Posts tagged with "employment law lawyer"

Secretary Sues Board of Ed for Racial Discrimination

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. Maureen Grogan, 54, a secretary at Community School Board District 8 since 1977, said Dennis Coleman – president of the School Boards Association and a Board 8 member – began harassing her five years ago.

In July, the board agreed she had been the victim of racial discrimination and harassment by Coleman – but refused to further suspend him, or offer her a position in a different office. The Board of Education did not provide a comment.

New York Post

If you have questions regarding employment discrimination or any employment matter, contact Joseph Maya at 203-221-3100 or by email at

Dennis Coleman’s Bad Behavior Costs Board of ED $100G

The city’s Board of Education settled a discrimination and retaliation lawsuit brought by a former Bronx School Board employee for $100,000.

The Lawsuit

The suit, filed against the Board of Ed and others by Maureen Grogan, a long-time secretary at Community School Board 8, alleged sexual and racial harassment and assault by Dennis Coleman, a member and former president of that board.  A counterclaim made by Coleman, alleging that Grogan’s accusations were false and defamatory, was dismissed by the court also last week.

Coleman, at one time a State Senator for a short period in the mid-1960s, was suspended by then School Chancellor Rudy Crew several years ago in connection with his behavior over an incident during a school board meeting. A tape of the meeting revealed that he had yelled at a parent in attendance, and shoved Grogan, re-injuring an old neck problem she suffered from.

Coleman is still a member of the Board. The suit, which alleged a pattern of discrimination that stretched through years, added fuel to the fire of that board’s already hot flames of racial division. Grogan’s suit claimed that Coleman would regularly treat her in an abusive fashion, making her feel “insulted and humiliated.”

An investigation by the Office of Equal Opportunity Employment into the allegations found grounds substantiating at least some of Grogan’s claims. Despite the findings, however, Board of Education officials did not reprimand Coleman, sparking the suit filed by Grogan’s lawyer, Joseph Maya, in federal court for the Southern District of New York.

The Settlement

Coleman was later suspended in connection with the incident at the school board meeting. In Crew’s harsh suspension letter to Coleman at that time, the school’s chancellor had said that Coleman’s actions, “went beyond that of antagonism and rudeness and crossed the line beyond which elected school board members can go… your vilification of parents, as well as your shouting at colleagues and staff … are indefensible.”

Coleman could not be reached for comment as of press time. Board of Education officials were also unavailable for comment as of press time. Maya, reached by phone, called the settlement a “tremendous victory” for his client.

“It really is a victory for her to be vindicated,” Maya said. “And to have Dennis Coleman’s counterclaims dismissed.”

Maya called the entire incident a shame, saying that “The children of New York City should not be burdened with losing $100,000 for this sort of thing.”

According to Maya, last week’s settlement came after long negotiations between both parties. He called the discrimination suffered by his client “egregious and systemic.”


Is a Bonus a ‘Wage’?: Not According to this 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 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 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.

The Conditions of a Bonus Payment

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.  In the case that this action is 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.

Case Details

The events of this 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 Court’s Decision

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.

Importance of Knowing the Terms of Your Bonus

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 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 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 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.

How to Test a Non-Compete for Reasonableness and it’s Overall Enforceability

The Test for Reasonableness/Enforceability of a Non-Compete

The application of basic contract principles is just one step in the process of enforcement of a covenant not to compete. Once the court has determined that the parties properly executed a non-compete agreement, it must analyze the enforceability of the agreement’s provisions. Connecticut has developed a five-prong test to assess the enforceability of a restrictive covenant. It examines the reasonableness of the restrictions to determine how enforcement would impact the relevant parties: the employer, the employee, and the public at large. When determining the enforceability of a Connecticut non-compete agreement, the court will look to:

  1. the reasonableness of the time restriction,
  2. the reasonableness of the geographical restriction,
  3. the degree of protection afforded to the employer,
  4. whether it unnecessarily restricts the employee’s ability to pursue his career, and lastly
  5. the degree to which it interferes with the interests of the public.
Applying the Five-Prong Reasonableness Test

This five-prong test used by Connecticut courts is disjunctive rather than conjunctive, meaning that a non-compete agreement can be deemed unenforceable and invalidated if it negatively impacts even a single factor. A non-compete agreement is analyzed in its entirety when a court is determining its enforceability, but a single unreasonable provision can be sufficient to invalidate the entire agreement and preclude enforcement. While certain factors may assume greater importance, the legal analysis of non-compete agreements in Connecticut shows that each factor is essentially on equal footing and of equal weight when deciding the enforceability of a restrictive covenant.

The factors used in the application of the five-prong reasonableness test can be divided into two categories: enumerated restrictions and subsequent consequences of the express restrictions. Time and geographical restrictions (factors #1 and #2) generally constitute crucial provisions in the non-compete and establish the parameters for what post-termination activities are and are not permissible for the employee. Analysis of the remaining factors involves an assessment of the consequences of the enumerated restrictions and how they impact the parties and the public.

A. Temporal Limitation

The pertinent time/duration will prohibit an employee from engaging in certain enumerated activities for a specific period of time. The reasonableness of a particular time restriction will vary from case to case and will depend heavily on the particular facts of the case and the specific characteristics of the position and industry. A fifteen-year restriction may be appropriate and enforceable in one case while it would be excessive and unreasonable in another.

The nature of the industry/profession that is the subject of a non-compete agreement is critical to determining whether a contractual time restriction is reasonable and enforceable. For example, restrictive covenants in the funeral services industry can be longer due to the familial return rate and referral characteristics while courts have held that restrictive covenants in the software industry must be shorter because of the constant and “rapid changes in the software industry.”

Reasonableness of Restrictions

The reasonableness and enforceability of the time restriction can also be a function of the enumerated geographical restriction. The interrelationship between these two aspects of a covenant not to compete can be very important in determining its overall enforceability. A time restriction that on its face seems unreasonable may in fact be completely reasonable when you take into account the geographical restriction.

A lengthy time restriction on competing activities can be reasonable under circumstances where it is paired with a narrow geographical restriction. A seemingly unreasonable time restriction may be deemed reasonable under the circumstances when “read in conjunction [with] the narrow geographic restriction” contained in the agreement.

B. Geographic Limitation

For many employees, the geographical restriction can be more problematic and of greater concern than the time restriction. The courts in this state have repeatedly asserted that “the general rule is that the application of a restrictive covenant will be confined to a geographic area which is reasonable in view of the particular situation.”

The court analyzes the geographic restriction in the same manner as it evaluates the time restriction- the geographic terms are analyzed in the context of the specific facts of the situation and the particular industry in which the employer and employee are engaged. Non-compete agreements executed under Connecticut law can be invalidated when a geographic restriction is so broad that it severely limits or prevents a former employee “from carrying on his usual vocation and earning a livelihood, thus working undue hardship.”

Valid vs. Invalid Restrictions

A valid restrictive covenant will clearly define the geographic restriction prohibiting the employee upon termination from engaging in competing business activities within a specific area. The total lack of specified geographical restriction creates an unintended consequence in the form of a global restriction on competition, an effect that the courts consider “patently and grossly unreasonable.”

Courts are likely to invalidate a non-compete agreement for lack of a defined geographic restriction regardless of whether that characteristic of the agreement was intentional or purely by mistake. If intentional, a global restriction on competition is unconscionable and unenforceable under Connecticut law. Courts will also refuse enforcement of such a non-compete if the lack of geographical restriction was a mistake or error in drafting and execution. Employers should not be allowed the benefit of enforcing the agreement merely because of an unintended, ambiguous clause that was the product of sloppy drafting of the agreement.

Weighing Respective Consequences

A crucial component in analyzing the enforceability of a geographical restriction is the potential consequences for the employer and the employee. Employers have the right to protect themselves but not by seeking to impose excessive and unreasonable restrictions that needlessly harm or unduly restrict former employees. A court may deny enforcement when the restrictive covenant goes beyond protecting the employer’s legitimate interest in existing customer relationships and seeks to exclude all competition in a very large territory where the employer conducts or could possibly conduct business.

Geographical restrictions, regardless of duration, that go beyond what is required for fair protection of the employer are unenforceable on the grounds that they are unreasonable restraints of trade in direct contravention of Connecticut law. The availability of future employment for the former employee is a major factor in a court’s determination of the enforceability of a geographical restriction. A restriction will be upheld when the circumstances demonstrate that there is ample opportunity for the employee to obtain new employment outside of the contractually prohibited area without causing undue hardship(s).

Enforcing Small vs. Large Geographical Restrictions

Smaller geographical restrictions are generally easier to assess and enforce but this is not to say that a court will automatically deny enforcement of a restriction that on its face establishes a large prohibited area. Courts have enforced non-compete agreements containing a large geographical restriction clause when there are other clauses that narrow the actual prohibited area. One such case involved a restrictive covenant that prohibited competing activities for one year following termination within the area described as the “Standard Metropolitan Statistical Areas of [the] Eastern Seabord,” an area that includes metropolitan areas from Portland, Maine to Miami, Florida, and home to roughly 36% of the country’s population.

This area, at face value, is excessive and would normally be unconscionable to enforce, but the court ultimately held that the geographical restriction clause was valid and enforceable because subsequent clauses placed restrictions on the area and severely limited its impact on the employee by stating that the restriction pertained only to the employer’s clients within the six months prior to termination and on who’s account the former employee had personally worked. This was sufficient to limit the effect of the stated geographical restriction and render it enforceable in light of the peculiar circumstances surrounding the case.

Challenging the Enforceability of Geographical or Time Restrictions

When contesting the enforceability of geographical or time restrictions, the employee ultimately bears the burden of proving that a restriction is “too broad”, “unreasonable,” or “excessive.” Under Connecticut law, the challenging party bears the burden of demonstrating that the non-compete is unenforceable. The employer generally has the benefit of a rebuttable presumption that the employee must overcome to show that a restriction is unreasonable and therefore unenforceable.

C. Fair Protection to the Employer

The third prong in the test for reasonableness and enforceability of a non-compete agreement is an analysis of the fair degree of protection afforded to the employer. The courts in Connecticut have a long-standing policy of enforcing non-competes in order to protect an employer’s interests and have long recognized that a restrictive covenant is a valuable business asset that is entitled to protection.

While the employer’s interests are a valid concern, their protection cannot come at a cost of occupational ruin of former employees. The general rule with regard to analyzing the fair degree of protection for the employer is that contracts in restraint of trade “should afford only a fair protection to the interest of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public [and the former employee].”

The court balances the equities for the parties involved in the legal action. Only after a court has identified and weighed the competing equities of the parties can it conclude that “although some hardship would result to the individual defendants [former employees] as a consequence of this injunction, it would not be greatly disproportionate to the plaintiff’s [employer’s] injury.” A court’s ruling will inevitably favor one party over the other, but this prong ensures that the unsuccessful party does not experience extreme and unduly harsh consequences.

D. The Ability to Secure Future Employment

The fourth prong in the test to ascertain the enforceability of a non-compete agreement is ensuring that the contractual provisions do not unnecessarily restrict the employee’s ability to pursue his or her career through securing appropriate employment upon termination. The general rule is that employers are legally permitted to protect themselves in a reasonably limited market area but may not overreach to the degree that the restriction prevents the former employee from practicing his or her trade in order to make a living.

Connecticut courts believe the interests of the employee should also be protected and that terms of a restrictive covenant become unenforceable when they block him from “pursuing his occupation and [is] thus prevented from supporting himself and his family.” This restraint of trade is a clear violation of Connecticut law and public policy that militates against unreasonable restrictive covenants.

Courts should narrowly read and interpret non-compete agreements and the clauses contained therein because “sound public policy considerations strongly militate against sanctioning the loss of a person’s livelihood.” Despite this general policy, employees remain free to covenant to refrain from competing activities in exchange for an employment benefit, a promise that is enforceable if the courts conclude that the agreement is reasonable.

E. The Public Interest

The final prong of the enforceability test is determining whether the agreement and its provisions interfere with the interests of the public. In order to be valid and enforceable, a non-compete agreement must not have a widespread detrimental effect on the public, particularly with respect to consumers. It is a fundamental tenant of Connecticut public and legal policy that agreements and specific contractual clauses cannot deny the public access to important goods or services. Therefore, the extent of the agreement’s effect on the public must be taken into account when determining whether to enforce a restrictive covenant.

Courts will examine the provisions of the agreement, keeping in mind that “the determinant is not whether the public’s freedom to trade has been restricted in any sense, but rather whether that freedom has been restricted unreasonably.” Thus, a non-compete agreement may be invalidated and enforcement denied on the grounds of the public’s interests only if interference with those interests is so significant as to be classified by the adjudicating court as “unreasonable.”

One of the chief concerns with this prong of the enforceability test is preventing monopolistic activities within certain public segments of the economy. The courts have the authority to examine the scope and severity of a non-compete agreement’s effect(s) on the public as well as the “probability of the restrictions creating a monopoly in the [relevant] area of trade.” Upon examination of the facts and the possible consequences of the restrictive covenant, Connecticut courts may deny enforcement where the agreement runs contrary to public policy and the contractual restraints are unreasonable.

The Purpose of this Enforceability Test

This enforceability test, as articulated in and enforced under Connecticut case law, is designed to protect the legitimate interests of both the employee and the employer. It is utilized in a manner that ensures that the consequences of a restrictive covenant are reasonable, appropriate for the specific circumstances, and not punitive. The enforceability test attempts to control and limit the detriments incurred by a party to the action and protect it from oppressive restrictions. In establishing enforceability, the core principle is the notion that a party should not be subject to excessive and unreasonable restrictions that were “not [designed] to protect legitimate business interests, but rather to prevent [the employee] from working for competitors.”

Our employment law firm in Westport Connecticut serves clients with discrimination, non-compete, and general labor law issues from all over the state including the towns of Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best employment and labor law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have questions regarding non-compete agreements or any employment matter, contact Joseph Maya at 203-221-3100 or by email at

Medical Marijuana Use in the Connecticut Workplace

The news that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.

The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana. That number is expected to grow once production begins in earnest.

Add to that news, the legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.

It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.

Summary of CT Medical Marijuana Laws

There are 5 important takeaways from CT’s medical marijuana laws:

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.

Considering Employer Liability

If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.

Another novel issue that is arising? Suppose your employee is on a business trip in Colorado. After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana. Can you discipline the employee for engaging in a legal activity while on “company business”?

As long as we have disparate state laws on the subject, we’re not going to get clear cut answers. For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.

Credit to Daniel Schwartz of Shipman and Goodwin LLP.

If you are the victim of workplace harassment, wrongful termination, or any other labor law crime, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. 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

Faragher/Ellerth Defense Applied to Protect Employer from Liability for Sexual Harassment

In a recent 11th Circuit Court case decided this year, the Court applied the Faragher/Ellerth defense to bar an employee’s sexual harassment suit under Title VII and state law.[1]

Case Details

There, a male hairdresser filed suit against his employer alleging sexual harassment in violation of Title VII and Florida’s Civil Rights Act.  The employee alleged that his employer Creative Hairdressers was liable for allowing his former manager at a Hair Cuttery salon to sexually harass him. The United States District Court for the Southern District of Florida granted the employer’s motion for summary judgment, finding that there were no genuine issues of material fact that Hair Cuttery exercised reasonable care to prevent and correctly promptly any sexually harassing behavior, and that White unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm.

Avoiding Liability Under the Faragher/Ellerth Defense

The Supreme Court in Faragher v. City of Boca Raton[2] and its companion case Burlington Industries, Inc. v. Ellerth[3] recognized certain affirmative defenses an employer can assert to preclude liability when an employee alleges sexual harassment by a supervisor.

Even if an employee establishes a prima facie case of sexual harassment, an employer can avoid liability under the Faragher/Ellerth defense if the employer shows (1) that it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to otherwise avoid harm. Both elements must be satisfied for the employer to avoid liability, and the employer bears the burden of proof on both elements.

In affirming District Court’s grant of summary judgment in favor of the employer, the 11th Circuit held that the Faragher/Ellerth defense applied to bar the employee’s claims under Title VII and the FCRA.  The Court recognized that the undisputed evidence demonstrated that Hair Cuttery had promulgated and adequately disseminated sexual harassment policies and complaint procedures to its employees.

Further, the court held that the employee failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and complaint procedures by not promptly notifying the company of his harassment.[4]

Failure to follow employer harassment policies can prevent a valid harassment claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions workplace discrimination or any other employment 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, by telephone at (203) 221-3100, or by email at

[1] White v. Creative Hairdressers Inc., 11-16121, 2013 WL 203312 (11th Cir. Jan. 18, 2013)

The Best Employment Lawyers in Connecticut and New York

Employment Discrimination Lawyers in New York and Connecticut

State and national laws protect employees from being subjected to discriminatory treatment and termination in the workplace because of the employee’s gender, race, age, national origin, religion, pregnancy, sexual orientation, or disability. If you have reason to believe that you have experienced discrimination on the job, you should contact Joseph C. Maya, Esq. right away. Mr. Maya has a national reputation for successfully handling employment discrimination matters. He can be contacted via e-mail at or by dialing (203) 221-3100 in Connecticut or (212) 682-5700 in New York.

Laws Protect Employees from Sexual Harassment in the Workplace

These laws also protect employees from sexual harassment , a hostile work environment, and from being touched in an offensive manner in the workplace by supervisors, coworkers, or even clients. Employees have a right to stop discriminatory conduct in the workplace. If an employee tries to stop that conduct or notifies a supervisor that discriminatory conduct has occurred, that employee also has protection, under state and national laws, from retaliation by the supervisor or employer.

In fact, any person who complains to his or her superior or employer has protection from the law against retaliation by his or her employer. If you feel you might be a victim of racial, gender, or sexual discrimination on the job, you should contact Joseph C. Maya, Esq. at or by dialing him at (203) 221-3100 or (212) 682-5700. Let our experience guide you and protect your legal rights at work.

Serving Stamford, Greenwich, Norwalk and surrounding communities including Darien, New Canaan, Westport, Wilton & Weston; the greater Bridgeport area including Fairfield, Stratford, Monroe & Redding; the greater Danbury area including Ridgefield, Newtown & Bethel; and the communities surrounding Milford and New Haven. We also serve all of Westchester and New York Counties.

Failure to “Check the Box” on EEOC Complaint Bars Employee’s Hostile Work Environment Claim

In a pro se case, the United States District Court of Florida granted summary judgment for Target Corp., the employer of the plaintiff, denying the employee’s Title VII claim of a hostile work environment for checking the wrong boxes on her EEOC claim.[1]

The plaintiff in the case was employed by the defendant, Target Corp.  During the period before her pregnancy in 2008 and 2009, she received positive performance reviews of “meets expectations” and “effective.”[2]  In 2010, she informed Target that she was pregnant. On May 19, 2010, the employee received another “effective” on a Team Member Performance Review, but that review also contained several comments, including:

I challenge you to focus on communicating with your supervisors about any conflicts with your availability. The store is staffed according to the guest traffic and business. When team members do not show for their shifts or do not communicate with their ETL about conflicts with their availability, it makes it difficult for the team to successfully accomplish their tasks….[3]

The Employee’s Claims

The employee claimed that her supervisor told her that any further absences could cost the plaintiff her job. In her deposition, the employee stated:

[Supervisor] told me that I could not ask for a day off under any circumstances. That I could not call in to request an absence. And that I knew what would happen to me if from that day on I would call saying I was not going to work. During [t]he meeting she repeated those phrases about five or six times. She told me that the Target schedule was already set, and the fact that I called, that I would call in a certain day for an absence, it would send, it would make the Target schedule out of control…. She wanted me to work under any condition. Placing my life and my baby’s life at risk.[4]

The employee also stated that her supervisor placed her on a “one-week probation and if during that week I missed work for any reason, that I would be terminated. The employee did not present any medical notes to her supervisor during the meeting on June 11, 2010; in fact, the employee was not told that her pregnancy was high-risk until June 14, 2010.[5]

On June 14, 2010, she delivered another letter to Target, this one alleging pregnancy discrimination and informing Target that a charge would be filed with the Equal Employment Opportunity Commission.[6]  The employee filed a charge of discrimination with the EEOC on June 15, 2010. On the charge, she checked only the box labeled “sex,” but not the box for “retaliation,” or the box labeled “continuing action.”[7]

Filing an EEOC Charge

Before filing a suit under Title VII, a plaintiff must exhaust her available administrative remedies by first filing a charge with the EEOC. “The starting point of ascertaining the permissible scope of a judicial complaint alleging employment discrimination is the administrative charge and investigation.”[8] Circuit Courts has stated that a plaintiff’s complaint is “limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” New claims “are allowed if they amplify, clarify, or more clearly focus the allegations in the EEOC complaint….” [9]

The Court reasoned the proper inquiry was whether her Amended Complaint was like or related to, or grew out of, the allegations contained in her EEOC charge. The checked only the box labeled “sex” on her EEOC charge of discrimination; but did not check the box for “retaliation,” or the box labeled “continuing action.”  While the Court found that her claim for retaliation under Title VII was not barred because it grew out of her earlier charge, the Court stated that her failure to check “continuing action” precluded her from asserting a Title VII claim for sexual harassment through hostile work environment.[10]

Failure to follow proper administrative procedure when filing a discrimination claim with the EEOC can bar an otherwise valid claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions workplace discrimination, Title VII discrimination or any other employment 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, by telephone at (203) 221-3100, or by email at

Claim Denied for Not Notifying Her Employer of Harassment

In a case, the Supreme Court of New York denied a female employee’s complaint for sexual harassment and constructive discharge because she failed to inform her employer of the alleged harassment, thereby not allowing it to take any corrective measures.[1]

Case Details

In 2009 the female employee was hired as a bookkeeper to work for Bulletproof, a large horse breeding and racing company owned by Jeffrey.  Jeffrey’s brother David owned two businesses, a hedge fund and his own horse racing business, Perfect World. The employee worked at Bulletproof for two weeks, then did not go back or even call to quit.  Instead, she filed a complaint of sexual harassment and constructive discharge against the two brothers and their respective companies, alleging that David was her boss and he sexually harassed her to such an extent she could not return to work even though she needed the money.[2]

At issue in the case was identity of the plaintiff’s employer.  All of the female employee’s claims arose from sexual advances made by David and were premised on the contention that David was her supervisor. However, as the Court indicated David, the alleged harasser, had neither an ownership interest in Bulletproof, which paid plaintiff’s salary, or the power to do anything in that company.  Jeffrey testified that David had absolutely nothing to do with Bulletproof.   Similarly, the employee testified that when she started work, she understood that her supervisor would be Jeffrey.

The Court’s Decision

As the Court noted, this was the “first time that the identity of the plaintiff’s supervisor is the subjective element” of a sexual harassment claim in New York.  To resolve this threshold issue the Court turned to the U.S. Supreme Court stated, “If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim’s mistaken conclusion must be a reasonable one…. Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized.”[3] 

While the Court had doubts as to whether a reasonable person in the plaintiff’s position would have thought that David was her supervisor, it resolved the uncertainty in her favor and proceeding as if David where her supervisor.

The Faragher-Ellerth Defense

The Court, nonetheless, denied the employee’s claim, finding that the Faragher–Ellerth defense applied to Bulletproof to excuse any liability.  Under federal and state law, an employer vicariously liable for the discriminatory conduct of a managerial or supervisory employee may elude liability by asserting the so-called Faragher–Ellerth defense.

For this defense to succeed, the employer must show that (i) no adverse employment action (e.g., termination) was taken as part of the sexual harassment; (ii) the employer took prompt corrective action; and, (iii) the plaintiff unreasonably failed to avail herself of “corrective opportunities provided by the employer or to avoid harm otherwise”[4]

How did the court reach this decision?

According to the Court, the employee could not substantiate her claim of constructive discharge, and there was no evidence of any other adverse employment action. She was not fired; she left of her own volition. “Unless conditions are beyond ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.” Here there was no evidence to support a claim for constructive discharge, where a plaintiff must allege facts showing that a defendant “deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign.”[5]

Further the Court observed that “Since the plaintiff deprived Bulletproof of the opportunity to take ‘prompt corrective action’ by not informing anyone of David’s harassment, she cannot show that Bulletproof ‘acquiesced in the discriminating conduct or subsequently condoned it’ instead of taking corrective action.”[6] 

Similarly, plaintiff unreasonably failed to avail herself of whatever corrective opportunities Bulletproof could have offered her if it had been given the chance. The employee did not even resign; she just left work one day and did not return the next, and when Jeffrey called her multiple times to find out what happened, she did not return his calls.  The Court held “under these circumstances, the plaintiff cannot state a claim against Bulletproof even assuming that David was her supervisor.”[7]

If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions about Title VII and workplace discrimination or any other employment 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, by telephone at (203) 221-3100, or by email at

[1] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

[2] Id.

[3] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998)

[4] Zakrzewska v. The New School, 14 N.Y.3d 469, 476–477 (2010)

[5] Polidori v. Societe Generale Groupe, 39 A.D.3d 404, 405–406, 835 (2007)

[6] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

[7] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

Denial of Additional Shifts Could Constitute Adverse Action for Retaliation Claim under Title VII

In a U.S. District Court decision, the Court found that a restaurant’s denial of an employee’s opportunity to work additional shifts could satisfy the adverse action requirement to support a Retaliation claim under Title VII. [1]

Case Background

The employee worked as a server at a restaurant. During the period the plaintiff was employed, she alleged that on multiple occasions she was subject to sexually humiliating comments and unwanted physical contact, including inappropriate touching, by her immediate supervisor.[2] The plaintiff informed management repeatedly of the sexual harassment by her supervisor.  When her employer learned that she had had received legal advice based on the sexual harassment, the plaintiff alleged that she was no longer able to pick up additional shifts at the restaurant.

On July 8, 2010, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which she alleged discrimination based on sex and retaliation under Title VII.  The employer moved to dismiss the claims.

Retaliation Claims Under Title VII

To support a Retaliation claim under Title VII, a plaintiff must demonstrate: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity.  “Adverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the terms, conditions, or benefits of employment.”[3] An adverse action can also include an employer’s decision to demote an employee or relegate him to “reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.”[4]

The Court’s Decision

The District Court held that it was plausible that “a plaintiff serving in a job with a fluctuating schedule where pay is tied closely to the amount and type of hours worked (and where certain shifts are more remunerative than others), could make a showing that the failure to assign additional shifts effectively subjects the plaintiff to ‘reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.’”[5] The Court accordingly found that the employee had sufficiently alleged an adverse action and the facts demonstrated a link between her seeking legal advice and the adverse action by the employer.

If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions about Title VII and workplace discrimination or any other employment 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, by telephone at (203) 221-3100, or by email at

[1] Ortiz v. Big Bear Events, LLC, 3:12-CV-341-RJC-DCK, 2013 WL 247444 (W.D.N.C. Jan. 23, 2013)