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

A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

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Do you like tricks or treats? Depending on your perspective, you'll either find something to like or dislike about a decision just issued by the District Court of Connecticut. 

Judge Vanessa Bryant -- who has been busy issuing decisions and posting them online seemingly every few days -- granted a summary judgment motion by an employer, where the employee had claimed that she was retaliated against for filing a discrimination claim the prior year.  The court found no temporal link between the complaint and the "adverse employment action". 

In Anderson v. Department of Children & Families, State of Connecticut, (Civil Action No. 3:05-cv-00167) (October 30, 2007), the Plaintiff had previously filed discrimination claims in both federal court and the CHRO in 1996 and 1997 (Her prior discrimination claims were dismissed in 1999). 

According to the decision, in 2002, Elizabeth Anderson filed a new charge with the CHRO claiming race discrimination and retaliation. In late 2003, her employer, Department of Children & Families (DCF) placed her on administrative leave and investigated her for violating DCF policy. DCF ultimately reprimanded her and ordered her to return to work on March 12, 2004. She then filed suit in federal suit claiming claiming that DCF’s investigation and reprimand constitute retaliation. DCF countered that the investigation and reprimand were unrelated to Anderson’s CHRO complaints.

DCF ultimately moved for summary judgment submitting a memorandum of law and a statement of undisputed facts stating, among other claims, that the temporal proximity between the CHRO complaint in 2002 and the alleged retaliation in 2003 was insufficient to establish retaliation.  The Plaintiff submitted her opposition brief (and somehow also claimed summary judgment as well, though the court later dismissed that as "moot".) 

The court agreed with DCF:

As to the final requirement of a prima facie case, Anderson must show a causal connection between her protected activity—her 2002 CHRO complaint—and the adverse employment action—DCF’s investigation and reprimand in late 2003. Anderson relies on the concept of temporal proximity to establish the necessary causal connection. However, “[t]he cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close . . . .” Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing cases holding that three or four months between the protected activity and the adverse action is insufficient to establish causality in the absence of other evidence). In the present case, if DCF intended to investigate and reprimand Anderson in retaliation for her 2002 CHRO complaint, it could have done so much earlier than late 2003. Anderson has failed to satisfy the final requirement of a prima facie case.

The court's reasoning is an interesting use of logic and one that is used by employers in defending itself in other cases too. Employers often suggest: If I wanted to retaliate, why would I wait a year to do so? The court here, at least, found that logic convincing enough to throw out a retaliation claim.  That is even more important here because the plaintiff had previously filed discrimination claims as well. If there was a case where an employer could be assumed to be "angry" for all the claims filed by the Plaintiff, this would be one. But the court refused to bite.

For employers considering employment action against employees who file discrimination claims, the case provides some support for the proposition that it can still take such action after a sufficient amount of time has passed. How much time? Clearly here, 15 months was enough. Could it be shorter? Certainly and the court's reference to a Supreme Court case of 3-4 months suggests that.  

Avoiding retaliation claims should be a key concern for any employer who has had an employee file a discrimination clam. But the employer should not run scared out of each and every employment decision it needs to make. With a bit of a time buffer and more support for the decision, an employer can reduce the risk of liability on an inevitable retaliation claim. 

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