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Today I want to talk about a housing discrimination claim.  But wait! It has significant relevance to employment discrimination claims so bear with me for a second.

As an additional incentive, if you’ve been following the Marvel movies, this case will ALSO have elements of a multi-verse with multiple versions of the CHRO in play, so consider this case to be “Loki” for legal geeks. (If you don’t understand, your kids will.)

Ok, back to the law.

The story first starts in 2012 when the Connecticut Supreme Court upheld an award of $95,000 in noneconomic damages to an employee in an harassment claim, even though the employee did not offer any expert or medical testimony on the subject and provided very little to no evidence on it, according to the court’s opinion.

The case, Patino v. Birken Mfg, has often been cited for the proposition that noneconomic damages will not be overturned unless they are excessive or shocking.  The Court’s decision cited several other cases to compare the verdicts in those cases with that one.  These types of cases are also what is known as “garden variety” emotional distress damages.

Flash forward to 2015 and a case of housing discrimination filed at the CHRO.  The condominium never appeared in the case to defend itself, which resulted in a default judgment.  A hearing in damages was then held. At the hearing, the CHRO requested $75,000 in noneconomic damages on behalf of the individual. However, the referee awarded $15,000 in compensatory damages for emotional distress. Victory and case closed, right?

Nope. Then things get interesting. The CHRO appealed the decision of its own referee, contending the damages were insufficient.  The Superior Court remanded the case for further decision and on remand, the referee did not change the damages award.  The CHRO then appealed again to the Superior Court which affirmed the decision.

Which led to an appeal to the Connecticut Appellate with the CHRO representing the CHRO (Plaintiff) and the CHRO representing the CHRO (Defendant).

(Don’t try to think too much about it; your head will spin but you can read footnote 1 for an explanation where the court notes “The present case thus presents us with the unusual situation of both parties on appeal advocating for the same
interests; specifically, asking this court to reverse the decision of the Superior Court, vacate the referee’s award of damages and remand the case for a new calculation of damages.”)

For good measure, the State of Connecticut filed a brief as amicus curiae.   (That’s a lot of tax dollars hard at work, as they say.)

On appeal in CHRO v. Cantillon, both versions of the CHRO asked the court to reverse, claiming a misapplication of prior case law.  Both argued that Patino stands for the proposition that in “garden variety” emotional distress claims, “there is a presumptive monetary range of damages between $30,000 and $125,000.”…

Continue Reading CHRO vs. CHRO: How Much is “Garden Variety” Emotional Distress Really Worth

In a decision that will be officially released on Tuesday, the Connecticut Appellate Court has upheld the dismissal of a wrongful discharge claim against Marvelwood School, an independent school in Kent, Connecticut. In doing so, the Court turned back an attempt to limit the employment-at-will doctrine and provided employers in Connecticut with reassurance that wrongful discharge claims will be appropriately limited.

The case, Zweig v. Marvelwood School, can be viewed here.

(An upfront disclosure: My firm represented the employer here and I represented the school on the successful appeal.) 

The facts of the case are relatively straightforward and are summarized in the court’s decision. The plaintiff Aaron Zweig was employed by the defendant Marvelwood School as a history teacher and school’s Director of Food Studies. That role required him to establish and maintain a garden on campus and use it to teach a class on food studies.

In May, 2015, Mr. Zweig allegedly objected to the school’s suggestion that telephone poles that had been treated with creosote, a pesticide and wood preservative, be used to make raised beds in the garden because he believed that the chemical posed a health risk to himself and his students.…

Continue Reading Connecticut Appellate Court Rejects Challenge to At-Will Employment Doctrine

Can an employer ever win a motion for summary judgment on a discrimination case in state court?

The prevailing wisdom is no.  A fool’s errand, some might say.

But a new Connecticut Appellate Court case (Alvarez v. City of Middletown) shows at least what’s possible.

The case has some details that stand out. The…

The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.

In it, the Court concludes that when attendance is an essential function of the job (as it will be for most…

UPSairBack in September 2013, I reported on a seemingly never-ending case of Tomick v. UPS and mentioned that it was headed to its second appeal at the Connecticut Appellate Court. (I talked about the history of the case and the first appeal back in 2012 too.  Amazingly, it dates to a termination decision way…

locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.…

Continue Reading Less May Be More When It Comes To Job References

My colleague Chris Engler reports today on a new Connecticut Appellate Court case that focuses on a often misunderstood concept in employment contracts — the need for “consideration”.  What was it that Dire Straits’ sang about in the 1980s? Getting “Money for Nothing”?

We’ve all been told that you can’t get something for nothing.  That lesson was reiterated in a new case by the Appellate Court due to be officially released next week. 

The Facts

As told by the Court, the facts of the case,  Thoma v. Oxford Performance Materials, Inc., revolve around the employer’s attempts to attract investors. 

One investment company told the employer, Oxford, that it wanted assurances that key personnel would not leave.  Oxford dutifully entered into employment contracts with various employees, including Lynne Thoma.

The details of the contracts are important.  This first employment contract gave Ms. Thoma a higher salary, job security (termination could only be with 60 days’ notice), and a severance package.  In return, Ms. Thoma promised not to leave during the contract period and not to work for a competitor for six months after leaving.  Ms. Thoma signed this contract.

 At this point, both parties had gotten a benefit, and all seemed well.

But then a second investment company informed Oxford of its dissatisfaction because the employment contract was “too strong.”  So Oxford went back to the drawing board and crafted new contracts.

 Ms. Thoma’s second contract was quite different.  It removed all of the monetary elements, including the salary increase.  The new contract also allowed Oxford to fire Ms. Thoma without notice or cause.  Finally, it prohibited Ms. Thoma from working for a competitor.  (The length of this prohibition was unclear.  If you’re a contract jargon junkie, I recommend reading the court’s analysis in full.) 

Nevertheless, Ms. Thoma went ahead and signed this contract as well.

A year later, Oxford fired Ms. Thoma.  She demanded the benefits from the first contract.  Thus commenceth this case.

Is the Second Contract Enforceable?

Ultimately, both the trial court and the appellate court sided with Ms. Thoma, concluding that she didn’t receive any consideration in exchange for the sacrifices she made in the second contract.  In other words, she gave up some perks without getting anything in return.

…
Continue Reading “Consider” This Important: Employment Contracts Are a Two-Way Street

So, remember back in February where I noted that employers ought to “consider having an attorney review some of your [employment] agreements … [because sometimes,] poor drafting can sometimes be avoided by having an attorney involved”?

We have another appellate court case that emphasizes that point quiet well in Stratford v. Winterbottom.

The…

Not every case that comes out from the Connecticut Appellate Court makes headlines.

Take the case of Walker v. Department of Children & Families, a new case that will be officially released next week (download here).

It is a fairly ordinary discrimination case — albeit a rare one where the employer has been successful on a motion for summary judgment. It is also a textbook example of how slow the legal system can be, with the court decision coming eight years after the employee was fired.

The plaintiff was hired as a social worker in June 2004 and was notified that he needed to successfully complete a “ten month working west period.”  His first performance review, about 10 weeks in, was generally favorable.  By December, though, he was transferred to a new unit and was required to prepare documents to be filed in court and attend court proceedings.…

Continue Reading Appellate Court Upholds Summary Judgment for Employer