Asp v. Milardo Photography, Inc.

• Decision Date: 28 August 2008
• Docket Number: No. 3:04 CV 1016(DJS).,3:04 CV 1016(DJS).
• Citation: 573 F.Supp.2d 677
• Court: U.S. District Court — District of Connecticut
• Parties: Lisa ASP & Paulette Mertes, Plaintiffs, v. MILARDO PHOTOGRAPHY, INC., Snapshot Photography, LLC, Theodore Milardo, Elizabeth Milardo, Defendants.

573 F.Supp.2d 677

Lisa ASP & Paulette Mertes, Plaintiffs, v. MILARDO PHOTOGRAPHY, INC., Snapshot Photography, LLC, Theodore Milardo, Elizabeth Milardo, Defendants.

No. 3:04 CV 1016(DJS).

United States District Court, D. Connecticut.

August 28, 2008.

COPYRIGHT MATERIAL OMITTED

Anthony J. Pantuso, III, Richard Eugene Hayber, Hayber & Pantuso, Hartford, CT, for Plaintiffs.

Glenn A. Duhl, Siegel, O'Connor, O'Donnell & Beck, P.C., Hartford, CT, Shawn Patrick Coyne, Electric Boat Corp., Groton, CT, for Defendants.

MEMORANDUM OF DECISION

DOMINIC J. SQUATRITO, District Judge.

The Plaintiffs, Lisa Asp ("Asp") and Paulette Mertes ("Mertes") (collectively, "the Plaintiffs"), bring this action for damages and injunctive relief against the Defendants, Milardo Photography, Inc.¹ ("Milardo Photo"), Snapshot Photography, LLC ("Snapshot Photo"), Theodore Milardo ("Ted"), and Elizabeth Milardo ("Liz") (collectively, "the Defendants"), alleging violations including witness tampering, age discrimination, defamation, and numerous claims of retaliation and failure to pay overtime. The Defendants' filed an Answer that included twelve Counterclaims including claims for theft, misappropriation of trade secrets, unjust enrichment, computer conversion, violation of Connecticut Unfair Trade Practices Acts ("CUTPA") and tortious interference with business relations. Now pending before the Court is the Plaintiffs' motion for partial summary judgment (dkt. # 41)². For the reasons stated herein, the Plaintiffs' motion for summary judgment (dkt. # 41) is DNIED.

I. FACTS

Ted and Liz Milardo are the owners of Milardo Photo in Middletown, Connecticut. Since 1993, Milardo Photo has engaged in the business of portrait photography. In or around March of 2001, Milardo Photo sought to transition from a film studio to a digital studio to keep with evolving technology and customer demand, as well as to change to a custom portrait studio. To facilitate the transition, Milardo Photo purchased new equipment, including software programs Adobe Photoshop 7 Professional, Kodak Professional DP2 software and Corel Painter. In addition, Milardo Photo needed to hire a photographer who could work with the new technology.

A. THE HIRING OF THE PLAINTIFFS

In early March 2001 Asp was hired by the Defendants to work in a customer service position. When Asp heard of the new photographer position she wanted to apply. Asp was qualified for this position because she held an art degree, had a strong photography background, was an expert in Photoshop and had an impressive portrait photography portfolio. Ted believed that the new position required portrait photography experience and exceptional artistic skill. After expressing an interest in the opening, Asp was promoted from her customer service position to the new position in March 2001.

The new position required Asp to visualize a final portrait before taking the photo. She would create a scene for the photo, make lighting adjustments, and direct the subject to pose in a certain way. Asp or Ted would photograph the client and then it was up to Asp to decide which of the hundred or more images would be most appropriate for the final portrait. Asp would use Photoshop to employ artistic techniques like image enhancement, manipulation and editing prior to creating the final portrait. Asp would also assess the subject's body position and pose. The final portrait needed adjustments to the to color, saturation, skin tone, lighting and composition. This required a number of enhancements to the raw image. Asp was compensated on a salary basis in the following manner: (1) after her promotion she was compensated at a rate of $440 per week; (2) on or around May 6, 2001 she received a raise to $500 per week; (3) on or around October 21, 2001, she received a raise to $600 per week; and (4) on or around June 2, 2002, she received a raise to $650 per week.

In June 2001, Milardo Photo decided to hire another employee. Asp recommended Mertes for the position and on October 22, 2001, Milardo Photo hired Mertes. Mertes was compensated at a rate of $650 per week and worked from October 23, 2001 until December 24, 2002, when she was terminated. Generally, Mertes' duties ranged from customer service and sales to marketing the studio, developing business platforms and many other day-to-day operations within the studio. There is disagreement amongst the parties, however, as to whether Mertes held the title of "supervisor" such that Asp reported to Mertes. Prior to hiring Mertes, Liz was concerned with whether Mertes was capable of working with Asp due to their friendship. Liz communicated these concerns to both women.

B. THE CHRISTMAS PHOTOS

On December 12, 2002, Mertes asked Liz if she and Asp could use the studio and equipment to take Christmas photographs of their families on the upcoming Sunday and Monday. The parties differ as to Liz's approval. The Plaintiffs argue that Liz approved the request for both Mertes and Liz, but Liz states that she approved the request only for Mertes and only for Sunday. On Sunday, the Plaintiffs used the studio to take the holiday photos of Mertes' family. After work finished on Monday, the Plaintiffs used the studio to take pictures of Asp's family. That Tuesday, Mertes faxed an order for a picture frame to J. Whitney Frame Gallery ("J. Whitney"), the framing vendor that the Defendants had used. Mertes ordered the frame using the Defendants account so that she could obtain the wholesale price. Mertes sent her photographs to J. Whitney using Federal Express.

On Wednesday, December 18, 2002, Asp printed the photos of her family while she was at work and presented Ted and Liz with a Christmas card. The Defendants deny thanking Asp for the card or saying they liked it. On Thursday, December 19, 2002 Ted drove to J. Whitney and picked up several framing orders, including Mertes' order. Mertes argues that attached to the front of the frame was a framing order with the price and her name on it. The Plaintiffs claim that later that day Asp wrote out an accounting of the quantities of photos that she had printed for her and Mertes' family, and that the accounting was provided to Milardo Photo as an offer to pay for the prints. On Friday, December 19, 2002, Liz said to Mertes that she heard of the frame purchase and wanted to see it. Mertes responded that the frame was at home and Liz voiced no objections to the transaction because, at that time, she believed Mertes had paid for the frame. Mertes claims that she left an approximately $165 check for the frame in the register of Milardo Photo.

C. THE TERMINATION OF MERTES

On December 24, 2002, the Defendants terminated Mertes. The Defendants claim that the termination, in part, was based on customer service issues. The Plaintiffs argue that Ted told Mertes she was being terminated for her failure to follow up with three customers who had not yet picked up their holiday photos. The Plaintiffs further argue that this reason is not rational because the three customers names had been crossed off the list that Liz had given to Mertes.

On January 2, 2003, Liz met with Asp and told her that she needed to be able to trust her, and if she could not trust her, that Asp should leave. Liz told Asp that she believed Mertes had stolen the photos and that Asp had helped her. Liz also told Asp that she believed Asp had stolen photos. On January 4, 2003, Mertes received a letter from Liz requesting that Mertes pay full market price for the photos she printed on December 16, 2002 and that she pay J. Whitney for the frame. At the request of Mertes, Asp printed out an price list so that Mertes could clarify the charges.

On January 10, 2003, Mertes made an unemployment claim with the Connecticut Department of Labor ("CDOL"). The Defendants received notice of the unemployment claim, a copy of the affidavit, and a letter asserting Mertes' rights under the law. On February 10, 2003, Mertes, through her attorney, contacted Ted and Liz's then attorney and informed him that Mertes had left a check in the register. On February 14, 2003, Mertes, through her counsel, wrote to Ted and Liz's attorney and demanded the payment of money damages for the termination.

D. THE RESIGNATION OF ASP

On February 24, 2003 Liz reported the Plaintiffs to the Middletown Police Department and accused them of larceny. The basis for the theft claims were Asp's allegedly unauthorized use of the studio to take holiday photographs and print them without permission, and Asp's and Mertes' unauthorized printing and frame orders. The signed statement by Liz and Ted contained the following reasons for the theft claim: (1) that Asp had printed the Christmas photographs of Mertes and her family without permission; (2) that Mertes had placed a frame order from J. Whitney through Milardo's account without Liz's permission; (3) that Mertes had failed to pay for the frame that she ordered from J. Whitney, (4) that Mertes had taken photographs of Asp, her husband and her dog during business hours without the knowledge of Liz or Ted; (5) that neither Ted nor Liz had given permission for any of these activities; (6) that Ted and Liz had terminated Mertes for, among other reasons, the theft of the photographs and frame; (7) that Liz had suspected that Asp was lying on January 2, 2003 when Asp said that she thought she had permission to use the studio and print the photographs; (8) that Mertes had placed a framing order for Asp back in August 2002 for $38.50 without Liz's knowledge; and (9) that Liz concluded she did not like Asp on January 9, 2003.

On February 25, 2003, Detective Barone ("Barone") called Milardo Photo to reach Asp regarding the investigation of larceny charges against Mertes. Asp went to Barone's office and decided that she did not wish to speak to him without an attorney. Asp returned to work and the next day filed her letter of resignation due to the police report that was filed by Ted and Liz.

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