UPSairBack in September 2013, I reported on a seemingly never-ending case of Tomick v. UPS and mentioned that it was headed to its second appeal at the Connecticut Appellate Court. (I talked about the history of the case and the first appeal back in 2012 too.  Amazingly, it dates to a termination decision way back in 2004!)

Well, it’s back. Today, the Appellate Court officially released its newest decision looking at a particular issue: Namely, is an employee required to show that he was qualified to perform the essential duties of his position at the time of an adverse employment decision?

To establish the basic elements (or a “prima facie case”) of a disability discrimination, an individual must typically show that he was “qualified for the position”.  UPS argued on appeal that it “is fundamental, under both state and federal law, that a plaintiff bringing a claim of disability [discrimination] must be capable of performing his/her essential job functions as of the date of the adverse employment action being challenged”.

The Appellate Court disagreed.  In doing so, it indicated that the requirement of “qualification” is necessary only when it is “germane” to the issues involved.  It cited Curry v. Allan S. Goodman, Inc. where the “plaintiff’s qualifications were essential in determining whether the employer could in fact employ the plaintiff with or without a reasonable accommodation.”

But the court went on. If the “question of qualification is not relevant to the main question of whether there was discrimination, our Supreme Court holds that no such showing is necessary….”.

In this case, because the plaintiff was already an employee of the defendant and his qualifications for the position held were not being challenged, the court said that the question of whether the plaintiff was qualified to perform the essential functions of his position at the time of termination was not relevant.

Interestingly, the court did suggest a different result in a different case.  If the defendant, for example, asserted that it could no longer continue to employ the plaintiff, with or without reasonable accommodations, on the basis of his unsatisfactory performance or lack of qualifications as a result of his disability, then the qualification element might come back into play.

For employers, the case is a notable play on legal theories.  But from a practical perspective, it’s hard to see how this will change the advice typically given to employers.

The Appellate Court went on to address another interesting aspect: Punitive damages. I’ll tackle that in an upcoming post.

Lucan_J_WebMy colleague, Jarad Lucan, returns today to recap a notable labor case that the Connecticut Appellate court decided this week (but officially released on March 24, 2015).  It’s worth a read, even for non-union types, if only to show the importance of consistency in arguments.

A recent Appellate Court case, AFSCME, AFL-CIO, Council 4, Local 2405 v. City of Norwalk et al., reminds us that there are some subtle textual differences between the National Labor Relations Act (NLRA) and the Connecticut Municipal Employee Relations Act (MERA) that municipal employers and labor practitioners should keep in mind.  The case also reinforces the notion that consistency in the arguments a party makes before a court is vital to the potential success of those arguments.

I will give you a bit of a warning though: the decision includes a very technical analysis. But  I will try my best to summarize the key points without losing everyone’s attention.

It is common practice for Connecticut courts and the State Board of Labor Relations (SBLR) to look to the NLRA when interpreting and applying the State’s employee relations acts, including the MERA.  There is certainly nothing unusual about this practice, and given the similarities between the Federal and State acts, it simply makes sense.

For example, Section 8(a)(1) of the NLRA and Section 7-470(a)(1) of the MERA prohibit employers from interfering, restraining or coercing employees in the exercise of their rights guaranteed by either act.  In addition, both Federal and State law prohibit employers from discriminating, harassing, or retaliating against employees who engage in protected activity.  While this later prohibition is specifically set forth in the Section 8(a)(3) of the NLRA, the MERA does not include a statutory analogue.  Instead, the SBLR has interpreted Section 7-470(a)(1) to encompass this prohibition.

Good so far?

When a union raises a claim that an employer has discriminated, harassed, or retaliated against an employee because of his or her protected activity, the central question is whether any adverse employment action taken against an employee was motivated by anti-union animus.   This means that the employer’s intent is generally at issue.

In order to determine the employer’s intent, a burden-shifting framework first established by the National Labor Relations Board (NLRB) in its Wright Line decision is utilized at both the Federal and State level.  Under this framework, the union must make a prima facie showing that an employee’s protected activity was a motivating factor in the employer’s adverse employment action against the employee.

The elements of this prima facie case are (1) the employee engaged in protected activity; (2) the employer knew of the employee’s protected activity; and (3) the employer acted as it did on the basis of anti-union animus.

In contrast, when a union raises a claim that the employer’s actions simply tend to have the effect of coercing or interfering an employees exercise of their rights, whether they are actually coerced or not, the employer’s intent is not at issue and therefore the Wright Line standard is not applicable.  Still with me?

This seems straightforward enough when dealing with claims brought under the NLRA.  Claims that an employer discriminated or retaliated against an employee because of that employee’s protected activities  are brought under Section 8(a)(3) of the NLRA, and all parties understand that the Wright Line standard will apply.  Claims that the employer’s actions simply coerced or interfered with an employee’s exercise of his or her rights (for instance the implementation of a social media policy that prohibits an employee from making disparaging comments) are brought under Section 8(a)(1), and all parties generally understand that the Wright Line standard is not applicable.  In other words, two different sections are in play.

Under MERA — Connecticut’s law — however, both discrimination and retaliation claims and coercion and interference claims are brought under the same statutory section, Section 7-470(a)(1).  Thus, it is up to the parties, particularly the party bringing the complaint, to identify under what theory the case will be litigated.  That is precisely the issue in the City of Norwalk case.  I know it  took us a while, but I think we got there in one piece.

Here’s where the new case gets interesting.  In that case, the Union claimed that the Supervisor of the  City’s Department of Public Works retaliated against employees in the Department because of their protected activities.  Thus, when the Union presented its case to the SBLR, the Union argued that the employer’s intent was at issue and the case should be analyzed under the Wright Line standard.  That is exactly what the SBLR did.  Under that framework, the SBLR determined that the City did not subject the employee to any adverse employment action and therefore the Union failed to establish that the City acted on the basis of anti-union animus.   The SBRLR dismissed the complaint.

The Union appealed the case to the Superior Court, which upheld the SBLR’s decision as being supported by substantial evidence.  On appeal, the Union shifted gears and argued that the SBLR applied the wrong legal standard in deciding whether it met its prima facie burden.  Specifically, the Union contended that it may meet its obligation to prove anti-union animus merely by demonstrating that the employer’s conduct coerced employees from engaging in protected activities.

The Appellate Court rejected this argument stating, “[b]y electing to cast its claims as falling under the Wright Line standard before the [SBLR], the trial court, and this court, the union may not attempt to import a test that is fundamentally inconsistent with the Wright Line standard. . . . The [SBLR] decided the case on the theory on which the union advanced it.  Accordingly, the [SBLR] cannot now be faulted for not applying a standard that is inconsistent with the overall standard the union urged it to use in adjudicating its claim of discrimination.”

For employers and their attorneys, it is critical to understand both the differences in state and federal law and fashion a defense to the particular claim that is being brought. Here, the procedural posture of the case allowed the employer to prevail — merits of the underlying case notwithstanding.

locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.

Continue Reading Less May Be More When It Comes To Job References

My colleague Chris Engler reports today on a new Connecticut Appellate Court case that focuses on a often misunderstood concept in employment contracts — the need for “consideration”.  What was it that Dire Straits’ sang about in the 1980s? Getting “Money for Nothing”?

We’ve all been told that you can’t get something for nothing.  That lesson was reiterated in a new case by the Appellate Court due to be officially released next week. 

The Facts

As told by the Court, the facts of the case,  Thoma v. Oxford Performance Materials, Inc., revolve around the employer’s attempts to attract investors. 

One investment company told the employer, Oxford, that it wanted assurances that key personnel would not leave.  Oxford dutifully entered into employment contracts with various employees, including Lynne Thoma.

The details of the contracts are important.  This first employment contract gave Ms. Thoma a higher salary, job security (termination could only be with 60 days’ notice), and a severance package.  In return, Ms. Thoma promised not to leave during the contract period and not to work for a competitor for six months after leaving.  Ms. Thoma signed this contract.

 At this point, both parties had gotten a benefit, and all seemed well.

But then a second investment company informed Oxford of its dissatisfaction because the employment contract was “too strong.”  So Oxford went back to the drawing board and crafted new contracts.

 Ms. Thoma’s second contract was quite different.  It removed all of the monetary elements, including the salary increase.  The new contract also allowed Oxford to fire Ms. Thoma without notice or cause.  Finally, it prohibited Ms. Thoma from working for a competitor.  (The length of this prohibition was unclear.  If you’re a contract jargon junkie, I recommend reading the court’s analysis in full.) 

Nevertheless, Ms. Thoma went ahead and signed this contract as well.

A year later, Oxford fired Ms. Thoma.  She demanded the benefits from the first contract.  Thus commenceth this case.

Is the Second Contract Enforceable?

Ultimately, both the trial court and the appellate court sided with Ms. Thoma, concluding that she didn’t receive any consideration in exchange for the sacrifices she made in the second contract.  In other words, she gave up some perks without getting anything in return.

Continue Reading “Consider” This Important: Employment Contracts Are a Two-Way Street

So, remember back in February where I noted that employers ought to “consider having an attorney review some of your [employment] agreements … [because sometimes,] poor drafting can sometimes be avoided by having an attorney involved”?

We have another appellate court case that emphasizes that point quiet well in Stratford v. Winterbottom.

The case involves a town and one of its employees.  The town gave the employee an employment agreement that stated:

Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject to the approval of the [council], which by Charter fixes the salaries of all mayoral appointees.

The issue? The town reduced the employee’s salary.  The question for the Appellate Court was whether the town had permission to do so.

No way, says the Appellate Court.  By including increases but not mentioning decreases, the employer is reading too much into the agreement; it simply does not have the power to do so.

Yes, the court acknowledged, the employee was at-will but that at-will clause was never used by the employer and the employee never consented to the change in salary.

Ken Adams of Adams on Contract Drafting, did a quick post about this from a contract drafting perspective last night after I mentioned it on Twitter.  I recommend the whole post, but here’s the key point:

A grant of discretion to do one thing doesn’t necessarily equal a prohibition against doing other things. If a mother tells her son that he may play video games, it wouldn’t necessarily follow that she’s thereby forbidding him from engaging in any alternative activity.

But the presumption that a grant of discretion doesn’t also entail prohibition comes up against what this manual refers to as “the expectation of relevance.” (Relevance is a principle of linguistics. According to The Cambridge Grammar of the English Language, at 38, “A central principle in pragmatics . . . is that the addressee of an utterance will expect it to be relevant, and will normally interpret it on that basis.”) The more specific a grant of discretion is, the more likely it is that the reader would conclude that the discretion is limited—otherwise there would be no point in being so specific. And the more likely a court would be to invoke the arbitrary principle of interpretation expressio unius est exclusio alterius—the expression of one thing implies the exclusion of others.

So, what’s an employer to do? Well, a salary clause can be written in a variety of ways. Consider that the employer may “revise” the salary at any time or “change” it. Or perhaps the employer can be more direct that it may “increase or decrease” the salary based on a variety of factors.  Some employers may choose to avoid discussing it altogether which would be an interesting question of contract interpretation then.

Whatever you choose, make sure the agreement accurately reflects what you intend.  Otherwise, you may not have the discretion to change something that thought was implied.

Not every case that comes out from the Connecticut Appellate Court makes headlines.

Take the case of Walker v. Department of Children & Families, a new case that will be officially released next week (download here).

It is a fairly ordinary discrimination case — albeit a rare one where the employer has been successful on a motion for summary judgment. It is also a textbook example of how slow the legal system can be, with the court decision coming eight years after the employee was fired.

The plaintiff was hired as a social worker in June 2004 and was notified that he needed to successfully complete a “ten month working west period.”  His first performance review, about 10 weeks in, was generally favorable.  By December, though, he was transferred to a new unit and was required to prepare documents to be filed in court and attend court proceedings.

Continue Reading Appellate Court Upholds Summary Judgment for Employer

Last year, I posted about a disability discrimination that was remanded, in part, back to the Superior Court level.   Would this result in at least a partial victory for the employer?  And more importantly, what would happen on a remand to the lower court?

I noted back then the Court did uphold “most of a $500K+ verdict against the employer but also sen[t] part of the case back for further consideration. The case has a long and tortured history and also a complicated background. Frankly, it’s a mess to recap in a blog post.”

So, what happened to this case (Tomick v. UPS) on remand?  Well, the case did not settle — as many cases on remand often do.  Rather, the lower court ultimately had to decide two larger issues.

  1. The Superior Court awarded postjudgment interest on the award that was upheld by the Appellate Court.  For a negligent infliction of emotional distress claim with a verdict of $300,000, the court awarded the statutory interest provision of 10 percent a year — or $82.19 per day.  After nearly two years of post-verdict litigation, the interest awarded is about $58,355.You may be surprised by that high rate given that you can’t even get 1 percent interest on your checking account, but the interest has been set by statute since the late 1990s, when the interest rates were much higher.(On another portion of the damages, the court awarded a much lower rate of 3 percent postjudgment interest.)
  2. Second, the court  looked at the issue that was remanded (or sent back) by the Appellate Court on whether the employee was “qualified” for his postiion on the date the adverse employment action decision took place.   This was important to the employer because, on remand, it still had to try to overturn a jury verdict.On this issue, the court found that there was still enough evidence in the record to support the verdict in favor of the employee — even using the proper standard articulated by the Appellate Court.

Thus, for the employer, the remand brings little solace.   For employers who don’t think they can ever lose a case, the case is a vivid reminder of both the costs of litigation and the costs of a verdict.

Not all cases have happy endings for employers.  Even those on remand from an appellate court. But the case is now back on appeal to the Appellate Court.  Maybe the final chapter has yet to be written.

With apologies to P!nk (and her hit, “Just Give Me a Reason”), a new court decision gives new meaning to the phrase. 

Photo Courtesy Wikimedia Commons

Before we get to that, longtime readers of the blog will no doubt be familiar with the burden-shifting analysis that courts use to analyze discrimination cases. 

First, the employee must meet a “prima facie” case; in essence, for items that show a possiblity of discrimination. Next, the employer must put forth (not prove) a legitimate non-discriminatory reason for the employment decision at issue.  If that happens, then the employee must prove that the reason is a pretext, or coverup for the real reason: discrimination. 

In Connecticut, discrimination cases typically follow federal law.  A new Connecticut Appellate Court case (officially released on June 18, 2013), in Callender v. Reflexite Corp. has attempted to clarify one lingering issue relating to a non-discriminatory reason. 

Suppose an employer provides three reasons for the business decision. Does the employer need to provide support for all three? Or is a plaintiff’s failure to show that one of the reasons is false sufficient to defeat a discrimination case?

In Callender, the plaintiff alleged that the employer proffered three reasons for discharging the plaintiff (the elimination of the plaintiff’s position, the plaintiff’s inability to work, and the lack of light dutywork available), but that the lower court looked only at the first reason advanced by the defendant and failed to consider all three reasons.

The defendant argued that the court properly determined that it was undisputed that the ‘‘the plaintiff’s employment was terminated only after a company-wide restructuring resulted in the elimination of her position” and that the plaintiff had acknowledged that fact too. 

The court said that was enough.  It was “beyond dispute” that there existed a legitimate nondiscriminatory reason for the defendant to have terminated the plaintiff’s employment—her position was being eliminated:

Although the plaintiff contends that the court was required to look beyond this reason and examinethe additional reasons or explanations given by the defendant for terminating the plaintiff’s employment, we conclude that it suffices that the defendant set forth one legitimate nondiscriminatory reason and that the court was not required to examine every reason or explanation set forth by the defendant as long as it met its burden of producing one legitimate reason.

For employers, this decision provides some incentive to document all the reasons for an employee’s termination — not just the “best” reason. If the court’s logic is to be followed, then the employer would need only provide undisputed support for at least one of those reasons at summary judgment. 

The case rests on several other grounds as well, including addressing the issue of whether an employer’s selection of an age-limit for a voluntarily early retirement plan is proper as well. 

 

The Connecticut Appellate Court yesterday released two notable employment law decisions. They won’t become “official” until April 30, 2013, so you have some time to digest them.  I’ll cover one today and leave the other for a future post (though if you’re really curious you can read it here.)

To me, the more interesting of the two is Langello v. West Haven Board of Education, which decided an issue that you would think had long since been decided. But this is Connecticut; appellate court guidance is few and far between.

The issue: How do both the Teacher Tenure Act and Connecticut’s Fair Employment Practices Act (which prohibits discrimination on the basis of, among other reasons, disability) co-exist with each other and what is the interplay between the two?

Why is this important? Because the Teacher Tenure Act provides that a tenured teacher may be discharged for a “disability” or “other due and sufficient cause”.  Thus, put another way, can a school district fire a teacher because she has a disability without violating the state law prohibiting discrimination on the basis of disability?

To this, the court answers “yes” so long as the proper questions have been answered.

In keeping with the public policy that prohibits discrimination on the basis of disability, and our Supreme Court’s analysis of the legislative intent behind § 46a-60 (a) (1), we conclude that any teacher who is terminated pursuant to the Tenure Teacher Act enjoys the protections of the Fair Employment Practices Act.

A contrary conclusion—that a tenured teacher who is discharged from her employment because of her disability pursuant to § 10-151 (d) (4) is outside of the protections of § 46a-60 would thwart the purpose of the Fair Employment Practices Act.

To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10-151 (d) must be afforded the protections of § 46a-60. A board of education, if it seeks to terminate a teacher’s employment pursuant to the Teacher Tenure Act for reason of a disability, must follow the mandates of the Fair Employment Practices Act and show that the teacher was unable to perform the essential functions of her profession with or without reasonable accommodation.

As to the application to the case at hand, the court fairly easily disposes of the teacher’s claim that the employer failed to show that she could not perform the essential functions of the job with or without a reasonable accommodation.

What’s the takeaway here?

For school districts, this case is a crucial one. Any attempt to invoke the provisions of the Teacher Tenure Act by terminating a teacher for a disability, should be reviewed carefully to determine if the employee can perform the essential functions of the job with or without a reasonable accommodation. Without that analysis, school boards are leaving themselves open to a challenge of the type raised in this case.

Sometimes, cases that seem like a no-brainer are anything but.  Just ask the Town of Stratford which finally won an appeal to the Connecticut Appellate Court.

The case, Stratford v. American Federation of State, County and Municipal Employees, Council 15 (download here), will be officially released next week. 

Firing for lying? Caution ahead

The case arises from the town’s termination of a police officer.  After suffering an epilectic seizure and striking two parked cars, the officer was requested to go to a physician for a fitness for duty exam after his own physician cleared him for work.  

After the independent medical exam, the employer’s HR director “discovered discrepancies between the report and the medical information supplied to the town by [the employee’s] personal physician.”

The employer then charged the employee with violating police department policy for lying during the independent medical examination and he was subsequently terminated after a hearing.

The case went to arbitration. For those who are skeptical of arbitration, you can imagine what happened next.

The arbitration panel reinstated the police officer concluding that termination was “excessive” and that “lying about his physical and mental condition to doctors that could return (or prevent) [him] to work is understandable because [he] wants [his] job back.”

The employer moved to vacate the arbitration decision. Notably, its rationale was limted to police officers, arguing that Connecticut public policy encourages honesty by police officers. The Superior Court disagreed, but the town found a friendlier audience in its appeal to the Appellate Court. 

We agree with the town that these authorities plainly demonstrate a clear public policy in Connecticut in favor of honest police officers and, consequently, against lying by police officers in connection with their employment.

As a result, the Court overturned the arbitration result and the termination is allowed to stand. (No word yet whether this will be appealed to the Connecticut Supreme Court.)

What does this mean for employers? Two things. Continue Reading Lying to Doctors for Fitness for Duty Exam Can Still Get You Fired… But Only If You’re a Police Officer