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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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If there is something that can cause an attorney nightmares, it is the possibility of missed deadlines.  Recently, there was an attorney in California who missed a court deadline -- BY ONE MINUTE -- costing his client over $1 million in legal fees. 

This morning, that nightmare is a reality for the Town of Bloomfield, courtesy of a decision by the Connecticut Supreme Court.  According the court decision, the Town of Bloomfield missed the deadline for filing for an appeal of an arbitration award by two days.  The court said, in essence, that the appeal should have been filed within 30 days of the decision because the basis for the appeal was that the award violated public policy. In such a case, Conn. Gen. Stat. Sec. 52-420 -- with its 30 day limit -- applies.

Because the challenge to the arbitration award was untimely, the Court essentially upheld the award which ordered reinstatement  -- without back pay -- of a Bloomfield Police Officer who was terminated in June 2004 for allegedly lying on an arrest warrant application and later to internal affairs officers, according to a report in today's Hartford Courant. 

Now, if this case sounds familiar, its because a few months ago, I reported on a CHRO decision which awarded the same police officer back pay for the period of time when he was out of work. The CHRO concluded that age discrimination played a role in his termination and thus warranted an award.

Would filing the appeal of the arbitration award have made a difference in the ultimate outcome. That's unclear to an outside observer.  But what is clear is that the Town of Bloomfield is essentially out of options. 

As employers in Connecticut consider terminating employees, the case is also a lesson that deciding to terminate an employee may be only the beginning of a process, not the end.  And for all the time and effort that may go in to preparing to terminate an employee, the same cautiousness and analysis should be applied afterwards as well.  Understanding the answers to such questions as, "Is there an arbitration provision? If so, are there deadlines associated with it? Are there other internal grievance procedures that need to be followed?" will assist an employer in  getting resolution on some issues -- and sleeping better at night.

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For employers in the state, the lawsuits now being brought against St. Francis Hospital and Medical Center for the alleged actions of a former physician, should be a huge wake-up call that former employees can cause big headaches for their employers -- even decades later.  These cases -- which are still at the earliest stages -- arise from the actions of a former physician who had not even worked at the hospital for 15 years (and who died in 1998). 

How can this be, you might ask, and why are these claims not automatically time-barred? The claims may arise, in part, due to a change to the statute of limitations in 2002 that addressed claims arising from sexual abuse of minors. For employers in the state who have had employees in the past engage in similar conduct, the case is a unfortunate reminder that long-forgotten claims could still resurface.  Steps can be taken now to determine a company's exposure to such claims and put in place processes to prevent such claims from occurring.

First, a caution:  This post is admittedly long and the details of the cases are not for the squeamish.  However, the background and length are needed to explain the issues that employers face.  The Hartford Courant has a series of articles on the particulars, including the latest one today here.

As the Courant has summarized or indicated in various articles and on its website:

West Hartford, Connecticut police announced a few weeks ago that a homeowner renovating the basement found a large quantity - 50,000 35-mm slides and more than 100 8-mm video reels - of child pornography hidden in a secret storage area in the home.  The house was was previously owned by Dr. George Reardon, a former chief of endocrinology at St. Francis Hospital and Medical Center in Hartford with a troubled history.  

Dr. Reardon resigned in disgrace in 1993 as a series of witnesses testified before the state Medical Examining Board that he had photographed and molested them as children.   Lawyers now contend that the Hospital failed to supervise Reardon.

St. Francis officials have said the hospital was under the impression that Reardon was conducting a legitimate practice and had no idea of any wrongdoing.

"The newest revelations are shocking and, as we've said before, our hearts go out to each and every victim," said Barry Feldman, general counsel and senior vice president at St. Francis.

St. Francis, which has offered to help the alleged victims get counseling, is hoping to reach a quick and fair conclusion to the legal actions in the Reardon matter, Feldman said.

Although a few past victims sued Reardon's estate and won modest settlements after his death, the recently filed lawsuits [after the revelations of the child pornography stash] mark the first time St. Francis has been named in any legal action related to Reardon's activity in the hospital.

So, if the claims are based on the actions of a doctor from the 1960s to 1993, aren't they too old to be brought? After all, the "normal" statute of limitations on tort claims (that is. actions for negligence or some actions for personal injuries) is three years.  Conn. Gen. Stat. Sec, 52-577. 

However, one exception to this statute is that for claims based on the personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault, another much longer statute of limitations applies.  In such cases, Conn. Gen. Stat. 52-577d, states that claims may be brought up until that person reaches age 48 -- potentially extending the statute of limitations for up to four decades.  (Technically, its 30 years from the time a person reaches the age of "majority" -- which is age 18.)

Notably, this statute of limitations was increased in 2002 to age 48 (up from age 35 that had been in the statute), through the passage of Public Act 02-138.  The act appears to take care of the retroactivity question as well, by noting that new statute is "Effective from passage and applicable to any cause of action arising from an incident committed prior to, on or after said date".  Thus, claims that may have been untimely in 1995 or 2000, may now be timely. 

Do the claims against St. Francis Hospital meet these criteria? That's up to a judge or jury, ultimately.  The legal claims and facts of each case are different enough that it's impractical and irresponsible to paint such cases with the same brush.  And considering the lawsuits have only been filed this month, it's still much to early to tell what is going to happen to these claims.  To its credit, St. Francis Hospital has been out front on these issues; its website, for example, contains a detailed statement from its President and CEO and notes that the hospital is already taking steps in response. 

But for other employers in the state, these cases should be of concern.  Publicity of lawsuits like these could lead to other lawsuits against other employers as well for actions of their former employees.  Considering the turnover at many companies, many executives may not be aware that such claims might be lingering out there.  A prudent executive or in-house counsel should start asking questions internally now to determine what, if any, exposure exists.  Questions can be asked, such as:

• Are we aware of any instances where one of our employees was accusing of abuse of a child?
• If so, what claims have already been made and what is the potential remaining exposure to such claims?
• What steps have we taken to preserve any records of such incidents so that we can defend ourselves if new claims surface in the years to come?
• Is there any insurance that we have had or have that might cover such a claim?
• Who, within the company, has the institutional knowledge to assist in any defense? If they've retired or move on, is there a way to contact these people?

Hospitals, schools, day-care centers are all potentially at higher risk for such claims given their employees' significant contact with children.  As such, the case is also another reminder that background checks on employees -- to weed out potential problems before those people work for you -- remain a good tool to use in the hiring process, which I've discussed before.

By analyzing past exposure and implementing good hiring practices now, employers can get a better grip on their potential exposure to such claims and be prepared if such claims do, unfortunately, arise. 

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

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

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

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

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

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

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

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