Posts tagged with "New Canaan"

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., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

A Quick Guide to Separation Agreements and Severance Packages

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Separation Agreements

Today’s report on the lagging unemployment numbers serves as a stark reminder that the state of the economy, though on the upturn, continues to move at a slow pace and that unemployment is a very real problem facing too many people.  Attorneys in our Westport office continue to see a high number of Separation Agreements and severance packages by employees who have been laid off.  What those employees should know is that experienced employment law attorneys, such as those at Maya Murphy, P.C., can review those agreements to negotiate an enhancement or increase of the benefits received.

Because there is no such thing as a standardized severance package, each and every term is crucial and should be carefully scrutinized.  As such, no employee should feel obligated to sign a Separation Agreement and return it to his or her employer without subjecting it to further review and negotiation by employment attorneys with a wide breadth of knowledge in the field.

Severance Packages 

Severance pay refers to a voluntary offer of payment from an employer to an employee who has recently been laid off.  No law requires an employer to offer a terminated employee a severance package.  However, employers offer severance packages, among other reasons, to maintain goodwill with past and future employees, to prevent employees from appropriating trade secrets, customer lists, and other proprietary information, and to ensure that employees refrain from engaging in professional associations with competing companies or businesses, or “non-competition agreements,” a separate issue on which Maya Murphy attorneys are well-versed.

It is crucial to remember that the time in which to respond to and agree to a severance agreement can be very limited, often to no more than one or two weeks, meaning it is in a terminated employee’s best interest to consult with an attorney as soon as possible after receipt of an agreement.

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In sum, it is vital to have an attorney experienced in employment law take the lead on reviewing your Separation Agreement, negotiating with your company or business, and vigorously advocating on your behalf.  Should you be confronted with a Separation Agreement, contact an attorney at our Westport office at 203-221-3100.

Enforcing a Non-Compete Agreement in a Medical Partnership

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Fairfield County Bariatrics and Surgical Associates, P.C. v. Ehrlich, 2010 Conn. Super. LEXIS 568
Employment Background

Doctors Neil and Craig Floch created Floch Surgical Associates in 1999 in Norwalk, Connecticut to provide medical and surgical services to patients.  They decided to gear their practice toward bariatric surgery and hired Dr. Timothy Ehrlich, a board-certified general surgeon and graduate of Louisiana State University School of Medicine, in 2002.  He was granted surgical privileges at Norwalk Hospital and St. Vincent’s Hospital (in Bridgeport, CT) and operated as the only member of the medical group to perform bariatric surgeries exclusively.  On January 1, 2006, the two Floch doctors and Dr. Ehrlich formed Fairfield Bariatrics and Surgical Associates, P.C. (FCB).

Each doctor became a third shareholder in the professional corporation and signed identical employment agreements that outlined the compensation schedule, termination protocols, and included a non-compete agreement.  The non-compete prohibited each doctor, for two years after termination, from practicing general medicine/surgery within fifteen miles of FCB’s main office in Norwalk and barred performing bariatric procedures at hospitals located in Stamford, Norwalk, Greenwich, Danbury, and Bridgeport.

Doctors Neil and Craig Floch voted to terminate Dr. Ehrlich in July 2009 and notified him of the decision in a letter dated July 30, 1999.  They justified his termination by claiming that he repeatedly “misrepresented the group” and had lost his surgical privileges at Norwalk Hospital due to non-compliance with the hospital’s Trauma Service requirements.

Violating the Restrictive Covenant

Dr. Ehrlich proceeded to form his own limited liability company, Ehrlich Bariatrics LLC, on October 22, 2009 and opened offices in Waterford and Trumbull.  Both of these municipalities are located outside of the prohibited area created by the non-compete agreement but he also continued to perform operations at St. Vincent’s Hospital in Bridgeport, an activity expressly prohibited by the restrictive covenant.

FCB sued Dr. Ehrlich in Connecticut court and requested that the court enforce the provisions outlined in the non-compete agreement dated January 1, 2006.  The court found in favor of FCB, determined that Dr. Ehrlich had violated a valid non-compete agreement, and enforced the provisions of the covenant not to compete.

The court stated that the challenging party (Dr. Ehrlich for this case) bore the burden of proof to demonstrate that the agreement was unenforceable.  He asserted that he had not been properly terminated and that the agreement itself was unreasonable, and therefore unenforceable.  The court rejected both of these arguments and concluded that the agreement was valid and enforceable.

Improper Termination Argument

Dr. Ehrlich advanced the unconvincing argument that he was the victim of improper termination because the shareholders meeting at which the vote was taken to terminate his employment was not properly noticed pursuant to the corporation’s by-laws.  He essentially contended that the “lack of notice renders his termination a nullity”.

The court however disagreed with Dr. Ehrlich because a physician whose termination is being voted on is not entitled to cast a vote.  The lack of voting power for this matter meant that his presence was not required and he was not entitled to notice of the special shareholders meeting where the vote was taken.  The court ultimately concluded that Doctors Neil and Craig Floch had taken the proper and necessary steps in accordance with the corporation’s by-laws to terminate Dr. Ehrlich’s employment with FCB.

Unreasonable Provisions Argument

Next, Dr. Ehrlich unsuccessfully contended that the agreement contained unreasonable provisions and therefore the court was not obligated or permitted to order its enforcement.  Discerning the reasonableness of a non-compete agreement required the court to balance the competing needs of the parties as well as the needs of the public.

Furthermore, the challenging party must show that the provisions are unreasonable in scope.  First, the court established that FCB did in fact have a legitimate business interest that necessitated protection.  The company was entitled to protect potential new patients within a reasonably limited market area.  FCB was only concerned with future patients and did not seek to prevent Dr. Ehrlich from providing follow-up services to current or past patients.

Enforcing the Non-Compete Agreement

Next, the court addressed and cited a variety of case law that showed Connecticut courts’ history of enforcing non-compete agreements when they protect against “something other than mere competition”, including the use of customer lists, impaired of purchased good will, confidential data/trade secrets, use of information concerning potential clients in a limited area, or some other advantage the former employee acquired while working for the plaintiff company.  The court found that Dr. Ehrlich had greatly benefitted from his association with FCB and that his continued actions would negatively affect the reputation and business operations of his former employer.

Lastly, the court took time to address the differences between non-compete agreements for an employer-employee relationship and those for partnerships.  It held that since there was not unequal bargaining power or impaired ability to earn a living, the provisions were not unreasonable in scope.

The court noted that Dr. Ehrlich’s offices in Trumbull and Waterford did not violate the agreement and there were numerous hospitals located outside the prohibited area where he could find employment as a board certified surgeon specializing in bariatrics.  He had actually received encouragement from several doctors to apply for privileges at permissible hospitals, including the Hospital of St. Raphael in New Haven.

In light of Dr. Ehrlich violating a legally binding non-compete agreement that protected a legitimate business interest, the court ordered the enforcement of the restrictive covenant.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  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.

Failure to Warn Case Against Generic Ibuprofen

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A federal appeals court has reinstated a lawsuit against the maker of a generic brand of ibuprofen. The lawsuit is on behalf of a child who suffered liver damage after taking the drug as prescribed after surgery. The case holds generic drug makers to the same labeling standard as makers of patented drugs. The case alleges failure to warn of ibuprofen risks by the drug maker. The court says the duty to warn applies to generic drug makers.

Drug Label Failed to Warn of Known Risk

Ibuprofen is a popular over-the-counter painkiller. The lawsuit says the drug is known to cause liver failure under some circumstances. The label contained no warnings about this potential side effect.

In 2009 the Supreme Court ruled drug makers can be sued for failing to warn of the risks of a medication even though the FDA has approved package or label warnings. This ruling makes clear the same standard applies to makers of the generic forms of the drug. Failure to warn is one of the main theories of product liability law.

By now everyone should be clear on the risks of liver damage associated with the two common aspirin alternatives. The FDA instructed drug makers to limit the amount of acetaminophen in prescription painkillers like oxycodone and hydrocodone. As this case shows, what you don’t know can hurt you.

By: Arthur Buono

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

Four-Prong Test Applied to Enforce Non-Compete Provision in a Franchise Agreement

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Money Mailer Franchise Corporation v. Wheeler, 2008 Conn. Super. LEXIS 2260
Case Details

Mr. Douglas Wheeler entered into a Franchise Agreement with Money Mailer Franchise Corporation on February 28, 2003, wherein he was assigned a mailing territory comprised of thirteen zip codes in Fairfield and New Haven counties.  Money Mailer was a business that franchised a system of providing direct mail order advertising and related services.  The Franchise Agreement contained a non-compete covenant.

The non-compete prohibited Mr. Wheeler from engaging “in any Competitive Activities with the Territory [his thirteen zip codes] or within the territory of any other “Money Mailer” franchise then in operation” for a period of two years following termination.  This essentially obligated Mr. Wheeler to not engage in any competing business enterprise within fifty miles of any Money Mailer franchise.

Mr. Wheeler sold his franchise to Mr. Javier Ferrer on October 31, 2007 for $130,000.  He executed an additional non-compete agreement in connection with this transaction wherein he promised not to compete for three years following the closing of the deal.  In February 2008, he began to work as an Independent Contractor for Direct Advantage, a direct competitor engaged in the same business(es) as Money Mailer.

Money Mailer sued Mr. Wheeler for breach of the Franchise Agreement and requested that the court enforce the provisions contained in the non-compete agreement.  Mr. Wheeler acknowledged that he was involved in the exact same business addressed and prohibited in the non-compete agreement and admitted to soliciting several of Money mailer’s previous and current customers.

The Court’s Decision

The Connecticut state court granted Money Mailer’s request for injunctive relief and ordered the enforcement of the restrictive covenant.  The court stated that the purpose of injunctive relief was to preserve the status quo of the parties until the case was definitively decided.

It further noted the relevant standard of review for granting a request for an injunction and specified four factors: 1) no adequate remedy at law, 2) plaintiff would experience irreparable harm if the request was not granted, 3) plaintiff was likely to prevail on the merits of the case, and 4) an injunction would sustain the balance of the parties’ equities.  The court concluded that Money Mailer’s case met all of these requisite factors and its complaint warranted relief in the form of a temporary injunction.

The court concluded that an injunctive order was necessary to balance the parties’ interests during the legal proceedings and that the temporary injunction would essentially restore the parties to their relative positions before the alleged violation of the non-compete agreement.  Money Mailer was able to demonstrate that Mr. Wheeler’s actions had a detrimental impact its business interests.

Additionally, the court found that Money Mailer was likely to prevail on the merits of its complaint, specifically citing that Mr. Wheeler’s own testimony provided abundant evidence of activities that should trigger the enforcement of the restrictive covenant.  For these enumerated reasons, the court granted Money Mailer’s request for an injunction restraining Mr. Wheeler from further violations of the non-compete provisions contained in the Franchise Agreement executed between the parties in 2003.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  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.

Nightclub Owners Agree to $4.2 Million Settlement in Wrong-Way Crash Case

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Case Background

The parents of Connecticut College student Elizabeth Durante reached a settlement in their wrongful death lawsuit against the owners of the Ultra 88 nightclub at Mohegan Sun Thursday for $4.2 million.

Durante, a 20-year-old aspiring medical student, had recruited fellow students for a humanitarian mission to Uganda during spring break in March 2009 and was en route to the airport when she was killed in a wrong-way collision on Interstate 395 that was caused by an intoxicated nightclub patron Daniel Musser.

Durante’s parents, Keith and Kathleen Durante of Islip, N.Y., had sued the club’s Boston-based owners, Plan B LLC, and the Lyons Group, and its permittee, Patrick Lyons, claiming the nightclub had acted recklessly and negligently.

The Durantes and attorneys involved in the case agreed they would not comment publicly on the settlement, the details of which were put on the record Thursday afternoon by Hartford Superior Court Judge William H. Bright Jr.

The Settlement

The judge released a jury that had listened to two days of evidence in the case before the parties agreed to the $4.2 million figure. In reaching the settlement in state court, the Durantes also agreed to release the nightclub backers from a case that is pending in Mohegan tribal court, according to a court transcript.

New London attorneys Robert I. Reardon Jr. and Kelly E. Reardon represented the Durantes. Attorneys Scott Behman, Frank Ganz and Domenick Secundo from the Wallingford law firm Behman Hambelton represented the club and its backers.

Musser, then a sailor stationed at the Naval Submarine Base in Groton, had been drinking at Ultra 88 for several hours before he drove the wrong way out of the casino in the early morning hours of March 7, 2009. Musser’s car collided head-on near Exit 79A on I-395 with a van carrying Durante and seven other students to Logan Airport.

Pretrial Settlement Discussion

Pretrial settlement talks were unsuccessful, so the sides selected a jury and testimony began Tuesday in Hartford Superior Court. Bartender Sarah Webster, who sold Musser several drinks at the nightclub before calling security to eject him for lewd behavior, had been on the witness stand for several hours when the settlement talks resumed.

Musser, who had a 0.13 blood alcohol level following the crash and is serving a 75-month sentence for second-degree manslaughter, was slated to testify on Friday had the trial continued.

Three other students and the van driver had also sued Ultra 88 and had settled their lawsuits during jury selection. The Durantes had initially sued Mohegan tribal officials, but a judge ruled they had sovereign immunity.

In late 2009, following the deaths of Durante and two others that occurred after patrons left the casino under the influence of alcohol, the tribe said it was expanding its measures to prevent drunken driving.

By Karen Florin, theday.com

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating an auto accident, wrongful death claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

Five Things You Need to Know About Connecticut Separation Agreements

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As a result of the state of the economy, in general, and in Fairfield County, in particular, we in the Westport, Connecticut office of Maya Murphy, P.C. have seen a spate of Separation Agreements brought to us by recently terminated employees.  Our experienced employment-law attorneys review and critique these Agreements, and often advocate on behalf of our clients to enhance a separation package.

Here are five things you need to know about Separation Agreements:

  1. They are here and more may be on the way. 

    Companies are scrutinizing their bottom lines to try to increase profits, decrease expenses, and improve share value or owner’s equity.  If sales can’t be increased or cost-of-goods-sold decreased, one alternative is to cut personnel.  Often senior (and more highly paid) employees are let go in favor of younger (i.e., “cheaper”) employees, thereby also raising the specter of an age discrimination claim (a topic deserving of its own post).

  2. They are complex. 

    For an employee over the age of 40, a federal statute known as the “Older Workers Benefit Protection Act” requires that your Separation Agreement contain certain provisions, including a comprehensive release of all claims that you might have against your employer.  The statute also gives you specific time periods to review the Agreement prior to signing, and even to rescind your approval after you have signed.  It is not uncommon to have Separation Agreements exceed 10 pages in length.  All of the language is important.

  3. They are a minefield. 

    Separation Agreements frequently contain “restrictive covenants,” usually in the form of confidentiality, non-solicitation, and non-competition provisions.  These can have a profound effect on your ability to relocate to another position and have to be carefully reviewed and analyzed to avoid potentially devastating long-term consequences after the Agreement has been signed and the revocation period has expired.

  4. They are not “carved in stone.”

    Although many companies ascribe to a “one size fits all” and a “take it or leave it” policy with regard to Separation Agreements, such is not necessarily the case.  Often, Maya Murphy employment attorneys can find an “exposed nerve” and leverage that point to obtain for a client more severance pay, longer health benefits, or some other perquisite to ease the client’s transition into a new job with a new employer.  Every case is factually (and perhaps legally) different and you should not assume that your severance package should be determined by those that have gone before you.

  5. You need an advocate.

    You need an experienced attorney to elevate discussion of your Separation Agreement above the HR level.  HR directors have limited discretion and are tasked with keeping severance benefits to an absolute minimum.  Maya Murphy’s goal is to generate a dialogue with more senior management to drive home the point that a particular client under certain circumstances is equitably entitled to greater benefits than initially offered.

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If you find yourself in the unfortunate position of having been presented with a Separation Agreement, you should contact an experienced employment law attorney in our Westport, Connecticut office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Surviving Medical Malpractice

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It sometimes seems that friends and family are constantly in and out of doctor’s offices and hospitals.  We once went six months straight with a different friend in the hospital each month.  Hospitals are amazing places staffed by people whose job is to help you get better.  Unfortunately, that doesn’t always happen.  Sometimes people are beyond help.  Worse yet, sometimes the actions or inactions of the doctors or nurses can unnecessarily injure or kill a patient.  This happened to a friend of mine almost five years ago.  She is still paying off the medical bills from her hospitalization despite the fact that her doctor committed medical malpractice and she came within a few hours of dying.

So, what’s the problem, why is she paying off the bills, including the fees of the doctor that nearly killed her?  None of the attorneys she spoke to would take her case.  Why?  Because she lived.

Medical Malpractice Cases

That’s right.  If she had died they would have been happy to help her husband go after the people responsible, but because she lived they felt the damage wasn’t catastrophic enough.  Apparently weeks in the hospital, hundreds of thousands of dollars of medical bills that her insurance didn’t cover, and inability to work for about a year wasn’t catastrophic.  It was incomprehensible to me that medical professionals nearly killed her and then legal professionals did nothing to right the wrong.

I’ve done some research and discovered that my friend isn’t the only one who has been left out in the cold.  It turns out one of the reasons attorneys are so picky about the cases they accept is that it is very hard to win a medical malpractice case.  The things an attorney will consider in taking your case are:  liability, damages, and who would pay the damages.  If you think you have a potential medical malpractice claim, here are some things you should consider in deciding what to do next.

Do you live in a state that requires you to first try to work things out through mediation or arbitration? 

The process can vary from state to state so you may want to ask a legal professional in your state what to expect.

How long ago did this happen?

While there can be variants in different states’ statutes of limitations, if what happened was over two years ago you may find it hard to bring your claim now.  Seek the advice of a lawyer on this for your state’s particular rules and any factors that may extend the time you have to bring suit.

Was your doctor negligent? 

Negligence can come in many forms.  Common ones include: misdiagnosing a problem, failure to treat a problem correctly, giving the wrong medication, and failing to warn you of the risks of surgery or other procedures.  Of course, even if your doctor did misdiagnose you, that doesn’t automatically mean you can take him to court and win.  The question then becomes: was that a common enough misdiagnosis that other doctors would have made the same mistake?  That leads to the next question.

How would your doctor’s actions compare to those of other doctors? 

If the average practitioner would have done the exact same thing, you’re probably not going to be able to win a lawsuit.  Your doctor’s actions have to be judged in light of a standard of care observed by doctors.  This guarantees that you can’t go after a doctor just because he isn’t on the cutting edge of research or number one in his field.  If your doctor’s actions were in line with accepted medical practice, then he’s probably covered.  However, if other doctors are surprised or perplexed by the actions of the one who caused your injury, you might be able to bring a case against him.

What damages did you suffer? 

This is another one of those fuzzy areas.  Of course, some damages such as medical bills are obvious.  However, you also need to think in terms of loss of ability, pain and suffering and what the short and long term effects will be.  What makes this difficult is that this varies greatly from person to person.  For example, loss of a toe for a professional dancer could be much more catastrophic than for a banker.  The physical marring and the loss of balance could negatively impact a dancer’s work and income whereas a banker should be able to do his work just fine without the toe.

There are a lot of factors that affect a medical malpractice case.  If you think you have one, seek out an attorney as soon as possible.  Keep in mind the above list so you know what to ask and what to expect from the meeting.  Don’t be too shocked if the attorney refuses to take your case.  Do seek out a second opinion, just like you would from a doctor!

However, if multiple attorneys tell you the same thing then the best thing you can do for yourself is let it go.  Work on recovering physically and financially as fast as you can.  A lawyer can help you work out the details of your medical financial obligations and how to best handle them.  The important thing is to do what you can to minimize the impact and get on with the rest of your life and do your best to thrive, not just survive!

By: lawyers.com

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail 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 our Westport office at 203-221-3100.

‘Distracted Doctoring’ a Danger to Patients

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Distractions From Patient Care

A survey found that 55 percent of technicians monitoring bypass machines admitted to talking on cell phones during surgery. Half admitted to texting while in surgery. A widely read editorial in Anesthesiology News by Peter J. Papadakos, MD, says health care workers today are “fixated on computer screens” and rarely receive information directly from their patients. Papadakos referred to a study presented to the American Society of Anesthesiologists this year that said nurse anesthetists and residents were distracted by something other than patient care in 54 percent of cases. The study further cited surfing the Internet as the primary distraction. All of these distractions serve as a potential danger to patients.

Additionally, a report in The New York Times cited polls of medical professionals in which a majority of respondents admitted using cellphones during critical procedures. The Times cited a survey of medical technicians published in Perfusion, a journal about cardio-pulmonary bypass surgery, which found that 55 percent of technicians who monitor bypass machines acknowledged talking on cell phones during heart surgery and half said they had texted while in surgery.

“Why does anyone carry a cell phone into an operating room?” Patrick A. Salvi, managing equity partner of Salvi, Schostok & Pritchard P.C. in Chicago, asked. “The patient on the table deserves the undivided attention of everyone in that room.”

Malpractice of Healthcare Workers

Salvi, a medical malpractice attorney, expressed concern that healthcare workers’ increased reliance on electronic devices has become a distraction that has led to medical errors and injuries.

“We’re dismayed by reports that say doctors, nurses, technicians and others providing medical care are spending too much time focused on smartphones, computer screens and other devices when they should be paying attention to their patients.” “We’re not against the use of electronic devices for delivery of medical records or even personal communication, but it is absolutely crucial that a focus on the patient is not dropped from the accepted standards of medical care,” said Salvi.

Anyone believing their injuries or the injury or death of a loved one in a hospital or another medical setting may have been caused by medical errors resulting from distraction should contact an experienced medical malpractice attorney immediately.

By: Larry Bodine

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a medical malpractice claims, medical negligence or injury, or a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.