Red light? Green light? Trial.

Every week or two, the federal court in Connecticut is asked to decide a motion for summary judgment in a discrimination case.  I’ve yet to discuss what these motions are in detail on this blog, but a recent federal case in Connecticut provides a good learning example.

To simplify (drastically?) a federal court case in Connecticut, after a lawsuit is filed by an employee and responded to by the defendant/employer, the parties engage in what is called discovery — interrogatories, requests for production and depositions — all in the hopes of getting information that can help them at trial.

But at the end of discovery — before a trial happens — the parties (and typically the defendant) have an opportunity to file a “motion for summary judgment.”  Such a motion is the defendant’s chance to say, “Based on the undisputed facts, we should win on the law.”  Or, in other words, there’s no need for a trial.

What people unfamiliar with the legal process often misunderstand, however, is that the court isn’t merely looking at the law in deciding whether the case merits a trial. Rather, the court first looks to see whether all the material (or, in plain English, important) facts are undisputed.

If there are genuine disagreements as to key factual issues, then the case has to go to a trial to let a jury or judge decide the key facts.

A car accident case is the easiest way to understand this.  Suppose there is an accident at an intersection and the key issue is who had the right of way.  Driver A says the light was green. Driver B says light was red.  Witness C says the light had just turned yellow.   In this situation, there is a genuine issue as to what color the light was and therefore, who had the right of way. It’ll be up to a jury to weigh the evidence and decide who is to blame for the accident.


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At 47 pages, U.S. District Court Judge Hall’s decision last week in Costello v. Home Depot USA (download here) denying an employer’s motion for summary judgment in an overtime case, isn’t exactly a light read. 

More Saving, More Doing? Not so with litigation

She is, of course, not to blame. The

This morning, Jon Hyman over at the Ohio Employer’s Law Blog, reported on a 6th Circuit decision that suggested that an employment discrimination claim could survive even in the absence of a jury finding an “adverse employment action.”

Yesterday, a District Court decision in Connecticut said exactly the opposite.  Indeed, the court granted an employer’s

I’ll be the first to admit that the words “Sarbanes-Oxley Act” are likely to induce a big collective yawn from many of you out there.  Even the acronym “SOX” doesn’t liven things up.  (Then there are people, like Doug Cornelius at the Compliance Building blog who eat this stuff up.)

But here’s what you need to know as an employer: Terminated employees can bring a whistleblowing claim under SOX without using the words “fraud” but just by complaining about what they perceive to be as a violation of federal law.  Indeed, the caselaw on these claims is starting to mirror the pattern of retaliation claims — and we all know how notoriously difficult it is to defend against those types of claims.

SOX, not socks.

A relative new case out of the federal court in Connecticut illustrates this issue.  In Barker v. UBS AG (download here), the employer’s motion for summary judgment was denied on a SOX whistleblower claim. 

What does a terminated employee (who, the employer contends, was terminated during a reduction in force) have to show to get her case to trial? Initially, to establish a prima facie case, the plaintiff must demonstrate by a preponderance of the evidence that: (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action.

If the plaintiff meets her burden, the employer can then avoid liability if it can prove by clear and convincing evidence [a much higher standard of proof] that it would have taken the same personnel action in the absence of the protected activity.

And what is “protected activity”? This is where things differ slightly from retaliation claims. Here, as the court explains it.  the employee must she “had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law” and  the employee’s communications “must definitively and specifically relate to [one] of the listed categories of fraud or securities violations” in SOX.


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It will come as no surprise to employers that summary judgment (essentially, throwing out a case before trial) in employment cases in state court is hard to get.  State judges are typically reluctant to grant such a motion, which means cases get scheduled for trial — an expensive and uncertain proposition at best for employers. 

When employers do get summary judgment, their victories may be shortlived. Just ask the employer in the case of Li v. Canberra Industires (download here), which will be officially released on March 27, 2012.

In that case, the employer had criticized the plaintiff for many months on her performance and the employer had the documentation to support it.  In fact, she was told that if her performance didn’t improve, she could be fired.  She was transfered to a new supervisor.


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The running joke by employment lawyers is that even though Connecticut is an at-will employment state, employees can sue their employers at any time for any reason or no reason at all.  (I’ll wait while you laugh groan.)

Neither rain, nor sleet. Maybe snow…

The joke touches on the perception by employers that employees can seemingly file the most frivolous of complaints. And the perception that courts will not take any action to dismiss those claims.

A new case out of the federal district court in Connecticut shows how that perception can be wrong, however.

In Friedman v. USPS, a letter carrier (who suffered from lateral epicondylitis — tennis elbow) claimed that employer violated the ADA when in changed his status even though it did not affect his income, his seniority, his ability to secure further employment with USPS or cause him any actual or imminent economic injury.

When the employer filed for summary judgment, it did not bother to go through the normal burden-shifting analysis. Rather, it said that the employee lacked “standing” (or the right) to proceed with his claims at all.

Why?


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Last week, a federal district court in Connecticut held that the Department of Corrections violated federal law in instituting a discriminatory physical fitness test that created a disparate impact on women.  It also found that the test was not job-related or necessary.  

In doing so, the court granted summary judgment to the employee

You’ve seen a lot on this blog about how the ADA Amendments Act (ADAAA) may have a significant impact on how employment discrimination cases proceed.

We haven’t had many cases yet to judge that on because the Act was not retroactive, but a case recently decided in Connecticut District Court gives us some insight into

In broad terms, the First Amendment prohibits public employers from retaliating against employees who engage in "protected speech".   (Connecticut has a statute, Conn. Gen. Stat. Sec. 31-51q that purports to apply the First Amendment to private employers too.)  But proving these cases remains difficult for employees.  

And even victories may later end up as