Law Office of Lewis Chimes LLC

From Victim to Suspect

2023-09-20T10:32:34Z

Nicole Chase was a young mom with a daughter to support when she took a job at a local restaurant in Canton, Connecticut. She liked the work and was good at her job. But the place turned out to be more like a frat house than a quaint roadside sandwich spot. And the crude behavior kept escalating – until one day she says her boss went too far and she turned to the local police for help. What happened next would put a detective on the hot seat and lead to a legal battle that would drag on for years. The United States Supreme Court would even get involved. Read more... https://reveal-player.s3.us-west-1.amazonaws.com/910+Reveal+Full+Mix+Web-16_unbleeped.mp3

Kordick Attorney Statement on Settlement with Town of Greenwich: “The outcome was never in doubt”

2023-09-20T07:28:07Z

Statement from Mark Kordick’s attorney Lewis Chimes, Law Offices of Lewis Chimes, Stamford, Friday, Sept 15, 2023 The Town of Greenwich’s eleventh hour $650,000 settlement of Mark Kordick’s free speech lawsuit after jury selection and one week prior to the commencement of trial is an unequivocal and resounding victory for Captain Kordick. Between this settlement, the earlier settlements reached with Fred Camillo and Jack Kriskey, and Kordick’s retirement pension, Kordick has been fully compensated for his economic losses from his wrongful discharge, and the settlement rendered it unnecessary for him to go to trial to obtain further compensation for his discharge. Read more

$650K settlement from Greenwich to ex-police captain OK’ed by judge, averting scheduled trial

2023-09-20T07:26:08Z

STAMFORD — Mark Kordick, the former Greenwich police captain that sued the town for wrongful termination, has accepted a $650,000 offer to settle his case. A trial was scheduled to begin on Sept. 21 but will not proceed after both Kordick and the town of Greenwich submitted their settlement agreement in state Superior Court in Stamford on Friday. The case stems from the 2019 election, when Kordick planted fake “Trump / Camillo” campaign signs to link then-first selectman candidate Fred Camillo to then-President Donald Trump. Read more

In Memoriam: Sandra Mancinone Weiler

2023-05-10T19:42:34Z

My good friend and former client, Sandra Mancinone Weiler passed away over the weekend. It is difficult for me to think of any other client or person who has shown more courage and a will to overcome the obstacles that life throws at us than Sandra. Sandra was born with severe cerebral palsy. When I first met her in 1992, she could walk with assistance. Her speech was affected but she was understandable with patience and focus. Her entire body was wracked by the spasticity and involuntary movements that are characteristic of the disease. The common mistake that people may make when meeting someone with CP for the first time is the assumption that the condition affects cognition. Nothing could be farther from the truth. Sandra was brilliant. Before I met her, Sandra had already achieved great things. She excelled in high school. She went to college and got a graduate degree in Early Childhood .Education. She successfully completed her student teaching and obtained her teaching certificate. She opened and successfully ran a childcare center in her hometown, Wolcott Connecticut. But Sandra wanted to teach. School districts would look at her fantastic record and ignore it once they saw her. In 1992, Sandra applied for a kindergarten teaching position in her hometown, and was denied the position. She came to my law firm seeking help. In 1992, the Americans With Disabilities Act was two years old and definitely evolving, and I was very new to the field. I vividly remember my first impression of Sandra: I thought that it was very nice that this determined young woman was trying to be a teacher, but how could this severely disabled person possibly do that job. Many years later, I learned the name for my misperception: implicit bias. But I spent the next two hours listening to Sandra and her aide describe how she could not only capably do the job, but persuading me that she would be an extraordinary teacher. The state of Connecticut Bureau of Rehabilitative Service provided her with an aide who could assist her in overcoming her physical limitations. But there was no doubt, Sandra would be the teacher. The justness of Sandra’s cause inspired me to fight hard. I was willing to jump on the railroad tracks for her. The next day I drafted a Motion for a Preliminary Injunction to prevent the Town of Wolcott from hiring any more teachers until they gave Sandra a job. The case was placed on an expedited track and over the next six months, Sandra and I went to war against the Wolcott Board of Education. As a young lawyer, there could be nothing more exhilarating than giving 150% for such a worthwhile cause and deserving client. My law firm, on the other hand, had appropriate concerns about whether we would ever get compensated for our efforts. The litigation of the case was intense for both Sandra, her aide, and me. The Town, fearful of the risks and controversy that they feared would result from hiring Sandra, engaged in a scorched earth strategy intended to intimidate both her and me. They deposed her entire family looking for dirt. We fought and I lost patience when Sandra fell short of my expectations in the litigation. Her aide would scream at me for being insensitive. But I learned something lasting from that experience. Sandra Weiler was not just a cause, a saint to be put on a pedestal. She was a human being, and she had strengths and flaws just like everyone else. When I got angry or impatient because she was not the perfect witness, I treated her like any other client who needed to do better to win her case. it suddenly stuck me that I had stopped seeing Sandra as this frail disabled person in need of my sympathy. I stopped thinking about her disability at all. Sandra taught me not to see my clients as a cause where they had to measure up to my idealistic vision of a fight for justice; they were real people, living in an imperfect world. Through my education and experience I was fortunate to be able to level the playing field in the legal system and help them move forward. On the eve of trial, Wolcott wanted to try to settle the case. Judge Robert Chatigny had just been appointed to the federal bench and mediated the case. During the mediation, Wolcott expressed their concerns about taking on Sandra as a long-term teacher, but also expressed some very real desire to find a way for Sandra to move forward in a positive way. I will never forget how Judge Chatigny spoke to Sandra with incredible respect and allowed her to feel heard. After meeting with Judge Chatigny, Sandra, her aide, and I met to discuss what to do next. Sandra’s aide and I wanted to go forward and go to trial, but Sandra, quietly and firmly, stated that she wanted to settle the case. It was her decision, as it should have been. When I got back to my office, I spoke about the process that had led to the resolution of the case with Janet Arterton, who was a partner in my firm at the time, but would shortly become a federal judge. Janet (Judge Arterton) explained that people like Sandra Weiler are frequently not seen as who they really are, and are readily dismissed. The litigation and the mediation validated her and forced Wolcott and the system to take her seriously. Above all, Judge Chatigny’s empathy and respect towards Sandra enabled her to resolve the case and move forward. Wolcott was true to their word. The terms of the settlement opened up lifetime opportunities for Sandra. She became a long-term substitute teacher at Wolcott, an adjunct professor at Southern Connecticut State University, a lecturer for the state of Connecticut Board of Education about diversity issues, and a consultant. And, by the way, the settlement gave Sandra the money to purchase her home in Wolcott, where she lived for the next thirty years. My relationship with Sandra did not end after the case ended. I was her “lawyer” and I also became her friend. Sandra would have people working for her as aides. These people were supposed to help her and make her life easier. Invariably, their own “issues” changed the dynamic, and Sandra would become the caregiver to them. The worst example of this came several years later, when Sandra hired a relative as the director for her preschool and her personal aide. In 1998 – 1999, Sandra became ill and required hospitalizations on several occasions. Between 1997 – 1999, the relative stole over $32,000 from the business, and failed to pay Sandra’s taxes. This betrayal nearly destroyed her business and was a bitter lesson in trust. But Sandra came roaring back. The internet and email became a godsend to Sandra. She could communicate and express herself without impediment. She met a man over the internet who lived in Washington State. A friendship began that blossomed into one of the most amazing romances I have ever witnessed. Dwain Weiler was quadriplegic. These two severely handicapped people refused to let their physical limitations and three thousand miles prevent them from being together. They got married over the objections and concerns of both of their families. Sandra sent me pictures of their honeymoon, a Caribbean cruise, complete with their nurses and aides. Dwain was the love of Sandra’s life. But happily ever after was not in the cards. Dwain passed away all too soon. Sandra’s life entered another difficult phase. She battled depression and bladder cancer. She had to undergo fourteen surgeries. She could no longer teach, and as she became weaker, her speech and ability to walk deteriorated. In 2014, Sandra’s house went into foreclosure. Unfortunately, Sandra waited until after her house was in foreclosure before she reached out to me. Sandra’s first attorney had literally quit the practice of law and left the state during the middle of the foreclosure proceedings. Sandra got the money together to pay off the outstanding debt, but by the time that she sent the check, additional interest accrued. Although the amount was less than $1,000, a fraction of the amount due, Wells Fargo refused to accept the payment and went forward with the foreclosure. Sandra and I went to war again. What happened next was like a scene out of “It’s a Wonderful Life.” We got the press involved, and the community rallied around her, raising money to help her out. Wells Fargo, sensing a public relations nightmare, capitulated quickly. They withdrew the foreclosure and forgave the mortgage completely. Sandra now owned her house free and clear. Once again, Sandra rose from the ashes. She beat cancer, and in 2017 Sandra told me that she was in love again. She married Craig Osit in 2018 and seemed at peace. I attended their wedding. It was a joyous day. Sandra was diagnosed with cancer again in March, and it progressed quickly. By the time I learned about it, she was under hospice care and unable to speak. Still, I had witnessed her come back so many times I still waited for her to beat what life threw at her and rise up once more. But she and I would fight no more battles together. Sandra Weiler was a role model for people seeking to overcome severe disabilities about how to live a full and rich life. She was a lesson for the rest of us: Disabled people do not need pity, they need opportunities. She taught me what it was to face adversity and prejudice and never give up. Sandra was like Rocky in the First Rocky Movie: She might not win in the end, but she kept getting up, kept fighting, and went the distance. Rest in Peace, Sandra. Representing you was an honor and a privilege.

The cost of coming forward: What sexual assault survivors face when speaking out Women from all walks of life who come forward with accounts of sexual harassment or assault often face retaliation

2022-09-20T12:35:23Z

LaQuisha Anthony never imagined her darkest moment — a sexual assault she endured as a college freshman — would one day lead her to be a champion for fellow survivors.

Almost 20 years after the incident, Anthony testified in front of the Pennsylvania state senate in Harrisburg in 2019, sharing "pretty much all of the grueling details," as she put it, to make the case for bills that would give survivors more time to pursue cases.

Coming forward on the record — in front of state officials — was jarring, to say the least. But sharing her story was "necessary" so people could understand the ways sexual misconduct can impact survivors years later, she said.

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NWLC Leads Amicus Brief in Support of Survivor Justice | NWLC

2023-01-18T05:24:53Z

On March 23, 2021, NWLC, along with our law firm partner Linklaters LLP and 30 other organizations including the Women’s Law Project, submitted an amicus brief to the Second Circuit in support of Nicole Chase, a 27-year-old single mother and restaurant worker who was sexually assaulted by the restaurant’s owner. Our brief highlights the ways gender bias by law enforcement, including reliance on harmful sex-based stereotypes, not only leads to failures in sexual assault investigations but also compounds the trauma of sexual assault for survivors. Amici urge the appeals court to affirm the district court’s decision that the police response to Chase’s sexual assault was clearly motivated by gender bias and thus may violate the Constitution’s protections against sex discrimination. Ms. Chase is represented by Lewis Chimes, of the [nap_names id="FIRM-NAME-1"]. Click here to know more.

Developments in Labor and Employment Law in Connecticut

2022-09-20T12:35:35Z

COVID-19 led to a dramatic change in the meaning of work. Employers adjusted to a remote work force, and millions lost their jobs. COVID-19’s impact on the courts cannot be understated. After March 2020, there were no jury trials in Connecticut and only a few bench trials. Deadlines and statutes of limitation were suspended. Attorneys adjusted to remote depositions, mediations, judicial conferences, and court arguments. The long-term impact of this new world remains to be seen. But in the intermediate term, the courts and counsel will be dealing with a backlog of trials and new and unsettled legal issues arising from COVID-19.

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Court Denies Summary Judgment in Favor of Sexual Assault Victim After Arrest For Making a False Statement After She Makes Complaint to Police

2022-09-20T12:35:40Z

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NICOLE CHASE : Plaintiff, : : No. 3:18-cv-00683 (VLB) v. : : NODINE’S SMOKEHOUSE, INC., et : September 29, 2020 al. : Defendants. : : :

MEMORANDUM OF DECISION ON TOWN DEFENDANTS’ MOTION FOR SUMMARYJUDGMENT, DKT. 141 AND RELATED MOTIONS

Plaintiff Nicole Chase (“Plaintiff” or “Ms. Chase”) brings a twenty-count complaint against Nodine’s Smokehouse, Inc. (“NSI”), Calvin Nodine (“Mr. Nodine”), the Town of Canton, Connecticut, John Colangelo, a detective in the Canton Police Department, and Adam Gompper, a former Canton police officer (collectively the “Town Defendants”). [Dkt. 116 (Sec. Am. Compl.)]. Plaintiff alleges that she was sexually assaulted by Mr. Nodine while she worked at NSI. See generally id. ¶¶ 27-59. The following day, she reported the alleged sexual assault to the Canton Police Department, which eventually resulted in them charging her criminally with making a false statement, in violation of Conn. Gen. Stat. § 53a157b. See generally id. ¶¶ 60-176. At the conclusion of discovery, the Town Defendants moved for summary judgment on all claims. [Dkt. 141 (Town Defs. Mot. for Summ. J)]. For reasons set forth here, the Court DENIES the Town Defendants’ Motion for Summary Judgment, except with respect to the Town of Canton’s Motion for Summary Judgment as to Count 19 for intentional infliction of emotional distress.

Background

The following facts are taken from the Local Rule 56 statements of material facts and evidence cited by the parties. The facts are read in the light most favorable to the non-movant, Ms. Chase. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Plaintiff began working at NSI’s factory in September 2016 and started working at Nodine’s Restaurant in Canton, Connecticut when it opened two months later. [Dkt. 162 (NSI Answer to Sec. Am. Compl.) ¶¶ 27-28]. Calvin Nodine is a part owner of NSI and managed operations at the restaurant. [Dkt. 146 (Pl. Local R. 56(a)(2)) ¶ 4]. Plaintiff alleges that Mr. Nodine drank alcohol at work and made crude comments to her, including comments of a sexual nature. [Dkt.116 (Sec. Am. Compl.) ¶¶ 30, 36-38, 42]. Mr. Nodine and NSI generally deny these allegations. [Dkt.162 (NSI Answer to Sec. Am. Compl.) ¶¶ 30, 33-38]; [Dkt. 161 (Nodine Answer to Sec. Am. Compl.) ¶¶ 30, 36, 38, 42]. Since Plaintiff settled her claims against NSI and Mr. Nodine, the Court need not consider the factual basis for Plaintiff’s workplace-tort, harassment, and retaliation claims. With respect to Plaintiff’s claims against the Town Defendants for false arrest and malicious prosecution, Plaintiff argues that the only information relevant is evidence relied upon by the defendant-police officers when drafting the arrest warrant. [Dkt. 149 (Pl. Mem. in Opp’n) at 1](citing Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2dCir.1997); Rae v. County of Suffolk, 693 F.Supp.2d 217, 223–24 (E.D.N.Y. 2010)). The Court agrees. “Courts evaluating probable cause for an arrest must consider those facts available to the officer at the time of the arrest and immediately before it.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996), as amended (May 21, 1996) On May 7, 2017, Plaintiff and her mother went to the Canton police station to report that she was the victim of inappropriate sexual conduct by Mr. Nodine at the restaurant the prior evening. [Dkt. 150 Pl. Local R. 56(a)(2)) ¶¶ 3-6]. Plaintiff and her mother, who also worked at NSI, met with Officer Adam Gompper in the police station’s front lobby. [Id.]. Officer Gompper conducted the entire interview in the front lobby of the police department which was visible from the street through large pane glass windows. The Court viewed the video in its entirety, which Plaintiff and the Town Defendants both manually filed as an exhibit. [Dkt. 141 (Town Def. Exs.) Ex. E]; [Dkt. 150 (Pl. Exs.) Ex. 6](hereinafter 05/07/2019 video). The Town Defendants characterize Plaintiff’s statement to Officer Gompper as reporting sexual harassment. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶¶ 3-6]. Plaintiff never used the term “sexual harassment” during the meeting. Rather, her oral statement provided background, extraneous details about the tumultuous work environment at the Canton restaurant and a description of Mr. Nodine’s alleged misconduct. According to Plaintiff, at the start of the workday, Mr. Nodine asked her, “did you get laid last night?” [05/07/2019 video at 2:25-2:34]. Plaintiff claimed that Mr. Nodine drank beer throughout the day and was intoxicated. [Id. at 2:35-3:05]. She said at the end of the night, Mr. Nodine told the other employees that they were closing, but the dishwasher was still mopping the floor. [Id. at 4:465:42]. Plaintiff told Officer Gompper that, at the end of the night, Mr. Nodine hugged her and told her that she was the best worker, which she thought was a genuine compliment. [Id. at 4:13-4:45]. As the dishwasher, Kyle [Rouleau], was leaving and saying goodbye, Mr. Nodine allegedly exposed his genitals to Plaintiff and then pulled her into the bathroom and shut the door. [Id. at 6:30-7:06, 10:19-11:15]. Plaintiff told Officer Gompper that Mr. Nodine said, “I know you must not get it at home so suck it, or something.” [Id. at 7:26-7:35]. Plaintiff stated she exited the bathroom once she heard Kyle leave, at which point Mr. Nodine struck his head on the wall because he was intoxicated. [Id. at 7:48-8:16]. Plaintiff stood to demonstrate her proximity to Mr. Nodine and their movements. [Id. at 6:30-8:40]. During this initial meeting, Plaintiff was ambivalent about how she wanted to proceed. She expressed that she “… just wanted a complaint because I know he’s a rich man, and I can’t do shit about it, and I have no proof…” [Id. at 7:38-7:45]. She later stated that she was “going up against a millionaire.” [Id. at 13:02-13:06]. Officer Gompper told her that it “didn’t make it right” and explained the investigative process to Plaintiff. [Id. at 13:09-13:38]. Officer Gompper told Plaintiff that he “doesn’t think it reaches the level of a sex assault...” [Id. at 13:38-13:41]. Officer Gompper told her that she could come back and make a formal report later. [Id. at 18:21-18:48, 21:48-22:40]. He suggested that she could “… also try to tell him how he made you feel that way, like I don’t need that stuff, I don’t appreciate that, don’t talk to me that way.” [Id. at 22:5523:01]. At the conclusion of the meeting, Officer Gompper gave her a victim’s services card. [Id. at 25:36-26:31]. Officer Gompper told her that if she wanted to make a complaint about the incident, she would have to wait until he returned to duty on Thursday, which was May 11, 2017. [Id. at 26:32-28:19]. Ms. Chase returned to the police station sometime before May 11, 2017 and Sergeant Mark J. Penney told her that she would need to speak with Officer Gompper. [Dkt. 141-11 (Town Defs. Exs), Ex. H (Penney Depo.) 48:20-49:12]. Sergeant Penney testified that he could not recall the specifics of the conversation except that he referred Plaintiff to her attorney because she was seeking legal advice about how to proceed with her employment at NSI. [Id. at 49:13-49:20, 51:1251:23]. Plaintiff testified that Sergeant Penney suggested that she retain an attorney. [Dkt. 150-3 (Pl. Exs) Ex 2, (Chase Depo.) 67:14-67:17]. During Plaintiff’s subsequent interview with Detective Colangelo, discussed infra, Plaintiff told the detective that Sergeant Penney told Plaintiff, “… I strongly, now I strongly suggest- you go and go talk to a lawyer,” … “I was like, okay, so if he’s saying, like, if this is a cop saying I should strongly go to a lawyer, so, I should go.” [Dkt. 141 (Town Defs. Exs) Ex. O, (Chase interview, 06/21/2017) at 44:00-44:44]. Plaintiff returned to the police station on May 11^th to lodge a formal complaint with Officer Gompper against Mr. Nodine. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶¶ 42-45]. Alexandria Archer, another NSI employee, accompanied Plaintiff to the police station and provided a sworn witness statement prior to Plaintiff’s interview. [Dkt. 141 (Town Defs. Local R. 56(a)(1) ¶¶ 44, 48, 51]; [Dkt. 141-14 (Town Defs. Exs.), Ex. K (A. Archer Statement, 05/11/2017)]. In her short statement, Ms. Archer states that she observed Mr. Nodine place his hand on Plaintiff’s buttocks the day of the alleged assault, that he followed her around, and that she overheard him making sexual jokes/comments directed towards or at Plaintiff. [Id.]. Plaintiff was not present for Ms. Archer’s interview. [Dkt. 150 (Pl. Exs.) Ex. 1, (Gompper Depo) 134:19-134:25]. In Plaintiff’s written statement, she repeated her earlier statement about Mr. Nodine’s alleged sexualized comments towards her on May 6^th. [Dkt. 141-13 (Town Defs. Exs.), Ex. J (Chase Statement, 05/11/2017)]. She also alleges that Mr. Nodine placed his hand on her buttocks earlier that day. [Id.]. She repeated her earlier statement to Officer Gommper that, once other employees were leaving for the evening, Mr. Nodine hugged her and then pulled her into the bathroom where he exposed his erect penis to her. [Id.] She alleges that he said, “suck it cause I know you don’t get it at home,” and that “as he was saying this he grabbed his testicles and penis and lifted it up towards me.” [Id.]. She claimed to have pushed Mr. Nodine, such that he struck his head, and she unlocked the door and walked out. [Id.]. According to her statement, she claimed that Mr. Nodine made additional sexualized comments the following day. [Id.]. The parties dispute whether Officer Gompper administered an oath to either Ms. Archer or Ms. Chase. [Dkt. 150 (Pl. Local R. 56(a)(2)) ¶¶ 47, 49-50]. Just above the witness/victim’s signature block on the Canton Police Department’s Voluntary Statement Form, DPS-633-C (Rev. 11/05/13) it states “By affixing my signature to this statement, I acknowledge that I have read it and / or have had it read to me and it is true to the best of my knowledge & belief.” Nothing in the form states that the witness is swearing that the statement is complete, nor is the witness affirming that they took an oath before making the statement, i.e. an oath to tell the whole truth. Comparatively, the police officer’s signature block states that they administered the victim or witness’s oath. [Dkt. 141-13 (Town Defs. Exs.) Ex. J., (Chase Statement, 05/11/2017)]. Kyle Rouleau, the dishwasher at the restaurant, provided a sworn written statement the following day to Officer Gompper. [Dkt. 141-16 (Town Defs. Exs.), Ex. M (Rouleau Statement, 05/12/2017)]. Like Ms. Archer, Mr. Rouleau stated that he observed Mr. Nodine following Ms. Chase around on May 6^th. [Id]. A reasonable jury could find that his statement to police corroborated Ms. Chase’s initial oral statement to Officer Gompper in the police station lobby. Like Plaintiff, he swore that he called out to Mr. Nodine and Plaintiff as he was leaving the restaurant for the evening and then he heard a bathroom door slam. [Id.]. He also alleged that Mr. Nodine makes crude remarks and provided additional examples unrelated to Ms. Chase. [Id.]. There are no video recordings of Ms. Chase, Mr. Rouleau, or Ms. Archer making their written statements. Thereafter, on May 18, 2017, Canton Detective John Colangelo, assisted by Officer Gompper, interviewed Calvin Nodine in the presence of his attorney, David Moraghan. [Dkt. 150-21 (Pl. Exs.) Ex. 18, (Gompper Police Report, 05/19/2017)]. The Court has reviewed the video recording of this interview in its entirety from both vantage points. [Dkt. 141 (Town Defs. Exs.) Ex. O, 05/18/2017 video)]; [Dkt. 150 (Pl. Exs.) 20](same) (hereinafter 05/18/2017 video). The discussion is markedly different than Officer Gompper’s meeting with Plaintiff about two weeks prior. The interview occurs in a private room. [05/18/2017 video, 0:52-3:50]. It is fraternal and opens with a jovial conversation between Detective Colangelo and Attorney Moraghan regarding mutual acquaintances golfing and a private golf club. [Id.]. Mr. Nodine confirmed that on the day in question, he was at the restaurant with Plaintiff, Ms. Archer, and Mr. Rouleau. [Id. at 9:02-9:10]. Mr. Nodine stated that he was in the bathroom when Mr. Rouleau said goodbye and departed for the evening. [Id. at 12:29-13:12]. Detective Colangelo then asked Mr. Nodine whether anyone was in the bathroom with him; Mr. Nodine said no. [Id. at 13:01-13:07.]. That was untrue. Detective Colangelo then confronted Mr. Nodine with his summary of Plaintiff’s statement that Mr. Nodine pulled her into the bathroom and that he exposed himself to her. [Id. at 14:12-15:09]. Mr. Nodine responded that her allegation was “bullshit.” [Id. at 15:10-15:12]. Detective Colangelo confronted Mr. Nodine with the fact that Mr. Rouleau’s statement corroborated that Ms. Chase was likely still in the restaurant when Mr. Rouleau said goodbye that evening because her backpack was there. [Id. at 15:25-16:23]. In response, Mr. Nodine volunteers that “she could have been out front having a cigarette, I don’t know where she was.” [Id. at 16:21-16:29]. That statement was also false. In response to Detective Colangelo’s next question, Mr. Nodine speculates that Ms. Chase made a false accusation because she is looking for money, to which Detective Colangelo responds that “that’s one of the angles I’m looking at.” After that, Detective Colangelo then suggests that: but if you were fooling around with Nicky consensually, that’s a whole different story, and it’s a tough question but it might open up why she’s already gotten an attorney, and come down here, and all that kind of stuff. Like I said, I’m not going out, calling your wife, saying- guys do what guys do, trust me. I mean, you know, enough cops get divorced because of it and all that kind of stuff, but, if that’s the thing that was happening, that’s, that, maybe starts to explain some of this stuff. [Id. at 17:03-17:32]. In response, Attorney Moraghan requested the opportunity to speak privately with Mr. Nodine and they did so for about six minutes. [Id. at 17:34-24:18]. Before resuming questioning, Detective Colangelo suggested again that Plaintiff had a financial motivation. [Id. at 25:09-25:28, 26:15-27:21]. Then, Mr. Nodine changed his story to state that Ms. Chase pulled him into the bathroom, lowered his pants, and that she spontaneously performed fellatio on him. [Id. at 27:4028:10]. Mr. Nodine claimed that he was surprised by Ms. Chase’s spontaneous act, denied that there was any other contact with Ms. Chase or any other employees, and claimed they were not previously flirting. [Id. at 30:00-31:11]. Detective Colangelo never asked Mr. Nodine whether he struck his head or asked to see whether he had an injury. When Detective Colangelo pointed out that Mr. Nodine’s story changed, he replied that he was “trying to protect himself.” [Id. at 28:55-29:08]. Detective Colangelo then commiserates with Mr. Nodine and his attorney about being the subject of a potential civil action, citing an example of a citizen who attempted unsuccessfully to find a lawyer to assert a claim of police brutality against Detective Colangelo. [Id. at 28:18-29:55](“everyone wants a slice of someone else’s pie”). About ten minutes later, Detective Colangelo initiates discussion about polygraph tests. He states that he cannot ask Ms. Chase to take a polygraph test, which he characterizes as a “problem with sex assault cases.” [Id. at 38:25-39:09]. Later Detective Colangelo states that, “I’d ask her, but I can’t, legally. I want to know what happened- and, and you know that there’s a civil aspect to this, which is none of my- dealings with, I don’t care, I’m not part of it- well, I care if she rips somebody off, of course.” [Id. at 41:35-41:55]. After Attorney Moraghan and Mr. Nodine speak privately again, Mr. Nodine asks for a courtesy notice if a warrant is issued to avoid having a SWAT team deployed, which Detective Colangelo agrees to. [Id. at 45:12-46:12]. Detective Colangelo goes on to state that he could have written a warrant already, but that he was trying to find out the truth and who “…seeing who the victim may really be…” [Id. at 46:18-46:40]. The following exchange occurred next: DETECTIVE COLANGELO: …I’ll tell you my theory behind it is, if you pass a polygraph, she can be brought in and now she can be really [unintelligible]. It gives us leverage, to see if the story changes. And that’s a big thing. And I had a case, and it was a sex assault complaint, I could prove pretty substantially that it was a fake. And she put the whole town on this girl’s - you know - it was a tactic. She put the whole town on - you know how these things can be, can go - once I knew it was a fake complaint, in my - in my writings, in what I wrote to the state’s attorney, she’s no longer a victim of sex assault. Because I’ve proven it’s not real. Now she’s a suspect in a false statement investigation. In a false police report. Now she can be asked if she can take a polygraph. Completely different animal. So, we switched the case. That’s, all- NODINE’S ATTORNEY: Mm-hmm. DETECTIVE COLANGELO: Okay. And that was okay by the state’s attorney at the time. That’s probably going back seven or eight years, but and it’s a different supervising state’s attorney up there, with Roseanne Wagner, and Carl and Joe, and who’s the D.A.? NODINE’S ATTORNEY: [Unintelligible.] DETECTIVE COLANGELO: Do you know Carl? He’s a good guy. Um, so. So, that’s where we sit. [Id. at 47:10-48:30]. Detective Colangelo told Mr. Nodine that “…so do I give you a bit of a little, uh, a base on balls [i.e. a walk] on that first, like, false statement? Yeah, kind of, because I know it’s hard. I mean, some people come up, like, [mimics a crying voice] oh, how could I let this happen, [normal voice] you know, [crying voice] we were having an affair, [normal voice] and, and that’s fine, but I don’t know you yet, and like I said, you don’t know me. So, and, and you got a lot to lose. And, I guess, some guys want to lose that….” [Id. at 56:46-57:10]. Attorney Moraghan indicated that a former colleague vouched that Detective Colangelo is “absolutely honorable, and absolutely trustworthy.” [Id. at 59:49-1:00:10]. After telling Mr. Nodine he will go easy on him, Detective Colangelo asks Attorney Moraghan to invite him to his private golf club stating: That’s very nice of Billy. I did tell him that we were going to work on a case, and I always call it together, because we’re on the same path- I’m like - because he’s talking about golf, he plays at the same country club, well, maybe you could invite me up. Because I only get invited up once a year, by my father, so. [Laughter]. [Id. at 1:00:37-1:00:59]. After asking Attorney Moraghan to invite him to his private club, Detective Colangelo then assured Mr. Nodine that this case “…doesn’t have to be pushed through, you’re not a menace to society- know, that’s not, you’re not the Green River Killer type thing where we gotta, we’re gonna try to follow every lead, if we don’t, well, we’re remiss in our duties.” [Id. at 1:01:47-1:02:03]. The meeting ended seven minutes later in the same fraternal tone in which it began. The parties agree that on June 14, 2017, Mr. Nodine called the Canton Police Department and spoke to Detective Colangelo with Officer Gompper also present for the call. Mr. Nodine stated that he had taken a private polygraph test but did not pass because he had not taken his medication. He said he had a second polygraph test scheduled for Monday, June 19, 2017. Attorney Moraghan faxed a letter to Detective Colangelo stating that Mr. Nodine refused to undertake a police polygraph. [Dkt. 141 (Town Defs. Local R. 56(a)(1) ¶¶ 71-72]. Detective Colangelo testified that he did not conduct any additional investigation while he awaited a decision about whether Mr. Nodine would undergo a polygraph. [Dkt. 150-22 (Pl. Exs.) Ex. 19, (Colangelo Depo.) 148:23-149:08]. Detective Colangelo initiated an interview of Ms. Chase two days after learning of Mr. Nodine’s refusal to undergo a police polygraph. The Court reviewed the video of this interview from both vantage points. [Dkt. 141 (Town Defs. Exs) Ex. O, (Chase interview, 06/21/2017)]. As was the case with Ms. Chase’s initial police interview and Mr. Nodine’s interview, an oath was not administered. At the beginning of the interview, Ms. Chase discussed workplace dynamics at the restaurant. [Id. at 1:28-13:14.]. Ms. Chase told Detective Colangelo that Mr. Nodine told people that they had sex and that Ms. Chase performed oral sex on him. [Id. at 13:14-14:10]. Ms. Chase neither affirmed nor denied that she performed oral sex on Mr. Nodine and Detective Colangelo did not ask whether Mr. Nodine’s statements to others were true. Ms. Chase explained she did not initially press charges because she wanted to see whether Mr. Nodine would apologize and if he was so intoxicated, he did not remember the incident. She pressed charges after Mr. Nodine’s stepson, who formerly worked at NSI, encouraged her to do so and Mr. Nodine allegedly made another sexualized comment to her. [Id. at. 19:01-27:05]. Upon Detective Colangelo’s request, Ms. Chase retrieved her cell phone to provide him with employees’ phone numbers and offered him additional names and then showed him corroborating text messages exchanged between her and Mr. Nodine’s stepson. [Id. at 29:49-32:45, 32:21-45:20]. Detective Colangelo asked whether her attorney knew she was speaking with him and confirmed that they were filing a civil suit on her behalf. [Id. at 34:24-34:44]. He also asked Ms. Chase when she first talked to a lawyer and she indicated it was a week or two after the incident at what she understood to be the suggestion of another Canton police officer. [Id. at 40:0240:44, 44:00-44:44]. Detective Colangelo then told Ms. Chase that he interviewed Mr. Nodine. [Id. at 53:10-53:15]. He asked her, “whether there were any relations between you and Calvin that were consensual prior to that Saturday,” which she denied. [Id. at 55:0955:17]. Detective Colangelo then falsely stated that Mr. Nodine took two polygraphs and then asked Ms. Chase: “Is there anything that would have come out, that would come out as true, that, that you may have left out? Truthful from him, that you may have forgotten about? Because I don’t want to make you look bad in the long run, that, that’s the last thing I want to do.” [Id. at 57:53-59:31]. Ms. Chase states that Mr. Nodine overheard her discussing her sex life with Ms. Archer and she denied flirting with Mr. Nodine. [Id. at 59:31-1:00:20]. Detective Colangelo then asked her: So, I need you to think hard. Is there anything that you think will come up - or has come up, in this investigation that I should know about? Because I don’t want his attorney to read an arrest warrant application and go, okay, there’s some time and then this goes to court, we get put on the stand and the detectives are asked, did you know about this or not?... That’s why I’m asking a very open question…I’m not asking for something specific. [Id. at 1:01:09-1:01:40]. After Ms. Chase stated that Mr. Nodine tried to kiss her, Detective Colangelo followed up with, “[y]ou understand how important it is, like, if you have any kind of consensual, physical contact with him, that night or prior - it’s very important that that the truth is known to us.” [Id. at 1:03:52-1:04:00]. She then became very emotional and stated that she was “trying to get herself to this point” and begins crying and stated that there was never anything consensual. She stated that that “it was just him, he pulled me in there and dropped them, as soon as he told me to do it I just did it” and confirmed that she “gave” Mr. Nodine oral sex. [Id. at 1:04:001:04:57]. She then stated: But everything else is completely true. I know that story’s a lie but I wanted to come back and actually tell that but I was afraid it would go against my story. And I just don’t want my boyfriend to know, I don’t want people to ask me why I did it when I didn’t want to do it, but - I was just so scared. I don’t even know what happened. I couldn’t even tell my own mom. [Id. at 1:05:00-1:05:28]. She told Detective Colangelo that she was suicidal. [Id. at 1:05:29-1:05:30]. Later during the interview, Plaintiff told Detective Colangelo that she was struggling with her emotions relative to the alleged assault: “I’ve been trying to hide it and all the emotions from everybody because they all don’t understand why I’m so stressed out, well, like, nothing happened, so - but, in my head, like, if you only knew.” [Id. at 1:24:49-1:25:00]. Detective Colangelo asked if she told her lawyer about the oral sex, she said “No. No, that’s the problem, because I, I, I didn’t want to come to you guys, you know, without my lawyer, or make my lawyer’s case look bad, you know, because I didn’t want to admit to doing something I didn’t want to do.” [Id. at 1:05:401:05:52]. Detective Colangelo then reviewed Ms. Chase’s original complaint with her and she told him that “everything is true except the one part she didn’t want people to know,” and she explained her movements through the restaurant leading up to the alleged assault. [Id. at 1:07:58-1:18:29]. She explained that “I stayed silent, not because I didn’t want Kyle to know, I stayed silent because I didn’t know what to do, I thought that if I just did it and got it over with I could keep my job, but the next, when I realized, I called Jeremy, because I didn’t want that to ever happen to me again…. And I was hoping it was just because he was so, so intoxicated that day.” [Id. at 1:13:56-1:14:17]. She described the alleged assault in the bathroom in detail, including the color of Mr. Nodine’s boxers and that his wife had tried to call him at least six times while they were in the men’s bathroom to warn him about a DUI checkpoint. [Id. at 1:15:57-1:19:10]. She said it could have been ten to fifteen minutes and Mr. Nodine had difficulty maintaining an erection and was bashing his genitals into her. [Id. at 1:18:58-1:19:09]. Detective Colangelo asked if she “wanted to give a statement that changes this [May 11, 2017] statement.” [Id. at 1:20:56-1:20:59]. Ms. Chase said “yea, but that screws up my whole civil case, right?” [Id. at 1:21:00-1:21:05]. After explaining that he was not a lawyer, and that it was completely up to her, she stated “I want to, because I want the truth to be known, but I don’t want my mom, my family, my boyfriend and all of my friends to think that I was lying because I didn’t want to tell them.” [Id. at 1:21:06-1:21:59]. Plaintiff was still crying intermittently. After discussing it further with Detective Colangelo, Ms. Chase stated “I mean, I want to tell the truth, so, I don’t know-” to which Detective Colangelo replied, “Well, you’ve told the truth, and you know, there’s, you know, we’ve sat in here and you’ve told me-all my conversations in here are recorded, just like any other P.D., but I could give you an opportunity if you want to put it in writing.” [Id. at 1:23:12-1:23:35]. Detective Colangelo and Ms. Chase then discussed amending her statement, with Detective Colangelo explaining that a false statement under oath is a crime. [Id. at 1:23:35-1:25:25]. Detective Colangelo stated that the “letter of that statement, it’s not true” and “…the problem with these things, when they’re not...true, is they make our jobs way harder. And that’s what they really try to avoid, is people, you know, using us as, you know, the hammer to spike, type of thing.” [Id. at 1:25:28-1:25:54]. The interview ended with Detective Colangelo telling Ms. Chase she could consult her attorney about whether she would amend her statement; adding that either decision would be fine, but he wanted to know either way because he would like to move forward. [Id. at 1:27:47-1:28:20]. Detective Colangelo told her that he was going to be on vacation the following week. [Id.] A few hours after Ms. Chase’s second interview concluded, Officer Gompper prepared a six-page police report. [Dkt. 150-29, (Pl. Exs.), Ex. 25, (06/21/2017, Police Report)]. At the end of the report, Officer Gompper concluded that there was not probable cause to arrest Mr. Nodine because: (1) Ms. Chase had a chance to call for help, (2) she spent 15 minutes performing oral sex on Mr. Nodine, (3) Ms. Chase said “Nodine was hard initially but then wasn't and he was then "hard" again and he ejaculated in her mouth” (quotations in original), (4) Ms. Chase said that Mr. Nodine’s wife called his cell phone at least six times while they were in the bathroom, and (5) Ms. Chase provided a false statement. [Id.]. The report concludes that “An arrest warrant will be applied for the VICTIM, AKA Nicole Chase (DOB [redacted]), for the charge of 53a-157b, False Statement.” Id. (capitalization in original). On July 7, 2017, Detective Colangelo signed the affidavit in support of an arrest warrant for Ms. Chase, charging her with making a False Statement in the Second Degree. [Dkt. 141-19 (Town Defs. Exs) Ex. P, (Colangelo Aff. in Supp for App. for Arrest Warrant]. The warrant generally summarizes the police investigation from May 6^th through June 21, 2017, but a jury could reasonably perceive that it omitted salient details:

Chase said that she was being sexually harassed by the owner and her boss, Calvin Nodine. However, Ms. Chase never used that term. ¶ 3.

The affidavit states “Chase made a comment to Officer Gompper about Nodine being a rich man during this part of her story.” ¶ 8. This sentence is misleading because Ms. Chase was clear that she felt powerless because she perceived him to be a rich man. Thus, she made clear his wealth discouraged her from, rather than motivated her to, lodge her complaint.

The affidavit omits that Ms. Chase stated that Sergeant Penney’s advice was the impetus for her decision to obtain legal representation.

The affidavit omits that Canton Police interviewed Mr. Rouleau and Ms. Archer, the only other two employees at NSI that night and both independently corroborated aspects of Ms. Chase’s account.

The affidavit states that Mr. Nodine initially denied that anything happened between him and Ms. Chase and that after speaking with his attorney, Mr. Nodine explained that Ms. Chase had performed oral sex on him and it was consensual. The affidavit omits other false statements made by Mr. Nodine. It omits that Mr. Nodine falsely denied knowing where Ms. Chase was when Mr. Rouleau said goodbye, when he knew she was in the bathroom with him. The paragraph further omits Mr. Nodine’s explanation of how Ms. Chase spontaneously initiated oral sex with him, without any prior flirtation or contact with him. ¶ 16.

The affidavit omits that Mr. Nodine called Canton Police to volunteer that he failed a polygraph test and his attorney’s letter that he refused to undergo a police polygraph test.

The affidavit states that she said she stayed quiet because “she didn’t want Kyle [Rouleau] to know and because she didn’t know what to do. She said she did it to get it over with.” However, Ms. Chase explicitly stated that she did not stay quiet so that Mr. Rouleau did not hear her. ¶ 26.

The affidavit states that “as of 7/7/2017, Chase has not called to speak to Affiant Colangelo of Officer Gommper” (sic). However, the affidavit omits that Detective Colangelo told Ms. Chase that he was going to be on vacation the week following her June 21, 2017 interview. ¶ 33.

The affidavit omits that Ms. Chase repeatedly told Detective Colangelo that she wanted to tell the truth, but she was uncertain about how to proceed.

The warrant application was received on July 11, 2017 by the State’s Attorney’s Office. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶ 94]. Connecticut Superior Court Judge Tammy Nguyen signed the arrest warrant on September 6, 2017. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶ 105]. Detective Colangelo then informed Ms. Chase of the active arrest warrant and she presented to the police station, was processed, charged and released on a $2,500 non-surety bond on September 8, 2017. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶ 108]; [Dkt. 150-37 (Pl. Exs.) Ex. 35 (09/08/2017, Police Report)]. Ms. Chase testified that, after her June 21, 2017 interview with Detective Colangelo, she returned to the police station with the copies of the text messages he had requested. She testified that she told the dispatcher that she was there to revise her statement, but the dispatcher told her that Detective Colangelo was busy and that he would call her if he needed her. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶¶ 95-97]. On July 25, 2017, Ms. Chase sent an email to Detective Colangelo, titled “Revise Statement/Nicole Chase” to tell him that she came to the police station two weeks earlier to provide him the requested text messages and to revise her statement. [Dkt. 141-24 (Town Def. Exs.), Ex. U (07/25/2017 Chase email to Colangelo)]. After Detective Colangelo did not reply, Ms. Chase emailed him again on July 31, 2017, this time attaching a supplemental statement, adding the details that she described in her June 21, 2017 interview. [Dkt. 141-24 (Town Def. Exs.), Ex. U (07/31/2017 Chase email to Colangelo)]. Detective Colangelo did not respond until August 10, 2017 and indicated that he did not know she wanted to revise her statement and that he had “already documented the change in your recount of the incident and had already sent the case to court for review. It is still with the States Attorney's-office and I should hopefully-have some direction of the next step shortly.” [Dkt. 141-24 (Town Def. Exs.), Ex. U (08/10/2017 Colangelo email to Chase)]. Detective Colangelo’s email is misleading because it provided Ms. Chase with the false impression that the police were pursuing criminal charges against Mr. Nodine, not that she was the subject of a false statement investigation. Detective Colangelo never contacted Ms. Chase to see whether she wanted to change her statement before applying for the warrant, he never updated his affidavit in support of the arrest warrant to reflect her revised statement and the corroborating text messages, and he never forwarded any additional information to the prosecutor. [Dkt. 141 (Town Defs. Local R. 56(a)(1)) ¶ 102]. The parties dispute how the criminal charges lodged against Plaintiff were resolved. Plaintiff had an initial appearance on October 8, 2017 and the prosecutor moved for a continuance, then nolle prosequi on November 8, 2017. The Town Defendants submit the affidavit of Senior Assistant State’s Attorney Robert Diaz which avers that “it was agreed that Miss Chase would receive a diversionary marking or continuance of her criminal case for eight weeks' time and, if she did not have any new arrests during that time period, a nolle would be entered.” [Dkt. 141-27 (Town Def. Exs.), Ex. U (Diaz Aff.) ¶ 5]. Attorney John Ritson, who represented Plaintiff in the criminal proceeding, averred that he told Assistant State’s Attorney Jesse Giddings that Ms. Chase’s arrest was “outrageous,” and that ASA Giddings stated that “the case would be continued, and if nothing else happened, the state would enter a nolle prosequi. I did not object to the continuance. There was no negotiations or conditions imposed. The continuance was unilateral by the state. There was no agreement between Chase and the State.” [Dkt. 150-13 (Pl. Exs.) Ex. 10 (Ritson Aff.) ¶¶ 4-6]. The transcript of the November 8, 2017 proceeding before Judge Nguyen states only: Atty. Diaz: Nicole Chase on that same docket on line 8 was diverted. There been no further problems. Enter a nolle for Miss Chase on line 8. The Court: Nolle noted. [Dkt. 141-28 (Town Defs. Exs.) Ex. Y, (State v. Nicole Chase, No. H14H-CR170692973-S, 11/08/2017 Tr.)].

Legal Standard

Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481, 2004 WL 2472280, at *4 (D. Conn. Oct. 20, 2004) (“At the summary judgment stage of the proceeding, [the moving party is] required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.”) (citing Gottlieb, 84 F.3d at 518); Martinez v. Conn. State Library, 817 F. Supp. 2d 28, 37 (D. Conn. 2011). Put another way, “[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation marks and citation omitted). A party who opposes summary judgment “cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726–27 (2d Cir. 2010).

Parties Arguments

A. Town Defendants’ Arguments and Plaintiff’s Opposition

First, the Town Defendants argue that Plaintiff’s false arrest claims and malicious prosecution claims (Counts 14-17) fail because her arrest was supported by probable cause and Detective Colangelo and Officer Gompper acted without malice. [Dkt. 141-1 (Town Defs. Mem. in Supp. Mot. for Summ. J) at 11-21]. Next, the Town Defendants argue that Plaintiff cannot establish that the nolle of the criminal charges constitutes a favorable termination for purposes of Plaintiff’s malicious prosecution claims. [Id. at 21-24]. Third, the Town Defendants move to dismiss Plaintiff’s Equal Protection Claim because they argue there is a lack of any evidence to suggest that either of the defendant officers denied the plaintiff police services on the basis of any discriminatory animus towards her on account of her sex or any other improper basis. [Id. at 24-32]. The Town Defendants argue that, even if Plaintiff were to prevail on her constitutional claims, they are subject to qualified immunity because the officers reasonably believed that Ms. Chase’s omission of the oral sex act from her statements constituted probable cause. [Id. at 32-33]. The Town Defendants argue that it is not clearly established that “because an individual makes a complaint of workplace sexual harassment and a later claim of unwanted sexual contact, that the individual cannot be arrested and prosecuted for making a false statement to law enforcement officers upon a finding of probable cause.” [Id. at 34]. Finally, the Town Defendants argue that the officers’ conduct is not extreme and outrageous for purposes of Plaintiff’s intentional infliction of emotional distress claim, the Town is immune from intentional torts, and the Town is not liable for indemnification because the officers themselves are not liable. [Id. at 35-38]. Plaintiff argues that she can overcome the presumption of probable cause that attaches when a judge authorizes a warrant because she can show that the Defendants acted knowingly, recklessly or with reckless disregard for the truth by making false or misleading statements, and/or omitting material information that was necessary to the finding of probable cause. [Dkt. 149 (Pl Mem. in Opp’n) at 420]. Plaintiff also argues that the arrest warrant was so lacking in indicia of probable cause that no reasonably trained officer would rely upon it. [Id. at 4-12]. As to the malice component, Plaintiff argues that the Defendants failed to follow basic police practices employed when police interview a sexual assault victim and investigate their complaint. [Id. at 20-24]. Plaintiff also argues that Officer Gompper and Detective Colangelo’s behavior during the investigation reveals direct evidence of favoritism, gender bias, bad faith, and malice. [Id. at 24-32]. Next, Plaintiff argues that the Defendants do not satisfy their burden of proving the elements of qualified immunity because their actions were objectively unreasonable. [Id. at 32-36]. Plaintiff argues, inter alia, that Connecticut common law governmental immunity is inapplicable because she establishes sufficient evidence of malice. [Id. at 36-37]. As to the favorable termination element, Plaintiff argues that the Town Defendants’ reliance on Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018) is misplaced as the Second Circuit has held that a nolle entered by a prosecutor in Connecticut generally constitutes a favorable termination. Id. at 37 (citing to Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017). Plaintiff argues that her Equal Protection Clause claim based on the alleged discriminatory enforcement of law because of her gender should survive summary judgment because Officer Gompper and Detective Colangelo applied the police department’s facially neutral policies in a discriminatory manner, citing specifically to Detective Colangelo’s interview of Mr. Nodine. [Id. at 41-48]. The Plaintiff further cites Detective Colangelo’s testimony in an internal affairs investigation into the handling of Ms. Chase’s complaint, which occurred after the nolle. [Id. at 47-48]. Plaintiff omitted discussion of her intentional infliction of emotional distress claim in her opposition brief.

B. Plaintff’s false arrest and malicious prosecution claims

a. Probable Cause

The Fourth Amendment protects individuals against “unreasonable searches and seizures.” U.S. Const. amend. IV. A plaintiff seeking to recover for false arrest under 42 U.S.C. § 1983 must establish that “(1) the defendant intentionally arrested him or had him arrested, (2) the plaintiff was aware of the arrest, (3) there was no consent to the arrest, and (4) the arrest was not supported by probable cause.” Weinstock v. Wilk, 296 F. Supp. 2d 241, 246 (D. Conn. 2003). The only element that the Town Defendants contest is the fourth: they argue that they had probable cause. The Town Defendants also argue probable cause as a defense on the malicious prosecution claim. To prevail on a § 1983 claim for malicious prosecution, a plaintiff must show “a seizure or other perversion of proper legal procedures implicating his personal liberty and privacy interests under the Fourth Amendment,” as well as that “criminal proceedings were initiated or continued against him, with malice and without probable cause, and were terminated in his favor.” Lanning, 908 F.3d at 24 (citations and quotations omitted). “[T]he existence of probable cause is a complete defense to a claim alleging false arrest or malicious prosecution.” Garcia v. Gasparri, 193 F. Supp. 2d 445, 449 (D. Conn. 2002); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (“Because probable cause to arrest constitutes justification, there can be no claim for false arrest where the arresting officer had probable cause to arrest the plaintiff.”) Where, as in this case, a neutral magistrate issues an arrest warrant, there is a “presumption that it was objectively reasonable for the officers to believe that there was probable cause.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d. Cir. 1991); see Mara v. Rilling, 921 F.3d 48,73 (2d Cir. 2019) (same). “[A] plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden.” Golino, 950 F.2d at 870. “To urge otherwise, a plaintiff must show ... that defendants misled a judicial officer into finding probable cause by knowingly or recklessly including material misstatements in, or omitting material information from, the warrant affidavits.” Mara, 921 F.3d at 73; see Golino, 950 F.2d at 870. “Recklessness may be inferred where the omitted information was critical to the probable cause determination.” Golino, 950 F.2d at 871. To determine whether the information was material “[u]nder the [corrected affidavits] doctrine, [the Court] look[s] to the hypothetical contents of a “corrected” application to determine whether a proper warrant application, based on existing facts known to the applicant, would still have been sufficient to support arguable probable cause to make the arrest as a matter of law.” Escalera, 361 F.3d at 743– 44. Arguable probable cause exists “if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Figueroa v. Mazza, 825 F.3d 89, 100 (citations omitted). Where, as here, a plaintiff argues that “material omissions infected the issuing magistrate's probable cause determination,” “the materiality of these omissions presents a mixed question of fact and law.” Walczyk v. Rio, 496 F.3d 139, 157-58 (2d. Cir. 2007) (citing Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994)). “The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law. But the weight that a neutral magistrate would likely have given such information is a question for the finder of fact, so that summary judgment is inappropriate in doubtful cases.” Velardi, 40 F.3d at 574 (citing Golino, 950 F.2d at 871), quoted in McColley v. County of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014). Additionally, a police officer is not entitled to absolute reliance on a neutral detached magistrate’s determination of probable cause. “‘Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably welltrained officer would have known that the search was illegal despite the magistrate's authorization.’ The analogous question in this case is whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Malley v. Briggs, 475 U.S. 335, 345 (1986)(quoting U.S. v. Leon, 468 U.S. 897, 922, n. 23 (1984)). Under Connecticut law, a person is guilty of making a false statement, a Class A misdemeanor, when such person: (1) intentionally makes a false written statement that such person does not believe to be true with the intent to mislead a public servant in the performance of such public servant's official function, and (2) makes such statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable. Conn. Gen. Stat. Ann. § 53a-157b. The Court seriously questions whether probable cause could ever exist for the offense charged under the relevant circumstances, where the claimed falsity of a victim’s sworn written statement is the omission of the details of an entirely different crime. During Plaintiff’s first meeting with Officer Gompper and in her first written statement, Plaintiff alleged that she was the victim of a criminal sex offense, irrespective of the Defendants’ characterization of the allegations as “sexual harassment.” Under Connecticut law a “person is guilty of public indecency when he performs any of the following acts in a public place…(2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person. For the purposes of this section, “public place” means any place where the conduct may reasonably be expected to be viewed by others.” Conn. Gen. Stat. § 53a-186. Indecent exposure is a Class B misdemeanor. Id. At a minimum, Plaintiff’s statement to the Town Defendants’ provided them sufficient information to believe that Mr. Nodine committed each element of Connecticut’s indecent exposure statute.¹ ^[1] By comparison, Plaintiff’s subsequent allegations plausibly alleged sexual assault in the fourth degree in violation of Conn. Gen. Stat. § 53(a)-73(a)(2). “A person is guilty of sexual assault in the fourth degree when (2) such person subjects another person to sexual contact without such other person's consent.” Sexual assault in the fourth degree under these circumstances would be a Class A misdemeanor. Id. Ms. Chase’s omitted information, that unwanted sexual contact occurred, means that she omitted and was subsequently reporting a different offense. The --------------------------------------------------------------------------------------------------------------------------------------------- ¹ This assumes that Mr. Nodine did not make “sexual contact” with Ms. Chase when he hugged her before pulling her into the bathroom. Ms. Chase stated that, although she could not feel Mr. Nodine’s penis against her because of his shirt, she believes that he was disrobed when he hugged her because he would not have had time to undress once they were in the bathroom. See [Dkt. 141-13 (Def. Exs.) Ex. J, (Chase written statement, 05/11/2017) at 2-3]. --------------------------------------------------------------------------------------------------------------------------------------------- failure to report the second crime is not a material omission of the facts constituting the first offense allegedly committed against her. Put another way, Plaintiff was criminally charged for failing to report a separate and distinct offense. Plaintiff had no duty to report the alleged second and more serious offense. As a matter of common sense and judicial experience, reporting a crime is a heavy task, particularly for a sexual assault victim. At a minimum, an individual reporting a crime subjects themselves to inconvenience, stigma, and at worse, personal safety risks. This is borne out by social science research. A Bureau of Justice Statistics survey estimated that only 22% of female victims (135,600) reported their completed assault to the police. Callie Marie Rennison, Rape and Sexual Assault: Reporting to the Police and Medical Attention, 1992-2002, Bureau of Justice Statistics, U.S. Dep’t of Justice, at Fig. 2 (Aug. 2002). The study also found that “[t]he closer the relationship between the female victim and the offender, the greater the likelihood that the police would not be told about the rape or sexual assault.” Id. at 3. When the perpetrator was a friend or relative, 82% of sexual assaults went unreported. Aside from the risk of repeat victimization, as a matter of human behavior, the consequences of collective failure to report crimes can be profound. See 37 Who Saw Murder Didn’t Call the Police; Apathy at Stabbing of Queens Woman Shocks Inspector, New York Times, Mar. 27, 1964 (initial reporting on the Kitty Genovese case). At common law, the failure to report a felony could be charged as “misprision of a felony.” See State v. Wilson, 80 Vt. 249, 252, (1907) (“misprision of felony is an offence at common law and is described as a criminal neglect either to prevent a felony from being committed, or to bring the offender to justice after its commission, but without such previous concert with or subsequent assistance of him, as will make the concealer an accessory before or after the fact.”). The United States Code retains a distant remnant in 18 U.S.C. § 4, which is interpreted to require proof that the defendant took affirmative steps to conceal the crime of the principle. See United States v. Ciambrone, 750 F.2d 1416, 1417 (9th Cir. 1984)(“The elements of the crime of misprision of felony are: (1) the principal committed and completed the felony alleged [there, the possession and concealment of counterfeit money]; (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify the authorities; and (4) the defendant took an affirmative step to conceal the crime.”). See also United States v. Brantley, No. 8:10-CR-298-T30MAP, 2013 WL 452023, at *3 (M.D. Fla. Feb. 6, 2013), aff'd, 803 F.3d 1265 (11th Cir. 2015) (“Misprison of a felony is a rarely charged crime. When it is charged, the act of concealment is usually obvious, such as giving a ride to one known to have just robbed a bank, or helping hide the loot…. Mere silence, without some affirmative act of concealment is insufficient. And where a defendant answers some questions, but not all, that too fails to constitute misprison of a felony as long as the answers that are given are truthful.”)(footnotes omitted). The Court is unaware of any cases where a crime victim was charged with misprison for failing to report a separate, related offense or for failing to provide all the details of an offense committed against them. Nor has any Defendant cited any authority to support such a charge or claim. In the Court’s review of the issue, it appears that Connecticut has never recognized the crime of misprision of a felony nor a general duty to report a crime. Rather, Conn. Gen Stat. § 17a-101(b), provides a comprehensive list of forty-one categories of persons with an affirmative obligation to report a crime. The only crime required to be reported under Connecticut law is suspected child abuse or neglect, ranging from police officers (15) to chiropractors (22). The Court can infer from the absence of any case law establishing an affirmative duty to report a crime and the comprehensive list of mandatory reporters of child abuse that there is no general duty under state law to report a crime. An analysis of the offense charged yields the same conclusion. The Town Defendant’s argue that “providing false statements or omissions under oath is a violation of General Statutes § 53a-157b.” [Dkt. 141 (Town Defs. Mem. in Supp.) at 19]. The statute makes no reference to omissions. The Town Defendants cite no cases to show that the statute has ever been interpreted to apply to an omission, particularly where there was no pre-existing duty to disclose. Statements and omissions are not functional equivalents. Connecticut has long recognized the bedrock principle of strictly construing the meaning of criminal statutes. See State v. Skakel, 276 Conn. 633, 674 (2006). The reason for this rule is twofold: “First, the public is entitled to fair notice of what the law forbids. Second, legislatures and not courts are responsible for defining criminal activity.” [Id. at 675]; see also Bouie v. City of Columbia, 378 U.S. 347, 352 (1964)(“There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.”). A jury reviewing the affidavit could find that this is the rare case where no reasonable police officer would have thought probable cause existed to show that Ms. Chase made “a false written statement that such person does not believe to be true with the intent to mislead [the Canton Police].” Because the Court concludes that a jury may find no reasonable police officer would have proceeded in arresting Ms. Chase on the face of the judicially authorized warrant, the Court need not consider a line by line analysis of omitted information in the warrant application. The Court notes, briefly, that apart from the omitted information in the arrest warrant affidavit, which was suggestive that Plaintiff truthfully believed that she was sexually assaulted, Detective Colangelo did not update his affidavit to reflect Plaintiff’s attempts to supplement her statement or the supplement itself. Had he done so, it could have reasonably negated the existence of probable cause for the specific intent elements of the charged offense, namely, that she did not believe her earlier statement to be true (as opposed to merely incomplete) and that the false “statement” was made with the intent to mislead the police.

b. Malice

The Town Defendants’ argument on the malice prong is conclusory and they do not respond to Plaintiff’s assertion about the existence of direct evidence of malice in their reply brief. [Dkt. 141-1 (Town Defs. Mem. in Supp.) at 20-21]; [Dkt. 157 (Town Defs. Repl. Br.)]. In Connecticut, “[a] party may demonstrate malice by showing that a prosecution was undertaken for “improper or wrongful motives, or in reckless disregard of the rights of the plaintiff,” including initiating proceedings without probable cause.” Turner v. Boyle, 116 F. Supp. 3d 58, 85 (D. Conn. 2015) (quoting Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)). It suffices to say that Plaintiff has presented ample evidence to show an improper or wrongful motive, or reckless disregard for Plaintiff’s rights, apart from the genuine question of material fact as to whether her arrest was supported by probable cause. The most striking example of an instance where a jury could find an improper motive stem from Detective Colangelo and Officer Gompper’s interview of Mr. Nodine. After Mr. Nodine denies the allegations, claiming it was “bullshit,” Detective Colangelo posits that, perhaps Mr. Nodine and Ms. Chase had a consensual relationship. Then, after consulting his lawyer, Mr. Nodine changes his story to claim that they had a single consensual sexual encounter initiated by Ms. Chase and he admits to lying to protect himself. In response to Mr. Nodine’s revelation and their speculation about Plaintiff’s financial motive, Detective Colangelo provides an example of a situation where he “switched the case” against another woman who claimed she was sexually assaulted by charging her with making a false statement. By doing so, Detective Colangelo claimed that he could ask the complaining witness to undertake a polygraph test, which he would otherwise be unable to request. This conversation occurred before Detective Colangelo knew how Ms. Chase would respond to Mr. Nodine’s claim if he ever asked. Detective Colangelo never asked Mr. Nodine whether he struck the right side of his head, which would have corroborated Plaintiff’s account of some physical altercation in the bathroom. Given the timing and context of the conversation, a jury could infer that Detective Colangelo’s decision to give Mr. Nodine a “base on balls” for his “first false statement” and then “switch the case” on Ms. Chase by charging her with making a false statement without probable cause was motivated by an improper purpose, be it bias or to curry favor. Indeed, Detective Colangelo suggested that Mr. Nodine’s attorney take him golfing at his private country club which Detective Colangelo only rarely had the fortune to visit. Moreover, a reasonable jury could conclude from the conversation taken as a whole and compared to that with Ms. Chase that Officer Colangelo offered to go easy of Mr. Nodine as a quid pro quo or a professional courtesy for a friend of a friend. Mr. Nodine voluntarily called Detective Colangelo to inform him that he failed a polygraph test, suggestive of Mr. Nodine’s belief that Detective Colangelo would not see him prosecuted. Only then did Detective Colangelo contact Ms. Chase for a re-interview. The decision to prosecute her was made immediately after her second interview, before she had the opportunity to amend her statement as they had discussed. The tenor of the interview of Mr. Nodine compared with the interview of Ms. Chase could be enough for a reasonable jury to conclude Officer Colangelo interviewed Ms. Chase to assist Mr. Nodine. While Detective Colangelo directed the final two interviews, Officer Gompper was present for Mr. Nodine’s interview, asked some questions, and then prepared the police report knowing all this information. Accordingly, Plaintiff presents sufficient evidence to survive summary judgment on the malice prong of her malicious prosecution claim.

c. Whether the criminal proceeding against Ms. Chase terminated in her favor.

A claim for malicious prosecution requires a plaintiff to prove that the charge against her was terminated in her favor. See, e.g., Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016). The Town Defendants argue that Plaintiff cannot establish that the criminal proceedings terminated in her favor because the nolle was entered on the condition that Ms. Chase not have further arrests. Therefore, they argue, under Lanning, 908 F.3d at 28, the nolle of the charges upon satisfaction of the prosecutor’s condition does not “affirmatively indicate [her] innocence,” and “leaves the question of guilt or innocence unanswered.” (quoting Hygh v. Jacobs, 961 F.2d 359, 367-68 (2d Cir. 1992)). In opposition, Plaintiff argues that the issue is controlled by Spak v. Phillips, 857 F.3d 458, 461 (2d Cir. 2017). In Spak, the Second Circuit affirmed the district court’s decision that a plaintiff’s malicious prosecution claim was time-barred because it was brought over three years after the Connecticut state charges were nolled. Id. A “favorable termination” for purposes of claim accrual is analyzed under federal common law whereas a “favorable termination” as an element of plaintiff’s substantive claim is interpreted by reference to state common law. Id at 462-63; see, e.g. Roberts v. Babkiewicz, 582 F.3d 418, 422 (2d Cir. 2009)(“The majority of cases from Connecticut courts interpret Connecticut law so that a nolle prosequi satisfies the “favorable termination” element as long as the abandonment of the prosecution was not based on an arrangement with the defendant.”) As Spak explains, “under Connecticut law, a prosecutor may decline to prosecute a case by entering a nolle prosequi. Conn. Practice Book § 39-31 (2017). The effect of a nolle is to terminate a particular prosecution against the defendant. However, a nolle prosequi is not the equivalent of a dismissal of a criminal prosecution with prejudice, because jeopardy does not attach.” Spak, 857 F.3d. at 463 (citing Roberts, 582 F.3d at 420). Spak, like Roberts explains that some nolles do not constitute a favorable termination as a matter of substantive law, narrowly, situations where they are “ ….caused by the defendant—either by his fleeing the jurisdiction to make himself unavailable for trial or delaying a trial by means of fraud. It also includes any nolle entered in exchange for consideration offered by the defendant (e.g., cooperation).” Id. at 464. In Butler v. Sampognaro, No. 3:18-cv-00545 (JAM), 2019 WL 3716595, at 4 (D.Conn. Aug. 7, 2019) the district court (Meyer, J) explained how Lanning and Spak may be inconsistent and noted that Lanning did not cite Spak. Judge Meyer’s second point is applicable here: Spak generally presumes a nolle prosequi to be a favorable termination, unless there are shown “reasons that are not indicative of the defendant’s innocence.” 857 F.3d at 464. By contrast, Lanning declines to presume any termination of a prosecution is a favorable termination absent “affirmative indications of innocence.” 908 F.3d at 25. This distinction in formulation may prove significant in the not-uncommon situation where the state court record of a nolle proceeding does not clearly establish the reason for the disposition. Id., 2019 WL 3716595, at *4. Here, there is a genuine dispute of material fact about whether the nolle of Plaintiff’s charges was predicated on a bargain struck with the prosecutor. The Court finds that this case is distinguishable from Lanning where, as a matter of pleading rules, the “vague allegation [concerning the post-trial nolle] is consistent with dismissal on any number of procedural or jurisdictional grounds, all of which fail to affirmatively indicate innocence” and the plaintiff conceded that the posttrial nolle was, at least in part, predicated on a jurisdictional issue. Lanning, 908 F.3d at 28. In this case, there is no suggestion that the nolle was based on jurisdictional or procedural issues. Here, the only issue is whether the nolle was the result of a bargain struck. The parties submit competing affidavits about whether there was an agreement, or any conditions placed on Plaintiff. The Town cites a conditional clause in Attorney Rittson’s affidavit stating “Assistant State's Attorney Giddings stated that the case would be continued, and if nothing else happened, the state would enter a nolle prosequi” and the diversionary marking to show that a bargain was struck. [Dkt. 157 (Town Defs. Repl. Br.) at 7-8](underling added). However, there remains a question about whether any conditions were imposed on Plaintiff and whether the purported condition, no arrests during the short continuance, evidences guilt because there is no relationship between the conditions and the alleged criminal conduct. Compare to Allen v. Harkins, No. 3:20CV964 (JAM), 2020 WL 4369125, at *2 (D. Conn. July 30, 2020 (“This is especially clear from the fact that the consideration given (completion of a DUI education program) is linked to the ground for which Allen was arrested (driving under the influence).”); compare also to Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 249 (D. Conn. 2008) (denying summary judgment where Plaintiff presented evidence to pass that test, as his deposition testimony was that the prosecutor declared him “an innocent bystander,” and that he did not have to pay any fine or perform community service as a condition of the nolle.). Typically, a conditional nolle imposes an affirmative condition on the defendant triggered after the nolle is entered, such that the charges will not be reinstated if the defendant satisfies the condition before the statute of limitations expires. The purported condition, “no new arrests” during the pendency of the continuance, may be a promise in consideration for the continuance, not in exchange for the disposition of the case. Considered another way, since jeopardy does not attach to a charge following a nolle, the prosecutor could simply re-charge Ms. Chase after the nolle was entered. Rather, it would show that the prosecutor simply gave up, which would suggest that the criminal proceedings were terminated in Ms. Chase’s favor. That is clearly the case here. The only condition imposed by the prosecutor was that Ms. Chase not be rearrested between the date and the planned nolle. No condition was imposed whatsoever for the period following entry of the nolle and thus the nolle was unconditional. The Court finds the disposition was favorable on the date the unconditional nolle entered. Accordingly, the Court DENIES the Town Defendants’ Motion for Summary Judgment as to Plaintiff’s False Arrest and Malicious Prosecution Claims, Counts 14-17.

C. Qualified Immunity

Qualified immunity shields a police officer from suits for damages under 42 U.S.C. § 1983 where “(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks and citations omitted); see also Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). “The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right.” Golino, 950 F. 2d at 870. Therefore, the question at hand is whether “it was objectively reasonable” for Detective Colangelo and Officer Gompper “to believe that [their] action[s] did not violate such law.” Qualified immunity is an affirmative defense and the burden is on the defendants to establish both elements. See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). “The purpose of qualified immunity is to protect officials when they must make difficult “on-the-job” decisions.” Palmieri v. Kammerer, 690 F. Supp. 2d 34, 46 (D. Conn. 2010). As a matter of public policy, qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 335. In this case, a jury could find that the individual officers had a lapse of judgment and were thereby either plainly incompetent or knowingly violated the law or both. In this case, a reasonable jury could find that it was objectively unreasonable for Officer Gompper and Detective Colangelo to proceed with arresting Plaintiff for making a false statement when they knew that: (1) the alleged “false statement” was an omission of a completed sex act that Plaintiff was not under any duty to disclose and that she had not affirmatively denied and (2) that, Detective Colengelo told her she could supplement her statement and Plaintiff stated her likely intention to do so, but the officers failed to inform prosecutors of her supplemental statement before the warrant issued, nearly two months later. “Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost.” Malley, 475 U.S. at, 344–45 (internal citation omitted). Here Ms. Chase recounted facts and presented corroboration constituting probable cause that Mr. Nodine committed at least indecent exposure and likely attempted sexual assault in the first degree. No reasonable officer would have concluded she had a duty to disclose a separate offense, even if it occurred on the same day during the same incident because no such duty exists. Simply reading at the statute and applying the ordinary meaning to the words in the statute would have revealed to the officers that it only applies to false statements, not omissions, particularly Detective Colangelo who professed to being an expert in criminal law. Accordingly, Detective Colangelo and Officer Gompper’s motion for summary judgment on the grounds that they are immune from suit because of qualified immunity is DENIED.

D. Connecticut Common Law Immunity

“Under Connecticut common law, the test to determine whether a municipal employee is entitled to governmental immunity for discretionary acts is distinct from the federal inquiry and requires separate consideration.” Fleming v. City of Bridgeport, 284 Conn. 502, 531–32, (2007) (citing Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn.App. 546, 662 A.2d 153 (1995)). Common law immunity applies to the government official’s discretionary act, like an arrest, unless one of three exceptions applies. Id. One exception is “…a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.” Northrup v. Witkowski, 175 Conn. App. 223, 234, 167 A.3d 443, 452 (2017), aff'd, 332 Conn. 158, 210 A.3d 29 (2019); Conn. Gen. Stat.§ 52–557n(a)(1)(“ (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct.” Plaintiff argues that she can overcome common law governmental immunity because she has sufficient evidence of malice and that she was an identifiable person subjected to imminent harm. [Dkt. 149 (Pl. Mem. in Opp’n to Town Defs.) at 36-37]. The Court agrees with Plaintiff that she has presented amble evidence of malice to survive summary judgment on her false arrest and malicious prosecution claim. Again, the Town Defendants’ argument as to why Plaintiff cannot establish the malice prong of her malicious prosecution claim is conclusory.

E. Plaintiff’s Equal Protection Claims

Plaintiff alleges that Detective Colangelo and Officer Gompper unlawfully discriminated against her because of gender animus, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by intentionally denying Plaintiff police protective services and then arresting and charging her with a crime. [Dkt. 116 (Second Am. Compl.) ¶¶ 176-95]. As the Court explained in its January 2019 decision granting the Town Defendants’ motion to dismiss as to Plaintiff’s Equal Protection claim, …the Second Circuit has recognized that the Equal Protection Clause may be violated by selective enforcement or selective adverse treatment. See Bush v. City of Utica, 558 Fed.Appx. 131, 134 (2d Cir. 2014). “To state such a claim, a plaintiff must allege (1) that he or she was treated differently from other similarly situated individuals, and (2) that the ‘treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’ ” Id. (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). The second element requires the plaintiff to allege that there is no rational basis related to a legitimate governmental purpose for different treatment based on the alleged classification. Id. [Dkt. 66 at 21-22](reported at Chase v. Nodine's Smokehouse, Inc., 360 F. Supp. 3d 98, 115 (D. Conn. 2019)). After the Court granted the Town Defendants’ motion to dismiss, Plaintiff amended her complaint, over their objection, to allege that the defendants applied facially neutral laws and policies in an intentionally discriminatory manner by failing to take her complaint seriously because of her sex. See [Dkt 87 (Order granting Pl. Mot. to Amend)](reported at Chase v. Nodine's Smokehouse, Inc., No. 3:18-CV-00683 (VLB), 2019 WL 1469412, at *1 (D. Conn. Apr. 3, 2019)). As the Court noted in its prior decision, Plaintiff’s claim is not that she was denied due process by the Defendants’ refusal to protect her from Mr. Nodine, but rather that they did not take her complaint seriously because she is a woman alleging that she was sexually assaulted. Id. at 3. The Town Defendants argue that Officer Gompper and Detective Colangelo both acted in a professional manner and there is no evidence upon which a reasonable jury could find a discriminatory animus. [Dkt. 141 (Town Def. Mem. in Supp.) at 30-32]. In opposition, Plaintiff cites case law and Justice Department guidance on preventing gender bias in law enforcement response to sexual assault and domestic violence. [Dkt. 149 (Pl. Mem. in Opp’n to Town Def.) at 42-43]. The Justice Department guidance that Plaintiff cites provides that: “Similarly, officers should not make statements or engage in acts that indicate to the victim that they doubt the victim’s credibility, or that otherwise exhibit any bias towards the victim based on gender. Such statements and judgments could include: stereotyped assumptions about the truth of a reported assault …automatically believing the alleged assailant’s claim that the sex was consensual…” U.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence, 14 (2015), https://www.justice.gov/opa/pr/justicedepartment-issues-guidance-identifying-and-preventing-gender-bias-lawenforcement. The Town Defendants analogize the case to Golodner v. Martinez, No. 3:15CV-1515 (MPS), 2017 WL 6540269 (D. Conn. Dec. 21, 2017), where the district court (Shea, J) granted summary judgment on a male-plaintiff’s claim that municipal police officers denied him equal protection of the law because of his sex when they responded less favorably to his claim than his former partner’s while investigating accusations that they both violated cross-protective orders. [Dkt. 141 (Town Defs. Mem. in Supp.) at 25-27]. The Court agrees with Plaintiff that Golodner, as persuasive precedent, is clearly distinguishable. There, the district court held that the factual pattern explained why police took the initial complaining victim’s allegation that her vehicle may have been vandalized and her identification of plaintiff as a potential suspect more seriously than his allegation that her purportedly false complaints violated the cross-protective order derivatively. Golodner, 2017 WL 6540269, at *5. Plaintiff in that case did not show that the complaining witness’s statement was false and had admitted that he presented no evidence that the complaining witness violated the protective order to at least one of the defendants. Id. In this case, the Court finds that a reasonable jury could reach different conclusions as to whether Detective Colangelo and Officer Gompper’s actions were motivated by gender bias. First, after Mr. Nodine admitted to falsely claiming that he never had sexual contact with Ms. Chase and after they speculated as to her financial motive for making an allegation, Detective Colangelo refers to the inability to request a polygraph from a sexual assault victim as a “problem” and offers a potential solution: “switching the case” to make a false statement investigation against the complaining witness. After additional commiserating with Mr. Nodine and his lawyer, Detective Colangelo explicitly told Mr. Nodine not to worry and that he was not going to chase down every lead, even though he had not yet heard Ms. Chase’s recollection of events. He made this promise in the midst of what could be perceived, in comparison to his meeting with Ms. Chase, as a fraternal conversation and after asking Mr. Nodine’s attorney for an invitation to play golf at the attorney’s private club, following their conversation about a mutual friend. A month later Mr. Nodine voluntarily disclosed that he failed a polygraph test: yet neither officer re-interviewed nor conducted further investigation into Mr. Nodine. Instead, Detective Colangelo initiated an interview of Ms. Chase. During this second interview, he falsely told her Mr. Nodine took two polygraph tests, suggesting that he passed the tests. Afterward he exacted her admission that Mr. Nodine violated her in a manner constituting a crime she had not reported. The fact that Mr. Nodine reported that he failed the polygraph test to Officer Colangelo could be perceived as an indication that Mr. Nodine believed Officer Colangelo had promised to help him discredit Ms. Chase’s claims. However, Detective Colangelo and Officer Gompper both made oral statements to Plaintiff reassuring her that they were taking her allegations seriously. During their initial meeting, which oddly occurs in a public area, Officer Gompper explained the complaint procedure and provided her with an Office of Victims Services Card. Later, during her interview with Detective Colangelo, he told her repeatedly that even a past consensual encounter did not make sexual contact during a subsequent encounter necessarily consensual. A reasonable jury could find that Detective Colangelo’s questioning of both witnesses amounted to a “good cop” questioning tactic and permissible deception or it could evident pre-judgment and inaction based on gender bias, including automatically believing the alleged assailant’s claim of consensual sexual contact and immediately suggesting a financial motive to fabricate allegations. Because either situation presents a reasonable resolution to the factual dispute before the Court, summary judgment on the equal protection claim as to Detective Colangelo is DENIED. Summary judgment is also denied as to the Equal Protection Claim against Officer Gompper as he observed in and participated in Mr. Nodine’s May 18, 2017 interview and was aware of the facts of Ms. Chase’s final interview when he prepared the police report indicating that she would be charged with making a false statement and the investigation against Mr. Nodine would be closed. Accordingly, summary judgment on the Equal Protection claim asserted against Officer Gompper is also DENIED.

F. Plaintiff’s intentional infliction of emotional distress claims

“In order for the plaintiff to prevail in a case for liability under ... [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.” Appleton v. Board of Education, 254 Conn. 205, 210, (2000) (internal quotation marks omitted). The Town Defendants argue that Plaintiff cannot establish any of the elements of her intentional infliction of emotional distress (hereinafter “IIED”) claim, but only address the second element. The Plaintiff did not respond to the Town Defendants’ motion for summary judgment on this claim, then sought leave to file a sur reply, arguing, inter alia, that the omission was inadvertent. [Dkt. 158 (Pl. Mot. for Leave to File Sur-Reply)]. The Court finds good cause lacking as Plaintiff also sought, nunc pro tunc, to expand briefing for their opposition of summary judgment. Granting permission to file a sur reply would protract briefing and could have been avoided by the exercise of careful diligence. As Plaintiff notes in their motion to file a sur reply, D. Conn. L. R. Civ. P. 7(a)(2) provides, in relevant part, “failure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion.” This rule does not, however, place a burden on the district court to ferret out every potential argument that could have been made on summary judgment. See Ferraresso v. Town of Granby, 646 F. Supp. 2d 296, 305 (D. Conn. 2009). “Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.” Ferraresso, 646 F. Supp. 2d at 305 (quoting Coltin v. Corp. for Justice Mgmt., Inc., 542 F.Supp.2d 197, 206 (D.Conn.2008)); Ramos v. Town of E. Hartford, No. 3:16-CV-166 (VLB), 2019 WL 2785594, at *5 (D. Conn. July 2, 2019)(same). This Court has found no authority that it must rule against the non-responsive party where the record does not warrant the entry of judgment in favor of the moving party. Thus, the Court holds it has discretion to rule on this issue. The Town Defendants’ first argument is that under Connecticut law, “in a case involving a public official enforcing the law, public policy dictates that a valid arrest should not be the basis for intentional infliction of emotional distress against the official.” Brooks v. Sweeney, No. CV 06 5005224S, 2008 WL 5481203, at *1 (Conn. Super. Ct. Nov. 28, 2008), aff'd, 299 Conn. 196, 9 A.3d 347 (2010). “As a matter of law—absent other factors that may constitute “extreme and outrageous” conduct—an arrest will not be considered intentional infliction of emotional distress if the arresting officer has probable cause to make the arrest.” Zalaski v. City of Hartford, 704 F. Supp. 2d 159, 176 (D. Conn. 2010). But, the Town Defendants’ argument presumes that the arrest was supported by probable cause. As discussed supra, whether Plaintiff’s arrest was based on arguable probable cause remains a genuine issue of material fact. At the pleading stage, the Court held that Plaintiff stated a claim for IIED where she alleged: that the Town of Canton police chose not to take her claims against Mr. Nodine seriously, treated Ms. Chase as though she was the assailant rather than a victim of sexual assault, willfully or recklessly ignored her attempts to clarify her statement of the events of her sexual assault, knowingly misrepresented the facts surrounding her statement in a sworn affidavit to the State's Attorney and a judge in order to obtain a warrant for her arrest for making a false statement, and then arrested her for initially leaving a salacious detail out of the recounting of her assault. Ms. Chase alleges more than the simple fact of her arrest; she alleges improper conduct leading up to an arrest which caused her significant emotional distress. [Dkt. 66 at 29], reported at 360 F. Supp. 3d at 119. Now, after the conclusion of evidence and after the Court has viewed the videos at issue in this case, Plaintiff has adduced sufficient evidence to raise a genuine issue of material fact as to whether Detective Colangelo and Officer Gompper acted in an “extreme and outrageous” manner. A reasonable jury could find that knowingly and falsely “switching the case” on a sexual assault victim, who is visibly upset when she voluntarily discloses the prior omission of a completed sex act, then repeatedly states her suicidality and history of trauma “is conduct beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.” Appleton, 254 at 210-11. In short, because a reasonable jury could believe that Plaintiff’s allegation, as summarized above, is true and constitutes “extreme and outrageous conduct,” summary judgment must be DENIED as to Plaintiff’s IIED claims against Detective Colangelo and Officer Gompper. The Court agrees with Plaintiff that the Town of Canton cannot be liable if Detective Colangelo and/or Officer Gommper are held liable for IIED. Connecticut law is clear that municipalities are liable for damages caused by its employees, officers and agents acting within the scope of their duties, except that the municipality is not liable for “(A) [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct.” Conn. Gen. Stat. § 52-557n(a)(2)(A). The operative complaint does not state any direct basis for the Town of Canton to be held liable for intentional torts of its police officers. See e.g. Cronin v. EASTCONN, No. CV196017482S, 2019 WL 4733424, at *2 (Conn. Super. Ct. Aug. 30, 2019)(dismissing IIED claim against state entity because “§ 52-557n(a)(2) bars such recovery based on the wil[l]ful and malicious conduct of its staff.” Accordingly, the Court GRANTS summary judgment for the Town of Canton on Plaintiff’s IIED claim, Count 19. Finally, since Plaintiff’s claims against Officer Gompper and Detective Colangelo are proceeding, the Court DENIES the Town of Canton’s motion for summary judgment as to indemnification pursuant to Conn. Gen. Stat. § 7-465.

Conclusion

For the foregoing reasons, the Town Defendants’ Motion for Summary Judgment is DENIED, except with respect to the Town of Canton’s Motion for Summary Judgment as to Count 19, IIED. The Court GRANTS the Town Defendants’ and Plaintiff’s nunc pro tunc motions to file excess pages. [Dkts. 152 and 151, respectively]. The Court DENIES Plaintiff’s Motion to File a Sur-Reply for failure to show good cause. [Dkt. 158]. IT IS SO ORDERED

/s/__________

Hon. Vanessa L. Bryant United States District Judge Dated at Hartford, Connecticut: September 29, 2020 [1] Since Ms. Chase alleged that Mr. Nodine grabbed her wrist, pulled her to a secluded area in the restaurant when he heard an employee, locked the bathroom door and then told her to “suck it,” and that she was able to escape by her own use of force, it is plausible that the conduct alleged may have constituted attempted sexual assault. See State v. Green, 194 Conn. 258, 274 (1984)(“A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person ... which reasonably causes such person to fear physical injury to such person ....” General Statutes § 53a– 70(a). A specific intent to commit sexual assault in the first degree is an essential element of that [attempted sexual assault] and on the evidence the jury could find that proven.”). The statutory definition of “sexual intercourse” expressly includes fellatio. § 53a–65(2).

Potential Employment Causes Of Action Under Connecticut Law

2023-11-07T06:52:02Z

Potential Employment Causes Of Action Under Connecticut Law

By: Lewis Chimes Garrison, Levin-Epstein,Chimes, Richardson & Fitzgerald

Attorneys representing individuals for employment claims in federal court appreciate the difficulties of pursuing those claims in that particular forum. Litigating federal claims in federal court is generally more time consuming, and often less cost effective, due to many of the filing requirements. Briefing summary judgment and preparing trial preparation orders in federal claims can be onerous. Moreover, unlike state court, where summary judgment is the exception rather than the rule, employment if federal court There is substantial Second Circuit and Connecticut District Court jurisprudence justifying resolution of employment claims at the summary judgment stage. If the case does go to trial, there is very limited voir dire. For these reasons, defendants generally remove employment cases to federal court whenever possible. Connecticut statutory and common law provides an expansive range of workplace protections, with a variety of different filing and administrative requirements, statutes of limitation, and remedies. These should be included along with any federal claims when the particular claim will provide additional coverage or advantage. But more importantly, identifying the available state claims and remedies may make the need to file federal claims unnecessary (with the consent of the client), and allow the employee to keep his or her claims in the state courts. This article summarizes the various types of state claims available, along with their elements, administrative filing requirement, and remedies. To the extent that the state law follows federal law, the differences will be highlighted. The appendix contains various complaints for the claims discussed.

DISCRIMINATION/STATUTORY CLAIMS

Equal Pay Act

The Connecticut Equal Pay Act (Conn. Gen. Stat. §31-75, 31-76) was revised this past year. CTLA played a significant role in drafting the new legislation and lobbying for its passage. The Equal Pay Act prohibits wage disparities on the basis of sex. The old statute was of limited utility, and rarely utilized. The new statute combines elements of the federal Equal Pay Act, the federal Paycheck Fairness Act, which is currently before the United States Congress, and the Lilly Ledbetter Act, which has recently been enacted. It clearly sets forth the standards, such as seniority, merit rating systems, and incentive-based compensation that allow for legitimate pay differentiation. However, it also, facilitates enforcement when an employee makes a showing paycheck discrimination based on gender, because it places the burden on the employer to demonstrate a legitimate basis for pay differentiation. The Act also affords a more practical remedy for victims of wage discrimination. It clarifies that they may either seek a remedy through the Department of Labor or by initiating a civil action. It also clarifies the remedies that are available through a civil action, making it a more viable alternative for victims of wage discrimination. The Act recognizes that wage discrimination is a continuing violation, and does not penalize victims who have hesitated to come forward by barring their claims for ongoing wage discrimination. The Act also recognizes that many persons will fear coming forward out of fear of retaliation, and provides a real and practical remedy for persons who have suffered retaliation for asserting claims of wage discrimination or opposing wage discrimination. The remedy provided is also cost effective, because it does not require exhaustion through either the Commission on Human Rights or the Department of Labor. Finally, Connecticut’s Act covers many employers who are not covered by the federal Equal Pay Act, since the statute applies to all employers rather than the federal statute, which only applies to employers who have more than fifteen workers.¹ In addition, a federal equal pay claim may also not be economically feasible for many lower wage earners, so Connecticut’s Act will provide a more viable remedy for them.

A. Elements

An Equal Pay Act Plaintiff makes out a prima facie case of wage discrimination on the basis of gender if the plaintiff can show:

different wages are paid to employees of the opposite sex;
the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
the jobs are performed under similar working conditions.

See Corning Glass Works v. Brennan, 417 U.S. 188, 203 fn. 24 (stating that jobs need to be substantially equal fall within the EPA); Jamilik v. Yale University 2009 WL 3228775, 1 (2d Cir. 2009); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). The issue of whether or not the positions are substantially similar is generally an issue for the trier of fact. Jamilik, 2009 WL 3228775 at 2; Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir.2001); Tomka v. Seiler, 66 F.3d 1295, 1311 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). ¹ Conn. Gen. Stat. §31-71a; 42 U.S.C. § 2000e-2(h); County of Washington v. Gunther, 452 U.S. 161, 171 (1981). Once the plaintiff makes out the prima facie case, the defendant has the burden of proving one of the four affirmative defenses. In order to overcome the plaintiff’s prima facie case, the defendant must prove by a preponderance of the evidence that the disparity in the plaintiff’s compensation was due to:

a seniority system;
a merit system;
a system which measures earnings by quantity or quality of production; or
a differential system based upon a bona fide factor other than sex, such as education, training or experience.

Under the Federal Equal Pay Act, the fourth affirmative defense had been sufficiently open-ended that it has permitted employers to avoid liability with a very cursory factual showing. Connecticut’s Equal Pay Act strengthens the federal act by incorporating the proposed amendment to this fourth affirmative defense under the Paycheck Fairness Act to limit the broad catch-all language of this defense by putting the burden on the Employer to affirmatively prove that it is not based-upon or derived from a sex-based differential in compensation, and also for the employer to prove that it is job-related and consistent with business necessity. Conn. Gen.Stat. 31-75(b)(4)(a)-(b).

B. Retaliation

The Equal Pay Act also protects an employee who “opposed any discriminatory compensation practice or because such person has filed a complaint or testified or assisted in any proceeding.” Conn. Gen. Stat. §31-75(b). The Equal Pay Act also protects an employee who “opposed any discriminatory compensation practice or because such person has filed a complaint or testified or assisted in any proceeding.” Conn. Gen. Stat. §31-75(b). The elements of a retaliation claim are:

The plaintiff is an individual who “opposed any discriminatory compensation practice or . . . filed a complaint or testified or assisted in any proceeding;”

The employer knows that plaintiff is an individual who “opposed any discriminatory compensation practice or . . . filed a complaint or testified or assisted in any ”

The plaintiff was discriminated against or discharged because of the protected

C. Forums

Under the Amended Equal Pay Act, the plaintiff may either proceed by filing a claim directly in state court.² Alternatively, the plaintiff may pursue her claims through the Department of Labor. Conn. Gen. Stat. §31-76(b). There is no requirement that the plaintiff exhaust her remedies either in the state labor department or the Connecticut Commission on Human Rights and Opportunities.

D. Remedies

Under the new Equal Pay Act, a prevailing plaintiff is entitled to the difference between the amount of wages paid and the maximum wage paid any other employee for equal work, compensatory damages, attorney's fees and costs, punitive damages if the violation is found to be intentional or committed with reckless indifference to the employee's rights under section 31-75, and such legal and equitable relief as the court deems just and proper. Conn. Gen. Stat. §31-76. Most importantly, the new Equal Pay Act adopted the rationale of the federal Lilly Ledbetter Fairness Act³ and recognizes that an equal pay violation is a continuing violation. Each paycheck will not be considered a discrete act under the Connecticut Equal Pay Act. As long as any instance of the continuing conduct occurred within the statute of limitations, the plaintiff will be able to recover for the entire period that she was receiving disparate pay. Conn. Gen. Stat. §31-76©.⁴

E. Statute of Limitation

The statute of limitations for a violation under Connecticut’s Equal Pay Act is two years. The statute of limitations for a claim that alleges that the violation was committed with intentional or reckless indifference to the employee’s rights is three years. ² The plaintiff may also file in federal court if there is diversity or supplemental jurisdiction. ³ P.L. 111-2 (2009); The Lilly Ledbetter Fairness Act statutorily overruled Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007). Ledbetter held that for statute of limitations purposes, the triggering date was the date of the initial decision to pay the female employee at a lower rate of pay. Ledbetter also rejected the continuing violation theory as applies to wages under the Equal Pay Act. ⁴ This is different than how Connecticut courts have generally interpreted Connecticut’s wage statute, where each paycheck has been considered a separate cause of action. Conn. Gen. Stat. §52-596; Shortt v. New Milford Police Department, 212 Conn. 294, 298 (1989); Warzecha v. Nutmeg Companies, Inc. 48 F. Supp. 2d 151, 158 (D.Conn.,1999); Williams v. Cushman and Wakefield of Conn., Inc., 1998 WL 246493, at *2 (Conn. Super. 1998); For purposes of calculating the statute of limitations, each discriminatory paycheck is an ongoing discriminatory act.

II. Fair Employment Practices Act

The Connecticut Fair Employment Practices Act (Conn. Gen. Stat. §46a-60 et seq.)(“FEPA”) is Connecticut’s general anti-discrimination statute. Substantively, proof of discrimination is done in a similar manner to the federal discrimination statutes. Com mission on Human Rights & Opportunities v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005); Ware v. State 2009 WL 3856471 *8, (Conn. App. 2009); Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998); Malasky v. Metal Products Corp., 44 Conn. App. 446, 454, 689 A.2d 1145, cert. denied, 241 Conn. 906, 695 A.2d 539 (1997). For example, Connecticut courts utilize McDonnell-Douglas analysis in determining the sufficiency of discrimination claims.

A. Substantive Differences Between FEPA and the Federal Discrimination Statutes⁵

Individual Claims

Unlike Title VII and most of the federal discrimination statutes, an employee can bring a discrimination claim against an individual supervisor or harasser under FEPA. Conn. Gen. Stat. 46a-60(a)(5). PRACTICE NOTE: If you plan to file a discrimination claim against an individual, you need to file a separate CHRO complaint at the time of the initial filing with the Connecticut Commission on Human Rights and Opportunities.

2. Covered Employers

FEPA covers all employers who employ more than three employees. Conn. Gen. Stat. 46a-51(10). This covers a much broader range of employers than Title VII or most of the other federal statutes which cove r employers with a minimum of 15 employees.

3. Sexual Orientation

FEPA explicitly prohibits discrimination in employment on the basis of sexual orientation. Conn. Gen. Stat. 46a-81c. Title VII does not prohibit discrimination on the basis of sexual orientation.

4. Pregnancy Discrimination

Unlike the federal pregnancy discrimination statute, FEPA imposes upon employers certain more explicit obligations than federal law, including: ⁵ This discussion is not all inclusive.

an obligation to make reasonable efforts to transfer a pregnant employee to a suitable temporary position if her current position may cause injury to the employee or her fetus;
an obligation to give notice to a pregnant employee of her right to a transfer to a temporary position;
and the right to an immediate appeal of such a transfer.

Conn. Gen. Stat. § 46a-60(7)(E)-(G).

5. Disability Discrimination

A What Constitutes a Disability The definition of disability under FEPA is very different than the federal Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. Under FEPA, a physical disability is defined simply as “any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness . . .” Conn. Gen. Stat. 46a-51(15). “Mental disability” refers to an individual who has a record of, or is regarded as having one or more mental disorders as defined under the DSM. Conn. Gen. Stat. §46a-51(20). Historically, Connecticut’s disability statute covered a much broader protected class for persons with physical or mental disabilities than the ADA. It remains to be seen whether the recent amendments to the ADA will extend federal coverage to the same extent as coverage for persons with physical and medical disabilities under FEPA.

a. Reasonable Accommodation

Unlike the ADA, FEPA is silent about the obligation of an employer to make reasonable accommodations for persons with disabilities. Last year, the Supreme Court held that the disability provision of FEPA does incorporate the federal reasonable accommodation standard. Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 944 A.2d 925 (2008).

b. Perceived Disability

The ADA protects both disabled persons and non-disabled persons who are “regarded as” disabled from discrimination in the workplace. 42 U.S.C. §11202(1)©. The Second Circuit has held that FEPA does not afford similar discrimination protectionto persons who are “regarded as” being physically disabled.⁶ Beason v. United Technologies Corp., 337 F.3d 271 (2d Cir. 2003) . Several Connecticut Superior Court judges have rejected the Second Circuit’s reasoning in Beason and sustained claims based upon a perceived physical disability. Graham v. Boehringer Ingelheim Pharmaceuticals, 2007 WL 3317528, 10 (Conn. Super., 2007); Mills v. RE/MAX Heritage 2005 WL 941400, 1 (Conn. Super.,2005) (both citing Ann Howard's Apricots Restaurant v. Commission on Human Rights and Opportunities, 237 Conn. 209, 676 A.2d 844 (1996)). ⁶ FEPA’s definition of mental disability does include person perceived as having a mental disability as falling within the protected class. Conn. Gen. Stat. 46a-51(20).

6. Age Discrimination

A .Differing Standard of Proof Under FEPA, the plaintiff has the burden of proving age discrimination was a motivating factor in the discharge/discipline. Under the recent U.S. Supreme Court decision, Gross v. FBL Financial Services,⁷ an employee under the Federal Age Discrimination in Employment Act must prove that age discrimination was the “but for” cause of the adverse employment action. This heightened standard may be a reason to rely on state age claims moving forward.

B. Damages

Under FEPA, a plaintiff in an age discrimination case may recover damages for emotional distress. The ADEA does not permit such recovery. Under the federal ADEA, the plaintiff in an age discrimination case may recover liquidated double damages for their economic damages if the discrimination was wilful. FEPA does not permit such liquidated damages.

7. Punitive Damages

Last week the Appellate Court held that punitive damages are not available in FEPA actions against the state. Ware v. State, --- A.2d------------- , 2009 WL 3856471 (2009). There remains a split as to whether FEPA permits the recovery of punitive damages for wilful or deliberately indifferent acts of discrimination as to municipalities and private employers. Cases permitting punitive damages or implying that punitive damages are permitted: Chopra v. General Elec. Co., 527 F. Supp.2d 230 (D. Conn. 2007); Oliver v. Cole Gift Centers, Inc., 85 F. Supp.2d 109 (D. Conn. 2000); Cantoni v. Xerox Corp., 24 Conn. L. Rptr. 38, 38 (Conn. Super. 1999). ⁷ — U.S----- , 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) Cases denying punitive damages awards: Shaw v. Greenwich Anesthesiology Assocs., P.C., 200 F.Supp.2d 110, (D. Conn. 2002); Peckinpaugh v. Post-Newsweek Stations Conn., Inc., 1999 WL 334838, at *4 (D.Conn. Mar.17, 1999); Roman v. Department of Corrections, 2006 WL 2556376, 42 Conn. L. Rptr. 35, (Conn.Super. 2006); Trimachi v. Connecticut Workers' Compensation Commission, 27 Conn. L. Rptr. 469, 471 (Conn. Super. 2000); Craine v. Trinity Coll., 1999 WL 1315017, at *11 Conn.Super.), rev'd in part on other grounds, 259 Conn. 625, 791 A.2d 518 (2002). In those cases permitting punitive damages under FEPA, the measure of punitive damages is attorney’s fees and costs. Chopra, 527 F. Supp. at 146; Oliver, 85 F. Supp. 2d 112.

B. Available Forums

FEPA claims may be litigated in either the Commission on Human Rights and Opportunities or state court. Conn. Gen. Stat. §46a-82, et seq., Conn. Gen. Stat. §46a-102 PRACTICE POINTER: Never litigate claims in the CHRO. The CHRO is not authorized to award attorney’s fees, punitive damages, or emotional distress damages.

A. Administrative Exhaustion/Statutes of Limitation

FEPA’s filing requirements and deadlines are a testament to judicial and administrative inefficiency and present traps for those unfamiliar with the process.

1. The “Normal” Path to Court

A An aggrieved employee must file a complaint with the CHRO within 180 days of the most recent discriminatory event. Gen. Stat. §46a-82(f). B The employee must allow the CHRO 210 days to “investigate” their claim prior to asking for a “release” to bring a lawsuit. Conn. Gen. Stat. §46a- 101(b). After 210 days have elapsed, the employee or their attorney may ask for a release from the Executive Director of the CHRO. 46a-101(a). C The Executive Director will issue a “Release” within 10 days of a request for release, unless the case has already been scheduled for a public hearing. 46a- 101(b). The Employee must file their claim within 90 days after their receipt of the release from the Commission. §46a-101(e). D The Employee must file their case within 2 years of the initial CHRO 46a-102. 2 Other Paths to Court A An employee may ask for the release anytime after filing the CHRO complaint and prior to the expiration of the 210 day period if the respondent agrees to jointly ask for the release. 46a-101(b). PERSONAL OBSERVATION: Yeah, right, that’s going to happen. An employer/potential defendant is going to voluntarily give up their statutorily permitted right to delay the filing of a lawsuit. I would be curious if anyone has escaped the CHRO early on this basis. B Merit Assessment (“MAR”) Dismissal The CHRO has the authority to dismiss a case pursuant to its 90 day review. If the case is dismissed, and the employee does not request reconsideration, then the Executive Director shall issue a release to bring a suit. The employee may then file a lawsuit within 90 days after receipt fo the release. Conn. Gen. Stat. §§46a-83(b); 46a-83a. If, however, the employee requests reconsideration of the dismissal, then the grant of a release is only discretionary. §§46a-83a.

PRACTICE POINTER: Do not fight a MAR dismissal to hard. It is the fastest way to get your case to court If the case is dismissed, do not request reconsideration Just get the release.

C CHRO Finding of Reasonable Cause If the CHRO makes a finding of reasonable cause, the employee has 20 days to request a release. Conn. Gen. Stat. §46a-83(d). After that the case will be scheduled for a public hearing.

D. CHRO Finding of No Reasonable Cause

If the CHRO investigator does a complete fact-finding and makes a finding of no reasonable cause, the case is dismissed, with no right to bring a lawsuit. Conn. Gen. Stat. §46a-83(e) The CHRO investigator will share the proposed findings prior to formally issuing a no cause finding. An attorney who wishes to pursue a case through a lawsuit must request a release prior to the formal no cause finding.

III. Family and Medical Leave Act

A Substantive Differences Between the state and federal FMLA.

Covered Employers

The state FMLA covers employers who employ more than 75 employees. Conn. Gen.Stat. §31-51kk(4). The federal FMLA covers employers who employ more than 50 or more employees within a 75 mile radius of a worksite. 29 U.S.C. §2611(4).

2.Forums

The exclusive forum for the FMLA is the state Department of Labor. There is no private right of action in the state courts for the FMLA.

3. Scope of FMLA Coverage

The state Family and Medical Leave Act protects eligible employees for up to 16 weeks of eligible family and/or medical leave over a 24 month period.. Conn. Gen. Stat. §31-51ll. Federal FMLA protects up to 16 weeks coverage for a one year period. 29 U.S.C. §2612.

4. Statute of Limitations

An employee claiming a violation of the state FMLA must file their complaint with the Department of Labor within 180 days. A late filing will be accepted, however, if the DOL determines that there is good cause for the delay. Regs., Conn. State Agencies §31-51qq-43.

5. Damages and Remedies

The Connecticut Department of Labor is authorized to relief that may include but is not limited to restoration of any rights, benefits, entitlements or protections afforded to the employee by the Act, reinstatement to employment, back pay and any other monetary compensation for any loss which was the direct result of the employer's violation, discharge or discrimination.” Conn. Gen. Stat. §31-51pp; Regs., Conn. State Agencies § 31-51qq-47. This can include bonuses and commissions that the employee would have earned if they had remained employed but for the FMLA violation. Cendant Corp. v. Commissioner 2004 WL 574880, 15 (Conn.Super.,2004).⁸ Although the language in the statute is open-ended, the DOL has not interpreted it to permit an award of emotional distress damages or attorney’s fees. ⁸ In the Cendant case, the employee subsequently brought a federal FMLA claim and collected liquidated damages and was awarded attorney’s fees based upon the state court FMLA ruling. Persky v. Cendant Corp., 547 F.Supp.2d 152 (D. Conn. 2008)

IV. State Free Speech Claims (Conn. Gen. Stat. §31-51q)

Connecticut is the only state in the country that has statutorily extended the constitutional protections of free speech to the private sector. Conn. Gen. Stat. §31-51q “protects an employee from retaliatory discharge due to that employees's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and Article First, § 4, of the Connecticut constitution ...Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999); Cotto United Technologies Corp., 251 Conn. 1, 17, 738 A.2d 623 (1999); DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003). Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court, but whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made necessarily involves a question of fact. Daley, 249 Conn. at 782. In addition, the speech must not substantially or materially interfere with the employee’s bona fide job performance or the working relationship with their employer. No Appellate Court has addressed the applicability of Garcetti v. Ceballos 457 U.S. 410, 126 S. Ct. 1951 (2006) to a 31-51q claim. Garcetti held that there is no violation of 42 U.S.C.1983 for disciplining a public official who speaks out in the course of his official duties. Those Connecticut Superior Courts that have addressed the issue have held that Garcetti is inapplicable to private employees who invoke their free speech rights relating to matters of public concern under Conn. Gen. Stat. §31-51q. Horton v. Windham Commun. Mem. Hosp., 2007 WL 1121469, at *2 -3 (Conn. Super. 2007); Lehmann v. Conn. Legal Rights Project, Inc., WL 1053941, *1 (Conn. Super. 2007); Dubowsky v. New Britain General Hosp., 2 Conn. L. Rptr. 17 (Conn. Super. 2006). But See, Schumann v. Dianon Sys., Inc., 44 Conn. L. Rptr. 195 (Conn. Super., Sept. 24, 2007) St. Fleur v. R.C. Bigelow, 2007 WL 1247306, at *2 (Conn. Super. 2007). In both cases, Judge Hiller noted the potential applicability of Garcetti, but denied summary judgment based upon the fact that there remained an issue of fact as to whether the plaintiffs were speaking out within the course of their duties.

A. Damages

A prevailing plaintiff under Conn. Gen. Stat. §31-51q is entitled to economic damages, emotional distress damages, punitive damages, when applicable, and attorney’s fees.

B. Statute of Limitations

A claim under Conn. Gen. Stat. §31-51q must be brought within three years.

V. Wage Claim (Conn. Gen. §31-72, et seq.)

A Types of Claims 1 Unpaid Wages Connecticut provides broad protection for unpaid wages. Wages in Connecticut include weekly compensation, commissions, and earned bonuses. Ziotas v. Reardon Law Firm, P.C., 111 Conn. App. 287, 313-14, 959 A.2d 1013 (2008). Bonuses that are purely discretionary are not covered by Connecticut’s wage statute. Weems v. Citigroup, Inc., 289 Conn. 769, 782 (2008). Severance pay and pensions are not covered by Connecticut’s wage statute. Except for statutorily protected wages, such as minimum wages and overtime, Connecticut’s wage statutes do not create an independent cause of action; it is merely an enforcement mechanism. The determination of when wages become due is determined by reference to the employer’s commission or bonus plan. Mytych v. May Dept. Stores Co., 260 Conn. 152, 159, 793 A.2d 1068 (2002). Therefore, unvested commissions and bonuses are not protected by the wage statute.

2. Misclassification/Overtime Claims

Since the revisions to the federal Fair Labor Standards Act there has been significant litigation on the federal level, and to a lesser extent on the state level, on behalf of exempt employees who have been misclassified in order to avoid the obligation of paying them overtime_.

B. Damages

A prevailing plaintiff is entitled to any unpaid wages, liquidated double damages if the employer’s behavior is wilful, and attorney’s fees.

C. Forums

A wage claim may be brought in the Superior Court or filed directly with the Department of Labor. There is no exhaustion requirement.

D. Statute of Limitations

Wage claims must be filed within two years. Each paycheck, commission, or bonus is a separate claim, and there is no continuing violation doctrine. Filing a claim with the Department of Labor tolls the statute of limitation, so any attorney investigating a potential wage claim should file with the DOL immediately.

COMMON LAW CLAIMS

I Breach of Contract

A Oral Contracts/Implied Contracts

“[E]mployer-employee relationships not governed by express contracts involve some type of implied contract of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999). An “implied contract ... [may incorporate] the terms of ... oral statements.” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 12-13, 662 A.2d 89 (1995). See, Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 523, 733 A.2d 197 (1999)(plaintiff allegation that the defendant's personnel made oral statements to him when he began working for the defendant, that if he did a good job, he would have a job as long as he wished sufficient for trier of fact to find that a contract existed); Guccione v. Paley, 2006 WL 1828363 (Conn.Super. 2006)(Oral assurances to plaintiff that she would have a job “as long as she wanted it,” made to induce plaintiff to give up her other clients, who had provided her with a source of income, sufficient to support claim of implied contract); Greene v. HMP Industries, Inc. 2001 WL 950979 (Conn.Super. 2001)(Plaintiff alleged that the defendant represented to him that, if plaintiff joined defendant, his employment would be for life; he would be “set for life”; and, that defendant would at all times treat him fairly and on the same basis as if he were a member of the defendant's immediate family). In order for oral and written representations to be considered an implied contract, they must be clear and definite in content, and both employer and employee must manifest an intention to be bound by the oral and written representations made. The employer and employee can demonstrate their intention to be bound by the provisions of the oral and written representations by their conduct, their actions, and their words. Their intention can be inferred by considering the relationship of the parties, what each has said and done, the writings that are in evidence, and all of the surrounding circumstances. Torosyan, 234 Conn. at 8; Coelho, 208 Conn. at 133; Heller, 891 F.2d at 456; Rahmatti v. Nehri, 188 Conn. 583 (1982).

B. Contracts Implied From Handbooks

Employee Handbooks are generally not considered binding employment contracts as long as employers use clear and unambiguous language disclaiming any intent for the handbook to form a contract. Gaudio 249 Conn. at 536, n. 9, Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n. 5, 520 A.2d 208 (1987). The existence of disclaimer language in an employee handbook, does not defeat a claim for breach of an express or implied contract where other or subsequent representations have been made which are not themselves disclaimed. Torosyan v. Boehringer Ingelheim Pharmaceuticals, 234 Conn. 1, 18, 662 A. 2d 89 (1995): Rodriguez v. Host Intern., Inc., 2000 WL 1995589 (Conn.Super. 2000); Morris v. Tri-Town Teachers Credit Union, 2000 WL 1058882, (Conn. Super. 2000).

C. Implied Contracts For Wages, Bonuses, Commissions, and Benefits

Torosyan indicates that implied contracts re: wages and bonuses are enforceable: Although “all employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment”; the terms of such a contract do not typically “limit the terminability of the employee's employment but [rather an implied contract] merely includes terms specifying wages, working hours, job responsibilities and the like. Torosyan v. Boehringer Ingleheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995). Typically, an implied contract of employment does not limit the terminability of an employee's employment but merely includes terms specifying wages, working hours, job responsibilities and the like. Id. at 14-15. See also, Mytych v. May Dept. Stores Co., 260 Conn. 152, 159, 793 A.2d 1068 (2002)(Allocation of employee wages left to employer-employee agreement).

D. Statute of Limitation

The statute of limitation for oral contracts in Connecticut is three years for oral executory contracts (contracts not yet performed by either party). Conn. Gen. Stat. §52-581. All other oral or implied contracts have a six year statute of limitations. Conn. Gen. Stat. §52-581.

E. Damages

Damages for breach of contract are limited to economic damages that flow from the contract. In cases claiming breach of an employment contract, the measure of damages generally are the wages and benefits that the employee earned less any subsequent earnings during the period of the contract. An employee has a duty to mitigate damages by making reasonable efforts to obtain other employment.

II. Promissory Estoppel

The elements of a claim of promissory estoppel are:

A clear and definite promise;
The promise is one which a promisor would reasonably have expected to induce reliance;
The promise reflects a present intent to commit as opposed to a mere statement of intent to contract in the future;
The promisee relies upon the promise to his detriment.

Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003); Saye v. Howe, 92 Conn.App. 638, 648, 886 A.2d 1239 (2005); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). Whether a given representation rises to that level is a question of fact to be determined in light of the circumstances under which the representation was made. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995). In Stewart, The plaintiff was concerned about how her employment with Cendant might be affected if her husband ultimately accepted a position with a competitor. Defendant represented that she should not be concerned and that her husband's reemployment in the relocation services business would have no bearing on her employment with Cendant. Simon further represented Cendant's president and chief executive officer, also wished to assure the plaintiff that she had no reason to be concerned about her continued status as a highly valued employee in the event that her husband were to become associated with a competitor. On the basis of those assurances, the plaintiff continued in her position with Cendant and did not pursue other employment opportunities. These representations were found to satisfy the elements of plaintiff’s promissory estoppel claim. Stewart, 267 Conn. 100.

A. Statute of Limitations

claims for promissory estoppel are governed by the same three and six year statutes of limitations, under the same circumstances, as contract claims.

B. Damages

Since Promissory Estoppel is an equitable remedy, the damages are fact specific. Ordinarily, the employee prevailing in a claim of promissory estoppel is entitled to “benefit of the bargain,” i.e. contractual damages. Torringford Farms Ass'n v. City of Torrington, 75 Conn.App. 570, 576, 816 A.2d 736 (2003). Brookridge Funding Corp. v. Northwestern Human Resources, Inc. 170 Fed.Appx. 170, 172, 2006 WL 508356, 2 (2d Cir. 2006). Connecticut thus follows the approach of the Restatement (Second) of Contracts, under which “full-scale enforcement by normal remedies is often appropriate.” Restatement (Second) of Contracts § 90 comment d. Under certain circumstances, damages in a claim for promissory estoppel may be limited to “reliance” damages, i.e., what the plaintiff actually gave up when they relied upon the promise. Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981); see Grant v. New Departure Mfg. Co., 85 Conn. 421, 425-26, 83 A. 212 (1912); Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1272 (9th Cir.1990) (limiting plaintiff's remedy to “reliance damages”). Goldstein v. Unilever 2004 WL 1098789, 7 (Conn.Super., 2004).

III. NEGLIGENT MISREPRESENTATION

A Elements In Connecticut, a person who, in the course of his business, profession or employment, supplies false information for the guidance of others in their business transactions is subject to liability for the loss caused to the other person by virtue of the other person’s justifiable reliance on the information, if the person who supplied the information failed to exercise reasonable care or competence in obtaining or communicating the information. To establish a claim for negligent misrepresentation, plaintiff has the burden of proving three things: A The employer, by and through its agents, made false representations of fact to him that were material to the plaintiff’s decision to accept employment or make a decision relevant to their employment; B The employer failed to use reasonable care in making the statements or representations to him; © The plaintiff reasonably relied on the statements or representations to his detriment. Even an innocent misrepresentation of fact may be actionable If the employer know or reasonably should have known that the representation or statement was not true. D'Ulisse v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987); Giametti v. Inspections, Inc., 76 Conn. App. 352, 363, 824 A.2d 1 (2003);Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998); Wright and Daly, Connecticut Jury Instructions, Section 343, pp. 523-27, Section 522, pages 778-780 (3^rd Ed. 1981); Restatement Second of Torts § 552 (1979). Withdrawal of an at-will offer letter does not constitute negligent misrepresentation. Petitte v. DSL.net, Inc., 102 Conn.App. 363, 925 A.2d 457 (2007). In negligent misrepresentation cases, principle of contributory negligent does not act as a complete defense; The doctrine of comparative negligence applies. Kramer v. Petisi, 285 Conn. 674, 682, 940 A.2d 800 (2008),

B. Damages

Damages include losses incurred due to reasonable reliance upon any misrepresentation. This may include amounts to compensate for consequential damages which are or should have been reasonably foreseeable to be the natural and probable results of a misrepresentation. Sovereign Bank v. Licata 116 Conn.App. 483, 506, 977 A.2d 228, 245 (Conn.App.,2009). In other contexts, Connecticut courts have permitted the award of benefit of the bargain damages in the context of a negligent misrepresentation claim. Miller v. Appleby, 183 Conn 51 (1981); Lipshie v. George M. Taylor and Son, Inc., 265 Conn. 173, 828 A.2d 110 (2003); Capital Mortg. Associates, LLC v. Hulton 2009 WL 567057 (Conn.Super. 2009). Damages for negligent misrepresentation appear to be limited to pecuniary loss.

C. Statute of Limitations

The Appellate Court has held that the two year statute of limitations for negligence cases (Conn. Gen. Stat. §52-584), rather than the three years statute of limitations for other torts (Conn. Gen. Stat. §52-577). Lombard v. Edward J. Peters, Jr., P.C. 79 Conn.App. 290, 830 A.2d 346 (2003). If your client shows up two years after his claim arose, however, a number of Superior Court decisions since Lombard, have applied the three year statute of limitations, limiting Lombard to cases involving injury to property. Baghdady v. Baghdady 2008 WL 4630487, 8 (D.Conn.,2008); Piazza, v. First American Title Ins. Co. 2007 WL 988713, 2 (D.Conn.,2007); Estate of Axelrod v. Flannery, 476 F.Supp.2d 188 (D.Conn. 2007); Larobina v. First Union National Bank, Superior Court, 37 Conn. L. Rptr. 509 (Conn. Super 2004); Larobina v. First Union National Bank, 2006 WL 437396 (Conn.Super. 2006).

IV. Negligent Infliction of Emotional Distress

A Elements

The elements of a claim for negligent infliction of emotional distress are:

that the plaintiffs' conduct created an unreasonable risk of causing her emotional distress;
that her distress was foreseeable;
that the distress was severe enough that it might result in illness or bodily harm; and
that the plaintiffs' activity proximately caused the emotional

Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269 (2008). Negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process. The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior. Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002); Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).

B. Damages

Damages for intentional infliction of emotional distress are limited to non–economic emotional distress damages proximately caused by the unreasonable conduct during the termination process. In addition, the costs of medical and psychiatric treatment related to the emotional distress may also be claimed.

C. Statute of Limitations

A claim for negligent infliction of emotional distress is subject to the two year statute of limitations applicable in negligence claims(Conn. Gen. Stat. §52-584). Rivera v. Double A Transportation, Inc., 248 Conn. 21, 23, 727 A.2d 204 (1999).

V. Intentional Infliction of Emotional Distress

A Elements

The elements of a claim for intentional infliction of emotional distress are:

that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;
that the conduct was extreme and outrageous;
that the defendant's conduct was the cause of the plaintiff's distress; and
that the emotional distress sustained by the plaintiff was severe.

Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). Liability for intentional infliction of emotional distress requires meeting a high threshold. It requires conduct that exceeds all bounds usually tolerated by decent society. Liability has been found only where the conduct has been 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 community. Appleton v. Board of Education, 254 Conn. at 210-11. Physical and/or sexual abuse or harassment, and overt racist behavior are examples where courts have sustained claims of intentional infliction of emotional distress. Unlike a claim for negligent infliction of emotional distress, a claim for intentional infliction of emotional distress is not limited to conduct during the termination process However, if the conduct results in physical injury that is compensable under the workers’ compensation statutes, then it would ordinarily be precluded.

B. Damages

A claim for intentional infliction of emotional distress is generally for non-economic emotional distress damages, although if the plaintiff can prove that they are disabled and unable to work due to the conduct, a claim may be made for lost earnings. In addition, medical and psychiatric treatment related to the emotional distress may also be claimed. Due to the intentional nature fo the conduct, punitive damages claims should also be made.

C.Statute of Limitations

The statute of limitations for a claim of intentional infliction of emotional distress is three years. Conn. Gen. Stat. §52-577.

VI. Wrongful Discharge

A Elements

Connecticut recognizes the tort of wrongful discharge when the discharge is in contravention of public policy. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980). Like statutory discrimination and retaliation statutes:

the employee’s conduct must be protected by some public policy;
the employer must be aware of the employee’s protected conduct;
the employee’s discharge must be causally connected to the protected

The public policy may be inferred from state or federal law. Faulkner v. United Technologies, 240 Conn. 576 (1997). Some examples of public policy where wrongful discharge claims have been permitted where employees have claimed to have been discharged for:

Complaints about violations of food labeling statutes; Sheets
Complaints about company’s submissions of fraudulent insurance claims; Schmidt Yardney Electric Corp., 4 Conn. App. 69, 492 A.2d 512 (Conn. App. 1985).
Complaints about safe operation of movie theaters; Girgenti v. Cali-Con, Inc., 15 App. 130, 136-37 (Conn. App. 1988).
Reporting violation of Attorney Rules of Professional Conduct; Matzkin v. Delaney Zemetis, Donahue, Durham & Noonan, P.C., 39 Conn. Rptr. 627 (Conn. Super. 2005).
Refusal to participate in scheme to defraud the federal government; Faulkner v. United Technologies, 240 Conn. 576 (1997);
Cook Wrongful Discharge Claims

Discharging employees in order to avoid the vesting of important benefits has been recognized be an important public policy that permits a Sheets claim. Okon v. Medical Marketing Group, Inc., 1994 WL 463659, (Conn. Super. 1994); Cook v. Alexander & Alexander of Connecticut, Inc., 40 Conn. Sup. 246 (1985) (Employees discharged to avoid vesting of stock options and commissions found to be in violation of public policies embodied by Connecticut’s wage statutes). Many employment bonus or commission plans require an employee to be actively employed at the time of the payout. For example, many bonus plans are paid out in the first quarter of the year after the work has been done. Cook claims are an extremely important protection because it prevents an employer from discharging an employee before an important wage or benefit, such as a bonus or commission in order having to pay out the bonus or other vesting benefit, even though the employee might not protected under Connecticut’s wage statutes.

B. Limits on Wrongful discharge Claims

Wrongful discharge claims are limited to at-will employees. Burnham v. Karl & Gelb, P.C., supra, 252 Conn. at 159. A wrongful discharge claim is not permitted if there is a statutory cause of action protecting employees from the wrongful conduct. Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). This is true even if the statutory remedy is not as extensive as the wrongful discharge claim. Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 699, 802 A.2d 731 (2002).

C. Damages

An employee who prevails in a wrongful discharge claim is entitled to tort damages, i.e. economic damages (back and front pay), and non-economic damages. Punitive damages are permissible under the common law standard for punitive damages.

D. Statute of Limitations

The statute of limitations for wrongful discharge claims is three years pursuant to Conn. Gen. Stat. §52-577.

VII. Defamation

A Elements

The elements of a claim for defamation are:

the defendant published or communicated statements;
the statements were false; and
the statements were defamatory or harmful to a person’s

Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27 (1995); Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 693 (1992). In the employment context, intra-corporate communications are considered communications sufficient for a defamation claim. Torosyan. A number of Superior Court cases have held that defamation there is a heightened specificity requirement in pleading defamation.

B. Defenses

Truth is an absolute defense to
Absolute privileges: Statements made in court or in a judicial or quasi-judicial proceedings, legislative proceedings, or administrative proceedings are absolutely privileged.
Qualified Privileges: Certain types of statements have a qualified privilege. An employer whose statement is privileged is not liable for a false and defamatory statement unless the defendant through its agents communicated the defamatory statements with either:

A Knowledge of their falsity; or B Reckless disregard as to the truth of the defamatory statements. Recklessness requires an awareness of facts that could or would disclose the falsity of the defamatory statements to a reasonable person. Torosyan, supra, 234 Conn. at 29; Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236, (1985); Restatement (Second) Torts 600; Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (Conn. 1988). In the employment context, communications within the workplace are privileged if: A Defendants communicated all of the defamatory statements for a legitimate business purpose; Torosyan, supra, 234 Conn. at B All of the defamatory communications were made on a proper occasion; Miles Perry 11 Conn. App. at 595; and C Publication of all of the alleged defamatory communications were made in a proper manner to proper parties only; Bleich, supra, 196 Conn. 498; Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987). Employee references are also privileged. Miron v. University of New Haven Police Department, 284 Conn. 35, 931 A.2d 847 (2007).

C. Damages

A claim of libel or slander per se permits a plaintiff to recover general tort damages, including economic damages, emotional distress damages, and damages for injury to reputation. Punitive damages may also be recovered. [L]ibel is actionable per se if it charges improper conduct or lack of skill, honesty, or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business ... Libel ... is also actionable per se if it charges a crime involving moral turpitude, theft, or to which an infamous penalty is attached. Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A .2d 199 (1987). Libel or slander per quod, on the other hand, is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication ... When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . Lega Siciliana Social Club, Inc. v. St Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

VIII. Invasion of Privacy

A Types

There are four types of invasion of privacy claims: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; © unreasonable publicity given to another's private life; (d) unreasonably places the other in a false light before the public. Goodrich v. Waterbury Republican American, 188 Conn. 107, 128, 448 A.2d 1317 (1982); Restatement (Second) Torts 652A . In order to bring a claim for invasion of privacy by unreasonable intrusion upon the seclusion of another an invasion of privacy under the first category, an unreasonable intrusion upon the seclusion of another, the intrusion must be highly offensive to a reasonable person. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). See also Pane v. Danbury, 267 Conn. 669, 676-77, 841 A.2d 684 (2004). Such claims may include the discussion of the private sex lives or others, or unauthorized taping of conversations or wiretapping. Numerous Connecticut trial courts have held that allegations of sexual assault or sexual misconduct can support a claim of invasion of privacy under an unreasonable seclusion theory.

B. Damages

An individual bringing an invasion of privacy claim will be entitled to general tort damages.

C. Statute of Limitations

A claim of invasion of privacy is subject to a three year statute of limitations. Conn. Gen. Stat. §52-577.

VIII Unjust Enrichment

Plaintiffs seeking recovery for unjust enrichment must prove “(1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.” Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006); Rossman v. Morasco 115 Conn.App. 234, 248, 974 A.2d 1, 12 (Conn.App.,2009) Unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999). Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC 114 Conn.App. 671, 678, 970 A.2d 807, 811 - 812 (Conn.App.,2009) The terms of an express contract may preclude recognition of a claim of an implied contract. Meaney, supra, at 511. Unjust enrichment should be pleaded as an alternative remedy in any inequitable situation where an employee who has clearly earned a benefit, i.e. a bonus, or commission, equity in the company, from work that has benefitted the employer, where other remedies are not clearly applicable.

A Statute of Limitations

The statute of limitations for claims of unjust enrichment claims is determined by reference to the statute of limitations of the particular facts governing the claim and what types of claims is derived from. Certain Underwriters at Lloyd's, London v. Cooperman, 289 Conn. 383, 957 A.2d 836 (2008)

APPENDIX- Sample Complaints

FEPA/DEFAMATION

RETURN DATE: September 12, 2000

-------------------------------------------------------x LAKISHA FRANKLIN, : SUPERIOR COURT : Plaintiff, : J.D. OF NEW HAVEN : V. : AT NEW HAVEN : CITY OF NEW HAVEN, : DEPARTMENT OF POLICE SERVICES : and SCOTT NABEL, : : Defendants. : August 18, 2000 -------------------------------------------------------x COMPLAINT

At all times mentioned herein, the plaintiff, Lakisha Franklin, was a resident of New Haven,
Lakisha Franklin is African-American.
Lakisha Franklin has no criminal
At all times mentioned herein, the defendant City of New Haven was a municipality organized pursuant to the charter and ordinances of the City of New Haven and laws of the State of Connecticut. At all times mentioned herein, the defendant, City of New Haven, maintained a Department of Police Services in order to provide its citizens with municipal police services.
At all times mentioned herein, the defendant, Scott Nabel, was the Director of Human Resources for the City of New Haven Department of Police
On or about April 8, 1999, Lakisha Franklin applied for a position as an Assistant Police Dispatcher with the City of New Haven Department of Police
Lakisha Franklin took and passed the City of New Haven civil service examination.
Lakisha Franklin was interviewed for the position of Assistant Police Dispatcher by the defendant, Scott Nabel, on or about June 11,
At the interview, defendant Nabel indicated that she would be offered the position, subject to a background
On June 28, 1999, Lakisha Franklin received a letter indicating that the “Department has conducted its background investigation, and has decided not to pursue your candidacy for the position of Dispatcher ”
Shortly thereafter, Ms. Franklin contacted defendant Nabel by telephone, to question the defendant City’s failure to hire her.
During the conversation, defendant Nabel indicated that she had “three strikes” against her
Specifically, he indicated that she had lost her position because there was “major drug trafficking” in her house in New Haven, because she had a role in a murder, and because she failed to disclose a prior arrest in her job
The allegations that defendant Nabel contended were revealed in Lakisha Franklin’s background investigation were false.
There was never any drug trafficking in Lakisha Franklin’s house.
Lakisha Franklin never played any role in a murder; her former boyfriend was murdered and she was interviewed by the Police.
Lakisha Franklin never had any legal obligation to reveal her prior arrest; the case had been dismissed and sealed.
As a result of the false allegations that arose as a result of Lakisha Franklin’s background investigation, and improper reliance upon her failure to disclose an arrest that had previously been dismissed, Lakisha Franklin was not hired for the position of Assistant Police Dispatcher for the defendant, City of New Haven Department of Police Services.
As a result of the defendants improper failure to hire Lakisha Franklin, she has suffered and will continue to suffer economic loss, to wit, lost earnings and lost
As a result of the defendants improper failure to hire Lakisha Franklin, she has suffered emotional distress.

COUNT ONE (Connecticut Fair Employment Practice Act - Failure to Hire Conn. Gen. Stat. §46a-60(1) - Defendant, City of New Haven)

21. Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of this First Count. 22. On December 8, 1999, the plaintiff, Lakisha Franklin, filed a complaint with the Commission on Human Rights and Opportunites. 23. On June 19, 2000, the Commission on Human Rights and Opportunities has provided the plaintiff with a release to sue. Less than 90 days have elapsed since the release was issued 24 The plaintiff, Lakisha Franklin, grew up in an overwhelmingly African-American neighborhood, and most of her acquaintances were African-American. 25 The defendant, through its agents, servants, and employees, drew improper inferences based upon where she lived, and with whom she was acquainted. 26 Plaintiff’s race and color were a motivating factor in the improper inferences drawn leading to the defendant’s failure to hire the Plaintiff 27 On information and belief, white persons similarly situated to Lakisha Franklin were hired for positions with the City of New Haven, Department of Police Services 28 As a result of the improper inferences drawn on the basis of plaintiff’s race and color, plaintiff was improperly denied the position of Assistant Dispatcher

COUNT TWO (Connecticut Fair Employment Practice Act - Failure to Hire Conn. Gen. Stat. §46a-60(5) - Defendant of Scott Nabel)

29. Paragraphs 1-28 of the First Count are incorporated by reference herein as paragraphs 1-28 of this Second Count 30. The defendant, Scott Nabel, aided, abetted, incited, compelled and/or coerced the discrimination of Lakisha Franklin on the basis of her race and Color

COUNT THREE (Defamation - Both Defendants)

31 Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of this Third Count. 32 False information concerning drug trafficking in plaintiff’s home, and her role in a homicide were communicated within the defendant, City of New Haven, Department of Police Services. 33. Defendants knew or reasonably should have known that the information communicated pertaining to drug trafficking in her home, and her alleged role in a homicide were false 34. The false information was damaging to Lakisha Franklin’s reputation. 35 As a result of the communication of false information concerning Lakisha Franklin, she was rejected for the position of Assistant

COUNT FOUR (Invasion of Privacy - Both Defendants)

36 Paragraphs 1-35 of the Third Count are incorporated by reference herein as paragraphs 1-35 of the Fourth Count. 37 Defendants’ false portrayal of Lakisha Franklin as an individual who had a role in a homicide and who lived in a home in which there was “major drug trafficking” unreasonably placed her in a false light before others. 38 Defendants’ false portrayal of Lakisha Franklin was highly offensive to a reasonable person. 39 As a result of the defendants’ conduct, Lakisha Franklin suffered humiliation and embarrassment, mental and emotional distress, personal and professional humiliation 40 As a result of defendants’ false portrayal of Lakisha Franklin, she was rejected for the position of Assistant Dispatcher.

COUNT FIVE (42 U.S.C. §1983 - Equal Protection - Defendant, Scott Nabel)

41 Paragraphs 1-30 of the Second Count are incorporated by reference herein as paragraphs 1-30 of the Fifth Count 42 At all times mentioned herein, the defendant, Scott Nabel, was acting under color of law, to wit, municipal ordinances and state laws governing the hiring of civil service employees. 43 Defendant, Scott Nabel’s, failure to hire Lakisha Franklin as a result of improper inferences drawn from false or misleading information deprived her of rights, privileges, and immunities guaranteed by the Constitution of the United States, and the State of Connecticut, to wit, the guarantee of equal protection of the laws under the Fourteenth Amendment of the Untied States Constitution and Article 1 Section 20 of the Constitution of the United States.

COUNT SIX (42 U.S.C. §1983 - Freedom of Intimate Association - Defendant, Scott Nabel)

44 Paragraphs 1-43 of the Fifth Count are incorporated by reference herein as paragraphs 1-43 of the Sixth Count. 45 Defendant, Scott Nabel, has subsequently attempted to justify his decision not to hire Lakisha Franklin on the basis of her “intimate association with a convicted felon” 46 Defendant, Scott Nabel’s, failure to hire Lakisha Franklin on the basis of what he claims was her alleged “intimate association with a convicted felon” deprived her of rights, privileges, and immunities guaranteed by the Constitution of the United States, to wit, the freedom of intimate association guaranteed by the Fourteenth Amendment of the United States Constitution.

COUNT SEVEN (Negligent Infliction of Emotional Distress - Both Defendants)

47 Paragraphs 1-20 are incorporated by reference herein as paragraphs 1-20 of the Seventh Count. 48 Defendants knew or should have known that their conduct involved an unreasonable risk of causing the plaintiff emotional distress. 49 Defendants knew or should have known that such emotional distress was likely to result in plaintiff's illness or bodily harm. 50 Defendants conduct in falsely suggesting that there was major drug trafficking in Lakisha Franklin’s home, that she had a role in a homicide, and that she had improperly failed to disclose a prior arrest, in the context of a job application caused her emotional distress

CLAIM FOR RELIEF

WHEREFORE, the plaintiff claims damages in excess of fifteen thousand dollars, excluding costs, including:

A money judgment for compensatory damages, back pay, lost benefits and other fringe benefits and consequential damages;
A money judgment for physical and emotional distress suffered by the plaintiff;
An award of reasonable attorney's fees and costs;
Punitive damages; and
Such other and further relief as may be just and Proper

RESPECTFULLY SUBMITTED,

THE PLAINTIFF

By: Lewis H. Chimes

Juris No. 303446

GARRISON, PHELAN, LEVIN-EPSTEIN

CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 (203) 777-4425

Please enter my appearance on behalf of the plaintiff.

ORAL CONTRACT /PROMISSORY ESTOPPEL/NEGLIGENT MISREPRESENTATION

RETURN DATE: August 6, 2002
FRANK DALO,	x	SUPERIOR COURT
	x
Plaintiff,	x	J.D. OF FAIRFIELD
	x
v.	x	AT BRIDGEPORT
	x
IMAGISTICS INTERNATIONAL, INC.,	x
	x
Defendant.	x	July 8, 2002

COMPLAINT

PARTIES

The plaintiff, Frank Dalo, is a resident of Mahopac, New York.

The defendant, Imagistics International, Inc., is a company which is authorized to do business in the State of Connecticut and maintains a business facility at 100 Oakview Drive, in Trumbull, CT.

II. FACTS

Plaintiff was hired by the defendant as a salesman, in 1992. At the time, defendant was known as Pitney Bowes but, as a result of a corporate spinoff, defendant subsequently became known as Imagistics International,Inc.
A major aspect of plaintiff’s job is selling and servicing photocopiers. At all times during the course of his employment, plaintiff performed his job in a satisfactory manner
Although he started with no base accounts, plaintiff built his own territory and has maintained good relations with his customer base
One of the customers that plaintiff recruited and served was Verizon. From 1998 through the present, plaintiff had performed a substantial amount of work on the Verizon account and was responsible for placing approximately 3,250 photocopiers with Verizon. Plaintiff’s efforts have and will continue to generate a significant amount of revenue for defendant over the next three years.
Under the commission plan that existed at the time, plaintiff was due to receive a very large commission for his efforts on the Verizon account
After a letter of intent was signed by Verizon, defendant imposed a single account commissions cap. Although the cap was said to be company wide, it really only affected plaintiff.
After the cap was imposed, plaintiff expressed concerns to Joseph Higgins (VP, Sales/ National Account). More specifically, plaintiff told them that he thought the cap was unfair and directed at him.
In response, plaintiff was assured that the cap was not specifically addressed at him and was promised that, with respect to the Verizon account, the company would pay him in excess of the newly imposed cap. When plaintiff asked what percentage the company was willing to pay him above the cap, Mr. Higgins told him it could be as much as fifty to seventy cents on the dollar (in terms of dollars, this translated into approximately $107,390.00).
Based on this representation, plaintiff incurred certain financial obligations
On September 4, 2001, when plaintiff reached the $200,000.00 cap on commissions, he had a follow-up conversation with Mr. Higgins reminding him of defendant’s promise to pay him above the commissions cap. During the conversation, Mr. Higgins confirmed that defendant would pay plaintiff an amount above the cap but told him that he could not quantify the exact amount until October, 2001.
Although plaintiff expressed displeasure with the delay, he agreed to wait until October,2001.
Following his September 4^th conversation with Mr. Higgins, plaintiff sent an e-mail to Mr. Higgins, confirming the substance of their conversation. Mr. Higgins subsequently replied to plaintiff’s e-mail on September 10, 2001, with a carbon copy to Christopher Goodwin (Regional Vice President).
In his e-mail reply, Mr. Higgins confirmed defendant’s promise to pay plaintiff above the cap and stated “[i]t has always been my intent to pay you over the cap but not until all factors are evaluated.” Mr. Higgins’ e-mail message indicated that there was apparently some confusion as to the date on which the exact amount to be paid to plaintiff would be quantified.
Higgins’ e-mail informed plaintiff that “you have my guarantee that as soon as we see September’s results for all areas we will get you a response. It will be a partial solution as we will wait, as we do for everyone else, for year end results for a final exception solution.” The message further stated that “we have every intention of granting a commission plan exception in regards to your payment on Verizon.”
Thereafter, at the end of the year, plaintiff had a follow-up conversation with Higgins and was told that Joe Skrzypczak and Mark Breslawsky had not approved any additional money to be paid to him due to a volume and profitability report that Mr. Skrzypczak had run. This was the first time that the Company had indicated that it would not honor its commitment to plaintiff.

III. COUNT ONE– BREACH OF CONTRACT

18 . The statements made by defendant’s agents and representatives created a contract between plaintiff and Defendants. 19 In reliance on the agreement, plaintiff continued to remain employed by the defendant. 20 Defendant breached its agreement with the plaintiff, thereby causing plaintiff harm.

IV. COUNT TWO– PROMISSORY ESTOPPEL

21 Paragraphs 1 through 17 are hereby reincorporated the same as if fully pled in this Second Count 22 During the course of plaintiff’s employment, defendant, by and through its agents and representatives, promised plaintiff that he would be paid an amount above a newly instituted commissions cap. Defendant told plaintiff that he would be paid as much as fifty cents to seventy cents on the dollar above the cap. 23 Plaintiff relied upon defendant’s promises by continuing to work for the defendant company and by incurring certain financial obligations in anticipation of the promised 24 Defendant failed to honor its promises to Plaintiff 25 Plaintiff suffered economic and emotional harm as a result of his reliance on defendant’s Promises.

v. COUNT THREE– NEGLIGENT MISREPRESENTATION.

26. Paragraphs 1 through 17 are hereby reincorporated the same as if fully pled in this Third Count. 27. During the course of plaintiff’s employment with the defendant company,defendant’s agents made factual representations to plaintiff that he would be paid above and beyond a newly instituted cap on commissions. 28. These factual statements were false and defendant acted negligently in communicating the statements to plaintiff 29. Plaintiff reasonably relied upon these factual statements to his detriment by remaining employed by defendant and by incurring financial obligations in anticipation of the money he had been promised. 30 Plaintiff suffered economic and emotional harm as a result of defendant’s false Statements WHEREFORE, the plaintiff respectfully prays that this Court take jurisdiction over this case and grant judgment against the defendant. Plaintiff pays that the following relief be ordered: A declaratory judgment that defendant breached its contract with plaintiff, pursuant to Count One; B that plaintiff be awarded the economic losses that he has suffered to date; C that plaintiff be awarded damages for emotional harm suffered under Counts Two and Three; D that plaintiff be granted such other relief as the Court deems appropriate.

RESPECTFULLY SUBMITTED,

THE PLAINTIFF,

By:

Robert A. Richardson - #405610 GARRISON, LEVIN-EPSTEIN,

CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 Ph: (203) 777-4425

Fax: (203) 776-3965

Rrichardson@garrisonlaw.com

RETURN DATE: August 6, 2002
FRANK DALO,	x	SUPERIOR COURT
	x
Plaintiff,	x	J.D. OF FAIRFIELD
	x
v.	x	AT BRIDGEPORT
	x
IMAGISTICS INTERNATIONAL, INC.,	x
	x
Defendant.	x	July 8, 2002

STATEMENT OF AMOUNT IN DEMAND

"The amount in demand is in excess of Fifteen Thousand ($15,000.00) Dollars.

RESPECTFULLY SUBMITTED,

THE PLAINTIFF,

By:

Robert A. Richardson - #405610.

GARRISON, LEVIN-EPSTEIN, CHIMES & RICHARDSON, P.C.

405 Orange Street

New Haven, CT 06511 Ph: (203) 777-4425

Fax: (203) 776-3965

Rrichardson@garrisonlaw.com

BREACH OF CONTRACT/NEGLIGENT MISREPRESENTATION/WAGE CLAIM/COOK WRONGFUL DISCHARGE CLAIM CLAIM RETURN DATE: x JOHN HANNON, : SUPERIOR COURT Plaintiff, :

: JUDICIAL DISTRICT OF WATERBURY

: CARRIER ACCESS CORP., : TURIN NETWORKS, INC., and : 1998 CARRIER ACCESS : STOCK INCENTIVE PLAN, : :

: February 14, 2008

Defendants. : x COMPLAINT VI. Plaintiff John Hannon (“Hannon”), a former employee of Carrier Access Corporation (“Carrier”), brings this claim to redress his wrongful discharge in violation of public policy, breach of contract, and associated common law tort claims, under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1132(a)(1)(B) et seq., and §1140 et seq. VII Hannon is a United States citizen who resides in Woodbury, Connecticut. VII Defendant Carrier Access Corporation (“Carrier”) is a publicly-traded Delaware corporation with its principal place of business at 5395 Pearl Parkway, Boulder, Colorado. IX At all times mentioned herein, the defendant Carrier Access Corporation maintained an employee benefit plan, to wit, the 1998 Carrier Access Stock Incentive Plan for the benefit and as an incentive for its employees, including the plaintiff. The 1998 Carrier Access Stock Incentive Plan is a welfare benefit plan within the meaning of ERISA, 29 U.S.C. §1002(1). A copy of the complete Severance plan is attached as Exhibit A X Defendant Turin Networks (“Turin”) is a private Delaware corporation with its principal place of business at 1415 North McDowell Boulevard, Petaluma, California. XI On December 17, 2007, Turin agreed to purchase Carrier in a cash-for-stock On information and belief, the sale was finalized on February 8, 2008. XII Turin is the successor in interest to all the assets and liabilities of Carrier. XIII Hannon formerly was the Chief Financial Officer and a principal of Mangrove Systems. (“Mangrove”), based in Wallingford, Connecticut. Mangrove manufactured computer networking equipment. XIV On or about February 27, 2007, Carrier acquired the assets of Mangrove Systems. XV On February 28, 2007, and as required by the asset purchase agreement between Carrier and Mangrove Systems, Carrier executed an employment agreement with Hannon (“the February contract”). Under the February contract, Hannon became Vice President- Integration of Carrier and remained based in Wallingford. XVI The February contract provided for Hannon’s continued employment with Carrier for a term of one year, except that the company could terminate the agreement at any time for cause, or without cause upon sixty days’ advance written notice. If the contract was terminated without notice, Hannon was entitled under the contract to be paid for the remaining term of the contract (e., through February 28, 2008). XVII Hannon’s February 28, 2007 employment contract also included stock options and an incentive bonus. XVIII Paragraph 4(b) of the February 28, 2007 contract provided: Mutually Agreed Termination: After six months of employment, we will review your employment status. If you and Carrier Access mutually agree that your services are no longer needed or Carrier Access does not offer you an equivalent job, you will receive a severance equal to six months of your base pay. Equivalent job is defined as a job with a vice president title with comparable scope, responsibility and authority. XIX Between February and August 2007, Hannon assumed his responsibilities as Vice President-Integration of Carrier. In that position, he supervised 25 employees and had direct responsibility and authority for the Edgeflex product line. XX On August 28, 2007, Carrier and Hannon had their six month review as provided under his employment agreement. XXI Carrier offered Hannon a revised employment agreement (“the August proposal”). The August proposal offered Hannon the title of Vice President - Business Development, which was an entirely new position to Hannon. Hannon had no prior marketing or sales experience. In contrast to Hannon’s prior position, as Vice President-Business Development he would have no direct reports and no product development responsibility or authority. XXII The August proposal did not offer Hannon an equivalent job, and for that reason Hannon’s right to six months’ severance under the February 28, 2007 contract ¶4(b) was triggered. XXIII Carrier’s initial proposal in August would have continued the prior severance agreement, namely that Hannon would only be entitled to severance through February 28, 2008 if discharged prior to that date. XXIV Hannon requested, and Carrier subsequently agreed, however, that Hannon would receive a six month severance no matter what the date of termination. XXV The new severance agreement was material to Hannon’s decision to accept the new position and in his continued employment at Carrier. XXVI The August proposal also specified that Hannon would receive a bonus in the amount of 30% of his base salary if he booked sales of Edgeflex exceeding $1 million in calendar year 2007. XXVII Hannon booked sales of Edgeflex exceeding $1 million in 2007. XXVIII In the August proposal, Hannon was given 10,000 restricted stock shares that were scheduled to vest over the next three years. Additionally, under the August proposal Hannon was granted an additional 21,000 performance-based restricted stock shares, with two separate milestone criteria for vesting. At the time of his discharge, 13,000 of these shares remained unvested. XXIX. On December 15, 2007 Turin Networks, Inc. entered into an agreement to acquire Carrier Turin was a privately-held corporation, and agreed to pay $2.60 per share for all of Carrier’s outstanding stock. The acquisition was finalized on Febraury 8, 2008. XXX. Four days later, Mr. Hannon was terminated effective December 19, 2007, allegedly “due to a change in business circumstances” and a “reduction in force” XXXI. Carrier did not pay Hannon’s six months severance. XXXII. The sale of Carrier constituted a change of control under Carrier’s restricted stock plan and agreement. This resulted in the immediate vesting of Hannon’s remaining 23,000 shares with a total value of $59,000. XXXIII. During the negotiations for the sale of Carrier to Turin, representatives of Turin initially indicated that they did not wish to purchase the former Mangrove business unit XXXIV. Carrier’s CEO approached Hannon and promised that Carrier would pay Hannon $50,000 if Hannon could find a buyer for the Mangrove business unit (“finder’s fee”). XXXV. Hannon found two companies willing to buy Mangrove and began the due diligence process. XXXVI. Turin indicated that it viewed Mangrove as a potential competitor for its own products, and it did not want Mangrove sold. Thereafter, Carrier decided to shut down the former Mangrove unit. XXXVII. Although Hannon had produced willing buyers for Mangrove, Carrier did not honor its promise to pay Hannon a finder’s fee

COUNT ONE: BREACH OF CONTRACT (SEVERANCE PAY) XXXVIII. Paragraphs 1 through 32 are hereby incorporated by refernce.

XXXIX. Carrier and Hannon entered into an agreement that if Carrier terminated Hannon without cause prior to February 28, 2008, Carrier would pay Hannon six months’ salary as severance. XL The consideration for this agreement was Hannon’s agreement to assume the reduced position of Vice President-Business Development, rather than exercising his right under the February 2007 contract to an immediate severance payment of six months’ salary. XLI. Carrier terminated Hannon without cause, effective December 19, 2007. XLII. Based upon the parties’ agreement, Carrier was obligated to pay Hannon six months’ severance, in the amount of $100,000. XLIII. Defendants failed to pay Hannon his severance package owed and owing, in violation of the parties’ agreement. XLIV. Hannon has suffered pecuniary loss in the amount of $100,000 as a result of the defendants’ breach.

COUNT TWO: BREACH OF CONTRACT (BONUS) XLV. Paragraphs 1 through 39 are hereby incorporated by reference.

XLVI. Carrier and Hannon entered into an agreement that if Hannon booked $1 million in sales of the Edgeflex product during calendar year 2007, he would be paid a bonus of $30,000. XLVII. Hannon booked at least $1 million in sales of Edgeflex during 2007. XLVIII. Carrier failed to pay Hannon his $30,000 bonus, in violation of the parties’ contract. XLIX. Hannon has suffered pecuniary loss in the amount of $30,000 as a result of the defendants’ breach

COUNT THREE: BREACH OF CONTRACT (STOCK OPTIONS). L. Paragraphs 1 through 44 are hereby incorporated by refernce.

LI. In the August proposal, Carrier promised Hannon a total of 31,000 of stock options to vest at various points in 2007. The terms of the stock option plan provided that the options would vest immediately upon a change in control of Carrier. LII. On or about December 15, 2007, Turin agreed to acquire Carrier for the price of $2.60 per share, thus effecting a change in control. Hannon’s stock options were vested as of this date. LIII. Hannon was terminated effective December 19, 2007. LIV. At the time of his discharge, 13,000 of Hannon’s options remained unexercised. LV. However, Carrier has refused to allow Hannon to exercise these options. LVI. Hannon has suffered pecuniary loss of approximately $59,000 as a result of the defendants’ breach.

COUNT FOUR: BREACH OF CONTRACT (PURCHASE OF MANGROVE) LVII. Paragraphs 1 through 51 are hereby incorporated by reference.

LVIII. Carrier promised to pay Hannon a finder’s fee of $50,000 if he found a company that was ready, willing and able to purchase the Mangrove business unit of Carrier. LIX. Hannon found a company ready, willing and able to purchase the Mangrove business unit, and began the due diligence process. LX. However, Turin then decided it did not want Mangrove sold, and the defendants refused to pay Hannon the finder’s fee on which the parties had agreed. LXI. annon has suffered pecuniary loss of approximately $50,000 as a result of the defendants’ breach.

COUNT FIVE: NEGLIGENT MISREPRESENTATION LXII. Paragraphs through are hereby incorporated by reference.

LXIII. Carrier promised to pay Hannon six months’ salary as severance if he were terminated without cause between August 28, 2007 and February 28, 2008. LXIV. Carrier promised to pay Hannon a bonus of $30,000 if he closed more than $1 million in sales of Edgeflex in calendar year 2007. LXV. Carrier promised Hannon stock options if he accepted a new position with the company as of August 2007, and promised that those options would vest upon a change in control of the company. LXVI. Carrier promised to pay Hannon a finder’s fee of $50,000 if he found a purchaser ready, willing and able to purchase the Mangrove business unit. LXVII. Hannon reasonably relied on the above promises, to his detriment. lxviii. Defendants have failed to keep their promises. . LXVIII. Defendants have failed to keep their promises. LXIX. As a result of defendants’ failure to keep their promises, Hannon has suffered pecuniary loss.

COUNT SIX: WAGE CLAIM (Conn. Gen. Stat. ' 31-72 et seq.)(Bonus) LXX. Paragraphs 1 through 64 are hereby incorporated by reference.

LXXI. The bonus owed by the defendants to Hannon constitutes wages as that term is defined under Conn. Gen. Stat. '31-71a(3). LXXII. Defendants have failed to pay Hannon his earned bonus. LXIII. Defendants’ failure to pay Hannon his earned bonus violates Conn. Gen. Stat. ' 31-71b. lxxiv. Hannon has suffered pecuniary loss as a result of defendants’ actions. LXIV. Hannon has suffered pecuniary loss as a result of defendants’ actions.

COUNT SEVEN: WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY LXV Paragraphs 1 through 69 are hereby incorporated by reference.

LXVI. . Hannon was entitled to immediate vesting of his remaining restricted stock upon Turin’s agreement to acquire Carrier on December 15, 2007. LXVII. Ratification of the agreement was not scheduled until February 8, 2008. LXVIII. Defendants discharged Hannon on December 19, 2007. LXIX. Defendants manipulated the timing of Hannon’s discharge to avoid the vesting of his remaining restricted stock. LXXX. There are strong federal and state public policies protecting wages and earned bonuses. See Connecticut Wage Statutes, Conn. Gen. Stat. ' 31-71a et seq.; Fair Labor Standards Act, 29 U.S.C. ' 201 et seq. LXXXI. These statutes represent a public policy against discharging employees to avoid payment of monies otherwise due to employees by employers. LXXXII. The timing of Hannon’s discharge in December 2007 to avoid payment of his 2007 bonus and stock options that would have vested upon completion of Carrier’s sale to Turin constituted a wrongful discharge in violation of public policy. LXXXIII. Hannon has suffered pecuniary and compensatory loss as a result of his wrongful discharge.

COUNT EIGHT: (Denial of Benefits under Severance Plan, 29 U.S.C. §1132(a)(1)(B))

LXXXIV. Paragraphs 1 - 78 are hereby incorporated by reference. LXXXV. The defendants breached their obligations to the plaintiff under the provisions of his August 2007 restricted stock grant and the 1998 Carrier Access Stock Incentive Plan LXXXVI. Plaintiffs have exhausted their administrative remedies under the 1998 Carrier Access Stock Incentive Plan. LXXXVII. 29 U.S.C. §1132(a)(1)(B) entitles plaintiffs to enforce their right to benefits under the 1998 Carrier Access Stock Incentive Plan.

COUNT NINE: (ERISA §510 Claim - 29 U.S.C. §1140) LXXXVIII. Paragraphs 1 - 82 are hereby incorporated by reference.

LXXXIX. Plaintiff was entitled to benefits protected under ERISA. LXXXX. The defendants, through their agents, servants, and/or employees, interfered with the plaintiffs efforts to obtain benefits protected under ERISA, to wit, his restricted stock, by terminating his employment prior to the final vote on Turin’s acquisition of Carrier in order to attempt to avoid the vesting of his restricted stock. CLAIM FOR RELIEF Wherefore, the plaintiff requests damages in excess of $15,000, double damages pursuant to Conn. Gen. Stat. §31-72, reasonable attorney=s fees and costs incurred in connection with this action, and such other additional and alternative relief as may appear to this Court to be just and equitable. THE PLAINTIFF, John Hannon BY: Lewis H. Chimes Juris 303446 Alexandra K. Block Juris GARRISON, LEVIN-EPSTEIN, CHIMES & RICHARDSON 405 Orange Street New Haven, CT 06511 Tel. (203) 777-4425 Fax (203) 776-3965 lchimes@garrisonlaw.com ablock@garrisonlaw.com

PLEASE ENTER OUR APPEARANCES ON BEHALF OF THE PLAINTIFF

31-51Q CLAIM (COUNT SIX); WRONGFUL DISCHARGE (COUNT SEVEN) UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES ex rel. :

RICHARD WEST and :
RICHARD WEST, individually : CIVIL NO. 3:04-CV-212 (JBA)

Plaintiffs : :

: TIMEX CORPORATION : Defendant : JULY 18, 2005 : AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Introduction

Richard West brings this action on behalf of the United States of America against defendant Timex Corporation for treble damages and civil penalties arising from defendant’s false statements and false claims in violation of the Civil False Claims Act, 31 U.S.C. §§ 3729 et seq. The violations arise out of false “most favorable price” certifications and warranties in Timex contracts with the United States Government, including the Army and Air Force Exchange Service (AAFES), Navy Exchange Service Command (NEXCOM) and Marine Corps Exchange (MCX). West also brings “whistleblower” claims under the False Claims Act, a free speech claim under Connecticut General Statutes, and a common law claim.

As required by the False Claims Act, 31 U.S.C. § 3730(b)(2), West has provided to the Attorney General of the United States and to the United States Attorney for the District of Connecticut a statement of all material evidence and information related to the complaint. This disclosure statement is supported by substantially all material evidence known to relator at his filing establishing the existence of defendant’s false claims. Because the statement includes attorney-client communications and work product of relator’s attorneys, and is submitted to the Attorney General and to the United States Attorney in their capacity as potential co-counsel in the litigation, West understands this disclosure to be confidential.

Jurisdiction III. Counts one through five of this action arise under the False Claims Act, 31 S.C. § 3729 et seq. This Court has jurisdiction over these counts pursuant to 31 U.S.C. §§ 3732(a) and 3730(b). This court also has jurisdiction over these counts pursuant to 28 U.S.C. §§ 1345 and 1331. This Court has jurisdiction over counts six and seven pursuant to 28 U.S.C. §§ 1332(a)(1) and 1367(a).

IV. Venue is proper in this District pursuant to 31 U.S.C. § 3732(a), because the acts proscribed by 31 U.S.C. §§ 3729 et seq. and complained of herein took place in this District, and is also proper pursuant to 28 U.S.C. § 1391(b) and (c), because at all times material and relevant, Timex transacts and transacted business in this District.

Parties

V. Richard West is a citizen of the United States and a resident of the State of Texas. From 1994 to 2003, he was the Military Account Sales Manager for Timex. West brings this action based on his direct, independent, and personal knowledge and also on information and belief. VI. West is an original source of this information to the United States. He has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under the False Claims Act which is based on the information VII. Timex is a Delaware private stock corporation with headquarters located at 550 Christian Road, Middlebury, Connecticut. Timex makes and sells watches.

Facts Common to All Counts

Timex Sales to the United States Military Exchanges VIII. Timex has been selling watches to the U.S. military exchange services for over fifty years. IX. Since May 1958, Timex has used a manufacturer’s sales representative, C. Lloyd Johnson Co., Inc. (CLJ). X. Timex ships watches to CLJ’s Norfolk, Virginia warehouse from the Timex factory in Cebu,Philippines. XI. Each branch of the United States military has an exchange service: the Army and Air Force Exchange Service (AAFES), the Navy Exchange Command (NEXCOM), and the Marine Corp Exchange (MCX). The Coast Guard Exchange System (CGES) serves the Coast Guard. The exchanges buy goods and services for resale to active duty personnel and their dependants, military and Coast Guard retirees and their dependents, and exchange civilian employees. A large portion of the exchanges’ net profits fund Morale, Well-being and Recreation (MWR) spending for active duty personnel. There are about 450 base exchanges around the globe, and about 800 total exchange posts altogether, including temporary exchanges in forward military bases. XII. The exchanges are integral parts of their respective departments. For instance, AAFES is a joint command of the Army and Air Force, under the jurisdiction of the Chiefs of Staff of the Army and the Air Force. The exchanges are nonappropriated fund instrumentalities of the United States Government. The contracts of the exchange services are United States contracts, enforceable against the United States Government. See 28 U.S.C. §1491(a)(1); 31 U.S.C. 1304(c). XIII. CLJ then ships the watches around the country and the world, in response to the exchanges’ purchase XIV. CLJ then invoices the exchanges on Timex’s behalf. CLJ never takes title to the watches, but rather takes delivery, ships and invoices the watches on a consignment basis for tiex. XV. The watches are sold under the terms and conditions of each exchange, which are similar in all relevant respects. Each exchange demands that Timex warranty or certify that the exchange is receiving the most favorable price for Timex’s products. For instance, Section C(2)(a) of the NEXCOM General Provisions Publication Number 61 provides: Most Favored Customer The Contractor certifies that prices, terms and conditions offered under this contract, including consideration of any discount rebate arrangements, do not exceed prices then charged the Contractor’s most favored customer or other military exchange for like items. These general provisions apply to all nonappropriated fund contracts and purchase orders for supplies and services issued by NEXCOM. All of the exchanges’ contracts with Timex contain a provision similar to or identical with the NEXCOM provision. XVI. As part of the “most favored customer” provisions, Timex was required by contract with each exchange to offer the exchanges the same special offers, coupons, co-opt advertising, rebates, or other special terms that were offered to any other XVII. This universal “most favored customer” provision is the cornerstone of the exchanges’ success, as it is only way that the exchanges can achieve their twin goals of: (1) providing low cost goods and services to eligible servicemen and women and their dependents; and (2) returning funds for morale, well-being and recreation. XVIII. In 2002, Timex enjoyed over $12 million in gross sales to the military exchange services. XIX. The military exchanges are one of Timex’s biggest customers. Timex Sales to WalMart XX. Timex has been selling watches directly to the discount retailer WalMart for about the past fifteen years. XXI. Timex charges WalMart lower prices, and offers WalMart better terms and conditions than all of Timex’s other customers, including the United States military exchanges. Upon information and belief, WalMart has received this preferential treatment throughout the limitations period XXII. For instance, WalMart pays $23.53 for the Timex Ironman Triathalon (model T62962), while no other customer, including the United States military exchanges, pays less than $24.00. XXIII. Timex has also afforded WalMart special offers, coupons, co-op advertising, rebates or other special terms that it has not offered to the exchanges. XXIV. A two to three percent “WalMart discount” is representative for all Timex waches. XXV. The goods Timex sells to WalMart and to the exchanges are identical. Timex Gives NEXCOM Preferential Markdown and Return Terms XXVI. Until 2003, Timex offered all the exchanges the same markdown and return terms for discontinued Timex inventory. XXVII. In early 2003, NEXCOM had a significant amount of discontinued Timex inventory. XXVIII. NEXCOM’s buyer demanded that Timex offer NEXCOM more favorable return and markdown terms than Timex offered the other exchanges. XXIX. Timex offered NEXCOM more favorable markdown and return terms than the other exchanges enjoyed, and NEXCOM accepted Timex’s Offer. J Richard West’s Discoveries XXX. West first learned of the pricing inequality between the United States military exchanges and WalMart in November 2002 at a Timex corporate meeting in Waterbury, Connecticut. XXXI. At that meeting, Joe Santana, president of Timex, and his senior staff attended a series of business presentations by each key account manager. XXXII. During the course of the WalMart presentation, Scott Machado, Timex’s key account manager for WalMart, told the group about WalMart’s preferential pricing. XXXIII. At this point, West stood up and interrupted the presentation, telling the assembled group that Timex had to offer the military the lowest price. XXXIV. West’s comment went unanswered, and Mr. Machado’s presentation Continued. XXXV. Timex subsequently offered West no defense or explanation for the pricing practice, despite his repeated demands. XXXVI. Thereafter, in or about September of 2003, West saw, for the first time, a price list which showed Timex’s prices to the exchanges and to WalMart side by side. XXXVII. West saw that Timex was providing a more favorable price to WalMart for each and every model of watch which it sold to the military exchanges. XXXVIII. West again raised the pricing issue with his direct supervisor and told him that he believed such pricing to be a violation of Timex’s contractual obligations to the exchanges and unlawful under applicable federal law. XXXIX. Again, West received no response, explanation or justification. XL. West made several oral complaints regarding the inequalities between Walmart, the exchanges, and NEXCOM to Timex managers between November, 2002 and November 2003, but Timex failed to respond to his comments and complaints. XLI. In November 2003, despite job performance which put West in line to be Timex’s key account/team leader of the year for the second straight year, Timex discharged him from its employ. XLI. At the time of his discharge, West was assured expressly that his discharge was not performance related.

COUNT ONE - Violation of 31 U.S.C. §3729(a)(1) as to WalMart Sales XLIII. Paragraphs 1-42 are realleged as set forth herein.

XLIV. Timex knowingly submitted thousands of invoices to the United States military in the period from November 2002 to November 2003, and on information and belief, did so before that period and continues to do so. XLV. Each of those invoices accepted the terms and conditions of the relevant exchange. XLVI. Timex had actual knowledge that it sold watches to WalMart at a better price than it sold watches to the United States Military exchanges, Timex acted in deliberate ignorance of the fact that it sold watches to WalMart at a better price than it sold watches to the United States Military exchanges, or, with reckless disregard, Timex sold watches to the United States Military exchanges at a higher price than it sold watches to WalMart. XLVII. Timex knowingly breached the terms and conditions of each exchange’s acquisition contract by selling watches to the United States military exchange at a higher price than it sold watches to WalMart. XLVIII. Timex failed to offer the exchanges the same special offers, coupons, co-op advertising, rebates, or other special terms it offered to Walmart and other customers. XLIX. Timex violated 31 U.S.C. §3729(a)(1). L. The United States suffered damage in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watches. LI. The United States suffered damage in that Timex failed to extend the same special offers, coupons, co-op advertising, rebates, or other special terms to the exchanges that it offered to Walmart, which caused the exchanges to pay a higher price for Timex products that Walmart. LII. Based on Timex’s annual sales to the exchanges of over $12 million, the United States suffered over $250,000 in damages because of the “WalMart discount” that Timex did not offer to the exchanges.

COUNT TWO - Violation of 31 U.S.C. §3729(a)(1) as to NEXCOM Sales LIII. Paragraphs 1-42 are realleged as set forth herein.

LIV. Timex knowingly submitted over a thousand invoices to the United States military in the period from May 2003 to November 2003, and on information and belief, continues to do so. LV. Each of those invoices accepted the terms and conditions of the relevant exchange.. LVI. Timex had actual knowledge that it sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges, Timex acted in deliberate ignorance of the fact that it sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges, or, with reckless disregard, Timex sold watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges. LVII. Timex knowingly breached the terms and conditions of each exchange’s acquisition contract by selling watches to NEXCOM at better terms than it sold watches to the other United States Military exchanges. LVIII.Timex violated 31 U.S.C. §3729(a)(1). LIX The United States suffered damages in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watched and that it bough the watches without receiving the same special offers, coupons, co-op advertising, rebates, or other special terms to Timex’s most favored customer.

COUNT THREE - Violation of 31 U.S.C. §3729(a)(2) arising from WalMart Sales

LX. Paragraphs 1-69 are realleged as if set forth more fully herein. LXI. With each invoice it presented to the Government, Timex certified and/or warranted that the Government was receiving the price paid by Timex’s most favored customer and the same special offers, coupons, co-op advertising, rebates, or other special terms were offered to the exchanges as to Timex’s most favored customer. LXII. These certifications were false. LXIII. Timex violated 31 U.S.C. §3729(a)(2). LXIV.The United States suffered damage in that it paid a higher price for the watches it bought from Timex than it would have done if Timex properly priced the watches.

COUNT FOUR - Violation of 31 U.S.C. §3729(a)(2) arising from NEXCOM

Sales LXV. Paragraphs 1-64 are realleged as if set forth more fully herein.

LXVI. With each invoice it presented to the Government, Timex expressly certified and/or warranted that the Government was receiving best terms and conditions offered to Timex’s most favored customer. LXVII. These certifications were false as to AAFES, MCX and CGES. lxviii. LXVIII. Timex violated 31 U.S.C. §3729(a)(2). LXIX.The United States suffered damage in that it paid a higher net price for the watches it bought from Timex than it would have done if Timex offered the terms and conditions it offered NEXCOM to all of the United States Military exchanges.

COUNT FIVE - Violation of 31 U.S.C. §3730(h)

LXX. Paragraphs 1-69 are realleged as if set forth more fully herein LXXI. West was harassed in and terminated from his employment by Timex as a result of his lawful acts done in furtherance of this action, including complaints to corporate officials regarding the false claims described herein. This harassment and termination was in violation of 31 U.S.C. § 3730(h). LXXII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial.

COUNT SIX - Violation of General Statutes §31-51q LXXIII. Paragraphs 1-72 are re-alleged as if set forth more fully herein.

LXXIV. West’s reports, complaints, comments, objections, concerns and investigations concerning Timex’s differential pricing and failure to offer same special offers coupons, co-opt advertising, rebates, or other special terms offered to its most favored customer were protected by the First Amendment of the Constitution of the United States and/or Article first, §§ 4 & 14 of the Constitution of the State of Connecticut. LXXV. West’s reports, complaints, comments, objections, concerns and investigations concerning Timex’s differential pricing between the United States Military exchanges and WalMart did not substantially or materially interfere with West’s job performance or his working relationship with Timex. LXXVI. . Timex violated Connecticut General Statutes § 31-51q.. LXXVII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial.

COUNT SEVEN - Common Law Wrongful Discharge LXXVII. Paragraphs 1-77 are re-alleged as if set forth more fully herein.

LXXIX. Public policy mandates that companies and persons who do business with the government do so with integrity, honesty and in full compliance with relevant regulations, contract provisions and terms. See, e.g., 31 U.S.C. § 3730. LXXX. Timex forced West to choose between his integrity in dealing with the government and his continued employment. LXXXI. Timex wrongfully discharged West after he complained, commented, objected to and investigated Timex’s violations of public policy. LXXXII. Timex’s discharge of West was wrongful. LXXXIII. As a direct and proximate result of this unlawful and discriminatory harassment and termination, plaintiff has suffered emotional pain and mental anguish, together with serious economic hardship, including lost wages and special damages associated with his efforts to obtain alternative employment, in an amount to be proven at trial. WHEREFORE, relator respectfully requests this Court to enter judgment against the defendant, as follows: A. That the United States be awarded damages in the amount of three times the damages sustained by the United States because of the false claims and fraud alleged within this Complaint, as the Civil False Claims Act, 31 U.S.C. §§ 3729 et seq. provides; B.That civil penalties of $11,000 be imposed for each and every false claim that defendant presented to the United States and/or its agents; C. That pre- and post-judgment interest be awarded, along with reasonable attorneys’ fees, costs, and expenses which West incurred in bringing and pressing this case; D. That the Court grant permanent injunctive relief to prevent any recurrence of the False Claims Act for which redress is sought in this Complaint; E. That West be awarded the maximum amount allowed to him pursuant the False Claims Act; F. On Count Five, that West be granted all relief necessary to make him whole, including but not limited to two times his back pay, interest on the back pay and other compensatory damages sustained as a result of defendants’ harassment and retaliation; G On Count Six that West be granted all relief necessary to make him whole, including but not limited to his back pay and other compensatory damages sustained as a result of defendants’ harassment and retaliation, and attorney’s fees; H.On Count Seven, that West be granted all relief necessary to make him whole, including but not limited to his back pay and other compensatory damages sustained as a result of defendants’ harassment and retaliation, and punitive damages; and I. That this Court award such other and further relief as it deems

DEMAND FOR JURY TRIAL

J.Richard West, on behalf of himself and the United States, demands a jury trial on all claims alleged herein. Dated on this day of July, 2005 at New Haven, Connecticut, UNITED STATES OF AMERICA ex rel. J. RICHARD WEST and J RICHARD WEST and By: Lewis H. Chimes (ct07023) David C. Nelson (ct26640) Garrison, Levin-Epstein, Chimes & Richardson 405 Orange Street New Haven, CT 06511 (203) 777-4425 Fax: (203) 776-3965 Lchimes@Garrisonlaw.com Dnelson@Garrisonlaw.com

COVID-19: Impacts on Employees and Small Businesses

2022-09-20T12:35:50Z

COVID-19: Impacts on Employees and Small Businesses

- I. CORONA VIRUS AID, RELIEF AND SECUIRTY ACT (CARES ACT)
A. CARES ACT Stimulus Check
- - 1. Individuals earning $75,000 or less get a one-time stimulus check based upon 2018 or 2019 tax returns, plus $500 for each child under 17
- - 1. Stimulus payment phased out through $99,000. Individuals earning > $99,000 receive no stimulus check
- - 1. File your 2019 Income Tax return
B. State Unemployment Benefits
- - 1. Current cap - $640 – under state formula typically – replaces 25 -35% of employee wages
    2. Inapplicable to independent contractors, self-employed
    3. Normally unemployed individual must be able to work and actively seek work to be physically able to work
    4. Lamont has waived the requirement that unemployed persons actively seek work or be physically able to work.
C. Expanded Unemployment Benefits Under CARES Act
- - 1. Increases unemployment benefits by $600 for unemployed workers for an additional 13 weeks
    2. Waives 1 week waiting period
    3. Expands coverage for self-employed, independent contractors (gig workers, drivers) and furloughed workers
    4. Under CARES Act, EEs earning less than $60,000 per year may receive more compensation through unemployment than their regular
    5. Expanded benefit period runs through July 31,
    6. State Labor Departments administer expanded DOL benefits*
    7. From DOL Website 4/1/2020:
The CT Labor Department is working diligently to analyze the federal pandemic relief details found within the Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law on 3/27/2020. We appreciate your patience as we await guidance from USDOL, and work with technical experts to develop additional programming within the CTDOL Unemployment Insurance system to accommodate the new federal relief programs. At this time, we have no additional information regarding the timeframe within which we will implement these federal programs, but we are working hard to serve the citizens of CT and ask that you check these FAQs DAILY for updates.
- - 1. Issues with CT DOL administering these benefits
D. Partial Unemployment – Shared Work Program
- - 1. DOL Has Shared Work Program that allows employers to reduce hours and wages by between 10-60% and permits employees to collect partial unemployment
      1. Advantage to EE is retain benefits and reduction partially subsidized by State
      2. EE receives full unemployment benefit reduce by percentage reduction in hours/wages
      3. Advantage to ER is to reduce costs, but retain employee in some capacity
      4. ER needs to apply for shared work option
- - 1. CARES ACT Impact on Shared Work Program
      1. Cares Act provides additional federal funding for state shared work programs;
      2. CARES Act appears not to distinguish between persons applying for full unemployment benefit and those applying for partial unemployment benefit for purposes of receipt of CARES ACT $600
II. FAMILIES FIRST CRONA VIRUS RELIEF ACT
- - 1. Emergency Paid Sick Leave (EPSL)
- - 1. Applies to Employers with 0- 500 employees
    2. Employee entitled to paid sick leave if:
      1. Subject to federal state or local isolation or quarantine order
      2. Advised by health care provider to self-quarantine due to COVI-19 concerns
      3. Experiencing symptoms of COVID-19 and seeking medical diagnosis
      4. Caring for an individual subject to quarantine order or has symptoms of COVID-19
      5. Caring for child if school or place of care has been closed;
      6. Experiencing substantially similar conditions specific by Sec. HHS
    3. Rate of sick time:
      1. Full pay if EE is sick or quarantined
      2. 2/3 pay if EE is care provider
    4. Duration of Paid sick leave – 2 weeks
    5. Cap on sick time payment:
      1. $511/day $5,110 total if EE is sick or quarantined
      2. $200/day $2,000/aggregate if EE is care provider
    6. ER cannot make EE exhaust other paid leave benefits before taking EPSL sick time
    7. Does not apply to Health Care Providers
    8. EPSL expires 12/31/2020
    9. ER paying out sick leave gets dollar for dollar tax credit
B. Emergency Family Leave Expansion Act
- - 1. Applies to Employers with 0 – 500 Employees
NB: Regular FMLA applies to ER with >50 employees
- - 1. Who qualifies:
      1. EE must have worked for employer more than 30 days
NB: Regular FMLA requires EE to be employed > 1 year
- - 1. EE unable to work due to need to care for child under 18 years of age if school or childcare closed due to Covid-19 emergency
    1. Length of leave: Up to 12 weeks (10 weeks plus two weeks EPSL)
    2. Amount of payment: 2/3 pay
    3. EE Notice requirement: As soon as practicable (No notice requirement)
    4. Job Restoration Requirement at end of leave
      1. ERs < 25 EEs: No job restoration requirement if:
        
        Position held by EE no longer exists due to economic conditions caused by health emergency
        
        ER makes reasonable efforts to restore EE to position
- - - ER makes reasonable efforts to contact EE if comparable position becomes available within the next year
    1. Does not apply to health care providers
    2. Expanded FMLA expires 12/31/2020
    3. ER paying out expanded FMLA benefits gets dollar for dollar tax credit
III. Health Insurance Issue
- - 1. CARES ACT has provisions for providing coverage for treatment on Corona Virus
    2. Neither CARES ACT or FAMILIES FIRST CRONA VIRUS RELIEF ACT make any additional provisions for providing health care to laid off or furloughed workers
    3. Still need to rely upon: COBRA, ACA, Husky
IV. Stay at Home vs. Office (Can my boss force me to come to work at the office?)
- - 1. For non-essential workers: No. - Executive Order
    2. Few guidelines for how essential businesses operate
    3. Employer cannot force you to engage in illegal
    4. Order 7N - implementation of 6-foot separation
    5. No OSHA standards for COVID-19 yet
      1. But see “OSHA Guidance for Preparing Workplaces for COVID-19
      2. OSHA existing standards for use of eye protection, gloves, masks and respirators in the workplace
    6. If working in office not illegal, refusing to go into office is
V. Americans with Disability Act Issues
- - 1. Permissible for health and safety concerns for employers to inquire about exposure and testing for corona virus
    2. Impermissible to terminate EE for contracting virus, record of employee having had the virus, or perception that employee had or has been exposed to virus
Lewis Chimes
Law Office of Lewis Chimes 45 Franklin Street Stamford, CT 06901 [nap_phone id="LOCAL-REGULAR-NUMBER-1"] www.chimeslaw.com lchimes@chimeslaw.com CORONA VIRUS AID, RELIEF AND SECUIRTY ACT (CARES ACT) A. CARES ACT Stimulus Check
1. Individuals earning $75,000 or less get a one-time stimulus check based upon 2018 or 2019 tax returns, plus $500 for each child under 17
1. Stimulus payment phased out through $99,000. Individuals earning > $99,000 receive no stimulus check
1. File your 2019 Income Tax return
B. State Unemployment Benefits
1. Current cap - $640 – under state formula typically – replaces 25 -35% of employee wages
2. Inapplicable to independent contractors, self-employed
3. Normally unemployed individual must be able to work and actively seek work to be physically able to work
4. Lamont has waived the requirement that unemployed persons actively seek work or be physically able to work.
C. Expanded Unemployment Benefits Under CARES Act
1. Increases unemployment benefits by $600 for unemployed workers for an additional 13 weeks
2. Waives 1 week waiting period
3. Expands coverage for self-employed, independent contractors (gig workers, drivers) and furloughed workers
4. Under CARES Act, EEs earning less than $60,000 per year may receive more compensation through unemployment than their regular
5. Expanded benefit period runs through July 31,
6. State Labor Departments administer expanded DOL benefits*
7. From DOL Website 4/1/2020:
The CT Labor Department is working diligently to analyze the federal pandemic relief details found within the Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law on 3/27/2020. We appreciate your patience as we await guidance from USDOL, and work with technical experts to develop additional programming within the CTDOL Unemployment Insurance system to accommodate the new federal relief programs. At this time, we have no additional information regarding the timeframe within which we will implement these federal programs, but we are working hard to serve the citizens of CT and ask that you check these FAQs DAILY for updates.
1. Issues with CT DOL administering these benefits
D. Partial Unemployment – Shared Work Program
1. DOL Has Shared Work Program that allows employers to reduce hours and wages by between 10-60% and permits employees to collect partial unemployment
  1. Advantage to EE is retain benefits and reduction partially subsidized by State
  2. EE receives full unemployment benefit reduce by percentage reduction in hours/wages
  3. Advantage to ER is to reduce costs, but retain employee in some capacity
  4. ER needs to apply for shared work option
1. CARES ACT Impact on Shared Work Program
  1. Cares Act provides additional federal funding for state shared work programs;
  2. CARES Act appears not to distinguish between persons applying for full unemployment benefit and those applying for partial unemployment benefit for purposes of receipt of CARES ACT $600
II. FAMILIES FIRST CRONA VIRUS RELIEF ACT
1. Emergency Paid Sick Leave (EPSL)
1. Applies to Employers with 0- 500 employees
2. Employee entitled to paid sick leave if:
  1. Subject to federal state or local isolation or quarantine order
  2. Advised by health care provider to self-quarantine due to COVI-19 concerns
  3. Experiencing symptoms of COVID-19 and seeking medical diagnosis
  4. Caring for an individual subject to quarantine order or has symptoms of COVID-19
  5. Caring for child if school or place of care has been closed;
  6. Experiencing substantially similar conditions specific by Sec. HHS
3. Rate of sick time:
  1. Full pay if EE is sick or quarantined
  2. 2/3 pay if EE is care provider
4. Duration of Paid sick leave – 2 weeks
5. Cap on sick time payment:
  1. $511/day $5,110 total if EE is sick or quarantined
  2. $200/day $2,000/aggregate if EE is care provider
6. ER cannot make EE exhaust other paid leave benefits before taking EPSL sick time
7. Does not apply to Health Care Providers
8. EPSL expires 12/31/2020
9. ER paying out sick leave gets dollar for dollar tax credit
B. Emergency Family Leave Expansion Act
1. Applies to Employers with 0 – 500 Employees
NB: Regular FMLA applies to ER with >50 employees
1. Who qualifies:
  1. EE must have worked for employer more than 30 days
NB: Regular FMLA requires EE to be employed > 1 year
1. EE unable to work due to need to care for child under 18 years of age if school or childcare closed due to Covid-19 emergency
1. Length of leave: Up to 12 weeks (10 weeks plus two weeks EPSL)
2. Amount of payment: 2/3 pay
3. EE Notice requirement: As soon as practicable (No notice requirement)
4. Job Restoration Requirement at end of leave
  1. ERs < 25 EEs: No job restoration requirement if:
    1. Position held by EE no longer exists due to economic conditions caused by health emergency
    2. ER makes reasonable efforts to restore EE to position
- ER makes reasonable efforts to contact EE if comparable position becomes available within the next year
1. Does not apply to health care providers
2. Expanded FMLA expires 12/31/2020
3. ER paying out expanded FMLA benefits gets dollar for dollar tax credit
III. Health Insurance Issue
1. CARES ACT has provisions for providing coverage for treatment on Corona Virus
2. Neither CARES ACT or FAMILIES FIRST CRONA VIRUS RELIEF ACT make any additional provisions for providing health care to laid off or furloughed workers
3. Still need to rely upon: COBRA, ACA, Husky
IV. Stay at Home vs. Office (Can my boss force me to come to work at the office?)
1. For non-essential workers: No. - Executive Order
2. Few guidelines for how essential businesses operate
3. Employer cannot force you to engage in illegal
4. Order 7N - implementation of 6-foot separation
5. No OSHA standards for COVID-19 yet
  1. But see “OSHA Guidance for Preparing Workplaces for COVID-19
  2. OSHA existing standards for use of eye protection, gloves, masks and respirators in the workplace
6. If working in office not illegal, refusing to go into office is
V. Americans with Disability Act Issues
1. Permissible for health and safety concerns for employers to inquire about exposure and testing for corona virus
2. Impermissible to terminate EE for contracting virus, record of employee having had the virus, or perception that employee had or has been exposed to virus
Lewis Chimes
Law Office of Lewis Chimes 45 Franklin Street Stamford, CT 06901 [nap_phone id="LOCAL-REGULAR-NUMBER-1"] www.chimeslaw.com lchimes@chimeslaw.com

Law Office of Lewis Chimes LLC

From Victim to Suspect

Kordick Attorney Statement on Settlement with Town of Greenwich: “The outcome was never in doubt”

$650K settlement from Greenwich to ex-police captain OK’ed by judge, averting scheduled trial

In Memoriam: Sandra Mancinone Weiler

The cost of coming forward: What sexual assault survivors face when speaking out Women from all walks of life who come forward with accounts of sexual harassment or assault often face retaliation

NWLC Leads Amicus Brief in Support of Survivor Justice | NWLC

Developments in Labor and Employment Law in Connecticut

Court Denies Summary Judgment in Favor of Sexual Assault Victim After Arrest For Making a False Statement After She Makes Complaint to Police

MEMORANDUM OF DECISION ON TOWN DEFENDANTS’ MOTION FOR SUMMARYJUDGMENT, DKT. 141 AND RELATED MOTIONS

Background

Legal Standard

Parties Arguments

A. Town Defendants’ Arguments and Plaintiff’s Opposition

B. Plaintff’s false arrest and malicious prosecution claims

a. Probable Cause

b. Malice

c. Whether the criminal proceeding against Ms. Chase terminated in her favor.

C. Qualified Immunity

D. Connecticut Common Law Immunity

E. Plaintiff’s Equal Protection Claims

F. Plaintiff’s intentional infliction of emotional distress claims

Conclusion

______/s/________________

Potential Employment Causes Of Action Under Connecticut Law

Potential Employment Causes Of Action Under Connecticut Law

By: Lewis Chimes Garrison, Levin-Epstein,Chimes, Richardson & Fitzgerald

DISCRIMINATION/STATUTORY CLAIMS

A. Elements

B. Retaliation

C. Forums

D. Remedies

E. Statute of Limitation

II. Fair Employment Practices Act

A. Substantive Differences Between FEPA and the Federal Discrimination Statutes5

2. Covered Employers

3. Sexual Orientation

4. Pregnancy Discrimination

5. Disability Discrimination

a. Reasonable Accommodation

b. Perceived Disability

6. Age Discrimination

B. Damages

7. Punitive Damages

B. Available Forums

A. Administrative Exhaustion/Statutes of Limitation

1. The “Normal” Path to Court

PRACTICE POINTER: Do not fight a MAR dismissal to hard. It is the fastest way to get your case to court If the case is dismissed, do not request reconsideration Just get the release.

D. CHRO Finding of No Reasonable Cause

III. Family and Medical Leave Act

2.Forums

3. Scope of FMLA Coverage

4. Statute of Limitations

5. Damages and Remedies

IV. State Free Speech Claims (Conn. Gen. Stat. §31-51q)

A. Damages

B. Statute of Limitations

V. Wage Claim (Conn. Gen. §31-72, et seq.)

2. Misclassification/Overtime Claims

B. Damages

C. Forums

D. Statute of Limitations

COMMON LAW CLAIMS

I Breach of Contract

A Oral Contracts/Implied Contracts

B. Contracts Implied From Handbooks

C. Implied Contracts For Wages, Bonuses, Commissions, and Benefits

D. Statute of Limitation

E. Damages

II. Promissory Estoppel

A. Statute of Limitations

B. Damages

III. NEGLIGENT MISREPRESENTATION

B. Damages

C. Statute of Limitations

IV. Negligent Infliction of Emotional Distress

A Elements

B. Damages

C. Statute of Limitations

V. Intentional Infliction of Emotional Distress

/s/__________

A. Substantive Differences Between FEPA and the Federal Discrimination Statutes⁵