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

The slow season of employment law news continues, which makes this a perfect time to roll-out the occasional Quick Takes post to discuss interesting nuggets and updates to recent posts.

• The Statewide Grievance Committee, on the day before Christmas, issued a formal reprimand to Maureen Duggan for "fraud and conduct prejudicial to the administration of justice".   Ms. Duggan, as you may recall, wrote an anonymous letter complaining about the former state ethics chief, Alan Plofsky.   Ms. Duggan was also ordered to attend nine hours of ethics training. 
   
• Meanwhile, you might also be wondering what ishappening with the employment complaint filed by that former ethics chief against the state?  The short answer is, nothing. The parties finished their briefing on the summary judgment motion back in June 2008 and the case is still awaiting a decision. In the meantime, the parties filed a status report with the court on December 10th (download here), essentially saying the same thing.   
   
• The Second Circuit recently reinstated an age discrimination claim, overturning a district court decision granting the employer's summary judgment.  It's yet another example of the relatively high burdens that employers have to win a case before trial. Wait a Second has the details of Carras v. MGS 782 Lex, Inc., 2008 WL 5273278 (2d Cir. Dec. 19. 2008):

The 62 year-old plaintiff was fired from his job as Chief Financial Officer of a shoe importing company. The defendant argued that plaintiff was fired for cost-cutting reasons. The district court thought the jury could only find that cost-cutting was the real reason, not the plaintiff's age. But the plaintiff produced evidence that he was willing to work for a lower salary and that the corporate vice president repeatedly told the president that plaintiff was too old and that the president capitulated to the vice president's wishes that plaintiff be terminated. Management had also openly joked about plaintiff's age on several occasions. Plaintiff was also replaced by a 26 year-old.

• Will the Employee Free Choice Act pass in the new Congress? World of Work blog suggests that EFCA is not a done deal. 
   
• A new blog, Minding the Workplace, made its debut this month.  Written by Suffolk University Law Professor, David Yamada, the target audience of the blog is workplace dignity, bullying and psychological health topics.  It's worth taking a look at for a different perspective on the issues.
   
• The New York Law Journal today reports on a new Second Circuit case that enacts a less deferential standard of review under the Employee Retirement Income Security Act where the plan administrator is conflicted because it both evaluates eligibility and pays benefits. In McCauley v. First Unum Life Insurance Co.

Coming tomorrow: A Year-End Wrap Up...

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It has been several months since my last update on the matters involving former state Ethics Chief Alan Plofsky and the strange case of the lawyer who penned an anonymous letter complaining of Mr. Plofsky. (For background on the matters, you can find my prior posts here.)

The developments have been slow to occur, but an article last week in the Connecticut Law Tribune gives us some details.  As to the lawyer that wrote the anonymous letter, state officials have suggested that she be given a reprimand: 

State officials say Maureen Duggan should be reprimanded and ordered to attend legal ethics classes for writing a phony letter that helped bring down former Ethics Commission Director Alan S. Plofsky.

That’s the suggestion that Chief Disciplinary Counsel Mark Dubois made last Thursday to the Statewide Grievance Committee after an investigation into Duggan’s conduct dating to 2004. Duggan, a former attorney in Plofsky’s office, drafted a letter filled with typos to the ethics commission’s chairwoman describing how money was being wasted by the office and employees routinely left before the end of the workday. She made it appear that the unsigned letter was from a parking lot attendant.
 

Ms. Duggan also apologized for the incident, according to another report. 

And what happened to the underlying case that was brought by the former state ethics chief against the state? The state moved for summary judgment early this year.  However, the court has yet to rule on that motion.  A decision is expected soon.

In the meantime, the parties filed a joint status report in mid-September which provides some further background in the case.

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As I've mentioned before, sometimes cases hit the headlines for a day only to disappear into oblivion. But thanks to some followup reporting, there's one story that we can give an update on.

Readers may recall a post from May of this year about a state attorney, Maureen Duggan, who wrote an anonymous letter about the state's Ethics Chief, allegedly purporting to be a parking lot attendant.  Above the Law also ran a post about it as well. 

So what's happened to that attorney since then? Over the last week or so, two events related to the attorney have hit the headlines.

First, state officials indicated that they planned no disciplinary action against the employee.  According to the Hartford Courant:

An investigator concluded in an Aug. 7 report, released Wednesday, that use of the phony identity by Duggan — who was a State Ethics Commission staff lawyer in 2004, and is now an attorney at the state's child-protection agency — was not reason to discipline her under state personnel rules.

Her conduct "may be construed to be wrong, improper or even deceitful," but doesn't add up to "sufficient evidence" to discipline her, wrote personnel administrator Stephen Caliendo of the Department of Administrative Services.

But that doesn't mean that the lawyer has escaped without punishment. In fact, her current job is dependent on her law license; that license is now in jeopardy after it was also announced that a state grievance panel filed a complaint against her that could lead to discipline or disbarment.  A hearing will likely be scheduled in November or December 2008, according to the Hartford Courant and the employee has retained Hope Seeley to represent her. 

And what's happened to the underlying employment claim by former state ethics chief? Well, the state filed its reply brief in support of its summary judgment motion in June (download here).   Notably, when the state filed its reply brief, it attached some additional exhibits as well including the full deposition of Maureen Duggan (available here).  Thus, readers can get a full picture of her deposition and not just the portions excerpted before.   

A decision on the motion for summary judgment is expected later this year.

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Just time enough for some short updates on various posts from the last few weeks.

• You may recall a few weeks ago that the Governor vetoed a bill which would have increased the minimum wage in Connecticut to $8/hour in January 2009.  While there has been talk of a possible override session, it's difficult to get the numbers to believe that the legislature has the votes to override the veto. Nevertheless, it appears that June 23, 2008 is a possible date for a veto override vote.    As I've mentioned before, this is most decidedly not a political blog, so if you've like to see what some of them have to say, check out the My Left Nutmeg blog post here.
  
• You may recall a few weeks ago the post about the attorney who allegedly submitted an anonymous letter purporting to be a janitor.  The Courant reported over the weekend that the attorney is now the subject of an investigation by the Statewide Grievance Committee.  No public comment has been given on the subject to it is unknown the extent of the Committee's investigation. 
  
• Last week, I reported on a $225M employment lawsuit filed against NASCAR.  Since my last update, two supervisors who were mentioned in the complaint were suspended and NASCAR defended itself from the allegations, in a report here. Unless particularly noteworthy, I'm not going to post any further updates on this case since it's outside Connecticut, but suffice to say that the employment law world and sports world create interesting enough cases that I wouldn't be surprised to see this one make a few more headlines before it's done.
  
• Lastly, following up on my post about the OWBPA and separation agreements, the Ohio Employer's Law Blog has done a good followup article on deciding the proper "decisional unit" for reductions in force.  As I've said before, with "disparate impact" claims and class action possibilities inherent in a reduction in force, getting solid legal advice on how to handle this subject matter is crucial to reducing exposure to lawsuits later on. 

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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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