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

Last year, I talked about a First Amendment retaliation case and noted the difficulties in defending against such claims.  A new case out of the federal court in Connecticut last week highlights the those difficulties even further.

In Brown v. Waterbury Board of Ed. (download here), the Plaintiff, a custodian for the Waterbury Board of Education, had first brought suit in April 2005 alleging that his constitutional rights were violated when he was subject to false arrest and malicious prosecution back in 2002. (The criminal charges were later dismissed in 2004.) He sued two fire marshals for the City of Waterbury.   The lawsuit proceeded to trial; on November 21, 2006, the jury rendered a verdict in the defendants' favor.

The Plaintiff's employment was terminated a few weeks later on December 7, 2006.  He brought suit on a variety of grounds, including that he was terminated in retaliation for bringing the 2005 lawsuit in violation of the First Amendment.  The District Court refused to grant Defendant's motion for summary judgment, thus sending the issue to a possible trial.

In doing so, the court had to address two issues: 1) Was the employee's "speech" on a  "matter of public concern" and 2) Is there a "causal connection" between the speech and the termination.

The court said that here, the lawsuit raised sufficient allegations to be concerned a "matter of public concern" because it alleged that city officials "maliciously provided a prosecutor with false information to secure his arrest".  Even though a jury found in the officials' favor, the allegation is enough to state a claim.

As to the causal connection, this seemed to be a much easier call for the court.  The court said that the timing of the end of the lawsuit and the termination could lead a "reasonable jury to find that the defendants intentionally waited to fire him until the 2005 lawsuit was over".  Moreover, the Plaintiff alleged that during a meeting in which his release from work was discussed, a city official told him "[t]his is what happens when you file a lawsuit against the city".

(The case also addresses issues of disability discrimination as well, though it finds in favor of the Defendant.  Readers should also note that the procedural posture of the case presumes certain facts to be true, when they may not be, and merely send the matter to a trial for a final determination.)

What must be frustrating to an employer here is the fact that the mere timing of the termination appeared to be enough for the court to send the matter to a jury trial. Thus, employers should take note and be cautious of termination decisions that could be linked (at least in an argument) to a underlying issue.

Retaliation claims and First Amendment claims (or the combination of the two) continue to be one area where courts are allowing such claims to proceed to trial. Employers should take great efforts to review termination decisions to ensure that the risk of such claims is kept to a minimum.

 

 

 

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It has long been the rule in the Second Circuit, that individual supervisors do not have liability under Title VII claims, based on the case of Tomka v. Seiler Corp. 

But can supervisors be sued individually under the ADA for retaliation? The Second Circuit last week held that individual supervisors may not be held liable under the ADA as well.

In Spiegel v. Schumann (download here), the Court found that the ADA's provisions are borrowed directly from Title VII's provisions. Therefore, the court found that these provisions cannot provide for individual liability. 

This conclusion is arguably contrary to a literal reading of § 12203(a), where the phrase “[n]o person shall” suggests the possibility of individual liability. Because we apply the remedies provided in Title VII to the antiretaliation provision of the ADA, however, § 12203 presents that “rare case[]” in which “a broader consideration of” the ADA, in light of the remedial provisions of Title VII, “indicates that this  interpretation of the statutory language does not comport with Congress’[s] clearly expressed intent.”

This case isn't that much of a surprise (though the issue had been pending at the Second Circuit for years). It shouldn't change much for employers. They still need to ensure that supervisors abide by the ADA; it just means that if there is a violation -- the company, not the individual supervisors -- will be on the hook.

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With my work on the Law & Technology Symposium for the Connecticut Bar Foundation last week, there are several employment law topics that I haven't had time to discuss in full.

While I've shared some of these links via my Twitter feed (which you can find at twitter.com/danielschwartz), I thought I would recap some of the most newsworthy items of the month so far.

• A recent New York Times article indicated that the U.S. Department of Labor would be cracking down on employers' use (or misuse) of interns to avoid paying employees a true salary.  The Employer Law Report has a summary of what the rules are regarding interns.  The Ohio Employer Law Blog has a similar recap. 
• For employers, a new case out of New Jersey suggests that some e-mail by an employee using the employer's computer system may still be private.  This case -- while not directly applicable in Connecticut -- could have significant implications, as the New York Labor & Employment Law Report reports here.  
• Should you worry about LinkedIn recommendations? Kane Bennett, of the Connecticut Business Litigation Blog reports on one of the first cases were such a recommendation was used as evidence in a lawsuit. 
• As an employer, do you want to know how to keep an attorney who represents employees out of your business? A recent posting from a plaintiff's employment lawyer provides an insight on how to avoid litigation. 
• It remains extremely difficult for employer's to get summary judgment on a retaliation case -- particularly in the Second Circuit. A new case reported on by the Wait a Second Blog highlights the difficulties when summarizing a recent Second Circuit decision. 
• The "Restroom Issue", as it has been called, is one that employers sometimes struggle with when trying to address gender identity issues. This recent posting discusses some of the issues that employers may face and some solutions to handling it. 

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The U.S. Supreme Court on Monday agreed to hear Kasten v. Saint Gobain Performance Plastics, 09-834 (opinion below from 7th Circuit here).

Various other employment law blogs and authors have already chimed in on the case, including Workplace Prof, Michael Fox, Ross Runkel, and the SCOTUSBlog so I won't try to attempt to repeat their wisdom. 

But the question that the Court has agreed to address is as follows:

Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

On first glance you might say, well, of course! It would be difficult to see why the court would distinguish oral complaints from written ones. But the question will turn on the actual language of the statute which prevents retaliation against any person who "filed any complaint".  The Seventh Circuit held that act of "filing" requires some type of written submission.

Paul Secunda thinks that this might be a close matter and said he can't speculate on the outcome. Michael Fox disagrees and points the court's recent history in this area to fashion a more expansive reading of the anti-retaliation law. 

I tend to agree with Michael on this one.  Given the broad public policy of wanting to encourage employees to come forth with information of possible violations of the law, it's hard to see how the court could say that written complaints deserve more protection than oral ones. Nevertheless, I suspect we'll be able to read the tea leaves a bit better after oral argument.

For employers, though, I do not think this case will have much, if any, impact on day-to-day operations -- no matter the outcome. If you do receive a complaint (oral or written), it's still a best practice to followup on it and ensure that any anti-retaliation provisions that you have in place are followed.

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An employee who is passed over for promotion -- time and again -- may feel like the whole world is against them.  

Even so, the fact that supervisors and coworkers may "dislike" a particular employee is not enough to prove that the employer retaliated against the employee for participation in a discrimination claim.

So says, the Second Circuit in a case last month arising out of Connecticut.  In Lomotey v. Department of Transportation (Dec. 4, 2009), the Court affirmed summary judgment that had been granted to the employer on claims that it discriminated against an employee when it failed to promote him allegedly because of race and retaliated against the employee.   

Time and again, the court said that the proof offered by the employee was just not enough to warrant sending the case to a jury.  

For example, the employee alleged that the evidence showed that Caucasian employees would get training that would allow them to get promoted.  However, the court said that this was "nothing more than raw numbers which, without further information on key considerations such as the racial composition of the qualified labor pool, cannot support an inference of discrimination" -- suggesting that a statistical analysis was missing.

For employers, the case counters the argument by some that it is nearly impossible to get a case dismissed before a trial.  It's not impossible, but employers ought to have their rationale documented thoroughly and be able to support its decisions.

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In a decision that will be officially released on Tuesday, November 24th, the Connecticut Appellate Court has ruled that wrongful termination and breach of implied contract claims cannot be brought against the State of Connecticut due to the protections of sovereign immunity. 

The case Ware v. State of Connecticut (download here), will be of greater interest to private employers because it also held that the employee did not file a hostile work environment or retaliation claim first with the CHRO -- the state agency responsible for investigating such complaints -- and therefore was barred from bringing those claims in Court (for failure to exhaust her administrative remedies). 

The employee had brought a CHRO claim alleging gender and pregnancy discrimination, but the Appellate Court found that the new claims brought "are not so closely related to the allegations in her complaint to the commission that they reasonably would have been investigated by the commission."

The case presents another chapter in the litany of cases that have been coming down defining the limits of sovereign immunity. Earlier this year, the Connecticut Supreme Court in Lyon v. Jones reversed an appellate court that had relied on sovereign immunity to dismiss an employee's claims.  The claims here are different, but it'll be interesting to see how the Supreme Court reacts to this case and if it decides to weigh in on this issue. 

As a final matter, the court also held that punitive damages cannot be sought against the state in discrimination claims. Again, this decision will bring some clarity on claims brought against the state.

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As longtime readers of the blog will no doubt know, my following of employment law runs second to my love of the New York Yankees. (Which no doubt will upset the other half of the state that are Red Sox fans, but you've got to have your loyalties in this state). 

So imagine my surprise when a recent case decided by the Second Circuit Court of Appeals combined both the Yankees AND Employment Law.

The case, Luca v. County of Nassau (download here) (Aug. 17, 2009), is an otherwise standard employment law case in which the Defendant appealed from jury verdict against it on a claim of Title VII retaliation.  In the appeal, the Defendant claimed -- among other issues -- that contact that one witness had with a juror about the prior night's Yankee game should lead to a reversal.

The Second Circuit disagreed saying that the trial court exercised its proper discretion. But it highlights the pitfalls that even casual conversations with jurors can have on a case.

The Wait a Second blog does a great job spelling it all out:

A juror was seen talking with a witness. The witness said he did not know he was talking to a juror. They were not talking about the case; they were talking about the Yankees...

While that conduct alone is probably sufficient to raise at least a colorable argument appeal, it's not enough to carry the day:

As the Court of Appeals puts it: "Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a 'delicate and complex task,' we accord it 'broad flexibility.' The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.' Moreover, '[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is necessary.'”

Under this broad standard, the Court of Appeals lets the employment discrimination verdict in favor of the plaintiff stand. ...

Moral of the story: don't talk to jurors about anything during trial, be it the Yankees or any other topic.

So, while the Yankees certainly are having a good season, it's best to leave the baseball talk outside the courthouse.

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With the local economy suffering the effects of the economic recession, the prevailing wisdom of experts has been that the number of discrimination claims filed would continue to skyrocket. However, as I've pointed out before, we just haven't seen that trend in Connecticut play out.

New data just released by the Connecticut Commission on Human Rights and Opportunities (CHRO) confirms that the number of discrimination claims filed has actually dropped significantly over the last fiscal year (July 1, 2008-June 30, 2009). You can view the latest annual report here (and see my prior reports on the CHRO annual reports for FYs 2007 and 2008 both here and here). 

Thus in FY 2009, 1716 employment discrimination complaints were filed with the agency, compared with 1814 in the prior year.  Interestingly, the CHRO made almost the exact same number of "reasonable cause findings" -- 91 -- as it did in the prior year (88).  Over one-third of cases were dismissed on the merit assessment review stage and nearly another third were withdrawn with settlement. 

In an upcoming post or two, I'll delve into the statistics a bit further (including big drops in the numbers of harassment and retaliation claims being filed). 

For employers, trying to figure out why the number of discrimination complaints here in the state is has dropped while the among of people unemployed is up, is a tough one to tackle.

Could it be that more employers are offering severance in exchange for waivers of discrimination complaints? Is it that people who are laid off during a recession understand the rationale (tough economic times) better than when times are good? Are employers seeking more legal advice about the process, anticipating a higher risk of a lawsuit?

Adding to the head-scratching is the fact that complaints to the EEOC on a nation-wide basis are actually up significantly.  In any case, the new statistics reveal that a discrimination claim is not a foregone conclusion arising from a layoff, at least in Connecticut.

Photo credit: Grafixar from morguefile.com

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It's the stuff of television shows.  

In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:

[In the prior October], I learned that I had -- have stage III prostate cancer with a metastatic brain lesion."

While the cancer may have been known in the abstract, the "metastatic brain lesion" is not.  The employer's counsel moves for a mistrial and the court orders an immediate hearing (and disclosure of medical records) to receive some additional facts.

During the hearing, however, there's another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion.  Because the jury already heard the testimony, the court grants the request for a mistrial. 

But the fireworks continue.  Counsel for the employer says that a dismissal of the whole claim may be appropriate and asks the court to allow for some discovery.

And in a deposition, the plaintiff/employee discloses that some six months before trial, he knew that he definitely did not have a brain tumor.

What then? 

Dismissal, according to a federal court decision released on Friday.

In Radecki v. GlaxoSmithKline (download here), the court concluded that the plaintiff committed perjury in his testimony and that because the perjury was so serious, dismissal was the only appropriate mechanism.

Having "concluded that the plaintiff willfully provided false testimony for the improper purpose of causing the jury to feel sympathy for him", the Court discussed how perjury during trial is "intolerable."  Any sanction other than dismissal would give the appearance of the court's tacit approval of such conduct:

To have the plaintiff in this case pay a monetary penalty and then return to court and present his case before a new jury would give the appearance of tolerating “a ‘flagrant affront’ to the truth-seeking function of adversary proceedings,”, even if (or perhaps especially if) the court allowed the defendant to use the plaintiff’s perjurious testimony from the first trial to attack his credibility. Therefore, the court concludes that the most appropriate sanction in this case is a sanction of dismissal with prejudice.

As the court noted, this situation is extraordinarily rare. Indeed, the Court struggled to find comparable cases from which to draw its conclusion. (For a case out of Ohio, check out this post by the Ohio Employer's Law Blog.)

But the message the court sends through this case is anything but muddled: If you think real-life trials are just like television shows, where perjury is either condoned or is a plot device, think again.

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Just when you think you've seen it all, another case comes around to prove that theory incorrect.

The latest example is Ayantola v. Board of Trustees of Technical Colleges (download here), a Connecticut Appellate Court decision officially released today. In the case, an employee who claimed he was not promoted in retaliation for earlier discrimination complaints that he made, argued to the Appellate Court that it  now lacked jurisdiction to hear his claims.

in a sense, he was asking the court to throw out the very claims that he brought in the first place.

Is your head spinning yet? If not, a brief discussion of the background is first in order.

BACKGROUND

According to the court's decision, Job Ayantola, an assistant professor at Northwestern Connecticut Community College (and a self-described deaf, "black male") claimed that he did not get a promotion in June 2004 to the position of associate professor in retaliation for prior claims of discrimination that he made.

Those prior claims of discrimination had been resolved before the employee even applied for a promotion.

The employer contended that it denied him a promotion in June 2004 because of student complaints about him -- complaints that were compiled in an investigative report.  The college encouraged him to focus on improvement in specific areas and, a year later, the college did, in fact, promote him.

In the meantime, he brought a complaint of retaliation against the college for the damages resulting from the college's failure to promote him (for one year).  Following a bench trial, the Superior Court issued a decision rendering judgment in favor of the college finding that the failure to promote him was not due to discrimination or retaliation.

COURT'S DECISION

Perhaps in an effort to avoid the ramifications that a final judgment against him could entail, the employee claimed on appeal that the court actually lacked subject matter jurisdiction over the claims he brought.   He claimed that the state had preserved its sovereign immunity over the claims and that his claims could thus be brought to the state's claims commissioner.

However, the Appellate Court easily rejected this argument finding that it was foreclosed by the Supreme Court's decision earlier this year in Lyon v. Jones.  In that decision, the Court held that  state employee do not need to file a claim with the claims commissioner before suing the state for employment discrimination.

Because here, the employee did, in fact, meet all the jurisdictional prerequisites to filing a claim, the Court found that it had jurisdiction to hear the employee's retaliation claim.  In doing so, it felt free to address the underlying claim of retaliation and affirmed the lower court's decision. 

The case is another illustration of how employment discrimination cases can take all sorts of twists and turns that cannot be expected at the start.  Employers who defend such claims would be wise to expect the unexpected.

If you are looking for other examples of unexpected litigation arguments and results in employment law cases, the PointofLaw.com forum has a number of posts dedicated to the subject. 

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 A decision last week by the Second Circuit might seem fairly trivial. After all, the Court stamped a "summary order" in the case of Cunningham v. NY State Dept. of Labor (download here)  on June 10, 2009 thereby making sure the case doesn't have precedential effect.

But employers shouldn't ignore this decision; it illustrates the differences between retaliation and discrimination claims and the relatively low standard necessary to bring a claim of retaliation and get such a claim before a jury.

The case discusses what is an "adverse employment action".

 Without getting too technical, think of an adverse employment action as something that an employer does that is bad enough that the employee can then sue.  

After all, ordinary everyday work grievances are not enough; the employer must do something more than that in order for the employee to then be able to bring a claim. 

But is it possible for an employer to take an adverse action that is not enough to support a claim of discrimination, but IS enough to support a claim of retaliation? The court answers that question "yes" in Cunningham.  

In Cunningham, the employee claimed that he was reassigned from a fifth-floor office to a first-floor office (among other things).  The court said that this was not enough to state a claim for discrimination. In other words, that claim isn't the type of "adverse employment action" that can support a discrimination claim. 

But the employee's retaliation claim survives because the standard of what an "adverse employment action" is different and less demanding for those claims.

The Second Circuit concludes that "[i]n a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.'”

The court goes on to state that "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'”

You might scratch your head at first but you've read that correctly: the Court is, in essence, saying that reassignment of an office isn't enough to bring a discrimination claim over, but is enough (at least here) to bring a retaliation claim.  Put another way, different standards apply to both claims.

What's the takeaway for employers? As I've stated previously for retaliation claims, careful documentation of the decisions you make as well as consistency, can help minimize the risk that the claims will go anywhere. But as this case demonstrates, it's not going to take a lot for an employee to be able to satisfy the low burden necessary to keep such a claim alive.

(H/T Wait a Second)

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Suppose an employee files a complaint against your company and it's quickly dealt with.  Now suppose, ten months later, that you, the employer, fire that employee  -- ostensibly for financial reasons.  Is the timing between the original complaint and the termination enough to support a claim for retaliation?

Previous federal court cases in Connecticut have concluded, in general, that the timing -- standing alone -- is not enough.  I discussed one such case here.   

But a new Second Circuit decision, released as a summary order yesterday, suggests a way around that limitation --- at least in some distinct circumstances.

The case, Brenes v. City of New York, arises out of First Amendment retaliation claim brought by a New York school teacher who had gone to the New York Post months before his eventual termination.  The court suggests that an employer can be liable for retaliation if they waited to retaliate, so long as there was a reason why the employer may have delayed its action.

The Wait a Second blog fills us in on the rest of the details:

"A reasonable jury could infer from these facts that [the supervisor] expected that [employee]’s position would disappear in June, and that she therefore had no incentive to further retaliate against him until it became clear that he would be returning to [the school]. When considered in this light, [the employee]’s series of negative performance evaluations at the start of the next school year is suspicious and could plausibly support an inference of retaliation, particularly given that [the employee] previously received only satisfactory evaluations from prior supervisors and [his supervisor]."

This case allows retaliation plaintiffs to overcome the presumption that, without direct evidence of retaliatory intent ("You're fired because you blew the whistle six months ago"), an adverse action needs to take place more than a few months after the protected activity. 

For employers, this case -- while a rare example of the court finding a possible link of retaliation many months after the original complaint -- demonstrates the importance of documentation and consistency in evaluations and discipline.  Retaliation cases are among the most difficult to defend and this new Second Circuit decision might give some employees another way to establish a retaliation claim that might not otherwise survive.

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Record numbers of discrimination complaints were filed with the Equal Employment Opportunity Commission, according to a MSNBC column:

Discrimination claims filed with the Equal Employment Opportunity Commission jumped 15 percent in fiscal 2008 to 95,402 — the highest level since the agency opened in 1965, said spokesman David Grinberg. That is up from 82,792 claims filed the year before by workers who believe they were discriminated against because of age, race, religion, gender or other reasons.

Those are truly stunning statistics because the unemployment numbers for 2008 didn't even start to spike until the last few months and this is for the fiscal year ending September 30, 2008.  If you were to extrapolate that trend for 2009, it's entirely plausible that we could hit 100,000 claims filed during 2009. 

The formal numbers will be released later this week, but already, the EEOC spokesman has his interpretation: "It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008,” Grinberg said.

What is the makeup of these increases? Well, according to the MSNBC report, retaliation claims are up nearly 23%, age claims up nearly 29% and gender and religion claims up 14%.  By contrast, race claims are up only 11%, while disability claims are up a mere 10%.  Interestingly, Equal Pay Act claims -- which will get a boost from the Lilly Ledbetter Fair Pay Act -- were already up nearly 17% last year, before the passage of that bill.

What Does This Mean For Employers?

While the CHRO has yet to release its statistics for Connecticut, the EEOC numbers indicate that claims are on the rise..and in a big way.  Every decision to terminate an employee carries an even greater risk of a complaint.  With jobs becoming scarcer by the day, laid-off or terminated employees may view a complaint as their own way to stay afloat and their only option. 

These numbers emphasize the point that decisions to terminate employees should be made cautiously and carefully.  What are the consequences? You could end up being part of next year's statistics.

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In yesterday's post, I talked about the significant changes to COBRA that are in the new economic stimulus law. Today's post focuses on another, less-publicized provision in the new law regarding whistleblowers. 

Employers that expect to receive funds from the stimulus package need to be aware of the provisions so that you can be in compliance with the law and minimize the risk of whistleblower claims.

Which Employers May Fall Within Scope of the Provision?

While it's not exactly clear who is a "non-Federal employer" who received "covered funds", it's likely that given the intent of the act, that this law will apply to any employer who gets a grant, contract or another payment associated with the stimulus bill.  

What Conduct Is Protected?

The new rules protect disclosures to both outside  and inside individuals by aggrieved employees.  These might include disclosures to a person with supervisory authority over the employee, or to a state or federal regulatory or law enforcement agency.          

What Types of Disclosed Information Are Covered?

In order for the employee to be covered, that person must reasonably believe that the information he or she discloses is evidence of:

• Gross mismanagement of an agency contract or grant relating to stimulus funds;
• A gross waste of stimulus funds;
• A substantial and specific danger to public health or safety related to the implementation or
  use of stimulus funds;
• An abuse of authority related to the implementation or use of stimulus funds; or
• A violation of a law, rule, or regulation that governs an agency contract or grant related to
  stimulus funds.
   

Notably, if the employee first submits a claim to the inspector general of the agency administering the funds, the employee may have the opportunity to bring a civil suit for a jury trial under some circumstances.  

Action Steps for Employers

While the provisions of the law are new, the concepts behind them are not. Employers should remain steadfast in ensuring that employees are not retaliated against for filing non-frivolous claims and that any actions taken against an employee are well-documented and supported by legitimate non-discriminatory reasons. 

(H/T to Point of Law, among others, for passing on word of the provisions.   Check out JD Supra for additional information as well.)

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In an unanimous 9-0 decision, the U.S. Supreme Court today ruled Title VII protects workers from retaliation after the employee responds to questions in an internal investigation.  The Court held that Title VII protects those workers who speak out on discrimination during company-ordered investigations, not simply those investigations that arise from an actual discrimination claim. 

The case of Crawford v. Metro Government of Nashville (download here), arises from the lower court's granting of summary judgment -- so the court was required to view all facts in a light most favorable to the Plaintiff.  The case involved the firing of a 30-year employee allegedly for embezzlement, though that was after she participated in an investigation arising from a co-worker's complaints of harassment by another employee. 

From a purely legal perspective, the court discusses what has been termed the "opposition" clause of Title VII and finds that too narrow of a reading of that term would lead to strange results:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same  discrimination in the same words when her boss asks a question.

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.

Because of this, the court never reaches a second question of whether the employee's conduct was "participation".  (Title VII retaliation provisions can be raised under either an "opposition" or a "participation" prong.)

For employers, the case reinforces messages that all claims of discrimination and harassment should be promptly and thoroughly investigated. (In fact, the court revisits the landmark Farragher/Ellerth decisions to emphasize that fact.)  In addition, the employer should remind employees that they will not be retaliated against merely for participating in an investigation -- regardless of whether there is an active discrimination claim pending or whether this is a mere internal investigation on discrimination.

And, as always, employers should consider consulting with outside counsel during all facets of the investigation to ensure compliance with the applicable law.

An interesting concurrence by Justice Alito was also written to suggest that the Court's decision should not be read too broadly. 

An interpretation of the opposition clause that protects conduct that is not active and purposive would have important practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an employee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor. ...

The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here. For present purposes, it is enough to hold that the opposition clause does protect an employee, like petitioner, who testifies about unlawful conduct in an internal investigation.

(H/T SCOTUSBlog, Ohio Employer's Law Blog)

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About a year ago, I recapped a lawsuit brought by two former employees at the CHRO who claimed their employment was terminated improperly.  

At the time, I said that the complaint, brought by Valerie Kennedy and Paula Ross, "paints a picture of an organization run-a-muck with those who are charged with protecting against discrimination, as being those who allegedly did the discrimination."  The CHRO denied the allegations and the case was scheduled to be done with discovery by June 2008.

So, what's happened since then?

Publicly, not a lot.  The parties filed a status update with the court in June 2008 indicating that discovery was proceeding but that further extensions of time may be needed.  The case was then set down for a settlement conference with Magistrate Judge Garfinkel; that conference is now scheduled for November 12, 2008.  In light of that settlement conference schedule, the parties extended the discovery dates further and it is now scheduled to be complete in mid-December 2008.

(The papers reveal that further extensions may be needed to some some complications, so don't hold your breath on this date).  

So, if nothing significant (at least publicly) as occurred in a year, why is this matter still significant? Because it is a prime example at the relative speed that discrimination cases proceed in federal court.  For employers looking for quick resolution of such cases, that resolution is more likely to be found in a early settlement or mediation of a dispute.  

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Earlier this week, I posted on a $4M verdict in federal court in a retaliation case, Tucker v. Journal Register Co.

But did you ever wonder what the verdict form actually looks like? In other words, when the jurors fill out the form and then hand it to the judge, what does that verdict form contain and what sorts of questions are the jurors really being asked about?

I was able to download the verdict form for the case and it can be accessed here.  This is the actual verdict form that the jurors are provided when they go back to deliberations and the only document they need to fill out to make their decision.   As you will see, the verdict form lumps the damages together for both claims that were raised, but addresses the underlying legal claims separately. 

Even more illuminating, however, is the instructions that the judge provided to the jury before their deliberations (available here) .   Despite cases running several years, the instructions on the case will be boiled down to judge a few instructions specific to the claims.  It's worth remembering when a lawsuit starts that the questions that the jury will consider are not as complex as we sometimes perceive the law to be.

And if the answers to the questions that the jurors will be asked aren't clear to the employer at the start of the case, the answers are not likely to change all that much through litigation. 

Photo Courtesy Library of Congress - c.1910, first all-woman jury in Los Angeles

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Late last week (when, of course, I was out of the office), word came down about another large verdict in an employment law case in Connecticut.  The verdict, composed of $1M in compensatory damages and $3M in punitive damages in Tucker v. Journal Register Co. was first reported by the Connecticut Post last Friday here.  (H/T Jottings blog)

Long time readers of the blog may recall my discussion of the employer's summary judgment motion and the court's decision back in November 2007. In my posts back then (which can be found here and here).  I talked about how the former employee alleged that her employer terminated her employment because she was opposed to testifying as a favorable witness in the company’s defense of another employee against whom a sexual harassment complaint had been filed.  the employer denied the claims and said that she had been fired for misusing an office telephone in which collect calls were accepted.

The case went to trial on two legal claims: 1) retaliation under Title VII as a person who participated or opposed a discriminatory practice, and 2) Conn. Gen. Stat. Sec. 31-51q, which applies the First Amendment to private employers.  You can download the trial memorandum here.  

The Court's docket sheet hasn't yet been updated with some of the nitty gritty and I hope to followup with some more information about what happened during the trial.  For instance, the employer moved for judgment as a matter of law during the trial and the court has taken that motion under advisement. I would certainly expect post-verdict motions to occur -- even before an expected appeal (though it is unclear what the grounds would be).  According to Tucker's attorney, the jury found against the employer on both claims. 

Tucker's attorney, Jeff Bagnell, was understandably pleased with the multi-million dollar verdict:

We were very pleased with the jury's verdict. It sent a clear message that you can't retaliate against an employee who is going to tell the truth in a legal case. This excellent jury showed that people still care about the oath and what it means. Thank God for the Seventh Amendment.

This case demonstrates once again that retaliation claims and 31-51q claims are among the more dangerous type of employment law claims out there.   And although there aren't hard numbers out there on this, the damages that juries in Connecticut are awarding on such claims seem be on the increase. 

What does this mean for employers? It's yet another reminder to treat all claims of retaliation seriously.   And consider settlement of such claims when the opportunity arises. No matter how strongly an employer feels about the claims, once the claims go to a jury, there is always a risk of loss -- no matter how strong the facts may appear to be to the employer.

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The U.S. Supreme Court today, in Gomez-Perez v. Potter, ruled 6-3, that the Age Discrimination in Employment Act (ADEA) protects federal workers from retaliation based on age-related complaints. 

The majority decision, written by Justice Alito, essentially grants protection to those federal workers on the same terms that private workers have long had. In doing so, the Court has now made it clear that retaliation against workers, whether they work for the federal government or for private employers, for complaints of age discrimination is prohibited. 

Regardless, for private employers, this case has no real immediate impact because retaliation against their employees on the basis of age has been prohibited under federal law and, in Connecticut, under state law.

For background on the case, see the ScotusWiki or my previous post from February here.

What remains unclear -- and to which I suspect the commentary about this case will focus on -- is whether the court's logic -- by finding retaliation claims can be "read into" claims of discrimination -- will apply to other statute or claims.  

Justice Thomas and Scalia (who dissented on the other retaliation case decided today, CBOCS West v. Humpries) are joined by Chief Justice Roberts, who writes a lengthy dissent. Justice Roberts takes the majority to task for creating a cause of action not found explicitly in the statute:

The Court today holds that the federal-sector provisions of the Age Discrimination in Employment Act encompasses not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its language does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA. I respectfully dissent.

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The U.S. Supreme Court today, in CBOCS West Inc. v. Humphries, ruled 7-2 that the Civil Rights Act of 1866 -- now codified at 42 U.S.C. 1981, prohibits retaliation against an individual who complains of discrimination against others, when contracting rights are at stake.  It is an issue that often arises in workplace situations, but potentially reaches much more widely, as the ScotusWiki has noted on its site.

For background, see the ScotusWiki.  I also discussed the case back in February at a post here.  You can download the decision directly from the court here.

For now, the court's holding -- which relies primarily on the idea of stare decisis (or, in essence, we've already decided this in other cases so we're just going to apply it here) -- is found in this quote from Justice Breyer:

We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of  related cases where we interpret §§1981 and 1982 similarly.  CBOCS’ arguments do not convince us to the contrary.  We consequently hold that 42 U. S. C. §1981 encompasses claims of retaliation.

Justice Thomas writes a lengthy dissent with Justice Scalia joining saying, in essence, that the Court hasn't ruled on this before and therefore stare decisis is not applicable:

By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it  created remedies out of whole cloth to effectuate its vision of congressional purpose.” Ibid. That the Court does so under the guise of stare decisis does not make its decision any more justifiable. Because the text of §1981 provides no basis for implying a private right of action for retaliation, and because no decision of this Court holds to the contrary, I would reverse the judgment below.

For Connecticut employers, the decision is interesting, but because state law already prohibits retaliation on the basis of race (and allows for the recovery of significant damages), it may not have a significant impact on cases here.  Nevertheless, it provides another type of claim that employees may consider when filing suit -- and other claim that employers will need to concern themselves about.

I'll update this post further with some additional feedback and analysis as warranted (and as time permits).

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The 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."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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As with other U.S. Supreme Court cases this term, there's been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of  when it is illegal for an employer to retaliate against an employee for complaining about discrimination.  For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.

I'll leave it to others, such as Ross's Employment Law Blog to explain the cases. 

• In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint.  ADEA already prohibits retaliation by private employers.  Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
• In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts...") provides a cause of action for retaliation as well.   However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims. 

Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case."  Unless the decision's rationale is broad, that seems to be an overstatement at this point.  Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981.  Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations.  Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline.  Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.

Jon Hyman, at Ohio Employer's Law Blog, has some additional thoughts on the Humphries case as does Workplace Prof.  A decision on these cases is expected by June 2008.

For employers in Connecticut, I would ignore the hype about these cases.  Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4).  Regardless of how the Supreme Court decides, state law will continue to apply.  If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don't worry about whether federal or state law will ultimately apply. 

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Yesterday, I summarized a proposal by Connecticut Attorney General Richard Blumenthal to revise the state's whistleblowing laws. The Hartford Courant reported on Wednesday that Blumenthal testified before members of the General Assembly's black and Latino caucus on that issue.  Today, I'll take a look at it in more detail.

As I indicated yesterday, the Hartford Courant and others reporting on the case used the term "strengthen" to describe the changes to the laws. Although I'm not one for word-smithing articles, that term strikes me as a bit loaded for a few reasons.

First, it suggests that the state's whistleblower protection laws are "weak" -- which I'm not sure is the case. Second, it begs the question: how would it "strengthen" the laws and from what perspective? Third, what does it even mean to "strengthen" a law? And fourth, would this "strengthen" or affect existing constitutional retaliation claims that already exist to protect employees who report matters of public concern? The Courant's article, unfortunately, does not address these issues.

One issue that ought to be looked at, for example, is the proposal is to create a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

Moreover, such a proposal ignores what courts have been concluding over the years (see cases here and here for two recent examples): it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.

The U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The 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."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two (and even highlighting cases that say 3 months is too long), what is the rationale behind the proposed legislation assuming such a connection up to 36 months later?

Another question that should be examined is whether the proper role of the AG's office is preserved.  For example, on the AG's website, the AG's Department of Employment Rights indicates that it is designed to defend "state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues."  Obviously, if the AG is interfering in whistleblowing cases, the AG's office cannot serve in a dual capacity -- representing the employees and the agency as well. How will such a determination be made if the AG's office is allowed to intervene as proposed?

Certainly a review of existing laws to update them and to ensure protection to whistleblowers is appropriate.  And none of the issues I raise above are unresolvable. But before the legislature takes action, it should vet the provisions thoroughly. What makes for good headlines may not make for good law.

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On Friday, Connecticut Attorney General Richard Blumenthal proposed new legislation to change the state's whistleblower laws.  Video from the press conference is available on Senator Edith Prague's website. 

Before the changes are discussed, it is useful to understand the state already has an existing whistleblower statute, Conn. Gen. Stat. Sec. 4-61dd and that enforcement of the statute falls within the purview of the Connecticut Commission on Human Rights and Opportunities. The CHRO has a portion of their website devoted to this area.

So what are the proposed changes? The changes would include:

• Allowing the Attorney General to intervene on behalf of whistleblowers in an administrative hearing on retaliation;
  
• Extending the time period for the rebuttable presumption that adverse personnel action is retaliation to three years from the date the whistleblower filed a complaint pursuant to the whistleblower statute;
  
• Authorizing the hearing officer to grant temporary relief to rescind a retaliatory action during the pendency of the hearing and to grant motions to amend the complaint if additional incidents of retaliation occur during the hearing.
  
• Requiring the hearing officer to send any finding of retaliation to the supervisor of the person found to have committed retaliation as well as the governor, head of the agency and the Commissioner of Administrative Services. Such individuals shall take appropriate personnel action.
  
• Requiring that the hearing officer's decision and any subsequent personnel action against the person who engaged in retaliation be a public record and shall be posted on the Department of Administrative Services' website

The Hartford Courant provides some additional background for the proposed changes as well including reference to an ongoing complaint against the Department of Corrections. 

Tomorrow, I will analyze the proposal and highlight some issues that the legislature ought to consider when it debates the bill.

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In 2003, a local Connecticut radio station, Hot 93.7 (WZMX) fired its prominent DJ - Wendell (JD) Houston.  Five years later, a federal court trial regarding Houston's claims that his termination was due to discrimination have just started.

As with all such matters, the allegations are complicated and contested. Thus, as always, a word of caution to the readers that allegations are not facts.   Both sides are presenting their case now and it will be that evidence that the jury will consider -- not what the parties tell the media.

The Associated Press takes a shot at trying to summarize a five-year old case into several paragraphs in this story, reprinted in the Hartford Courant today.

Ratings soared when WZMX-FM Hot 93.7 switched from "dancing oldies" to an edgier hip hop, but behind the on-air banter racial tensions were rising among the stars at the Farmington radio station.

Wendell "JD" Houston, the show's black host, says a figure depicting the lynching of a black man was left dangling from his microphone and racist posters were hung at the station. He says the station hired him in 2000 under pressure to diversify, but denied him promotional appearances and favored his white co-host when the pair clashed.

"The defendants wanted an Uncle Tom, a black person who would remain behind the radio microphone and be heard but not seen," Houston's attorneys wrote in a federal racial discrimination lawsuit that heads to trial Tuesday in Hartford.

CBS Radio, which owns the station, says Houston has no direct evidence of discrimination and the Connecticut Commission on Human Rights and Opportunities dismissed a complaint he filed in 2002.

Houston was let go in 2003 after he was accused of cursing at his co-host, sexually harassing another colleague and constantly fighting with his supervisors and others at the station, the station says. They say he sent a note to the woman who accused him of sexual harassment titled "vengeance upon adversaries" that quoted the Bible.

Articles like this, although well meaning, do a disservice to the readers because they are unable to provide readers with the full context of the case.  Evidence that may never be presented to the jury is treated as "fact", which -- as highlighted above -- it is not. 

Thus, as a service and as background to the key points likely to be made by both sides in this trial, I'd suggest first reviewing the papers submitted to the court on a motion for summary judgment.  Infinity Radio's Motion for Summary Judgment is here, Houston's brief opposing it is here, and Infinity Radio's reply is here. Two years after the motion for summary judgment was filed in 2004, the Court denied the motion in a summary order here.  However, its fair to say that both sides will be relying on much of the same evidence at trial and letting a jury decide.

Where things get interesting is actually in the parties' joint trial memorandum filed in the fall of 2006.  Both sides have indicated that they may put on witnesses that are quite clearly in the public eye, including other radio personalities ("DJ Buck",  "Kid Fresh" and Jeanine Jersey, for example) and community leaders (like former Hartford School Board Chair, Rev. Wayne Carter).

The court records indicate that they were only able to get barely started yesterday on the trial so, according to the parties' own statements, this trial (presided by Judge Alvin Thompson) should last at least another week or two.  Houston is being represented by Frances Miniter and Infinity Radio has brought in Proskauer Rose out of their Boston office.

I won't pretend that I've listened to the station that much -- I'm a bit more attached to XM Radio these days -- but it is not often that radio and television stations make their own headlines.   "Stay tuned" for further developments.

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A U.S. District Court decision today by Judge Janet Arteron provides a bit of clarity on some first amendment retaliation issues that may be helpful to some employers. The case, Milardo v. City of Middletown (Dec. 20, 2007), is by no means groundbreaking; the facts of the case allow the court to sidestep some issues by simply finding a lack of evidence to support some of the claims.

Nevertheless, the case addresses, for example, the common argument of retaliation claims that mere temporal proximity should be sufficient to state a claim for retaliation.  (Click here for prior posts on the issue of temporal proximity for retaliation.)   The court here finds that the passage of nearly a year between an alleged complaint and the ultimate termination is insufficient to support a claim of retaliation.

One other interesting aspect is whether the filing of a Freedom of Information Act (FOIA) request is sufficient to form the basis of a First Amendment claim.  The court says that the answer generally is no and that Plaintiff did not show that his case falls within the very narrow exception to that general rule. 

As a general matter, courts have held that there is no First Amendment right to access government information, even by way of the FOIA. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 8–9 (1978) (plurality opinion) (“Neither the First Amendment nor theFourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”); id. at 16 (Stewart, J., concurring) (“The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government.”); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information. A litigant seeking release of government information under FOIA, therefore, relies upon a statutory entitlement — as narrowed by statutory exceptions — and not upon his constitutional right to free expression.”)

To the extent there is a limited constitutional right of access to some types of information held by the government, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)
(recognizing a First Amendment right to access certain aspects of criminal proceedings), Plaintiff has failed to show how what he requested through the FOIA falls within that exception. See Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934–36 (D.C. Cir. 2003) (summarizing the limited ways in which the Constitution guarantees access to criminal trials).

Milardo argues in his brief only that, although “the mere filing of a FOIA request is not necessarily ipso facto the exercise of a protected First Amendment right, the nature of the request in this case does merit First Amendment protection.” (Pl.’s Opp’n at 6.) In his request, Plaintiff sought information which he believed would reveal evidence of improper conduct by city employees, but he has not shown how this is the type of exceptional request that merits constitutional protection.

Moreover, the undisputed evidence shows that the city produced the documents he sought and that his request played no part in the city’s ultimate decision to terminate his employment ten months later. Thus, no reasonable fact-finder could conclude that Plaintiff was subjected to an adverse employment decision in retaliation for making any constitutionally-protected request.

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After an employee complains about discrimination, if an employer terminates the employee a year later, can that fact -- in and of itself -- be a sufficient grounds for a retaliation? A District Court decision released yesterday said no.

In Thornewell v. Domus Foundation, Inc.,U.S. District Court Judge Alvin Thompson dismissed outright a retaliation claim where the Plaintiff alleged only that his prior complaint was the basis for his termination a year later:

[The employee] only alleges that he “complained about the discriminatory treatment that he[experienced]” (Compl. at 7), and that he was later terminated. [The employee] alleges that the date of his last complaint was June 3, 2004 and that he was terminated as of May 1, 2005. Id. at 7, 9. Standing alone, these allegations are not sufficient to state a claim for retaliation because the alleged retaliation occurred nearly a year after the protected activity (i.e. the complaints). See Clark County School District v. Breedon, 532 U.S. 268, 273 (April 23, 2001) (per curiam), reh’g denied 533 U.S. 912 (June 11, 2001) (citations omitted) (noting that temporal proximity between an employer's knowledge of protected activity and an adverse employment action must be “very close”).

The decision is another indication that courts are starting to look for more substance in retaliation claims other than just the filing of a complaint and a termination.  The Court went on to note in the case that although the Plaintiff did allege other facts in support of his retaliation claim, he did not note the dates of those; thus, the court did not view such allegations as relevant to the inquiry.

For employment practitioners and companies that appear before Judge Thompson, the decision is interesting because of the judge's own statements that he disfavors dismissing employment claims on the papers. His chamber practices statement indicates that he believes that:

dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case.

True to his word, he refused to dismiss an accompanying Title VII discrimination claim and a disability discrimination claim.

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Summary Orders (in other words, decisions with no precedential value) by the Second Circuit typically are not worth noting. However, a decision released today is telling for the court's view of race and gender discrimination cases and it can be cited by parties under certain limitations.

In Williams v. Consolidated Edison of New York, the court reversed a lower court's decision granting summary judgment to the employer on race and gender harassment grounds.  While the court may have been skeptical of the claims, it found that the amount of evidence presented by the Plaintiff -- if believed -- could support a claim of racial and gender harassment.

In approximately three years at the company: (1) one supervisor..., referred to Williams as a “black b****” on more than one occasion and ... another supervisor,
referred to her as a “b****”; (2) [one supervisor] directed gender-based verbal abuse at Williams...; (3) [one supervisor insinuated that Williams and [another employee] were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “b***” and “c***”; (5) women encountered pornographic materials in the workplace on at least several  occasions; (6) Williams and [another employee] experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers... states that she, too, was sexually harassed, including that she was called a “b**” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal
abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

Obviously, as readers of this blog know, these allegations are merely that -- allegations.  But the language used here and the different types of harassment alleged, was obviously more than enough for the Second Circuit to reverse.

The Court also addressed the employer's response to co-worker harassment:

Whether Con Ed’s response to Williams’s complaints about a sexually and racially hostile work environment — and the information it obtained in the process of investigating her complaints — constituted “appropriate remedial action” is subject to reasonable dispute on the record before us. During the first human resources investigation into Williams’s complaints in 2002, several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments. Given the information that Con Ed received during its investigation and the absence of anything in the record indicating whether Con Ed followed up on this information, a reasonable juror could find that Con Ed failed to take prompt and appropriate remedial action in response to substantiated allegations of sexual and racial hostility in the workplace.

It's easy to look back on this case and point out that the employer should've done more.  And indeed, an investigation that may look thorough at the time, can appear to be incomplete given a the context later on.  However, the case is a further illustration about the importance of conducting a thorough investigation when complaints of harassment are made and detailing that investigation in a written report.  Whether that still would've been enough here is questionable but it might have helped. 

Moreover, when a second complaint was made by Williams and investigated until Williams said she was too "stressed" to continue, the court found that this second investigation was also subject to dispute and the employer may not have done enough.

When Williams complained a second time to human resources about being subject to a sexually hostile work environment, the human resources officer closed his investigation after speaking only to Williams’s supervisor. That action was based in part on Williams’s decision not to follow up with him because she was “too stressed.” A reasonable fact-finder could conclude this second investigation was a perfunctory and inappropriate response to Williams’s hostile work environment allegations, which Con Ed arguably should have investigated regardless of whether Williams had the time or the energy to pursue it further.

This illustrates the importance of continuing a sexual harassment investigation to its conclusion -- regardless of whether a complainant later refuses to cooperate or asks that the investigation be conducted in private. The court's decision suggests that employers have an independent and affirmative obligation to investigate claims of harassment, regardless of the complainant's wishes, once it is made aware of them

What is also notable about the case is that the court affirmed summary judgment to the employer on the retaliation claims finding them either time-barred or without merit.  In essence, the court found that the reasons given by the employer for the discipline of the employee were legitimate. 

Williams admitted that she made statements referring to the possibility of driving a truck into the trailers of the Brooklyn flush facility and to going “postal” at work — comments that invoke images of violence against her superiors and that could be understood as veiled threats. Furthermore, three coworkers reported that those comments were even more explicitly threatening than Williams admitted. Based on its zero tolerance policy of violence or threats of violence in the workplace, [the employer] took disciplinary action.

It's unfortunate that this case cannot be cited for precedent because it speaks to some issues that could use further clarification by the Second Circuit. But employers and in-house counsel can still take the lessons of the case to heart.

(H/T - Wait A Second!)

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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.

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For retaliation cases, an employee's active participation in another person's discrimination case has been viewed, in the past, as the threshold to be a "protected activity" under Title VII's retaliation clause.  That has been watered down in the Second Circuit in recent years.  A new District Court decision today has concluded that simply expressing a reluctance to testify in another employee's case, without actually testifying, could also be a protected activity.

In Tucker v. Journal Register East, (known more commonly as The New Haven Register), the Plaintiff -- a former employee, alleged that the Register terminated her employment because she was opposed to testifying as a favorable witness in the Register’s defense of another employee against whom a sexual harassment complaint had been filed.  The Employer filed for summary judgment claiming that the employee never opposed a discriminatory practice.

The Court rejected that argument finding that a different section of Title VII analysis -- the participation clause -- may apply.   Notably it follows the "it would leave the employee 'wholly unprotected' language used by the Second Circuit in recent years. 

The court believes that, in accordance with the principles set forth by the Supreme Court..., and by the Second Circuit..., [the employee]’s conduct is sufficient to qualify as a “protected activity” under Title VII. To hold otherwise would permit an employer involved in a Title VII proceeding to retaliate against an employee based upon that employee’s decision as to what her participation in the Title VII would be. Indeed, [the employee- would be “wholly unprotected” if the court were to find that the Register could terminate her because she had changed her mind about testifying on the Register’s behalf in the CHRO proceeding.

While the court's broad reading of Title VII is disputable, it appears the court was simply troubled by the timing of the employee's termination; it occurred two days after the employee allegedly expressed reluctance.  Moreover, the employer's reasons for terminating the employee (she allegedly accepted a collect call at work from a felon at a state correctional facility) seemed, to the court, excessively harsh.

Because this case involved a local newspaper, it'll be curious to see the media's reaction to this case. Obviously, this is only a denial of summary judgment; the employer may ultimately prevail at trial. But newspapers have a tendency to gloss over these facts in reporting about the case.

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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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It has been over a year since the Supreme Court's decision in Garcetti v. Ceballos, which held that where a public employee speaks as an employee and not a public citizen, such speech is not protected under the First Amendment. 

Courts applying the decision have tried to impart some parameters to the Court's decision such as whether an employee's job description is "controlling" as to what those job duties actually are.    (One issue not yet resolved-- and the subject of a future blog post -- is the question of whether Garcetti applies to employees at private companies.  A split in authority has been developing in the state courts on that issue, although the majority appears to answer that question "yes".) 

One interesting case came down from the U.S. District Court in Connecticut last month.  In O'Dea v. Shea, et al, the court granted a state agency's motion for summary judgment where the employee claimed that she was given a poor performance review in violation of her First Amendment rights.  

But the reasoning behind the decision shows that Connecticut courts have begun to apply the Supreme Court's ruling in Garcetti v. Ceballos. The background of the case is straightforward:

• The Plaintiff became Director of Acute Nursing at Blue Hills Hospital in central Connecticut.
• In the spring of 2004, her supervisor purchased refurbished used furniture for the unit. 
• According to the plaintiff, she complained that bringing in used furniture into the facility would lead to more insect infestations. 
• In May 2004, the plaintiff received a "satisfactory" rating on her performance review and sued on that basis. 

Rather than address the issue of an adverse job action (which would seem to be the "easier" of the questions), the court ruled that Garcetti foreclosed her case.  "An Employee may still be performing his job when he speaks, even if that expression is not demanded of him."  The court emphasized, thus, that courts should not look at formal job descriptions but rather to the "practical" considerations of an employee's job.  Thus, the court -- in essence -- found that the job description was not dispositive of the issue.

Because the court concluded that the employee raised her concerns in her "professional capacity" as an employee, and not as a private citizen, her speech was not protected by the First Amendment.

The case reinforces the notion that First Amendment claims (including those brought under comparable state laws) by employees face an uphill battle.  For the time being, not even narrowly drafted job position descriptions appear to be able to defeat a defense that the employee's comments were in the course of his/her duties.

For employers that are considering revising an employee's job duties or position description, it makes sense to include a reference to reporting safety or other concerns (if that is a legitimate part of the job). Although the employer may believe that this is implicit in particular jobs, it is helpful to have this established at a neutral point in time in writing -- rather than as a company policy.

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A recent article by the Connecticut Law Tribune reported on the trial of two bar workers who claimed that they were terminated in retaliation for reporting a supervisor's alleged sexual harassment of a waitress.  According to court records In the trial of  Daniel Van Kruiningen and Kimberly Chatterton v. Plan B, LLC d/b/a Mohegan After Dark, which took place in federal court in May 2007 (the article fails to mention the date), the jury found for the employer on all counts, including a common law claim for wrongful discharge. 

The Tribune article sums up the salacious allegations found in the Complaint:

Mystic resident Daniel Van Kruiningen and Kimberly Chatterton of Norwich were assistant manager and club manager of Ultra 88, an upscale lounge at the Mohegan Sun casino on Dec. 7, 2003. After hours, Chatterton was checking on other bars owned by her employer... 

Afterwards, Van Kruiningen obtained copies of the video surveillance camera’s recordings at Lucky’s Lounge, which showed that a young waitress had returned to Lucky’s after Chatterton left. Indistinctly, the videos appeared to show that [the supervisor] had sex with her on or near the bar.

According to the Complaint in the matter, they alleged that the video showed the supervisor causing the waitress to become intoxicated through serving of alcohol. Chatterton and Van Kruiningen alleged that they complained about serving alcohol to this underage waitress and about the incident, and alleged that they were fired a month after this incident in retaliation. 

From an employment law perspective, the most interesting aspect of the case is the wrongful-discharge claim.  The real action on this count took place behind the scenes before the trial, however.  In ruling on a motion for judgment, the District Court rejected the employer's claim that reporting a supervisor's serving of alcohol to minors was not an "important public policy" giving rise to an exception to the employment-at-will doctrine.  The court found that a wrongful discharge claim could arise from a state statute that forbids the serving of alcohol to minors. 

Footnote 6 of the opinion contains an interesting observation by the court about whether its ruling  will open the floodgates in other matters.

Defendant maintains that “[u]nder plaintiffs’ theory, every employee who observes – but does not participate in – a supervisor’s single violation of an important public policy, and who reports such violation to her employer, is immune from termination on an at-will basis.” ...This is an overstatement because it overlooks the reality that such plaintiff must prove that he or she was terminated in retaliation for his or her reports of such  unlawful conduct; while the amount of allegedly unlawful conduct, and/or the number of times plaintiffs voiced complaints, may be relevant to the jury’s causation determination, these considerations do not render plaintiffs’ public policy claim as alleged legally insufficient.

What does this mean for employers in the state? It's another case that has, depending on your perspective, eroded the at-will employment doctrine in Connecticut further, or expanded wrongful discharge claims to protect employees who report violations of state law. Although the employer ultimately prevailed at trial, the cost of the litigation as well as the uncertainty regarding the outcome must have weighed on the employer.

For employers in the food-services industry, the decision takes on some added significance. Because complaints regarding other employee's violations of liquor laws could give rise to a wrongful discharge claim under this decision, employers should consider investigating such complaints and ensuring that its supervisors do not retaliate against employees who make such complaints. Advice of legal counsel to discuss the particular circumstances should also be considered.

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How do you avoid retaliation lawsuits? The true answer is by a bit by luck.  Despite all measures that some employers take, the inevitable fact is that some employees will file suit regardless. 

But all hope is not lost for employers.  There are steps that employers can take to reduce the likelihood of a suit.  Indeed, the single most important factor that an employer can apply is following the letter and spirit of the law.  The Pennsylvania Employment Law Blog recently posted a few of its tips that are worth considering.  Among them:

• Investigate even the Half Baked Complaints: Hindsight is 20/20 and its what employers are judged by in court. If an employee takes the time to complain about "illegal actions" then you take the time to make an investigation. First, ask the employee make a complete report of his suspicions. If the complaint involves you, let someone else do the investigation, please.

• Make a Written Finding: In the event of whistleblower type complaints, make a written finding that they were investigated and played no part in the termination decision and why.

• Manage the Appearance of Retaliation: Examine the timing of the whistleblower complaints and any discipline or termination decisions.

In Connecticut, there are specific laws that address whistleblowing and retaliation, including Conn. Gen. Stat. Sec. 31-51m.  As a result, employers who are aware of employees who have made complaints will need to be particularly cautious before making any employment related decisions that are unrelated to such complaints.

Two ideas for employers to consider in such event are:

• If action is necessary against the employee for reasons other than the protected activity, how has the employer treated similarly situated employees? Is the employer over-reacting here? Past precedent can be a good indication whether the decision is fair here.  Look to any internal policies that the employer may have to ensure that the policies are being applied in the same way.
  
• While the employee may have made complaints, such employees -- but not all -- are looking for an ear within the company.  If they feel that their concerns are being listened to, it may go a long way to resolving the issues that they may face in ways that are palatable to the company.  Maintain an open line of communication with the employee even when its difficult.  Treating that employee as a pariah will typically only make matters worse.

Of course, whistleblowing complaints in particular industries such as health care or product safety raise particular issues.  Before adverse action is taken against such employees, a thorough analysis of the risks involved (with human resources and an attorney reviewing the matter) will help ensure that the decision being made is done fairly and properly. 

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