zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

Just a quick followup today on a post from last month.

As I reported then, a District Court judge dismissed a closely-watched EEOC lawsuit against CVS challenging a pretty standard severance agreement.  But the grounds for the dismissal were unknown back then.

The wait is over; the written decision was released yesterday.  For those that were hoping that the court might shut this issue down, you will be disappointed because the court decided the case largely on procedural grounds.  The Court found that the EEOC had not exhausted its conciliatory efforts required by law.

Yawn.

And so, we’re back to where we were at the start of the year.  The EEOC is likely to continue to push this issue.

Still, I remain unconvinced by the merits of the EEOC’s arguments.  Courts have, for example, routinely upheld enforcement of severance agreements — albeit in different contexts.  But the arguments raised by the EEOC appear to be a stretch to me.

So, for now, employers should continue to stay alert on this issue but until we hear otherwise, it also seems that many will find it best to continue to use these agreements without further modification.

I sometimes lament that employers get the short end of the stick when it comes to matters before the Commission on Human Rights and Opportunities.  There’s little doubt, as I’ve said before, that more cases are being retained for investigation.

But what happens after an investigation has concluded that there is “reasonable cause” to believe that discrimination occurred? How do employers fare at a public hearing stage which is supposed to be a “clean slate”?

It’s hard to judge because there aren’t easily identifiable statistics to work from. Instead, you have to piece together a few recent decisions.

In one case this past summer, the employer (the state Judicial Branch) successfully defended itself against a claim of race discrimination. In doing so, the presiding human rights referee found that the evidence was insufficient to support a claim.  (From a legal perspective, there isn’t much to be gleaned from the fact-specific analysis.)

In another case, the employer also successfully defended itself against a claim of age discrimination. The referee found that the evidence of discrimination to be “tenuous, at best”.  The referee said that “While I do not doubt his personal conviction that the failure to hire him was ill advised, for his discrimination claim to be viable the record must either contain evidence sufficient to prove that Respondent harbored and acted with discriminatory animus, intentionally taking Complainant’s age into account in failing to consider him for a…position, or evidence of pretext.”

That burden was not met here.

But in another case, the employer (the state’s Joint Committee on Legislative Management), the presiding human rights referee found that the employer did not provide reasonable accommodations to the employee and discriminated against him on the basis of her disability.  In doing so, the hearing officer awarded over $177,000 in back pay damages and ordered the employer to reinstate the employee.

Unfortunately, there just aren’t many more recent cases published by the CHRO’s hearing office to make a determination.  Employers lately seem to win some and lose some.   Others get settled without a disclosed outcome.

All hope isn’t lost for employers at the CHRO. It just may take a while (and a good amount of attorneys fees) to get there.

Over the years, we’ve had a little fun on this blog, with friendly bets with other employment law attorneys, over everything from a sports event to, well, a sports event.  The loser traditionally has to extol the virtues of the winning team on an employment law blog with some loose employment law tie-in.

Last week, Philip Miles — who writes the long-running Lawffice Space Blog –– issued a challenge to me to see who would win the UConn – Penn State women’s basketball game over the weekend.  Since his post is appearing here, you can guess the results. I’ll let Philip finish the story, though his employment law angle is a bit lacking:

One of the greatest sport clichés of all time is that “to be the best, you’ve got to beat the best.”

My beloved Penn State Lady Lions basketball team has taken that statement to heart and challenged the UConn Huskies each of the past three years. Unfortunately, the Lady Lions dropped all three contests. In fact, none of them were even particularly close. I placed a friendly wager on the latest game with the proprietor of this blog. I now pay my debt: a tribute to UConn.

Make no mistake about it, UConn is the best. Are they ranked number one? Check (by unanimous vote). Are they the defending national champions? Check (including a blowout win over fellow 1-seed Notre Dame). Are they historically one of the greatest? Check (seven championships from 2000-present). Do they have a legendary coach? Check (Geno Auriemma is 841-133 as a head coach – although I think Pat Summitt contends for greatest ever).

I don’t have much more to say. To be the best, you’ve got to beat the best. For now, the basketball world is a game of “King of the Hill” (perhaps “Queen of the Hill” would be more appropriate here) and everyone else is just scrambling for a shot at UConn . . . just to get knocked back down again. Baylor and Notre Dame had all kinds of hype last year, but they couldn’t get it done.

Rest assured, there are challengers out there right now preparing to take down the reigning champs, and they’re hungry. Does UConn have what it takes to stay on top again this year? Recent history suggests they do, but March Madness is a long way off.

Of course, to get the employment angle, Philip could’ve updated us all on the discrimination lawsuit that had been brought against UConn coach Auriemma — it was dismissed earlier this year.  But let’s face it, watching basketball is a lot more fun than keeping track of lawsuits.  

My thanks to Philip for the quick guest post. Even shorthanded, though, the UConn Huskies are still “simply the best”.  

While fans of the long running television reality show Survivor may suggest the timing of this post is geared to the events of last night’s episode that featured two players who quit, there are actually two recent and noteworthy cases in Connecticut that show that employees who quit their jobs rare win discrimination claims that they may later bring. 

In Giaquinto v. Danbury Board of Education (download here), the District Court granted the employer’s motion to dismiss an employee’s age discrimination claim because the employee failed to show a "constructive discharge."

A constructive discharge is essentially the legal term that courts use to say that an employee’s resignation was justified. A constructive discharge exists if an employer deliberately creates working conditions so unpleasant or difficult that a reasonable individual would feel compelled to resign.   That standard has been fairly consistent over the years. 

In Giaquinto, the plaintiff — an assistant Principal at a middle school for nearly 35 years — claimed he felt compelled to resign at age 64 after the school superintendent said to school administrators "You older guys better get with the program or you can leave" and told the employee he was insubordinate.  The court said:

Although the statement allegedly made by the Superintendent to the defendant’s older administrators smacks of an age oriented attitude, such an isolated statement is insufficient to demonstrate working conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.

In Miller v. Praxair, the Second Circuit affirmed the granting of summary judgment to an employer in a case where the employee claimed she was forced to resign.  The court found that the conditions were not bad enough to be compelled to resign.  As the court said, she alleges working conditions that "largely amount to the sort of routine disagreements with supervisors or mild conditions that are simply insufficient to establish the sort of ‘intolerable’ working conditions necessary to a constructive discharge claim."

Notably, after she quit, "defendants made repeated attempts to convince her to stay, and, accordingly, no rational trier of fact could conclude that a reasonable person in her position would have felt that her employer deliberately sought to make her working conditions so intolerable that she had no choice but to resign."

These cases both demonstrate the significant hurdles that employees must overcome to present a constructive discharge claim. For employers who are defending such claims, these cases illustrate the importance of making this a central element of a defense. 

Time once again to bring back an occasional feature that takes a look at stories that have now fallen from the local newspapers’ headlines.  After all, have you ever noticed that it is somehow "big news" that a lawsuit is filed but you rarely hear about a lawsuit’s dismissal?

This installment updates the lawsuit that was brought against the Tribune Company by its former "watchdog", George Gombossy. I reported on the case last fall.  He claimed in the lawsuit that he was fired in retaliation for speech that was protected by the First Amendment (and its state law equivalent, Conn. Gen. Stat. Sec. 31-51q).

Earlier this month, a Superior Court judge threw out the lawsuit concluding that Gombossy’s legal claim was without merit.  Gombossy has detailed the decision on his new website.   

In doing so, the Court rather easily dismisses the notion that Gombossy had any First Amendment right to have his columns published by the Hartford Courant and notes that he has no First Amendment rights when the speech was "on the job".  The court also dismisses his claim that his company made certain promises about his job to him. 

But as with all of these types of claims, the lawsuit is far from over. Gombossy filed an amended complaint last week again raising claims of wrongful discharge and promissory estoppel. Whether this new complaint will survive another motion will have to be the subject of another "What Ever Happened To…" column later this year or next.

Yesterday, I commented on the ongoing drama between the state and the former DOT commissioner, who’s departure late last month sparked questions from reporters about the circumstances of his resignation.

This morning, I spoke to Richard Hayber, the attorney for the outgoing DOT commissioner about the matter.  He provided me with a copy of a press release which is attached.  (Readers of this blog may recall that Attorney Hayber also publishes the Connecticut Employee Rights Blog.)

In speaking with Attorney Hayber, he decried the state’s release of the stipulated agreement between his client and the state saying that his client was told that the agreement would never see the light of day.  He also pointed out that he was having a difficult time seeing how the agreement could be released under the state’s FOI laws.

Under Conn. Gen. Stat. 1-214a, separation agreements that contain a confidentiality clause can be released if if there is "alleged or substantiated sexual abuse, sexual harassment, sexual exploitation or sexual assault by such employee or contractor." But as Attorney Hayber points out, there is no such confidentiality provision nor is there any reference in the agreement to alleged sexual harassment.  As such, he argued, his client may have a claim that the agreement was improperly released, particularly because personnel files are generally exempt from disclosures.

But Attorney Hayber also lamented the process in which the agreement was signed. He indicated that his client strongly denies any wrongdoing and noted that his client has never been told the identity of the person raising the so-called issues or the conduct claimed. "He’s never been told the answers when, where, who, what questions." 

He also said that his client was asked to come to the resignation/dismissal meeting alone without being provided a reason for such meeting ahead of time (which I note, isn’t that uncommon) and was told that he had to sign a stipulated agreement on the spot indicating he resigned, or he would be involuntarily dismissed. 

Attorney Hayber also said that even the agreement itself may be unconstitutional and a violation of his client’s First Amendment rights because it imposes limits on what his client has say about the governor, or any state employee even if such criticisms are based in truth.

At the end, he stated that his client is exploring his "legal options."  Something tells me we have not heard the last of this matter. 

There will be more about this case on the Face the State program on Channel 3 this Sunday at 11 a.m.

Over the last 24 hours, there’s been a lot of drama as details start getting released over the departure of the Connecticut DOT Commissioner last week.  Did he really resign? Was he pushed out?

Late yesterday, Governor Rell released a new statement that suggested that she sought the resignation after allegations of inappropriate behavior were raised.  Several news outlets are reporting that the allegations were of harassment.  In short, it appears that he resigned when faced with a possible dismissal. (I should note that there have no formal charges of harassment against the employee, merely unspecified allegations at this point.)

Although the news outlets are trying to make much of this, from a legal perspective, these types of "resignations in lieu of dismissal" happen with some frequency by companies.  They are done so, for example, in cases were employers suspect something fishy is going on but can’t prove it to a certain degree.

In many cases, it is in both parties interests to use these types of "resignations". From an employee perspective, it allows them to "save face" and tell future employers that they resigned and were not fired.  For employers — although they will still have to pay unemployment compensation in many cases — having an employee leave "voluntarily" reduces the risk of a lawsuit arising from a dismissal.

In this case, it appears that the desire to avoid future litigation played some role in the negotiated departure. The CT Mirror has posted a copy of a signed "Stipulated Agreement" between the state and the DOT official which you can download here.  It suggests that any claims that the employee may have against the state are "extinguishe[d]" by the agreement.

Again, reviewing that agreement from a legal perspective, the most unusual part of is the non-disparagement provision.

Typically, the parties merely agree not to disparage one another. In this case, if the DOT employee is critical of the state, "such resignation in good standing shall be changed to a dismissal indicating that the services of [the employee] no longer pleased the Governor due to inappropriate behavior by [the employee]."

Resignations in lieu of dismissals, however, are tricky.  Some might interpret it as a coverup when it may be done for other reasons. Regardless, human resources personnel should consider consulting with counsel to ensure that the departures don’t create additional issues down the road. 

It’s the stuff of television shows.  

In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:

[In the prior October], I learned that I had — have stage III prostate cancer with a metastatic brain lesion."

While the cancer may have been known in the abstract, the "metastatic brain lesion" is not.  The employer’s counsel moves for a mistrial and the court orders an immediate hearing (and disclosure of medical records) to receive some additional facts.

During the hearing, however, there’s another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion.  Because the jury already heard the testimony, the court grants the request for a mistrial. 

But the fireworks continue.  Counsel for the employer says that a dismissal of the whole claim may be appropriate and asks the court to allow for some discovery.

And in a deposition, the plaintiff/employee discloses that some six months before trial, he knew that he definitely did not have a brain tumor.

What then? 

Dismissal, according to a federal court decision released on Friday.

In Radecki v. GlaxoSmithKline (download here), the court concluded that the plaintiff committed perjury in his testimony and that because the perjury was so serious, dismissal was the only appropriate mechanism.

Having "concluded that the plaintiff willfully provided false testimony for the improper purpose of causing the jury to feel sympathy for him", the Court discussed how perjury during trial is "intolerable."  Any sanction other than dismissal would give the appearance of the court’s tacit approval of such conduct:

To have the plaintiff in this case pay a monetary penalty and then return to court and present his case before a new jury would give the appearance of tolerating “a ‘flagrant affront’ to the truth-seeking function of adversary proceedings,”, even if (or perhaps especially if) the court allowed the defendant to use the plaintiff’s perjurious testimony from the first trial to attack his credibility. Therefore, the court concludes that the most appropriate sanction in this case is a sanction of dismissal with prejudice.

As the court noted, this situation is extraordinarily rare. Indeed, the Court struggled to find comparable cases from which to draw its conclusion. (For a case out of Ohio, check out this post by the Ohio Employer’s Law Blog.)

But the message the court sends through this case is anything but muddled: If you think real-life trials are just like television shows, where perjury is either condoned or is a plot device, think again.