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

The Ricci v. DeStefano case (now on remand from the U.S. Supreme Court) has vanished from the headlines, but the case is still kicking around as the courts and the parties attempt to fashion a remedy that fits with the judgment in favor of the plaintiffs.

For some time now, however, the plaintiffs have made some oral arguments at various proceedings that the United States District Court Judge Janet Arterton should recuse herself from the case.  Those accusations rose to a new level on Tuesday when they filed a lengthy motion to that effect.

You can download the motion here, and the accompanying memorandum of law here. 

The judge has steadfastly denied thus far that she has done anything improper whatsoever in transcripts to various proceedings.   

I would be remiss if I did not note that these types of motions should be viewed skeptically for a number of reasons, most particularly that they don't claim to present a balanced picture.  The judge is also limited in how she can respond publicly, and thus, there is much more to these issues than is being discussed.

But ask yourself when you read the motions:  Are the plaintiffs justified in making claims here? Can a fear that the judge will be impartial be enough no matter how unreasonable that fear is? Is a judge barred from having public outreach on a case just because it is high-profile? And if a judge is later reversed by the U.S. Supreme Court, does that "taint" the original judge from hearing the case on remand? 

I'm sure a lot of people will answer "no" to these questions.   Take another example, the plaintiffs suggest that there was something improper about the judge attending oral argument in the case before the Supreme Court saying it was unusual. But even if that's the case, the question arises: What is wrong with that behavior? How does that mean that the judge will be impartial?

There is no timeframe yet on when the judge will rule on the recusal motion and the City of New Haven has 21 days to respond. 

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Back in February, a federal court in Connecticut dismissed a lawsuit brought by three former wrestlers who contended, among other things, that they were improperly classified as independent contractors.

The case garnered national attention (see, for example, this post by Zach Lowe at The American Lawyer) for a variety of reasons, including the disclosure of the wrestlers contracts. (If you'd like to see the details on the contract, you can view them here.)

But after that, two of the three wrestlers (Scott Levy and Christopher Klucsarits) filed a motion to amend the judgment or otherwise set it aside to allow them an replead (or refile) their claims.  Notably, one of the wrestlers --- Michael Sanders -- did not join in this motion.

On July 31, 2009, the District Court denied the wrestlers' motions, finding that even if it allowed the amendments at this late date, such amendments would be "futile". In other words, even if the court allowed the amendment, the wrestlers would STILL lose on the merits.  You can download the decision here. 

The wrestlers contended that they could still make a claim under the federal law governing benefit plans. But the court said that even that claim would fail. 

In the proposed amended complaint, Plaintiffs assert that “they are participants in
defendant [World Wrestling Entertainment, Inc.’s] ERISA plans and are entitled to the full
benefits of such plans.”  However,  this claim relies on the reiteration of Plaintiffs’ argument espoused in the first complaint. Plaintiffs assert that they were unaware of Defendants’ intention to treat them as independent contractors and that an employer-employee relationship developed between themselves and  Defendants.

However, this Court has already rejected Plaintiffs’ argument that their relationship with  defendants evolved to employer/employee status. The Booking Contracts that outline the terms and conditions of the relationship  between WWE and each wrestler specifically stipulate that Plaintiffs are independent contractors.  Furthermore, Plaintiffs cite no authority to support their employer-employee claim and did not show that the Booking Contracts were invalid. Thus, an amendment to assert an ERISA  claim premised upon an employer-employee relationship between Plaintiffs and Defendants  would be futile as it fails to state a cognizable cause of action.

The wrestlers now have the option of appealing the matter to the Second Circuit Court of Appeals.  But given how the district court disposed of the matter, the results of such an appeal may be as preordained as a professional wrestling match.

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Time for a few multiple-choice questions:

1. In the fiscal year ending September 30, 2008, the number of cases filed in federal court in Connecticut was: a) up significantly over 2007; b) about the same as 2007; c) markedly down from 2007.

2. Since 2003, the number of cases filed and pending in the federal court in Connecticut is: a) trending noticeably upwards; b) remaining fairly constant; c) trending noticeably downwards.

3. In 2008, the median time it took a civil case to get to trial in federal court in Connecticut was: a) 18 months; b) 25 months; c) 32 months; d) 40 months 

If you answered c) to each of the questions, you are well on your way to becoming an expert on court statistics.

But for those needing a little extra study, you can find the new statistics for Connecticut (and every other federal court) available on the U.S. Courts website here. The statistics were just released and reveal overall trends in the federal court system.

Why is this important for employers? Employers should be aware of the federal court statistics because many claims of discrimination are brought under federal law (and therefore, in federal court).  If there are big increases in the numbers of discrimination cases, you would expect to see a noticeable uptick in the court caseload.  

The fact that the caseload has decreased in 2008 and has continued to decrease for multiple years reveals that whatever trends may be happening at an administrative level or national level, they haven't translated in Connecticut to significantly more cases as of yet..  Compare this with the New York City area which shows the caseload trending higher over the last several years. 

In fact, Connecticut seems be running counter to the national numbers, which showed the number of cases filed in district courts nationwide was up 4.3% over 2007.)  Employers should also be cognizant that they were not likely to get a quick outcome of the case. Waiting 32 months for a trial is, as the statistics reveal, quite common in Connecticut.

Employers should not draw too many conclusions from the statistics.  After all, the most recent statistics of charges pending at the EEOC shows quite a number of claims in the pipeline. While 2008 may not have been the most litigious one for employers in Connecticut, where 2009 ends up remains a big question.

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UPDATED 2/10/09

Sometimes, by coincidence, two unrelated decision get released in close proximity to one another that they bring some greater clarity to the law.

Yesterday, I discussed a Connecticut Superior Court case that found that certain discussions did not create an employment contract and that the employee was properly classified as "at-will".

Earlier this week, a federal court in Connecticut granted an employer's motion for summary judgment after finding that a Corrective Action memorandum did not create an employment contract either (and did not create any other claims).

In Ide v. Winwholesale, Inc. (download here), Judge Squatrito was asked to address whether the employee's termination -- after allegedly being "coerced" into signing a Corrective Action memorandum -- violated an important public policy. The court found that it did not and found that there was nothing inherently wrong with the memorandum either. 

The court indicated that, in essence, the plaintiff and a co-worker were engaging in a back-and-forth tit-for-tat that ultimately led to them both being disciplined.  The employer then issued a Corrective Action memorandum to address the issues.  The memo is similar to the type that many companies use to address disciplinary and performance issues with their employees: it spells out what was unacceptable and sets forth a plan to make sure the employee follows procedures on a going-forward basis. 

The employee blamed a fellow co-worker for his problems. But the court rejected that argument calling it the "But he started it!" defense.  This court did not stop there; the Court also found that the employee's argument that there was a "genuine issue of fact" concerning the Corrective Action memorandum forced the court to ask "So what?" 

The court then delivers the knockout punch to the plaintiff's case:

[The plaintiff] further argues that the Corrective Action memorandum constituted a contract, but, because he was coerced into signing the Corrective Action memorandum, the contract was void. The merit of this argument escapes the Court. There is no indication that the parties expected or intended the Corrective Action memorandum to be a “contract,” nor has Ide established in any way that the Corrective Action memorandum satisfies the legal standard for a contract (i.e., offer, acceptance, consideration).

What's the takeaway for employers here?

Courts will still use common sense in deciding employment cases.  Here, the employer had detailed the reasons for its decision is a clear and concise fashion and used a corrective action memorandum that backed up its reasoning.  The importance of documentation and, at least the appearance of, fairness, made this a fairly easy case for the Court to dispose of.

In essence, the employer did what would be expected of it. It learned about violations of the company's policies, addressed them, and then fired the employee when he failed to correct the deficiencies noted.

One important last note for employment law practitioners: The court takes the employer to task on one procedural issue -- namely the filing of a motion to strike portions of the plaintiff's affidavit that was filed in response to the motion for summary judgment. The court suggests that the federal rules of civil procedure do not allow for such a practice and "The parties to an action 'should have faith . . . that the court knows the difference between admissible and non-admissible evidence, and
would not base a summary judgment decision simply upon the self-serving ipse dixit of a particular party.'"

The court suggests that if a party wants to object to portions of an affidavit, that the party should argue it in the summary judgment briefing itself.

UPDATE: Portions of the underlying decision, which have no impact on the outcome of the case, have been redacted by request.

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In employment litigation in federal court (let's leave state court out of this discussion -- it's a whole different animal), filing a motion for summary judgment is seen by employers as their last, best chance to win a case before the matter is sent to a jury. After all, if the court grants the motion, a jury never sees the case and the case effectively ends (subject to an appeal).

Over the years, there have been various decisions that have suggested that summary judgments should be more of the exception rather than the rule.   Nevertheless, summary judgment still remains a tool that employers have in their toolbox  to defend against discrimination claims.

But besides the rules and the decisions that guide how courts should rule on such motions,  who judges the matter also plays a role in the ultimate outcome. As discussed below, this is important for employers and in-house counsel to understand when litigating discrimination claims.

Two recent decisions by two Connecticut federal judges illustrate that point.  In one case, Judge Vanessa Bryant granted an employer's motion for summary judgment in a fairly short decision involving a Title VII claim . In another, Judge Christopher Droney denied an employer's motion for summary judgment on the Title VII claims. 

(A few points of note: Yes, the facts of each case are different and I not suggesting that the cases are improperly decided.  Rather, it's the judges' approaches to the issues that is of note.   The cases involve fairly ordinary claims that you see in employment discrimination claims from time to time, and none appears to suggest any unique legal issues.)

When you compare and contrast the decisions, it's easy to see a different approach to the issues that they face, not only in writing style but also in their reasoning.  For example, the judges each cite to different cases as precedent, for similar propositions.  And,  if you look back to prior decisions by Judge Bryant as well, you can see an approach that views such a claims with a bit more skepticism.  Indeed, Judge Bryant isn't afraid to take a no-nonsense approach to the claims and draw reasonable inferences that she believes should be fairly drawn.

In a case posted earlier this week, she dismisses the plaintiff's claims by finding that the alleged discriminatory transfers were not discriminatory at all.  She states: "the reassignments of the plaintiff [and others] suggest the inference that the defendants transferred them on the basis of seniority and the provisions of the union contract." 

By contrast, Judge Droney is more forgiving in his findings. In the case released on Tuesday, he finds that a supervisor's comment that the plaintiff's nursing work was "primitive", combined with support of plaintiffs' competence and a co-worker's statement, is just enough to send the case to a jury.    Is describing someone's work as "primitive" really indicative of race? Indeed, the definition of "primitive" has no apparant racial connection, but rather to an non-industrial society.

Or framed another way, if the judge had found that a "primitive" comment was not evidence of discrimination, would anyone be that outraged with the court's findings? Probably not.   But here, Judge Droney has drawn an inference that he believes a jury can reasonably draw from the use of the phrase.

Why is this important to understand for employers?

• First, you need to frame your arguments to your audience. Understanding that federal judges may approach the same problem differently, gives you an opportunity to tailor your argument appropriately.
   
• Second, you need to determine the risk that is involved with any case.  Some judges are just more likely to grant summary judgment than others.   And when you're fixing budgets and determining how to best use limited resources to pay for defending claims, it may be best just to skip the summary judgment and proceed with a trial if you know that the court is likely to deny your motion anyways. 

When attorneys talk about the unpredictibility of litigation, reviewing two cases like this show what they are talking about.

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Sometimes I feel like a broken record (though in today's world, perhaps that should be updated to "corrupted music file").  For a while now, it's been apparent to most of us that employees continue to do silly things with e-mail and their social networking pages. 

Add a recent case in Connecticut to the list of cases where individuals are fired for inappropriate conduct on MySpace or social networking page.  (For a post on the use of social networking sites for background screening, click here.)

In Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008) (download here), a teacher at an Ansonia, Connecticut high school created a MySpace page, ostensibly "to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual, non-school related discussions."

A full description of the case can be found at MediaShift, a PBS production: 

One of Spanierman's school colleagues became concerned about the page, which she said contained, among other things, pictures of naked men with "inappropriate comments" underneath them. She was also concerned about the nature of the personal conversations that the teacher was having with the students, and she convinced Spanierman to remove the page, which she considered "disruptive to students." Spanierman subsequently created a new MySpace page, however, that included similar content and similar personal communications with students. When the colleague learned of the new page, she reported it to the school administration, which placed Spanierman on administrative leave and ultimately declined to renew his teaching contract for the following year. After hearings that he attended with his union representative and later with his attorneys, he received a letter stating that he had "exercised poor judgment as a teacher."

While the discipline of a teacher for conduct outside the classroom raised a number of legal issues, the District Court squarely came down on the side of the school  and the 41-page decision is certainly not lacking in notable (if unusual) details, such as a "poem" and a title of "Mr. Spiderman" on the MySpace page. 

The court also found that the online exchanges "with students show a potentially unprofessional rapport with students, and the court can see how a school’s administration would disapprove of, and find disruptive, a teacher’s discussion with a student about “getting any” (presumably sex), or a threat made to a student (albeit a facetious one) about detention."

As an aside, however, footnote 13 of the decision is a must-read for its straight-face approach to online etiquette indicating that the court was taking "judicial" notice that spelling and grammar are not always followed online: 

The court has not altered the contents of this or any other exchange taken from the Plaintiff’s MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., “LOL” can mean “laughing out loud,” and “LMAO” can mean “laughing my ass off”). Furthermore, such exchanges often contain so-called “emoticons,” which are symbols used to convey emotional content in written or message form (e.g., “:)” indicates “smile” or “happy,” and “:(” indicates “frown” or “sad”). 

Ultimately, the case reinforces the fact that online forums, blogs and social networking sites remain a viable way for employers to discipline.  For employees, the lesson is clear: be careful what you write. And for employers, while you should be mindful that employees may have some rights on their right to publish materials online, there is still a role to be played when that conduct interferes with work. 

(After posting, I discovered a helpful post from the Delaware Employment Law Blog discussing this case as well.)

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Ed: Updated to reflect newer posts and correct style

There are many employment lawyers who subscribe to the belief that "No Good Deed Goes Unpunished".  A case out of Connecticut and the Second Circuit this month certainly won't change that perception.  Indeed, although the case may have political undertones, it sets up a classic factual case of an employer who apparently tries to do the right thing and STILL gets sued for their actions.  Ultimately, the Second Circuit has affirmed that the employer did not violate the law but the issue still remains far from settled. 

Here's the basic facts and background of Ricci v. DeStefano:

In March 2004, New Haven, Connecticut Fire Department held two promotional exams for the positions of Lieutenant and Captain.  However, the New Haven Civil Service Board (“CSB”) refused to certify the results of those exams because statistically, the test results showed that the test may have had a disparate impact on African-Americans. 

A group of seventeen white candidates and one Hispanic candidates who took the promotional exams sued.  These candidates fared fared very well on the test but did not receive a promotion because without the CSB’s certification of the test results, the promotional process could not proceed.

The Plaintiffs asserted that the refusal to certify the examination results violated their rights under Title VII and the Equal Protection Clause. In 2006, the District Court of Connecticut granted New Haven's motion for summary judgment (decision here) -- effectively dismissing  the case. 

CSB officials said, in their papers, that the reason they refused to certify the results is their desire to comply with the letter and the spirit of Title VII. The District Court noted that "Plaintiffs deride this 'feigned desire to ‘comply’ with Title VII,' arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. "

What is noteworthy, as the lower court pointed out, is that the case presents "the opposite
scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for
their refusal to use the results.  

Ultimately, the District Court said that Plaintiffs' contention that "diversity" is a code word for reverse discrimination did not have merit.  The employer here was trying to do right by not using a test that had a disparate impact and the Court was unwilling to suggest that the employer's decision was incorrect.  The factual circumstances, as I've said before, are much more complex than that and I encourage readers to review the entire decision.

Of course, the Plaintiffs appealed. The Second Circuit last week affirmed the decision in a brief per curiam decision (available here).  The Court noted that the CSB "found itself in the unfortunate position of having no good alternatives."  

And while the court said it was "unsympathetic to the plaintiffs’ expression of frustration", the Court said that CSB was "simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact".   As such, its actions were protected. 

End of story, right?

Well, not quite.  Later in the week, the Second Circuit considered, but ultimately rejected a rehearing "in banc" (meaning a decision in front of all of the Second Circuit judges, not just a three judge panel).  The Wait a Second Blog explains the procedural mess in further detail in a post here.  What is unusual is that the decisions either concurring or dissenting in the decision to rehear the case in banc are lengthy and reveal a deeply divided Second Circuit. 

Indeed, the dissent noted that the Second Circuit has done a disservice by not publishing a full opinion on the subject and instead hiding behind a short "per curiam" opinion.  Ultimately, the dissent views the issue as one of "great importance" and believes that full consideration by the Second Circuit -- or at least a more detailed decision -- is warranted.  Certainly, the next time this issue is before the Second Circuit, we can expect more fireworks depending on the panel makeup.

The Plaintiffs here have petitioned the Supreme Court to grant certiorari in this case. It certainly merits further watching.   I would expect a ruling from the Supreme Court on whether to grant certiorari in fall of 2008. 

For employers, this case demonstrates the problem that companies face all the time. Typically, a decision affecting one employee, will leave another unhappy.  And even when the employer is trying to do the "right" thing by complying with Title VII (even if there is political overtones) they still could face a lawsuit by a group of employees unhappy with the decision.  Strict compliance with the law and getting sound legal advice is the best strategy for avoiding the minefields that continue to exist in this area.

UPDATE: Point of Law was kind enough to pick up on the post and credit should be given to their initial post on the subject late last week (which I was just tipped off to).  There are also other blog posts on the subject here,  here and here as well. 

FURTHER UPDATE 6/17: Wait a Second has an update this afternoon about another dissenting opinion released today by Second Circuit Chief Judge Dennis Jacobs.  From a legal procedural perspective, it's interesting to see the "catfight" going on at the Court of Appeals. But from employment law perspective, it doesn't really affect the underlying decision.

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In discrimination cases, when a plaintiff (which is a fancy legal term for employee) wins he or she is often entitled to have the defendant (typically the employer) pay his or her attorneys' fees.  There are lots of cases out there that discuss formulas for such fees .

But the basic assumption that some employers will make is that these fees will not amount to a significant number.

A new case out of New York (the same federal Circuit as Connecticut) should change that perception. I would expect this case to become the new "gold standard" (pun partially intended) for fee requests both in New York and in Connecticut for employment law cases.

The New York Law Journal (subscription required) reports that in Rozell v. Ross-Holst (download here, the prominent plaintiffs' firm of Outten & Golden received over $1 million in fees following a settlement of a discrimination claim.

What is particular noteworthy is that the Court ultimately granted an hourly fee request of lead partner Kathleen Peratis for $600 per hour (down from her requested rate of $675).  Since 2001, Peratis has headed the sexual harassment group at Outten & Golden, which the magistrate judge said "enjoys a reputation as one of the outstanding firms representing plaintiffs in employment cases."

Why should employers in Connecticut be interested in this? Because this case is likely to be Exhibit A by any plaintiff's attorney as to the "going rate" that experienced plaintiff's attorneys are charging for their services.  The argument will likely be "Well, your honor, if a NY attorney can get $600/hour, my proposed Connecticut rate of $525 is surely reasonable" (never mind the fact that there are few employment law attorneys in Connecticut who charge that rate in "real" life.) 

But, you say, this is a New York firm, not Connecticut, so why should I worry?  However, you would be wrong to make that assumption.   Outten & Golden has a sizable office in Stamford, Connecticut and represents many employees across the state.  (Full disclosure: I have crossed paths with some of their attorneys many times and worked collaboratively with several on bar association projects.)   Thus, it is very much a Connecticut issue.

Are attorneys' really worth that much? That's hard for me to judge, but the rate does seem excessive for Connecticut -- even the lower Fairfield County area.  Will courts in Connecticut use this case to raise awards in Connecticut? That remains to be seen.

For employers, the case has two important takeaways:

• First, don't underestimate claims for attorneys fees in employment cases. Settlement of cases early on can help prevent a situation where an attorneys' fee interferes with a way to settle cases.  And for valuing cases at trial, don't just consider "back pay" loses, but consider that the attorney could receive a sizable award in response to a fee request.
  
  
• Second, re-familiarize yourself with the Second Circuit's decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F. 3d 182 (2d Cir. 2008). In Arbor Hill, the 2nd Circuit set forth new rules for district judges to follow when determining attorneys fees. The court there suggested that judges use their "considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate."
  

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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.

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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 a recent case, 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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First, a warning.

If your eyes glaze over at discussing the difference between cash balance plans and defined benefit plans, this post is not for you.  However, for those employers who are considering converting their retirement plans or who have done so, a new case released this morning provides some much-needed guidance in Connecticut about the legality of doing so, with a well-reasoned opinion to boot.  It also provides a bit of a primer to people who've heard  "something" about retirement plans, but have been curious about what the big deal was with converting from traditional pension plans to newer reitrement plans.

In Custer v. SNET (download here), federal judge Stefan Underhill has upheld SNET's conversion to a cash benefit plan from 1995.  In doing so, he methodically deconstructs the Plaintiff's arguments (while still acknowledging that this area of law is developing).  His discussion on the background on the case -- for those who need a bit of re-education in the area -- is particularly instructive.

First, he discusses the two types of retirement plans.

ERISA’s statutory structure contemplates two types of retirement plans; defined contribution plans and defined benefit plans. 29 U.S.C. §1002(34) - (35). A defined contribution plan is “a pension plan which provide[s] for an individual account for each participant and for benefits based solely upon the amount contributed to the participant’s account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant’s account.” 29 U.S.C. § 1002(34). By contrast, “a defined benefit plan is any retirement plan that is not a defined contribution plan.” Id. (citing 29 U.S.C. § 1002(35)). A typical defined benefit plan grants retirees a percentage of their final salary for the remainder of their lives.

Cash balance plans generally share certain attributes with both defined contribution plans and defined benefit plans. Like a traditional defined contribution plan, participants in a cash balance plan accrue benefits in an “account.” Unlike a traditional defined contribution plan, however, a participant’s account in a cash balance plan is not “real;” it is a mathematical construct to determine the size of a plan participant’s lifetime annuity that the employer will pay out when the participant retires. The account is not capitalized in the sense that neither the participant, nor the employer, is actually setting aside money. Instead, the employer is simply accruing an obligation to pay out benefits at a future date.

So, what did SNET do? On July 1, 1995, SNET converted its defined benefit plan to a cash balance plan.

Under SNET’s cash balance plan, each participant’s cash balance account is comprised of three parts: the opening account balance; accrued service credits; and accrued interest credits.The opening balance is generally based on the participants’ benefits under the old plan as of July 1, 1995. Participants then earn service credits at the end of each month based upon their level of pay and years of service.

Finally, participants earn interest credits annually based upon fixed negotiated percentages. ... [Central to this argument is that] if a younger participant remains employed through retirement age, he will thus accrue more total interest per service credit than similarly situated older workers. ...

Perhaps as an incentive to take early retirement, as part of the switching to the new plan, SNET front-loaded some retirement benefits. ... As a practical matter, participants thus receive 110 percent of their benefits under the old plan until the value of the cash account under the new plan catches up to and exceeds their permanent enhanced benefit.

The parties, and other courts, refer to the catch-up period as the “wear-away” period because, plaintiffs argue, the benefits that participants can receive but will not increase during that period. The period is more aptly named a “catch-up” period, however, because it is the period during which employees’ benefits under the cash balance plan catch up to their front-loaded permanent enhanced benefit.

The first question for the court was whether the interest credit portion violates ERISA.  The court said no.  It suggests that cash benefit plans, in general are not age-discriminatory "because cash balance plans are functionally equivalent to defined contribution plans, at least with respect to accruing benefits."  The court then uses various support for its conclusion including :

I similarly hold that the interest credit formula of SNET’s cash balance plan is not actually age-discriminatory, and that it merely accounts for the time value of money. As set forth in greater detail below, an employee’s benefits are not calculated based upon whether that employee is older or younger, but are instead calculated based upon whether he is a newer or more senior employee. The critical determinant of an employee’s benefits are his years to retirement, not his age. The fact that age may often have a loose correlation with an employee’s years to retirement does not necessarily make a plan age-discriminatory. In fact, a cash balance plan would more likely violate ERISA § 204(b)(1)(H)(i) if it did not account for the time value of money.

The court also dismisses the employees' argument that the plan "wears away" at their benefits.

Plaintiffs’ allegation that “an older worker has to wait more years after the conversion to the cash balance formula to actually begin earning new retirement benefits,” however, is not accurate. The “wear-away” period is not necessarily longer for older workers; it is longer for workers that have greater frozen benefits. Under the old plan, the size of a worker’s frozen benefits is a function of a worker’s salary and years of service, not his age....

Because a workers’ frozen benefits are not a function of the worker’s age,the size of the “wear-away effect” is not a function of the worker’s age.  For example, the size of the “wear-away” period for an older worker with a given salary and years of service will not be greater than the length as a younger worker’s “wear-away” period with the same salary and years of service to the company.  Indeed, a participant’s age, as opposed to his salary and years of service, has no impact on the length of the “wear-away” period.  

Moreover, employees are not actually “losing” benefits during the “wear-away” period.  SNET chose to calculate the permanent enhanced benefit by starting with an employee’s account balance under the old defined benefit plan, and increasing the balance immediately by ten percent.  If SNET had chosen to evenly distribute the ten percent increase over the period of time during which the value of an employee’s cash balance account caught up to the permanent enhanced benefit, then an employee’s benefits would not remain stagnant, but would constantly increase (even if at a lower rate than the employee was previously receiving under the old plan).  SNET should not be penalized for front-loading the ten percent increase in benefits, as opposed to spreading that ten percent increase out over a period of years.

As you can see from the above, the issues with conversions are technical and, perhaps cumbersome. But for employers who have converted their plans or who are considering doing so, the case provides a roadmap to avoiding some legal pitfalls in the future.

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A few days ago, I noted that the new District Court of Connecticut website now posts the federal judge's Chambers Practices online.  For employment law practitioners, two of the judge's chambers practices refer to the judge's views on discrimination cases and the use or overuse of dispositive motions on such claims.

Judge Alvin Thompson and Judge Christopher F. Droney each take a different perspective that is useful to keep in mind when practicing before that judge.

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 Thompson has been experimenting with pre-argument conferences for dispositive motions. He finds that conferences of this sort encourage discussion regarding the handling of a particular case. He uses the conferences when he sees something in a case that needs to be resolved to move the case forward and promote efficiency. For example, when he receives a motion to amend a complaint he may call in the parties to try to reach an agreement on how to simplify the complaint and then rule orally on the motion. If a motion to dismiss is filed, Judge Thompson may call in the parties for a conference to see if the issues can be resolved by an amended complaint.

 Judge Droney, on the other hand, takes a differing view:

Judge Droney does not require pre-filing conferences. He believes that there has been an increase in the number of dispositive motions because of the nature of the cases filed in federal court. 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.

(For the record, the chambers practices of other district court judges are silent on this topic.) 

Obviously, each judge considers each case on the merits and practitioners shouldn't read too much into these comments. Lawyers have long known which judges might be more receptive to summary judgment motions than others. 

But for employment law practitioners, this example confirms that even in a small state like Connecticut, judges comes from different perspectives when deciding such cases.  For clients with cases in the courts, finding lawyers who are familiar with the judges' perspectives can help shape the strategy of the case as well.

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Since many employment law cases are tried in federal courts, intimate knowledge of the way the Court works is one way for practitioners and clients to overcome potential hurdles. Looking at the District Court of Connecticut's website did not provide many answers and thus, those who practiced in federal court frequently often had the upper hand on those who didn't. Indeed, the District Court's website felt like a throwback to the early days of the Internet.  

But lo and behold, just a few days ago, the Court launched a brand new site.  I've only just begun to explore and I like what I've seen so far.  In terms of information sharing, it has finally leveled the playing field, even for those who only practice infrequently in federal courts.

Most impressive and helpful is that on each judge's website page, there is a link to that judge's chambers practices.  Why is this so important? Because until now, there was not a publicly available resource for such information on the Internet to know what each judge's preferences were for pretrial procedures, and trials. (I should note that the CBA did publish a book on it but charged $35 for CBA members and was only current through May 2004). 

You now can learn, for example, that Judge Robert Chatigny:

[I]s concerned when motions for extensions of the discovery deadline date established pursuant to the Rule 26(D) Report continue to be filed by some counsel on a regular basis, despite the purpose and intent of the applicable rules. According to Judge Chatigny, the purpose of the Rule 26(F) Report is to provide a schedule established pursuant to the parties' case management plan that is not to be modified except in unusual circumstances. Counsel are encouraged to propose a realistic discovery deadline date and then commence discovery without delay so that modifications of the discovery deadline date will be unnecessary.

Thus, experienced counsel in Connecticut will not seek an extension of time lightly when before Judge Chatigny.  Among the other topics that are discussed in the Chambers Practices:

• Oral Argument on Motions
• Referral to Magistrate Judges/Special Masters
• 26(f) Reports
• Sur-reply Briefs
• Letter Briefs
• Chambers' Copies
• Lawyer Affidavits
• Hours of Day for Trial
• Days of Week for Trial
• Opening Statements/Closing Arguments
• Jury Profiles
• Jury Selection
  

Again, this is a great resource.  I expect to explore this site more in the upcoming days and will post any further items of interest to those who practice employment law.

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