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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 evidence 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; thereafter, the court, Noble, J., awarded the plaintiff attorney’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 violation 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 contingency 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) providing 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 possesses 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 plaintiff testified that he was terminated by Barry after raising 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 combination 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 diagnosed [the issue] as [a] failure of the universal joint.

‘‘On November 10, 2015, one tire of a two tire assembly 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 verdict. 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 lodestar 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 provided 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 determination 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. Ribbits, 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 omitted.) 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 damages. 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 agreements 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 [agreement].’’ 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 hearing 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. Specifically, 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 complaint 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 judgment should conform to the pleadings, the issues and

the prayers for relief. . . . [G]enerally . . . the allegations 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 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 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. . . .’’ (Emphasis added.) Additionally, in his prayer for relief in his complaint, the plaintiff

clearly included a claim for attorney’s fees. The defendant fails to cite any requirement that a claim for attorney’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 retaliation 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 attorney’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 support 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 indicated 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 calculations so inferred from the testimony and jury interrogatories are not reflective of absolute precision, they nevertheless 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 general 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.’’ (Citations omitted; internal quotation marks omitted.) Ashmore 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 reasonable 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 terminated shortly thereafter.’’ (Citation omitted.) We agree

with the plaintiff.

We begin with our standard of review. ‘‘A party challenging 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 verdict 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 applicable 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 established 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 standard 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 defendant terminated him in retaliation for reporting issues

related to commercial motor vehicle safety, including

unsafe conditions relating to overweight loads, mechanical problems including vibration in his [tractor] caused

by a missing or damaged universal joint, and his insistence 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 preponderance 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 discharge—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 services. 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 concern, and, two, the employee’s interest in the speech

outweighs the employer’s interest in promoting the efficient 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 interfere 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 discharge 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 complaints, did not substantially or materially interfere with

his bona fide job performance or with his working relationship 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 defendant’s counsel objected to the court’s use of the term

substantially motivating factor. According to the defendant’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 defendant argues that the court’s use of the term ‘‘substantially 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 burden of proof and it is highly unlikely that the jury was

confused as to the applicable standard of proof. Accordingly, 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 calculate 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).