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Barry Waters has extensive experience in a wide variety of commercial litigation cases, with an emphasis on employment, non-compete and trade secret litigation. He defends corporations in federal and state courts and in administrative agencies against employee claims involving discrimination based on age, sex, race, and disability; whistle-blowing; retaliation; and wrongful discharge.  He also counsels employers on human resources policies and employment laws, including effective disciplinary and termination & separation strategies designed to avoid employment litigation.

On September 5, 2017, the Connecticut Appellate Court affirmed the Superior Court’s entry of summary judgment in favor of the employer in a case involving the thorny issue of whether an extended leave of absence is a reasonable accommodation. Thomson v. Department of Social Services, 176 Conn. App. 122, AC 38851. Both the Superior Court and the Appellate Court rejected the employee’s claim that her employer had failed to accommodate her disability in terminating her employment while on extended leave after she had exhausted FMLA leave. This decision is an important victory for employers. It makes a strong statement that employers need not grant open-ended leaves of absence under state law. On the facts presented, the court concluded that the employee was not entitled to proceed to trial. Summary judgment decisions in the employer’s favor in state court are rare. Rarer still is the affirmation of the Appellate Court on an issue that vexes human resources departments around the state.
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On March 7, 2011, Peter Joyce, Jr. (“Joyce”) filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”), claiming that Respondent CSX Transportation (“CSX”): (1) denied him a reasonable accommodation in the use of a computer device that he had difficulty mastering because he suffers from Attention Deficit Disorder and other cognitive limitations; and (2) he was disciplined and removed from service for an infraction which he claims was related to his disability.  Joyce asserted that the unwarranted discipline caused him great anxiety and distress resulting in his being placed on an occupational disability retirement.  More than five years later, the MCAD held hearings on the claim in September 2016.  Eight months later, Hearing Officer Eugenia Guastaferri issued her decision in which she awarded Joyce $224,070.39 in lost pay and $100,000 in emotional distress damages, both accruing twelve (12%) percent interest from May 7, 2011 until payment.

This case illustrates the difficulties inherent in evaluating the performance of long-term employees with respect to rapidly-changing job requirements due to technological advances – particularly when evaluating reasonable accommodations for claimed disabilities.


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