Posts tagged with "Court"

In Divorce Action, Court Penalizes Husband for Deceptive Conduct During the Discovery Process

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Case Background

In a decision rendered in the Superior Court for the Judicial District of Fairfield at Bridgeport, the Court took a hard stance against a husband that dissipated assets, doctored bank statements and intentionally hid accounts during the pendency of his divorce.  The parties were married in India in 2009.  The wife claimed that after moving to the United States, she lived a life of total isolation.  The husband allegedly left for work very early each morning, and returned home late each night, while the wife had no friends and no knowledge of American practices or culture.  The wife further claimed that the husband failed to fulfill her basic needs, such as providing her with food and clothing.

The Court’s Findings

The husband denied the wife’s allegations; however, due to the husband’s conduct during the discovery process, the court found his testimony to be lacking credibility, and ultimately held him responsible for the breakdown of the marriage.  More specifically, the court found that after receiving notice of the pending divorce, the husband withdrew over $100,000.00 from a bank account, transferring the money to an unknown and undisclosed location.  The court ordered the husband to obtain bank account statements demonstrating to where the monies had been transferred, however, he never complied.

The court further found that, while self-represented, the husband provided doctored account statements on which he “whited out” numbers and inserted new ones.  Additionally, during trial, the wife’s attorney revealed that the husband maintained a bank account in New York which he never included on his financial affidavit, and which he claimed under oath did not exist.  The court also found that the husband intentionally got himself fired from a job which was paying him $150,000.00 per year and that, as a result, he was in arrears on his alimony.

Based on the husband’s deceptive conduct and failure to follow court orders, the court awarded the wife lump sum (as opposed to periodic) alimony from his share of the marital estate.  The court also awarded the wife the entirety of several bank/retirement accounts as well as $15,000 in counsel fees.

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Should you have any questions about divorce proceedings, or family matters in general, please do not hesitate to contact Attorney Joseph Maya at Maya Murphy, P.C. in Westport, CT. He can be reached at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Assets Protected From Creditors in Connecticut

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In today’s economy more and more people find themselves having a hard time paying the bills and avoiding late payments.  Still others have a problem with creditors chasing them for unpaid debts.  Now more than ever it is important for you to know what assets are protected from creditors and what are not.

Connecticut law provides some protection from creditors in a situation where your income or assets are subject to a court judgment or lien.  You can protect yourself in a variety of ways by planning ahead and consulting with a professional financial planner and an attorney.   Taking out liability insurance or setting up a corporate entity or trust for your property are examples of how you can shield your assets from future creditors.  However, there are some individual assets that are automatically protected from creditors.  Here is brief summary of the law in Connecticut:

A. Wages

Once a creditor obtains a judgment against you, it can apply for an execution against your wages. See Connecticut General Statutes, Section 52-361a.  Connecticut law does provide for some protection in this situation.  No more than twenty-five percent of an individual’s weekly disposable earnings may be subject to a wage execution.  The portion of disposable earnings subject to the wage execution is withheld and applied to the amount of the judgment.  In some cases, the maximum amount that can be withheld may be less depending upon the ratio between the individual’s disposable earnings and the hourly minimum wage in effect at the time of the execution.

B. Retirement Plans

Generally, retirement plans are exempt from claims by creditors.  Both IRAs and 401Ks are protected assets pursuant to Connecticut General Statues, Section 52-321a.

C. Personal Property

Connecticut law provides a list of exempt personal property that creditors cannot claim an interest in pursuant to Connecticut General Statutes, Section 52-352b.  The list of property includes basics necessities such as apparel, bedding, foodstuffs, household furniture and appliances.  Items necessary for a person’s occupation or profession such as tools, books, instruments, farm animals and livestock feed are also considered exempt property.  Wedding and engagement rings are not subject to creditor claims as well.

D. Insurance and Government Assistance Payments

Some insurance and government assistance payments are exempt from creditors under Connecticut General Statutes, Section 52-352b.   Health and disability insurance payments are exempt as are Workers’ compensation, Social Security, veterans and unemployment benefits.  In addition, under Connecticut General Statutes, Section 38a-453, creditors of an insured cannot seek payment from a life insurance policy beneficiary under most circumstances.

E. Child Support and Alimony Payments

Any court approved child support payments received by a debtor are exempt and protected from creditors.  Alimony payments, to the extent that wages are exempt from creditor claims, are also protected. See Connecticut General Statutes, Sections 52-352b & 52-361a.

F. Real Estate

Your homestead or personal residence is exempt from creditor claims up to the value of seventy-five thousand dollars.  If a creditor has a money judgment arising out of hospital services, then the value of the exemption increases to one hundred twenty-five thousand dollars.  The exemption is calculated based upon the fair market value of the equity in the property taking into account any statutory or consensual liens on the property.  See Connecticut General Statutes, Section 52-352b.

There is no such exemption in place for commercial real estate or rental properties.

G. Motor Vehicles

Only one motor vehicle is exempt from creditor claims up to the value of one thousand five hundred dollars.  The exemption is calculated by estimating the fair market value of the motor vehicle and taking into account any relevant liens or security interests.  See Connecticut General Statutes, Section 52-352b.

H. Bank Accounts

A creditor can enforce a judgment by way of a bank execution.  However, the same exemptions apply to bank accounts as they do to government assistance, insurance, alimony and child support payments as outlined above.  Therefore, you have the opportunity to challenge a bank execution based on these exemptions and prevent a creditor from taking money out of your account.   In addition, you can claim a general exemption not to exceed one thousand dollars.

In conclusion, Connecticut law prevents creditors from seizing all of your income, property, possessions and savings pursuant to a judgment or lien.  However, the law does not prevent a debt collector from jeopardizing your livelihood and financial wellbeing.  You best bet is to limit individual liability and plan ahead to avoid a creditor claim in the first place.  Consulting with a professional financial planner and an attorney is recommended.

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If you have any questions regarding asset protection in Connecticut, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Physician Adequately Alleges Violation of CUTPA Against His Former Counsel

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Case Background

In a recent decision, the Superior Court for the Judicial District of Stamford/Norwalk held that a plaintiff physician adequately alleged a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) against his former counsel.  More specifically, the Court held that, as alleged, the defendant law firm’s actions were entrepreneurial in nature, and, thus, were not subject to immunity that ordinarily attaches to conduct involving legal representation. In reaching its decision, the Court relied on the following facts, as alleged in the plaintiff’s complaint:

In this action, the plaintiff has brought suit against the defendants Yale-New Haven Health Services, Greenwich Hospital, MCIC Vermont, Inc. and the law firm of Heidell, Pittoni, Murphy & Bach, LLP (the defendant).[1]The operative pleading, which is the plaintiffs amended complaint dated August 20, 2010, alleges the following relevant facts. Until January 3, 2008, the plaintiff was employed by Yale-New Haven Health Services as the director of the emergency services department at Greenwich Hospital.

On August 4, 2006, the plaintiff met and treated a patient during the course of his employment. Subsequent to this treatment, the patient initiated a medical malpractice lawsuit against Greenwich Hospital and five physicians including the plaintiff. As a result of this lawsuit, the plaintiff was contacted by Yale-New Haven Health Services and told that he could be provided a defense in the Sousa lawsuit pursuant to an undisclosed insurance policy provided by MCIC Vermont, Inc.

The Plaintiff’s Representation 

The plaintiff was further told that the defendant law firm would represent all five of the physicians who were defendants in the underlying lawsuit, as well as Greenwich Hospital. According to the complaint, the plaintiff was not told that he had a right to obtain independent counsel or that he had the ability to object to any settlements. There was no written retainer agreement between the plaintiff and the defendant law firm. The plaintiff further alleges that the defendant law firm never informed him of any potential conflicts of interest arising from this joint representation.

In fact, upon meeting with one of the defendant’s partners, the plaintiff was told that it was “not necessary” for him to obtain independent counsel because in “most cases,” settlements were covered entirely by the subject insurance policy and that individual physicians were “very rarely” reported to the National Practitioners Data Bank pursuant to 45 C.F.R. § 60.5.

Failure to Protect a Client

According to the plaintiff, “throughout the representation [the defendant] failed to exercise the degree of skill and learning commonly applied to protect a client in Plaintiffs’ position as independent from the competing interests of common clients, including [Greenwich Hospital].” Specifically, the plaintiff alleges that the defendant failed to inform him in a timely manner of the occurrence of the deposition of the plaintiff in the underlying case, which deprived him of an opportunity to be present and provide input.

The plaintiff further alleges that he was not told for nine months that the defendant had obtained the services of an independent medical expert. In November 2009, the plaintiff was informed that the case was settled on his behalf and that he would not be reported to the National Practitioners Data Bank. When the plaintiff asked whether he could object to the settlement, the plaintiff was told that he could not because of the contractual arrangement between MCIC Vermont, Inc. and Greenwich Hospital or Yale-New Haven Health Services. The plaintiff was further informed that he would not be named as a payor of the settlement proceeds.

Several weeks later, however, the plaintiff was in fact told that he would be named in the settlement and reported to the National Practitioners Data Bank. The reason for this decision was because of an independent expert opinion that the plaintiff was not told about until after the settlement. None of the other physicians represented by the defendant were reported to the National Practitioners Data Bank. On December 22, 2009, the plaintiff eventually obtained independent counsel and the defendant refused to turn over relevant documents to the plaintiffs’ new attorneys.

The Plaintiff’s Claims

As a result of all of this conduct, the plaintiff alleges the following claims:

(1) legal malpractice against the defendant;

(2) breach of fiduciary duty against the defendant;

(3) breach of fiduciary duty against MCIC Vermont, Inc.;

(4) breach of contract against Greenwich Hospital;

(5) breach of contract against Yale-New Haven Health Services;

(6) breach of the covenant of good faith and fair dealing against Greenwich Hospital;

(7) breach of the covenant of good faith and fair dealing against Yale-New Haven Health Services;

(8) breach of the covenant of good faith and fair dealing against MCI C Vermont, Inc.;

(9) violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-1a et seq. (CUTPA), against the defendant;

(10) negligence against MCIC Vermont, Inc.;

(11) violations of CUTPA against MCIC Vermont, Inc. and

(12) violations of the Connecticut Unfair Insurance Practices Act, General Statutes § 3Sa-S15 et seq. (CUTPA) against MCIC Vermont, Inc.

Motion to Strike

On August 20, 2010, the defendant filed a motion to strike and a memorandum of law in support of its motion (Dkt. Entries 107.00 and 10S.00).  As originally filed, the defendant’s motion sought to strike counts one and six, as well as the prayer for relief associated with count one, which were located in the plaintiffs revised complaint dated August 5, 2010. The plaintiff filed a memorandum of law in opposition to this motion on September 2, 2010 (Dkt. Entry 112.00).

Following the filing of the defendant’s motion to strike, on August 23, 2010, the plaintiff filed a request for leave to file an amended complaint, as well as a proposed amended complaint. This complaint is now the operative complaint in the case.2  In this amended complaint, the plaintiff added a new cause of action against the defendant for breach of fiduciary duty and changed the numbering of the counts that are directed to the plaintiff.

As a result, on October 4, 2010, the defendant filed a supplemental motion to strike and supporting memorandum of law addressing count two (Dkt. Entry121.00 and 123.00). The plaintiff further filed a memorandum of law in opposition to this supplemental motion to strike on November 5, 2010 (Dkt. EntryI28.00). When read together, the defendant’s original and supplemental motions to strike requested that the court strike all of the counts levied against the defendant in the plaintiffs amended complaint dated August 20, 2010. These are counts one, two and nine.

The defendant is also moving to strike the portions of the prayer for relief associated with count one that seek punitive damages and attorney’s fees. The court heard arguments in this matter on a short calendar on December 6, 2010.

The Court’s Reasoning From a Legal Perspective

“The purpose of a motion to strike is to contest … the legal sufficiency of the allegations of any complaint … to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, “the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381,383 n.2, 650 A.2d 153 (1994).

Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277,294,914 A.2d 996 (2007). Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (internal quotation marks omitted.) Sullivan v. Lake Com pounce Theme Park, Inc., 277 Conn. 113, 117,889 A.2d 810 (2006).

Motion to Strike Count 9

The defendant first moves to strike count nine alleging CUTPA on the ground that the plaintiff fails to allege facts involving the entrepreneurial aspects of the defendant’s law practice.3 In its memorandum of law, the defendant argues that all of the allegations in this count arise from the defendant’s legal representation of the plaintiff and that such allegations cannot form a legally cognizable CUTPA claim against a law firm. As a result of this immunity from CUTPA liability, the defendant argues that count nine is legally insufficient.

In response, the plaintiff argues that he alleges facts involving the defendant’s “engaging and disengaging of clients, its billing practices and fees.” Specifically, the plaintiff contends that he alleges actions taken by the defendant in order to secure the plaintiff as a client and prevent him from obtaining independent counsel. Furthermore, the plaintiff argues that he alleges facts involving the defendant’s improper billing practices. Consequently, the plaintiff contends that count nine sets forth a legally viable CUTPA cause of action.

CUTPA: Conduct of Attorneys

“[I]n general, CUTPA applies to the conduct of attorneys…. The statute’s regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law. . .. Nevertheless, [the Connecticut Supreme Court has] declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law…. [The Supreme Court has] stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA. … [P]rofessional negligence that is, malpractice does not fall under CUTPA.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002).

“Our CUTPA cases illustrate that the most significant question in considering a CUTP A claim against an attorney is whether the allegedly improper conduct is part of the attorney’s professional representation of a client or is part of the entrepreneurial aspect of practicing law.” Id. “The ‘entrepreneurial’ exception is just that, a specific exception from CUTP A immunity for a well-defined set of activities-advertising and bill collection, for example.” Id., 782; see also Haynes v. Yale-New Haven Hospital, 243 Conn. 17,34-38,699 A.2d 964 (1997) (stating that CUTPA can apply to the professions of law and medicine, but only for entrepreneurial aspects such as solicitation of clients and billing).

Count 1, Paragraph 14: Representation

In paragraph fourteen of count one, which is incorporated by reference into count nine, the plaintiff alleges that “at the outset of the representation, [he] inquired as to whether he needed separate counsel and was told it was ‘not necessary,’ especially as in ‘most cases,’ settlements were covered entirely by [MCIC Vermont, Inc.] on behalf of [Greenwich Hospital] and [Yale-New Haven Health Services] ….”

As further alleged in paragraphs thirty-two and thirty-three of count nine, “[t]he representation of all individual physicians and [Greenwich Hospital] in the Sousa lawsuit, while purposefully overlooking potential and actual conflicts of interest, permitted [the defendant] to bill numerous hours above and beyond what it would have been able to bill if it only represented one physician or one hospital” and “[i]t is and/or was [the defendant’s] pattern and practice to increase billable hours, regardless of its ethical obligations to its individual clients.”

Attorney-Client Conflict of Interest

If read in a light most favorable to the pleader and accepted as true, these allegations suggest that the defendant failed to divulge a potential conflict of interest in order to convince the plaintiff to have it represent him in the Sousa lawsuit and that this was done so that the plaintiff could over-bill its clients.

As stated by one Superior Court judge, “the solicitation of a client is more apt to involve the entrepreneurial, as opposed to the representational, aspects of a legal practice because such an activity more often involves conduct occurring before the creation of the attorney-client relationship.” (Emphasis in original.) Tracey v. Still, Superior Court, judicial district ofAnsonia-, Milford at Derby, Docket No. CV 054001883 (March 23, 2006, Stevens, J) (41 Conn. L. Rptr. 101, ‘ 104); see also Anderson v. Schoenhorn, 89 Conn. App. 666, 674,874 A.2d 798 (2005) (stating that “the conduct of a law firm in obtaining business and negotiating fee contracts does fall within the ambit of entrepreneurial activities”).

Count 9: Billing

The allegations of count nine also directly implicate the defendant’s billing practices in that the plaintiff alleges that the defendant over-billed as a result of its representation of multiple clients in the Sousa lawsuit. Cf. Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5005353 (May 19, 2008, Tobin, J) (45 Conn. L. Rptr. 503, 505) (striking CUTPA counterclaim because of the defendant’s failure “to allege any wrongdoing on the plaintiffs part other than over-billing.

There are no claims that the plaintiffs bill, for example, included time incurred in working for other clients …. Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant’s case ….”). Consequently, although it is a close call, the court finds that the plaintiff alleges enough facts regarding the solicitation of clients and billing practices to arguably place this matter within the entrepreneurial exception to the CUTPA immunity afforded to attorneys.

Additionally, the defendant argues that count nine is legally insufficient because the plaintiff fails to allege causation. In its memorandum of law, the defendant argues that there are no facts alleged indicating that the defendant’s actions were the proximate cause of the plaintiffs injuries. In response, the plaintiff argues that he alleges sufficient facts in the amended complaint to establish the causation element because he alleges that he suffered injury “as a result” of the defendant’s conduct.

CUTPA: Loss of Money or Property

CUTPA provides in relevant part that: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages ….” General Statutes § 42-110g (a).

“Our courts have interpreted § 42-110g (a) to allow recovery only when the party seeking to recover damages meets the following two requirements: First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice .. . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered …. Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, ‘as a result of this act, the plaintiff suffered an injury.

The language ‘as a result requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn. App. 645, 651-52,916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).

Count 9, Paragraph 37: Damages

In paragraph thirty-seven of count nine, the plaintiff alleges that he “has suffered damages as a result of [the defendant’s] conduct, including but not limited to damage to his professional reputation, loss of prospective economic advantage, loss of future earnings, and diminished value in the professional marketplace.” With this allegation, it can be seen that the plaintiff alleges that he suffered specific damages “as a result” of the defendant’s acts that are prohibited under CUTPA. The “as a result of” phrasing tracks the language of§ 42-1 10g (a) and that used by the Appellate Court in Scrivani. 

At the motion to strike stage, the plaintiff need only allege causation in order to have a legally sufficient cause of action. The plaintiff here alleges that he suffered specific harm “as a result of’ the defendant’s alleged violation of CUTPA; that sufficiently alleges the causation element. See, e.g. Myers v. Ocean Trace Development, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375476 (May 3, 2002, Gallagher, J.) (stating that the plaintiffs “adequately allege causation by alleging that [they] suffered damages ‘as a result’ of the defendants’ recklessness”). Accordingly, this court denies the defendant’s motion to strike count nine.

Footnotes

1.   As Heidell, Pittoni, Murphy & Bach, LLP is the only defendant that is a party to the motion to strike that is presently before the court, it alone will be referred to as “the defendant” in this memorandum.

2.  After the plaintiff filed the request for leave to file this amended complaint, the defendant filed an objection. This objection was overruled by the court, Jennings,      JTR., on September 22, 2010. Another defendant in this case later filed a request to revise this amended complaint, to which the plaintiff filed an objection. All of the plaintiffs’ objections were sustained by the court, Karazin, JTR., on October 14, 2010.

3.  The various counts will be addressed in the order that they are raised in the defendant’s two memoranda of law in support of its motions to strike, even though this is not the numerical order set forth in the amended complaint

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If you have any questions related to the content above, or any other employment matter, please do not hesitate to contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation.

Excessive Geographical Limitation in Connecticut Non-Compete Agreement Found Unenforceable

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Timenterial, Inc. v. Dagata, 29 Conn. Supp. 180
Case Background

Timenterial was a company that engaged in the sale and rental of mobile units and had previously employed Mr. James Dagata.  The employment contract contained a non-compete clause wherein Mr. Dagata agreed not to “engage in any business venture having to do with the sale or rental of mobile homes or mobile offices in a fifty miles radius from any existing Timenterial, Inc. sales lot” for one year following the termination of his employment.

Mr. Dagata terminated his employment on June 1, 1970, and Timenterial claimed that he had been active in business ventures involving mobile homes beginning June 12, 1970, at an office located a mere one-quarter mile from Timenterial’s Plainville, CT office.  Timenterial commenced a suit for violation of the non-compete agreement and sought to restrain Mr. Dagata from further mobile home business ventures in accordance with the agreement.

The Court’s Decision

The court found in favor of Mr. Dagata and held that the non-compete agreement was unenforceable because the geographical restriction in the agreement was unreasonable and excessive.  At the time of legal proceedings, Timenterial had seven facilities in Connecticut, four in Massachusetts, two in Vermont, and one in New Hampshire.  The court applied the fifty-mile radius as stipulated in the agreement and held that this territorial prohibition was unreasonable.

The application of the agreement would mean that Mr. Dagata could not be involved in the mobile homes business in all or substantial parts of Connecticut, New York, Massachusetts, Vermont, New Hampshire, and Rhode Island.  This placed excessive restrictions on Mr. Dagata and severely limited the opportunity for him to practice his occupation.  This excessive and burdensome characteristic of the non-compete rendered the agreement unenforceable and the court concluded that Mr. Dagata’s actions did not constitute a breach of the restrictive covenant.

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If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Beware the Casual Employee Complaint

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The United States Supreme Court had overturned long-standing law in the Federal Districts of Connecticut and New York with respect to employee claims of retaliation for registering a complaint with an employer under the Fair Labor Standards Act (“Act”). In this case note, we will tell you how the law changed, and how employers should adopt changes in policy and procedure to protect themselves from a new and difficult-to-defend source of employment-related liability.

Fair Labor Standards Act

The Fair Labor Standards Act was passed in 1938 and subsequently amended by the Equal Pay Act of 1963. The Act sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. The Act contains an anti-retaliation provision prohibiting the discharge of or discrimination against any employee who has “filed any complaint” related to the Act. In 1993, the United States Court of Appeals for the Second Circuit (whose jurisdiction includes Connecticut and New York) decided Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993).

There the Court held that “[t]he plain language of this [anti-retaliation] provision [of the Act] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Id. at 55. Such was the settled law within this Circuit until March 22, 2011, when the Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417 (2011).

Kasten v. Genesee Hospital

In Kasten, the Supreme Court conducted a thorough exegesis of the phrase “filed any complaint” in the context of whether the statutory language included oral, as well as written complaints, and whether oral complaints thereby constituted protected conduct under the Act’s anti-retaliation provision. The case involved an employee who complained orally to his supervisor about the physical placement of time clocks so as to deprive workers of compensable time. The employee was fired soon after his complaint.

The Supreme Court found the text of the statute to be inconclusive as to its meaning and harkened back to the words of Franklin D. Roosevelt and pre-World War II census data to further divine the Act’s legislative intent. The Supreme Court ultimately concluded: “[t]o fall within the scope of the anti retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.” Kasten at * 23.

Left unanswered by the Court, however, is the actual level of clarity and detail required to elevate some employee “letting off steam” (e.g., to a supervisor at a Friday night, after-work happy hour) to the protected activity of “filing of a complaint.” Turning the already murky waters opaque, the Court offered this guidance: “[t]he phrase ‘filed any complaint’ contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”

Dangers to Employers

Lurking behind the Court’s holding is the spectre of an employee dismissed for cause suddenly recalling his prior oral complaint to his supervisor about violations of the Act, thus playing his anti-retaliation “get out of jail free” card. While the Supreme Court paid lip service to the requirement that an employer be given “fair notice” (albeit orally) of a claimed violation of the Act, it “[left] it to the lower courts to decide whether Kasten [the plaintiff-employee] will be able to satisfy the Act’s notice requirement.” Id. at * 27. As of this point, there is no such lower court advice to depend upon, but there are steps an employer can now take to reduce its exposure to a fabricated, after-the-fact claim of employer retaliation.

Employer Protections

Employee Handbooks or Company Policies and Procedures Manuals should be amended to require that all employee complaints to supervisors or management be written (even if anonymous) on a form prescribed by the employer and delivered to a specific location (e.g., suggestion box) or a designated member of management. A sample form should be appended to the Handbook or Manual as an Exhibit, and a supply of forms should be made readily (but discretely) available to employees. The Company needs to establish a usual, customary, and accepted practice of addressing only written employee complaints, irrespective of their subject, seriousness, or source.

The complaint forms should be numerically serialized upon receipt and logged in so that there is no question as to whether or when it was received. In this way, the company can argue that the absence of such a written complaint form raises a rebuttable presumption that no such complaint was ever made. It will thus deprive a discharged employee of the opportunity after he is fired to conjure up a “stealth” retaliation claim based upon a “phantom” oral complaint.

In the meantime, supervisors and management should be made aware that seemingly innocuous oral complaints from employees about wages and hours are sufficient to trigger the anti-retaliation provision of the Act and should be investigated and acted upon.

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The Attorneys at Maya Murphy, P.C. regularly draft and review Employee Handbooks and advise employers on the full spectrum of employment law and employer-employee relations. For additional information, contact attorney Joseph Maya at (203) 221-3100 or JMaya@Mayalaw.com.

In Sexual Harassment Claims, Court Will Consider the Totality of the Circumstances

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Title VII

Working in a hostile environment can be a very traumatic experience.  Indeed, victims of sexual harassment often experience a pattern of mistreatment over an extended period of time.  This may include physical or verbal abuse, and often includes overtly gender-specific conduct as well as behavior which on its face appears to be gender-neutral (behavior that while abusive, when considered independently, may appear to have nothing to do with one’s gender).

When considering whether a victim of sexual harassment is entitled to judicial redress, it is important to take both types of conduct into account.  In fact, when considering a claim brought under Title VII, a court will consider the totality of the circumstances, including both facially gender-specific behavior as well as behavior that is facially gender-neutral.

Generally speaking, Title VII prohibits, “discrimination against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s… sex.” 42 U.S.C. § 2000e-2(a)(1).  Title VII is not limited to “’economic” or “tangible” discrimination, however.  The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. 

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). 

As the Court explained in Harris, Title VII is violated, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” Id.  Importantly, an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiff’s supervisor. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

In determining whether an environment is “hostile” or “abusive,” the Court in Harris stated that one must consider all the circumstances surrounding the alleged discrimination. 510 U.S. at 23.  This may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is also relevant to determining whether the plaintiff actually found the environment abusive.

Notably, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id.  Because the analysis of severity and pervasiveness looks to the totality of the circumstances, the crucial inquiry focuses on the nature of the workplace environment as a whole.  To that end, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).

Gender Discrimination in a Hostile Work Environment

It is fairly well settled that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was indeed based on his or her gender. See, e.g., Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001).  However, facially neutral incidents may be included among the “totality of the circumstances” that courts consider. Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).  In determining whether facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender the Court may consider, for example, whether the same individual engaged in multiple acts of harassment, though some may have been overtly sexual and some not. Id.  

Gender Hostility Cases

In Raniola, supra, the Court concluded that, given proof of instances of overt gender hostility by the supervisor of the female plaintiff, a rational juror could have permissibly inferred that his entire alleged pattern of harassment against her was motivated by her gender, even though some of the harassment was not facially sex-based. Thus, the relevant circumstances in Raniola included not only offensive sex-based remarks, but also one facially gender-neutral threat of physical harm by the supervisor who had made the remarks.

In Kaytor v. Electric Boat Corporation, 609 F. 3d 537 (2d Cir 2010), the United States Court of Appeals for the Second Circuit adhered to this principle.  In that case, the plaintiff, an administrative assistant in the defendant’s engineering department, brought suit under Title VII alleging that the department manager sexually harassed her.  The plaintiff alleged that in addition to constantly staring at her and making suggestive advances, the manager also threatened her with physical harm.  For example, the manager allegedly told the plaintiff he wished she was dead, saying, “I’d like to see you in your coffin.”

Additionally, on six occasions, the manager allegedly told the plaintiff he wanted to choke her.  In overturning the trial Court’s decision which effectively dismissed the plaintiff’s case, the Appellate Court explained, “…the court should not have excluded from consideration [the plaintiff’s] testimony as to [the manager’s] stated desires to choke her, to see her in a coffin, and to kill her.”  According to the court, one could permissibly infer that the manager’s harsh treatment of the plaintiff was the result of his spurned advances and that the facially gender-neutral threats he directed at the plaintiff were, in fact, because of her sex.

By: Joseph Maya, Esq.

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If you have any questions regarding workplace harassment or other employment matters, do not hesitate to contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation.

Connecticut School Districts and Bullying: What Can Parents Do?

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I was greeted one morning with a very unfortunate email.  The email concerned bullying in Westport, Connecticut Schools and included a heart-wrenching video of an 8th-grade girl claiming to be a victim of bullying in Westport schools. It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

Connecticut General Statute Section 10-222d

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1. teachers and other staff members who witness acts of bullying to make a written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. prevention strategies as well as intervention strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires schools to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8. effective July 1, 2009, boards must now provide in-service training for its teachers and administrators on prevention of bullying.
Westport’s Bullying Policy

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, and guide staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.

If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

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If you have any questions regarding bullying or other education law matters, please feel free to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Special Education Law – Relevant Terms

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Within the realm of Special Education Law there are several relative terms one should be familiar with. Below are some of these key terms.

Applied Behavior Analysis (“ABA”):

An intensive, structured teaching program in which behaviors to be taught are broken down into simple elements. Each element is taught using repeated trials where the child is presented with a stimulus; correct responses and behaviors are rewarded with positive reinforcement, while when incorrect responses occur, they are ignored and appropriate responses are prompted and rewarded.

Alternative Assessment:

The use of assessment strategies, such as performance assessment and portfolios, to replace (or supplement) the assessment of a special education student by standard machine-scored multiple-choice tests.

Assistive Technology:

Refers to any piece of equipment, product, system, or other item that is used to increase, maintain or improve the functional capabilities of an individual with a disability.

Behavior Intervention Plan (“BIP”):

Refers to a plan, strategies, program or curricular modifications, and supplementary aids and supports, which are positive in nature (not punitive) and are developed by the PPT to teach a child appropriate behaviors and minimize behaviors that impede learning.

Extended School Year (“ESY”):

This refers to special education and related services that a school provides to a student beyond the normal school year and/or the normal school day, at no additional cost to parents, in accordance with the child’s IEP.

Free Appropriate Public Education (“FAPE”):

Each special education student is entitled to a free, appropriate public education. It is defined as special education and related services that are provided at public expense and under public supervision and direction, without charge to the student. “Related services” include, but are not limited to, transportation, physical therapy, occupational therapy, speech pathology, and psychological services, among others.

A special education student’s FAPE must meet state and federal requirements, and be provided in accordance with the child’s IEP. In Connecticut, children must be provided a FAPE from age three through the end of the school year in which the child reaches the age of twenty-one (or until the child has graduated from high school with a regular diploma, whichever is first to occur).

Functional Behavior Assessment (“FBA”):

Refers to an assessment of the reasons why a child behaves the way he or she does, given the nature of the child and what is happening in the environment. It describes a process for collecting data to determine the possible causes behind certain behaviors in order to identify strategies to address those behaviors.

Identification:

Refers to the decision that a child is eligible for special education services.

Independent Educational Evaluation (“IEE”):

Refers to an evaluation of a special education student performed by a professional who is not employed by the school district. If you disagree with the PPT’s evaluation of your child, you may request an independent educational evaluation. The school district must either pay for the cost of the IEE, or prove to a due process hearing officer that its own PPT evaluation is in fact appropriate. Of course, parents may obtain an IEE for their child at their own expense at any time. When presented with the results of the IEE, the PPT must consider the findings, but is not bound to adopt them.

Individualized Education Plan (“IEP”):

This refers to a written education program developed for an individual child with a disability. It is developed by a multi-disciplinary team of school professionals and the child’s parents and is reviewed and updated at least once per school year. The IEP describes the child’s present performance and learning needs, as well as detailing which services will be necessary at what time, for how long, and by whom those services will be provided.

Least Restrictive Environment (“LRE”):

A child with a disability must, to the maximum appropriate extent, be educated with children who are not disabled, in a general education class in the school that the child would attend if he or she did not have a disability requiring special education services. A child with a disability should not be removed from the general educational setting unless the nature and severity of that child’s disability is such that education in the general class with the use of supplemental aids and services cannot be satisfactorily achieved.

Manifestation Determination:

If a school seeks to change the placement of a child with a disability because that child behaved in a way that violated the school’s code of conduct, then a “manifest determination” must be made, to determine whether the behavior complained of is caused by the child’s disability.

Positive Behavior Supports (“PBS”):

Refers to an approach to addressing challenging behaviors, and includes: functional assessment of the behavior; organizing the environment; teaching skills; rewarding positive behaviors; anticipating situations; and redesigning interventions as necessary.

Planning and Placement Team (“PPT”):

Refers to a group of professionals who represent each of the teaching, administrative and pupil personnel staffs at a special education student’s school, and who, with the student’s parents, are equal participants in the decision-making process to determine the specific educational needs of the student. The PPT, along with the parents, develops, reviews and revises a student’s IEP; the PPT also reviews referrals to special education, determines if the child needs to be evaluated, decides what evaluations the child will have, and determines whether the child is eligible for special education services.

Stay Put:

Refers to the requirement that a special education student must stay in his or her current program or placement during the course of a due process hearing. This provision may be modified upon agreement by both the parent and the school district.

The attorneys of Maya Murphy P.C. are well practiced in the realm of Special Education Law. Should you have questions regarding Special Education Law matters, contact managing partner Joseph C. Maya at 203-221-3100 or at JMaya@Mayalaw.com for a free initial consultation.

Connecticut Appellate Court Finds That Misappropriated Funds Should Not Be Part of Probate Estate

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Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendant, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Court’s Decision

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

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Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

No Child Left Behind – Connecticut

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What is NCLB?

One of the legislative centerpieces of Federal Education Law is “The No Child Left Behind Act of 2001” (“NCLB”).  The Act is 670 pages in length and almost as controversial as it is long.  Therefore, parents should be familiar with at least its stated purpose and general provisions.  NCLB does not, however, give parents the right to sue on behalf of their children. 

NCLB funds Federal programs established by the U.S. Department of Education aimed at improving the performance of schools throughout the 50 states by imposing greater accountability on public schools, expanding parental choice in the school attended by their child, and placing increased emphasis on reading and math skills.  NCLB has as one of its focal points the improvement of schools and school districts serving students from low-income families.

The theory underlying enactment of NCLB was that improved educational programs would enable students to meet challenging state academic achievement standards and thereby achieve their full potential.  Among other areas, the Act funds programs and resources for disadvantaged students, delinquent and neglected youth in institutions, improving teacher and principal quality, use of technology in schools, and fostering a safe and drug-free learning environment.  One source of controversy is the fact that NCLB allows military recruiters access to the names, addresses, and telephone listings of 11th and 12th grade students if the school provides that information to colleges or employers. 

Stronger Test Standards

More specifically, NCLB requires states to strengthen test standards, to test annually all students in grades 3-8, and to establish annual statewide progress objectives to ensure that all students achieve proficiency within 12 years. There are no Federal standards of achievement; each state is required to set its own standards. Test results and state progress objectives must be stratified based upon poverty, race, ethnicity, disability, and English proficiency to ensure that “no child is left behind.”  Schools and school districts that fail to make “adequate yearly progress” are subject to corrective action and restructuring.  Adequate yearly progress means, for example, that each year a school’s fourth graders score higher on standardized tests than the previous year’s fourth graders.

What if a school underperforms?

Once a school has been identified under NCLB as requiring improvement, corrective action, or restructuring, local school officials must afford its students the opportunity (and transportation, if needed) to attend a better public school within the same school district.  Low-income students attending a “persistently failing school” (i.e., one failing to meet state standards for 3 out of the 4 preceding years) are eligible for funding to obtain supplemental educational services from either public or private schools selected by the student and his parents. 

Under-performing schools are highly incentivized to improve if they wish to avoid further loss of students (and an accompanying loss of funding).  A school that fails to make adequate yearly progress for five consecutive years is subject to reconstitution under a restructuring plan.

Simply stated, NCLB provides states and school districts unprecedented flexibility in their use of federal funds in return for more stringent accountability for increased teacher quality and improved student results.

Improving Reading Ability and Instruction

One of the stated goals of NCLB is that every child be able to read by the end of third grade.  To this end, the Federal government invested in scientifically based reading instruction programs to be implemented in the early grades.  An expected collateral benefit of this initiative is reduced identification of children requiring special education services resulting from a lack of appropriate reading instruction. 

NCLB funds screening and diagnostic assessments to identify K-3 students who are at risk of reading failure, and to better equip K-3 teachers in the essential components of reading instruction.  Funds are also available to support early language, literacy, and pre-reading development of pre-school age children.

In keeping with its major themes of accountability, choice, and flexibility, NCLB also emphasizes the use of practices grounded in scientifically based research to prepare, train, and recruit high-quality teachers.  Once again, local school administrators are afforded significant flexibility in teacher staffing, provided they can demonstrate annual progress in maintaining and enhancing the high-quality of their teachers.

Ensuring Safe School Environments

Finally, in an effort to ensure safe and drug-free schools, NCLB, as proposed, requires states to allow students who attend a persistently dangerous school, or who have been victims of violent crime at school, to transfer to a safe school.  To facilitate characterizing schools as “safe” or “not safe,” NCLB requires public disclosure of school safety statistics on a school-by-school basis.  In addition, school administrators must use federal funding to implement demonstrably effective drug and violence prevention programs.

It is within this overarching educational framework of NCLB that the State of Connecticut oversees and administers its constitutional and statutory obligations to educate your children.

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Contact Joseph Maya and the other experienced education law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com with questions regarding NCLB, or to schedule a free initial consultation.