Evans v. Tiger Claw, Inc. , 173 Conn. App. 409 ( 2017 )

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CHRISTOPHER EVANS v. TIGER CLAW,
INC., ET AL.
(AC 38445)
Alvord, Prescott and Bear, Js.
Argued March 15—officially released May 23, 2017
(Appeal from Superior Court, judicial district of New
Haven, Licari, J. [motion to strike]; Corradino, J.
[motion to strike special defenses]; Hon. Robert I.
Berdon, judge trial referee [judgment; articulation];
Pittman, J. [judgment])
Mariusz Kurzyna, with whom, on the brief, was
Peter Goselin, for the appellant (plaintiff).
Taryn D. Martin with whom was Robert A. Ziegler,
for the appellee (named defendant).
Opinion
PER CURIAM. The plaintiff, Christopher Evans,
appeals from the judgment, rendered after a trial to the
court, denying his claim for hourly wages allegedly due
from the defendant, Tiger Claw, Inc. (defendant).1 On
appeal, the plaintiff claims that the trial court erred (1)
‘‘in failing to apply or misapplying fundamental tenets
of wage and hour law’’; (2) ‘‘in applying an incorrect
burden of proof’’; and (3) ‘‘in finding that [the] plaintiff
has not proved that [the] defendant failed to pay any
wages to which [the] plaintiff was otherwise entitled.’’
We affirm the judgment of the trial court.
The following facts were found by the court or are
not disputed. The defendant was a start-up company
when the plaintiff began working there in January, 2003.
The defendant manufactured hidden deck fasteners for
the construction industry. David Hartmann, David Mar-
tel, and Donald Martel were corporate officers and held
various managerial positions within the defendant. The
plaintiff was hired as a sales representative for a new
line of deck fasteners and was compensated on a com-
mission basis, with an agreement that his first $10,000
in commission earnings would be withheld and invested
in shares of the company’s stock. Because the defen-
dant was just starting up and had little support staff, it
was further agreed that if the plaintiff was called upon
from time to time to perform administrative functions
that were not sales related, the defendant would com-
pensate the plaintiff on an hourly basis, based on time
records submitted periodically by the plaintiff.
The plaintiff worked primarily as a sales representa-
tive from January, 2003 until April, 2005, calling custom-
ers, visiting wholesalers and retailers, attending trade
shows, creating and editing promotional materials, and
keeping track internally and externally of the market.2
After the plaintiff had accumulated $10,027.26 in sales
commissions, which was set aside in a stock fund, he
was paid commissions for subsequent sales that he
made and received Internal Revenue Service (IRS)
Forms 1099 for that income.
The plaintiff submitted a record of time spent on
administrative work to the defendant in February, 2003
for work performed in January, 2003. The plaintiff was
not paid for the administrative work he performed in
January, 2003, and he never demanded payment for
that administrative work during his employment. The
plaintiff did not submit any other records of time alleg-
edly spent on administrative work until he stopped
working for the defendant.3 When it became clear that
the plaintiff would be leaving in March, 2005, the plain-
tiff presented the defendant with more than two years
of administrative time records for which he demanded
compensation. The defendant disputed the plaintiff’s
entitlement to compensation for such administrative
time.
The plaintiff essentially stopped working for the
defendant on March 16, 2005, and he resigned effective
that date. On April 7, 2005, the defendant’s counsel
sent a letter to the plaintiff, officially terminating his
employment. The defendant paid out all of his
remaining earned commissions and reported on an IRS
Form 1099 for the year 2005 that the plaintiff received
$8861.49 for that year.
On October 13, 2006, the plaintiff filed a complaint
with the state Department of Labor (department) for
unpaid wages totaling $191,966.91. After an investiga-
tion, Blair F. Bertaccini, a department wage enforce-
ment agent, determined that certain costs had been
deducted improperly from one of the plaintiff’s commis-
sion checks and that the plaintiff was owed $3603.67
in unpaid wages. The plaintiff was unwilling to resolve
his claim for that amount, and he withdrew his com-
plaint at the department. On August 13, 2007, the plain-
tiff commenced the present action against the
defendant and against Hartmann and the Martels in
their individual capacities.
The plaintiff’s operative complaint alleged that the
defendant, Hartmann, and the Martels (1) failed to pay
him hourly and commission wages and/or the shares
of stock to which he was entitled and (2) obtained the
plaintiff’s property, i.e., wages and/or stock, by false
pretenses. The defendant, Hartmann, and the Martels
filed special defenses alleging that the plaintiff’s claims
were barred by the statute of limitations articulated in
General Statutes § 52-596 and by the doctrine of res
judicata. Following a six day trial, the court, Hon.
Robert I. Berdon, judge trial referee, issued its memo-
randum of decision on April 27, 2011. Although the
court rendered judgment in favor of the plaintiff, it
limited his recovery for unpaid hourly wages to
$3603.67, which was the amount Bertaccini recom-
mended to resolve the wage claim filed by the plaintiff
with the department. The court held that the doctrine
of res judicata precluded any further recovery by the
plaintiff for unpaid hourly wages. The court added
$10,027.26 to that award, however, representing the
sales commissions set aside for the purchase of corpo-
rate stock, for a total recovery of $13,630.93, plus tax-
able costs.
The plaintiff appealed the judgment of the trial court
claiming that ‘‘the court improperly concluded that the
doctrine of res judicata precluded the recovery of those
wages because of a prior determination by a wage
enforcement agent for the department of labor.’’ Evans
v. Tiger Claw, Inc., 141 Conn. App. 110, 112, 61 A.3d
533, cert. denied, 310 Conn. 926, 78 A.3d 146, 856 (2013).
The defendant, Hartmann, and the Martels filed a cross
appeal from the judgment, ‘‘claiming that the court
improperly (1) awarded the plaintiff $10,027.26 for
unpaid commissions and (2) found [Hartmann and the
Martels] liable for the amounts awarded to the plaintiff.’’
Id. This court reversed the judgment ‘‘as to the
according of res judicata effect to [Bertaccini’s] deter-
mination of the plaintiff’s wage claim’’ and remanded
the case for a new trial on that issue. Id., 124. This
court further reversed the judgment with respect to
the personal liability of Hartmann and the Martels and
remanded the case with direction to render judgment
in their favor but affirmed the award of $10,027.26 in
favor of the plaintiff and against the defendant for
unpaid wages. Id.
On remand, the case was tried to the court, Pittman,
J., on the limited issue of whether the defendant failed
to pay the plaintiff any other wages or commissions
and, if so, what amount of compensation was due. Prior
to trial, the plaintiff filed a motion in limine requesting
that the court ‘‘limit any documentary or testamentary
evidence that the defendant asserts shows the hours
worked by or wages paid to the plaintiff and apply the
burden-shifting framework set out in’’ Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L.
Ed. 1515 (1946),4 and adopted by our Supreme Court
in Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn.
210, 828 A.2d 64 (2003). The court denied the motion
without prejudice before trial ‘‘because there is cur-
rently an insufficient basis upon which to make such
a decision.’’
At trial, the plaintiff presented evidence that he was
entitled to additional compensation at an hourly wage
for substantial administrative work he purportedly per-
formed for the defendant. In particular, the plaintiff
produced as evidence several spreadsheets that he rep-
resented were contemporaneous records of his daily
‘‘administrative hours’’ for the years 2003, 2004, and
2005. The defendant rebutted that evidence primarily
through the testimony of Hartmann, who explained why
the plaintiff’s figures in his spreadsheets were not credi-
ble or why certain tasks listed by the plaintiff in his
spreadsheets constituted sales work, compensable
through his sales commissions, not administrative
work. Hartmann stated on several occasions that he
did not know what many of the tasks identified by
the plaintiff were.5 In addition, Hartmann stated that,
although he conceptually understood what some of the
listed tasks were, he did not know that the plaintiff
actually performed those tasks or why he would per-
form them.6 Finally, Hartmann testified that there were
some tasks he knew that the plaintiff was performing
despite being instructed not to do so.7
On August 6, 2015, the court issued its memorandum
of decision, in which it concluded that ‘‘the plaintiff
. . . failed to prove his entitlement to any additional
compensation by a preponderance of the evidence
. . . .’’ Although the court noted that ‘‘the plaintiff was
always considered an independent contractor, not an
employee’’ by the parties, it assumed arguendo that
the Anderson burden-shifting scheme for unpaid wages
claims by employees applied to the case.8
The court found that the plaintiff’s spreadsheets of his
‘‘administrative hours’’ were ‘‘not a contemporaneous
record of the plaintiff’s administrative work’’ and that
‘‘the number of ‘administrative hours’ reflected on them
is not believable (and, in some instances, barely
humanly possible), especially when coupled with the
plaintiff’s primary [forty]-hour-per-week job as a sales
representative, a job he performed well, according to
David Hartmann. These time records cast doubt upon
the entire presentation of the plaintiff about his perfor-
mance of any administrative work at all for the defen-
dant.’’ The court further found that, ‘‘with rare
exception, the plaintiff was not directed by the defen-
dant to do any of the administrative functions for which
he finally submitted a demand. Rather from a review
of the spreadsheets and an analysis of the evidence as
a whole, particularly the plaintiff’s own testimony, the
court finds that the plaintiff busied himself with projects
that he invented for himself which had only incidental
value to the company.
‘‘Although . . . Hartmann generously conceded that
the plaintiff may have worked some compensable
administrative hours on occasion, the court is not
bound to accept such uncontradicted testimony. . . .
Rather, despite the time records constructed by the
plaintiff, the plaintiff’s descriptions of the administra-
tive time worked are so vague and sometimes contradic-
tory that his account of his many hundreds of hours
spent on administrative tasks simply does not ring true.’’
(Citation omitted; emphasis in original; footnote
omitted.)
As a result, the court concluded that ‘‘the plaintiff
has not proved that the defendant failed to pay any
wages or commissions to which the plaintiff was other-
wise entitled. The absence of the compensation of
which the plaintiff complains in this lawsuit is not evi-
dence that the defendant withheld payments it knew
or suspected that the plaintiff was owed for work he
had performed. Rather, the court finds that the plaintiff
either did not perform the hourly work claimed in the
spreadsheets or that substantially all of the work he
performed was in general or specific support of his own
sales work, for which he received compensation not
through an hourly wage but through commissions
which were properly paid and reported.’’ Because ‘‘the
plaintiff . . . failed to prove his entitlement to any
additional compensation by a preponderance of the
evidence,’’ the court rendered a judgment in favor of
the defendant. This appeal followed.
At the outset, we observe that the plaintiff’s issues
on appeal rest on two faulty premises: the trial court
(1) found that he was an independent contractor and, as
a result, (2) failed to apply, or misapplied, the Anderson
burden-shifting scheme. As we previously stated,
although the trial court noted that ‘‘the plaintiff was
always considered an independent contractor,’’9 it
assumed arguendo that the Anderson burden-shifting
scheme applied to the plaintiff’s claim and rejected his
claim because he failed to meet his burden of proof.
Accordingly, we also assume for the purposes of our
analysis that the plaintiff was an employee and that the
Anderson burden-shifting scheme applies to his case.10
Because we conclude that the trial court properly
applied the Anderson burden-shifting scheme and did
not err in its conclusion that the plaintiff failed to prove
his entitlement to additional compensation from the
defendant, we reject the plaintiff’s claims on appeal.
We first set forth the standard of review and legal
principles that guide our analysis. ‘‘[T]he scope of our
appellate review depends [on] the proper characteriza-
tion of the rulings made by the trial court. To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Ravetto v.
Triton Thalassic Technologies, Inc., 285 Conn. 716, 735,
941 A.2d 309 (2008).
Section 16 (b) of the Fair Labor Standards Act (act),
29 U.S.C. § 216 (b), and General Statutes § 31-72 create
a civil cause of action for an employee to collect unpaid
wages. In addition, § 11 (c) of the act, 29 U.S.C. § 211
(c), and General Statutes § 31-66 require employers to
maintain records of all of their employees’ hours and
wages. In Anderson v. Mt. Clemens Pottery Co., supra,
328 U.S. 680, the United States Supreme Court
addressed the appropriate burden of proof in an action
brought pursuant to §16 (b) when an ‘‘employee has
proved that he has performed work and has not been
paid in accordance with the [act],’’ but his employer
has failed to maintain ‘‘proper and accurate records’’
of his wages and hours and, therefore, the amount of
wages owed is uncertain. Id., 686–688. The court in
Anderson concluded that it would be contrary to the
remedial nature of the act and public policy to make the
burden of proof an impossible hurdle for the employee,
and, therefore, it enunciated a burden-shifting scheme,
which our Supreme Court adopted in Schoonmaker v.
Lawrence Brunoli, Inc., supra, 265 Conn. 210. See
Anderson v. Mt. Clemens Pottery Co., supra, 686-88.
Under the Anderson burden-shifting scheme, when
an employer has maintained proper and accurate
records of an employee’s wages and hours, the
employee satisfies his burden of production by
requesting and producing those records. Anderson v.
Mt. Clemens Pottery Co., supra, 328 U.S. 687. ‘‘But
where the employer’s records are inaccurate or inade-
quate,’’ the employee satisfies his burden of production
‘‘if he proves that he has in fact performed work for
which he was improperly compensated and if he pro-
duces sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable
inference.’’ Id. ‘‘The burden then shifts to the employer
to come forward with evidence of the precise amount
of work performed or with evidence to [negate] the
reasonableness of the inference to be drawn from the
employee’s evidence. If the employer fails to produce
such evidence, the court may then award damages to
the employee, even though the result [is] only approxi-
mate.’’ Id., 687–88.
Significantly, ‘‘Anderson merely imposes a shift in
the burden of production, and not the burden of persua-
sion;11 the ultimate burden of persuading the trier of
fact remains with the employee.’’ (Footnote in original.)
Schoonmaker v. Lawrence Brunoli, Inc., supra, 265
Conn. 241. The purpose of the Anderson burden-shifting
scheme is simply to prevent an employer from com-
plaining that ‘‘the damages lack the exactness and preci-
sion of measurement that would be possible had [it]
kept records in accordance with the requirements of
§ 11 (c).’’ Anderson v. Mt. Clemens Pottery Co., supra,
328 U.S. 688.
In the present case, the plaintiff failed to persuade
the court that he in fact performed work for the defen-
dant for which he was improperly compensated.
Although evidence was produced by the plaintiff that
he performed substantial administrative work for the
defendant for which he should have been compensated
through an hourly wage, the court did not credit that
evidence. ‘‘It is well established that [i]t is within the
province of the trial court, when sitting as the fact
finder, to weigh the evidence presented and determine
the credibility and effect to be given the evidence. . . .’’
(Internal quotation marks omitted.) Ravetto v. Triton
Thalassic Technologies, Inc., supra, 285 Conn. 728. We
cannot conclude that the court’s credibility determina-
tions or its finding that the plaintiff did not perform
work for which he was improperly compensated were
clearly erroneous.12
The plaintiff, in addition to challenging the court’s
credibility findings, argues that the court’s holding is
in contravention of state and federal employment law.
In particular, the plaintiff argues that the court improp-
erly concluded that ‘‘[the] plaintiff’s recorded work
hours are not compensable because . . . [the] defen-
dant had not ‘directed’ [the] plaintiff to perform that
work.’’ We agree that the standard under state and fed-
eral law is that ‘‘[i]f the employer knows or has reason
to believe that the work is being performed, he must
count the time as hours worked.’’ 29 C.F.R. § 785.12;
see also 29 C.F.R. §§ 785.11 and 785.13; General Statutes
§ 31-71a (2) and (3); Regs., Conn. State Agencies § 31-
60-11 (a). The plaintiff misapprehends, however, the
court’s ruling. The court did not conclude that the plain-
tiff was not entitled to compensation because he was
not directed to perform the tasks listed in his spread-
sheets. Instead, the driving force of the court’s holding
was its finding that the plaintiff’s spreadsheets and testi-
mony were not credible. It was because of this credibil-
ity determination that the court found that the plaintiff
did not perform much of the work claimed in his spread-
sheets and that, to the extent he actually performed
certain tasks, he was properly compensated for them
through his sales commissions, as they were sales
related tasks. It was because of these factual findings
that the court was not persuaded by a preponderance
of the evidence that the plaintiff in fact performed work
for the defendant for which he was improperly compen-
sated. As a result, we cannot conclude that the court’s
ruling was in contravention of state and federal employ-
ment law.
The judgment is affirmed.
1
Several additional parties were named as defendants in this action, but
they have not participated in this appeal. We therefore refer to Tiger Claw,
Inc., as the defendant in this opinion, and, where necessary, to the other
defendants by name.
2
Although the plaintiff claimed that he was hired for telephone sales only,
and that all other sales functions were administrative in nature, the court
rejected that characterization, concluding that ‘‘[t]he better evidence is that
telephone sales calls were but one part of the job description, and that all
parties understood this at the time.’’
3
The plaintiff testified that, from time to time, he submitted other such
time records to the defendant. Hartmann recalled the plaintiff submitting
time records ‘‘a couple times’’ but could not say definitively whether the
plaintiff submitted any additional time records. The court found that no
such interim records were submitted.
4
We note that Anderson was superseded by statute on other grounds.
See 29 U.S.C. § 254 (a).
5
For example, the plaintiff listed ‘‘SSP training’’ and ‘‘phone pad’’ as
administrative tasks in his spreadsheet, and Hartmann testified that he did
not know what either of those tasks were.
6
For example, the plaintiff listed ‘‘R&D’’ as an administrative task in
his spreadsheet, and Hartmann stated that, although he understood what
research and development is, the defendant was not involved in research
and development nor was he asked to participate in research and develop-
ment for the company.
7
For example, Hartmann testified that although the plaintiff occasionally
was asked in his capacity as a sales representative to create or to edit
sales promotional materials, the plaintiff would often continue to remake
promotional materials without being asked to or after being asked to stop.
8
The court further assumed arguendo that the defendant’s record keeping
was inadequate, which, as discussed subsequently in this opinion, is a rele-
vant factor when applying the Anderson burden-shifting scheme.
9
We observe that the plaintiff in his appellate brief states that ‘‘the parties
agree that, while he was employed by [the] defendant, [the] plaintiff was
treated as an independent contractor,’’ although he argues that this label
was a misclassification.
10
At oral argument, the defendant agreed that the plaintiff should be
treated as an employee for the purposes of the issues raised in this appeal.
11
‘‘We explored the well established distinction between the ‘burden of
production’ and the ‘burden of persuasion’ in Potter v. Chicago Pneumatic
Tool Co., 241 Conn. 199, 235 n.26, 694 A.2d 1319 (1997). In Potter, we noted
that: ‘The phrase burden of proof is used in two ways. First, to refer to the
burden of persuading the [trier of fact] that a fact exists, and second, to
refer to the burden of producing sufficient evidence to persuade the judge
to allow the case or issue to go to the [trier of fact], viz., that a prima facie
case exists. . . . The burden of persuasion creates a risk of an adverse
decision on the merits by the [trier of fact], whereas the burden of going
forward or producing evidence creates a risk that the judge will withdraw
the case or an issue from the [fact finder].’ ’’ (Emphasis omitted.) Schoon-
maker v. Lawrence Brunoli, Inc., supra, 265 Conn. 241 n.36.
12
Although the plaintiff in his statement of the issues frames his third
claim on appeal as challenging only the court’s finding that he ‘‘has not
proved that [the] defendant failed to pay any wages to which [the] plaintiff
was otherwise entitled,’’ in his brief, the plaintiff also challenges the court’s
finding that he submitted administrative time records only in February, 2003
and March, 2005. Even if we were to find in favor of the plaintiff on this
claim, however, it would not alter our conclusion that the court did not err
in its finding that the plaintiff failed to meet his burden of proof at trial.
Accordingly, we need not address this claim on appeal. Lashgari v. Lashgari,
197 Conn. 189, 196, 496 A.2d 491 (1985) (‘‘we need not address other issues
raised on appeal if the trial court has correctly decided an issue that is
sufficient to sustain the judgment’’ [emphasis omitted]); accord Ottiano v.
Shetucket Plumbing Supply Co., 61 Conn. App. 648, 652, 767 A.2d 128 (2001).