From Reeves to Epilepsy
With the continuing rise in employment litigation, courts and administrative agencies are repeatedly called upon to resolve complex issues involving employee rights. This millennium has proven no different. With a new millennium came new opportunities for the courts to clarify existing legal precedent, to answer statutory ambiguities and to take employment litigation down new roads. The following article highlights and summarizes decisions of the United States Supreme Court, the United States Circuit Court of Appeals for the Second Circuit and Connecticut federal and state courts on employment law issues from January through September 2000.
In 2000, the United States Supreme Court issued several landmark decisions on wage and hour and employment discrimination issues. In Christensen v. Harris County, the Court provided guidance on a provision of the Federal Labor Standards Act (FLSA) that allows States and their political subdivisions to compensate employees for overtime by giving them compensatory time at a rate of one and one-half hours for every hour worked over 40 hours in a work week. The FLSA also limits the number of compensatory hours that an employee can accrue. Once this limit is reached, an employer can “cash out” accrued compensatory hours by paying the employee cash compensation for unused compensatory time.
The facts in Christensen focused on Harris County’s implementation of a policy that required employees to schedule time off to reduce their accrued compensatory time. Petitioners, 127 deputy sheriffs, sued the County claiming that, in the absence of an agreement permitting the employer to do so, the FLSA does not allow an employer to compel an employee to use compensatory time. The specific question before the Supreme Court was whether a public agency that is governed by the compensatory time provisions of the FLSA can require its employees to use accrued compensatory time without a preexisting agreement reflecting such a policy.
In Christensen, the Court concluded that the FLSA allows States and their political subdivisions to require employees to schedule time off to reduce the amount of accrued compensatory time. The Court rejected the sheriffs’ argument that provisions in the statute granting employees control over scheduling time off for compensatory time implied that all other methods of spending compensatory time were precluded. The Court explained that the statutory provision upon which the petitioners relied provided only a “minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it.” Thus, the FLSA prevents an employer only from prohibiting employees from using compensatory time when they ask to do so. The Act does not prevent an employer from requiring that employees use the benefits of compensatory time by taking time off from work with full pay. Thus, the Court found that Harris County’s policy was entirely compatible with § 207(o)(5) of the Act. Accordingly, the sheriffs could not prove that Harris County violated the FLSA, and the County’s policy providing for the use of compensatory time was upheld.
In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court issued a unanimous ruling that lowered the evidentiary burden on plaintiffs in employment discrimination cases. The Court concluded that employees can win such lawsuits without direct proof that their employers acted with discriminatory intent. As a result, more plaintiffs alleging employment discrimination will survive summary judgment motions, and more employers will have to defend against such charges before a jury.
The plaintiff in Reeves
alleged that his employer, Sanderson Plumbing, terminated his employment because
of his age in violation of the Age Discrimination in Employment Act (ADEA).
Reeves was 57 years old at the time of his discharge and had been working
for Sanderson Plumbing for 40 years.
He and another employee, who was in his mid-30’s, supervised the
“Hinge Room” department.
Reeves’s duties included recording the attendance and work hours of the
employees he supervised.
He also was required to review a weekly report that detailed the hours
worked for each employee.
Sanderson Plumbing maintained that it ended Reeves’s employment because he had not kept accurate attendance records. Because the Hinge Room’s production level was decreasing, the company’s director of manufacturing ordered an audit of the monthly attendance reports of the employees in this department. The audit revealed that Reeves and other supervisors made a number of timekeeping mistakes and misrepresentations. The director of the company concluded that Reeves should be fired. Consequently, Reeves’s employment was terminated, and he later filed suit, contending that the company’s decision to end his employment was based on his age.
At trial, the jury returned a verdict for Reeves. The Fifth Circuit reversed and held that, although Reeves may have offered enough evidence for the jury to have found that the company’s explanation was pretextual, he had not proven that he was fired because of his age. Reeves appealed this decision to the United States Supreme Court.
The Supreme Court stated that this case involved issues concerning “the kind and amount of evidence necessary to sustain a jury’s verdict that an employer unlawfully discriminated on the basis of age.” The precise issue before the Court was “whether a plaintiff’s prima facie case of discrimination . . . combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination.” The Court found that the Fifth Circuit had “misconceived the evidentiary burden” of plaintiffs who attempt to prove intentional discrimination through indirect evidence. The Court thus held that, when the prima facie case is combined with sufficient evidence to find that the employer’s asserted explanation is false, the trier of fact is permitted to conclude that the employer engaged in unlawful discrimination.
The Court did, however, provide some comfort to employers in Reeves. It explained that a showing of the falsity of the employer’s reason for its adverse employment action will not always be enough to sustain a jury’s finding of liability. Factors that would entitle an employer to judgment as a matter of law include “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on such a motion.”
The Court went on to hold that Sanderson Plumbing was not entitled to judgment as a matter of law because the plaintiff had established a prima facie case of age discrimination and had created a jury issue as to the falsity of the employer’s explanation. In particular, Reeves presented evidence that the director of manufacturing was motivated by age-based animus and was the decision-maker in the termination of Reeves’s employment. Reeves testified that this director made discriminatory comments to him like Reeves “‘was so old [he] must have come over on the Mayflower’” and that he “‘was too damn old to do [his] job.’” In addition, the younger supervisor that worked with Reeves testified at trial that the director treated them differently. The Court found that because plaintiff had established a prima facie case of discrimination, presented sufficient evidence to discredit the company’s reason for its decision to fire Reeves and presented additional evidence of age-based animus, the jury had a rational basis for finding that the employer had engaged in intentional age discrimination.
During this past year, the United States Court of Appeal for the Second Circuit also provided guidance on the parties’ respective evidentiary burdens in employment discrimination cases. In Galabya v. New York City Board of Education, the Second Circuit considered the prima facie elements of a claim that the termination of an individual’s employment constituted an “adverse employment action” in violation of laws prohibiting employment discrimination. In such cases, the plaintiff’s prima facie case consists of establishing “membership in a protected class, qualification for the position, an adverse employment action, and circumstances that give at least minimal support to an inference of discrimination.”
In Galabya, the Second Circuit explained that an individual suffers an adverse employment action if that person endures a “materially adverse change” in the terms or conditions of employment. A materially adverse change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities and includes actions such as termination of employment, a demotion that corresponds with a decrease in wage or salary, a “less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities.”
The court made this determination while considering the issue of whether the transfer of an employee to another job position constituted a material adverse change sufficient to sustain a prima facie case of age discrimination. The plaintiff in Galabya was a public schoolteacher who was 68 years of age. He was teaching at a junior high school for emotionally disturbed children. He applied for and was rejected for a position teaching typing at his junior high school and instead transferred to a mainstream high school to teach a typing class. The plaintiff sued the school board for age discrimination.
The court concluded that the plaintiff had not established that his transfer constituted an adverse employment action. He had not produced any evidence that the transfer affected his salary or that it resulted in a loss of benefits, prestige or opportunities for advancement. Thus, his case was dismissed for failure to establish a prima facie case of age discrimination.
In 2000, the Second Circuit also refined the elements of a prima facie case for discriminatory “failure to promote” cases under the ADEA. In Mauro v. Southern New England Telecommunications, Inc.,, the plaintiff’s position was eliminated due to a reduction-in-force. He then moved into a “Level One” job, which was one level lower than the position from which he had been eliminated. He claimed that the company told him that they would consider him for Level Two jobs as they became available. Two Level Two jobs later did open, but the defendant hired two other employees for these positions. Both of the individuals hired were younger than the plaintiff. The plaintiff then sued the company for age discrimination. Summary judgment was granted for the defendant, and the plaintiff appealed.
On appeal, the Second Circuit noted that “a plaintiff alleging a failure to promote ordinarily must show that he or she applied for the specific job or jobs at issue.” This requirement was not applicable in this case because the plaintiff told his employer that he was interested in being promoted but was unaware of specific job openings because the employer never posted them. The court stated that requiring the plaintiff to show that he applied for the Level Two position to establish his prima facie case would be “unrealistic” because he could not apply for a job that he did not know existed. Thus, the plaintiff’s failure to apply for a promotion would not have barred him, as a matter of law, from establishing a prima facie case of age discrimination.
In Carlton v. Mystic Transportation, Inc., the Second Circuit turned to defenses available to employers in age discrimination cases, namely, the “same actor inference.” The plaintiff in Carlton was hired in 1988 at age 49 for a position in sales and was promoted shortly thereafter to director of marketing. During his employment, the plaintiff brought in numerous new accounts and nearly doubled the income that his area generated for his employer. In 1995, the company’s profits began to decrease. That year, the plaintiff and ten other employees were discharged pursuant to a reduction-in-force. The plaintiff was 56 years old at the time of his discharge.
The plaintiff filed suit against his former employer claiming, among other things, that the termination of his employment was based on his age and thus violated the ADEA. In support of his claim, the plaintiff pointed to the defendant’s later hire of an employee eighteen years younger to assist the company with the plaintiff’s former duties. The company also rehired a former employee, twenty-five years younger and who had once been terminated for insubordination, to assist with the plaintiff’s remaining responsibilities. The defendant company contended that its decision to end the plaintiff’s employment was based on his poor performance and the company’s downsizing. The lower court granted defendant’s motion for summary judgment, and the plaintiff appealed.
The Second Circuit found that the plaintiff had established a prima facie case of age discrimination. The court was persuaded by plaintiff’s evidence that, upon his discharge, his duties were transferred to younger employees. The plaintiff also testified that the company’s president told him that he should retire at the meeting held to inform the plaintiff of his discharge. The court stated that, in most cases, “evidence of one stray comment by itself is usually not sufficient proof to show age discrimination [but] that stray comment may ‘bear more ominous significance’ when considered within the totality of all the evidence.”
The court then concluded that the defendant’s articulated reasons for the plaintiff’s discharge, namely, the reduction-in-force and his poor performance, were pretextual. Plaintiff had never received a negative written performance evaluation or a formal warning while he worked for the defendant. The defendant’s need to end the plaintiff’s employment was also questionable because the company hired another younger employee only three month’s after the plaintiff’s discharge who took over some of plaintiff’s duties.
In Carlton, the Second Circuit also considered whether the “same actor inference” supported the grant of summary judgment for the defendant on the age discrimination claim. An employer can raise the same actor inference in cases where the person who fires an employee is the same person that hired him. In such cases, it is difficult to impute discriminatory motives.
The same actor inference applied in Carlton because the plaintiff was hired at age 49 and fired at age 56 by the same person. The court determined that this inference could not, however, justify summary judgment for the employer because 7 years elapsed between the time plaintiff was hired and fired. The court stated that “where the termination occurs within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision.” The inference weakens “when a significant period of time elapses between the hiring and the firing.” The court determined that 7 years was indeed a “significant period of time.” Thus, the lower court’s decision granting summary judgment for the employer was reversed.
The new millennium saw the Second Circuit both expanding and restricting individuals’ protections against unlawful employment discrimination. In Simonton v. Runyon, the Second Circuit confirmed that Title VII does not prohibit discrimination on the basis of sexual orientation. The plaintiff in Simonton had been a postal worker for twelve years. He claimed that he was forced to endure an abusive and hostile work environment because of his sexual orientation while he worked in the postal system. He further alleged that this harassment was so severe that it caused him to suffer a heart attack. He sued both the Postmaster General and the United States Postal Service under Title VII for discrimination on the basis of his sexual orientation. The Second Circuit dismissed the plaintiff’s case because he failed to state a cause of action. The court explained that Title VII does not prohibit harassment or discrimination on the basis of sexual orientation.
The Second Circuit broke new ground in the area of disability discrimination law by adopting a mixed-motive analysis for cases brought under Americans with Disabilities Act (ADA). The plaintiff in Parker v. Columbia Pictures injured his back while working and opted to have back surgery. He remained on a paid leave of absence from work for six months. After he exhausted his paid leave time and still remained unable to work, the company informed him that his employment was terminated. The plaintiff filed suit claiming that he was discharged because of his disability in violation of the ADA.
The district court had determined that the plaintiff in Parker did not make out a prima face case under the ADA and granted defendant’s motion for summary judgment on plaintiff’s discriminatory discharge claims. The district court concluded that the plaintiff had not established the final element of his prima facie case, namely, that the defendant had terminated his employment “because of” his disability. In support of this decision, the district court cited to the plaintiff’s affidavit in opposition to the defendant’s dispositive motion. In that affidavit, the plaintiff admitted that there was at least one reason other than his back injury for his discharge. He stated that his supervisor wanted to fire him because she wanted to hire a more “loyal” employee in his place, and that plaintiff’s disability provided a “convenient means” for discharging him.
On appeal, the Second Circuit reviewed the district court’s ruling in light of “an issue not yet addressed in this Circuit: the applicability of the ‘mixed-motive’ analysis under the ADA.” The court determined that the plaintiff’s alleged reasons for the termination of his employment involved a mixed-motive theory of causation. In other words, disability was one of the motivating factors, but not the only reason, for plaintiff’s discharge. The Second Circuit acknowledged that the ADA does not include an explicit mixed-motive provision. Notwithstanding, several other circuit courts of appeal have ruled that the mixed-motive analysis available under Title VII also applies to ADA claims. The Second Circuit stated in Parker that it agreed with the analysis of these circuit courts and joined them in adopting a mixed-motive theory of causation for ADA cases. Thus, a plaintiff alleging discrimination on the basis of disability need not prove that the disability was the “sole cause of the adverse employment action” but only a “motivating” factor in the decision.
Applying the mixed-motive analysis, the court found that the plaintiff in Parker had established the final element of his prima facie case. In particular, despite the plaintiff’s affidavit testimony, he had alleged that his disability was a motivating factor in the decision to end his employment. Accordingly, the court vacated the district court’s ruling that the plaintiff did not establish a prima facie case of disability discrimination and remanded on the ground of causation.
The Second Circuit also issued several decisions this year that followed United States Supreme Court precedent interpreting the ADA. In Schaefer v. State Insurance Fund, the plaintiff brought an action against the defendant employer claiming that the termination of her employment violated the ADA because it was based on her diabetes. Plaintiff maintained that her medical condition was, however, controllable by diet and medication. The Second Circuit ruled that, in light of the United States Supreme Court’s trilogy of decisions on this issue, ameliorative measures, such as medication, had to be taken into consideration to determine whether the plaintiff was substantially limited from a major life activity and thus disabled within the meaning of the ADA. The case was remanded to allow plaintiff to present further evidence on the plaintiff’s alleged disability.
In DiSanto v. McGraw-Hill, Inc., the Second Circuit also followed Supreme Court precedent on conflicting assertions and the ADA. In DiSanto, the Second Circuit dismissed the ADA claim of a salesperson who alleged that his employment was unlawfully terminated because he is HIV-positive status and suffers from depression. The court found that the plaintiff had not presented any evidence that he could perform the essential functions of his job at the time of his discharge. The court pointed to the plaintiff’s trial testimony that he could not fulfill the duties of his job without accommodation. In addition, the plaintiff had represented to the Social Security Administration that “he was completely disabled before his discharge.” The Second Circuit stated that, while such statements do not always preclude a disabled individual from bringing an ADA action and claiming that he can perform the essential functions of his position, the plaintiff “must offer some explanation for the inconsistency.” The plaintiff in DiSanto failed to provide such an explanation. Accordingly, his ADA claim was dismissed for failure to prove that he could perform the essential functions of his position.
Federal and state courts continue to grapple with the issue of what constitutes a reasonable accommodation under the ADA. In Jackan v. New York State DOL, the Second Circuit held that an employee alleging that an employer’s failure to reassign him to another job constitutes a failure to accommodate a disability in violation of the ADA must first show that a job vacancy existed at the time the transfer was sought. The plaintiff in this case requested a transfer to a desk job after undergoing spinal surgery and being cleared to return to work by his doctors. The defendant, the New York State Department of Labor, refused to transfer him because of the New York Civil Service Law and Rules prohibiting transfers to positions for which there exist preferred lists or reemployment rosters. The Department’s compliance board turned down the plaintiff’s request for an appeal of this decision. He filed suit against the Department alleging violations of the ADA and the Rehabilitation Act.
The issue before the Second Circuit in Jackan was which party bears the burden of proving that a vacancy existed at the time the transfer was sought in an ADA case alleging that an employer failed to provide a reasonable accommodation. The court decided that the plaintiff bears the burden of production and the burden of persuasion on the issue of whether a job vacancy existed into which he might have been transferred. Because the plaintiff in Jackan did not meet that burden, the lower court’s judgment in favor of the defendant was affirmed.
The court also declared in Jackan that, when requests for reasonable accommodations are made under the ADA, the statute envisions an interactive process between the employer and the employee whereby the parties can “work together” to evaluate the request. The court then reaffirmed the two-step process that it set out in Borkowski v. Valley Central School District  for evaluating whether the failure to provide a reasonable accommodation violates the ADA. First, “the plaintiff bears the burden of proving . . . that an accommodation exists that permits her to perform the job’s essential functions.” If the plaintiff meets that burden, the analysis then shifts to the defendant who has the burden of persuasion on the question of whether the requested accommodation is reasonable.
In Ezikovich v. Commission on Human Rights and Opportunities, the Connecticut Appellate Court addressed part-time and modified work schedules as reasonable accommodations under the ADA. The plaintiff in this case suffered from chronic fatigue syndrome. She asked that she be allowed to begin work on her own daily schedule and without a fixed starting time as a reasonable accommodation. Her employer, the department of public health, refused to grant her request. The plaintiff then filed a claim under the ADA with the Connecticut Commission on Human Rights and Opportunities (CHRO). The CHRO rejected the plaintiff’s disability claim, and she appealed.
The plaintiff in Ezikovich made a formal work accommodation request to her employer that she be allowed to work “[a] no fixed start to work schedule,” the court explained. The department denied her request “for a schedule that would allow her to work when she is able” but stated that it would accommodate her with a modified work schedule similar to the relaxed hours that she was already working. Specifically, the department was already allowing her to work a part-time schedule in which she started work at 11:30 a.m. every work day.
The Appellate Court concluded that the department had provided the plaintiff with a reasonable accommodation under the ADA by allowing her to work a “relaxed, part-time schedule, while still classifying her as a full-time employee.” The court recognized that the ADA does not have “a closed-end definition of what constitutes a reasonable accommodation.” Plaintiff’s proposed “no fixed start to work schedule” was, however, an unreasonable request for an accommodation. To establish a disability discrimination claim under the ADA, the plaintiff must show that she is able to perform the essential functions of her position with or without accommodation. The court found that plaintiff’s attendance at work was an essential function of her position as a supervisory employee. Her requested accommodation would not, however, allow her to perform this essential job function because the accommodation sought did not provide for her regular and reliable attendance at work. Thus, her disability discrimination claim was dismissed.
In EEOC v. Staten Island Savings Bank, the Second Circuit was asked to consider another major issue under the ADA, namely, whether an employer can offer more generous disability benefits for physical disabilities than for mental disabilities. In this case, the Second Circuit joined six other circuit courts in holding that the ADA does not preclude employers from offering long-term disability plans that provide less coverage for mental and emotional disabilities than for physical disabilities.
In Staten Island Savings Bank, the EEOC brought a complaint against the Bank on behalf of a former employee and other similarly situated persons. Because of an obsessive-compulsive disorder, the employee at issue was unable to work and thus disabled within the meaning of the Bank’s life insurance plan. Accordingly, the employee began to receive disability benefits under this plan.
The Bank’s life insurance plan provided benefits for generally any disability that began before the employee was 60 years of age and continued such benefits until the Social Security Normal Retirement Age. The exception to this rule was for “mental and emotional conditions.” Disability benefits under the plan for mental and emotional conditions were usually provided only for two years. The Bank employee’s disability benefits were terminated pursuant to this two-year limitation.
The EEOC sued both the Bank and the insurance provider, claiming that this distinction violated the ADA. The Second Circuit affirmed the decision of the lower court and dismissed the complaint. The court analyzed the language of the ADA but did not find an answer to the question of whether the statute bars entities from providing long-term disability benefit plans that offer different coverage for different disabilities. Upon interpretation of the statute, the court concluded that “the ADA does not require disability benefit plans to provide equal benefits for mental and physical disabilities.”
Turning to the particular facts of the Staten Island Savings Bank case, the Second Circuit recognized that the life insurance plans at issue did contain “facially discriminatory classifications that target the mentally and emotionally disabled for more limited coverage on the basis of their particular form of disability.” The court emphasized that, despite this distinction, the complainants had “access to exactly the same benefit plans as did their physically disabled and non-disabled coworkers.” Moreover, the mentally and emotionally disabled were not required to pay more for their coverage nor given different plans.
Because the complainants were provided with the same fringe benefit plan as their coworkers, they had not been discriminated against in violation of the ADA. The court stated that it “agree[d] with [its] sister circuits that ‘so long as every employee is offered the same plan regardless of that employee’s contemporary or future disability status, then no discrimination has occurred even if the plan offers different coverage for various disabilities.’”
Turning to decisions in 2000 involving harassment issues, the Second Circuit determined in Whidbee v. Garzarelli Food Specialties, Inc., that various offensive comments made over three months could support a hostile work environment claim. In Whidbee, two African-American women were employed at a McDonald’s Restaurant franchise in New York. The franchise was operated by Garzarelli Food Specialties, Inc. These women alleged that, during a three-month period, a coworker, Richard Corliss, made offensive comments about coworkers, including “Puerto Ricans are harder workers than Mexicans;” a Mexican coworker “smelled;” he had “a problem with Mexicans;” the town was “getting worse because of the blacks and Puerto Ricans;” and “Blacks and Puerto Ricans are lazy and don’t want to work.” The women also overheard Corliss tell another coworker that he is “a lazy black boy” and that he had a “rope in the back shed to hang [his] butt.”
After the plaintiffs made a series of complaints to their supervisors, Corliss received a verbal warning. Because he continued making offensive comments, Corliss received a written warning. The next day, Corliss told another coworker that he “should go out and buy a truck and drag someone by the truck who is black.” The two female African-American employees resigned, citing a hostile work environment due to the racially offensive comments that Corliss made. These women then filed claims against Garzarelli and its owners for hostile work environment under Section 1981 of the Civil Rights Act. The lower court dismissed their claims determining that the insults were few in number, occurred over a short time and were not severe enough to impose liability. On appeal, the Second Circuit reversed.
In Whidbee, the Second Circuit applied the totality of circumstances test in determining whether the plaintiffs had established a hostile work environment claim. Although the offensive comments were over a short period of time, they included one physical threat and “a veritable barrage of racial epithets.” Accordingly, the court ruled that a jury should determine whether the women had proven a hostile environment.
In discussing the claim against the owners of the franchise, the court announced that individuals may be held personally liable under Section 1981. To assert that claim, a plaintiff must show “some affirmative link to causally connect the actor with the discriminatory action.” The court ultimately concluded that the owners were not, however, personally involved in the alleged harassment and affirmed dismissal of this claim against the owners.
In Oliver v. Cole Gift Centers, Inc., the United States District Court for the District of Connecticut addressed the statutory cap on damages in employment discrimination claims. The plaintiff in Oliver brought intentional discrimination claims against her former employer under both Title VII and the Connecticut Fair Employment Practices Act (CFEPA). CFEPA authorizes the court to grant such legal and equitable relief that it deems appropriate. Although CFEPA imposes no limits on compensatory damages, punitive damages in Connecticut are measured by reasonable attorney’s fees and costs, the court explained.
The plaintiff prevailed at trial, and the jury awarded her $100,000 in compensatory damages and $500,000 in punitive damages. The defendant filed a motion to reduce this damage award, arguing that the jury wrongfully gave the plaintiff a double recovery, and Title VII’s cap on damages should apply to plaintiff’s state law claim. Plaintiff’s position was that the $100,000 compensatory damage award and a portion of her $500,000 punitive damage award “equal to the amount of reasonable attorney’s fees and costs of litigating [the] case should be allocated to her claim under CFEPA, and that the remainder of the punitive damage award should be allocated to her Title VII claim, in order to maximize her recovery.”
The court in Oliver concluded that the plaintiff was entitled to “only a single slice of the pie – but the choice of the slice is hers.” The court rejected the plaintiff’s allocation argument because she was sufficiently compensated by the damage award as capped by Title VII. The court relied on Second Circuit precedent providing that, where a single award of damages not segregated into separate components is made, the preferable rule is that the successful plaintiff be paid under the theory of liability that provides the most complete recovery. Accordingly, the court in Oliver held that the plaintiff was entitled to a total award of $300,000, which is the most that she could receive in damages under Title VII. Moreover, Title VII has a separate provision for the recovery of attorney’s fees, the court acknowledged.
The millennium also proved to be a time of change for the National Labor Relations Board (NLRB). The Board recently decided that federal labor law protections giving unionized employees the right to have a representative present during a disciplinary interview should also extend to employees in non-unionized workplaces. The issue before the Board in Epilepsy Foundation of Northeast Ohio was whether non-unionized employees have “the right to have a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action.” The Board decided that employees in a non-unionized setting do have this right. In making this determination, the Board overruled a twelve-year precedent.
An employee’s rights to representation in such circumstances are called “Weingarten rights” and get their name from the United States Supreme Court’s decision in NLRB v. J. Weingarten Inc. In Weingarten, the Supreme Court upheld the NLRB’s conclusion that employees in unionized workplaces are entitled to representation in investigatory interviews which the employee reasonably believes could result in disciplinary action. Board precedent since 1985 had been that the same right did not extend to employees who do not have a recognized or certified union. In a sharply divided ruling with far-reaching implications for employers, the Board reversed this precedent in its decision in Epilepsy.
The case arose from the company’s
discharge of an employee, Arnis Borgs, “for his persistent refusal to comply
with [the executive director’s] directive to meet alone with her and the
Borgs had informed the executive director that he would only attend such
a meeting if his coworker was present.
Borgs was intimated by his supervisor because he had received a reprimand
at a prior meeting with her.
The executive director refused his request for representation, and, when
Borgs refused to attend the meeting, his employment was terminated.
The question before the Board in Epilepsy was whether Borgs’s discharge violated § 8(a)(1) of the National Labor Relations Act (NLRA). The Board concluded that the Act prohibited the termination of Borgs’s employment. In reaching this conclusion, the Board overruled its precedent in E.I. Dupont, and held that Weingarten rights applied to the non-union workplace. Thus, Borgs did have a right to have a coworker present at this meeting because Borgs reasonably believed that the meeting would result in disciplinary action.
In Epilepsy, the Board stated that the Supreme Court’s holding in Weingarten was silent on the rights of non-unionized employees because the issue in that case involved a request for a union representative. The Court’s ruling in Weingarten “was grounded in the language of § 7 of the Act, specifically the right to engage in ‘concerted activities for the purpose of mutual aid or protection.’” In Epilepsy, the Board was comfortable extending Weingarten rights to the non-union workplace because, the Board explained, the rationale that the Court applied in Weingarten “is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a coworker present greatly enhances the employees’ opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.’”
The Board also noted that, once an employee raised the right to have a coworker present, the employer can refuse to conduct the investigatory interview. The employee is free to decide whether he or she needs representation at the subject meeting. According to the Board, “[w]hat is important is the availability of the option.”
Both dissenting opinions in Epilepsy concluded that the majority’s decision disrupts the balance between labor and management. The dissent pointed out that, practically speaking, an employer’s right to forego an investigatory interview was unrealistic. Moreover, granting Weingarten rights to non-unionized employees “wreaks havoc” with the provisions of the law that allow an employer to deal with employees on an individual basis in the absence of a union. The dissent further stated that the majority’s decision places “an unknown trip-wire” in the path of a non-unionized employer conducting investigations of employee conduct because these employers “will generally be completely unaware of this right to representation that the Board is imposing on them.” In the opinion of the dissent, “[t]he workplace has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds.”
Finally, it is important for employers to understand two points. The Board’s decision in Epilepsy does not obligate employers to inform non-unionized employees of their right to have a coworker present during investigatory interviews that may result in disciplinary action. Also, if the employee does not reasonably believe that the subject meeting will result in disciplinary action, then the requirements of the Board’s ruling in Epilepsy are not triggered.
Connecticut courts also made movement this year on statutory and common law issues in employment law. The Connecticut Supreme Court clarified the scope of the exclusivity provision of the Workers’ Compensation Act in Driscoll v. General Nutrition Corporation. The issue in Driscoll was whether the exclusivity provision of the Act precluded an employee from bringing “a tort claim for damages for emotional distress resulting from a physical and sexual assault that occurred during and in the course of her employment.” The court held that the exclusivity provision did apply. Accordingly, the plaintiff’s recovery was limited to workers’ compensation benefits only.
The plaintiff in Driscoll was employed in the defendant’s store as a sales clerk. While she was working, a man entered the store, grabbed the plaintiff by the neck and pushed her and her store manager into different rooms in the back of the store. The intruder ransacked the store register and then forced the plaintiff to perform oral sex on him. The plaintiff sued her employer for negligence and negligent infliction of emotional distress. Her employer filed a motion for summary judgment on the ground that the exclusivity provision of the Act barred the plaintiff’s claims.
In Driscoll, the Connecticut Supreme Court was asked to decide whether the plaintiff could avoid this statutory provision by claiming that she was both physically and emotionally assaulted during the course of her employment. In other words, the issue was whether “a person so situated to have suffered multiple injuries that may be unbundled for pleading purposes, or to have suffered only one injury, with physical as well as mental components, which, because of the mandate of § 31-275(B)(ii), may be pursued only through a claim for workers’ compensation benefits.” The court concluded that the language of the statute and its legislative history supported the defendant’s position that the plaintiff’s emotional injuries “arose from a physical injury.” Thus, her injuries fell within the scope of the exclusivity provision of the Workers’ Compensation Act, and she was entitled to benefits under only that statute.
The Court decided in Driscoll that the definition of “physical injury” as used in the Workers’ Compensation Act included forcible oral sex. In making this determination, the court relied upon Representative Michael P. Lawlor’s statements during the debate over whether to pass the bill that became codified as § 31-275(16)(B)(ii) of the Connecticut General Statutes. In particular, Representative Lawlor was asked whether the bill would preclude workers’ compensation benefits for a corrections officer who was physically and sexually assaulted during the course of her employment and who consequently suffered emotional distress. He responded that emotional distress resulting from such an assault “‘would be compensable under workers’ compensation.’” The court in Driscoll interpreted this statement as meaning that the term “physical injury” includes sexual assault. Moreover, the situation that Representative Lawlor described was “identical” to the facts before the court. Accordingly, the court in Driscoll held that the plaintiff’s claims were barred by the exclusivity provision.
The Connecticut Appellate Court addressed implied contract liability issues for an employer’s oral promises and representations in Killion v. Davis. In this case, several employees brought an action against their company president for an alleged breach of employment contract. The employees maintained that the president made oral promises to give them bonuses and that he breached this oral contract. In particular, the plaintiff employees claimed that the company president promised each of them, in separate conversations, a bonus of $100,000 if they remained with the company for three years. Although the plaintiff employees stayed with the company for three years, neither received the alleged $100,000 bonus. They sued the president to hold him personally liable to enforce this oral contract. The attorney trial referee who initially heard the case decided that the defendant was personally liable to each plaintiff and that he should pay $100,000 plus interest to each employee. The defendant company president appealed.
In Killion, the Appellate Court was asked to decide whether the company president could be held personally liable for an oral contract to pay bonuses to the plaintiff employees. The defendant maintained that there was no evidence in the record indicating that he intended to be personally liable for these bonuses. The Appellate Court agreed with the company president’s position. Specifically, the court stated that it too could not find any support in the record for the trial referee’s conclusion. The defendant had not “specifically referenced his personal responsibility for the payment of the bonuses to the plaintiffs.” Moreover, one of the plaintiffs testified at his deposition that the president told him that the company was paying the bonuses. The court found that, under these circumstances, the defendant president could not be held personally liable.
Finally, administrative agencies such as the Occupational Safety and Health Administration (OSHA) also made headlines this past year. On February 25, 2000, OSHA issued a directive that formally exempts home offices from job safety inspections. The directive rescinds an agency interpretation letter issued in November 1999 suggesting that OSHA would hold employers liable for the safety and health of telecommuters and other at-home workers. In the February 2000 directive, OSHA states that it “strongly supports telecommuting and telework” and recognizes the benefits of “family-friendly, flexible and fair work arrangements.” Because it “respects the privacy of the home,” the agency will not conduct inspections of employees’ home offices. In addition, it will not make employers liable for such home offices. OSHA also will not require employers to conduct their own inspections of their employees’ home offices.
OSHA further explained that it generally will not conduct an inspection of a home office even if it receives a complaint. The exception to this rule is for “other home-based worksites” when OSHA receives a complaint that “indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality.” OSHA indicated that it will conduct an inspection of the employee’s work activities in such circumstances, but the Act “does not apply to the employee’s house or furnishings.”
As for OSHA’s record-keeping requirements, the February 2000 directive states that employers that are required by the Act to maintain records of work-related injuries or illnesses will have to continue to do so even if the injury occurs in a home office.
 Christensen v. Harris, ___ U.S. ___, 120 S. Ct. 1655 (2000).
 29 U.S.C. § 207(o)(3)(B); 29 C.F.R. § 553.26(a) (1999).
 Reeves v. Sanderson Plumbing Prod., Inc., ___ U.S. ___, 120 S. Ct. 2097 (2000).
 Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000) (citing Fagan v. New York State Elec. & Gas Corp., 186 F.3d 127, 132 (2d Cir. 1999)).
 Id. at 639.
 Mauro v. Southern New England Telecomm., Inc., 208 F.3d 384 (2d Cir. 2000).
 Id. at 387 (citing Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998)).
 Carlton v. Mystic Transp., Inc., 202 F.3d 129 (2d Cir. 2000), cert. denied, 120 S. Ct. 2718 (2000).
 Id. at 136 (citing Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir 1998)).
 Id. at 136-37.
 Id. at 137-38.
 Simonton v. Runyon, No. 99-6180, 2000 U.S. App. LEXIS 21139 (2d Cir. Aug. 22, 2000).
 Id. at *2-3.
 Id. at *4.
 Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000).
 Id. at *5-6.
 Id. at *21-22.
 Id. at *22.
 Id. at *23 (citations omitted). See also 42 U.S.C. § 2000e-2(m).
 Schaefer v. State Ins. Fund, 207 F.3d 139 (2d Cir. 2000).
 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
 DiSanto v. McGraw-Hill, Inc., 220 F.3d 61 (2d Cir. 2000).
 Id. at *7-8.
 Jackan v. New York State DOL, 205 F.3d 562 (2d Cir. 2000), cert. denied, 2000 U.S. LEXIS 6705 (2000).
 Id. at 567.
 Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 137-38 (2d Cir. 1995).
 Ezikovich v. Comm’n on Human Rights and Oppor., 57 Conn. App. 767, 750 A.2d 494 (2000).
 EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000).
 Id. at 149.
 Id. at 149-50.
 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000).
 Oliver v. Cole Gift Ctrs., Inc., 85 F. Supp.2d 109 (D. Conn. 2000).
 C.G.S. § 46a-104.
 Oliver, 85 F. Supp.2d at 113.
 Epilepsy Found. of Northeast Ohio, 331 NLRB No. 92, 164 LRRM 1233 (July 10, 2000).
 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
 See E.I. Dupont & Co., 289 NLRB 627 (1988); Sears, Roebuck & Co., 274 NLRB 230 (1985).
 Driscoll v. General Nutrition Corp., 252 Conn. 215, 752 A.2d 1069 (2000).
 Id. at 216-17.
 Id. at 217-18.
 Id. at 220.
 Id. at 223.
 Id. at 227-28.
 Killion v. Davis, 59 Conn. App. 358, 757 A.2d 632 (2000).
 OSHA Directive on Home-Based Worksites, Directive No. CPL 2-0.125, Feb. 25, 2000.