By not hiring a lawyer, Rocky Hill optometrist Robert Aube might have thought he was saving a bit of time and money when, in March 2007, he wrote a letter to his optical lab manager, Norma Cruz, about her employment. What was supposed to be a simplification has become a story about the limits of labor-saving devices in employment contracts.

To date, unsnarling this do-it-yourself agreement has cost the doctor $80,000 in legal fees, as he tries to make the point that he never had a binding contract with Cruz and shouldn’t have to pay her the $60,000 she was awarded in a wrongful termination lawsuit. The state Supreme Court recently gave Aube a partial victory, ordering a new trial with additional evidence after concluding the letter agreement alone was too ambiguous to be enforceable.

That assessment is not held by Associate Justice Andrew McDonald, who in dissent accused his colleagues of engaging in “linguistic origami” in finding ambiguity in a document he judged to be perfectly clear.

The agreement begins: “Norma Cruz Employment Contract: This will cover the 36 month period starting April 1, 2007 and ending March 31, 2010.” It goes on to specify Cruz’s responsibility for “all the eyeglasses produced in this office” and details work time to the hour, a $59,800 salary, and a one percent bonus if monthly receipts exceed $65,000.

The letter also covers Cruz’s retirement account, health and dental benefits, and adds: “Any increase in health insurance premium will be absorbed by Visual Perceptions LLC for the duration of the contract.”

Both Aube and Cruz signed the agreement. But after Cruz took more than two weeks of time off in October 2008, Aube fired her. He contended it was for cause, and that she was an at-will employee who could be terminated without cause.

In a wrongful discharge trial before Hartford Superior Court Judge A. Susan Peck, attorney Richard Carella of Updike, Kelly & Spellacy represented the employer, and Andrew Houlding, of Rome McGuigan, represented Cruz.

For Peck, it was simple contract construction. She found all the necessary elements for a contract for a set period of time. That’s important. Connecticut’s “default mode” for employment agreements is the employment-at-will doctrine. As three courts spelled out in this case, an employer or employee can end an “at-will” agreement any time, for any or no reason. The few exceptions include a firing in violation of some important public policy (like racial discrimination, or whistleblowing) or if the contract is for a definite time period.

The letter said it “covered” a 36-month period. Aube’s argument, advanced by Updike lawyer David Makarawicz on two levels of appeal, was that “covering” the 36 months did not create a guaranteed period of employment. It simply defined the duration of her at-will employment.

Four Corners

Historically, judges have saved time and effort by refusing to look outside the “four corners” of a document, if it is clear on its face. This rule has forced parties to say what they mean. For good or bad, it lets the court ignore “the rest of the story,” known as extrinsic or parol evidence.

Peck read the agreement as being clear on its face. It appeared to be a contract for 36 months, and thus an exception to at-will employment. This exception appears in the 1988 Connecticut Supreme Court case of Slifkin v. Condec. In that case, an in-house lawyer had an agreement with his employer that wasn’t even defined in months or years, but could be ascertained mathematically.

Irving Slifkin wrote: “In view of my age being in excess of 55 years, [I hope] that I would be afforded an opportunity to continue in the employ of Condec Corporation for a sufficient number of years to qualify for 100 percent vesting in each of the employer benefit plans.”

This implied a sufficiently definite time period to remove Slifkin’s employment from at-will status, the court held.

When Peck found that Cruz had an employment contract, she also ruled it was violated by her firing, and that Cruz was owed $60,000 in lost wages and benefits.

Ambiguous Language

Another labor saver for judges is construing ambiguities against the party who created them. Even when Aube testified at trial that he didn’t mean the contract to be for 36 months of employment, Peck ruled that his written words bound him.

When Aube appealed, the Appellate Court affirmed Peck.

At the Supreme Court things changed. Chief Justice Chase Rogers wrote for the majority, which reversed the two prior decisions. Rogers’ first question was whether the contract was plain and unambiguous.

The language, “this will cover” could go either way, she wrote, referring to either “a definite term of employment or an intent to set the terms and conditions of an at-will employment contract.”

The high court found the agreement ambiguous, and sent the case back to Peck to consider more evidence.

Aube, in an interview, said he never intended to promise Cruz three years of guaranteed employment. “And I wish I hadn’t used the word `contract.’”

But Houlding, Cruz’s trial lawyer, commented that the net effect was that the employer was able to secure Cruz for the three-year term with an apparent contract and then fire her as if there were none. “It was like having your cake and eating it too – you’re not supposed to be able to do that,” he said.

One reason the agreement was so controversial, said the optometrist’s lawyer, Makarewicz, was that it made no reference to termination rights – either at-will, or for cause. A binding employment agreement covering several years, he said, is a serious commitment for both parties, and it should be drafted precisely.

“It should appear clearly on the document that what the parties were trying to do here is to create a binding, long-term relationship,” Makarewicz said. “If that doesn’t happen, it doesn’t mean that the court just stops. It has to take the next step, which is to find out what it is that the employer and employee were trying to do.”

Last Resort

In sending the case back to Peck, the Supreme Court majority expressly warned her that the labor-saving doctrine of construing ambiguities against the drafter, known as contra proferentem, was not to be used lightly.

The doctrine grows from the superior bargaining power of the employer contrasted with the “economic compulsion facing those in search of employment,” the court observed in a footnote. Nevertheless, the trial court should apply this employee-favoring rule only as a last resort, after sifting all the additional evidence to resolve ambiguities.

For dissenter McDonald, Peck had it right from the start. The contract language offered no big mystery. “Only by resorting to an act of linguistic origami could the written words of our common language be sufficiently contorted to reach the conclusion achieved by the majority today,” he wrote.

He said it was “unnecessary and improper” to re-review whether the contract “covering” 36 months was a three-year employment contract. Under caselaw precedent such as Slifkin, an exception to the at-will rule exists, he noted, “for contracts that create employment for a fixed period.”

The majority has “discerned shadows in the express language of the contract,” McDonald said, “that the clarity of bright light simply does not substantiate.”•

Thomas Scheffey is the former senior writer for the Connecticut Law Tribune. He is now a member of the newspaper’s Editorial Board.