MacDermid, Inc. v. Leonetti

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  MACDERMID, INC. v. STEPHEN J. LEONETTI* (SC 19077) Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and McDonald, Js. Argued May 15—officially released November 26, 2013 John R. Horvack, Jr., with whom, on the brief, was John L. Cordani, Jr., for the appellant (plaintiff). Kathleen Eldergill, for the appellee (defendant).  Opinion NORCOTT, J. The sole issue in this appeal is whether the doctrine of absolute immunity, which affords pro- tection against certain claims relating to the commence- ment and prosecution of a cause of action, shields an employer who has brought an action against a former employee from a counterclaim by that former employee alleging that the employer’s cause of action is in retalia- tion for the former employee’s decision to exercise his rights under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., in violation of General Statutes § 31-290a.1 The plaintiff, MacDermid, Inc., appeals2 from the trial court’s denial of its motion to dismiss the counterclaim brought by the defendant, Ste- phen J. Leonetti. Specifically, the plaintiff asserts that the trial court improperly applied the factors set forth in Rioux v. Barry, 283 Conn. 338, 350–51, 927 A.2d 304 (2007), and incorrectly determined that absolute immunity did not bar the defendant’s claim of employer retaliation. We disagree and, therefore, affirm the trial court’s decision denying the plaintiff’s motion to dismiss. ‘‘Because in this appeal we review the trial court’s ruling on a motion to dismiss, we take the facts to be those alleged in the complaint, construing them in a manner most favorable to the pleader.’’ Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 132, 918 A.2d 880 (2007). We derive our summary of the facts alleged in the defendant’s counterclaim and the relevant procedural history from our recent opinion in Leonetti v. MacDermid, Inc., 310 Conn. 195, A.3d (2013), and from the record in the present appeal. The defendant worked for the plaintiff ‘‘for twenty-eight years until he was discharged in early November, 2009. Five years earlier, in June, 2004, the [defendant] sus- tained a lower back injury during the course of his employment. The [defendant] timely filed notice of a workers’ compensation claim related to this injury on April 14, 2005. The parties stipulated to the [Workers’ Compensation Commissioner (commissioner)] that the injury suffered by the [defendant] was a compensa- ble injury. ‘‘At the time that the [plaintiff] informed the [defen- dant] that he would be discharged from his employ- ment, the [plaintiff] presented the [defendant] with a proposed termination agreement [agreement]. Article II of the agreement signed by the parties provides that the [defendant] agreed to release the [plaintiff] from [inter alia] ‘any and all . . . workers’ compensation claims . . . .’ ‘‘Article III of the agreement provides that, in consid- eration ‘for the agreements and covenants made herein, the release given, the actions taken or contemplated to be taken, or to be refrained from,’ the [defendant] would be paid twenty-seven weeks ‘severance pay, determined solely upon the [defendant’s] current base salary,’ which amounted to $70,228.51, within thirty days of the [defendant’s] receipt of the properly executed agreement . . . . ‘‘Article III of the agreement also provided that ‘[the defendant] understands that the payments and benefits listed above are all that [the defendant] is entitled to receive from [the plaintiff]. . . . [The defendant] agrees that the payments and benefits above are more than [the plaintiff] is required to pay under its normal policies, procedures and plans.’ . . . ‘‘Article IV of the agreement . . . contained a clause stating in part that ‘[the defendant] acknowledges that he has been given a reasonable period of time of at least thirty (30) days to review and consider this agreement before signing it. [The defendant] is encouraged to con- sult his or her attorney prior to signing this agreement.’ . . . ‘‘The [defendant] did not want to release his preex- isting workers’ compensation claim relating to the 2004 injury by signing the agreement. He consulted with his attorney, who contacted the [plaintiff’s] counsel and requested that the [plaintiff] remove from the agreement the language that could operate to release the [defendant’s] workers’ compensation claim. The [plaintiff] refused to modify the language of the agreement. The [defendant’s] counsel [thereafter] wrote a letter to the [plaintiff’s] counsel asserting that the release language of article II of the agreement ‘really has no effect without the [c]ommissioner’s approval’ and scheduled an informal hearing before [the] . . . commissioner for January 8, 2010. The [plaintiff’s] coun- sel did not attend the informal hearing . . . . Nothing was resolved on January 8, and on January 27, 2010, the hearing was rescheduled for March 1, 2010. ‘‘On January 26, 2010, the [plaintiff] sent the [defen- dant] a letter stating that, unless the [defendant] signed the unmodified agreement within the next ten days, [the plaintiff] would withdraw its offer of $70,228.51 in severance pay. The [defendant] signed the agreement on February 2, 2010, and the commissioner found that the [defendant] did so because he did not wish to forfeit his severance pay. After the [plaintiff] received the signed agreement from the [defendant], it paid [him] the $70,228.51. At that time, the commissioner had not approved the agreement as a ‘voluntary agreement’ or stipulation as defined in [General Statutes] § 31-296.3 ‘‘A formal hearing was held several months later to determine the enforceability of the language in article II of the agreement that dealt with the release of the [defendant’s] workers’ compensation claim. Specifi- cally, the parties asked the commissioner to determine as follows: (1) ‘[w]hether a signed termination agreement between [an] employer and [an] employee can effectively waive the parties’ rights and obligations set forth in the [act] . . . absent approval of the agreement by a [commissioner]’; and (2) ‘[i]f the termi- nation agreement does not waive the parties’ rights and obligations set forth in the [act]—whether the [c]om- missioner would issue an order that the termination agreement be entered as a full and final stipulation of the [defendant’s] workers’ compensation claim against the [plaintiff].’ ‘‘The commissioner . . . found that, without approval by a commissioner, the agreement did not effectively waive the parties’ rights and obligations under the act . . . [and] that the agreement should not be approved as a full and final stipulation of the [defen- dant’s] workers’ compensation claim.’’ (Emphasis in original; footnote added.) Id., 199–202. The plaintiff appealed from the commissioner’s decision to the Workers’ Compensation Review Board (board), which affirmed the commissioner’s decision. Id., 203. There- after, the plaintiff appealed from the decision of the board to the Appellate Court4 and filed the present action in Superior Court alleging civil theft, fraud, unjust enrichment, and conversion, premised on the defen- dant’s admission that he never intended to release his workers’ compensation claim. In the present action, the plaintiff seeks, inter alia, rescission of the agreement, return of the $70,228.51 it paid the defendant under the agreement, and damages. In response, the defendant filed a counterclaim alleging that the plaintiff violated § 31-290a by initiating the present action solely in retali- ation for the defendant’s exercise of his rights under the act. In his counterclaim, the defendant seeks com- pensatory damages, punitive damages, costs, and attor- ney’s fees. Thereafter, the plaintiff moved to dismiss the defendant’s counterclaim, arguing that the court lacked subject matter jurisdiction over that claim because the act of filing an action is protected by the doctrine of absolute immunity. The trial court noted that the ‘‘question of whether a claim of retaliation under [the act] may be asserted as a result of [an action] brought by an employer against a former employee . . . appears [to be] a matter of first impression.’’ The trial court then identified the competing interests at issue, namely, the public policy of encouraging unfettered access to the courts to seek redress for grievances and the right of a former employee to pursue his statutorily protected rights under the act. Guided by the analysis set forth in Rioux v. Barry, supra, 283 Conn. 350–51,5 the trial court con- cluded that: (1) ‘‘the purposes of absolute immunity are equally applicable to the present counterclaim as [they are] to defamation and other torts to which absolute immunity has been applied’’; (2) ‘‘the actual impact, in terms of a chilling effect, is de minimis and will poten- tially arise only in those circumstances where an employer brings an action against an employee who has also made a claim for benefits under the act’’; (3) ‘‘the very broad and remedial nature of the act,’’ which ‘‘reflects the public policy of this state that employees be able to seek redress under the statutory provisions of the act without fear of reprisal or retaliation’’ weighs heavily against the application of absolute immunity in the present case; and (4) the act’s focus on the retalia- tory motive of the employer rendered the statutory claim of retaliation under § 31-290a ‘‘more akin to an abuse of process claim [which is not barred by absolute immunity], than, for example a defamation or tortious interference claim [which are barred by absolute immu- nity].’’6 Thereafter, the trial court concluded that the defendant’s retaliation counterclaim was not barred by absolute immunity and, accordingly, denied the plain- tiff’s motion to dismiss. This appeal followed. See foot- note 2 of this opinion. On appeal, the plaintiff claims that the trial court improperly applied Rioux v. Barry, supra, 283 Conn. 350–51, and denied its motion to dismiss because abso- lute immunity protects the act of filing a cause of action. Specifically, the plaintiff claims that the trial court cor- rectly determined that the purposes of absolute immu- nity are equally applicable to the defendant’s counterclaim as they are to a claim for defamation, and that applying absolute immunity to causes of action under § 31-290a predicated solely upon the employer’s act of filing a civil action against an employee will not effectively eliminate that statutory cause of action. The plaintiff further claims, however, that the trial court improperly concluded that the elements of a claim under § 31-290a were more akin to an abuse of process claim than they are to a defamation or tortious interfer- ence claim because § 31-290a does not contain ‘‘strin- gent requirements’’ to provide adequate protections to encourage individuals to report wrongdoing and seek redress from the courts. Finally, the plaintiff does not challenge the trial court’s recognition that § 31-290a is remedial in nature, but asserts that the remedial nature of the statute does not outweigh the interests underlying absolute immunity. Relying on case law from other jurisdictions that have expressly recognized a broad ‘‘litigation privilege,’’ the plaintiff argues that the poli- cies on which the doctrine of absolute immunity is based are derived from constitutional guarantees and, therefore, should prevail over the policies embodied in statutory causes of action, even when the statute is remedial in nature like § 31-290a. Thus, the plaintiff claims that all of the Rioux factors weigh in favor of affording it absolute immunity and that the trial court’s conclusion to the contrary should be reversed. In response, the defendant contends that the trial court properly considered the factual background of the present case when balancing the interests at stake. The defendant also argues that the cases from other jurisdictions upon which the plaintiff relies are inappo- site because: (1) many of those cases are consistent with Connecticut case law and, therefore, ‘‘add nothing new to the principles annunciated in Rioux’’; (2) some of those cases decided issues not implicated in the present case; and (3) the remaining cases simply applied a more expansive ‘‘litigation privilege’’ than has been recognized in Connecticut. The defendant also con- tends that the principles underlying the doctrine of absolute immunity apply equally to his interest in exer- cising his rights under the act free from retaliation from his employer and, thus, do not weigh in favor of impos- ing absolute immunity to bar his counterclaim. The defendant further contends that the trial court properly determined that the interests protected by § 31-290a are sufficient to outweigh those protected by absolute immunity. Specifically, the defendant cites to numerous federal cases that have recognized claims of retaliation predicated upon the employer’s sole act of initiating litigation against an employee for exercising his rights under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., which this court has considered instructive in interpreting the scope of the protections provided under the act. The defendant also challenges the plaintiff’s assertion that § 31-290a does not contain ‘‘stringent requirements’’ that provide ade- quate protections to encourage individuals to report wrongdoing and seek redress, and asserts that the trial court properly concluded that his counterclaim alleged that the plaintiff’s claims had been ‘‘brought for an illegal purpose and with retaliatory motive.’’7 We agree with the defendant and conclude that the trial court properly determined that, when an employ- er’s interest in unfettered access to the courts is weighed against an employee’s interest in exercising his rights under the act without fear of facing a baseless retaliatory civil action, the employee’s interest prevails. We, therefore, also conclude that the doctrine of abso- lute immunity does not bar a claim for retaliation predi- cated solely upon the employer’s act of filing a cause of action. Accordingly, we conclude that the trial court properly denied the plaintiff’s motion to dismiss the defendant’s counterclaim on the basis of absolute immunity.8 ‘‘The standard of review for a court’s decision on a motion to dismiss [under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pre- trial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessar- ily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . In undertaking this review, we are mindful of the well established notion that, in determin- ing whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). We begin our analysis with a review of the doctrine of absolute immunity, which is also referred to as the litigation privilege in Connecticut, as set forth in Simms v. Seaman, 308 Conn. 523, 531–40, 69 A.3d 880 (2013). In Simms, we noted that the doctrine of absolute immu- nity originated in response to ‘‘the need to bar persons accused of crimes from suing their accusers for defama- tion.’’ Id., 531. The doctrine then developed to encom- pass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, par- ties, and witnesses. Id., 532. We further noted that, ‘‘[l]ike other jurisdictions, Connecticut has long recog- nized the litigation privilege,’’ and that ‘‘[t]he general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, know- ingly, and with express malice, impose no liability for damages recoverable in an action in slander . . . .’’ (Internal quotation marks omitted.) Id., 536. Furthermore, in Rioux v. Barry, supra, 283 Conn. 343–44, we explained that ‘‘[t]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceed- ings is that in certain situations the public interest in having people speak freely outweighs the risk that indi- viduals will occasionally abuse the privilege by making false and malicious statements. . . . [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a com- plaint. . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common- law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state. . . . As a result, courts have rec- ognized absolute immunity as a defense in certain retal- iatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with com- plaints or to testify.’’ (Citations omitted; internal quota- tion marks omitted.)  In Simms v. Seaman, supra, 308 Conn. 540–45, we further discussed the expansion of absolute immunity to bar retaliatory civil actions beyond claims of defama- tion. For example, we have concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from state- ments made during a civil action. See Rioux v. Barry, supra, 283 Conn. 350–51 (absolute immunity applies to intentional interference with contractual relations because that tort comparatively ‘‘is more like defama- tion than vexatious litigation’’). We have also precluded claims of intentional infliction of emotional distress arising from statements made during judicial proceed- ings on the basis of absolute immunity. See DeLaurentis v. New Haven, 220 Conn. 225, 263–64, 597 A.2d 807 (1991). Finally, we have most recently applied absolute immunity to bar retaliatory claims of fraud against attor- neys for their actions during litigation. See Simms v. Seaman, supra, 545–46. In reviewing these cases, it becomes clear that, in expanding the doctrine of abso- lute immunity to bar claims beyond defamation, this court has sought to ensure that the conduct that abso- lute immunity is intended to protect, namely, participa- tion and candor in judicial proceedings, remains protected regardless of the particular tort alleged in response to the words used during participation in the judicial process. Indeed, we recently noted that ‘‘[c]om- mentators have observed that, because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant.’’ (Emphasis in original; internal quotation marks omit- ted.) Id., 548. We have, however, recognized a distinction between attempting to impose liability upon a participant in a judicial proceeding for the words used therein and attempting to impose liability upon a litigant for his improper use of the judicial system itself. See DeLaurentis v. New Haven, supra, 220 Conn. 263–64 (‘‘whether or not a party is liable for vexatious suit in bringing an unfounded and malicious action, he is not liable for the words used in the pleadings and docu- ments used to prosecute the suit’’ [emphasis added; internal quotation marks omitted]). In this regard, we have refused to apply absolute immunity to causes of action alleging the improper use of the judicial system. For example, in Simms v. Seaman, supra, 308 Conn. 540–41, we observed that, in Mozzochi v. Beck, 204 Conn. 490, 491–92, 494, 529 A.2d 171 (1987), an abuse of process case, ‘‘this court determined that attorneys are not protected by absolute immunity . . . [for] con- duct constitut[ing] the use of legal process in an improper manner or primarily to accomplish a purpose for which it was not designed. . . . The court neverthe- less sought to reconcile its responsibility to ensure unfettered access to the courts and to avoid a possible chilling effect on would-be litigants of justiciable issues by limiting liability [for abuse of process] to situations in which the plaintiff can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’’ (Citation omitted; internal quotation marks omitted.) Simms v. Seaman, supra, 540–41. Furthermore, ‘‘[t]his court also has determined that absolute immunity does not bar claims against attor- neys for vexatious litigation or malicious prosecution. . . . [T]he court in Rioux [v. Barry, supra, 283 Conn. 341–49] expressly permitted a claim for vexatious litiga- tion against . . . members of the state police for alleg- edly false statements they had made in the course of a quasi-judicial proceeding . . . [because] whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests . . . and the fact that the tort of vexatious litigation itself employs a test that balances the need to encourage complaints against the need to protect the injured par- ty’s interests counsels against a categorical or absolute immunity from a claim of vexatious litigation. . . . The court concluded that the stringent requirements of the tort of vexatious litigation, including that the prior pro- ceeding had terminated in the plaintiff’s favor, pro- vide[d] adequate room for both appropriate incentives to report wrongdoing and protection of the injured par- ty’s interest in being free from unwarranted litigation.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Simms v. Seaman, supra, 308 Conn. 541–42. Turning to the present case, we begin by noting that, notwithstanding the plaintiff’s claims to the contrary, the factors considered in Rioux v. Barry, supra, 283 Conn. 350–51, are simply instructive. In Rioux, we emphasized that ‘‘whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests.’’ Id., 346. We also observed that, in previous cases that had presented a question of the applicability of the doctrine of absolute immunity, we applied the general principles underlying that doctrine to ‘‘the particular context’’ of those cases. Id., 345. Furthermore, the cases following Rioux have not relied exclusively or entirely on the factors enumer- ated therein, but instead have considered the issues relevant to the competing interests in each case. See, e.g., Simms v. Seaman, supra, 308 Conn. 545–46. With respect to the competing interests in the present case, the plaintiff contends that it is entitled to absolute immunity from the defendant’s § 31-290a counterclaim because that claim is founded solely on the plaintiff’s conduct in filing the present action, and absolute immu- nity is necessary to protect and encourage injured par- ties to resolve their disputes peacefully through the judicial process. We disagree. First, we agree with the trial court’s conclusion that, for balancing purposes, ‘‘the allegations in the counter- claim are more akin to an abuse of process claim [than] a defamation or tortious interference claim.’’ The torts of vexatious litigation and abuse of process both pro- hibit conduct that subverts the underlying purpose of the judicial process. Specifically, these causes of action prevent, or hold an individual liable for, the improper use of the judicial process for an illegitimate purpose, namely, to inflict injury upon another individual in the form of unfounded actions. See DeLaurentis v. New Haven, supra, 220 Conn. 264. Section 31-290a mirrors the purpose of these torts by preventing, or holding employers liable for, discrimination against an employee who exercises his rights under the act. See footnote 1 of this opinion. In the context of employer initiated litigation, like that involved in the present case, § 31-290a is designed to prevent, or hold the employer liable for, the improper use of the judicial process for the illegitimate purpose of retaliating against an employee for his exercise of his rights under the act. The illegitimate use of litigation in such a retaliatory manner subverts the purpose of the judicial system and, as a matter of public policy, we will not encourage such conduct by affording it the protection of absolute immunity. See Simms v. Seaman, supra, 308 Conn. 545–46 (whether claim subverts underlying purpose of judicial proceeding is relevant to determination of whether absolute immunity should apply); see also Rioux v. Barry, supra, 283 Conn. 350 (absolute immu- nity does not bar claims of vexatious litigation); Moz- zochi v. Beck, supra, 204 Conn. 495 (absolute immunity does not bar claims of abuse of process). The plaintiff contends, however, that § 31-290a does not contain stringent requirements to protect an employer’s right to petition the courts for redress for its grievances. In this respect, the plaintiff claims that § 31-290a does not require the defendant to prove an illegal purpose or retaliatory motive in order to make out a prima facie case of discrimination and, therefore, that proof of a claim under § 31-290a is far less stringent than both vexatious litigation and abuse of process. The plaintiff takes particular issue with the burden shift- ing test that courts perform to determine whether an employee has established that he has been subjected to illegal discrimination by his employer. See Mele v. Hartford, 270 Conn. 751, 768–69, 855 A.2d 196 (2004).9 Nevertheless, ‘‘[w]e have stated on several occasions that this burden shifting methodology is intended to provide guidance to fact finders who are faced with the difficult task of determining intent in complicated discrimination cases. [Therefore] [i]t must not . . . cloud the fact that it is the [employee’s] ultimate burden to prove that the [employer] intentionally discrimi- nated against [him] . . . .’’ (Emphasis added; internal quotation marks omitted.) Id. Given that the defendant bears the ultimate burden to prove that the plaintiff’s claims constitute retaliation in violation of § 31-290a, we disagree that the burden shifting methodology ren- ders the requirements of the defendant’s counterclaim appreciably less stringent. Cf. Simms v. Seaman, supra, 308 Conn. 549 (heightened burden of clear and convinc- ing evidence insufficient to render elements of fraud appreciably more stringent). In addition, in Rioux v. Barry, supra, 283 Conn. 347, we highlighted the ‘‘stringent requirements’’ embodied in the elements of a vexatious litigation claim, namely that the plaintiff prove actual malice, lack of probable cause, and the prior termination of proceedings in the plaintiff’s favor, because those stringent requirements provided an additional consideration relevant to our balancing analysis. Thus, stringent requirements that partially embody the balancing analysis this court undertakes to determine the applicability of absolute immunity simply add weight to the side of the balance that counsels against applying absolute immunity. Put differently, stringent proof requirements are relevant in determining whether absolute immunity should apply, but are not required to make that determination. Indeed, the elements of abuse of process, a tort which also falls outside the scope of absolute immunity, are less stringent than the elements of vexatious litigation. Specifically, unlike the tort of vexatious litigation, a claim for abuse of process does not require termination of the underlying litigation in favor of the plaintiff. See Mozzochi v. Beck, supra, 204 Conn. 494 (‘‘An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process . . . the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . . [T]he [use] of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.’’ [Citations omitted; emphasis in original; internal quotation marks omit- ted.]); cf. Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 170–71, 526 A.2d 532 (1987) (‘‘Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but mis- using, or misapplying process justified in itself for an end other than that which it was designed to accom- plish. The purpose for which process is used, once it is issued, is the only thing of importance. Consequently, in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.’’ [Emphasis added; internal quotation marks omitted.]). Therefore, the absence of an element requiring termination of a prior action in the employee’s favor under § 31-290a does not under- mine our conclusion that the balance of the interests in the present case weighs against the application of absolute immunity to the defendant’s counterclaim. We also note that the factual allegations required to support a § 31-290a claim may be more stringent than those required to support an abuse of process claim. While an abuse of process claim requires only proof that the use of legal process was ‘‘primarily to accomplish a purpose for which it was not designed’’; (emphasis in original; internal quotation marks omitted) Mozzochi v. Beck, supra, 204 Conn. 497; in the present case, the defendant has pleaded that the plaintiff filed its claims against him ‘‘solely because [the defendant] exercised his rights under the [act].’’ (Emphasis added.) Although retaliation may not be the sole motivation in all § 31- 290a cases, it often may be. See footnote 9 of this opinion. Furthermore, we also agree with the trial court’s con- clusion that, under the circumstances of the present case, ‘‘the purposes of absolute immunity are equally applicable to the present counterclaim as [they are] to defamation and other torts to which absolute immunity has been applied.’’ Indeed, where an employer initiates litigation following an employee’s exercise of his rights under the act, the potential of a counterclaim alleging that the employer’s litigation constitutes improper retal- iation may serve to deter some employers with justicia- ble grievances from filing civil actions in the first instance. That some employers may be deterred from initiating litigation against an employee in good faith for fear of defending against a retaliation counterclaim, however, does not undermine our conclusion that, on balance, the interests in the present case weigh against applying absolute immunity. Indeed, most plaintiffs must make a determination regarding whether initiating a cause of action is worth the risk of opening the door to potential counterclaims, not just employers wishing to sue their former employees. Moreover, as the trial court properly observed, ‘‘the vast majority of retalia- tion claims under the act do not involve litigation related conduct by the employer.’’ We, therefore agree with the trial court that the actual impact, in terms of a chilling effect caused by the potential threat of facing a counter- claim alleging retaliation pursuant to § 31-290a, ‘‘is de minimis and will potentially arise only in those circum- stances where an employer brings an action against an employee who has also made a claim for benefits under the act. Compare this somewhat unique confluence of circumstances with a defamation claim arising out of judicial proceedings and the difference is stark. . . . In short, every judicial or quasi-judicial proceeding cre- ates a potential defamation claim based upon the state- ments made in connection therewith. Protection against such claims is essential to ensure candor within and fair access to the proceedings. In contrast, the potential for a retaliation claim as is brought [in the present case] is extremely limited in type and circumstance.’’ (Emphasis added.) This limited potential for a § 31-290a claim brought in response to an employer’s initiation of litigation against an employee weighs against applying absolute immunity to bar the defendant’s counterclaim in the present case.10 It also bears noting that employees have successfully asserted federal claims of employer retaliation under Title VII, predicated on their employers’ initiation of litigation against the employees in response to the exer- cise of their Title VII rights.11 See, e.g., Berry v. Stevin- son Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (retaliatory prosecution may constitute adverse action sufficient to violate Title VII); Spencer v. International Shoppes, Inc., 902 F. Supp. 2d 287, 294 (E.D.N.Y. 2012) (employer initiated litigation ‘‘may be considered retal- iatory if motivated, even partially, by a retaliatory ani- mus’’); Gliatta v. Tectum, Inc., 211 F. Supp. 2d 992, 1009 (S.D. Ohio 2002) (allegedly bad faith counterclaim brought by employer against employee can constitute Title VII retaliation); Ward v. Wal-Mart Stores, Inc., 140 F. Supp. 2d 1220, 1231 (D.N.M. 2001) (‘‘the filing of frivolous lawsuits may constitute an adverse employ- ment action for purposes of a retaliation claim’’); Equal Employment Opportunity Commission v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756, 758 (1999) (employer filing action, not in good faith, but motivated by retaliation can be basis for claim under Title VII); Equal Employment Opportunity Commis- sion v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 778 (W.D. Va. 1980) (employer defamation action was retaliation under Title VII); cf. Beckham v. Grand Affair of North Carolina, Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (employer instituted criminal prosecu- tion of former employee who filed claim with Equal Employment Opportunity Commission constituted retaliation under Title VII); but see Hernandez v. Craw- ford Building Material Co., 321 F.3d 528, 533 (5th Cir. 2003) (given strict interpretation of retaliation claims, employer’s filing of counterclaim cannot support Title VII retaliation claim). As the plaintiff points out, we acknowledge that the defense of absolute immunity was not raised in any of the preceding cases. Nevertheless, the fact that federal courts have entertained such claims weighs against applying absolute immunity to bar the defendant’s § 31- 290a counterclaim in the present case. Moreover, the only federal court to address the applicability of abso- lute immunity to a counterclaim alleging retaliatory liti- gation by an employer in the context of Title VII ultimately reached the conclusion that the doctrine did not apply. See Steffes v. Stepan Co., 144 F.3d 1070, 1075–76 (7th Cir. 1998). In Steffes, although the court eventually dismissed the retaliation counterclaim because the employer’s alleged conduct was insuffi- cient as a matter of law to sustain a claim of retaliation under Title VII, the court noted that ‘‘recognition of the litigation privilege sought by the [employer] could interfere with the policies underlying the anti-retaliation provisions of Title VII . . . . Retaliatory acts come in infinite variety . . . and even actions taken in the course of litigation could constitute retaliation in appro- priate circumstances. . . . The point is that, since some actions taken in the course of litigation could conceivably constitute retaliation, an absolute litigation privilege as defined in Illinois law would be too broad [to augment the federal common-law litigation privi- lege] because it would insulate behavior that could oth- erwise be actionable under Title VII . . . .’’ (Citations omitted.) Id., 1075. The court went on to state that ‘‘[w]e do not wish to foreclose the possibility that some actions taken in the course of litigation could constitute retaliation, and so we cannot agree with the [D]istrict [C]ourt’s decision extending an absolute litigation privi- lege to this case.’’ Id., 1076. Thus, our conclusion that absolute immunity should not bar the defendant’s retali- ation counterclaim in the present case accords with the treatment of Title VII retaliation claims in federal court. As a final matter, the plaintiff claims that cases from jurisdictions that have embraced a broader litigation privilege support its argument that we should similarly interpret the doctrine of absolute immunity to encom- pass and protect the act of filing a cause of action. In support of this claim, at oral argument before this court, the plaintiff pointed to our reliance on, inter alia, several cases from Florida in explaining our reasoning for extending the litigation privilege to bar claims of fraud against attorneys in Simms v. Seaman, supra, 308 Conn. 567. Although we did note in Simms, that ‘‘many juris- dictions have followed an approach that has strength- ened the litigation privile