24242102739_3a7ae99d52_mThe state agencies that employers have to deal with the most on employment law issues made two announcements this week regarding their leadership ranks.

The Commission on Human Rights & Opportunities has announced that Michele Mount has been named the Chief Human Rights Referee. Ms. Mount has been a Human Rights referee for the CHRO for the last four years or so.

For employers that go through hearings at the CHRO, the elevation of Ms. Mount won’t change things all that much, but administratively, it’ll be interesting to see if she brings about any changes to that area of the CHRO.

At the Connecticut Department of Labor, interim commissioner Dennis Murphy is moving over to the Department of Motor Vehicles.  By most accounts, Mr. Murphy brought some much needed stability to the DOL and often worked behind the scenes to get things done.  He leaves on February 12th.

Governor Malloy then appointed former Hamden mayor Scott Jackson to head up the CTDOL. Kurt Westby, former political director for 32BJ and a long-time AFL-CIO board member, has been appointed deputy Labor Commissioner.

“I’ve known both Scott and Kurt for a number of years. I am confident that with their extraordinary qualities and skill-sets – they will work with the diverse group of stakeholders to move the Department of Labor forward,” Governor Malloy said. “Scott is a friend and an exceptional public servant. Kurt has spent his career trying to improve the lives of Connecticut residents. I believe they both will work together successfully to ensure that the state’s workforce is successful while enabling and our business community to thrive.”

Of course, much of the CTDOL’s work is done by staff who have been there far longer than any political appointee.    Again, for employers, the selections will likely not impact employers much.

Jackson will start February 3, 2016.

Good luck to all the new appointees.  There’s lots of work left to be done.

 

 

 

 

hourglassOne of the rules in employment discrimination cases that seems to have blurred of late is the notion that a complaint of discrimination must be filed within 180 days after the alleged discrimination.

A new decision from Presiding Human Rights Referee at the CHRO (CHRO ex rel. Roig v. State of Conn., Department of Correction et al) suggests that the 180 day rule can still be followed — at least in some instances.

In the case, which was just released on Monday, the employee filed an original complaint against the Department of Correction on March 25, 2013.  Approximately 16 months later, the CHRO permitted the complaint to be amended to include the UConn Health Center.

That was simply too late and does not “satisfy the requirements of equitable tolling”.  Moreover, the Referee said that there was no evidence provided to suggest that the Health Center was aware that the Compalint had filed the complaint and therefore had “constructive notice”.

The referee concludes: “To deny this motion to dismiss, on the facts before me, would render the mandatory statutory filing period meaningless and flout the intent of the legislature”.

This is not insignificant. The CHRO has, of late, been very generous to Complainants in allowing them to amend their complaints — even after the 180 day filing period has expired. This decision may put a chill in that practice or, at the very least, gives employers good reason to ask to dismiss the newly-raised matters when the case goes to a hearing or court.

 

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.

A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws. 

In the lawsuit, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing. 

Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.

There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:

  • First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
  • Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012.   Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”  
  • On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied.  When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
  • The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).”  It cites to the City of Shelton lawsuit that I covered back in August 2012.

The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly.  The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.

For employers, the lawsuit should be carefully watched.  Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions.  Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage. 

Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.

(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so.  I have no involvement, however, in the above proceeding.)

NERAC v. CHRO

For nearly six months, public hearings at the CHRO were on hold because Governor Malloy did not reappoint the human rights referees.  As a result, cases that had been pending at the CHRO went nowhere — fast.

However, that is changing.  Two new human rights referees were appointed this month and a third will be on the way shortly.  The new referees are:

  • Alvin Wilson, who will serve as Chief Human Rights Referee.  Most recently, Wilson served as Director of Operations under Governor Malloy and is a 1993 UConn Law School graduate. His LinkedIn profile is available here.
  • Ellen Bromley.  Bromley recently worked for the law firm of Benjamin & Gold. Prior to that, she worked for the City of Stamford as Social Services Coordinator.  She is a 1981 Georgetown Law School graduate.

Although the CHRO does not have any public hearings yet listed on the website, these new referees have recently been sending out notices to start the process up again.

(Perhaps the CHRO could update their website to indicate who these new referees are and make a formal announcement to the public about the resumption of these public hearings?)

Thus, employers will cases that have been awaiting a public hearing (particularly those prior to July 1, 2011) should expect to see some action shortly.

For everyone else, this means that the logjam at the CHRO will soon be coming to end.  And since there is the possibility that cases can now skip investigations and go directly to public hearing under the new procedural rules in effect last year, that possibility is now more real than ever.

 

In implementing the budget agreement today, the Connecticut General Assembly approved of significant changes for the CHRO – changes that will ultimately lead to the creation of a new Office of Administrative Hearings. The bill now goes to the Governor; her signature is expected.

Here are the highlights, courtesy of the Office of Legislative Research:

Training for CHRO Members

The bill requires each member of Commission on Human Rights and Opportunities (CHRO) to receive at least 10 hours of introductory training within two months of his or her appointment and before voting on any CHRO matter. A member who does not comply with this requirement within six months of his or her appointment is considered to have resigned from the commission. Each year thereafter, the member must receive five hours of follow-up training.

Reduction in Human Rights Referees

The bill reduces the number of human rights referees over the next approximately two years. On the date the bill passes, the number is reduced from seven to five. They serve until (1) the term they were appointed to fill expires or July 1, 2011, whichever is earlier, and (2) a successor is appointed and qualified. The governor fills any vacancies with the advice and consent of the General Assembly to serve until July 1, 2011.

Beginning July 1, 2011, the number of referees is reduced from five to three. Just as under current law, the governor appoints them with the advice and consent of the General Assembly to serve a three-year term.

The governor may remove any of the referees for cause.

Create Task Force for Department of Administrative Hearings

The bill establishes a 24-member task force to develop recommendations for establishing within the CHRO a Division of Administrative Hearings that would conduct impartial hearings on contested cases brought by or before the departments of Children and Families, Transportation, and Motor Vehicles; CHRO; and the Board of Firearms Permit Examiners.  Among the people: an attorney selected by the Connecticut Bar Association

Continue Reading Legislature Approves Training for CHRO Members; Reduces Number of Human Rights Referees & Establishes Hearing Task Force

Within a 702 page state budget, you should always expect surprises. 

This year’s budget — passed by the Connecticut General Assembly earlier this week on essentially a party-line vote — has a few surprises including a provision that establishes a new independent Office Of Administrative Hearings. 

The OAH will be housed in the Commission on Human Rights & Opportunities for administrative purposes, and will include several agencies, including CHRO, the Department of Children and Families, the Department of Transportation, the Department of Motor Vehicles, and Firearms Permit Examiners, according to analysis prepared by the state government.  .

The General Assembly’s Office of Fiscal Analysis has provided a brief summary of the provision in it’s "Budget Highlights":

The budget results in a net savings of $629,969 in FY 10 and FY 11 through the creation of the Office of Administrative Hearings within the Commission on Human Rights and Opportunities. The agencies that will be included in this centralized hearing office are: CHRO (1 position), Department of Children and Families (3 positions), Department of Transportation (2 positions), Department of Motor Vehicles (11 part-time positions paid through a per diem), and the Firearms Permit Examiners (1 position). The annualized funds that are transferred to CHRO for these positions are $1,031,733 in FY 10 and $1,107,879 in FY 11.

So, what are the additional details? Well, there aren’t any. At least that are easy to find in the budget (which you download here).  There is an appropriations line for the CHRO on line 350 or so of the document, but that appears to be it. A search for  "office of administrative hearings" (and some other key terms) reveals no explicit reference to this action in the text of the bill or the legislative analysis.

Currently, there is a detailed administrative scheme at the CHRO where all complaints that have passed a "reasonable cause" standard are sent to human rights referees for a determination on the merits. Indeed, the law called for the appointment of seven human rights referees on three year terms.  So what happens to those provisions?

Answers to this and other questions are unknown right now. But one thing is for certain, we’re likely to see some changes coming soon to the state agency responsible for oversight of the state’s anti-discrimination laws. For employers, stay tuned.

AS UPDATED (9/9)

Last week, I posted about the statistics released by the Connecticut Commission on Human Rights and Opportunities.  (You can view the CHRO’s Annual Report here.)  Today, I continue to take a look behind the numbers and the implications for employers in Connecticut.

Among the most striking of the statistics is this fact: Human Rights Referees issued only six referee decisions for the entire fiscal year (2007-2008) that closed cases after public hearings. 48 other cases were closed through a stipulated agreement. 

Why is this number significant? Because there are seven human rights referees that are employed full-time by the State of Connecticut to handle these cases. (UPDATE: Although the statute does provide for seven, a reader noted that only five or six have actually been appointed — which may be a post for another day).   And yes, for those doing the math, that works out to about  one referee decision for each human rights referee for the entire year

Now you may be asking if 6 referee decisions is actually a lot when compared with past years. The answer is unequivocally no.  In 2000-2001, there were 87 public hearing referee decisions.  In 2002-2003, there were still 67 referee decisions.  Even for the year ending 2004-2005, 30 referee decisions were issued.  That’s a drop of over 90 percent since 2001.

Despite the decreasing numbers, effective July 1, 2004, the legislature approved of seven human rights referees to serve for three year terms (Conn. Gen. Stat. Sec. 46a-57.)  Unlike their predecessors (who served part-time), these human rights referees serve on a full-time basis.  (46a-57(b)). 

It’s obvious from the most recent numbers that a review of the staffing levels of the human rights referees is in order by the General Assembly — which is where the blame clearly lies for its passage of the statute requiring certain staffing levels.   Perhaps the General Assembly, which is looking for ways to trim the budget, can review the CHRO’s staffing levels and determine whether having five to seven full-time human rights referees who issue a total of six decisions in a year on public hearings is the best use of taxpayer funds.  (For a fairly scathing review of the CHRO, the Law Tribune has a column this week by Karen Lee Torre.)

Continue Reading Numbers Galore, Part II: Seven Full-time CHRO Human Rights Referees for Six Referee Decisions

Only a handful of CHRO Human Rights Referee Decisions are issued each year — a number that has seemed to slow to a trickle recently.   But this month, the CHRO issued a lengthy decision in an age discrimination case.  In that case, CHRO Referee concluded that the Town of Bloomfield, Connecticut discriminated against a police officer because of his age when it terminated him.   (The officer was later reinstated as a result of an arbitration so his damages have been limited.)

In CHRO ex. rel. Donald Rajtar v. Town of Bloomfield, the Town was ordered to pay over $100,000 in backpay, lost benefits and interest.  The facts of the case are detailed and too lengthy to summarize, but suffice to say that the police officer relied heavily on alleged ageist comments made by co-workers and non-decisionmakers and on the theory that the investigation and decision into whether his employment should be determinated was deficient. 

The Town had contended that it terminated the Complainant because of the way he conducted a criminal investigation.  The Town further argued that the Complainant was dishonest in his work product; the CHRO Referee discounted that saying that "The charge that the complainant had lied was never pursued with sufficient objectivity so as to allow it to be fairly established." 

Notably, the CHRO Referee doesn’t dismiss the town’s defense entirely but simply found that the town’s explanation was far from bullet-proof (couldn’t avoid the pun here).  

A review of [the] detailed written explanation of why [the decision-maker] ultimately concluded the complainant had lied reveals a “house of cards”, which could easily (although admittedly not with certainty) have been toppled if the complainant had been extended the degree of animus free evenhandedness the law requires.

It is easy to question now whether the Town’s investigation into the Complainant before it terminated his employment was thorough. Certainly, in reading the opinion, it is clear that the town did more than a minimal investigation into such facts and from an outsider’s perspective, you have to applaud an employer that takes steps to support their employment decision beforehand. 

However, the case reinforces the notion that in order for an employment decision to hold up — you must be able to answer one question clearly: Was the employee treated fairly? The CHRO Referee here found "The complainant was entitled to more than a career ending ‘surmise’"; it is not a stretch to say that he did not believe the decision was "fair" since there is nothing in the law that requires that something "more".  This may not necessarily be "right" (and it’s probably not enough to appeal on) but appealling to a factfinder’s sense of fairness, is always critical to litigation success. 

One other noteworthy aspect of the case is the CHRO Referee’s decision to follow the "cat’s paw" theory of discrimination.  What is this theory? In essence, a court will find an employer liable based on a subordinate’s discriminatory animus, even where the person who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.  Here, the CHRO found that allegedly ageist comments and actions made by lower-level supervisors and co-workers "influenced" the actual decision-makers here.

The issue of the "cat’s paw" theory’s application was up for review by the U.S. Supreme Court earlier this year, but the case settled before the issue was ruled upon by the court.  Nevertheless, the theory has been previously supported by the Connecticut Appellate court five years ago in United Technologies v. CHRO (a case that has some parallels to this case).  Until the appellate courts see fit to revisit the issue, it is likely to remain the dominant theory in Connecticut state courts and at the CHRO. 

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 logo

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.