Only a handful of CHRO Human Rights Referee Decisions are issued each year — a number that has seemed to slow to a trickle recently. But this month, the CHRO issued a lengthy decision in an age discrimination case. In that case, CHRO Referee concluded that the Town of Bloomfield, Connecticut discriminated against a police officer because of his age when it terminated him. (The officer was later reinstated as a result of an arbitration so his damages have been limited.)
In CHRO ex. rel. Donald Rajtar v. Town of Bloomfield, the Town was ordered to pay over $100,000 in backpay, lost benefits and interest. The facts of the case are detailed and too lengthy to summarize, but suffice to say that the police officer relied heavily on alleged ageist comments made by co-workers and non-decisionmakers and on the theory that the investigation and decision into whether his employment should be determinated was deficient.
The Town had contended that it terminated the Complainant because of the way he conducted a criminal investigation. The Town further argued that the Complainant was dishonest in his work product; the CHRO Referee discounted that saying that "The charge that the complainant had lied was never pursued with sufficient objectivity so as to allow it to be fairly established."
Notably, the CHRO Referee doesn’t dismiss the town’s defense entirely but simply found that the town’s explanation was far from bullet-proof (couldn’t avoid the pun here).
A review of [the] detailed written explanation of why [the decision-maker] ultimately concluded the complainant had lied reveals a “house of cards”, which could easily (although admittedly not with certainty) have been toppled if the complainant had been extended the degree of animus free evenhandedness the law requires.
It is easy to question now whether the Town’s investigation into the Complainant before it terminated his employment was thorough. Certainly, in reading the opinion, it is clear that the town did more than a minimal investigation into such facts and from an outsider’s perspective, you have to applaud an employer that takes steps to support their employment decision beforehand.
However, the case reinforces the notion that in order for an employment decision to hold up — you must be able to answer one question clearly: Was the employee treated fairly? The CHRO Referee here found "The complainant was entitled to more than a career ending ‘surmise’"; it is not a stretch to say that he did not believe the decision was "fair" since there is nothing in the law that requires that something "more". This may not necessarily be "right" (and it’s probably not enough to appeal on) but appealling to a factfinder’s sense of fairness, is always critical to litigation success.
One other noteworthy aspect of the case is the CHRO Referee’s decision to follow the "cat’s paw" theory of discrimination. What is this theory? In essence, a court will find an employer liable based on a subordinate’s discriminatory animus, even where the person who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee. Here, the CHRO found that allegedly ageist comments and actions made by lower-level supervisors and co-workers "influenced" the actual decision-makers here.
The issue of the "cat’s paw" theory’s application was up for review by the U.S. Supreme Court earlier this year, but the case settled before the issue was ruled upon by the court. Nevertheless, the theory has been previously supported by the Connecticut Appellate court five years ago in United Technologies v. CHRO (a case that has some parallels to this case). Until the appellate courts see fit to revisit the issue, it is likely to remain the dominant theory in Connecticut state courts and at the CHRO.