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.

• Print
• Comments
• Trackbacks

In yesterday morning's post, I indicated that people should be wary of drawing generalities from some recent decisions granting summary judgment for employers.  Indeed, I went out of my way to note that each judge has their particular way of handling employment discrimination cases.

I also highlighted District Court Judge Christopher Droney for his statement in his chambers practices 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.

Of course, I could've also noted that just because Judge Droney believes that the motions need to be considered, that does not mean he will necessarily grant them. 

So what does Judge Droney do yesterday afternoon? He issues a ruling denying, for the most part, an employer's motion for summary judgment. Go figure.

The case, Spiotti v. Town of Wolcott, isn't particularly novel for the issues it brings (police officer claims that she was discriminated against because she was a woman and that her supervisor allegedly told her that she was ineligible for certain positions because she was a "mother").  The court did grant summary judgment to the individual supervisors, on the grounds that the statute only allows for claims against employers -- not individuals.  But that issue is pretty well settled now.

So, my message from yesterday remains even clearer today: summary judgment is certainly not dead as a procedural tool in this district -- but there is no hard and fast rule that it will be granted either.  And employers who believe that filing for summary judgment is the best decision in each case are kidding themselves over whether its truly the best course of action.

• Print
• Comments
• Trackbacks

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. 

• Print
• Comments
• Trackbacks

First, a warning.

If your eyes glaze over at discussing the difference between cash balance plans and defined benefit plans, this post is not for you.  However, for those employers who are considering converting their retirement plans or who have done so, a new case released this morning provides some much-needed guidance in Connecticut about the legality of doing so, with a well-reasoned opinion to boot.  It also provides a bit of a primer to people who've heard  "something" about retirement plans, but have been curious about what the big deal was with converting from traditional pension plans to newer reitrement plans.

In Custer v. SNET (download here), federal judge Stefan Underhill has upheld SNET's conversion to a cash benefit plan from 1995.  In doing so, he methodically deconstructs the Plaintiff's arguments (while still acknowledging that this area of law is developing).  His discussion on the background on the case -- for those who need a bit of re-education in the area -- is particularly instructive.

First, he discusses the two types of retirement plans.

ERISA’s statutory structure contemplates two types of retirement plans; defined contribution plans and defined benefit plans. 29 U.S.C. §1002(34) - (35). A defined contribution plan is “a pension plan which provide[s] for an individual account for each participant and for benefits based solely upon the amount contributed to the participant’s account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant’s account.” 29 U.S.C. § 1002(34). By contrast, “a defined benefit plan is any retirement plan that is not a defined contribution plan.” Id. (citing 29 U.S.C. § 1002(35)). A typical defined benefit plan grants retirees a percentage of their final salary for the remainder of their lives.

Cash balance plans generally share certain attributes with both defined contribution plans and defined benefit plans. Like a traditional defined contribution plan, participants in a cash balance plan accrue benefits in an “account.” Unlike a traditional defined contribution plan, however, a participant’s account in a cash balance plan is not “real;” it is a mathematical construct to determine the size of a plan participant’s lifetime annuity that the employer will pay out when the participant retires. The account is not capitalized in the sense that neither the participant, nor the employer, is actually setting aside money. Instead, the employer is simply accruing an obligation to pay out benefits at a future date.

So, what did SNET do? On July 1, 1995, SNET converted its defined benefit plan to a cash balance plan.

Under SNET’s cash balance plan, each participant’s cash balance account is comprised of three parts: the opening account balance; accrued service credits; and accrued interest credits.The opening balance is generally based on the participants’ benefits under the old plan as of July 1, 1995. Participants then earn service credits at the end of each month based upon their level of pay and years of service.

Finally, participants earn interest credits annually based upon fixed negotiated percentages. ... [Central to this argument is that] if a younger participant remains employed through retirement age, he will thus accrue more total interest per service credit than similarly situated older workers. ...

Perhaps as an incentive to take early retirement, as part of the switching to the new plan, SNET front-loaded some retirement benefits. ... As a practical matter, participants thus receive 110 percent of their benefits under the old plan until the value of the cash account under the new plan catches up to and exceeds their permanent enhanced benefit.

The parties, and other courts, refer to the catch-up period as the “wear-away” period because, plaintiffs argue, the benefits that participants can receive but will not increase during that period. The period is more aptly named a “catch-up” period, however, because it is the period during which employees’ benefits under the cash balance plan catch up to their front-loaded permanent enhanced benefit.

The first question for the court was whether the interest credit portion violates ERISA.  The court said no.  It suggests that cash benefit plans, in general are not age-discriminatory "because cash balance plans are functionally equivalent to defined contribution plans, at least with respect to accruing benefits."  The court then uses various support for its conclusion including :

I similarly hold that the interest credit formula of SNET’s cash balance plan is not actually age-discriminatory, and that it merely accounts for the time value of money. As set forth in greater detail below, an employee’s benefits are not calculated based upon whether that employee is older or younger, but are instead calculated based upon whether he is a newer or more senior employee. The critical determinant of an employee’s benefits are his years to retirement, not his age. The fact that age may often have a loose correlation with an employee’s years to retirement does not necessarily make a plan age-discriminatory. In fact, a cash balance plan would more likely violate ERISA § 204(b)(1)(H)(i) if it did not account for the time value of money.

The court also dismisses the employees' argument that the plan "wears away" at their benefits.

Plaintiffs’ allegation that “an older worker has to wait more years after the conversion to the cash balance formula to actually begin earning new retirement benefits,” however, is not accurate. The “wear-away” period is not necessarily longer for older workers; it is longer for workers that have greater frozen benefits. Under the old plan, the size of a worker’s frozen benefits is a function of a worker’s salary and years of service, not his age....

Because a workers’ frozen benefits are not a function of the worker’s age,the size of the “wear-away effect” is not a function of the worker’s age.  For example, the size of the “wear-away” period for an older worker with a given salary and years of service will not be greater than the length as a younger worker’s “wear-away” period with the same salary and years of service to the company.  Indeed, a participant’s age, as opposed to his salary and years of service, has no impact on the length of the “wear-away” period.  

Moreover, employees are not actually “losing” benefits during the “wear-away” period.  SNET chose to calculate the permanent enhanced benefit by starting with an employee’s account balance under the old defined benefit plan, and increasing the balance immediately by ten percent.  If SNET had chosen to evenly distribute the ten percent increase over the period of time during which the value of an employee’s cash balance account caught up to the permanent enhanced benefit, then an employee’s benefits would not remain stagnant, but would constantly increase (even if at a lower rate than the employee was previously receiving under the old plan).  SNET should not be penalized for front-loading the ten percent increase in benefits, as opposed to spreading that ten percent increase out over a period of years.

As you can see from the above, the issues with conversions are technical and, perhaps cumbersome. But for employers who have converted their plans or who are considering doing so, the case provides a roadmap to avoiding some legal pitfalls in the future.

• Print
• Comments
• Trackbacks

AT&T’s attack on the December 7, 2007 protective order is not unlike Japan’s attack on Pearl Harbor, Hawaii, sixty six years ago, both were unwarranted and doomed to fail.

So reads a footnote from a December 20, 2007 Order from the United States District Court of Connecticut denying AT&T Service's request for a reversal of a protective order in a wrongful discharge case.  It's the type of footnote that makes the reader sit up straight and take notice.

The decision, by Judge Dominic Squatrito in Rebaudo v. AT&T Services et al. (available here), only marginally addresses the employment law issues in the case (which AT&T has already moved for judgment on) so it doesn't warrant full coverage here. 

However, the issue before the court is one that does come up in other employment law cases -- namely, whether a Plaintiff-Employee, who signed medical authorizations for the Defendant-Employer to view his medical records, is entitled to a copy of such records before his deposition.  The court, in an earlier decision, said "yes", a plaintiff is entitled to such a copy and had ordered AT&T to produce a copy of such records one week before the plaintiff's deposition.  AT&T sought reconsideration of that motion.

The court discusses the issue of medical records further:

AT&T’s position is that [the medical records] constitute confidential, attorney-work product information of AT&T and therefore, the Plaintiff is not entitled to discover it. The court disagrees. Merely because AT&T obtained the medical records through a signed authorization of the Plaintiff does not mean that this information is now confidential. First, as AT&T notes in its memorandum, this medical information is the Plaintiff’s information. Thus, it would be paradoxical to find that the Plaintiff’s medical information is the privileged work of AT&T. Second, the Plaintiff’s request for documents concerning the incidents of the lawsuit clearly encompasses these medical records. Third, given the large quantity of medical records that the Plaintiff has amassed, justice requires that the court allow the Plaintiff and his counsel to prepare themselves thoroughly, prior to the
deposition.

The Court adds the above footnote for good measure.  Though after reading the footnote, you don't need to read much else of the case. The rest, as they say, is "history".

• Print
• Comments
• Trackbacks (1)

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.

• Print
• Comments
• Trackbacks (2)

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.

• Print
• Comments
• Trackbacks (1)

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. 

• Print
• Comments (2)
• Trackbacks (3)

"You can't teach a old dog new tricks."

In discrimination cases, analysis of whether a remark like this is probative has typically moved into whether the comment was a "stray" remark.  Indeed, Justice O'Connor's concurrence in the Price Waterhouse v. Hopkins case in 1989, in fact, talked about whether "stray remarks" could satisfy a plaintiff's burden to prove discrimination. 

A new District Court of Connecticut decision released this week -- taking the lead of some comments by the 2nd Circuit -- has now refused to categorize certain comments as "stray" or not .  Instead, the court has applied a four factor test from a Southern District of New York case that could set the tone for other District Court cases in Connecticut. 

In Koestner v. Derby Cellular Products,3:06-cv-00188 (VLB), the Plaintiff argued that his employment had been terminated because of his age.  Judge Vanessa Bryant, a relatively new appointee to the federal bench, held that the Plaintiff presented sufficient evidence to defeat the company's motion for summary judgment.
 
Key Facts: 

• The Plaintiff alleged that the Company President stated during a managers’ meeting that the company was “getting killed on insurance premiums due to the average age of the company’s employees” and that the company “had to get younger.”
  
• He also alleged that the company's CEO told him that the company “had to do something about” a 60-year-old employee in poor health. That employee and the Plaintiff were later terminated on the same date. 
  
• Lastly, he alleged that when his supervisor terminated his employment, he told the Plaintiff that “someone more energetic” would be better suited for the job.

Court's Analysis Denying Summary Judgment:

The Court, in determining whether the Plaintiff was terminated because of his age, held that it "does not need to determine whether the remarks by [the executives] are 'stray.'" Instead, the Court said it would decide "whether the remarks are sufficiently probative of age discrimination such that the jury could reasonably find that the Plaintiff was terminated because of his age." 

The Court then went on to apply four factors to determine the probative nature of the comments:

1. who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker;
2. when the remark was made in relation to the employment decision at issue;
   
3. the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and
   
4. the context in which the remark was made, i.e., whether it was related to the decisionmaking process.
   

Ultimately, the court applied the four factors and found that the first two comments could be probative of age discrimination but that the "energetic" comment was not.  (Obviously, the court was not ruling on the underlying merits of the claim, only whether the case should proceed to trial.)

For employment lawyers in Connecticut, this decision provides a workable framework for analyzing such comments.  It is admittedly much easier to apply four factors than to determine, in the abstract, whether such comments are probative or not.  But whether this test will ultimately hold up on appeal remains unanswered for now.

At the same time, this decision further emphasizes the importance that alleged discriminatory remarks can have on a case. Here, the Plaintiff's evidence to defeat summary judgment on the ADEA claim rested solely on the alleged comments.  For employers, The case demonstrates that  what they say can have tremendous implications down the road, even where the comments may be otherwise innocuous.

• Print
• Comments
• Trackbacks (1)

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.

• Print
• Comments
• Trackbacks (1)

Conventional wisdom is (and a recent Time article suggests) that many doctors have poor handwriting (though at least one 2001 study attempted to shoot down that theory by concluding that doctors' handwriting is no worse than non-doctors).  In fact, a 2001 study entitled "Medication errors related to potentially dangerous abbreviations" pointed to examples where the use of certain abbreviations led to patient illnesses and deaths.  

 

A new lawsuit filed this week in U.S. District Court in Connecticut puts a whole new spin on the issue.

In McConnell v. Pisciotta, medical doctor Bruce McConnell claims that he was improperly suspended from work at the Connecticut Mental Health and Addiction Services for five days last month because his supervisors "did not approve of certain abbreviations the plaintiff had used in writing documents."

He goes on to allege that other employees who have used similar abbreviations have not been suspended.

Now, I know what you're thinking. What in the world is the legal claim that he is raising?  What category of claims do "Suspensions for Use of Abbreviations" fall under?

According to the Plaintiff, it is a violation of the 14th amendment of the United States Constitution:

[T]he defendants have irrationally and intentionally treated the plaintiff differently from others identically situated to the plaintiff, in violation of the plaintiff’s right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution as enforced through Sections 1983 and 1988 of Title 42 of the United States Code.

The Complaint is fairly bare of other details such as what the abbreviations were for.  (Presumably for something other than LOL and IMHO.)  And I surmise that there is much more to this matter than just "abbreviations" (just as readers of this blog are reminded that the complaint contains only ALLEGATIONS, not facts.)

But from my experience, it's one of the more unusual constitutional claims out there.  It has been assigned to Judge Mark Kravitz, a very bright jurist on the bench.

Anyone else aware of any unusual 14th amendment cases out there arising from employment claims?

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks (2)

Since many employment law cases are tried in federal courts, intimate knowledge of the way the Court works is one way for practitioners and clients to overcome potential hurdles. Looking at the District Court of Connecticut's website did not provide many answers and thus, those who practiced in federal court frequently often had the upper hand on those who didn't. Indeed, the District Court's website felt like a throwback to the early days of the Internet.  

But lo and behold, just a few days ago, the Court launched a brand new site.  I've only just begun to explore and I like what I've seen so far.  In terms of information sharing, it has finally leveled the playing field, even for those who only practice infrequently in federal courts.

Most impressive and helpful is that on each judge's website page, there is a link to that judge's chambers practices.  Why is this so important? Because until now, there was not a publicly available resource for such information on the Internet to know what each judge's preferences were for pretrial procedures, and trials. (I should note that the CBA did publish a book on it but charged $35 for CBA members and was only current through May 2004). 

You now can learn, for example, that Judge Robert Chatigny:

[I]s concerned when motions for extensions of the discovery deadline date established pursuant to the Rule 26(D) Report continue to be filed by some counsel on a regular basis, despite the purpose and intent of the applicable rules. According to Judge Chatigny, the purpose of the Rule 26(F) Report is to provide a schedule established pursuant to the parties' case management plan that is not to be modified except in unusual circumstances. Counsel are encouraged to propose a realistic discovery deadline date and then commence discovery without delay so that modifications of the discovery deadline date will be unnecessary.

Thus, experienced counsel in Connecticut will not seek an extension of time lightly when before Judge Chatigny.  Among the other topics that are discussed in the Chambers Practices:

• Oral Argument on Motions
• Referral to Magistrate Judges/Special Masters
• 26(f) Reports
• Sur-reply Briefs
• Letter Briefs
• Chambers' Copies
• Lawyer Affidavits
• Hours of Day for Trial
• Days of Week for Trial
• Opening Statements/Closing Arguments
• Jury Profiles
• Jury Selection
  

Again, this is a great resource.  I expect to explore this site more in the upcoming days and will post any further items of interest to those who practice employment law.

• Print
• Comments
• Trackbacks