Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Attorneys can go months -- if not years -- without Supreme Court guidance on employment law issues. But today, the Supreme Court issued its second employment-law related decision in as many days.

However, for the second day in a row, the Supreme Court issued a decision that, at the end of the day, isn't really about employment law at all, but something else. In today's opinion, the Supreme Court really examined what type of deference  should be afforded to the EEOC in construing the federal statutes about what is a "charge" of discrimination under ADEA (the federal age discrimination statute).

In Federal Express v. Holwecki, the Supreme Court -- by a 7-2 margin -- decided the issue is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit. Here, the Court found that the EEOC had some regulations and internal directives on the subject and is therefore entitled to some "measure of respect" as to what constitutes a charge.  It also provided that the EEOC acted reasonably in interpreting an intake questionnaire as a "charge".  

Workplace Prof has his early thoughts too and a general discussion of the case.

The case's outcome is good on two levels for employment discrimination plaintiffs. First, it allows these Fed Ex plaintiffs to get to the substance of their complaint and second, it will force the EEOC to come out with clear regulations on what counts as a "charge" in the future so the parties are able to structure their future conduct accordingly and not be prejudiced by a shifting rules.

And finally, I have to say that this well-reasoned majority opinion restores my faith somewhat that this court is not completely in the bag for employer interests. Not completely.

A few months ago, in a post entitled "'Supreme Court to Decide Age Discrimination!'" Is This Important To Employers in Connecticut",  I indicated that for employers in Connecticut, this case would not amount to much.  And since its not often an attorney gets to say, "I told you so", I'll just let my prior post speak for itself.

[For] employers and HR professionals, there is a remaining question that has not yet been answered so far: "Should we worry about this employment law case?" The answer is: Not that much.

For Title VII and ADA cases, this case will have no real impact. In those types of cases, an employee who wants to sue in federal court must first get a right to sue letter from the EEOC. For those cases, an employee's charge must be processed in a meaningful fashion.

ADEA (age discrimination) plaintiffs do not face a similar hurdle; rather the charge must simply be filed and the employee must simply wait 60 days before filing a federal claim; no right to sue letter is needed. Thus, the concern expressed by FedEx and by the U.S. Chamber of Commerce in their amicus brief, that employers may not receive the same type notice of ADEA claims, is certainly possible. In Holowecki, FedEx's problems were compounded by the EEOC's admitted failure to follow statutorily mandated procedures to notify the the employer of the complaint.

As a practical matter, nearly all of the ADEA claims filed, particularly in Connecticut, are handled in the normal course of business -- that is, that the employee files a discrimination charge, and the employer is notified of that charge. Even if the EEOC only fills out an intake questionnaire, the EEOC is mandated to followup on it typically.

Connecticut, which has a work-sharing agreement with the EEOC to process EEOC charges that are cross-filed in the state, goes one step further. The CHRO will send out notices to employers upon receipt and initial processing of an age discrimination suit. Thus, as a practical matter, it is highly unlikely that an employer in Connecticut will not get notice of the charge. Because virtually all discrimination charges are filed in the normal course of business, the situation that arises in Holowecki is simply not likely to repeat itself with any frequency, particularly within Connecticut.

For that reason, a Supreme Court's decision in Holowecki -- while perhaps interesting in a "technical" way -- is not likely to have any significant impact for employers in Connecticut. Unless the Supreme Court deviates from its typical path and sets forth new criteria for handling such claims, the case ultimately may be newsworthy only to employment law bloggers such as myself.

And in fact, the Supreme Court did not deviate from its expected path.  The court found that although the employer had good reason to complain about the way the EEOC treated the matter, it was not entitled to a decision in its favor. Ultimately, the Supreme Court warned, the EEOC and other agencies are responsible for cleaning up their regulations and practices:

Here, because the agency failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process.

The employer’s interests, in particular, were given short shrift, for it was not notified of respondent’s complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect.  Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.

This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency.

Justice Thomas - fresh off of being in the majority in yesterday's decision -- writes a dissent that basically mocks the majority for its failure to outline any real standards in the case:

Today’s decision does nothing— absolutely nothing—to solve the problem that under the EEOC’s current processes no one can tell, ex ante, whether a particular filing is or is not a charge. Given the Court’s utterly vague criteria, whatever the agency later decides to regard as a charge is a charge—and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case. The Court’s failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency.

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After a long day of taking depositions on Tuesday, there's nothing like coming back to my computer with dozens of e-mail messages and hundreds of posts to read on the RSS feeds.  And, when I saw that the U.S. Supreme Court decided an employment law case, my brain got excited for a brief moment (and frustrated that I spent a day sitting in a conference room).

After all, when "The Nine" (good book by the way) speak, SURELY they must have something important to say. 

But alas, the decision issued on Tuesday by the Court is a let down. Don't get me wrong, I expected the results (though did not go into length about it as the Workplace Prof did), but I was hoping for something more dramatic than the nine-page, unanimous, color-by-numbers and connect-the-dots decision by Justice Thomas.

The SCOTUS Blog has, as usual, the most concise summary about the case, Sprint/United Management v. Mendelsohn.

[The Supreme Court] overturned a federal appeals court ruling on how courts are to treat ”me too” evidence — workplace discrimination testimony by workers other than the one raising a job bias claim.  In a unanimous decision, written by Justice Clarence Thomas, the Court found the Tenth Circuit Court in error in deciding on its own, without remanding to a trial judge, that such evidence is admissible.

Federal rules, the Court said, “do not make such evidence per se admissible or per se inadmissible.” It is up to District Courts, in trying job bias cases (here, an Age Discrimination in Employment Act case), to sort out the fact-intensive nature of such evidence. “Whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” the opinion said.

Since other employment law bloggers have already dissected what's left of the decision, perhaps its best to let them start to summarize the case.  Here's the rundown:

• Michael Fox at Jottings by an Employer's Lawyer calls it "[T]he equivalent to a judicial mulligan"
• Law Memo says the case "was not so much an employment law case as it was an evidence case. It turned on the proper role of the trial courts versus the appellate courts in applying the Federal Rules of Evidence."
• Michael Moore, at the Pennsylvania Employment Law Blog indicates that the true issue that will be at the forefront of the practice is whether employees are "similarly situated" to the employee who has brought the suit.
  
• Workplace Prof indicates that there is "dicta" language (which for non-lawyers out there means "non-binding") in the opinion that should be watched and calls the decision "a moral victory for ADEA plaintiffs."
• Jon Hyman, at Ohio Employer's Law Blog, has another good analysis in which he states, "This decision makes a lot of sense. It skirts the ultimate issue of whether "me, too" evidence is admissible or inadmissible because that decision should be fought in the trial court, which is in the best position to examine the evidence and weigh its relevance and admissibility." 
  
• The Laconic Law Blog also finds the Court's decision unsatisfying and says the "opinion leaves many questions about the admissibility of so-called “me-too” evidence unanswered."
• Not to be outdone, John Phillips at The Word on Employment Law, stated that the case the Court "decided today was hyped, but the Court’s decision didn’t deliver on the hype. Of course, the Court wasn’t hyping it." John closes by hoping that "Maybe the next decision will bring more excitement with it."
• Perhaps Will Schendel, of Alaska Employment Law Blog had it right when he didn't even waste time analyzing the case and said the equivalent of "ditto" to the analysis of the Workplace Prof. 

As you can see, lots of people posted on the case on Tuesday.

For employers, though, the question remains -- what's the practical takeaway from this decision?

In my view, nothing. The Supreme Court's decision, in essence, is just telling lower courts that sometimes evidence of discrimination of other employees is admissible. And sometimes it isn't.  For employers making employment law decisions, this case will have no effect on how it will treat its employees.  After all, employers don't go into a day thinking -- "hey, I'll treat Bob nice because if I don't, then Jim is going to use how I treated Bob as evidence in his own discrimination case".

The words of wisdom spouted by others remain true today: Treat employees fairly and it will nearly always reduce the risk of lawsuits and liability. 

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My post from last Friday's ERISA decision in Amara v. CIGNA Corp. has drawn quite a bit of interest. Since my post over the holiday weekend (from vacation) was intended merely as a brief summary until this week, it has drawn sufficient attention that a few points bear further elaboration, including disclosure of my knowledge of one of the class representatives.

• First, I know one of the named class representative as a longtime family friend. Other than being aware generally of her involvement, we haven't discussed the case in any specifics and I didn't discuss the decision with her either.  I don't believe this impacts my reporting of the case but readers should be aware of that fact.
  
  
• Second, in my discussion of the age discrimination claim, one reader has suggested that I may have oversimplified the judge's rationale. I can't dispute that since, after all, I'm attempting to reduce a 122 page decision to a few paragraphs.  I did not, for example, discuss whether this case suggests "that more and more courts are buying into the Easterbrook line of argument that cash balance plan conversions are generally not age discrimination" as Workplace Prof did.  As I have suggested, however, readers should review the entire decision for its analysis.  But this additional quote from Judge Kravitz bears review too:
  
             Finally and importantly, the Court agrees with CIGNA that what Plaintiffs see as age
  discrimination is merely the transition from one plan that was heavily age-favored to another plan that is still age-favored but less so. In the Court's view, that transition is not age discrimination.
  
  
• Third, in my discussion of the remedies that may be appropriate, I pointed out that the court suggests at one point that only injunctive relief may be appropriate against CIGNA (versus the plan administrator) in one of the claims.   It is hardly conclusive, however, and it may be that the court fashions a remedy that is more far-reaching on the notice and disclosure provisions.  The court left a discussion of remedies (i.e. damages) for further briefing.  There are also individual claims that need to be resolved as well.
  

The Pension Protection Act blog has another discussion of the case with some additional points that bear review.  And to review other original source documents, readers can go to  Attorney Stephen Bruce's webpage on the actual lawsuit as well.   And for readers that may question whether the attorneys, like Stephen Bruce, did their job well, I'll quote directly from the judge's opinion:

Counsel for each side distinguished themselves throughout this case by their skillful advocacy, professionalism, and civility. The Court is grateful to each of them.

The decision has lots of little items like this to review.  The best thing about a blog like this is that readers can and should decide for themselves what it ultimately means.

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Difficult, time-consuming, and expensive litigation with uncertain results – such as this case represents – is assuredly not a sensible way to manage the Nation's retirement system for either employers or employees. Sadly, at least for now, litigation appears to be the only option available to them.

In a 122 page opus on ERISA law (download here), District Court Judge Mark Kravitz has issued a fascinating and thorough decision, Amara v. CIGNA Corp. et al analyzing one company's change in 1998 from a traditional defined benefit plan to a cash balance plan.  The decision -- despite its length -- is a fairly easy legal read (as easy as reading a legal decision can be, of course) and does a good job at explaining the different theories that have developed in such a conversion. 

I'll quote from the beginning below, but the keys to the case are:

1) The conversion of CIGNA's retirement plan to a cash balance plan did not discriminate against older workers.  As the court stated, "To the contrary, the CIGNA Plan provides greater annual benefits to older workers who are similarly situated to younger workers."  The court wisely observed that any apparent difference in benefits from a worker retiring in 2015 to a worker retiring in 2030 is due to the "time value of money" or interest, not discrimination.

2) CIGNA can, however, be liable for its failure to provide proper notices to the retirees and failure to explain things in an easy to understood manner.  The court seems to suggest that only non-monetary relief may apply in such circumstances, but has left the issue to further briefings.

For Connecticut, the decision ought to become required reading for those interested in ERISA issues such as cash balance plan conversions, anti-backloading and non-forfeiture rules, and plan descriptions and disclosures. 

 I'll leave it to Judge Kravitz's own words to describe the importance of these issues:

Since the mid-1980s, hundreds of U.S. employers have converted their traditional defined benefit pension plans into what are known as "cash balance" retirement plans. In fact, according to the Pension Benefit Guaranty Corporation, over 1,500 cash balance plans and other similar hybrid plans were in existence as of 2003, providing pension benefits to over 8 million participants,approximately one-quarter of the total employee population covered by defined benefit plans.

Like many other corporations, CIGNA Corporationconverted its traditional defined benefit plan to a cash balance plan, in 1998.Despite their popularity among employers, cash balance plans have spawned considerable litigation. This case is yet another in a long list of cases challenging an employer's conversion to a cash balance retirement plan under the Employee Retirement Income Security Act ("ERISA").

Plaintiffs consist of a class of current and former CIGNA employees who participated in CIGNA's traditional defined benefit plan before January 1, 1998 and have participated in CIGNA's cash balance plan since that time. Plaintiffs and Defendants raise numerous class, sub-class, and individual claims and defenses. At the risk of over-simplification, however, the central issues in this case may generally be described as follows:whether CIGNA's cash balance plan is age discriminatory or otherwise violates certain non-forfeiture and anti-backloading rules under ERISA; whether CIGNA gave the notices and other disclosures required by ERISA; and whether the information CIGNA provided its employees about the conversion and the cash balance plan in summary plan descriptions and other materials satisfied ERISA's requirements.

The questions raised in this case are vitally important to both employers and employees (and their families). Given how profoundly significant retirement plans and planning are to the great majority of Americans – employees and employers alike – this is one area where the answers should be clear, explicit, and definite. Regrettably, however, the answers to the issues raised by these parties are not entirely clear, in large measure due to the fact that ERISA, and the regulations under it, are often lamentably obscure – to describe them as a tangled web does not do them justice. On top of that, there are conflicting decisions around the country on identical issues, making planning for nationwide enterprises impossible. ...

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If there is something that can cause an attorney nightmares, it is the possibility of missed deadlines.  Recently, there was an attorney in California who missed a court deadline -- BY ONE MINUTE -- costing his client over $1 million in legal fees. 

This morning, that nightmare is a reality for the Town of Bloomfield, courtesy of a decision by the Connecticut Supreme Court.  According the court decision, the Town of Bloomfield missed the deadline for filing for an appeal of an arbitration award by two days.  The court said, in essence, that the appeal should have been filed within 30 days of the decision because the basis for the appeal was that the award violated public policy. In such a case, Conn. Gen. Stat. Sec. 52-420 -- with its 30 day limit -- applies.

Because the challenge to the arbitration award was untimely, the Court essentially upheld the award which ordered reinstatement  -- without back pay -- of a Bloomfield Police Officer who was terminated in June 2004 for allegedly lying on an arrest warrant application and later to internal affairs officers, according to a report in today's Hartford Courant. 

Now, if this case sounds familiar, its because a few months ago, I reported on a CHRO decision which awarded the same police officer back pay for the period of time when he was out of work. The CHRO concluded that age discrimination played a role in his termination and thus warranted an award.

Would filing the appeal of the arbitration award have made a difference in the ultimate outcome. That's unclear to an outside observer.  But what is clear is that the Town of Bloomfield is essentially out of options. 

As employers in Connecticut consider terminating employees, the case is also a lesson that deciding to terminate an employee may be only the beginning of a process, not the end.  And for all the time and effort that may go in to preparing to terminate an employee, the same cautiousness and analysis should be applied afterwards as well.  Understanding the answers to such questions as, "Is there an arbitration provision? If so, are there deadlines associated with it? Are there other internal grievance procedures that need to be followed?" will assist an employer in  getting resolution on some issues -- and sleeping better at night.

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The days before Thanksgiving are busy.  Here are a few posts I flagged over the last week or so that you might have missed.

• Evil HR Lady has a provocative post about whether lawyers make good human resource professionals in a post entitled: Evil Lawyers, Evil HR People, It's All the Same.  As I commented on the site, I think that some lawyers can succeed in this profession based on their experience and their ability to boil complicated issues down to easy-to-understand concepts.
• John Phillips, of  The Word on Employment Law, has a good post on issue-spotting in age discrimination matters and straightforward solutions to them. Its a good topic and one I hope to followup on in the upcoming days.
  
• Jon Hyman, of the Ohio Employer's Law Blog, has a notable update on English-only laws for the workplace.   It's particularly timely in Connecticut where a lawsuit was filed last week by a group of immigrants challenging alleged workplace policies against a Connecticut employer. 
  
• Workplace Prof has a post about a recent study that I had meant to write about that links a person's initials with their success in school and in the workplace.  Turns out , according to the study, that "although most students want As in school, those whose names begin C or D have lower grade point averages than students whose names begin with A and B—with an even greater effect if they say they like their initials . . . ."  If your workplace grades employees with an "A", "B" or "C", it suggests that an employee named Ann or Al will do better than Charles or Cecilia.  I suspect there will be additional followup on this in the months and years to come.
• The Transgender Workplace Diversity blog had a comprehensive blog post as part of the Blawg Review for the week. It cited this blog, but more importantly, it had numerous other posts about employment-related issues. I would highly recommend it to catch up on topics as diverse as USERRA and veteran rights, to -- not surprisingly -- transgender discrimination issues.
• And finally, Frank Roche of the KnowHR Blog has a simple and straightforward post with the advice that no one should forget: Work Hard and Be Nice to People.  As we approach the holiday season (or are deep in the midst of it according to the number of local radio stations playing holiday music 24/7), it's pretty good advice and one that can be followed year-round.
  

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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. 

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"You can't teach a old dog new tricks."

In discrimination cases, analysis of whether a remark like this is probative has typically moved into whether the comment was a "stray" remark.  Indeed, Justice O'Connor's concurrence in the Price Waterhouse v. Hopkins case in 1989, in fact, talked about whether "stray remarks" could satisfy a plaintiff's burden to prove discrimination. 

A new District Court of Connecticut decision released this week -- taking the lead of some comments by the 2nd Circuit -- has now refused to categorize certain comments as "stray" or not .  Instead, the court has applied a four factor test from a Southern District of New York case that could set the tone for other District Court cases in Connecticut. 

In Koestner v. Derby Cellular Products,3:06-cv-00188 (VLB), the Plaintiff argued that his employment had been terminated because of his age.  Judge Vanessa Bryant, a relatively new appointee to the federal bench, held that the Plaintiff presented sufficient evidence to defeat the company's motion for summary judgment.
 
Key Facts: 

• The Plaintiff alleged that the Company President stated during a managers’ meeting that the company was “getting killed on insurance premiums due to the average age of the company’s employees” and that the company “had to get younger.”
  
• He also alleged that the company's CEO told him that the company “had to do something about” a 60-year-old employee in poor health. That employee and the Plaintiff were later terminated on the same date. 
  
• Lastly, he alleged that when his supervisor terminated his employment, he told the Plaintiff that “someone more energetic” would be better suited for the job.

Court's Analysis Denying Summary Judgment:

The Court, in determining whether the Plaintiff was terminated because of his age, held that it "does not need to determine whether the remarks by [the executives] are 'stray.'" Instead, the Court said it would decide "whether the remarks are sufficiently probative of age discrimination such that the jury could reasonably find that the Plaintiff was terminated because of his age." 

The Court then went on to apply four factors to determine the probative nature of the comments:

1. who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker;
2. when the remark was made in relation to the employment decision at issue;
   
3. the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and
   
4. the context in which the remark was made, i.e., whether it was related to the decisionmaking process.
   

Ultimately, the court applied the four factors and found that the first two comments could be probative of age discrimination but that the "energetic" comment was not.  (Obviously, the court was not ruling on the underlying merits of the claim, only whether the case should proceed to trial.)

For employment lawyers in Connecticut, this decision provides a workable framework for analyzing such comments.  It is admittedly much easier to apply four factors than to determine, in the abstract, whether such comments are probative or not.  But whether this test will ultimately hold up on appeal remains unanswered for now.

At the same time, this decision further emphasizes the importance that alleged discriminatory remarks can have on a case. Here, the Plaintiff's evidence to defeat summary judgment on the ADEA claim rested solely on the alleged comments.  For employers, The case demonstrates that  what they say can have tremendous implications down the road, even where the comments may be otherwise innocuous.

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