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

A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

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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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Some commentators have argued that the federal courts are increasingly hostile to employees who bring employment discrimination claims in federal court. One study, for example, suggested that plaintiffs simply have too many obstacles to overcome in federal court.

A new study on summary judgment practices by the Federal Judicial Center suggests that such a perception may be off-center.  (The FJC is the education and research agency of the federal courts.)

Paul Mollica of Daily Developments in EEO Law reports on the study:

[The study shows] that 35% of employment discrimination cases culminate in a summary judgment motion. [The study also] reports the bottom-line figure that 9 to 14% of the employment discrimination cases (depending on the district studied) were actually terminated on summary judgment. (One way to square the numbers is that in many instances, the defendant succeeds on dismissing some counts but not others; multiple counts often seek the same relief.)....

 [I]t appears that far more federal employment discrimination cases are ending on favorable terms (either settlement or avoiding summary judgment) [to Plaintiffs] than the anecdotal evidence first suggests....

What does this mean? It means that there are a lot fewer cases getting dismissed at the summary judgment stage (i.e. before trial) then many believed. 

For in-house lawyers advising their clients about summary judgment, the study should serve as a cautionary tale that an early exit in a case before trial may not be realistic.  Summary judgment on the papers of a case remains difficult to achieve in federal court (and even more difficult in Connecticut state court).  This translates into higher litigation costs and the realization that, absent a settlement, an employment case could go to a trial (further increasing the costs).  

(Hat Tip: Workplace Prof)

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Disciplining employees for violations of company policy is, as a general rule, a good thing for an employer to follow.  However, when a company disciplines employees differently for the same offense, perceptions of discrimination (rightly or wrongly) can creep in.

A new case released this afternoon from the United States District Court illustrates that.  In Norris v. Metro-North Commuter Railroad Co.(Case No. 06-cv-00439)(Arterton, J.), the Court denied an employer's summary judgment on some discrimination claims because it concluded that there was a triable issue as to whether an employee was disciplined more severely because of his race. Indeed, the court also relied on an apparent statement by the supervisor that the discipline was harsher than in past years.

Readers to this blog should understand that denials of summary judgment are not uncommon in employment discrimination cases and that the decision is not a final ruling on the merits of the case.  Indeed, the employer in this case was able to get summary judgment (i.e. get the claims dismissed) on several other claims that were brought by the employee.

The case is a good illustration, though, about how small variations in punishment -- even over a multiple year period -- may lead to the foundation of a discrimination claim. 

Now, there may be very valid reasons why the discipline that an employer imposes is different than others. Suppose, that the employee had been warned previously, that fact might warrant a harsher punishment for a repeat violation. Or suppose that the employer was "cracking down" on these types of incidents and had notified its employees of the consequences of violations of policy. In either of the two instances, the employer's decision will certainly be bolstered if the employer identifies, in writing, at the time of the incident, why the punishment is different than others. It still may not defeat summary judgment, but it will help bolster a company's arguments later that the discipline was well-thought out and fair.

A review of the briefs for summary judgment spells out much more history and facts than this blog post.  You can find the memorandum in support of summary judgment here, with the opposition brief here and the reply brief here.  Combined with the court's analysis, it provides some insights into how the federal courts review complaints that are based on multiple causes of action and addresses several related causes of action.

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

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

Judge Thompson believes that:

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

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

Judge Droney does not require pre-filing conferences. He believes that there has been an increase in the number of dispositive motions because of the nature of the cases filed in federal court. In employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court.

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

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

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

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