State Emp Coalition, et al v. Rowland, et al

Filing 310

RULING Re: Issues Submitted by the Parties on July 5, 2016. Signed by Judge Holly B. Fitzsimmons on 10/12/16.(Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
STATE EMPLOYEES BARGAINING
:
AGENT COALITION, ET AL
:
v.
:
:
JOHN G. ROWLAND, ET AL
:
:
:
:
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Civil No. 3:03CV00221 (AVC)

October 12, 2016

RULING
A. Procedural History
This action was commenced pursuant to 42 U.S.C. §1983, in
February 2003, by the State Employees Bargaining Agent Coalition
(“SEBAC”), a collation of 13 public employee unions that
represent approximately 49,000 Connecticut state employees; 12
of SEBAC’s 13 constituent labor unions; and five individual
union members.

The Amended Complaint asserted claims against

then-Governor of the State of Connecticut John G. Rowland, and
the then-Secretary of Connecticut’s Office of Policy and
Management Mark S. Ryan, in both their official and individual
capacities. It alleged that defendants had intentionally
violated plaintiffs’ constitutional rights to freedom of speech,
freedom of association, due process and equal protection of the
law under the First, Fifth and Fourteenth Amendments to the
United States Constitution by ordering that 3,000 union members
be terminated from their jobs in retaliation for the unions’

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exercise of their First and Fourteenth Amendment rights to
freedom of association and freedom of speech and the unions’
refusal to forego certain statutorily protected contract rights.
Plaintiffs’ Amended Complaint sough declaratory and injunctive
relief and money damages. Years of litigation ensued. In
December 2013, the parties pursued settlement discussions
resulting in the settlement of the case.
A Settlement Order and Final Judgment was entered by the
Court (Covello, J.) on October 1, 2015. [Doc. #296]. The
Settlement Agreement provided for both noneconomic compensatory
damages to all members of the class and economic damages to
class members who sustained economic damages resulting from the
subject layoffs. To date, noneconomic compensatory damage awards
have been paid to virtually all of the over 49,000 class members
and the parties are now engaged in the process of calculating
economic damages for nearly 3,000 class members who may be
entitled to them.

The parties are currently scheduling

evidentiary hearings, beginning in October 2016, to determine
economic damages.
B. Four Issues
In advance of the evidentiary hearing, the parties seek the
Court’s consideration of the following four issues.
1. The Meaning of the Term “As of November 17, 2002”
The first question presented is whether an individual had to
be employed by the State on November 17, 2002, in order to be a
class member. The parties identified only two employees, Linda

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Almquist and DeBree Robinson, who were offered employment prior
to November 17, 2002, but began working for the state shortly
after that date. Both employees were laid off in January 2003.
The Settlement Agreement contains a definition of the term
“Class Members”, which includes five subclasses. Each
description of a subclass begins with the phrase, “[a]ll
individuals who were employees of the State of Connecticut as of
November 17, 2002 ....” The Settlement Order and Final Judgment
Approving Settlement defines the class in identical terms.
[Settl. Agreement §2 (D)(a)-(e); Doc. #296, ¶3(a)-(e)].
Likewise, the plaintiffs’ Amended Complaint at page 8
specifically alleges that the affected employee class “consists
of all individual a) who were employees of the State of
Connecticut as of November 17, 2002 ....” [Doc. #52-1 at 8].
Plaintiffs argue that
November 17, 2002 was the first date Governor Rowland
made any public mention of demanding concessions from
the unions and of threatening layoffs if the
concessions were not granted. No state employee
actually suffered any adverse employment action on
November 17, 2002-layoff notices did not actually go
out on November 17, 2002 and no state employee was
laid off, bumped or demoted, or suffered other adverse
job impact on November 17, 2002 (which was a Sunday).
Plaintiffs submit that the State’s contention that
only individuals employed “as of” November 17, 2002
are covered by the settlement-while a literally
feasible interpretation of the Settlement Order and
Judgment-makes no practical sense. The purpose of the
settlement is to compensate union members for their
economic loss resulting from the layoff orders, and
there is no rational basis to provide relief for some
and exclude others who were adversely affected by
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layoff orders.
[Pl. Let. dated 7/5/16 at §1]. Plaintiffs argue that, “[i]t is
the fact of the adverse action taken against the employee
pursuant to Governor Rowland’s orders-not the date the employee
first entered into state employment-that is the determinative
fact for class membership purposes.” Id.
Defendants argue that the only rational interpretation of
the term “as of November 17, 2002” is that an employee must have
been employed by the state on that date in order to be included
in the class.
The letter offering employment to Ms. Almquist was dated
November 14, 2002, providing a start date of November 18, 2002.
The offer letter was signed and accepted by her on November 18,
2002, with an “effective” date November 18, 2002. See Trainor
Let. 11/14/02.

Ms. Almquist was laid off on January 28, 2003.

The offer letter to Ms. Robinson was dated November 15,
2002, providing a start date of November 20, 2002. See Bunt Let.
11/15/02. A payroll services record for Ms. Robinson shows that
she was laid-off on January 17, 2003. See UC-61.1 These are the
only two employees identified by the parties who would be
affected by the Court’s ruling.
The Court finds that the letters offering employment to
Linda Almquist and De’Bree Robinson can reasonably be
interpreted to constitute employment by the State “as of”

The Form UC-61 shows a start date of 11/2/02 and last date
worked of 1/17/03. The start date of November 20, 2002 is not
disputed.
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November 17, 2002 notwithstanding their employment start dates
of November 18 and 20, 2002, respectively. Plaintiffs correctly
state that they must also establish that they sustained one of
the specified adverse employment actions specified in the
Amended Complaint in order to recover economic damages.
2. Durational Employees
The next question presented is whether durational employees
terminated before they completed six months continuous service
are included in the definition of “class member” under the
Settlement Agreement.
The parties’ Settlement Agreement and the Settlement Order
and Final Judgment expressly include employees
working a test period or training program, including
provisional employees and employees appointed to
durational positions for six months or more, and who
were designated for membership in a bargaining unit
upon successful completion of the requirements of such
working test period, training program or provisional
employment ....
See Settl. Agreement, §II, ¶D(d); Sett. Ord. [Doc. #296 ¶3(d)].
The State Personnel Act allows the Commissioner of
Administrative Services to establish temporary positions in the
classified service for various reasons and under circumstances
set forth in Conn. Gen. Stat. 5-235(b).2 A durational employee is
one type of temporary appointment.
Defendants argue that “durational employees cannot be
The statute further provides that “[n]o such appointments
shall be authorized for a period of more than six months and
such appointments shall not be renewed within any fiscal year.”
Conn. Gen. Stat. §5-235(b).
2

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considered ‘members of a bargaining unit’, at least during the
first six months of employment in the durational position. [Def.
Let. 7/6/16 at 2]. Defendants state that
Although there may be some variation between the many
state employee collective bargaining agreements, most
such agreements provide that durational employees are
covered by the agreement only after six months of
continuous service in the position ... Article 1,
Section 2(c) of the NP-3 Agreement defines “durational
employee” as “an employee who has been hired to fill
one of the following types of positions: a position of
an individual who is on workers’ compensation leave; a
position of an individual who is on an extended paid
or unpaid leave; or a position created for a specially
funded program of a specified term.” Article 1,
Section 3 specifically provides that the Agreement
“shall not apply to nonpermanent employees appointed
to temporary or durational positions except as
provided in Article 22, which provides that “[a]
temporary employee, as defined in Article 1, shall be
covered by this Agreement after six (6) months of
continuous service, except that a temporary employee
may be terminated at any time by the Employer without
right of appeal.” Thus, it is beyond dispute that
durational employees are not guaranteed continued
employment beyond the termination date of the
appointment and generally are not entitled to fringe
benefits during the first six months of employment in
the durational position.
Id. (quoting NP-3 Agreement. Art. 1 & 22).
In support of their position, defendants point to the
Settlement Agreement, subsection (d) of the “Class Members”
definition, that specifically mentions “employees appointed to
durational positions for six months or more”.

They contend

that, “two additional conditions must be met for inclusion in
the class. First, the individual must be employed ‘under a
working test period or training program’ and the individual must
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be ‘designated for membership in a bargaining unit upon
successful completion of the requirement of such working test
period, training program or provisional appointment ....’” Id.
Defendant contend that even if a durational employee were
employed for more than six months, he/she could meet neither of
these conditions, as they do “not serve a working test period,
are not in a training program and are not ‘provisional
appointments.’” Id.

Defendants define a “durational employee”

as someone who is “hired to fill in for employees who are out of
work on extended leaves or to fill specially funded positions
for a designated period of time.” Id. Thus, a “durational
employee” would have no right to continued employment beyond the
termination date of the appointment.
Plaintiffs maintain that, “[i]t is undisputed that
durational employees designated for membership in bargaining
units were terminated during the period of their durational
employment.” [Pl. Let. §3]. Again, plaintiff states that the key
question is whether the adverse job action was caused by
Governor Rowland’s layoff orders. If the durational employee was
fired as part of these layoff orders, the employee may recover
the ensuing economic losses. Id.
It is apparent that the parties dispute whether a
durational employee could ever qualify as a class member as
defined in the Settlement Agreement. Defendants’ argument makes
it clear that “durational” has a specific meaning and is not
meant to be redundant or equivalent in meaning to “provisional”.
Nevertheless, the Settlement Agreement includes the term
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“durational,” seemingly contemplating that there are terms and
conditions that an employee could meet that would include him or
her in class membership. See Settl. Agreement §II, ¶D(d). The
Court finds that unless the employee has completed the
requirements for inclusion in a bargaining unit prior to his/her
layoff, he/she cannot meet class membership requirements and
economic damages may not be awarded.
3. Temporary Service in a Higher Class
The next question presented is whether class members who
were in “Temporary Service in a Higher Class” (“TSHC”) status at
the time of the layoffs and were returned to their lower paying
permanent positions because of the layoffs are entitled to
compensation for lost wages as a result of the change.
The Settlement Agreement provides that “each class member
who has sustained economic loss as a result of the layoffs (or
lay off orders) shall be entitled to receive a sum to compensate
for economic loss.” [Settl. Agreement, §V, ¶15A]. “Gross
economic loss,” the base for each class member’s economic
recovery, is defined to
include all forms of economic loss that are ordinarily
recoverable under state and federal law in similar
cases (subject to the limitations set forth below),
including, where applicable, lost wages, lost pension
benefits, and lost health insurance and/or damages
resulting from the loss of health insurance coverage.
Id. ¶15B.
Conn. Gen. Stat. §5-209 authorizes an appointing authority
to assign an employee the duties and responsibilities of a
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higher job classification and requires that the employee be
compensated at the rate of the higher class if the assignment is
for a period in excess of sixty days.3 Defendants state that
“[m]any if not all of the state employee collective bargaining
agreements contain provisions regarding TSHC, which differ
slightly from the statute ... Thus, it is understood that such
appointments are temporary in nature and are subject to
termination at the request of the employer or employee at any
time.” See Def. Let 7/5/16 at 3 (quoting NP-3 Agreement, Art. 18
(compensation is paid at the higher rate if assignment is on a
continuing basis for more than thirty working days); Conn. Gen.
Stat. §5-209 (compensation is paid at the higher rate if
assignment is on a continuous basis for more than sixty days).

3

The statute provides,
Any state employee, except an employee who has been
designated managerial, who is assigned, by the
employee's appointing authority, duties and
responsibilities of a job classification higher than
the class in which the employee is placed, which
assignment has been approved by the Commissioner of
Administrative Services, and who works in such
assignment on a continuous basis for a period of
more than sixty working days, shall be compensated
for such time in excess of sixty days at a rate in
the higher class which shall not be less than one
step in that class above the employee's existing
rate of pay. Service in a higher classification
under this section shall not constitute permanent
status in such class.

Conn. Gen. Stat. §5-209.
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Plaintiffs contend that “class members are clearly entitled
to recover for any economic loss resulting from a position
change caused by Governor Rowland’s layoff orders.” [Pl. Let.
7/5/16 at §2]. They concede that the calculation of “class
member’s economic loss may be affected by the expected duration
of a temporary appointment to a higher position” but this should
not preclude recovery compensation for the economic loss caused
by Governor Rowland’s layoff orders. Id.
Defendants argue that TSHC employees should not be entitled
to economic damages as a result of the termination of TSHC
status. [Def. Let 7/5/16 at 4]. They maintain that “it is
understood that such appointments are temporary in nature and
are subject to termination at the request of the employer or
employee at any time.” Id. As such, “[e]mployees have no rights
to extended or permanent assignment to the positions and may be
returned to the former positions at any time.” Id. at 4.
Here, the issue is whether the termination of TSHC status
was caused by Governor Rowland’s layoff orders, rather than at
the request of the employer or employee. The Court agrees with
defendants that “[a]ny suggestion that the employee would
remain[] in the TSHC position indefinitely is speculative.” Id.
at 3 (emphasis added]. However, plaintiffs understand that the
“extent of a class member’s economic loss may be affected by the
expected duration of a temporary appointment to a high paying
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position.” [Pl. Let 7/5/16 at §2 (emphasis added)]. Accordingly,
the Court finds that a TSHC employee demoted because of Governor
Rowland’s layoff orders may recover economic damages for the
expected duration of the TSHC appointment. The burden is on the
employee to show that the employee had a specific expectation as
to the duration of the TSHC appointment.
4. Voluntary Demotions
The last issue presented is whether class members who
voluntarily demoted to lower paying positions in order to avoid
being laid off are entitled to compensation for lost wages as a
result of the voluntary demotion.
The Settlement Agreement includes in its definition of
“class members” individuals “who were bumped or demoted to
different positions as a result of the terminations alleged in
the Amended Complaint.” [Settl. Agreement II(D)(c) (emphasis
added)]. At issue is whether this language applies to
individuals who were demoted by the employer, rather than those
who requested a return to a lower level position in order to
avoid layoff. Plaintiffs argue that
[i]n the substantial majority of these cases, the
individual had been promoted in the recent past and,
therefore, had less seniority relative to other
individuals in that (promoted) position whereas the
employee had substantially greater years of service
and seniority in the prior (lower) position. By
accepting a “voluntary demotion,” – i.e., return to
the lower position where they enjoyed greater
seniority-these individuals were able to avoid layoff,
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although at the expense of a cut in their pay from the
level they received before their jobs (in the promoted
position) were jeopardized by Governor Rowland’s lay
off orders.
[Pl. Let. 7/6/16 at §4].
The State argues that individuals who chose demotion to a
different position for reasons unrelated to the layoffs simply
do not fit within this definition and economic damages are not
warranted as “[i]ndividuals may choose to voluntarily demote to
a different position for a variety of reasons unrelated to the
layoffs.”

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[Def Let. 7/5/16 at 4]. An interpretation of the

Settlement Agreement permitting recovery of economic damages to
include voluntary demotions as well as the individual who was
laid off or involuntarily demoted or bumped would, defendants
argue, be fundamentally unfair to the State.
It seems to the Court that there may be individuals who are
able to show that they made a calculated decision to request a
demotion to avoid loss of employment because of Governor
Rowland’s layoff orders. Although, as defendants point out,
making this showing may be a difficult task. However, the Court
declines to preclude a plaintiff from offering such proof.

Defendants suggest, for example, that a lower classified
position might offer an opportunity for more overtime or
assignment to a more desirable shift, work location, or
supervisor. Such decisions, defendants contend, are personal
choices that do not implicate the Settlement Agreement. With
this position, the Court agrees.
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CONCLUSION
This is not a Recommended Ruling.

This is a ruling and

order which is reviewable pursuant to the Aclearly erroneous@
statutory standard of review. 28 U.S.C. ' 636(b)(1)(A); Fed. R.
Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an
order of the Court unless reversed or modified by the district
judge upon motion timely made.
SO ORDERED at Bridgeport this 12th day of October 2016.

_____/s/__________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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