Back in August 2012, I reported on a new lawsuit filed by the Town of Shelton which claimed that the CHRO was improperly denying Shelton its Due Process Rights by not allowing a federal jury trial on related federal claims and by not providing for discovery.  Ultimately, it challenges Conn. Gen. Stat. Sec. 46a-58 under the Supremacy Clause of the Constitution.

What’s happened since?

Well, the case has gone through an amended complaint and a motion to dismiss, for one. Now, 14 months later, the State has filed a new motion to dismiss to challenge the complaint.

The motion raises a number of alleged deficiencies in the complaint including that the town does not have standing to challenge the constitutionality of a state statute and that the town has not alleged an injury in fact.  It goes on to raise other issues such as ripeness, mootness, and the Eleventh Amendment’s bar against such suits.

You can download the State’s motion here. 

The court has now scheduled a telephonic status conference for November 15, 2013 to discuss the case in general and Shelton’s response to this motion is now due on December 2, 2013.  Stay tuned for more developments.

Shelton v. Collins – Motion to Dismiss by CHRO

A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws. 

In the lawsuit, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing. 

Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.

There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:

  • First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
  • Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012.   Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”  
  • On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied.  When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
  • The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).”  It cites to the City of Shelton lawsuit that I covered back in August 2012.

The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly.  The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.

For employers, the lawsuit should be carefully watched.  Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions.  Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage. 

Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.

(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so.  I have no involvement, however, in the above proceeding.)

NERAC v. CHRO

Over the years, I’ve openly questioned whether the CHRO has been improperly awarding emotional distress damages and attorneys fees in employment discrimination claims.  

Indeed, back in February 2009, I noted “Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases.”

And one of my law partners followed that up in October 2010, also discussing the disconnect between what the courts have said, and what the CHRO has been doing. 

Then in June 2011, the Connecticut Appellate Court dropped a footnote in a case that again called into question the CHRO’s practice.

Last week, the City of Shelton filed a federal lawsuit (download here) against the CHRO challenging that practice. 

The suit, which was first reported by the Connecticut Law Tribune this week (subscription needed), claims that the CHRO is improperly denying Shelton (and other defendants) their Due Process Rights because the case will also address federal damages too without a right to a jury trial. 

Interestingly, the case presents a bookend to a Second Circuit case from 2006 (Nestor v. Pratt & Whitney — of which I was involved with earlier in my career), which allowed a plaintiff to proceed in federal court on her Title VII claims after a CHRO public hearing because emotional distress damages and attorneys fees were not available at the CHRO.  

Indeed, in that case, the Second Circuit noted matter of factly that the “CCHRO was not authorized to award, including compensatory damages (presumably in addition to-and not duplicative of-the back pay already received), punitive damages, attorney’s fees, and prejudgment interest.”

The Shelton case is still very early in the process but if the case proceeds to a decision, it could help provide some more clarity to an area that has become quite unclear over the last 15 years.  Employers should certainly watch this case closely.

City of Shelton v. CHRO