NJ & CT News

He claimed he was terminated from his job because he and his wife ' also a squad employee ' were going through a divorce that his superiors feared would become “ugly” and would interfere with the overall work environment at the 150-person organization. The plaintiff asserted that this action violated New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a), because his employment was terminated due to his “marital status,” one of the protected classes under the law. He presented his case in the Superior Court of New Jersey, Law Division, Cumberland County. After the plaintiff rested, the court granted the defendant's motion for dismissal, finding that the plaintiff had failed to show all four required elements of the cause of action, which were:

• That he is member of a protected class;
• That he was actually performing his job at a level that met his employer's legitimate expectations prior to termination;
• That he was fired nevertheless; and
• That he was replaced by someone not in the same protected class, or that non-protected class workers with comparable work records were retained, or that he was terminated under circumstances giving rise to an inference of discrimination.

As the appellate court explained, the trial court held that “plaintiff failed to present evidence that he was terminated because he was either married or unmarried. Rather, the court concluded, plaintiff presented proof that he was terminated because management was concerned about the likelihood of an ugly or messy divorce. At most, such proof established termination based on plaintiff's conduct or expected conduct, as opposed to his status. The court concluded that such proof did not give rise to a marital status discrimination claim.”

The ultimate question for the appeals court was whether LAD covers not only those discriminated against because of status as “married” or “unmarried,” but also those whose coupling status is otherwise defined ' for example, divorcing, divorced, separated or engaged. The court concluded that the law must apply in such cases. Here, the plaintiff stated a viable case when he asserted that he was fired because of fear that his marital discord might spill into the workplace.

This, the court explained, constituted job termination based on a stereotype: that divorcing couples cannot work together. “LAD does not bar an employer from taking employment action against a divorcing employee who actually demonstrates antagonism, incivility, or lack of professionalism. That would constitute an employment action based on a person's conduct, not his or her status,” stated the court. “However, here, [Millville Rescue Squad] responded not to any actual proved conduct. Rather, it acted on a fear, apparently based in stereotype, that such conduct would follow. [Millville Rescue Squad's] assumption that a divorcing person is unable to perform his or her job is functionally the same as an employer's prohibited assumption that a female worker cannot perform certain physical labor, or a worker of a certain age lacks the energy to complete assigned tasks.” The employer's termination action therefore fell within the reach of LAD, the motion to dismiss should not have been granted, and the case must be remanded for further proceedings.

CONNECTICUT

Former White House Lawyer Convicted in Absentia

Former White House lawyer J. Michael Farren was convicted July 11 of attempting to murder his wife in January 2010 by beating her with fists and a flashlight, banging her head on the floor and strangling her. The attack came two days after Mary Farren, a former attorney with Skadden Arps, served her husband with divorce papers.

In an unusual move, the defendant requested and was granted leave to remain away from his own trial by Stamford Superior Court Judge Richard Comerford. Farren's lawyers, including attorney Eurgene Riccio, therefore conducted the defense without their client present. Concerning the defendant's absence from the proceedings, Riccio said that he had no way of knowing if the defendant's presence would have changed anything; only the jurors could say that.

“Our focus was on doing the best we could to defend against the accusations,” said Riccio. “We didn't spend any time worrying about the absence of the defendant. We focused on whether or not the state's evidence was sufficient to convict him of attempted murder and assault.” Farren turned himself in to the authorities after the verdict was entered.

Some have speculated that Farren chose to absent himself from his own trial in order to create a reversible error, but others are skeptical, including John Walkley, an experienced Milford, CT, criminal defense attorney.

“I am sure that the judge covered all that would be needed to protect the record so that [Farren's] absence does not create an issue on appeal,” Walkley said. “Of course, I suppose that an appellate court might say that a defendant can't absent himself from his trial and that the court should have compelled him to be present. We will see on that.”

CT Supreme Court Says Tort Recovery Available to Some Same-Sex Partners Prevented from Marrying

Connecticut's loss-of-consortium tort recovery statute allows a person whose spouse has been injured to recover damages from the tortfeasor. Until July, the requirement that the injured person be the claimant's spouse had seemed set in stone. But in conjunction with a medical malpractice case, Connecticut's Supreme Court ruled in Mueller v. Tepler, 2014 Conn. Lexis 251 (7/16/14), that a same-sex partner is entitled to seek damages for loss of consortium if she can prove that she and her deceased partner would have been married had the state not unconstitutionally barred them from marrying at the time of the tort. With this ruling, Connecticut becomes the first state to retroactively recognize the tort-recovery rights of same-sex partners who would have been married but for laws prohibiting them from doing so.

The case concerns a deceased woman, Margaret Mueller, who was misdiagnosed in 2001 by Dr. Iris Wertheim as having ovarian cancer, when in fact Mueller had cancer of the appendix. Mueller had a tumor surgically removed and analyzed: The pathology report stated that she suffered from cancer of the appendix. Dr. Wertheim stuck to her original diagnosis, however, and Mueller underwent chemotherapy cycles for the wrong cancer for four years. When the patient obtained another opinion and learned that she had been misdiagnosed, she also learned that her cancer had advanced too far and that she would soon die. Mueller died in 2009. Her estate collected $2.45 million in medical malpractice damages.

The woman's long-term same-sex partner, Charlotte Stacey, sought damages for loss of consortium as part of that lawsuit, but the trial and appellate courts both ruled that such were unavailable to Stacey, as she and Mueller were not married at the time of Wertheim's malpractice. The Supreme Court, however, said that it was permitted to “expand the common-law action for loss of consortium as required to address new societal attitudes and situations.”

The case will now go back to the trial court, where lawyers for Stacey and for Mueller's estate will have to prove that the couple would have been married at the time of the medical malpractice if Connecticut had allowed it. Sean McElligott, one of the lawyers for the plaintiffs, said this “will be the easiest thing I've ever had to prove as a lawyer.” McElligott, of the firm of Koskoff, Koskoff & Bieder, noted that the couple had taken part in same-sex marriage protests since 1990 and had entered into a civil union within 40 days after Connecticut's civil union statute went into effect. In addition, said McElligott, they had a commitment ceremony before marriage was available, and after Kerrigan , “they got married even though [Mueller] was very sick. They'd been together 21 years. The only thing that prevented them from being married sooner was the fact that it was illegal.”

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NEW JERSEY

NJ Anti-Discrimination Law Prohibits Job Termination Because Employee Is Divorcing

The Superior Court of New Jersey, Appellate Division, recently determined that the New Jersey anti-discrimination law protecting citizens against bias based on martial status must also protect against such discrimination based on status as a divorcing or divorced person. The case, Smith v. Millville Rescue Squad, 2014 N.J. Super. Unpub. LEXIS 1548, pitted a man against his former employer, the rescue squad.

He claimed he was terminated from his job because he and his wife ' also a squad employee ' were going through a divorce that his superiors feared would become “ugly” and would interfere with the overall work environment at the 150-person organization. The plaintiff asserted that this action violated New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a), because his employment was terminated due to his “marital status,” one of the protected classes under the law. He presented his case in the Superior Court of New Jersey, Law Division, Cumberland County. After the plaintiff rested, the court granted the defendant's motion for dismissal, finding that the plaintiff had failed to show all four required elements of the cause of action, which were:

• That he is member of a protected class;
• That he was actually performing his job at a level that met his employer's legitimate expectations prior to termination;
• That he was fired nevertheless; and
• That he was replaced by someone not in the same protected class, or that non-protected class workers with comparable work records were retained, or that he was terminated under circumstances giving rise to an inference of discrimination.

As the appellate court explained, the trial court held that “plaintiff failed to present evidence that he was terminated because he was either married or unmarried. Rather, the court concluded, plaintiff presented proof that he was terminated because management was concerned about the likelihood of an ugly or messy divorce. At most, such proof established termination based on plaintiff's conduct or expected conduct, as opposed to his status. The court concluded that such proof did not give rise to a marital status discrimination claim.”

The ultimate question for the appeals court was whether LAD covers not only those discriminated against because of status as “married” or “unmarried,” but also those whose coupling status is otherwise defined ' for example, divorcing, divorced, separated or engaged. The court concluded that the law must apply in such cases. Here, the plaintiff stated a viable case when he asserted that he was fired because of fear that his marital discord might spill into the workplace.

This, the court explained, constituted job termination based on a stereotype: that divorcing couples cannot work together. “LAD does not bar an employer from taking employment action against a divorcing employee who actually demonstrates antagonism, incivility, or lack of professionalism. That would constitute an employment action based on a person's conduct, not his or her status,” stated the court. “However, here, [Millville Rescue Squad] responded not to any actual proved conduct. Rather, it acted on a fear, apparently based in stereotype, that such conduct would follow. [Millville Rescue Squad's] assumption that a divorcing person is unable to perform his or her job is functionally the same as an employer's prohibited assumption that a female worker cannot perform certain physical labor, or a worker of a certain age lacks the energy to complete assigned tasks.” The employer's termination action therefore fell within the reach of LAD, the motion to dismiss should not have been granted, and the case must be remanded for further proceedings.

CONNECTICUT

Former White House Lawyer Convicted in Absentia

Former White House lawyer J. Michael Farren was convicted July 11 of attempting to murder his wife in January 2010 by beating her with fists and a flashlight, banging her head on the floor and strangling her. The attack came two days after Mary Farren, a former attorney with Skadden Arps, served her husband with divorce papers.

In an unusual move, the defendant requested and was granted leave to remain away from his own trial by Stamford Superior Court Judge Richard Comerford. Farren's lawyers, including attorney Eurgene Riccio, therefore conducted the defense without their client present. Concerning the defendant's absence from the proceedings, Riccio said that he had no way of knowing if the defendant's presence would have changed anything; only the jurors could say that.

“Our focus was on doing the best we could to defend against the accusations,” said Riccio. “We didn't spend any time worrying about the absence of the defendant. We focused on whether or not the state's evidence was sufficient to convict him of attempted murder and assault.” Farren turned himself in to the authorities after the verdict was entered.

Some have speculated that Farren chose to absent himself from his own trial in order to create a reversible error, but others are skeptical, including John Walkley, an experienced Milford, CT, criminal defense attorney.

“I am sure that the judge covered all that would be needed to protect the record so that [Farren's] absence does not create an issue on appeal,” Walkley said. “Of course, I suppose that an appellate court might say that a defendant can't absent himself from his trial and that the court should have compelled him to be present. We will see on that.”

CT Supreme Court Says Tort Recovery Available to Some Same-Sex Partners Prevented from Marrying

Connecticut's loss-of-consortium tort recovery statute allows a person whose spouse has been injured to recover damages from the tortfeasor. Until July, the requirement that the injured person be the claimant's spouse had seemed set in stone. But in conjunction with a medical malpractice case, Connecticut's Supreme Court ruled in Mueller v. Tepler, 2014 Conn. Lexis 251 (7/16/14), that a same-sex partner is entitled to seek damages for loss of consortium if she can prove that she and her deceased partner would have been married had the state not unconstitutionally barred them from marrying at the time of the tort. With this ruling, Connecticut becomes the first state to retroactively recognize the tort-recovery rights of same-sex partners who would have been married but for laws prohibiting them from doing so.

The case concerns a deceased woman, Margaret Mueller, who was misdiagnosed in 2001 by Dr. Iris Wertheim as having ovarian cancer, when in fact Mueller had cancer of the appendix. Mueller had a tumor surgically removed and analyzed: The pathology report stated that she suffered from cancer of the appendix. Dr. Wertheim stuck to her original diagnosis, however, and Mueller underwent chemotherapy cycles for the wrong cancer for four years. When the patient obtained another opinion and learned that she had been misdiagnosed, she also learned that her cancer had advanced too far and that she would soon die. Mueller died in 2009. Her estate collected $2.45 million in medical malpractice damages.

The woman's long-term same-sex partner, Charlotte Stacey, sought damages for loss of consortium as part of that lawsuit, but the trial and appellate courts both ruled that such were unavailable to Stacey, as she and Mueller were not married at the time of Wertheim's malpractice. The Supreme Court, however, said that it was permitted to “expand the common-law action for loss of consortium as required to address new societal attitudes and situations.”

The case will now go back to the trial court, where lawyers for Stacey and for Mueller's estate will have to prove that the couple would have been married at the time of the medical malpractice if Connecticut had allowed it. Sean McElligott, one of the lawyers for the plaintiffs, said this “will be the easiest thing I've ever had to prove as a lawyer.” McElligott, of the firm of Koskoff, Koskoff & Bieder, noted that the couple had taken part in same-sex marriage protests since 1990 and had entered into a civil union within 40 days after Connecticut's civil union statute went into effect. In addition, said McElligott, they had a commitment ceremony before marriage was available, and after Kerrigan , “they got married even though [Mueller] was very sick. They'd been together 21 years. The only thing that prevented them from being married sooner was the fact that it was illegal.”

'