APPEAL CASE & DATE – Re: Reprisial with Sheriff work!

 

THURSDAY, MARCH 8, 2012

THE FOLLOWING CASES ARE ASSIGNED FOR “FULL HEARING”

10:00 A.M.

AC33194   TSR

CHANNY N. KHUTH

Laljeebhai R. Patel, Assigned Counsel v. COMMISSIONER OF CORRECTION

Melissa Patterson, Assistant State’s Attorney

AC33541    FBT

CECIL YOUNG

John R. Williams. LLC Cecil Young, self-represented party

v.

CITY OF BRIDGEPORT Bridgeport City Attorney

AC33549   AAN

DEBBIE GREGORY

Eric L. Reinken

v. JOHN GREGG

Del Sole & Del Sole, LLP

 

APPELLATE COURT STATE OF CONNECTICUT

NO. A.C. 33541

CECIL YOUNG,

PLAINTIFF-APPELLANT, -VS-CITY OF BRIDGEPORT,

DEFENDANT-APPELLEE.

On Appeal From The Superior Court

For The Judicial District Of Fairfield at Bridgeport

(Hon. Theodore R. Tyma, J.)

BRIEF OF PLAINTIFF-APPELLANT

JOHN R. WILLIAMS

51 Elm Street

New Haven, CT 06510

203-562-9931

Fax: 203-776-9494

jrw@johnrwilliams.com

Attorney for Appellant

To Be Argued By:

JOHN R. WILLIAMS, ESQ.

 

ISSUE    PRESENTED

DID THE TRIAL COURT ERR IN HOLDING THAT THE PLAINTIFF WAS NOT AN “EMPLOYEE” WITHIN THE MEANING OF SECTIONS 31-51m AND 31-51q OF THE GENERAL STATUTES?

11

 

STATEMENT   OF   THE   CASE

_

The plaintiff, Cecil Young, alleged that he was an elected City Sheriff in the City of

Bridgeport. His duties included service of legal process. He was employed by the City of

w

Bridgeport, through its attorneys, to serve papers for the City Attorney. He made

complaints to public bodies, including the Freedom of Information Commission and the Bridgeport Ethics Commission concerning alleged violations of laws, regulations and

\»^

ordinances and he spoke publicly about what he considered to be unethical practices, mismanagement and abuse of authority by various Bridgeport officials. On April 12, 2006, the City terminated his services. (Complaint)

The plaintiff brought this action on July 10, 2006, with a Return Date of August 22,

2006. (Record) He alleged that, by terminating his services, the City of Bridgeport had

^

violated Section 31-51m (Count One) and Section 31-51q (Count Two) of the General Statutes. (Ibid.)1

i

Section 31-51m of the General Statutes provides:

(1)     “Person” means one or more individuals, partnerships, associations,
corporations, limited liability companies, business trusts, legal representatives or
any organized group of persons;

(2)     “Employer” means a person engaged in business who has employees,
including the state and any political subdivision of the state.

(3)     “Employee” means any person engaged in service to an employer in a
business of his employer;

(4)     “Public body” means (A) any public agency, as defined in subdivision
(1) of section 1-200, or any employee, member or officer thereof, or (B) any
federal agency or any employee, member or officer thereof.

The case was tried to the court (Tyma, J.) on May 25, 2011. Mr. Young testified that

(b)      No employer shall discharge, discipline or otherwise penalize any
employee because the employee, or a person acting on behalf of the employee,
reports, verbally or in writing, a violation or a suspected violation of any state or
federal law or regulation or any municipal ordinance or regulation to a public
body, or because an employee is requested by a public body to participate in an
investigation, hearing or inquiry held by that public body, or a court action. No
municipal employer shall dischargejdiscipline orotherwise penalize any
employee because the employee[ora~person actjngon behaffof the^mployee”
reports, verbally or in writing, to a public body coTicerning the unethlcaTpracticesr
mismanagement or abuse of authority by such employer. The provisions of this
subsection shall not be applicable when the employee knows that such report is
false.

(c)       Any employee who is discharged, disciplined or otherwise penalized by
his employer in violation of the provisions of subsection (b) may, after exhausting
all available administrative remedies, bring a civil action, within ninety days of the
date of the final administrative determination or within ninety days of such
violation, whichever is later, in the superior court for the judicial district where the
violation is alleged to have occurred or where the employer has its principal
office, for the reinstatement of his previous job, payment of back wages and
reestablishment of employee benefits to which he would have otherwise been
entitled if such violation had not occurred. An employee’s recovery from any
such action shall be limited to such items, provided the court may allow to the
prevailing party his costs, together with reasonable attorney’s fees to be taxed by
the court. Any employee found to have knowingly made a false report shall be
subject to disciplinary action by his employer up to and including dismissal.

Section 31-51q of the General Statutes provides:

Any employer, including the state and any instrumentality or political subdivision thereof, 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 attorney’s 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 attorney’s fees to the employer.

 

he has been an elected City Sheriff in Bridgeport for eighteen years. (Transcript, p. 7) His duties included serving WPCA summonses for the City, serving summonses for private landlords in summary process cases, and other process-serving work. (Id., p. 9) After he had been a Sheriff for approximately eleven years, the City Attorney approached him and retained him on behalf of the City to serve WPCA summonses. He said: “Cecil, you know, you’ve been a sheriff for a long time. I’ve got a lot of WPCA work need to be done, you know, and I thought that you might be good in doing that. Would you like to try it?” The plaintiff accepted and was assigned to work primarily with Attorney Russell Liskov, an Associate City Attorney. (Id., p. 10) In this position, he served hundreds of summonses for the City every year. (Id., p. 11) The City paid the plaintiff a sum of money for each summons he served. (Id., p. 69)

In 2005 he personally brought a lawsuit against the City of Bridgeport. (Id., p. 12) At ^_

about the same time, he filed a Freedom of Information complaint against the City, seeking

access to records of the City Ethics Commission. (Id., pp. 16-19) On December 1, 2005, he filed a complaint with the Bridgeport Ethics Commission against two city officials. (Id., p. 23; Exhibit 1) On April 3, 2006, Attorney Liskof summoned the plaintiff to a meeting at which he asked that all three matters be withdrawn, saying he was “getting pressure.” (Id., pp. 24-25, 28) After thinking it over, the plaintiff declined to drop his actions. In response, on April 11, 2006, Attorney Liskof wrote the plaintiff stating: “On a professional basis, I have ethical issues with providing work to anybody suing the city or filing complaints against members of this office.” (Id., pp. 34-35; Exhibit 3) At a meeting with the plaintiff, Attorney Liskof stated: “How do I give you…a chance to make this kind of money if…you’re filing lawsuits and complaints against our office, and I’m being pressured?” (Id., p. 42) At

4

 

that time, the City through Attorney Liskof stopped giving the plaintiff work as a City Sheriff. Specifically, Attorney Liskof informed the plaintiff that he was being terminated because he attended and testified at an FOIC hearing. (Id., p. 67)

On cross examination by defense counsel, the plaintiff testified that his compensation was “based on the work you do.” He does not receive other benefits, is not under civil service protection and is not a union member. (Id., p. 60) He did not participate in a pension plan and did not have a physical office. He did not have “set hours of work” but instead worked on an “as needed” basis. (Id., p. 61) With respect to the control of his work, the city attorney “just said, ‘Get them; go get them; go get them,’ and I went in and I got it.” (Id., p. 66) Furthermore, the city attorney did give the plaintiff specific instructions concerning the manner in which he was to serve summonses. At times he would be instructed that the service should be made in hand, at other times that it should be placed under a door, and at other times that he should take a photograph to document the service. At other times, Attorney Liskov “told me to take pictures of everybody I served…hundreds and hundreds of films…which I gave to Russell….” (Id., p. 71)2

When the plaintiff rested his case, the City moved for a directed verdict on the ground that the evidence was insufficient to establish that the plaintiff was an “employee” of the defendant. (Id., p. 83) Granting the motion, the court opined that the plaintiff is “a public official who…may be in the nature of an independent contractor sort of, gets work from the city, and receives payment from the work.” (Id., p. 89) The court considered the

On one occasion, the plaintiff had to submit a letter from his physician to the city attorney explaining his physical abilities and limitations. (Id., p. 74; Exhibit 7)

 

statutes under which the action was brought, specifically Section 31-51m, and held that it “doesn’t define employee, it just says, under section three, employee means any person engaged in service to an employer in a business of his employer. So that doesn’t help.” (Id., p. 91)   The plaintiff argued that he was virtually a full-time process server for the City, handling the vast bulk of the City’s work, and that this fact brought him within the statutory definition of “employee”. (Id., pp. 93-94)

The court held that “[t]he plain meaning of the statute is not clear, so you would have to go to extra-textual sources, in this case, case law. I really think where you end up is on the independent contractor type of law….” (Id., p. 95) “[T]he persons who are entitled to the benefit and the protections of the statutes are employees and they’re protected against retaliatory or, in essence, unlawful discharge by employers. And I believe that…there’s nothing you can do…to change the fact that you’re a publicly elected state marshal who gets work from the city, not as an employee of the city,…but as an independent contractor, paid on a piecemeal basis on your work, and you would receive the work from the city like other independent contractors are hired by the city in various respects.” Accordingly, the court granted the motion for a directed verdict. (Id., p. 96)

 

ARGUMENT

I         STANDARD OF REVIEW

When the court grants a defendant’s motion for a directed verdict, as when the court grants a defendant’s motion for summary judgment, the standard of appellate review is plenary. Neff v. Johnson Memorial Hospital. 93 Conn. App. 534, 539, 889 A.2d 921, 925 (2005); Rosenfield v. Cvmbala. 43 Conn. App. 83, 681 A.2d 999 (1996).

“Because the interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law…our review…is plenary.” R. C. Equity Group, LLC v. Zoning Commission. 285 Conn. 240, 248, 939 A.2d 1122 (2008).

“Directed verdicts are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion….In reviewing a trial court order directing a verdict, we consider all of the evidence and the reasonable inferences drawn therefrom in the light most favorable to the [nonmoving party].” Domogala v. Molin. 57 Conn. App. 525, 527, 749 A.2d 676 (2000).

II         THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFF WAS NOT AN “EMPLOYEE” WITHIN THE MEANING OF SECTION 31-51m OR SECTION 31-51q OF THE GENERAL STATUTES

The obvious purpose of the two statutes involved in this litigation was to remedy abuses in the workplace restricting the free speech rights of employees. As remedial statutes, they must be construed liberally in favor of those whom the legislature intended to benefit. Chrysler Corporation v. Maiocco. 209 Conn. 579, 595, 552 A.2d 1207 (1989). The

 

definitional language of the statutes is extremely broad, which supports the plaintiff’s argument that he is included within that definition and was an “employee” entitled to the statutory protection. See Saunders v. Firtel. 293 Conn. 515, 526-27, 978 A.2d 487 (2009).

Despite the broad statutory language applicable to this specific case, the lower court held that because of that very breadth the definition of “employee” was so ambiguous as to be meaningless and turned to the common law. In doing so, however, the court made two errors. The first was in placing the burden of proof on the plaintiff. (Transcript, pp. 88-89) On the contrary, the law is clear that “any service provided by an individual is considered employment, unless and until the recipient of the services provided has sustained the burden of showing…that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed….” Latimer v. Administrator. 216 Conn. 237, 247, 579 A.2d 497 (1990); F.A.S. International. Inc. v. Reillv. 179 Conn. 507, 511-12, 427 A.2d 392 (1980).

The lower court’s second error was in misconstruing, or failing to remember, the evidence. “The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Tianti v. William Raveis Real Estate. Inc.. 231 Conn. 690, 696-97, 651 A.2d 1286 (1995). In this case, the court directed a verdict for the defense at the close

8

 

of the plaintiffs case, without hearing any defense evidence. At that point in the trial, the only evidence before the court on the subject of whether the defendant had the right to exercise, and did exercise, control over the manner and means by which the plaintiff served process upon the city’s adversaries was the plaintiff’s uncontradicted testimony that the city attorney did precisely that – directing which defendants to serve in hand, which to serve by abode, and which ones to photograph. The very insistence that the plaintiff photograph the people he served clearly was an exercise of control over the manner and

•^

means of making service, since it is in no way a statutory requirement of service.

At this stage of the trial, the court was obliged for purposes of a motion for directed verdict to draw all inferences in favor of the plaintiff. Sestito v. Groton. 178 Conn. 520, 522, 423 A.2d 165 (1979). Moreover, the defendant in fact had the burden of proving that the plaintiff was not an employee. Latimer v. Administrator, supra. Thus, the court erred in directing a verdict at the close of the plaintiff’s case on the ground that the plaintiff had not proved to the court’s satisfaction that he was an employee of the defendant.

 

CONCLUSION

The judgment below should be reversed.

Respectfully submitted:

 

 
 

 
JOHN R. WILLIAMS (#67962)

51 Elm Street

New Haven, CT 06510

203-562-9931

Fax: 203-776-9494

jrw@johnrwilliams.com

Attorney for Appellant

 

10

6 Responses to APPEAL CASE & DATE – Re: Reprisial with Sheriff work!

  1. Thank you for sharing. Not to many people in your position are so gracious. Your article was very poignant and understandable. It helped me to understand very clearly. Thank you for your help.

  2. Hello men In my opinion this is a great publish I will definetely keep up reading through your works, well done. It is very important to possess high quality material on the internet, we can use them like a dependable supply for our tasks.I have see clearly with pleasure as well as I know I’m gonna study all the other things you may create, good job man!.

  3. It was a excitement locating your site yesterday. I came here right hoping to learn something new. And I was not dissatisfied. Your well thought out ideas for new events like this. Thank you for this idea and sharing your knowledge.

  4. test1234 says:

    Have you ever thought about creating an ebook or guest authoring on other websites? I have a blog centered on the same information you discuss and would really like to have you share some stories/information. I know my audience would value your work. If you’re even remotely interested, feel free to shoot me an email.

  5. Adina says:

    excellent information. i have learned quite a few very helpful information from your blog. thank you very much.http://www.vinhobrasil.org

  6. Beatrice says:

    thanks for the nice blog. it was very useful for me. keep sharing such ideas in the future as well. this was actually what i was looking for, and i am glad to come here!http://www.casaemail.com.br

Leave a Reply

Your email address will not be published. Required fields are marked *