Posts tagged with "summary judgment"

Investigatory Meeting Even With Possible Consequences Not an Adverse Employment Action

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.

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 to schedule a consultation today.

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

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.


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.

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 to schedule a consultation today.

Another Case Against the School District, Town Jumps Summary Judgment Hurdle

In a negligence action, the Superior Court of Connecticut at Danbury denied a motion for summary judgment filed by the Town of New Milford, the New Milford Board of Education, and several school employees (collectively the defendants). The Court was not persuaded that the defendants enjoyed governmental immunity from suit, or the claim that they did not owe a duty to a student-victim assaulted by another student on school grounds.

Case Details

In this case, the plaintiff was the target of repeated bullying and harassment from a classmate, Kevin, during his freshman and sophomore years in high school. He endured pushing and shoving, being struck by a stack of school books, menacing stares, and even derogatory “gay” remarks from Kevin. The plaintiff constantly complained to various school administrators, though no meaningful action was ever taken. This culminated to a full-blown assault of the plaintiff at Kevin’s hands outside the school cafeteria.

The plaintiff sued the defendants, arguing that they had a duty to protect him from Kevin and failed to do so. “The plaintiff contends that [one individual defendant] had a duty to compel compliance with school rules and to prevent bullying and harassment… [as well as ] a legal duty to be alert to possible situations that might include bullying and to inform the administration immediately of such events.”[1] In addition, he claimed that governmental immunity was inapplicable, because he was an identifiable victim to an imminent harm. Finally, he asserted town liability because the Board of Education was an agent for the town in “mandating control” over the public high school.[2]

Municipal employees are “liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts…”[3] Basically, governmental acts are supervisory and discretionary, while ministerial acts must “be performed in a prescribed manner without the exercise of judgment or discretion.”[4] However, even if a defendant successfully claims that the acts in question were discretionary, thus invoking governmental immunity, a plaintiff may still defeat a motion for summary judgment by asserting one of three exceptions: in this case, the identifiable person-imminent harm exception.

Identifiable Person-Imminent Harm Exception

The identifiable person-imminent harm exception requires a showing of three things: “(1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[5] A person will be deemed “identifiable… if the harm occurs within a limited temporal and geographical zone, involving a temporary condition;”[6] a harm is imminent if it is “ready to take place within the immediate future.”[7]

The Court sided with the plaintiff and denied summary judgment as to all defendants. It noted, “The [board of education’s] duty to supervise students is performed to the benefit of the municipality;”[8] in this case, the plaintiff’s claim didn’t involve his education, but rather “the inability of certain teachers and staff at New Milford High School to supervise and maintain control on its premises for the protection of its students.”[9] 

A duty to supervise students is not confined to just younger children, but also includes high school students because a gathering “in large numbers at lunch time or at sporting events would certainly seem to present a risk of incidents such as the one involved in this case occurring [an assault at school].”[10] Thus, on all grounds asserted by the defendants, the motion for summary judgment was denied.

Written by Lindsay E. Raber, Esq.

Bullying in schools has become a serious problem, and increasingly courts are willing to permit the case to proceed beyond a motion for summary judgment, despite claims of governmental immunity or no duty owed to the students. If you are the parent of a child who has been bullied or assaulted, despite repeated unaddressed complaints to administration, it is imperative that you consult with an experienced and knowledgeable school law practitioner.

Should you have any questions regarding bullying or other education law matters, 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


[1] Straiton v. New Milford Board of Education et al., 2012 Conn. Super. LEXIS 773 at 15.

[2] Id. at 11.

[3] Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).

[4] Id.

[5] Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).

[6] Id. at 275-76.

[7] Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285, 2010 Conn. Super. LEXIS 2257 (September 7, 2010, Roche, J.).

[8] Purzycki v. Fairfield, 244 Conn. 101, 112 (1998).

[9] Straiton, supra at 12-13.

[10] Maretz v. Huxley, Superior Court, judicial district of New Haven, Docket. No. CV 07 5011978 (January 12, 2009, Corradino, J.)

Connecticut Court Uses Oral Agreement to Substantiate Consideration for Non-Compete Agreement

In Command Systems, Inc. v. Wilson, 1995 Conn. Super. LEXIS 406, Mr. Steven Wilson worked for Command Systems, Inc. where he received a promotion to the position of Vice President and Secretary of the company on June 26, 1990.  In September of that year, management informed Mr. Wilson that he would receive a bonus contingent on the company achieving certain sales goals.  The company did achieve the specified goals in December 1990 but the company informed Mr. Wilson that he needed to sign an agreement containing a contractual non-compete clause before he could receive the bonus.  The parties signed an agreement on December 21, 1990, that contained several restrictive covenants.

Mr. Wilson voluntarily terminated his employment with Command Systems a few years later and formed a new company, the Vertex Company.  The creation of the new company and Mr. Wilson’s actions are the basis of Command’s complaint regarding the breach of the December 1990 non-compete agreement.  Mr. Wilson requested summary judgment on the matter because the agreement lacked consideration and was therefore not legally binding on the parties.

The court had to answer the basic question of whether the 1990 agreement with the contractual restrictions was a valid and enforceable contract.  The court ultimately denied Mr. Wilson’s request for summary judgment and found that the agreement between the parties had adequate consideration and constituted an enforceable contract.  The agreement stated that the consideration for the agreement was “Wilson’s appointment as Secretary of Command”, but he had held this title for several months prior to the non-compete agreement.  The court recognized this but looked beyond this clause of the agreement to identify adequate consideration in relation to Mr. Wilson’s promotion.

The Court’s Decision

The court looked to affidavits provided by Mr. Caputo, Command’s president, to find adequate consideration for the agreement.  The court did not find any factual holes in Mr. Caputo’s statements and had no reason to believe that they contained any misrepresentations, omissions, or lies.  The affidavits repeatedly referenced several conversations between Mr. Caputo and Mr. Wilson, especially an oral agreement wherein Mr. Wilson agreed to sign a non-competition restriction in exchange for being promoted to Secretary of the company.  Mr. Caputo stated, “The decision to make Wilson Secretary of the plaintiff corporation was based on his agreement to sign the contract of employment” in December 1990 that contained the restrictive covenants.

Command provided Mr. Wilson with the non-compete contract when he received the paperwork that officially named him Secretary, although the parties did not sign the agreement until several months later in December.  The contract contained language and clauses that highlighted that Mr. Wilson was being made Secretary of the company in exchange for the execution of an employment agreement restricting future employment activities.

The court used the information from Mr. Caputo’s affidavits to hold that there was an understanding between the parties at the time of Mr. Wilson’s promotion that it was contingent upon the execution of a non-compete agreement.  The court interpreted the oral agreement and the contract presented at the time of promotion as contemporaneous evidence that the non-compete agreement was in fact supported by adequate consideration.  Mr. Wilson failed to meet the requisite burden of proof in demonstrating that the agreement lacked consideration and the court denied his request for summary judgment.

If you have any questions regarding non-compete agreements or any employment matter, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or by email at

Hostile Work Environments and the Faragher/Ellerth Defense

In a landmark case, the United States Supreme Court established the standard by which an employer could be held liable under Title VII of the Civil Rights Act of 1964 for the creation of a hostile work environment based on sexual harassment.  By way of background, Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion, and is applicable to employers with 15 or more employees.

Title VII Lawsuit

The reach of Title VII was brought to the Supreme Court’s attention in 1998, when it decided Faragher v. Boca Raton.  In that case, Faragher worked part time as a lifeguard between 1985 and 1990, finally resigning in 1990.[1] In 1992, she brought an action against her immediate supervisors and the city and asserted claims under Title VII.

In her suit, Faragher alleged that her supervisors created a sexually hostile work environment by making lewd remarks and subjecting Faragher and other female lifeguards to unwanted and offensive touching.[2] The district court, considering evidence of a pattern of inappropriate conduct engaged in by Faragher’s supervisors, concluded that the conduct was “discriminatory harassment sufficiently serious to alter the conditions of Faragher’s employment and constitute an abusive working environment.”

The Court based its finding on three principles: “(1) the harassment was pervasive enough to support an inference that the City had ‘knowledge, or constructive knowledge’ of it; (2) the City was liable under traditional agency principles because [her supervisors] were acting as its agents when they committed the harassing acts; (3) Gordon’s knowledge of the harassment, combined with his inaction, ‘provides a further basis for imputing liability on the City.’”  The district court awarded Faragher one dollar in nominal damages.[3]

Employer Liability Under Title VII

The Eleventh Circuit Court of Appeals reversed the judgment against the city on appeal, based on its finding that the City had no actual or constructive knowledge of the harassment.

The case reached the United States Supreme Court, which reversed the decision of the Eleventh Circuit and reinstated judgment in favor of Faragher.  In reaching its conclusion, the Supreme Court set down bright line rules to determine the liability of an employer under Title VII when its employees have created a hostile sexual work environment.

First noting that in order to weed out complaints attacking ordinary “tribulations of the workplace,” the Court noted that in the past it had “made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”[4] Undertaking a detailed analysis, the Court ultimately held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.”[5] 

Defending a Hostile Work Environment Claim

Essentially, the Court provided for an employer to raise a defense to a claim of a hostile work environment, if the employer can show that it exercised reasonable care to prevent and correct any sexually harassing behavior, and second, that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This created what has become known as the Faragher/Ellerth defense.

The Court, however, was unable to find any evidence tending to prove the affirmative defense.  Instead the Court found that Faragher’s supervisors “’were granted virtually unchecked authority’ over their subordinates.”[6]

With that, the Court established that an employer can be liable for discriminatory behavior by supervisory personnel.

The Faragher/Ellerth Defense

The Second Circuit Court of Appeals had an opportunity to apply and interpret the “Faragher defense”  in Gorzynski v. JetBlue Airways Corp., in 2010.  There, plaintiff Gorzynski brought an employment discrimination action against her employer JetBlue, alleging that she suffered a hostile work environment due to race, sex and age discrimination.  Pursuant to her employer’s sexual harassment policy, Gorzynski complained of the harassment to her supervisor, who also was her harasser.

The district court held that defendant JetBlue was entitled to the Faragher/Ellerth defense.  The Second Circuit found that while taken individually, the complained-of incidents may not have risen to the level of egregiousness necessary to prevail on a sexual harassment claim, “when taken together they do describe a work environment in which a jury could find that men, including Gorzynski’s supervisor, were able to – and did at will – comment inappropriately on women as sexual objects.”[7] 

Having found that Gorzynski established the existence of a hostile work environment, the Second Circuit next considered whether her employer could prove, by a preponderance of the evidence, the Faragher/Ellerth affirmative defense.  Rejecting a rigid reading of the Faragher rule, the Second Circuit held that “an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”[8]

The Takeaway

The holding of this case applies to employees and employers in Connecticut, as the Second Circuit covers Connecticut, in addition to New York and Vermont.  The decision is important for several reasons, one of them being the notion that an employee’s sexual harassment claim will not fail for complaining of sexual harassment to the wrong person.  It also serves as a reminder to employees to become familiar with their company’s sexual harassment policy.

As the above cases demonstrate, sexual harassment claims can be complicated.  If you think that you have been subjected to a sexually hostile work environment, you should consult with an experienced employment attorney with the knowledge and resources to advocate on your behalf.  Please contact Joseph C. Maya, Esq., to set up an initial consultation, at 203-221-3100 or at


[1] Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998).

[2] Id. at 781.

[3] Id. at 783.

[4] Id. at 788.

[5] Id. at 807.

[6] Id.

[7] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010).

[8] Id. at 105.

Sexual Harassment in the Workplace

What may or may not constitute sexual harassment in the workplace can be a tricky subject.  The Connecticut Superior Court ruled on a specific provision of Connecticut’s sexual harassment law, specifically, the provision defining sexual harassment as “any conduct of a sexual nature” when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.”

In Meyer v. Post Road Auto Body Shop, plaintiff Meyer sued her former employer, defendant Post Road Auto Body Shop (“Post Road”), and its owner, Joseph Castellana.  She alleged that her employment was terminated in violation of Connecticut General Statute 46a-60(a)(8), which defines sexual harassment.[1]

Case Details

The facts of the case are as follows.  Meyer was employed by Post Road for two years, and had been in a sexual relationship with Castellana prior to being hired and during her employment.[2] When Meyer learned that Castellana was dating other women, she ended their relationship.  According to the complaint, she was immediately terminated from her position as office assistant.[3]

In her complaint, Meyer alleged that her termination not only violated Connecticut’s sexual harassment law, but that it violated Title VI of the Civil Rights Act of 1964, among other claims.  Ruling on the defendants’ motion for summary judgment, which alleged that there were no genuine issues of material fact, the court agreed with the plaintiff, finding that “the evidence shows that there is a material issue of fact as to whether the plaintiff’s continuation of her sexual relationship with Castellana was either explicitly or implicitly a term or condition of her continued employment with Post Road.”[4] 

The Court’s Decision

With that, the Court rejected the defendant’s argument that the plaintiff was not terminated because she refused Castellana’s sexual advances.  Essentially, the court found that the defendant’s reasoning and understanding of Connecticut’s statute relating to sexual harassment was shortsighted, and didn’t address the argument that Meyer’s employment hinged on her continuation of their sexual relationship.

This case exemplifies the intricacies of the laws relating to sexual harassment, which can pose difficulty when it comes to litigation.  It is imperative, therefore, to consult with an experienced employment attorney with the knowledge to advocate on your behalf.  Should you find yourself with questions relating to sexual harassment in the workplace, or employment law in general, do not hesitate to contact Joseph C. Maya, Esq., at 203-221-3100, or at

[1] Meyer v. Post Road Auto Body Shop, 2012 Conn. Super. LEXIS 803 (Mar. 27, 2012).

[2] Id. at 1.

[3] Id.

[4] Id. at 6.

Mere Inclusion of a Restrictive Covenant Does Not Invalidate Entire Contract

Wes-Garde Components Group, Inc. v. Carling Technologies, Inc., 2012 Conn. Super. LEXIS 899

Wes-Garde Components Group, Inc. (“Wes-Garde”) and Carling Technologies, Inc. (“Carling”) executed an agreement on December 31, 1979, wherein Wes-Garde would receive “permanent favorable pricing” on certain electrical components manufactured by Carling, contingent upon maintaining annual threshold purchasing levels.  The contract was amended on January 1, 1988, and it stayed in effect until 2008.  The agreement between the two companies contained a covenant not to compete where Carling specifically agreed to refrain from entering the distribution market for certain electrical components.

Motion for Summary Judgement

Carling informed Wes-Garde on June 19, 2008 that it considered the agreement unenforceable and as such the company was under no contractual obligation to provide favorable pricing or abide by the non-compete provisions.  December 1, 2008 marked the first date that Carling actually failed to provide favorable pricing, per the contract, while transacting with Wes-Garde.  Wes-Garde ultimately sued Carling and requested that the court enforce the agreement.  Carling moved for summary judgment on the grounds that the whole contract was unenforceable because it contained an “unreasonable restraint of trade” in the form of a mutual covenant not to compete.

The Superior Court in the Judicial District of Hartford denied Carling’s motion for summary judgment and unequivocally rejected the argument that the mere inclusion of the mutual non-compete agreement necessitated the invalidation of an entire contract willingly executed by the parties.  The details of a specific non-compete agreement may render that portion of the contract unenforceable but there is not a principle under Connecticut law espousing the idea that the mere presence of a restrictive covenant invalidates an entire agreement.

The Court’s Decision

Wes-Garde opposed the motion for summary judgment on procedural grounds due to Carling’s failure to specify the ground on which it moved or make a specific reference to the covenant not to compete.  Carling’s pleading did not establish specific facts or allegations regarding the non-compete agreement nor did they identify it as the grounds for moving for summary judgment.

Carling failed to provide the court with the necessary information and the opportunity to evaluate the non-compete agreement based on its particular provisions.  The court could have ruled on the enforceability of the non-compete agreement had Carling introduced specific facts or pleadings regarding those contractual provisions.

Carling’s defense, where a party alleges that the inclusion of a covenant not to compete invalidates a whole agreement, is universally rejected by courts in Connecticut and cannot be successfully argued as an avenue to render an entire agreement unenforceable.

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