Posts tagged with "inappropriate"

Division to Petitioner: “No Good Reason” for Sentence Reduction

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Superior Court of Connecticut: Sentencing Review Division (Division)

In a criminal law matter involving a sentence reduction, the Sentencing Review Division (Division) of the Superior Court of Connecticut declined to reduce the sentence of a petitioner who claimed it was inappropriate and disproportionate.

This case arose from an incident that occurred on September 23, 1999. The petitioner was driving his car when he began racing a second vehicle at speeds in excess of 100mph. The second vehicle crashed into a traveling motorcycle, resulting in the death of both vehicles’ passengers. In addition, the motorcyclist required a leg amputation. Meanwhile, the petitioner continued driving until he experienced a flat tire, at which point he walked back to the scene of the accident and was arrested.

Counts of Conviction

The petitioner was charged and convicted, following a jury trial, of the following counts:

  1. Third-degree reckless assault: mandatory one year in jail.
  2. Misconduct with a motor vehicle (two counts): maximum of five years of incarceration.
  3. Reckless driving: maximum one year in jail for subsequent offenders.
  4. Illegal racing: maximum one year in jail.

The petitioner was sentenced to twelve years of incarceration. Following an unsuccessful appeal, he pursued a reduced sentence of eight years, arguing that it was the average sentence for those convicted of similar offenses. He claimed that his sentence, “being higher than the average, is therefore ‘inappropriate’ or ‘disproportionate.” The State vehemently opposed, pointing to the petitioner’s: history of speeding violations, including one between the time of this offense and his sentencing; denial of responsibility; failure to show genuine remorse; history of behavioral problems; and the suffering inflicted on the families of the victims.

Connecticut Practice Book § 43-28

Under Connecticut Practice Book § 43-28, one will find the statutory limitations of the Division’s authority to modify criminal sentences to those that are inappropriate or disproportionate. When making this determination, the Division will consider: “the nature of the offense, the character of the offender, the protection of the public interest, the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended.” In this case, the Division considered these factors and affirmed the sentence, noting that there was “no good reason to reduce the sentence imposed by the trial court.”

Written by Lindsay E. Raber, Esq.

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Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

“The Fact That You Were An Attorney, Sir, Makes the Crime Worse,” Sentence Review Division Denies Modification Request

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Superior Court of Connecticut: Sentence Review Division

In a criminal law matter, the Sentence Review Division (Division) of the Superior Court of Connecticut declined to modify a defendant’s sentence because it was neither inappropriate nor disproportionate.

In this case, the petitioner, an attorney, was hired by the complainants to provide services related to the sale of their home. The complainants gave him nearly $111,000 to pay off their mortgage, but the money was never tendered to the bank. The petitioner was charged with larceny in the first degree, a violation of General Statutes § 53a-122 with a maximum punishment of twenty years incarceration. He entered into a plea agreement, and the court sentenced him to twelve years incarceration, execution suspended after four years, with five years of probation and special conditions, including restitution.

Division Sentence Review

The petitioner sought a sentence reduction in light of his practice as an attorney aiding minorities, arguing that the sentence he received as inappropriate and disproportionate. When the Division reviews a sentence, it is without authority to modify unless the sentence is “inappropriate or disproportionate” when considering such factors as the nature of the offense and the character of the offender. In this case, the Division found that the trial court properly considered mitigating aspects of the petitioner’s background. It also noted, however, that he previously misappropriated a quarter of a million dollars of funds entrusted to him from a client. Citing the trial court:

The fact that you were an attorney, sir, makes the crime worse, not simply because you were a lawyer who committed a crime, but you committed a crime out of the breach of the very trust that was placed in you by your clients, and that is an aggravating factor.

The Division held that modification was not warranted in this case where “an attorney embezzled substantial funds from clients and the prior criminal history of the petitioner… reflects the same type of criminal behavior.” It additionally noted that the petitioner never paid restitution to the victims between the time he entered into the plea agreement and sentencing. Therefore, the sentence was affirmed.

Written by Lindsay E. Raber, Esq.

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Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport, CT office at 203-221-3100 or at JMaya@Mayalaw.com.

Defendant’s “Dastardly Overall Scheme of Personal Greed” Did Not Warrant Sentence Modification

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In a previous article, a petitioner was convicted of arson in the first degree, larceny in the first degree, insurance fraud, and conspiracy after burning down his home and receiving nearly $400,000 from insurance payouts. For his crimes, he was sentenced to a total effective sentence of thirteen years of incarceration (upwards of thirty-three years if he violated probation). Approximately one year after conviction, the petitioner sought a downward modification of his sentence, claiming it was inappropriate and disproportionate.

Downward Sentence Modification

In front of the Sentence Review Division (Division), counsel for the petitioner argued that his client was of good moral character. He highlighted the petitioner’s substantial consecutive work history and lack of a criminal history prior to this incident. Therefore, the counsel stated that a ten-year sentence was proper. The State, however, objected to modification, noting “both the seriousness of the offense and the ample evidence to convict.” In addition, the State argued that emergency personnel could have been injured as a result of the fire intentionally set by the defendant.

Pursuant to the Connecticut Practice Book § 43-23 et seq., the Division has authority to modify sentences only upon a showing that they are:

[I]nappropriate or disproportionate in light of the nature of the offense, the character of the offender, the protection of the public interest and the deterrent, rehabilitative, isolative and denunciatory purposes for which the sentence was intended.

The court that originally sentenced the defendant characterized the defendant’s actions as a “two-part crime; the torching of the home and the bilking of the insurance company.” Such conduct was “part of a dastardly overall scheme of personal greed.” The Division credited the defendant’s fortune that no one was injured during this incident, but nonetheless agreed that the sentence was neither inappropriate nor disproportionate.

Written by Lindsay E. Raber, Esq.

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Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Firing to Prevent Pension Vesting, Without More, Does Not Violate ADEA

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In this economy, companies are terminating employees in an effort to increase share value or simply improve the bottom line.  Often it is the older, more senior, and more costly employees that are the first to go.  The question sometimes arises: “Can my employer fire me to prevent my pension from vesting (thereby saving itself money) without violating the Age Discrimination in Employment Act?”  The short and surprising answer is “yes,” assuming the absence of other critical allegations necessary to sustain an ADEA claim.

A Relevant Case

In a case out of the Second Circuit Court of Appeals, a Connecticut employee alleged in his Complaint only that “he was fired by defendants because he was nearing the age of retirement.”  The lower court dismissed this claim and the appellate court affirmed because this was the only fact alleged in the Complaint as evidence of age discrimination.  The United States Supreme Court has held that the firing of an employee to prevent his pension benefits from vesting does not, without more, violate the ADEA.

What essential allegations were missing?  In order to prevail, the plaintiff had to allege facts evincing that his employer was using pension status as a proxy for age, in order to discriminate on the basis of age.  How could he do that?  One way would be to plead and prove that his pension vested due to age and not years of service.  While age and years of service are empirically connected, the Supreme Court has said that they are “analytically distinct.”  What the Complaint lacked were additional allegations supporting a claim of age discrimination, for a successful ADEA plaintiff must prove that age actually motivated the employer’s decision.

The take-away from this case is that victims of age discrimination should consult with an experienced employment law litigator to ensure that an actionable claim is properly alleged in a Complaint.  In the case referred to above, it is impossible to say whether the plaintiff would have prevailed with a more artfully crafted Complaint.  What we do know is that his bare-bones Complaint was dismissed as insufficient without ever being heard on its merits.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at our Westport office at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Hurdles Employees Must Jump in Filing a Claim for Unlawful Discrimination

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Here in Connecticut and across the nation, employees from all walks of life routinely face unlawful discriminatory practices and treatment in the workplace. Depending on the nature of the claim, he or she may file civil lawsuits under Title VII (which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin) or the Connecticut Fair Employment Practices Act (CFEPA).

However, employees need to keep in mind that before they seek recourse with the courts, they must first exhaust all of their administrative remedies. “The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.”[1] Failure to do so will result in dismissal of the case.

CFEPA Title VII

Furthermore, employees must pay attention to statutory time restrictions for filing administrative charges under Title VII and CFEPA:

To sustain a claim for unlawful discrimination under Title VII in a deferral state such as Connecticut, a plaintiff must file administrative charges with the EEOC [Equal Employment Opportunities Commission] within 300 days of the alleged discriminatory acts.[2] … CFEPA requires that a complainant file the administrative charge with the CCHRO [Connecticut Commission on Human Rights and Opportunities] within 180 days of the alleged discriminatory act.[3]

Courts are particularly cognizant of these requirements and endorse “strict adherence… [as] the best guarantee of the evenhanded administration of the law.”[4] As a result, the time bar will begin running for each individual adverse employment action against the employee on the date it occurred. Failure to timely file a claim may prevent it from being reviewed by the EEOC or CCHRO.

However, employees often endure discriminatory practices over a prolonged period of time, so even if alleged conduct falls outside of the charging period, it may be reviewable. An important exception to strict adherence is the continuing violation exception, which involves incidents occurring both within and outside the time bar. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”[5]

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As an employee, it is imperative that you understand Connecticut’s statutory scheme surrounding hiring, evaluation, and termination processes, as well as the requirements for filing a lawsuit under State and federal anti-discrimination law. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport.

If you have any questions regarding any employment law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C. in Westport, Connecticut (located in Fairfield County) by telephone at (203) 221-3100 or by email at JMaya@Mayalaw.com.

 

[1] Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d. Cir. 1985).

[2] Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).

[3] Connecticut General Statutes § 46a-82e.

[4] Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).

[5] Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).

Employee Handbook Alert: Seemingly Neutral Work Rule May Violate NLRA

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The National Labor Relations Act (“NLRA”) gives private-sector employees the unqualified right to engage in “protected concerted activity” which includes discussing among themselves such things as wages, hours and other terms and conditions of employment.  An employer cannot promulgate a work rule that tends reasonably to chill employees’ exercise of that statutory right.

Karl Knauz Motors, Inc. owned and operated a BMW dealership.  Its employee handbook contained the following (apparently common sense) rule:

(b) Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board’s Decision

In a September 28, 2012 decision, the National Labor Relations Board for two reasons found the rule unlawful “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or the reputation of the Dealership’” as including employees’ protected statements objecting to and seeking improvement of terms and conditions of employment.

First, there was nothing in the rule that would reasonably suggest to employees that such protected communications were beyond the rule’s broad reach.  Second, an employee would reasonably assume that the employer would “regard statements of protest or criticism as ‘disrespectful’ or ‘injur[ious] [to] the image or reputation of the Dealership.’”

The Board took particular offense to the second section of the rule as specifically proscribing certain types of conduct and statements.  The Board construed these as workplace “lines” that a Karl Knauz Motors’ employee may not safely cross.  In the Board’s estimation, the second section of the rule prohibits not merely a manner of speaking, but rather the actual content of employee speech—content that would damage the employer’s reputation.

Consequently, a reasonable employee would conclude that protected communications about the employer’s allegedly unlawful terms and conditions of employment would expose the employee to employer sanctions for violation of its handbook rule.  Stated differently, the Board felt that compliance with the first section of the rule offered no assurance against sanctions under the second section of the rule.

Final Takeaway

Historically, NLRB decisions have ebbed and flowed depending upon the current occupant of the White House, who appoints the Board’s members.  Lately, the pendulum has continued to swing in the direction of further limiting employer rights to regulate threatening or offensive employee speech, leading one commentator to question whether at-will employment will be relegated to a historical artifact.

The takeaway from the Board’s decision vector is for employers to examine employee handbooks to compare and contrast their language with that found by the NLRB to be unlawful.  The cost of an amendment pales in comparison with the cost of an NLRB investigation and proceeding.  Remember that the NLRA protects  all private sector employees, irrespective of whether or not they belong to a union.

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The employment and labor law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the counseling, negotiation and litigation of all sorts of employment-related issues and assist employers from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in ensuring compliance with the applicable law. 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.

To Be Qualified for a Position, an Employee Must Also Be Eligible

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Most employees are familiar with the proposition that for them to prevail in a discrimination case they must prove several things, including that they were “qualified” for the position sought (and denied).  Most people equate being “qualified” with “possessing the qualifications to perform the job” and this is correct.  But there is more.  In addition to being technically competent, the employee must also be eligible to apply for the position.

Case Background

In a decision, a Physician’s Assistant (“PA”) voluntarily chose to transfer from a hospital’s Department of Surgery to its Department of Medicine in order to avoid impending “on-call” obligations.  When a Lead PA position was posted in the Department of Surgery it was hospital policy to offer it first to PA’s within the Department (of which there was one) and absent interest, to open the position to other Departments.  When the Lead PA position was offered to and accepted by the lone PA in the Department of Surgery the former Department PA sued on a variety of grounds, including race and gender discrimination.

The Court’s Decision

After a jury initially found for the disappointed PA, a reviewing court found that the jury’s determination that he was qualified for the position found no support in the record.  The court framed the relevant inquiry as “whether he would have been eligible to apply as a non-departmental candidate when there was an internal candidate willing to take the . . . position.”  The court answered this question in the negative and judgment was entered in favor of the defendant hospital.

Parenthetically, the court also found that the plaintiff PA did not suffer any adverse employment action and that the circumstances of the case did not give rise to an inference of gender discrimination.  Noteworthy, too, was the court’s observation that “unfairness is not the equivalent of gender discrimination.”  The court’s sole concern is “whether unlawful discriminatory animus motivates a challenged employment decision.”  Thus, a successful plaintiff must produce evidence from which such motivation can reasonably be inferred.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at our Westport office at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Investigatory Meeting Even With Possible Consequences Not an Adverse Employment Action

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Employees sometimes find themselves summoned to an internal investigation and informed that they could be terminated depending upon the results of the investigation.  As long as the employer is merely (and reasonably) enforcing its preexisting disciplinary policies, such circumstances (however unsettling) do not support even a prima facie case of employment discrimination.

In order to establish a prima facie case and put an employer to its proof that there was a legitimate, non-discriminatory reason for its challenged action, an employee must demonstrate that he suffered an “adverse employment action.”  This means “a materially significant disadvantage with respect to the terms of [a plaintiff’s] employment.”  While each situation must be assessed under the totality of the particular circumstances, there must be “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

Merely being called into an investigatory meeting and informed of its potential consequences does not constitute an adverse employment action, particularly where no discipline or other negative consequence follows.  In the absence of an adverse employment action, an employee’s case will likely be dismissed via summary judgment without the need for a trial on the merits.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Proxy/Alter Ego Liability for Sexual Harassment

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Liability in Workplace Sexual Harassment

The United States Court of Appeals for the Second Circuit (that includes Connecticut and New York) addressed for the first time whether the so-called Faragher/Ellerth affirmative defense is available when an alleged sexual harassment attacker holds a sufficiently high position within an organization so as to be considered the organization’s proxy or alter ego.  The Second Circuit joined the other Circuits that have considered the issue in concluding that under those circumstances, the affirmative defense was unavailable to the employer.

By way of background, Faragher/Ellerth held that a company could escape vicarious liability for sexual harassment by taking certain steps directed toward reporting and eradicating sexual harassment in the workplace.  Left open was the issue of the employer’s direct liability where the actor was deemed to be the proxy/alter ego of the company.  Under that doctrine, an employer is liable in its own right for wrongful harassing conduct, as opposed to being vicariously liable for the actions of company agents.

A Company’s Proxy or Alter Ego

But who is the company’s proxy or alter ego?  Prior cases clearly place the company president and other sufficiently senior corporate officers within that category, and refer to “that class of an organization’s officials who may be treated as the organization’s proxy.”  Understandably, the courts do not want to draw a bright line around who may be considered an employer proxy, so that unusual cases can be determined on their peculiar facts without being constrained by particular titles.

All that is required is for the supervisor to occupy a sufficiently high position in the management hierarchy of the company for his actions to be imputed to the company.  When the official’s unlawful harassment is thus automatically charged to the employer, it cannot raise the Faragher/Ellerth affirmative defense, even if the harassment did not result in an adverse employment action.

The result is a settling of the law in the Connecticut federal court; the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego.  Both employers and employees now know better where they stand.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about 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. in Westport, Connecticut by telephone at (203) 221-3100 or by email at JMaya@Mayalaw.com.

Employer Not Liable for Doing “Stupid” or Even “Wicked” Things

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Case Background

Employment discrimination laws protect employees from discrimination.  They do not protect against “ordinary workplace experiences” that offend one’s sensibilities or result in hurt feelings.  A Connecticut woman found that out the hard way when a Court of Appeals affirmed the trial court’s grant of summary judgment against her.  There was no dispute as to any material fact and the employer was entitled to judgment as a matter of law.  Thus, there was no need for a trial on the merits.

The employee in question was fired from her “at will” position as Public Relations Coordinator for a large corporation because of her volatile workplace behavior spanning three years.  She claimed that she was fired because of her age, and that she had suffered intentional infliction of emotional distress as a result.

Establishing a “But For” Cause

Under the applicable law, the employee must first establish a prima facie case of discrimination.  If she does, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Assuming such a reason, the employee may then prevail if she can show that the employer’s action was in fact the result of discrimination, i.e., that the stated reason is “pretextual.”

The employee must further prove that age was a “but for” cause for the challenged action and not merely a contributing or motivating factor.  In this case, the employee was unable to show that her age was the sole, i.e., “but for” cause of her termination.

Conclusions

In fairness to the employer, the employee’s insubordination was evident from the record.  On one occasion, the employee asked her manger if she had “stopped taking her medication.”  Nor did some favorable evaluations raise a genuine issue of material fact as to pretext.  The court concluded that isolated positive feedback was entirely consistent with the explanation for her termination: sporadic inappropriate behavior over the course of several years.  A reasonable jury would have no reason to doubt the employer’s explanation for the employee’s discharge.

The employee also complained about the “tone” that was used with her and that she was “distraught” about negative comments she received.  This formed the basis for her claim of intentional infliction of emotional distress.  The court had no trouble dismissing this claim, as well.  “These ordinary workplace experiences clearly do not rise to the level of being ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’”

It was in this context that the court made the observation that employers are not liable for doing stupid or even wicked things in the absence of a sufficient connection between the employee’s age and termination of her employment.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at our Westport office at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.