Roach v. Transwaste, Inc.

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WILLIAM L. ROACH v. TRANSWASTE, INC.
(AC 43861)
Bright, C. J., and Suarez and Vertefeuille, Js.

Syllabus

The plaintiff sought damages from the defendant for the alleged wrongful
termination of his employment in violation of statute (§ 31-51q). The
plaintiff, who was employed as a truck driver by the defendant, alleged
that his employment was terminated after raising safety complaints to
the defendant. After a jury trial, the court rendered judgment for the
plaintiff in accordance with the jury’s verdict. The plaintiff thereafter
filed a motion for attorney’s fees, seeking an amount calculated pursuant
to the lodestar method, in which the number of hours expended by
counsel on the litigation and counsel’s hourly rate are used to determine
reasonable attorney’s fees. The court, however, awarded attorney’s fees
on a one-third contingency basis. The court concluded that the plaintiff’s
fee agreement with his counsel was ambiguous because the agreement
stated both that the law firm’s employment was on a contingency fee
basis and that time would be kept on an hourly basis, and, in the event
a recovery is made and attorney’s fees are awarded, the law firm shall
receive whichever amount was greater. The plaintiff appealed and the
defendant filed a cross appeal, claiming that the court erred by awarding
attorney’s fees to the plaintiff, by failing to set aside the jury’s award
of damages, by rendering judgment in favor of the plaintiff, and by
providing an incorrect charge to the jury. Held:
1. The trial court erred by failing to apply the lodestar method in calculating
the amount of attorney’s fees awarded to the plaintiff: in resolving
the alleged ambiguity in the fee agreement, the court, with no further
explanation, awarded attorney’s fees in the amount of one third of the
damages that the plaintiff received; the fee agreement contemplated
both the one-third contingency and lodestar methods of calculating
attorney’s fees but clearly stated that the law firm shall receive as its
fee whichever was the greater of the two, and, because the court failed
to apply the provision of the fee agreement under which the plaintiff
sought an award of attorney’s fees and failed to consider that such an
award may be greater than one based solely on the jury’s award of
damages, the court’s award was improper and a new hearing was
required.
2. The defendant could not prevail on its claim that the trial court erred in
awarding any attorney’s fees to the plaintiff, which was based on its
claim that the plaintiff failed to satisfy the legal standard for granting
attorney’s fees and did not raise or preserve his claim in his complaint
or at trial: the plaintiff obtained a judgment in his favor and was awarded
damages, § 31-51q provides for reasonable attorney’s fees should a party
prevail in an action brought under that statute, and the plaintiff included
a claim for attorney’s fees in the prayer for relief in his complaint;
moreover, the defendant did not cite any requirement that a claim for
attorney’s fees must be made in the body of a complaint to constitute
sufficient notice.
3. The defendant’s claim that the trial court erred by failing to set aside the
jury’s award of damages because it was not supported by sufficient
evidence was unavailing; notwithstanding the defendant’s claim that the
plaintiff failed to provide evidence of his lost wages, the plaintiff’s
testimony constituted sufficient evidence to support the jury’s verdict.
4. The defendant could not prevail on its claim that the trial court erred by
rendering judgment in favor of the plaintiff because there was no evi-
dence to support the jury’s conclusion that the plaintiff’s employment
had been terminated for filing safety complaints; the plaintiff testified
that he believed his employment was terminated because he could not
say what was on his mind, he made complaints about safety violations
and his employment was terminated shortly thereafter, and he felt that he
was discriminated against because the employment of other individuals,
despite those individuals taking various actions, including stealing and
smashing up trucks, was not terminated.
5. The trial court correctly instructed the jury concerning the applicable
standard of proof; the defendant, in arguing that the court’s use of the
term ‘‘substantially motivating factor’’ in its instructions discussing the
reason for the plaintiff’s discharge rendered the charge vague, confused
the standard for causation with the applicable burden of proof, which
the court clearly set forth in its charge, and this court concluded that
it was not reasonably probable that the jury was misled.
Argued November 18, 2021—officially released February 15, 2022

Procedural History

Action to recover damages for, inter alia, the allegedly
wrongful termination of the plaintiff’s employment, and
for other relief, brought to the Superior Court in the
judicial district of Hartford and tried to the jury before
Noble, J.; verdict and judgment for the plaintiff; there-
after, the court, Noble, J., awarded the plaintiff attor-
ney’s fees, and the plaintiff appealed and the defendant
cross appealed to this court. Reversed in part; further
proceedings.
Zachary T. Gain, with whom, on the brief, was James
V. Sabatini, for the appellant-cross appellee (plaintiff).
Glenn L. Formica, for the appellee-cross appellant
(defendant).
Opinion

VERTEFEUILLE, J. This appeal arises from an
employment retaliation action brought by the plaintiff,
William L. Roach, against the defendant, Transwaste,
Inc. In his two count complaint, the plaintiff alleged
that his employment was wrongfully terminated in vio-
lation of public policy and that this termination violated
General Statutes § 31-51q.1 After a jury trial, the court
rendered judgment in accordance with the jury’s verdict
in favor of the plaintiff. The plaintiff thereafter filed a
motion for attorney’s fees seeking an amount calculated
pursuant to the lodestar method.2 The court, however,
awarded the plaintiff attorney’s fees on a one-third con-
tingency basis. The plaintiff appealed, claiming that the
court erred by failing to apply the lodestar method in
calculating the amount of the award of attorney’s fees.
The defendant filed a cross appeal, claiming that the
court erred by (1) awarding any attorney’s fees to the
plaintiff, (2) failing to set aside the jury’s award of
damages because it was not supported by sufficient
evidence, (3) rendering judgment in favor of the plaintiff
because there was no evidence to support the jury’s
conclusion that the plaintiff’s employment had been
terminated for filing safety complaints, and (4) provid-
ing an incorrect charge to the jury. We agree with the
plaintiff and reverse the judgment of the court with
respect to the calculation of attorney’s fees. We affirm
the judgment in all other respects.
The following facts and procedural history, as set
forth in the court’s memorandum of decision deciding
various postjudgment motions filed by the parties, are
relevant to our resolution of the claims of both parties
on the appeal and the cross appeal. ‘‘The plaintiff pos-
sesses a commercial driver’s license and was employed
as a truck driver by the defendant from 2013 through
2015. The defendant is a trucking company located in
Wallingford . . . that specializes in the transportation
and disposal of special and hazardous waste. The owner
and president of the defendant is John Barry. The plain-
tiff testified that he was terminated by Barry after rais-
ing safety complaints to the defendant.
‘‘In July, 2015, the plaintiff complained of a problem
with the steering link [in his tractor] while driving in
Pennsylvania. Barry denied the plaintiff’s request to buy
a replacement and ordered the plaintiff to drive back
to Wallingford. [The plaintiff testified that] [t]his was
unsafe because the failed steering link, one of two,
controlled the steering of one of the two front tires [of
his tractor]. The next day [the plaintiff] was told not
to show [up] for work . . . . [H]e [later] found out that
his tractor had been driven, unrepaired, by another
driver. The plaintiff was not paid for the day he missed.
In August, 2015, while in Pennsylvania, a trailer [the
plaintiff] was driving suffered a blown tire. Barry denied
the plaintiff’s requests to buy a replacement tire despite
[his] expression of concern that it was unsafe to drive
the loaded trailer without the normal two tire combina-
tion at the end of the axle. The plaintiff was nevertheless
ordered to complete his trip with only one tire rather
than the two tires with which he had been driving.
Another incident occurred in August, 2015, in which
the plaintiff complained over the course of [several]
weeks of a problem with vibration in his tractor . . . .
[The plaintiff] was told by Barry that [his tractor] had
been inspected, there was nothing wrong with it and
[that] he should continue to drive it. Ultimately, the
plaintiff refused to drive the tractor and after continued
complaints was told to take it to [a] dealer, who diag-
nosed [the issue] as [a] failure of the universal joint.
‘‘On November 10, 2015, one tire of a two tire assem-
bly on the plaintiff’s tractor blew. [The plaintiff]
[pleaded] with the office manager to buy a new tire
. . . [but was told] that Barry did not like to buy tires
on the road. Ultimately, [the office manager] told the
plaintiff to buy a used tire, and he did so. Finally, on
November 16, 2015, the plaintiff noticed [the] check
engine light [in his tractor] that appeared approximately
twenty miles after he left the defendant’s location in
the early morning hours [at the] start [of] a trip. [The
plaintiff] returned to the defendant’s garage and left
the tractor there with the engine running so that the
mechanic would be able to diagnose the problem. The
plaintiff locked the truck before he left the defendant’s
yard and returned home. He was fired [later] that day
without being given a reason. Barry testified at trial
that he terminated the plaintiff because it was unsafe
to permit the engine [of his tractor] to idle for . . .
several hours.
‘‘The plaintiff testified that he was out of work for
about six months. [While employed by the defendant]
[h]e was paid by the mile at a rate of [forty-six cents]
per mile and he averaged a little [more] than 2000 miles
per week. He also testified that during the two years
he worked for the defendant he drove [a total of]
approximately 230,000 miles. At the conclusion of the
plaintiff’s case, the defendant moved for a directed ver-
dict. The court denied the motion. The jury [then]
returned a verdict [in favor of the plaintiff] for $24,288.’’
After the jury returned its verdict, the defendant filed
a motion for judgment notwithstanding the verdict, a
motion for remittitur, and a motion to set aside the
verdict. The court denied each of the defendant’s
motions. The plaintiff filed a motion for attorney’s fees,
seeking reasonable fees calculated pursuant to the lode-
star method. See footnote 1 of this opinion. The court
granted the plaintiff’s motion but rejected the use of
the lodestar method, and instead awarded the plaintiff
attorney’s fees in the amount of $8087.90, or one third
of the award of damages in his favor. Additional facts
and procedural history will be set forth as necessary.
I
THE PLAINTIFF’S APPEAL
The plaintiff claims that, because he was a prevailing
party under § 31-51q, he should have been awarded
reasonable attorney’s fees calculated pursuant to the
lodestar method, as required by his fee agreement with
his counsel. Specifically, the plaintiff argues that his
fee agreement with his counsel unambiguously pro-
vided that he was entitled to recover as attorney’s fees
‘‘33 1/3% of the total recovered’’ or attorney’s fees based
on the hourly time records of counsel billed at counsel’s
hourly rate, ‘‘whichever is the greater of the two.’’
(Emphasis added.) He argues that the court’s failure to
award attorney’s fees pursuant to the fee agreement
was an abuse of discretion. In response, the defendant
argues that the plaintiff is not entitled to attorney’s fees
at all, and that, in the alternative, the court properly
awarded attorney’s fees to the plaintiff in accordance
with terms of the fee agreement. We agree with the
plaintiff.
We begin by setting forth the applicable standard of
review. ‘‘It is well established that we review the trial
court’s decision to award attorney’s fees for abuse of
discretion. . . . This standard applies to the amount
of fees awarded . . . and also to the trial court’s deter-
mination of the factual predicate justifying the award.
. . . Under the abuse of discretion standard of review,
[w]e will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Noel v. Rib-
bits, LLC, 132 Conn. App. 531, 534–35, 35 A.3d 1078
(2011).
In the present case, in addressing the plaintiff’s
motion for attorney’s fees, the court concluded that
the plaintiff’s fee agreement was ambiguous because it
states both that the ‘‘employment is on a contingency
fee basis’’ and that ‘‘[t]ime shall nevertheless be kept
on an hourly basis [and] in the event that a recovery
is made and attorney[’s] fees are awarded by statute
or a court . . . then the law firm shall receive the
amount as its legal fee, whichever is the greater of
the two.’’ (Emphasis added; internal quotation marks
omitted.) In resolving this alleged ambiguity, the court,
with no further explanation, opted to award the plaintiff
attorney’s fees in the amount of $8087.90, or one third
of the damages that he received. In resolving this claim,
we conclude that the relevant facts of Noel are nearly
identical to those in the present case. Accordingly, our
decision in that case controls our resolution of the
plaintiff’s claim in the present case.
In Noel, an employment discrimination case, the
plaintiffs’ fee agreements with their attorneys stated:
‘‘In the event of a successful resolution of the case, I
agree that my attorneys shall be compensated at the
rate of one-third of the entire settlement or judgment
I receive in connection with my claims or an award
of reasonable attorney’s fees, whichever is greater.’’
(Emphasis in original; internal quotation marks omit-
ted.) Noel v. Ribbits, LLC, supra, 132 Conn. App. 534.
After a jury trial, the court rendered judgment in part
in favor of the plaintiffs, awarding one plaintiff $1600
in economic damages and the other plaintiff no dam-
ages. Id., 533. The plaintiffs then filed a motion seeking
an award of reasonable attorney’s fees. Id. The court
denied the motion as to the plaintiff who did not recover
any monetary damages and awarded the plaintiff that
did receive $1600 in damages attorney’s fees in the
amount of $533.33, or one third of the award in her
favor. Id., 533–34. In its memorandum of decision, the
court stated that it based its award on the one-third
contingency provision of the fee agreements. Id., 533.
The plaintiffs then appealed, claiming that ‘‘the court
improperly based its award of attorney’s fees solely on
the one-third contingency provision of their fee agree-
ments to the exclusion of other pertinent language in
their fee agreements.’’ Id., 534. This court reversed the
judgment of the trial court, holding that its award of
attorney’s fees was improper because, ‘‘[i]n fashioning
[the] award, [it] did not consider the provision in the
agreements for a reasonable award that might be
greater than one based solely on the jury’s award of
damages.’’ Id., 535.
In the present case, as previously set forth in this
opinion, the fee agreement between the plaintiff and his
attorney contemplated both the one-third contingency
and lodestar methods of calculating attorney’s fees but
clearly stated that ‘‘the law firm shall receive . . . as
its legal fee . . . whichever is the greater of the two.’’
As in Noel, the court in the present case, ‘‘in considering
the plaintiffs’ claims for attorney’s fees . . . limited its
consideration to [only one] provision of the fee [agree-
ment].’’ Noel v. Ribbits, LLC, supra, 132 Conn. App.
535. Because the court failed to apply the provision of
the fee agreement under which the plaintiff sought an
award of attorney’s fees and failed to consider that such
an award may be greater than one based solely on the
jury’s award of damages; see, e.g., id.; we conclude that
the court’s award was improper. Furthermore, because
the court did not determine the reasonableness of the
plaintiff’s claimed attorney’s fees based on the hours
spent by the attorneys at their hourly rates, a new hear-
ing on the plaintiff’s motion for an award of attorney’s
fees is required, employing the lodestar method.
II
THE DEFENDANT’S CROSS APPEAL
In its cross appeal, the defendant claims that the
court erred by (1) awarding any attorney’s fees to the
plaintiff, (2) failing to set aside the jury’s award of
damages because it was not supported by sufficient
evidence, (3) rendering judgment in favor of the plaintiff
because there was no evidence to support the jury’s
conclusion that the plaintiff’s employment had been
terminated for filing safety complaints, and (4) giving an
incorrect charge to the jury concerning the applicable
standard of proof. We address each of the defendant’s
claims in turn.
A
The defendant’s first claim is that the court erred by
awarding any attorney’s fees to the plaintiff. Specifi-
cally, the defendant argues that the plaintiff (1) failed
to satisfy the legal standard for granting attorney’s fees,
and (2) ‘‘did not raise or preserve his claim for attorney’s
fees in [his] . . . complaint and did not preserve his
claim at trial.’’ In response, the plaintiff argues that (1)
he satisfied the legal standard for awarding attorney’s
fees because he had a valid ‘‘hybrid fee’’ agreement
with his attorney, and (2) his complaint ‘‘clearly made
a claim for attorney’s fees in the prayer for relief.’’ We
agree with the plaintiff.
We first set forth the applicable legal standard. ‘‘Any
determination regarding the scope of a court’s subject
matter jurisdiction or its authority to act presents a
question of law over which our review is plenary. . . .
Generally, it is clear that [t]he court is not permitted
to decide issues outside of those raised in the pleadings.
. . . Pleadings have an essential purpose in the judicial
process. . . . For instance, [t]he purpose of the com-
plaint is to put the defendants on notice of the claims
made, to limit the issues to be decided, and to prevent
surprise. . . . [T]he concept of notice concerns
notions of fundamental fairness, affording parties the
opportunity to be apprised when their interests are
implicated in a given matter. . . . Whether a complaint
gives sufficient notice is determined in each case with
reference to the character of the wrong complained of
and the underlying purpose of the rule which is to
prevent surprise upon the defendant. . . . [A]ny judg-
ment should conform to the pleadings, the issues and
the prayers for relief. . . . [G]enerally . . . the allega-
tions of the complaint provide the measure of recovery,
and . . . the judgment cannot exceed the claims
pleaded, including the prayer for relief.’’ (Citations
omitted; internal quotation marks omitted.) Lynn v.
Bosco, 182 Conn. App. 200, 213–15, 189 A.3d 601 (2018).
Accordingly, the question before us is whether the court
properly found that the plaintiff, through his complaint,
put the defendant on sufficient notice of his claim for
attorney’s fees.
The plaintiff instituted the present action against the
defendant pursuant to § 31-51q, which provides in rele-
vant part: ‘‘Any employer . . . 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 employer, shall be liable to such
employee for damages caused by such discipline or
discharge, including punitive damages, and for reason-
able attorney’s fees as part of the costs of any such
action for damages. . . .’’ (Emphasis added.) Addition-
ally, in his prayer for relief in his complaint, the plaintiff
clearly included a claim for attorney’s fees. The defen-
dant fails to cite any requirement that a claim for attor-
ney’s fees must be made in the body of a complaint to
constitute sufficient notice. This court has explicitly
held that, for purposes of determining sufficiency of
notice, the prayer for relief should be considered. See
Lynn v. Bosco, supra, 182 Conn. App. 215. Accordingly,
for a party to be awarded attorney’s fees pursuant to
§ 31-51q, that party must succeed on his or her retalia-
tion claim against the employer. In the present case,
the court rendered judgment in favor of the plaintiff
on his claim after the jury returned its verdict in the
plaintiff’s favor and awarded him damages. Because the
plaintiff succeeded on his claim, his is entitled to an
award of reasonable attorney’s fees pursuant to § 31-
51q, and the defendant’s argument fails.
Moreover, the defendant’s argument that the plaintiff
did not properly raise or preserve his claim for attor-
ney’s fees is easily disposed of because, as the plaintiff
argues, he clearly included a claim for attorney’s fees
in his prayer for relief in his complaint. Accordingly,
we conclude that the plaintiff provided the defendant
with sufficient notice of his claim for attorney’s fees,
and reject the defendant’s claim that the court erred
by awarding attorney’s fees to the plaintiff.
B
The defendant’s second claim is that the court erred
by failing to set aside the jury’s award of damages
because the verdict was not supported by sufficient
evidence. Specifically, the defendant argues that the
plaintiff ‘‘failed to provide any evidence of his claimed
lost wages.’’ In response, the plaintiff argues that his
testimony at trial constitutes sufficient evidence to sup-
port the jury’s verdict. We agree with the plaintiff.
After the jury returned its verdict, the defendant filed
a motion for remittitur seeking to have the court ‘‘remit
the award of damages [to the plaintiff] to zero dollars.’’
According to the defendant, remittitur was appropriate
because ‘‘[t]he [jury’s] verdict [was] excessive [and]
because . . . [the plaintiff] failed to provide either tan-
gible evidence or even to testify with any specificity
[as] to the amount of damages.’’ The court denied the
defendant’s motion, holding that ‘‘the plaintiff provided
sufficient evidence that the jury was able to, and did,
[use to] arrive at a reasonable estimate of his lost
wages.’’ Specifically, the court pointed to the plaintiff’s
testimony that he was paid forty-six cents per mile,
drove approximately 230,000 miles over a two year
period, and was out of work for ‘‘[a]bout six months.’’
The court further explained: ‘‘The jury found, as indi-
cated on its responses to the jury interrogatories, that
the plaintiff was owed for 2200 miles per week at a rate
of forty-six cents per mile over a period of twenty-four
weeks for a total of $24,288. The jury reasonably and
logically reached these conclusions based on a division
of 230,000 miles over two years by the number of weeks
in two years, 104, to arrive at an estimate of weekly
mileage of approximately 2211 miles rounded to the
awarded figure of 2200. The latter figure, when
multiplied by [forty-six cents] per mile yields a weekly
income of $1012. In turn, this number may be multiplied
by twenty-four weeks—an estimate of four weeks per
month for six months—to arrive at the jury’s award of
damages in the amount of $24,288. While the calcula-
tions so inferred from the testimony and jury interroga-
tories are not reflective of absolute precision, they nev-
ertheless arrive at a reasonable estimate derived from
the trial evidence.’’ (Emphasis added.)
We now turn to the applicable standard of review for
sufficiency of the evidence. ‘‘With respect to appellate
review . . . [our Supreme Court has] explained that
our review of the trial court’s decision [to grant or
deny remittitur] requires careful balancing. . . . [T]he
decision whether to reduce a jury verdict because it is
excessive as a matter of law . . . rests solely within
the discretion of the trial court. . . . [T]he same gen-
eral principles apply to a trial court’s decision to order
a remittitur. [Consequently], the proper standard of
review . . . is that of an abuse of discretion. . . .
[T]he ruling of the trial court . . . is entitled to great
weight and every reasonable presumption should be
given in favor of its correctness. . . . Even under this
deferential standard of review, however, we have not
shied away from ordering remittitur when the record
failed to support the jury’s award of damages.’’ (Cita-
tions omitted; internal quotation marks omitted.) Ash-
more v. Hartford Hospital, 331 Conn. 777, 783–84, 208
A.3d 256 (2019).
Considering the record, and our deferential standard
of review, we conclude that the court did not abuse its
discretion in declining to set aside the jury’s award of
damages. As we previously set forth in this opinion,
there is clear evidence in the record from which the
jury could have arrived at its verdict and the amount
of the award of damages to the plaintiff. Moreover,
the court, ‘‘having observed the trial and evaluated the
testimony firsthand, is better positioned . . . to assess
. . . the aptness of the award’’; id., 783; and the court
concluded ‘‘that the jury could reasonably and legally
have reached the verdict that it did.’’ Accordingly, we
reject the defendant’s claim.
C
The defendant’s third claim is that the court erred in
rendering judgment in favor of the plaintiff because
there was insufficient evidence to support the jury’s
conclusion that the plaintiff’s employment had been
terminated for filing safety complaints. In response, the
plaintiff argues that the jury’s conclusion was reason-
able in light of the plaintiff’s testimony ‘‘that he felt that
his termination was discriminatory . . . [and] that he
made complaints about safety violations and was termi-
nated shortly thereafter.’’ (Citation omitted.) We agree
with the plaintiff.
We begin with our standard of review. ‘‘A party chal-
lenging the validity of the jury’s verdict on grounds that
there was insufficient evidence to support such a result
carries a difficult burden. In reviewing the soundness
of a jury’s verdict, we construe the evidence in the light
most favorable to sustaining the verdict. . . . We do
not ask whether we would have reached the same
result. [R]ather, we must determine . . . whether the
totality of the evidence, including reasonable inferences
therefrom, supports the jury’s verdict . . . . If the jury
could reasonably have reached its conclusion, the ver-
dict must stand.’’ (Internal quotation marks omitted.)
Wager v. Moore, 193 Conn. App. 608, 616, 220 A.3d
48 (2019).
In the present case, the defendant claims that the
plaintiff, through his testimony, was ‘‘unable to prove
or establish that [the defendant] violated a public policy,
much less terminated him because he complained about
a violation.’’ The record, however, belies this claim.
The plaintiff clearly testified that he believed that his
employment was terminated because he could not
‘‘really say [what was] on [his] mind,’’ and that ‘‘[he felt
it was] discriminatory . . . [because] certain people at
that job [could] smash up trucks, have tow aways out
of state, steal, and [did not] get terminated.’’ Although
this testimony, as the trial court stated, ‘‘is insufficient
to establish directly the grounds for [the plaintiff’s]
termination,’’ the jury reasonably could have inferred
from it that the plaintiff’s employment was terminated
for filing safety complaints. For this reason, we reject
the defendant’s claim.
D
The defendant’s final claim is that the court erred by
giving an incorrect charge to the jury. Specifically, the
defendant argues that ‘‘[t]he charge was both vague and
confusing as to the standard of proof in the case.’’ In
response, the plaintiff argues that the court properly
instructed the jury because it precisely followed the
relevant statutory language when it charged the jury.
We agree with the plaintiff.
‘‘[W]e [now] set forth the standard of review applica-
ble to claims of instructional error. A jury instruction
must be considered in its entirety, read as a whole, and
judged by its total effect rather than by its individual
component parts. . . . [T]he test of a court’s charge is
not whether it is as accurate upon legal principles as
the opinions of a court of last resort but whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper. . . . Therefore, [o]ur stan-
dard of review on this claim is whether it is reasonably
probable that the jury was misled.’’ (Internal quotation
marks omitted.) Allen v. Shoppes at Buckland Hills,
LLC, 206 Conn. App. 284, 288–89, 259 A.3d 1227 (2021).
In the present case, the court charged the jury as
follows: ‘‘In this case, the plaintiff claims that the defen-
dant terminated him in retaliation for reporting issues
related to commercial motor vehicle safety, including
unsafe conditions relating to overweight loads, mechan-
ical problems including vibration in his [tractor] caused
by a missing or damaged universal joint, and his insis-
tence on not driving with a missing tire. The court
instructs you that . . . commercial motor vehicle
safety involves important public policy issues related
to the safety of the public and the plaintiff on public
highways. In order to prevail on his claim for wrongful
discharge, the plaintiff must then prove by a fair prepon-
derance of the evidence that the defendant terminated
him in retaliation for his complaints about the safety
issues.
‘‘Wrongful discharge in violation of [§] 31-51q: The
statute creates a cause of action for damages to protect
[an] employee from retaliatory action—in this case dis-
charge—illegally grounded in the employee’s exercise
of enumerated constitutionally protected rights. In this
case the right at issue is the type of speech. Specifically,
speech that implicates serious wrongdoing or threats
to health and safety on a matter of public concern.
Additionally, the speech must be one in which the
employee’s interest in the speech outweighs the
employer’s interest in the efficient performance of ser-
vices. Therefore, in order for the plaintiff to prove a
violation of the statute, he must prove that he engaged
in speech which, one, addresses serious wrongdoing or
threats to health and safety on a matter of public con-
cern, and, two, the employee’s interest in the speech
outweighs the employer’s interest in promoting the effi-
cient performance of its work. He must also prove,
three, that there was a causal relationship between the
protected speech and his discharge, and further that,
four, the speech did not substantially or materially inter-
fere with his bond fide job performance or with his
working relationship with his employer. . . .
‘‘In this case, the court has found, as a matter of law,
that the complaints, that is [the plaintiff’s] speech as
. . . previously described, [was] on a matter of public
concern. The plaintiff must still prove, however, that his
complaints addressed serious wrongdoings or threats
to health and safety on this matter of public concern.
The parties agree that [the plaintiff] was discharged
from his employment.
‘‘You must . . . determine whether there was a
causal relationship between the protected speech and
his discharge. Cause in this case means that his dis-
charge was substantially motivated by his complaints.
If you do find that a substantially motivating factor in
the plaintiff’s discharge was . . . his complaints, you
will continue to your deliberations on this claim. If you
do not find that his protected speech was a substantially
motivating factor in his discharge, you must find in
favor of the defendant.
‘‘In order for the plaintiff to recover, you must also
find that he has proven that his speech, here the com-
plaints, did not substantially or materially interfere with
his bona fide job performance or with his working rela-
tionship with his employer.
‘‘If you find that the plaintiff has proven all of these
factors, and only if you find that the plaintiff has proven
all of these factors, you shall find in favor of the plaintiff
on this claim.’’
After the court finished charging the jury, the defen-
dant’s counsel objected to the court’s use of the term
substantially motivating factor. According to the defen-
dant’s counsel, the court ‘‘should have either not used
the term [substantially motivating factor] or better
explained the difference between the substantially
motivating factor and the burden of proof.’’ The defen-
dant argues that the court’s use of the term ‘‘substan-
tially motivating factor’’ rendered the charge ‘‘both
vague and confusing as to the standard of proof in the
case, [i]n effect . . . creat[ing] two standards for the
[j]ury to decide.’’ (Emphasis omitted; internal quotation
marks omitted.) In making this argument, however, the
defendant has confused the standard for causation with
the applicable burden of proof, which the court clearly
set forth earlier in its charge: ‘‘[I]n this case the plaintiff
has the burden of proof with respect to his claims . . . .
In order to meet his burden of proof, the plaintiff must
satisfy you that his claims on an issue are more probable
than not. . . . In civil cases such as this one . . . [t]he
party who asserts a claim has the burden of proving it
by a fair preponderance of the evidence. That is, the
better or weightier evidence must establish that, more
probably than not, the assertion is true.’’ Having
reviewed the charge in its entirety, we conclude that it
is not reasonably probable that the jury was misled
because the charge was clear as to the applicable bur-
den of proof and it is highly unlikely that the jury was
confused as to the applicable standard of proof. Accord-
ingly, we reject the defendant’s claim.
The judgment is reversed only with respect to the
award of attorney’s fees and the case is remanded for
a new hearing on the plaintiff’s motion for attorney’s
fees; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
General Statutes § 31-51q provides in relevant part: ‘‘Any employer . . .
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. . . .’’
2
The lodestar method entails ‘‘examining the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate’’ to calcu-
late an amount of reasonable attorney’s fees. (Internal quotation marks
omitted.) A Better Way Wholesale Autos, Inc. v. Saint Paul, 192 Conn. App.
245, 262, 217 A.3d 996 (2019), aff’d, 338 Conn. 651, 258 A.3d 1244 (2021).