FAIRFIELD — Three minority students at Fairfield High School – arrested after a brawl last February in the school’s parking lot –plan to sue the town, claiming they were singled out for arrest because of their race and ethnicity. Continue Reading
In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.
Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.
Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor. She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her hands over the genital area of his pants and attempted to shove her hands down his pants. As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast. The student began missing school frequently to avoid continued harassment. At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.
The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.” When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education. The principal refused saying there were no other options besides the GO program.
The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.
Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.
Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school. A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,” or responded with remedial action only after a “lengthy and unjustified delay.”
The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.” Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.
Bullying and harassment in school should never be tolerated. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)
 Compl.¶¶ 10-11
 Compl.¶¶ 12-13
 Compl.¶¶ 14
 Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)
 Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)
 Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.
Here in Connecticut and across the nation, employees from all walks of life routinely face unlawful discriminatory practices and treatment in the workplace. Depending on the nature of the claim, he or she may file civil lawsuits under Title VII (which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin) or the Connecticut Fair Employment Practices Act (CFEPA).
However, employees need to keep in mind that before they seek recourse with the courts, they must first exhaust all of their administrative remedies. “The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.” Failure to do so will result in dismissal of the case (see, for example, this previously-discussed case).
Furthermore, employees must pay attention to statutory time restrictions for filing administrative charges under Title VII and CFEPA:
To sustain a claim for unlawful discrimination under Title VII in a deferral state such as Connecticut, a plaintiff must file administrative charges with the EEOC [Equal Employment Opportunities Commission] within 300 days of the alleged discriminatory acts. … CFEPA requires that a complainant file the administrative charge with the CCHRO [Connecticut Commission on Human Rights and Opportunities] within 180 days of the alleged discriminatory act.
Courts are particularly cognizant of these requirements and endorse “strict adherence… [as] the best guarantee of the evenhanded administration of the law.” As a result, the time bar will begin running for each individual adverse employment action against the employee on the date it occurred. Failure to timely file a claim may prevent it from being reviewed by the EEOC or CCHRO.
However, employees often endure discriminatory practices over a prolonged period of time, so even if alleged conduct falls outside of the charging period, it may be reviewable. An important exception to strict adherence is the continuing violation exception, which involves incidents occurring both within and outside the time bar. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”
As an employee, it is imperative that you understand Connecticut’s statutory scheme surrounding hiring, evaluation, and termination processes, as well as the requirements for filing a lawsuit under State and federal anti-discrimination law. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions regarding any employment law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d. Cir. 1985).
 Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).
 Connecticut General Statutes § 46a-82e.
 Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).
 Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches discontinued five years ago, these games were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach. It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season. “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.
As it turns out, the decision may not have been entirely that of Summitt.
In a recently released affidavit, Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:
This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.
UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.” Regardless, this leaves many asking: was Summitt forced to resign because of her disability?
Under Connecticut law, employees enjoy a very comprehensive statutory scheme (found here) prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:
To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.
In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.
Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner. Should you have any questions regarding employment discrimination or other education law or employment law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html
 “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html
 “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html
 Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm
While reading a parent’s education law guide written by attorneys here at Maya Murphy, I was initially surprised to read the following: “A child requiring special education in Connecticut includes not only children with disabilities but also those who are found to be especially gifted and talented.” Indeed, “a child requiring special education” is not limited to those deemed eligible pursuant to the Individuals with Disabilities Education Act (IDEA; see my previous post), but a child that:
[H]as extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through special education as part of the public school program.
The Regulations Concerning State Agencies go into greater depth as to what constitutes “gifted and talented,” “extraordinary learning ability,” and “outstanding talent in the creative arts.”
You may be asking yourself, “But how do I know my child is gifted and talented?” The State Department of Education produced a very informative list of FAQs, one of which directly addresses this question:
Some children are able to concentrate for long periods of time at a very young age or demonstrate their gifts and talents by using a large vocabulary, constant questioning, demonstrating unusual creativity, performing advanced math calculations, and/or exhibiting exceptional ability in specific subject areas.
Not all children, however, demonstrate their potential abilities and talents in the traditional manners mentioned above. Thus, concerned parents should consult with child development specialists, such as their local school officials, pediatricians, or higher education personnel for more information.
The rules governing gifted and talented (GaT) are somewhat similar to the mandates stemming from special education classifications under IDEA (and associated state law codifying its requirements). Schools districts must “provide identification, referral and evaluation for gifted and talented children.” However, offering GaT programming is optional: “(c) Each local or regional board of education may provide special education for children requiring it who are described by subparagraph (B) of subdivision (5) of section 10-76a and for other exceptional children for whom special education is not required by law.” Thus, if you are the parent of a child identified as GaT and your school elects not to offer special programs or services, they are not denying your child the free appropriate public education, or FAPE, as is required under federal law.
However, if your school district refuses to identify, refer, or evaluate your child for GaT status pursuant to Connecticut law, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner. Should you have any questions regarding gifted education, special education, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
Written by Lindsay E. Raber, Esq.
 “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.10.
 Connecticut General Statutes § 10-76a(5)(B).
 Regulations of Connecticut State Agencies § 10-76a-2.
 “Gifted and Talented – QA,” by the State Department of Education. Accessed October 5, 2012: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320948
 Id. at § 10-76d-1.
 Connecticut General Statutes § 10-76d(c).
SEPTEMBER 20 @ 1:00 PM – 2:30 PM
Lauren A. Jacobson, Esq. and Robert G. Brody, Esq. will be presenting “New Laws Impacting Connecticut Employers – What you Need to Know” for the Fairfield County Bar Association.
About the Program
The Connecticut General Assembly recently enacted a number of significant employment laws at the end of its recent regular and special sessions that will dramatically affect our state. This program will highlight the most prominent legislation passed, and provide important updates on what employers need to know. Topics will include, among others:
- Mandatory Salary Range Disclosure for Applicants and Employees
- New Sex Wage Discrimination Standard: Moving from “Equal” to “Comparable” Work
- Covid Recall-by-Seniority Law for Certain Employees Laid Off in the Hotel, Food Service and Building Service Industries
- New Workplace Rules for Regulating Recreational Marijuana
- New Breastfeeding Guidelines
- The CROWN ACT- “Creating A Respectful And Open World For Natural Hair” – Protection Again Discrimination Based on Race-Based Hair Styles
Click here to register.
A Bronx school employee is suing the Board of Education for $100 million for employment discrimination – saying she was denied a transfer, even though officials knew she was being harassed by her boss. Continue Reading
The city’s Board of Education settled a discrimination and retaliation lawsuit brought by a former Bronx School Board employee last week for $100,000. Continue Reading
Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision
Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it? A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.
This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act. Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.
Under this decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year-end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid. If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise. If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages. If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action. In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.
Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages. If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.
The events of this recently decided case unfolded as follows: At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus. The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work, and loyalty to the firm. The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus. When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment. To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.
The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act. The breach of contract claim, however, went to trial. The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest. On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim. The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.
The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act. The employee, therefore, was not able to proceed with his wrongful withholding of wages claim.
Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.
It is quite possible that after the release of this opinion many employers will revisit their bonus policies to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case. It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.
If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case. If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer. This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.
If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.
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Under Connecticut law, school districts must provide free school accommodations, including transportation, to every child from age three to twenty-one (who has not yet graduated from high school) within the district so as to facilitate public school attendance. Typically, school administration will determine your child’s residency status before he or she first enrolls; this does not always happen, however, because it is not statutorily required. As a result, it is not uncommon for residency issues to arise after your child has already been attending classes at a particular school, and the school district has the right to exclude if it determines that your child really resides in another district.
If your child is denied school accommodations due to residency issues, the board of education must notify you of your statutory right to a formal hearing, as well as the reasons for concluding ineligibility. If you submit a written request for this hearing, the school board must hold it within ten (10) days after receipt. At this hearing, you will have the opportunity to present any evidence (including that which establishes your child’s residency), cross-examine any witnesses, and present arguments – however, you bear the burden of establishing residency by a preponderance of the evidence. A stenographic record or audio recording must be made of this hearing, and the school board must produce its findings within ten (10) days after the hearing takes place. Have the right to request a copy, which must be provided within thirty (30) days. During the duration of the hearing process, your child may still attend school in the district.
As a parent, you have the right to appeal to the Connecticut State Board of Education (SBE) the school board’s decision regarding your child’s residency. However, you must do so within twenty (20) days after the school board mails out their finding – failure to do so will make the decision of the initial hearing final. If the SBE elects to consider your appeal, it must return a decision within forty-five (45) days. However, if the SBE determines that your child was not a resident and thus not entitled to free school accommodations your school district may assess and see tuition reimbursement from you. After this avenue of recourse has been exhausted regardless of the outcome, either party may then appeal to the local Superior Court.
Ensuring free school accommodations for your child is important, but even more critical is making sure you do not run afoul of residency requirements. The situations in which confusion may occur are rather commonplace, and will be discussed in an upcoming article. However, should you find your child being denied free school accommodations due to residency issues, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions regarding eligibility and residency or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
Written by Lindsay E. Raber, Esq.