Nine months after a jury found his employer liable for firing a reservist called to active duty after the 9/11 attacks, a federal judge awarded Michael Serricchio over $1.3M in damages on his federal claim in a decision handed down late last week.

It is believed to be the largest judgment ever awarded under The Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that protects service members’ reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation.

You can read the court’s decision here.  The court’s judgment is available here and also includes an order of reinstatement. 

The Hartford Courant had a lengthy piece over the weekend spelling out the reaction to the court’s decision including much of its background.

While the amount of the court’s judgment is significant, the outcome wasn’t that unexpected after a jury decided the issue of liability last summary. The federal court only had to decide what, if any damages, it would award.   Before the court held the bench trial on damages, it afforded each party the opportunity to submit trial briefs on the issue. You can view the employer’s brief here and the employee’s brief here. The court held a bench trial last fall on the issue of damages and issued its decision late last week.

For employers, USERRA is one of the least-understood federal employment laws. Back in 2007, I discussed it at length. The Department of Labor also has an extensive website on the subject.  For employers with reservists or those called to active duty, understanding USERRA is crucial to avoiding expensive and time-consuming claims under that law. 

In employment litigation in federal court (let’s leave state court out of this discussion — it’s a whole different animal), filing a motion for summary judgment is seen by employers as their last, best chance to win a case before the matter is sent to a jury. After all, if the court grants the motion, a jury never sees the case and the case effectively ends (subject to an appeal).

Over the years, there have been various decisions that have suggested that summary judgments should be more of the exception rather than the rule.   Nevertheless, summary judgment still remains a tool that employers have in their toolbox  to defend against discrimination claims.

But besides the rules and the decisions that guide how courts should rule on such motions,  who judges the matter also plays a role in the ultimate outcome. As discussed below, this is important for employers and in-house counsel to understand when litigating discrimination claims.

Two recent decisions by two Connecticut federal judges illustrate that point.  In one case, Judge Vanessa Bryant granted an employer’s motion for summary judgment in a fairly short decision involving a Title VII claim . In another, Judge Christopher Droney denied an employer’s motion for summary judgment on the Title VII claims. 

Continue Reading A Tale of Two Summary Judgments: Looking at How Federal Judges May View Cases With a Different Lens

Sometimes I feel like a broken record (though in today’s world, perhaps that should be updated to "corrupted music file").  For a while now, it’s been apparent to most of us that employees continue to do silly things with e-mail and their social networking pages. 

Add a recent case in Connecticut to the list of cases where individuals are fired for inappropriate conduct on MySpace or social networking page.  (For a post on the use of social networking sites for background screening, click here.)

In Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008) (download here), a teacher at an Ansonia, Connecticut high school created a MySpace page, ostensibly "to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual, non-school related discussions."

A full description of the case can be found at MediaShift, a PBS production

One of Spanierman’s school colleagues became concerned about the page, which she said contained, among other things, pictures of naked men with "inappropriate comments" underneath them. She was also concerned about the nature of the personal conversations that the teacher was having with the students, and she convinced Spanierman to remove the page, which she considered "disruptive to students." Spanierman subsequently created a new MySpace page, however, that included similar content and similar personal communications with students. When the colleague learned of the new page, she reported it to the school administration, which placed Spanierman on administrative leave and ultimately declined to renew his teaching contract for the following year. After hearings that he attended with his union representative and later with his attorneys, he received a letter stating that he had "exercised poor judgment as a teacher."

While the discipline of a teacher for conduct outside the classroom raised a number of legal issues, the District Court squarely came down on the side of the school  and the 41-page decision is certainly not lacking in notable (if unusual) details, such as a "poem" and a title of "Mr. Spiderman" on the MySpace page. 

The court also found that the online exchanges "with students show a potentially unprofessional rapport with students, and the court can see how a school’s administration would disapprove of, and find disruptive, a teacher’s discussion with a student about “getting any” (presumably sex), or a threat made to a student (albeit a facetious one) about detention."

As an aside, however, footnote 13 of the decision is a must-read for its straight-face approach to online etiquette indicating that the court was taking "judicial" notice that spelling and grammar are not always followed online: 

The court has not altered the contents of this or any other exchange taken from the Plaintiff’s MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., “LOL” can mean “laughing out loud,” and “LMAO” can mean “laughing my ass off”). Furthermore, such exchanges often contain so-called “emoticons,” which are symbols used to convey emotional content in written or message form (e.g., “:)” indicates “smile” or “happy,” and “:(” indicates “frown” or “sad”). 

Ultimately, the case reinforces the fact that online forums, blogs and social networking sites remain a viable way for employers to discipline.  For employees, the lesson is clear: be careful what you write. And for employers, while you should be mindful that employees may have some rights on their right to publish materials online, there is still a role to be played when that conduct interferes with work. 

(After posting, I discovered a helpful post from the Delaware Employment Law Blog discussing this case as well.)

As I’ve mentioned before, sometimes cases hit the headlines for a day only to disappear into oblivion. But thanks to some followup reporting, there’s one story that we can give an update on.

Readers may recall a post from May of this year about a state attorney, Maureen Duggan, who wrote an anonymous letter about the state’s Ethics Chief, allegedly purporting to be a parking lot attendant.  Above the Law also ran a post about it as well. 

So what’s happened to that attorney since then? Over the last week or so, two events related to the attorney have hit the headlines.

First, state officials indicated that they planned no disciplinary action against the employee.  According to the Hartford Courant:

An investigator concluded in an Aug. 7 report, released Wednesday, that use of the phony identity by Duggan — who was a State Ethics Commission staff lawyer in 2004, and is now an attorney at the state’s child-protection agency — was not reason to discipline her under state personnel rules.

Her conduct "may be construed to be wrong, improper or even deceitful," but doesn’t add up to "sufficient evidence" to discipline her, wrote personnel administrator Stephen Caliendo of the Department of Administrative Services.

But that doesn’t mean that the lawyer has escaped without punishment. In fact, her current job is dependent on her law license; that license is now in jeopardy after it was also announced that a state grievance panel filed a complaint against her that could lead to discipline or disbarment.  A hearing will likely be scheduled in November or December 2008, according to the Hartford Courant and the employee has retained Hope Seeley to represent her. 

And what’s happened to the underlying employment claim by former state ethics chief? Well, the state filed its reply brief in support of its summary judgment motion in June (download here).   Notably, when the state filed its reply brief, it attached some additional exhibits as well including the full deposition of Maureen Duggan (available here).  Thus, readers can get a full picture of her deposition and not just the portions excerpted before.   

A decision on the motion for summary judgment is expected later this year.

Late last week (when, of course, I was out of the office), word came down about another large verdict in an employment law case in Connecticut.  The verdict, composed of $1M in compensatory damages and $3M in punitive damages in Tucker v. Journal Register Co. was first reported by the Connecticut Post last Friday here.  (H/T Jottings blog)

Long time readers of the blog may recall my discussion of the employer’s summary judgment motion and the court’s decision back in November 2007. In my posts back then (which can be found here and here).  I talked about how the former employee alleged that her employer terminated her employment because she was opposed to testifying as a favorable witness in the company’s defense of another employee against whom a sexual harassment complaint had been filed.  the employer denied the claims and said that she had been fired for misusing an office telephone in which collect calls were accepted.

The case went to trial on two legal claims: 1) retaliation under Title VII as a person who participated or opposed a discriminatory practice, and 2) Conn. Gen. Stat. Sec. 31-51q, which applies the First Amendment to private employers.  You can download the trial memorandum here.  

The Court’s docket sheet hasn’t yet been updated with some of the nitty gritty and I hope to followup with some more information about what happened during the trial.  For instance, the employer moved for judgment as a matter of law during the trial and the court has taken that motion under advisement. I would certainly expect post-verdict motions to occur — even before an expected appeal (though it is unclear what the grounds would be).  According to Tucker’s attorney, the jury found against the employer on both claims. 

Tucker’s attorney, Jeff Bagnell, was understandably pleased with the multi-million dollar verdict:

We were very pleased with the jury’s verdict. It sent a clear message that you can’t retaliate against an employee who is going to tell the truth in a legal case. This excellent jury showed that people still care about the oath and what it means. Thank God for the Seventh Amendment.

This case demonstrates once again that retaliation claims and 31-51q claims are among the more dangerous type of employment law claims out there.   And although there aren’t hard numbers out there on this, the damages that juries in Connecticut are awarding on such claims seem be on the increase. 

What does this mean for employers? It’s yet another reminder to treat all claims of retaliation seriously.   And consider settlement of such claims when the opportunity arises. No matter how strongly an employer feels about the claims, once the claims go to a jury, there is always a risk of loss — no matter how strong the facts may appear to be to the employer.

Ed: Updated to reflect newer posts and correct style

There are many employment lawyers who subscribe to the belief that "No Good Deed Goes Unpunished".  A case out of Connecticut and the Second Circuit this month certainly won’t change that perception.  Indeed, although the case may have political undertones, it sets up a classic factual case of an employer who apparently tries to do the right thing and STILL gets sued for their actions.  Ultimately, the Second Circuit has affirmed that the employer did not violate the law but the issue still remains far from settled. 

Here’s the basic facts and background of Ricci v. DeStefano:

In March 2004, New Haven, Connecticut Fire Department held two promotional exams for the positions of Lieutenant and Captain.  However, the New Haven Civil Service Board (“CSB”) refused to certify the results of those exams because statistically, the test results showed that the test may have had a disparate impact on African-Americans. 

A group of seventeen white candidates and one Hispanic candidates who took the promotional exams sued.  These candidates fared fared very well on the test but did not receive a promotion because without the CSB’s certification of the test results, the promotional process could not proceed.

The Plaintiffs asserted that the refusal to certify the examination results violated their rights under Title VII and the Equal Protection Clause. In 2006, the District Court of Connecticut granted New Haven’s motion for summary judgment (decision here) — effectively dismissing  the case. 

CSB officials said, in their papers, that the reason they refused to certify the results is their desire to comply with the letter and the spirit of Title VII. The District Court noted that "Plaintiffs deride this ‘feigned desire to ‘comply’ with Title VII,’ arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. "

What is noteworthy, as the lower court pointed out, is that the case presents "the opposite
scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for
their refusal to use the results.  

Ultimately, the District Court said that Plaintiffs’ contention that "diversity" is a code word for reverse discrimination did not have merit.  The employer here was trying to do right by not using a test that had a disparate impact and the Court was unwilling to suggest that the employer’s decision was incorrect.  The factual circumstances, as I’ve said before, are much more complex than that and I encourage readers to review the entire decision.

Of course, the Plaintiffs appealed. The Second Circuit la500 pearl st, second circuitst week affirmed the decision in a brief per curiam decision (available here).  The Court noted that the CSB "found itself in the unfortunate position of having no good alternatives."  

And while the court said it was "unsympathetic to the plaintiffs’ expression of frustration", the Court said that CSB was "simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact".   As such, its actions were protected. 

End of story, right?

Well, not quite.  Later in the week, the Second Circuit considered, but ultimately rejected a rehearing "in banc" (meaning a decision in front of all of the Second Circuit judges, not just a three judge panel).  The Wait a Second Blog explains the procedural mess in further detail in a post here.  What is unusual is that the decisions either concurring or dissenting in the decision to rehear the case in banc are lengthy and reveal a deeply divided Second Circuit. 

Indeed, the dissent noted that the Second Circuit has done a disservice by not publishing a full opinion on the subject and instead hiding behind a short "per curiam" opinion.  Ultimately, the dissent views the issue as one of "great importance" and believes that full consideration by the Second Circuit — or at least a more detailed decision — is warranted.  Certainly, the next time this issue is before the Second Circuit, we can expect more fireworks depending on the panel makeup.

The Plaintiffs here have petitioned the Supreme Court to grant certiorari in this case. It certainly merits further watching.   I would expect a ruling from the Supreme Court on whether to grant certiorari in fall of 2008. 

For employers, this case demonstrates the problem that companies face all the time. Typically, a decision affecting one employee, will leave another unhappy.  And even when the employer is trying to do the "right" thing by complying with Title VII (even if there is political overtones) they still could face a lawsuit by a group of employees unhappy with the decision.  Strict compliance with the law and getting sound legal advice is the best strategy for avoiding the minefields that continue to exist in this area.

UPDATE: Point of Law was kind enough to pick up on the post and credit should be given to their initial post on the subject late last week (which I was just tipped off to).  There are also other blog posts on the subject here,  here and here as well. 

FURTHER UPDATE 6/17: Wait a Second has an update this afternoon about another dissenting opinion released today by Second Circuit Chief Judge Dennis Jacobs.  From a legal procedural perspective, it’s interesting to see the "catfight" going on at the Court of Appeals. But from employment law perspective, it doesn’t really affect the underlying decision.

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 a recent case, 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. 

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.

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.

Courtesy of U.S. Archives (public domain)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

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".

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.