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

Let me preface this post by acknolwedging the obvious: This upcoming story is a bit like watching a car wreck. You know you shouldn't look and it really doesn't have anything to do with you, and yet you can't help but stare.  The story of a new lawsuit probably doesn't merit a post, but some lawsuits are just too outrageous to leave alone.  And while I normally attach pictures to the posts, for reasons that will be obvious in a moment, I'm going to hold back on the pictures for this one.  (If you're really curious, The Smoking Gun has posted pictures though I caution that they may not be appropriate for your workplace.)

So what's the car wreck? A new lawsuit filed in federal court last week by a teacher who claims she was forced to resign after an appearance on the Howard Stern show. But it wasn't just "any" appearance, it was an appearance for a contest on the "Hottest Wife/Ugliest Husband".  CT News Junkie had the story on it a few days ago as did the Meriden Record-Journal.  Because it is picking up interest in some employment law circles (H/T Delaware Employment Blog), I'll add a bit of perspective on it. 

The lawsuit, filed by Marie Jarry can be downloaded here.  She alleges that on April 30, 2008, she called in sick to work. She worked as an elementary school teacher in Southington, Connecticut.  The next day, however, she appeared with her husband on the Howard Stern show.  She then alleges that the school day after she returned to work, she was told not to report to class.   She was told, allegedly, that she violated the "morality" clause of her contract and that she had also used a sick day (when she was not sick).  She alleges that she was then pressured to resign. 

She has brought claims against her employer under Section 1983 (claiming her procedural due process rights were violated), Section 1983 (for gender discrimination and violation of her equal protection rights), negligent infliction of emotional distress, and negligence (under Conn. Gen. Stat. 52-557n).    She has also sued her union under a claim of "duty of fair representation".  (The lawsuit claims it has seven counts, but there are only five listed).  All told, she has sued the Southington school board, her former union, and the school superintendent.  No appearance has been made for the defendants yet. 

In thinking about this case, I can't help but think of the irony of this case compared with a case down south last month which held that a female employee was subjected to a "hostile work environment" because of the "vulgar radio programming" in her workplace. And what was that vulgar programming? The Howard Stern show of course (you can read the court's fairly graphic discussion here). 

While the particulars of this case will play out in court, what is striking about the complaint is the unwillingness to acknowledge that the teacher bears any responsibility for what occurred. After all, the teacher called in "sick" (when she wasn't) and appeared in a bikini on a radio show that courts have noted for its "vulgarity".  Did the teacher really think that no consequences would flow from her actions? And what did she expect the school board to do? Ignore what happened?

It's hard to see from the facts alleged that the school system is in the wrong here.  (As I've cautioned readers in the past, however, allegations in a complaint are only that -- allegations -- and that nothing should be taken as a proven fact).  The school system heard about allegations of one of their teachers and after discussions with her about the appropriateness of her conduct (and the seriousness of the allegations), she resigned -- rather than face additional publicity and possibly a firing. 

For employers, the lawsuit is an example that even when the employer believes it is right in its employment decisions, it may still face a lawsuit for its actions.  Proper documentation and following procedures are steps that employers can always take to increase the likelihood that their actions will be upheld by courts later on, if lawsuits are brought. 

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In the corporate world as well as government, anonymous complaints about personnel -- whether to a hotline, or via the mail -- are seen as the price of doing business.  These anonymous whistleblowers sometimes can't speak out because of their circumstances and some have legitimate points to make.  And some companies readily encourage such complaints as a means to improve their business. 

But, with anonymous complaints come the nagging questions: Who wrote it? And why?

Sometimes the writers have less-than-kosher motives.  Instead of whisteblowers, they may just be a disgruntled employee looking to get their boss, or someone they dislike, in trouble.

A case out of Connecticut illustrates the risk arising from receiving and considering anonymous complaints.  The case arises out of the ouster of the State Ethics Chief Alan Plofsky in 2004.  He has now sued claiming, among other things, that his First Amendment and due process rights were violated when he was fired. For additional background, the Hartford Courant filed this report.  The Board Commissioners have now moved for summary judgment on his claims (essentially asking the court to throw out the claims) and Mr. Plofsky filed his brief in opposition to the motion on Friday. 

In August 2004, after a very public tussle between the Ethics Chief and the Ethics Board, various Board commissioners received copies of an anonymous complaint, purportedly written by a parking lot attendant.  The letter, at least according to Plofsky's papers, sparked another round of investigation -- though it apparant that the Board and the Ethics Chief had had their disagreements prior to this. (I should note that there is LOTS more to this case than meets the eye so I would encourage readers to review the summary judgment papers filed by the Board Commissioners for a more complete picture.)

Here's the issue with the letter: It wasn't written by a parking lot attendant; it was apparently written by one of the ethics staff  lawyers, who, later made a separate complaint of her own about Plofsky.  In the course of discovery, sure enough, she claimed that she was the author.  According to Plofsky's attorney, the staff lawyer intentionally made errors — such as the misspelling "anonimus" — so the made-up attendant would appear "under-educated." The Governor's office on Monday indicated that they would investigate that attorney further for her behavior. 

While it may have no real impact on the legal claims, those who were investigating the claims raised in the letter surely would have liked to known that fact.  Would it have changed the results? That's for others to determine, and certainly the Board Commissioners will argue that there was ample evidence (outside this Complaint) that supported their actions.

So, what sorts of things can employers take away after learning about the issue of anonymous complaints?  In general, employers may consider the following:

• Treat anonymous complaints with a dose of healthy skepticism.  Questioning the writer's motives is not the same as trying to determine the author's identity, so see if you can figure out those motives from the letter and surrounding context. 
• Nevertheless, if the situation warrants, conduct a full investigation to determine the veracity of the claims raised in the complaint; don't assume any facts to be true, just because the complaint says so.
• Give the target of the investigation an opportunity to rebut the complaint.
• Document the investigation in the form of a memo with supporting documents with the reasons why certain steps are being taken (or not being taken) as a result of the investigation.
• Be prompt with the investigation; letting such a complaint fester may only excaserbate a problem.

While internal investigations are becoming more common and routine within some companies, seeking sound legal advice on how best to proceed is certainly worthwhile too (and this blog should not be a substitute for such advice).  There may be instances where an outside attorney is called upon to conduct the investigation.  Or there may be instances that warrant conducting an investigation in a different fashion. 

Update 5/22/08 - Abovethelaw, the legal tabloid blog, (and wise?) enough to pick up this story this morning and has filed it under the category of "Isn't it Ironic". 

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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.

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Last week, lots of virtual ink was spilled on the U.S. Supreme Court's arguments in Federal Express v. Holowecki which has been labeled as a noteworthy age discrimination claim, following in the shoes of the Supreme Court's ruling in Ledbetter in the spring.  Several blogs have good summaries of what happened, including: LawMemo, Ohio Employer's Law Blog, and the New Jersey Employment Law Blog. 

What's the issue before the Supreme Court? 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.   From the oral argument and the reports on the case, it appears likely that the court will find that the EEO's use of an intake questionnaire may be a "charge". 

All very well and good, but 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.

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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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