Posts tagged with "workplace discrimination"

Can an Employee Sue for Wrongful Discharge Even Though the Employee Did Not Have an Employment Contract?

In Connecticut, employees who do not have a contract spelling out the duration of their employment are considered “at-will” employees. In an at-will employment relationship, either party (the employer or the employee) may terminate the employment whenever they choose, for any reason or no reason at all. Of course, both federal and state laws protect employees from discrimination, including termination, based on gender, race, age, religion, national origin, disability, and sexual orientation, among other things. However, in limited circumstances, an at-will employee may be able to sue his or her employer for wrongful discharge even without a case of discrimination if the discharge is against public policy, or if the employee can prove that there was an implied employment contract.

Under the public policy exception, an employee can bring an action for wrongful termination if his or her discharge is contrary to a clear public policy, and the court (rather than a jury) must determine at the outset whether an important public policy is at issue in the case. Such public policy may be found in constitutional provisions, statutes or in judicially conceived notions. These would include prohibitions against firing an employee for filing a claim for unemployment benefits, filing a wage enforcement claim, and exercising federal or state constitutional rights, such as religious or free speech rights. Although courts construe this exception narrowly, some have, for example, held that an employee may maintain an action for wrongful discharge where the plaintiff alleged that he was fired for refusing to participate in a scheme to defraud the government in violation of a federal statute, or was fired for reporting that a supervisor had sold alcohol to a minor in violation of a state statue.

Connecticut courts also recognize a cause of action for wrongful termination based on an implied employment contract. To prevail on such a claim, the employee must prove that the employer agreed, through words or actions, not to terminate the employee without just cause. This exception, too, is narrowly construed. Such claims have arisen where an employee manual was distributed to the now discharged employee that contained language concerning job security (e.g., that the employee could not be discharged without just cause) that he or she relied upon in deciding to remain with his employer.

If you believe you have been wrongfully terminated, contact one of the experienced employment law attorneys at Maya Murphy, P.C. to discuss your legal remedies today. An attorney may be reached at 203-221-3100 or by emailing Ask@mayalaw.com.

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Can an Employee Sue for Wrongful Discharge Even Though the Employee Did Not Have an Employment Contract?

In Connecticut, employees who do not have a contract spelling out the duration of their employment are considered “at-will” employees. In an at-will employment relationship, either party (the employer or the employee) may terminate the employment whenever they choose, for any reason or no reason at all. Of course, both federal and state laws protect employees from discrimination, including termination, based on gender, race, age, religion, national origin, disability, and sexual orientation, among other things. However, in limited circumstances, an at-will employee may be able to sue his or her employer for wrongful discharge even without a case of discrimination if the discharge is against public policy, or if the employee can prove that there was an implied employment contract.

Under the public policy exception, an employee can bring an action for wrongful termination if his or her discharge is contrary to a clear public policy, and the court (rather than a jury) must determine at the outset whether an important public policy is at issue in the case. Such public policy may be found in constitutional provisions, statutes or in judicially conceived notions. These would include prohibitions against firing an employee for filing a claim for unemployment benefits, filing a wage enforcement claim, and exercising federal or state constitutional rights, such as religious or free speech rights. Although courts construe this exception narrowly, some have, for example, held that an employee may maintain an action for wrongful discharge where the plaintiff alleged that he was fired for refusing to participate in a scheme to defraud the government in violation of a federal statute, or was fired for reporting that a supervisor had sold alcohol to a minor in violation of a state statue.

Connecticut courts also recognize a cause of action for wrongful termination based on an implied employment contract. To prevail on such a claim, the employee must prove that the employer agreed, through words or actions, not to terminate the employee without just cause. This exception, too, is narrowly construed. Such claims have arisen where an employee manual was distributed to the now discharged employee that contained language concerning job security (e.g., that the employee could not be discharged without just cause) that he or she relied upon in deciding to remain with his employer.

If you believe you have been wrongfully terminated, contact one of the experienced employment law attorneys at Maya Murphy, P.C. to discuss your legal remedies today. An attorney may be reached at 203-221-3100 or by emailing Ask@mayalaw.com.

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Can an Employee Who Waived Discrimination Claims in a Severance Agreement Still Sue for Discrimination?

If an employee who signed an agreement waiving discrimination claims later files a lawsuit asserting such claims, he or she will argue that the waiver is legally invalid while the employer will, of course, argue the opposite. A court, therefore, would have to determine whether the waiver is valid and binding on the employee before considering the substance of the underlying discrimination action.

A waiver in a severance agreement generally is valid if the employee knowingly and voluntarily consented to it. Courts look to different factors to determine whether the consent was knowing and voluntary, and this could depend upon the statute under which the discrimination action is brought. While some courts rely on traditional contract interpretation principles and focus on whether the language of the waiver was clear, most courts will look at a number of factors, or what is referred to as “the totality of the circumstances,” to determine if the employee knowingly and voluntarily waived his or her right to bring a lawsuit.

When an employee asserts claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act or the Equal Pay Act, courts considering the totality of circumstances will look to:

Whether the waiver was clear, specific (e.g., explicitly referred to the types of claims being waived), and written in a way that the employee could understand given his or her education and experience;

Whether the waiver was induced by fraud, duress, undue influence or other improper conduct by the employer;

Whether the employee had enough time to consider the waiver and the advantages or disadvantages of signing it;

Whether the employee consulted an attorney or was encouraged or discouraged from doing so by the employer;

Whether the employee had input in negotiating the terms of the agreement; and

Whether the employer offered the employee consideration, such as additional pay or benefits, beyond what the employee was already entitled to by law or under a contract, and the employee accepted this consideration.

When an employee brings a lawsuit under the Age Discrimination in Employment Act (“ADEA”), courts will look to additional factors under this statute to determine whether the waiver was knowing and voluntary. For example, the waiver for an ADEA claim must specifically refer to rights or claims arising under the ADEA, must advise the employee to consult with an attorney, must provide the employee with at least 21 days to consider the offer and a further seven days to revoke his or her signature, and the waiver may not include any rights or claims that arise after the date the waiver is signed.

Accordingly, if some or all of the factors listed above are not met, an employer may still face exposure to a discrimination lawsuit – although it appeared that company was insulated from due to a waiver signed by its former employee.

Do you need an employment law attorney? Look no further than to the nearly two decades of employment law experience at Maya Murphy. Our lawyers have practiced in the courts of Connecticut and New York on countless employment law issues and can help you with any employment law matter. Call 203-221-3100 or email Ask@mayalaw.com for a free consultation today!

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Can an Employee Who Waived Discrimination Claims in a Severance Agreement Still Sue for Discrimination?

If an employee who signed an agreement waiving discrimination claims later files a lawsuit asserting such claims, he or she will argue that the waiver is legally invalid while the employer will, of course, argue the opposite. A court, therefore, would have to determine whether the waiver is valid and binding on the employee before considering the substance of the underlying discrimination action.

A waiver in a severance agreement generally is valid if the employee knowingly and voluntarily consented to it. Courts look to different factors to determine whether the consent was knowing and voluntary, and this could depend upon the statute under which the discrimination action is brought. While some courts rely on traditional contract interpretation principles and focus on whether the language of the waiver was clear, most courts will look at a number of factors, or what is referred to as “the totality of the circumstances,” to determine if the employee knowingly and voluntarily waived his or her right to bring a lawsuit.

When an employee asserts claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act or the Equal Pay Act, courts considering the totality of circumstances will look to:

Whether the waiver was clear, specific (e.g., explicitly referred to the types of claims being waived), and written in a way that the employee could understand given his or her education and experience;

Whether the waiver was induced by fraud, duress, undue influence or other improper conduct by the employer;

Whether the employee had enough time to consider the waiver and the advantages or disadvantages of signing it;

Whether the employee consulted an attorney or was encouraged or discouraged from doing so by the employer;

Whether the employee had input in negotiating the terms of the agreement; and

Whether the employer offered the employee consideration, such as additional pay or benefits, beyond what the employee was already entitled to by law or under a contract, and the employee accepted this consideration.

When an employee brings a lawsuit under the Age Discrimination in Employment Act (“ADEA”), courts will look to additional factors under this statute to determine whether the waiver was knowing and voluntary. For example, the waiver for an ADEA claim must specifically refer to rights or claims arising under the ADEA, must advise the employee to consult with an attorney, must provide the employee with at least 21 days to consider the offer and a further seven days to revoke his or her signature, and the waiver may not include any rights or claims that arise after the date the waiver is signed.

Accordingly, if some or all of the factors listed above are not met, an employer may still face exposure to a discrimination lawsuit – although it appeared that company was insulated from due to a waiver signed by its former employee.

Do you need an employment law attorney? Look no further than to the nearly two decades of employment law experience at Maya Murphy. Our lawyers have practiced in the courts of Connecticut and New York on countless employment law issues and can help you with any employment law matter. Call 203-221-3100 or email Ask@mayalaw.com for a free consultation today!

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Medical Marijuana Use in the Connecticut Workplace

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

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

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

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

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

Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.

Employers may discriminate if required by federal funding or contracting provisions.

Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.

Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

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

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

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

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

Credit to Daniel Schwartz of Shipman and Goodwin LLP.

If you are the victim of workplace harassment, wrongful termination, or any other labor law crime, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at jmaya@mayalaw.com

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Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment

In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.[1]

Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.

Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor.  She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her  hands over the genital area of his pants and attempted to shove her hands down his pants.[2] As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast.[3]  The student began missing school frequently to avoid continued harassment.  At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.[4]

The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.”[5] When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education.  The principal refused saying there were no other options besides the GO program.[6]

The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.

Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a)[7]. Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.

Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.[8] A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,”[9] or responded with remedial action only after a “lengthy and unjustified delay.”[10]

The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.”[11]  Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.

Bullying and harassment in school should never be tolerated.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education 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 bullying, student harassment, school liability or any other 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.

 


[1] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)

[2] Compl.¶¶ 10-11

[3] Compl.¶¶ 12-13

[4] Id.

[5] Compl.¶¶ 14

[6] Id.

[7] Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)

[8] Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)

[10] Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)

[11] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.

 

Keywords: Title IX, bullying in schools, anti bullying, schools, principal, teacher, school, discrimination, harassment, sexual discrimination, sexual harassment, gender, gender discrimination, gender inequality, gender equality, equal pay, equal opportunity, civil rights, sexual orientation, work discrimination, workplace discrimination, harassment in the workplace, harassment at work, workplace harassment, discrimination in the workplace, discrimination law, age discrimination, sex discrimination, touching, inappropriate, women discrimination, women, pregnancy, racial discrimination, abuse, sexual harassment attorney, employment, employment discrimination, hiring discrimination, job discrimination, disability discrimination, wrongful termination, employment, work, workplace, employer, employee, supervisor, hostile work environment, retaliation, EEOC, CHRO, Civil Rights Act, quid pro quo harassment, Title VII, bullying, bullying workplace, gender workplace, harassment policy, workers rights, attorneys at law, employee rights, employee lawyer, discrimination lawyer, employment lawyer, employment law, New York law, Connecticut law, employment attorney, employment law attorney, employment law lawyer, discrimination attorney, harassment attorney, labor attorney, labor lawyers, lawyer, lawyers, attorney, attorneys, civil rights attorney, find a lawyer, new york attorney, new york lawyer, lawyers in nyc, lawyers in Connecticut, employment labor, unemployment, lawyers in ct, ct lawyers, free consultation, find an attorney, legal attorney, legal advice, lawyers Connecticut, attorneys Connecticut, Connecticut law, lawyers Fairfield, lawyers Westport, new haven attorney, Bridgeport attorney, Hartford attorney, Stamford attorney, employment NY, law office, Connecticut law office

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

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

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

The Supreme Court in Faragher v. City of Boca Raton[2] and its companion case Burlington Industries, Inc. v. Ellerth[3] recognized certain affirmative defenses an employer can assert to preclude liability when an employee alleges sexual harassment by a supervisor.  Even if an employee establishes a prima facie case of sexual harassment, an employer can avoid liability under the Faragher/Ellerth defense if the employer shows (1) that it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to otherwise avoid harm. Both elements must be satisfied for the employer to avoid liability, and the employer bears the burden of proof on both elements.

In affirming District Court’s grant of summary judgment in favor of the employer, the 11th Circuit held that the Faragher/Ellerth defense applied to bar the employee’s claims under Title VII and the FCRA.  The Court recognized that the undisputed evidence demonstrated that Hair Cuttery had promulgated and adequately disseminated sexual harassment policies and complaint procedures to its employees.  Further, the court held that the employee failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and complaint procedures by not promptly notifying the company of his harassment.[4]

Failure to follow employer harassment policies can prevent a valid harassment claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.



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

[4] White v. Creative Hairdressers Inc. at 11-16121

 

Keywords: Faragher-Ellerth, discrimination, harassment, sexual discrimination, sexual harassment, gender, gender discrimination, gender inequality, gender equality, equal pay, equal opportunity, civil rights, sexual orientation, work discrimination, workplace discrimination, harassment in the workplace, harassment at work, workplace harassment, discrimination in the workplace, discrimination law, age discrimination, sex discrimination, touching, inappropriate, women discrimination, women, pregnancy, racial discrimination, abuse, sexual harassment attorney, employment, employment discrimination, hiring discrimination, job discrimination, disability discrimination, wrongful termination, employment, work, workplace, employer, employee, supervisor, hostile work environment, retaliation, EEOC, CHRO, Civil Rights Act, quid pro quo harassment, Title VII, bullying, bullying workplace, gender workplace, harassment policy, workers rights, attorneys at law, employee rights, employee lawyer, discrimination lawyer, employment lawyer, employment law, New York law, Connecticut law, employment attorney, employment law attorney, employment law lawyer, discrimination attorney, harassment attorney, labor attorney, labor lawyers, lawyer, lawyers, attorney, attorneys, civil rights attorney, find a lawyer, new york attorney, new york lawyer, lawyers in nyc, lawyers in Connecticut, employment labor, unemployment, lawyers in ct, ct lawyers, free consultation, find an attorney, legal attorney, legal advice, lawyers Connecticut, attorneys Connecticut, Connecticut law, lawyers Fairfield, lawyers Westport, new haven attorney, Bridgeport attorney, Hartford attorney, Stamford attorney, employment NY, law office, Connecticut law office

The Best Employment Lawyers in Connecticut and New York

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

Laws Protect Employees from Sexual Harassment in the Workplace
These laws also protect employees from sexual harassment , a hostile work environment, and from being touched in an offensive manner in the workplace by supervisors, coworkers, or even clients. Employees have a right to stop discriminatory conduct in the workplace. If an employee tries to stop that conduct or notifies a supervisor that discriminatory conduct has occurred, that employee also has protection, under state and national laws, from retaliation by the supervisor or employer. In fact, any person who complains to his or her superior or employer has protection from the law against retaliation by his or her employer. If you feel you might be a victim of racial, gender, or sexual discrimination on the job, you should contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or by dialing him at (203) 221-3100 or (212) 682-5700. Let our experience guide you and protect your legal rights at work.
Serving Stamford, Greenwich, Norwalk and surrounding communities including Darien, New Canaan, Westport, Wilton & Weston; the greater Bridgeport area including Fairfield, Stratford, Monroe & Redding; the greater Danbury area including Ridgefield, Newtown & Bethel; and the communities surrounding Milford and New Haven. We also serve all of Westchester and New York Counties.

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

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

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

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

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

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

The employee also stated that her supervisor placed her on a “one-week probation and if during that week I missed work for any reason, that I would be terminated. The employee did not present any medical notes to her supervisor during the meeting on June 11, 2010; in fact, the employee was not told that her pregnancy was high-risk until June 14, 2010.[5]  On June 14, 2010, she delivered another letter to Target, this one alleging pregnancy discrimination and informing Target that a charge would be filed with the Equal Employment Opportunity Commission.[6]  The employee filed a charge of discrimination with the EEOC on June 15, 2010. On the charge, she checked only the box labeled “sex,” but not the box for “retaliation,” or the box labeled “continuing action.”[7]

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

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

Failure to follow proper administrative procedure when filing a discrimination claim with the EEOC can bar an otherwise valid claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions workplace discrimination, Title VII discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 

Keywords: discrimination, harassment, sexual discrimination, sexual harassment, gender, gender discrimination, gender inequality, gender equality, equal pay, equal opportunity, civil rights, sexual orientation, work discrimination, workplace discrimination, harassment in the workplace, harassment at work, workplace harassment, discrimination in the workplace, discrimination law, age discrimination, sex discrimination, touching, inappropriate, women discrimination, women, pregnancy, racial discrimination, abuse, sexual harassment attorney, employment, employment discrimination, hiring discrimination, job discrimination, disability discrimination, wrongful termination, employment, work, workplace, employer, employee, supervisor, hostile work environment, retaliation, EEOC, CHRO, Civil Rights Act, quid pro quo harassment, Title VII, bullying, bullying workplace, gender workplace, harassment policy, workers rights, attorneys at law, employee rights, employee lawyer, discrimination lawyer, employment lawyer, employment law, New York law, Connecticut law, employment attorney, employment law attorney, employment law lawyer, discrimination attorney, harassment attorney, labor attorney, labor lawyers, lawyer, lawyers, attorney, attorneys, civil rights attorney, find a lawyer, new york attorney, new york lawyer, lawyers in nyc, lawyers in Connecticut, employment labor, unemployment, lawyers in ct, ct lawyers, free consultation, find an attorney, legal attorney, legal advice, lawyers Connecticut, attorneys Connecticut, Connecticut law, lawyers Fairfield, lawyers Westport, new haven attorney, Bridgeport attorney, Hartford attorney, Stamford attorney, employment NY, law office, Connecticut law office


[1] Penaloza v. Target Corp., 8:11-CV-2656-T-33AEP, 2012 WL 6721011 (M.D. Fla. Dec. 27, 2012)

[2] Doc. # 45–3 at 2

[3] Doc. # 45–3 at 3

[4] Penaloza Dep. Doc. # 35 at 19

[5] Doc. # 34 at 6, 9; Penaloza Dep. Doc. # 35 at 13–14, 22

[6] Doc. # 35–2 at 17

[7] Doc. # 35–2 at 8

[8] Anderson v. Embarq / Sprint, 379 F. App’x 924, 926 (11th Cir.2010)

[9] Id.

[10] Penaloza v. Target Corp., 8:11-CV-2656-T-33AEP, 2012 WL 6721011 (M.D. Fla. Dec. 27, 2012)

Claim Denied for Not Notifying Her Employer of Harassment

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

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

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

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

The Court, nonetheless, denied the employee’s claim, finding that the Faragher–Ellerth defense applied to Bulletproof to excuse any liability.  Under federal and state law, an employer vicariously liable for the discriminatory conduct of a managerial or supervisory employee may elude liability by asserting the so-called Faragher–Ellerth defense.  For this defense to succeed, the employer must show that (i) no adverse employment action (e.g., termination) was taken as part of the sexual harassment; (ii) the employer took prompt corrective action; and, (iii) the plaintiff unreasonably failed to avail herself of “corrective opportunities provided by the employer or to avoid harm otherwise”[4]

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

Further the Court observed that “Since the plaintiff deprived Bulletproof of the opportunity to take ‘prompt corrective action’ by not informing anyone of David’s harassment, she cannot show that Bulletproof ‘acquiesced in the discriminating conduct or subsequently condoned it’ instead of taking corrective action.”[6] Similarly, plaintiff unreasonably failed to avail herself of whatever corrective opportunities Bulletproof could have offered her if it had been given the chance. The employee did not even resign; she just left work one day and did not return the next, and when Jeffrey called her multiple times to find out what happened, she did not return his calls.  The Court held “under these circumstances, the plaintiff cannot state a claim against Bulletproof even assuming that David was her supervisor.”[7]

 

If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 

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

[2] Id.

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

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

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

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

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