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Commissioner of Labor v. Dental Care of Connecticut, Inc.

Superior Court of Connecticut, Judicial District of Hartford, Hartford

September 28, 2015

Commissioner of Labor
v.
Dental Care of Connecticut, Inc. et al

MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

A. Susan Peck, J.

The plaintiff, the Commissioner of Labor (Commissioner), brings the present action against the defendants Dental Care of Connecticut, Inc. (" Dental Care"), John F. Gallagher, Gary F. Anusavice, and Shabir Ahmed, seeking payment of earned wages and earned overtime wages allegedly due to former employees of Dental Care pursuant to General Statutes § § 31-72, 31-71b, 31-71c, and 31-76c. Pending before the court is the Commissioner's motion for summary judgment as to Ahmed, the only defendant to file an answer to the complaint.[1] Defaults have previously entered against Dental Care, Gallagher, and Anusavice. In support of her motion, the Commissioner has submitted, inter alia, two affidavits from Jennifer Hartnett, a Department of Labor wage enforcement agent, as well as affidavits from former Dental Care employees Pauline Nieves, Gissel Mercedes, and Luis Gonzalez. Ahmed has filed an objection to the motion along with three counteraffidavits.

In seeking summary judgment, the movant bears the burden of showing the absence of any genuine issue as to all material facts. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). If the moving party's evidence fails to meet this standard, the nonmoving party is under no obligation to produce evidence demonstrating the existence of a material fact. Id. " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

The Commissioner argues that Ahmed was an employer under General Statutes § 31-71a(1), and is therefore liable for unpaid wages under § 31-72. Section 31-71a(1) defines an employer as including " any individual . . . employing any person . . ." Our Supreme Court has held that " an individual personally can be liable as an employer pursuant to § 31-72, notwithstanding the fact that a corporation is also an employer of the claimant, if the individual is the ultimate responsible authority to set the hours of employment and to pay wages and is the specific cause of the wage violation." Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463-64, 704 A.2d 222 (1997).

The Commissioner cites the following averments of Hartnett in support of her contention that Ahmed was an employer pursuant to § 31-71a(1) and Butler : Ahmed opened a Paychex payroll account for Dental Care in July 2011, and he was one of only two people with access to the account. Ahmed was listed as the account owner of a Wells Fargo payroll account set up for Dental Care, and he authorized Paychex to debit the account. Ahmed directed Paychex to void paychecks to one or more employees on June 5, 2012. He caused Paychex to issue more than $40, 000 to himself between May 25, 2012 and June 6, 2012. Ahmed was the only authorized signer and agent connected to a TD Bank account for Dental Care, and he issued/signed numerous checks from this account. Ahmed deposited private insurance checks and a refund check into his personal checking account. In addition, Nieves, Mercedes, and Gonzalez aver that they were interviewed and hired by Ahmed and that he set/controlled the pay rates, pay plans, and wage payments for Dental Care staff. Mercedes' affidavit further states that Ahmed authorized her to access the Paychex account and ordered her to direct Paychex to void payroll checks on numerous occasions.

In opposition to the motion for summary judgment, in his affidavits, Ahmed states that he was the manager, but not an owner, of Dental Care from July 2011 to June 2012. The owners of Dental Care had the responsibility for payment of employee wages. Prior to May 24, 2012, Ahmed was not authorized to issue payroll without the approval of Anusavice. Ahmed had no authority to hire or terminate an employee without Anusavice's approval. Ahmed submitted payroll information from Dental Care office managers to Anusavice for approval. All decisions regarding payroll, scheduling and hours, and hiring and firing were made by Anusavice and Gallagher. Attached to one of Ahmed's affidavits is an exhibit containing numerous e-mail messages which Ahmed claims are examples of his communications with Anusavice and Gallagher regarding payroll and employee scheduling.

The pleadings, arguments of the parties, and the evidence submitted in support thereof, demonstrate that the Commissioner has failed to meet her burden of establishing that no genuine issue of material fact exists regarding the central issue of whether Ahmed was an employer for the purposes of § § 31-71a(1) and 31-72. See Butler v. Hartford Technical Institute, Inc., supra, 243 Conn. 463-64. In order for summary judgment to be appropriate in this case, the Commissioner was required to prove that Ahmed was " the ultimate responsible authority to set the hours of employment and to pay wages" as well as " the specific cause of the wage violation." (Emphasis added.) Id. The Commissioner's evidence certainly pertains to Ahmed's involvement in Dental Care's operations, both with respect to his access to the company's payroll accounts and his management of its employees and is therefore relevant to the Butler standard defining an employer under § § 31-71a(1) and 31-72. However, the evidence submitted by the Commissioner does not demonstrate " that it is quite clear what the truth is; " (internal quotation marks omitted), Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 319; with respect to whether Ahmed was the ultimate responsible authority within Dental Care for establishing employee hours and paying their wages; nor does it clearly demonstrate that Ahmed was the specific cause of the alleged wage violations.

Further, even assuming that the Commissioner's evidence met the exacting standard for summary judgment, Ahmed's evidence is sufficient to establish a disputed issue of material fact on the question of whether he is an employer under the wage and hour statutes. Ahmed's affidavits state essentially that any authority he possessed to hire or terminate employees, set schedules, and pay wages, was derived from Anusavice and was exercised only with the latter's permission. If Ahmed's averments are true, they are in direct conflict with the Commissioner's evidence tending to portray Ahmed as individually and independently responsible as an employer. Accordingly, in light of all the evidence submitted, whether Ahmed was an employer under the applicable statutes is a disputed issue of material fact which precludes summary judgment.

CONCLUSION

For all the foregoing reasons, the Commissioner's motion for summary ...


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