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

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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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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