s argument, advanced in support of
its motion for summary judgment and in opposition to
the plaintiff’s motion, that § 31-73 is inapplicable to the
undisputed facts of this case and, thus, cannot as a
matter of law provide the basis for a wrongful termina-
tion action.13 Second, and alternatively, even if we were
to deem § 31-73 applicable under the facts presented,
we agree with the trial court and the defendant that
the plaintiff has failed to present evidence to support
his assertion that the defendant actually violated § 31-
73 and, thus, the public policy underlying the statute.
We start with the plaintiff’s failure to demonstrate
that the prohibitions described in § 31-73 are implicated
by the undisputed facts of the present case. As indicated
by the trial court, the material facts surrounding the
plaintiff’s termination are not in dispute. Furthermore,
it is unnecessary for purposes of summary judgment
to consider the parties’ dispute about whether the plain-
tiff’s abrupt discharge was prompted entirely or only
in part by his refusal to agree to share exam fees he
would earn from his work as an FAA examiner.14 The
reason for this is because the dispositive threshold issue
is whether the employer’s attempts, coercive or other-
wise, to get the plaintiff to agree to share in the exam
fees—fees that constituted as yet unrealized proceeds
of a business venture unrelated to any wages or other
sums of money paid to the plaintiff by the defendant as
part of their ongoing employment relationship—legally
constituted an act that invaded the ‘‘sanctity of the
wages earned by an employee . . . .’’ Mytych v. May
Dept. Stores Co., supra, 260 Conn. 161.
In other words, any request or demand of money
made by the defendant in this case concerned funds
that cannot reasonably be attributed to the existing
employment relationship but, rather, involved negotia-
tions related to a separate, albeit related, future busi-
ness venture between the parties. The fact that such
negotiation occurred in the context of an existing
employer-employee relationship is not enough to bring
such actions within the ambit of those that are prohib-
ited by § 31-73. The plaintiff’s argument that the defen-
dant’s onetime proposal of a potential fee sharing rela-
tionship falls within the type of coercive behavior that
§ 31-73 forbids is untenable. Rather, we agree with the
trial court that the plaintiff advances an overly broad
interpretation of § 31-73.15
Pursuant to the at-will employment doctrine, an
employer is permitted to discharge an employee for
any reason. One such permissible reason might be dis-
pleasure arising from an employee’s refusal to partici-
pate in a future side business proposed by the employer.
The employee may reject the proposal, choosing to go
into business alone and not share any potential earnings
with his employer. Regardless, the employer is justified
in discharging an at-will employee for any reason,
including anger or resentment over an employee’s
refusal of a business proposal. That is what the undis-
puted facts, viewed in the light most favorable to the
plaintiff, demonstrate happened in the present case. An
employer who discharges an at-will employee wholly
on the basis of what, on the surface, might be viewed
as ‘‘sour grapes,’’ has not violated § 31-73 or any clear
public policy that should subject the employer to a
claim of wrongful termination of employment.
The evidence offered by the plaintiff demonstrates
that the defendant made a single request to have him
enter into an agreement to share in the proceeds of a
future business venture. The plaintiff was free to reject
the offer, and the defendant, under the at-will employ-
ment doctrine, was free to terminate the plaintiff’s
employment for his decision. The public policy inherent
in § 31-73 (b) places a limit on the at-will employment
rule only by carving out an exception that prohibits an
employer from coercing from an employee financial
concessions related to wages by conditioning future
employment or continued employment on the employ-
ee’s capitulation to the employer’s demands. As the trial
court stated, ‘‘§ 31-73 (b) does not regulate an employ-
er’s reason for terminating an employee; it regulates
the use of continued employment as leverage to extort
a sum of money.’’ We are aware of no court that has
applied § 31-73 in the context of an employer’s request
to share an as-yet unrealized future sum of money.
Because the record before the court established that
§ 31-73 was inapplicable and was the sole legal basis
underlying the wrongful discharge count, the trial court
properly rendered summary judgment in favor of the
defendant.
We now turn to our second, alternative rationale for
upholding the trial court’s summary judgment. We con-
clude that, even if § 31-73 arguably is applicable as a
matter of law, the evidence submitted by the plaintiff
in support of his own motion for summary judgment
and in opposition to the defendant’s motion fails to
raise a genuine issue of material fact that the defendant
ever conditioned the plaintiff’s continued employment
on his acceptance of the defendant’s fee sharing offer,
a necessary element in the plaintiff’s wrongful termina-
tion action predicated on a violation of § 31-73. Further-
more, because the public policy exception to the at-
will employment doctrine is unquestionably a narrow
one, we are unconvinced that the inference that the
plaintiff urges us to draw solely from the temporal prox-
imity between his rejection of the defendant’s proposal
and the termination of his employment is sufficient to
trigger the exception.
The language of § 31-73 (b), which our Supreme Court
has determined to be clear and unambiguous, provides
that a violation of § 31-73 (b) requires more than a
demand of a sum of money; rather, such a demand must
be made ‘‘upon the representation or the understand-
ing that [payment] is necessary to secure employment
or continue in employment.’’ (Emphasis added.) Gen-
eral Statutes § 31-73 (b). The plaintiff failed to present
evidence of either a representation by the defendant
that his continued employment hinged on his accep-
tance of the defendant’s offer or an understanding
reached by the parties to that effect.
Black’s Law Dictionary defines a ‘‘representation’’ as
a ‘‘presentation of fact—either by words or by con-
duct—made to induce someone to act.’’ Black’s Law
Dictionary (11th Ed. 2019) p. 1556. We do not agree
with the plaintiff that such a representation can be
implied from the undisputed facts in the record pre-
sented. Although the defendant’s proposal reasonably
may be viewed as a demand or request for a sum of
money, there was no contemporaneous conduct that
could be construed as an express or implied ‘‘represen-
tation’’ made to the plaintiff that his continued employ-
ment depended on his agreement to the fee splitting
proposal, nor was there evidence of other coercive con-
duct by the defendant. The plaintiff acknowledges that
the defendant never expressly threatened him with the
loss of his job if he refused the defendant’s fee sharing
proposal. According to the plaintiff, the defendant
raised the possibility of a fee sharing arrangement only
one time. The plaintiff did not indicate at that time
whether he was interested in the defendant’s proposal,
and the defendant never asked him again, sought any
commitment, or threatened retaliation of any kind. In
fact, despite the plaintiff’s failure to agree with the
defendant’s proposal when it was made, the plaintiff’s
employment was not terminated immediately but,
rather, the plaintiff continued in the defendant’s employ
for weeks. Those facts fall far short of the actions taken
by the defendant in Lockwood, in which the defendant
made repeated and explicit demands that the plaintiff
could not return to work unless he agreed to pay the
defendant’s insurance deductible. See Lockwood v. Pro-
fessional Wheelchair Transportation, Inc., supra, 37
Conn. App. 87–89.
Similarly, no evidence was submitted in the present
case in conjunction with the motions for summary judg-
ment that tended to demonstrate that the parties ever
reached any mutual ‘‘understanding’’ that the plaintiff’s
agreement to the fee sharing arrangement was a condi-
tion of his continued employment. To the contrary,
as noted by the trial court, the only evidence of an
‘‘understanding’’ between the parties was the statement
by Rhonda Boulette, who, in response to the plaintiff’s
having indicated his reluctance to agree to the proposal,
stated, ‘‘that is fine. Don’t worry about it.’’
The plaintiff suggests that a trier of fact reasonably
could infer from the termination of his employment
alone that the defendant had implicitly conditioned his
continued employment on his agreement with the
defendant’s fee sharing proposal. We do not agree. As
stated by the trial court, the plaintiff failed to present
any evidentiary basis from which to conclude that the
defendant ‘‘ever actually used the prospect of renewed
or continued employment as leverage to achieve its
objective of obtaining a fee splitting agreement with
the plaintiff. It [simply] terminated him without further
discussion of the issue.’’ That decision, whether well
thought out or reasonable, falls squarely within the type
of managerial discretion by an employer that the
Supreme Court in Sheets indicated did not warrant inter-
vention by a court. See Sheets v. Teddy’s Frosted Foods,
Inc., supra, 179 Conn. 477 (warning that ‘‘courts should
not lightly intervene to impair the exercise of manage-
rial discretion or to foment unwarranted litigation’’).
For the foregoing reasons, we agree with the trial
court’s conclusion that the facts of this case, construed
in the light most favorable to the plaintiff, do not raise
a genuine issue of material fact that the defendant com-
mitted a violation of § 31-73 (b) or the important public
policy embodied therein. Without evidence of a viola-
tion of a statutorily derived important public policy,
the plaintiff’s common-law wrongful discharge claim
fails as a matter of law. Accordingly, we conclude that
the court properly granted the defendant’s motion for
summary judgment with respect to count one of the
operative complaint and denied the plaintiff’s motion
for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 31-73, titled ‘‘Refund of wages for furnishing employ-
ment,’’ provides: ‘‘(a) When used in this section, ‘refund of wages’ means:
(1) The return by an employee to his employer or to any agent of his
employer of any sum of money actually paid or owed to the employee in
return for services performed or (2) payment by the employer or his agent
to an employee of wages at a rate less than that agreed to by the employee
or by any authorized person or organization legally acting on his behalf.
‘‘(b) No employer, contractor, subcontractor, foreman, superintendent or
supervisor of labor, acting by himself or by his agent, shall, directly or
indirectly, demand, request, receive or exact any refund of wages, fee, sum
of money or contribution from any person, or deduct any part of the wages
agreed to be paid, upon the representation or the understanding that such
refund of wages, fee, sum of money, contribution or deduction is necessary
to secure employment or continue in employment. No such person shall
require, request or demand that any person agree to make payment of any
refund of wages, fee, contribution or deduction from wages in order to
obtain employment or continue in employment. A payment to any person
of a smaller amount of wages than the wage set forth in any written wage
agreement or the repayment of any part of any wages received, if such
repayment is not made in the payment of a debt evidenced by an instrument
in writing, shall be prima facie evidence of a violation of this section.
‘‘(c) The provisions of this section shall not apply to any deductions from
wages made in accordance with the provisions of any law, or of any rule
or regulation made by any governmental agency.
‘‘(d) Any person who violates any provision of this section shall be fined
not more than one hundred dollars or imprisoned not more than thirty days
for the first offense, and, for each subsequent offense, shall be fined not
more than five hundred dollars or imprisoned not more than six months
or both.’’
2
The parties each filed motions for summary judgment. The court granted
the defendant’s motion for summary judgment and denied the plaintiff’s
motion for summary judgment. Our review of the court’s summary judgment
rendered in favor of the defendant is dispositive of this appeal as to both
motions. See footnote 7 of this opinion. Although the denial of a motion
for summary judgment is not ordinarily a final judgment and, thus, not
immediately appealable, ‘‘if parties file . . . motions for summary judgment
and the court grants one and denies the other, this court has jurisdiction
to consider both rulings on appeal.’’ Hannaford v. Mann, 134 Conn. App.
265, 267 n.2, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42 A.3d 391 (2012).
3
As reflected in the record, in order to have an FAA flight examiner
designated as an on-staff examiner as opposed to an independent examiner,
the defendant, in addition to the individual examiner, would have been
required to obtain examination authority from the FAA. The defendant never
obtained such examination authority.
4
The defendant’s students would pay the defendant to rent a helicopter
for the exam, but they would pay the FAA examiner directly for his or her
services. If the defendant had a staff member who also was a certified
examiner, it could capitalize on that fact as a marketing tool to attract more
students and increase business. Further, by splitting the exam fee with the
plaintiff, the defendant hoped to be able to refund that portion of the fee
to its students. From the plaintiff’s perspective, certification by the FAA as
an examiner would mean an additional, independent stream of income in
the form of exam fees, and his continued association with the defendant
would provide him with access to student helicopter pilots interested in
FAA certification. He would also generate additional fees by administering
exams at other locations, just as other FAA examiners had done for years
with respect to the defendant’s students.
5
A copy of the text message chain, which the plaintiff submitted in support
of his motion for summary judgment, reveals the following colloquy:
‘‘[Rhonda Boulette]: Tim. I’m going through the credit cards and I see
nothing from OK City. What’s up? You didn’t use our card?
‘‘[The Plaintiff]: No, I paid for it all myself.
‘‘[Rhonda Boulette]: Why? That should be a deduction for school expenses.
‘‘[The Plaintiff]: When I originally asked John if he wanted to pay for the
trip I told him I’d pay him back. Then he told me he wanted me to give him
[one half of] my examiner money. I decided to just keep them separate and
pay for it myself.
‘‘[Rhonda Boulette]: Oh. John said clean out your desk you do not work
for [the defendant] anymore.
‘‘[The Plaintiff]: Will do.’’
6
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of sections
31-71a to 31-71i, inclusive . . . such employee . . . shall recover, in a civil
action, (1) twice the full amount of such wages, with costs and such reason-
able attorney’s fees as may be allowed by the court, or (2) if the employer
establishes that the employer had a good faith belief that the underpayment
of wages was in compliance with law, the full amount of such wages or
compensation, with costs and such reasonable attorney’s fees as may be
allowed by the court. . . .’’
7
Because the court’s decision disposed only of one of the two counts
brought by the plaintiff against the defendant, the court’s ruling on the
motions for summary judgment was not an immediately appealable final
judgment. See Practice Book § 61-4. The plaintiff filed a notice of intent to
appeal on September 10, 2019, although such notice was unnecessary. See
Practice Book § 61-5 (indicating that ‘‘use of the notice of intent to appeal
is abolished in all instances except’’ to defer filing of appeal from judgment
described in Practice Book §§ 61-2 and 61-3, neither of which was applicable
to judgment rendered by court in present case). On November 8, 2019,
however, the plaintiff withdrew count two of the complaint. Because all
counts of the complaint were disposed of as a result of that withdrawal, the
result was an appealable final judgment. See Practice Book § 61-2; Sicaras
v. Hartford, 44 Conn. App. 771, 775, 692 A.2d 1290 (‘‘[w]ithdrawals are
analogous to final judgments’’), cert. denied, 241 Conn. 916, 696 A.2d 340(1997). The plaintiff timely filed the present appeal on November 12, 2019.
8
The plaintiff further claims that the court improperly denied his motion
for summary judgment with respect to the defendant’s claim of entitlement
to a setoff. We decline to review that claim in light of our disposition of
this appeal. ‘‘The concept of setoff allows [parties] that owe each other
money to apply their mutual debts against each other, thus avoiding the
absurdity of making A pay B when B in fact owes A.’’ (Internal quotation
marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at
Lloyd’s of London, 84 Conn. App. 688, 703, 854 A.2d 1100, cert. denied, 272
Conn. 905, 863 A.2d 698 (2004); see id. (explaining that defendant will plead
right of setoff ‘‘either to reduce the plaintiff’s recovery, or to defeat it
altogether, and, as the case may be, to recover a judgment in his own favor
for a balance’’ (internal quotation marks omitted)). Because we affirm the
court’s decision to render summary judgment in favor of the defendant on
count one of the complaint and the plaintiff has withdrawn count two, there
can be no monetary judgment for the plaintiff subject to the defendant’s
asserted right to a setoff. See 20 Am. Jur. 2d 271, Counterclaim, Recoupment,
and Setoff § 8 (2021) (‘‘setoff is not available when the plaintiff has no cause
of action’’). Furthermore, even if adjudication of the setoff claim were still
possible despite our disposition of the plaintiff’s claim on count one, the
defendant has not raised on appeal any claim to a right to further adjudication
of the setoff by the court in the absence of a remand by this court for
further proceedings on the complaint should the plaintiff prevail on appeal.
Accordingly, because no such remand is ordered, we treat the setoff as
abandoned. To the extent that the defendant believes it is entitled to satisfac-
tion of a debt allegedly owed to it by the plaintiff, it may seek whatever
legal remedies remain available to it in a separate action.
9
‘‘When construing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including the question of
whether the language actually does apply. . . . General Statutes § 1-2z
directs this court to first consider the text of the statute and its relationship
to other statutes to determine its meaning. If, after such consideration, the
meaning is plain and unambiguous and does not yield absurd or unworkable
results, we shall not consider extratextual evidence of the meaning of the
statute. . . . Only if we determine that the statute is not plain and unambigu-
ous or yields absurd or unworkable results may we consider extratextual
evidence of its meaning such as the legislative history and circumstances
surrounding its enactment . . . the legislative policy it was designed to
implement . . . its relationship to existing legislation and [common-law]
principles governing the same general subject matter . . . . The test to
determine ambiguity is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation. . . . We presume that the
legislature did not intend to enact meaningless provisions. . . . [S]tatutes
must be construed, if possible, such that no clause, sentence or word shall
be superfluous, void or insignificant . . . .’’ (Internal quotation marks omit-
ted.) Kayla M. v. Greene, supra, 163 Conn. App. 499–500. ‘‘Moreover, when
. . . a statute does not define a term, we may look to the dictionary to
determine the commonly approved meaning of the term.’’ Board of Selectmen
v. Freedom of Information Commission, 294 Conn. 438, 449, 984 A.2d 748(2010); see also General Statutes § 1-1 (a).
10
In Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn.
691, our Supreme Court emphasized the limitations of the public policy
exception, citing to a number of cases in which it previously had found
‘‘no statutorily based expression of public policy sufficient to warrant an
exception to the at-will employment doctrine.’’ Id., 701. For example, in
Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 161, 745 A.2d 178 (2000), it
had determined that the plaintiff failed to state a claim of common-law
wrongful discharge because the allegations of retaliatory discharge failed
to satisfy the requirements of the particular statute on which the claim was
based. In Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 804, 734 A.2d
112 (1999), the court held that the plaintiff could not prevail on a claim that
a public policy required all employers to provide working parents with
flexible work schedules because such an accommodation was not statutorily
mandated. In Carbone v. Atlantic Richfield Co., 204 Conn. 460, 468–70,
528 A.2d 1137 (1987), our Supreme Court determined that an oil company
employee whose employment was terminated because he failed to obtain
accurate information regarding the pricing practices of the employer’s com-
petitors failed to allege facts necessary to support a claim that the termina-
tion of his employment violated any statutorily expressed public policy.
Finally, in Morris v. Hartford Courant Co., supra, 200 Conn. 680, the court
held that no statutory provision obligated the plaintiff’s employer, as a
matter of public policy, to investigate the veracity of an accusation of crimi-
nal conduct that the employer had used as a basis for the termination of
the plaintiff’s employment.
11
Although recognizing the principle that an administrative agency
charged with a statute’s enforcement ordinarily is entitled to considerable
deference regarding that statute’s construction, this court noted that ‘‘the
construction of a statute on an issue that has not previously been subjected
to judicial scrutiny is a question of law on which an administrative ruling
is not entitled to special deference.’’ (Internal quotation marks omitted.)
Lockwood v. Professional Wheelchair Transportation, Inc., supra, 37 Conn.
App. 93. Because, at the time of the Lockwood decision, § 31-73 had never
been subject to judicial interpretation, we concluded that it was ‘‘within the
authority of this court to construe the statute in a manner consistent with
its language and purpose’’ if the ‘‘administrative interpretations lead to a
result that is contrary to the language and purpose of the statute . . . .’’
Id. Although an opinion of the attorney general is always highly persuasive
authority entitled to careful consideration by courts; see Wiseman v. Arm-
strong, 269 Conn. 802, 825, 850 A.2d 114 (2004); it is not at all clear from
the text of § 31-73 that the Office of the Attorney General is the agency
charged with the enforcement of the statute, including the power to seek
the criminal sanctions provided for in subsection (d) of the statute.
12
We note that, in 2007, the attorney general had occasion to release a
formal legal opinion discussing, inter alia, whether an employer of a state
legislator could enter into an agreement with the legislator-employee ‘‘per-
mitting him to be paid his full salary, but requiring him to bear the cost of
training and compensating a third party to perform his duties [for the
employer] if he is absent from work due to legislative obligations.’’ Opinions,
Conn. Atty. Gen. No. 2007-033 (December 17, 2007) p. 1. The concern
addressed by the attorney general in his opinion was whether requiring the
legislator-employee ‘‘effectively to forfeit a portion of his wages constitutes
a violation of [General Statutes] §§ 2-3a, 31-71e, or 31-73.’’ Id.
The attorney general described § 31-73 as ‘‘prohibit[ing] an employer from
requiring an employee to refund wages already paid in order to keep his
job.’’ Id., p. 4. After considering the decisions in Lockwood and Mytych, the
attorney general stated that those cases make clear that the employer and
legislator-employee could enter into a voluntary agreement establishing a
formula for calculating the employee’s future wages without violating § 31-
73 as long as that voluntary agreement did not violate § 2-3a. Id., p. 5.
Relevant to the present case, the attorney general seemed to recognize that
negotiations between an employer and employee affecting future wages
would not implicate § 31-73, which is concerned with wages already paid
or earned and owing.
13
For his part, the plaintiff claims that, not only does the statute apply
as a matter of law, but that what he perceives as admissions in the depositions
of the parties established a prima facie case of wrongful discharge that
warranted the rendering of summary judgment in his favor. Because our
resolution of the plaintiff’s claim directed at the court’s rendering of sum-
mary judgment in favor of the defendant is fully dispositive of the wrongful
termination count, it is unnecessary to address the plaintiff’s claim that
the court improperly denied his motion for summary judgment on that
same count.
14
As stated by the trial court: ‘‘Despite [the defendant’s] claim that other
considerations motivated it to fire the plaintiff, there is evidence to support
the plaintiff’s claim that he was fired for refusing to share the examination
fees, and the court, for purposes of summary judgment, must assume that
[the defendant] fired the plaintiff for that reason.’’
15
We also agree with the trial court’s cogent analysis that ‘‘[the defendant]
was not proposing a ‘refund of wages’ or anything analogous to that when
it proposed the fee splitting arrangement. . . . [The defendant] undoubtedly
considered the plaintiff’s access to its customers a valuable asset to the
plaintiff’s proposed new business. [The defendant’s] desire to be compen-
sated for the value it would bring to the plaintiff’s business should not be
viewed, from a legal standpoint, as a prohibited attempt to recoup wages
earned by the plaintiff through his work for [the defendant]. Such a broad
interpretation of the statute’s reference to ‘a sum of money’ would chill the
discussion of any prospective new business arrangements between employ-
ers and employees. Employers would be deterred from engaging in such
discussions with an employee by the prospect that it might result in nothing
more than unlimited tenure for the employee. It does not appear to the
court that the legislature meant to create such a disincentive to entrepreneur-
ship by enacting the statute and providing that one who violates it is subject
to a fine and/or imprisonment.’’