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

It keeps going and going and going.....

When I learned of a new lawsuit filed in federal court yesterday by former CHRO Regional Manager Femi Bogle-Assegai arising from her termination back in April 2001, I couldn't help but think of the cliched advertisement of the Energizer Bunny.

First, the quick background as described by the U.S. Court of Appeals - Second Circuit in a November 2006 decision:

Ms. Bogle Assegai served as Regional Manager at the CHRO for several years before her termination in the spring of 2001. In September 2001 -- 186 days after she was notified of her termination -- she filed a claim with the Equal Employment Opportunity Commission alleging, among other things, race discrimination.  There is no reference to her filing a similar claim at the CHRO.  She received a right to sue letter from the EEOC and in December 2002, she filed a lawsuit in federal court.

The State moved for summary judgment on a variety of grounds including the fact that Ms. Bogle-Assegai missed the statute of limitations (or the deadline) for filing race discrimination claims, which was 180 days.  The District Court granted the motion in a decision available here.  Ms. Bogle-Assegai appealed.

At the Second Circuit, she claimed that a work-sharing agreement existed between the CHRO and the EEOC that should have extended the time period for filing discrimination claims (why a CHRO Regional Manager would not know about the existence or non-existence of the agreement is an unanswered question of the case).   The EEOC denied the existence of such an agreement.  The Second Circuit rejected such claims in a November 2006 decision found that Ms. Bogle-Assegai had not raised that issue before:

In sum, faced with a summary judgment motion expressly asserting that her charge had not been dually filed with the state agency and that the 300-day filing period therefore did not apply to her claims, Bogle-Assegai had every incentive and opportunity to contest that argument. She made no argument to the district court in opposition. And in arguing to this Court that the 300-day period is applicable, she has proffered no reason for her failure to make that argument in the district court and has pointed to no evidence that would support her factual premises. In the circumstances, appellate consideration of her unpreserved argument is unwarranted. We affirm the district court's dismissal of Bogle-Assegai's Title VII claims on the ground that her administrative charge was not timely filed.

She then filed a petition for certiorari with the United States Supreme Court.  That petition was rejected earlier this year.

Under normal circumstances, that would end matter. But this story does not end there.  Yesterday, Ms. Bogle-Assegai brought a new lawsuit against the state contending that her equal protection rights were violated. How so?

She contends first that the Second Circuit actually denied her first claim based on the state's "affirmative statement that no work sharing agreement was in existence at the time of Plaintiff's filing of her EEOC complaint". (Paragraph 16) Readers can decide whether this is accurate.

She then contends that based on a Freedom of Information Act request, she learned in November 2007 that the CHRO "continued to accept complaints and forward them to the EEOC with the notation that their action was 'pursuant to the work sharing agreement'." (Paragraph 18.)  She contends that she was "singled" out because her complaint was also not filed pursuant to the "work-sharing agreement".

It appears on first glance that the situation she alleges is different than the facts of her case. Here, Ms. Bogle-Assegai only filed with the EEOC, not the CHRO, at least according to the court decisions, so her analogy may fall flat.  She also doesn't actually provide a copy of an alleged agreement, only that there was a notation on a document about such an agreement.

Regardless, however, don't be surprised if she ends up running up against another issue she had to address before: statute of limitations.  Add to that the theories of collateral estoppel and res judicata grounds (which prevent parties from retrying the same claims or issues) and the outlook for this lawsuit remains cloudy indeed.

How long will it keep going? Stay tuned.  But even Energizer batteries eventually run out of energy.

• Print
• Comments
• Trackbacks

Yesterday, I provided some highlights about the important case of Curry v. Allan S. Goodman, Inc. (can we all just agree to call it Curry v. Goodman?)   The case is the first appellate decision in Connecticut that applies the reasonable accommodation provisions found in federal law, to state law. The effect is that small employers in the state (3-14 employees) will now have an obligation to provide a reasonable accommodation to physically disabled employees.

So, how did the court get there? I'll explore in detail in today's post.  It's a little technical but for employment lawyers in Connecticut, the logic is key to understanding the result. 

Before I get there, though, I urge you to review the comments of yesterday's post in which Charles Krich, who submitted an amicus brief in the case, provided some further insights into the case. Very informative and I hope to address it further shortly.

First, the Supreme Court relied in an "agency deference" doctrine, similar to the U.S. Supreme Court's Chevron deference rulings. 

[T]he question has been addressed by the commission on human rights and opportunities (commission), which, pursuant to General Statutes §§ 46a-54 and 46a- 56, is charged with effectuating the provisions of the act. We traditionally have accorded deference to the time-tested interpretation of an agency charged with enforcing the provisions of a statute, provided that ‘‘the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable.

The Court goes on to note that the Connecticut Commission on Human Rights and Opportunities (CHRO) has "consistently interpreted" Conn. Gen. Stat. 46a-60 to include a duty to provide a reasonable accommodation for 12 years.  The Court then notes that various Superior Court cases have also followed this rule.

However, the Court then adds that this does not end the inquiry. Rather, the Court must then determine if the CHRO's interpretation is "reasonable".  In doing so, the Court applied its rules of statutory construction.

Now, those who have been in Connecticut for a while, know that in 2003 the legislature passed Conn. Gen. Stat. 1-2z to make sure that the language of the statute is examined first. That statute states:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

But, even though the statute contains no duty to provide reasonable accommodation, the Court does not find that to be an impediment.

When . . . a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by . . . § 1-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable. ...  In addition to the words of the statute itself, ‘we look to . . . the legislative history and circumstances surrounding its enactment, to the legislative policy it was  designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.

The Court also notes that federal anti-discrimination statute (and cases interpreting them) are also a proper resource for it. Although the statute "admits" that there is no reference to reasonable accommodation in the statute, the Court looks further to see if this would be an unworkable result.  The court first looks at language regarding a BFOQ.

[The statute] does include a bona fide occupational qualification (BFOQ) defense to discrimination—i.e., ‘‘except in the case of a [BFOQ] or need . . . .’’ General Statutes § 46a-60 (a) (1)... We therefore first consider the meaning of a BFOQ, namely, whether such qualification may be interpreted as either coextensive, or inconsistent, with a reasonable accommodation requirement for individuals with physical disabilities. As the court previously has recognized, a BFOQ is an all or nothing proposition that legitimately links the qualifications of the job directly to a protected traitunder the statute, thereby categorically excluding individuals in the protected class. ...

We determine then that the BFOQ defense and the duty of reasonable accommodation for employers of individuals with disabilities are neither
coextensive nor inconsistent. The statutory text does not speak to a duty of reasonable accommodation or other similar requirement. Nothing in the previous discussion, however, demonstrates that, by including a BFOQ defense, the legislature disclaimed a duty of reasonable accommodation.

Given its discounting of the BFOQ defense, the court then notes that it should look to other sources to determine the "intent" of the legislature.  The court notes some discussion in 1973 that suggests that the statute was intended to be broad and protect disabled people who are otherwise qualified for a job.  And the Court looks to other statutes passed by the legislature over the years that show its strong concern for protecting those with disabilities. 

And last, the court notes -- perhaps in an effort to justify its broad reading of the statute -- that other states have also imposed a reasonable accommodation, including some by "judicial gloss".  The Court therefore finds that the CHRO's interpretation is a reasonable one.

In upcoming posts, I'll look at the facts of the case, and the effect of this case on other disabilities. An interesting unanswered question is whether this would also apply to those with learning disabilities (which is a protected class in Connecticut).  Stay tuned.

• Print
• Comments
• Trackbacks (1)

In a few days, it will be Martin Luther King Jr.'s birthday, January 15th.  And next Monday, January 21, 2008, is officially recognized as the federal holiday as the third Monday in January.  It is also a state recognized holiday in Connecticut as well the other 49 states, in some fashion or another.   So, if you work for a federal or state employer in human resources, or otherwise, you are going to have a day off (obviously, our state police and others never get a  "day off").

Connecticut's Martin Luther King, Jr. Holiday Commission has historically had a ceremony that commemorates the day.  That continues this year and information regarding the ceremony can be found here and also here.  The Commission receives counsel and support by the CHRO and the statutory basis for the Commission is found here. 

The birthday has lots of symbolism in the labor and employment world.  Much of today's civil rights laws have their foundation in the Civil Rights Act of 1964.  I won't turn this into a history discussion or debate, but suffice to say that King's famous "I Have a Dream" speech and his actions both before and afterwards played a major role in the passage of this bill. 

If you are a private employer, odds have become greater over the years that you give your employees the day off.  A survey in 2007 reported that nearly one-third of large employers give the day off.  I would expect a similar number this year. 

So, the obvious question that I'm often asked is -- if it is a state and federal holiday, why do I have to work? The answer is fairly simple, however.  The United States (unlike some other countries) does not have any "national" holidays. Just because Connecticut or the United States recognizes the day as a legal holiday, employers are free to choose whether to remain open or closed. In case you are curious, the State Department, of all places, as an interesting summary of each of these ten federal days on their website. (In 2009, federal employees in the Washington D.C. area, will also get off January 20, 2009 as a result of "Inauguration Day.")

So, in essence, what the federal and state government does is merely a guide to private employers. . But if employers did not give off certain days, it is a sure bet that employees would flock to employers that did.  It would be hard to imagine an employer surviving with a motto of "No Paid Holidays! in their recruiting materials.

Ultimately, I believe that designating MLK Day as a holiday for private employers -- as with other federal holidays -- is a decision best left up to employers.  In essence, let the marketplace decide.   Certainly, giving the day off allows an employer to tout its commitment to diversity and civil rights with a little more force (though I'm hardly suggesting that giving the day off is a prerequisite for doing so.)  Some employers will instead fashion a compromise by giving employees some "floating holidays" for days such as this. 

Whatever your company decides, it's a good idea to explain to your employees the reasons for your decision. Feel free to post your company's decision below to give our readers some perspectives on the day.

• Print
• Comments
• Trackbacks

A few weeks ago, I posted about various issues that I believed the CHRO had and how they were being addressed (including a working group established by Governor Rell).  I've also posted on some lawsuits involving CHRO employees and claims of discrimination within the agency,

But the issues regarding the CHRO have been around for many years; they just seem to ebb and flow with the times.

For some historical perspective, there is a fascinating hearing in May 2006 by the Connecticut legislature on the CHRO.  Connecticut's Network, CT-N, keeps these hearings "on-demand" for viewing anytime (if only I could embed the video here, I'd be in heaven, but you'll have to settle for a link here to the video or you can download it directly here). 

State Senator Edith Prague presides over the hearing as Chair of the Labor & Public Employee Committee  As with any such hearing, there are moments of pure tedium (and its a bit long, so feel free to browse), but it also provides a different perspective on what some people have viewed as an issue with the CHRO.

• Print
• Comments
• Trackbacks

Former Connecticut Governor, William O'Neill -- who served during the 1980s -- passed away this afternoon.  He is the second former Connecticut governor to pass away in the last month. The Hartford Courant has this report:

William A. O'Neill, the one-time tavern owner and small-town Democrat who became the longest-serving Connecticut governor in nearly 200 years, died Saturday afternoon at his home in East Hampton. He was 77. ...

O'Neill was lieutenant governor on Dec. 31, 1980, when cancer forced the resignation of a dying Gov. Ella T. Grasso, a formidable politician with a national profile.

The new governor was underestimated by Republicans and even more so by a younger generation of liberal Democrats. But O'Neill was a tough insider who had won fights to become the House majority leader, chairman of the state Democratic party and lieutenant governor.

Over 10 years and 10 days as the state's 84th governor, the conservative O'Neill assembled a bright, ideologically diverse administration that poured money into education, health care and the state's long-neglected infrastructure.

His profile on the state's library can be found here.  Ultimately, one of the larger changes to the CHRO occurred in his term. 

Specifically, a flurry of complaints to the Governor about the slowness of the Commission's investigations led to the Governor's appointment of a task force in July 1988 to review the management and operations of the Commission. The task force report culminated in PA 89-332, which imposed a time frame on the investigation process and changed how commissioners and hearing officers were appointed.  That foundation is at the heart of the modern changes to the way the CHRO functions today.

A variety of online sources are available about him. One of the more fascinating is a series of oral interviews conducted with him, available on CCSU's website.  These "raw" interviews can be streamed here.  The first of them can be found here.

• Print
• Comments
• Trackbacks

A few days ago, I reported on the summary judgment decision of Tucker v. Journal Register East.  While the case is notable for its discussion of the whether an employee who expresses reluctance to testify has actually "participated" in a protected activity for Title VII purposes, the case also has a discussion of a claim arising from her First Amendment rights.

Now, your first question may be -- "I thought the First Amendment only applied to government employees.  Isn't she at a private employer?"  Well, in Connecticut, employees at private employer do have First Amendment rights; those rights happen to be dictated by a state statute, Conn. Gen. Stat. Sec. 31-51q.  That statute states:

Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution ..., provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages .....

There is, however, a limitation on the employee's rights.  Section 31-51q “applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen.”  Thus, if the employee is speaking on purely personal concerns, then the speech is not protected.

In the Tucker case, the court had to decide whether the employee, in relaying her reservations about testifying on the behalf of the company was speaking “as a citizen upon matters of public
concern” or “instead as an employee upon matters only of personal interest.”

The court, in denying the employer's motion for summary judgment, held that the employee's speech may constitute a matter of public concern, and therefore she may be entitled to relief under C.G.S. 31-51q.

A jury could reasonably find that Tucker’s speech “was part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.” Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d. Cir. 1993) (internal quotation marks omitted). Tucker’s speech relating to her impending testimony did not concern the terms or conditions of her own employment, but rather the change in her views regarding the merits of [another employee's] sexual harassment complaint before the CHRO. She was not speaking strictly from her role as an employee; a jury could believe that she was speaking as witness who was concerned about her testimony at an upcoming proceeding. ...[A] jury could believe that Tucker was not furthering only her private interest, but instead the interest of a fellow co-worker, whose allegations Tucker felt were more trustworthy. Tucker’s speech was not in response to any personal aggrievement.

Whether the employee will prevail at trial is, as always, an open question. But for employers, this case is another indication of the difficulty that exists in getting summary judgment on employment claims. 

Also noteworthy here is the fact that the employee's reluctance to testify (if that is, in fact, what happened) formed the basis of not one, but two separate employment claims -- even though that employee was not the victim of sexual harassment herself.

For employers dealing with non-testifying co-workers, this case illustrates the perils of taking any action against them. Seeking legal advice when disciplining or discharging such an employee may avoid the potential pitfalls that may arise.

• Print
• Comments
• Trackbacks

Last year, the CHRO was mired in a media mess.  Then Executive Director R. Hamisi Ingram was under attack by both employees and through legislative hearings regarding his leadership.  Eventually, he was let go.

But at the time, there was talk that several employees might bring a complaint or lawsuit regarding the way that they were allegedly treated.  So what happened?

Well, for starters, two employees did file suit in federal court earlier this summer. The Complaint, by Paula Ross and Valerie Kennedy, paints a picture of an organization run amuk with those who are charged with protecting against discrimination, as being those who allegedly did the discrimination.   Other prior workers at the CHRO have tried similar allegations regarding prior administrations without much success, so it remains to be seen what will happen here. 

Not surprisingly, the State denied the allegations in its response and set forth several affirmative defenses, including a statute of limitations defense.  It filed its answer last month.  Last week, the parties filed their planning report.  In it, the parties indicate that they anticipate discovery to continue through June 2008. 

Thus, the case seems -- at least from a review of the docket -- to be destined to drift on.  The administration of Hamisi Ingram may have ended last year, but his legacy lives on in a lawsuit. 

• Print
• Comments
• Trackbacks (1)

Since the Ledbetter decision issued by the U.S. Supreme Court last month, issues of the timeliness of employment discrimination claims have come to the forefront. An interesting decision by a CHRO Human Rights Referee recently suggests that complaints that do not specify the timeliness of certain claims may still survive a motion to dismiss. 

CHRO Human Rights Referee David S. Knishkowy late last month rejected an employer's motion to dismiss on timeliness grounds, even though the complaint did not contain sufficient details to determine whether the alleged discrimination practice occurred within the applicable time frame.

In Salvatore Feroleto v. State of Connecticut, Department of Mental Retardation, CHRO No. 0510140 (decided August 27, 2007), the employer, the Connecticut Department of Mental Retardation moved to dismiss a claim that had been certified to a public hearing on the grounds that most of the alleged acts occurred more than 180 days prior to filing of the complaint. 

Referee Knishkowy rejected that assertion, even though the complaint itself was vague as to whether certain acts fell within or outside the 180 day period.

In the present case, because of the exceedingly general nature of the allegations, I cannot ascertain when most of the discriminatory acts, discrete or otherwise, occurred. Denial of the motion to dismiss will afford the complainant an opportunity to present evidence, subject to the aforesaid rule, on each of his vaguely worded claims of unequal pay, denied promotions, denied accommodations (for his disability), lack of training and termination.

This decision raises a troubling prospect for employers.  According to the CHRO's own administrative regulations on complaints, Conn. Regs. 46a-54-35a, a Complaint -- when filed with the CHRO, "shall contain the following...(3) A plain and concise statement of the facts, including any pertinent dates, constituting the alleged discriminatory practices."  Thus, a complaint that does not have such dates, as appears to be the case here, appears to be violating the CHRO's implementing  regulations. Yet according to this decision, the employer is without recourse to move to dismiss the complaint because the Complaint should be allowed an "opportunity to present evidence". 

I should note that it is not clear whether the employer raised this particular argument or just challenged the timeliness of the complaint in general.  What this decision does make clear, however, is that employers will likely need to engage in discovery and motion practice at the CHRO hearing stage on timeliness grounds, because a motion to dismiss on such grounds is unlikely to succeed even against vague allegations.

• Print
• Comments
• Trackbacks

Two years ago, when Connecticut passed a civil union law, there was ample amount of press on the changes to the various laws. But on July 10, a change to Connecticut's employment laws took place with virtually no coverage.

Specifically, Public Act 07-245 amended the state's employment laws to preclude discrimination in the workplace based on a person's civil union status. These sections went into effect upon passage. Governor Jodi Rell signed the act on July 10, 2007, making these changes effective immediately.

The change itself should be relatively easy to incorporate. Employers in Connecticut might consider updating their EEO policies to include this new protected class.

What is odd about the new law is not the result, but the legislature's method for doing so. Connecticut has long-separated out prohibitions on sexual orientation discrimination with its own statutory scheme in C.G.S. 46a-81c, separate and apart from its normal laundry list of protected categories present in C.G.S. 46a-60. Thus, "Marital Status" has always been listed in the laundry list but sexual orientation has not. The legislature added "civil union status" as a category under 46a-81c, not 46a-60, thus making it comparable to sexual orientation. 

The legislature also explicitly wrote that marital status is to be defined the same as civil union status for all other Connecticut laws, except when used in the laws regarding employment and housing discrimination.

Is this a distinction without a difference? Perhaps. But it is a convoluted way to write statutes and gives voice to the argument that the government is not treating civil unions the same as marriage. 

And if that were the end of the legislature's maneuvers, that would be enough.

But effective October 1, 2007, a different public act will also impact discrimination claims. In Public Act 07-62, the legislature amended Conn. Gen. Stat. Sec. 46a-58 to make it a discriminatory practice for any person to subject any other person to the deprivation of any rights, privileges or immunities secured by the Constitution or laws of this state on account of sexual orientation.

The bill's analysis suggests that this statute:

gives the Commission on Human Rights and Opportunities (CHRO) jurisdiction to investigate complaints of deprivations of rights, privileges, and immunities secured or protected by any state or federal law or constitution on the basis of sexual orientation. Thus, for example, it gives CHRO jurisdiction to investigate complaints of discrimination on the basis of sexual orientation against students by public schools.

That may be true, but given that sexual orientation (and now civil unions) are decided under a different statutory scheme that other types of discrimination, the legislature has only made the hodgepodge of laws in the area more confusing by amending the statutes in different ways and inconsistently.

It's time to revise Connecticut's discriminatory practice laws to make them easy to understand and in one place. Otherwise, the legislature it just making more work for employment lawyers like myself.

• Print
• Comments
• Trackbacks (2)

For many years, the Connecticut Department of Labor website just looked, well, a bit on the outdated side.  But lo and behold, the agency freshened things up a bit lately.  

They've introduced a new logo and new typeface.

After digging around for a few minutes, the content on the site has, unfortunately, not been updated in any major way.  But for those who have a difficult time still navigating the site, there is a useful "search" box on the upper right hand side of the page.  Not as good as Google, but it gets the job done.  

Notably, the DOL isn't the only agency that invested in a new logo. The CHRO released its new logo recently as well.

• Print
• Comments
• Trackbacks (1)