http://www.sscc-law.com/ The City of Shelton and Attorney Thompson recently won a major grievance arbitration victory in a case involving the application of the “Garrity Rule” before the Connecticut State Board of Mediation and Arbitration.  The case arose after a City police officer refused to answer any questions directed to him in an internal affairs investigation of the officer’s potentially unauthorized conduct.  The officer was directed to answer questions, and, pursuant to a labor law doctrine known as the “Garrity Rule”, was assured that his answers, so long as they did not in and of themselves constitute perjury or obstruction of justice, would not be subsequently used in any criminal prosecution against him.  Despite this warning, the officer still refused to answer the questions posed to him.  In response, the City’s chief of police suspended the officer for thirty days without pay for insubordination.  At arbitration, the City argued that the suspension was justified since the officer was given a proper Garrity Rule warning and was issued a direct order to answer questions.  In support of this argument, the City highlighted the fact that police departments are paramilitary organizations that must adhere to a strict command structure in order to operate efficiently.  The Union argued that the suspension did not satisfy the just cause standard.  The State Board of Mediation and Arbitration found in favor of the City and upheld the thirty-day suspension even though the officer had no prior record of discipline. http://www.sscc-law.com/newsresources-news-item.php?item=91 The Connecticut Superior Court has granted in full the summary judgment motion that Attorney McKeon filed on behalf of the New Britain Board of Education in a civil lawsuit brought by the Board's former Personnel Director, who claimed that the budget-driven elimination of his position in 2004 constituted a breach of contract.  Attorney McKeon had previously won a federal, age-discrimination lawsuit brought by the same plaintiff related to the 2004 reduction in force, which decision was affirmed by a panel of the United States Court of Appeals for the Second Circuit that included Sonia Sotomayor, who now sits on the United States Supreme Court. http://www.sscc-law.com/newsresources-news-item.php?item=89 On May 13, 2010, Attorney McKeon was the sole speaker at the State of Connecticut's Special Education Resource Center's day-long seminar on special education law.  This seminar was part of SERC's annual, multi-part Training in Special Education for Administrators, a program that is primarily designed for Superintendents and other central office administrators, as well as building prinicpals and assistant principals.  Attorney McKeon spoke on various facets of special education law as well as on recent developments related to Section 504 of the Rehabilitation Act. http://www.sscc-law.com/newsresources-news-item.php?item=90 A tripartite panel chose the Region 16 Board of Education’s last best offer in a single issue interest arbitration that was the final teachers’ binding interest arbitration of the 2009-10 season. After a negotiated settlement was rejected by the Region 16 Education Association, the arbitration panel was asked to choose between the Board and Association’s last best offers on wages for the 2010-11 and 2011-12 work-years. Both the Association and the Board offered a 2.99% overall increase for 2010-11 work year, but for 2011-12 the Association offered a 3.57% overall increase with the Board again offering a 2.99% overall increase. The parties’ proposals also differed in terms of distribution of the wage increases, with the Association favoring a distribution slanted toward senior teachers. At arbitration the panel determined that the Board of Education’s last best offer was more consistent with the statutory factors to be considered under the Teacher Negotiations Act, particularly the Board’s ability to pay. Attorney William Connon represented the Board of Education at arbitration and during the negotiations process. http://www.sscc-law.com/newsresources-news-item.php?item=88 Sullivan, Schoen's Spring 2010 Special Education Forum was held on April 6, 2010 at the Crowne Plaza Hotel in Cromwell, Connecticut. The Forum started off with an 8:30 Continental Breakfast, followed by a three-hour discussion from 9:00 until 12:00 with Attorneys McKeon, Sommaruga and Scott about issues and trends in special education law.  Scheduled topics included:  1.  Transition Plans and Goals -- the latest developments and why you should be concerned; 2.  Special education obligations with regard the Charter, Magnet and Choice Schools as Connecticut school districts "Race to the Top"; 3.  RTI/SRBI; 4.  Procedural compliance in PPT meetings and in the formulation of IEPs; and 5.  Pending legislation.  In addition, Forum attendees were invited to raise any additional topics or issues relating to special education or Section 504 of the Rehabilitation Act.  For more information on future forums please contact our Forum Coordinator, Debbie Gallo, at (860) 233-2141. http://www.sscc-law.com/newsresources-news-item.php?item=69 You may recall that last year, the General Assembly modified the state laws pertaining to school attendance requirements, (§§ 10-184 and 10-186 of the Connecticut General Statutes) in two ways:   1.                  Effective July 1, 2010, if a student voluntarily withdraws from enrollment in school and subsequently seeks readmission within 10 school days, the student must be provided school accommodations within 3 school days after the student seeks readmission. If a student subsequently seeks readmission more than 10 school days after terminating, the Board of Education may deny school accommodations for up to 90 school days from the date of the withdrawal.   2.                  Effective July 1, 2011, the option of a minor child to withdraw from enrollment will be raised from 16 to 17. Therefore, as of July 1, 2011, the parent or person having control of a child 17 years of age may consent to such child's withdrawal from school. Such parent or person shall personally appear at the school district office and sign a withdrawal form. The withdrawal form shall include an attestation from a guidance counselor or school-based administrator that the school district has provided such parent or person with information on the educational opportunities available in the school system and in the community.    We strongly urge you to review your policies and regulations concerning attendance requirements and revise them accordingly. If you would like assistance with these revisions, please contact Attorney Susan Scott at sscott@sscc-law.com or 860-233-2141 http://www.sscc-law.com/newsresources-resources-item.php?item=75 The Second Circuit, which covers New York, Connecticut and Vermont, recently issued a decision in Gorzynski v. Jet Blue Airways Corp., 2010 WL 569367 (2nd Cir. 2010), which underscores the importance of having both a well drafted sexual harassment policy as well as receptive and reliable administrators who understand how to handle such complaints.  The Gorzysnki case should serve as a reminder to employers that harassment claims must be taken very seriously and that such claims may not be defeated simply by asserting that an employee did not avail him or herself of the internal complaint opportunities.  The plaintiff in this matter, Diane Gorzynski, (hereinafter “Ms. Gorzynski”), alleged claims of a hostile work environment, age and sex discrimination, as well as claims of retaliatory conduct against her former employer, Jet Blue Airways Corp., (hereinafter “Jet Blue”). Ms. Gorzynski, age 54 and a customer service representative for Jet Blue, alleged that her immediate supervisor fostered a hostile work environment by making numerous sexually inappropriate comments, grabbing her and other women around the waist, tickling them, and gazing in a way that made her and other women feel as if he were mentally undressing them.  In accordance with Jet Blue’s internal harassment complaint procedure, which provided that any employee who believed he or she was the victim of sexual harassment “should bring that conduct to the immediate attention of his or her supervisor, the Human Resources Department, or any member of management,” Ms. Gorzynski complained to her direct supervisor about his conduct. The supervisor was unapologetic and was not disciplined for his alleged conduct. Shortly thereafter, Ms. Gorzynski was terminated from her position. As a result of her termination, Ms. Gorzynski filed suit in United States District Court.    Jet Blue moved for summary judgment on her hostile environment claim, claiming that it was unreasonable for Ms. Gorzynski to report the harassment only to her direct supervisor, particularly since he was the alleged perpetrator of the misconduct, and therefore, Jet Blue was entitled to rely on the Faragher/Ellerth affirmative defense to discriminatory harassment claims. The Faragher/Ellerth affirmative defense consists of two elements. The first is that an employer must take reasonable steps to prevent and promptly correct any harassing conduct; and second, the employee must unreasonably fail to avail herself of any preventative or corrective opportunities provided by the employer. The District Court found in favor of Jet Blue and granted its motion for summary judgment.  Ms. Gorzynski appealed to the Second Circuit Court of Appeals. The Second Circuit reversed the lower court’s decision and concluded that Ms. Gorzynski had presented sufficient evidence to create a genuine issue of material fact as to whether she had endured a hostile work environment. The Court found that Jet Blue was not entitled to assert an affirmative defense under the Faragher/Ellerth framework. In making this determination, the Court’s decision turned on the second element of this affirmative defense and rejected Jet Blue’s argument that Ms. Gorzynski had failed to avail herself of the alternate opportunities that its policy provided to her, namely to report the conduct to other members of management. The Court stated: We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints. There is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic. Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.   See Gorzynski, 2010 WL 569367, *9.             Accordingly, the Court further concluded that an employer, as a matter of law, is not entitled to the Faragher/Ellerth defense simply because its harassment policy provides that an employee could have complained to other management personnel in addition to the alleged harasser. The Court further elaborated that a harassed employee cannot be required to exhaust every avenue available to her, especially when it may be ineffective to do so. Instead, the specific facts and circumstances of each case must be reviewed to determine whether, by not pursuing other alternatives provided in the sexual harassment policy, the plaintiff unreasonably failed to avail herself of the employer’s preventive opportunities.  In the instant case, the Court determined that a jury could find that the employee’s actions were not unreasonable because she was following company policy by reporting the conduct to her immediate supervisor.  Furthermore, evidence had been presented that another manager had not been receptive to employee complaints and his behavior led employees to believe that complaints could be met with retaliation. This case provides a reminder that deficient harassment policies may expose employers to significant liability under Title VII of the Civil Rights Act of 1964.  Employers must ensure that they have well-drafted sexual harassment prevention policies and have personnel managers that are well-trained in responding to such complaints.  If an employee can demonstrate that it would be ineffective to complain under an employer’s sexual harassment policy, then the Faragher/Ellerth affirmative defense will not be successful. If you would like a review of your sexual harassment policy or assistance with supervisory training, our firm is able to assist you. http://www.sscc-law.com/newsresources-resources-item.php?item=76 The State Department of Education (SDE) has posted its model “Parental Notification of the Laws Relating to the use of Seclusion and Restraint in the Public Schools” on its website at http://www.sde.ct.gov/sde/cwp/view.asp?Q=320730&a=2678 .  Effective immediately, this Notification must be provided to parents/guardians of students receiving special education or in the referral process as follows:  1.   For students in the referral process, at the first PPT meeting following referral. For students already receiving special education: at the first PPT meeting convened after October 1, 2009 Additionally, at the first PPT meeting in which the use of seclusion as a behavior intervention is included in the child’s IEP.  In light of this new SDE Parental Notification form and the recently finalized SDE regulations on restraint and seclusion, we have revised our model “Restraint & Seclusion” policy and regulations, which now include the SDE draft incident report and Parental Notification forms. Please contact Attorney Susan Scott at sscott@sscc-law.com if you would like to update your district’s policy and regulation.   http://www.sscc-law.com/newsresources-resources-item.php?item=74 The New Britain teachers’ union claimed that the Board of Education violated the collective bargaining agreement when it transferred a school psychologist from one school to another without posting either position as a vacancy.  The arbitrator found for the employer and ruled that the employee was involuntarily transferred, pursuant to the contract.  Although involuntary transfers do, in a sense, create vacancies, to treat them as such would effectively nullify and render meaningless the involuntary transfer provision in the contract.  AAA Case # 12 3900 0057408  (7/15/09) Arbitrator Schmertz.  Attorney Connon represented the New Britain Board of Education. http://www.sscc-law.com/newsresources-resources-item.php?item=72 Attorney Mark Sommaruga successfully represented the interests of a regional school district with regard to a challenge to the reconfiguration of the grades of a regional school district’s elementary schools.  In Pratt v. Regional School District 14, after this office defeated an attempt by the plaintiffs to obtain a temporary injunction to stop the reconfiguration, and after a trial, the Superior Court entered judgment for the regional school district, holding that the reconfiguration did not violate state law.  The court specifically held that the actions of the school district did not require an amendment of the regional school district’s “regional plan.”  Attorney Roseann Padula assisted in the representation of the school district in this matter, including her having ably advised the district before the commencement of litigation. http://www.sscc-law.com/newsresources-resources-item.php?item=73