Report of Internal Investigation Precluded as Prejudicial in Age Discrimination Case

A quick review of recent state and federal cases of interest affecting workplace rights:

Report of Internal Investigation Precluded
as Prejudicial in Age Discrimination Case

A Stamford man, who alleged age discrimination, stands to collect $3.5 million to $4 million in a Connecticut District Court trial held in January, 2014. James Castelluccio v. International Business Machines, Corp.

Castelluccio was an IBM executive who was informed by his supervisor that he was being replaced in his position as Delivery Project Executive effective January 1, 2008. After being removed from his position, he was “benched” by the Company, which continued his salary in a do-nothing job. He was terminated on June 30, 2008, because he was unable to secure another position within the company, per company procedures.

It should be noted that his supervisor made three remarks to him about whether he was interested in retiring.

In the pre-trial motions before trial, the defendant sought to introduce as an exhibit the company’s internal human resources report of the investigation of his age complaint, which he made prior to his termination. Although the defendant company argued for its admission as a business records exception to the hearsay rule and to show that it carefully investigated his complaint of age discrimination and did not believe his complaint, the judge excluded it as prejudicial.

First, the judge found that it was not a neutral, third-party’s findings and conclusions but the company, which selected whom to interview and what evidence to consider. “There was no hearing, no evidence offered, no sworn statements and no opportunity for Mr. Castelluccio to respond to the criticisms leveled against him, let alone conduct direct or cross-examination of witnesses. Evidence that would have been favorable to Mr. Castelluccio is absent from [the company’s report]. It does not include Mr. Castelluccio’s annual performance reviews, or indicate that [the company] interviewed Mr. Castelluccio’s previous manager or clients for whom Mr. Castelluccio worked.” Castelluccio v. IBM, 2013 U.S. Dist. LEXIS 179542, 3:09cv1145(TPS), 6, Dec. 23, 2013.

State Court Decision Rejecting the “But For” Standard
In Case Alleging Retaliation For Filing Workers’ Compensation Claim

Another recent case holding further supports the notion that the better forum for plaintifs’ cases is state court rather than federal court. Ralph Consiglio v. Monatano Cigarette, Candy & Tobacco, Inc., Sup. Ct., J.D. of New Haven, Docket No. CV-12-6027652-S, Jan. 27, 2014 (Wilson, J.).

In this case denying summary judgment to the defendant, Mr. Consiglio was terminated less than a week after the company learned of his request for a form to file a worker’s compensation claim based upon his slip on the ice in the company’s parking lot.

The company argued that in light of the U.S. Supreme Court’s 2013 decision in University of Texas Southwestern Medical Center v. Nassar, the plaintiff must establish that he was terminated “because” of his protected activity of asserting his right to file a workers’ compensation claim, i.e. that the defendant’s retaliatory motive was the “but-for,” or only reason for his termination.

But in the decision, the court noted that the Connecticut Supreme Court has not yet adopted the Nassar’s narrow definition of the word “because” and applied it to a claim under the workers’ compensation statute 31-290a. Instead, the court elected not to follow Nassar and allow the plaintiff to establish causation by presenting evidence “that a retaliatory motive played a part in the adverse employment action.” Mele v. Hartford, 270 Conn. 751, 776, 855 A.2d 196 (2004).

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