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Hartford, Conn., Assistant Corporation Counsel Denise E. Aguilera struck gold when she came across the 1997 Superior Court case of Merola v. Commission on Human Rights and Opportunities. It supported her main argument in the discrimination case CHRO ex rel. McWeeny v. City of Hartford, in which New Britain, Conn., Superior Court Judge Robert F. McWeeny contends part of Hartford’s city charter is illegal. The city cut off McWeeny’s $2,000-a-month survivor’s allowance from his late wife’s city pension because he remarried. That’s wrongful discrimination based on marital status, McWeeny asserts. He contends, and a CHRO investigator agreed, that the city’s termination-on-remarriage provision is a violation of the Connecticut Fair Employment Act. It’s become a hotly contested case. Aguilera maintained McWeeny lacked standing to bring an employment discrimination case because he wasn’t a city employee. In the Merola case eight years ago, a woman’s employment discrimination case was dismissed on grounds she was an independent contractor, not an employee. “[E]mployee status is an obvious prerequisite to maintaining a complaint of employment discrimination,” the decision stated. Ironically, it was written by McWeeny himself. “I was very happy to find that case,” said Aguilera in a recent interview. Her oral arguments and 53-page brief carried the day in a hearing before CHRO Human Rights Referee Jon P. Fitzgerald, who rendered his decision Aug. 3. West Hartford, Conn., lawyer Leon M. Rosenblatt is representing McWeeny, and Assistant Commission Counsel Robert J. Brothers Jr. is representing the CHRO against Hartford. ‘FAR-REACHING EFFECTS’ Asked whether McWeeny would appeal, Rosenblatt said, “Of course. The plain language of the statute encompasses our claim.” The appeal, first to Superior Court and then to one or two appellate level courts, is based on the fact that Connecticut’s anti-discrimination statutes include “marital status” as a protected classification. In McWeeny’s brief for the administrative hearing, Rosenblatt argued forcefully that “[f]ringe benefits, including pension death benefits and insurance, are subject to employment discrimination law,” and a party’s standing to sue extends to the fullest extent permitted by the U.S. Constitution’s Case and Controversies clause. “The loss of a monthly lifetime survivor’s allowance creates the case or controversy sufficient to establish standing,” Rosenblatt said. Aguilera said it was important for the city to uphold the validity of its charter provision terminating a surviving spouse’s pension rights in the event of remarriage. No fewer than six state statutes currently in force also stop a survivor’s pension benefit on remarriage, as do provisions in force in many Connecticut cities, she said. “If we had lost, there would be far-reaching effects,” she said. McWeeny’s late wife was H. Maria Cone, who worked as a lawyer for the city of Hartford from 1978 until 1994, when she left her job as assistant corporation counsel to become a Superior Court judge. She died of cancer in 1999. McWeeny remarried in 2003, and the $2,000-per-month pension benefit ended two weeks later. He’s seeking unpaid benefit amounts of $40,000, interest and cost-of-living increases and reinstatement of the pension. Aguilera’s brief for Hartford emphasized the case law precedents that required a plaintiff in an employment discrimination case to be either an employee or someone seeking employment with the defendant employer. McWeeny fit neither category and has no right to sue, she argued. But Rosenblatt contended, “It is perfectly obvious Mr. McWeeny is classically aggrieved and that he has standing to bring this claim” because it involves a legally protected personal interest — continuing to receive his $24,027-per-year survivor’s allowance. In the 1996 state Supreme Court case of Gay and Lesbian Law Students v. Trustees, students who admittedly had no interest in military employment had standing to contest military on-campus recruitment due to the military’s ban on openly gay and lesbian servicemembers. They met the two-fold aggrievement test of having both a specific personal interest in the subject matter and being injuriously affected by the legal decision. Likewise, McWeeny is aggrieved and has standing, Rosenblatt wrote. The Connecticut Supreme Court and CHRO have traditionally looked to the standing requirements of the federal Equal Employment Opportunity Commission to determine who has standing to bring a claim under Connecticut’s civil rights laws. Employment must be “in the picture” to bring an employment discrimination claim, Rosenblatt argued, but Connecticut has never said that only employees can be claimants. In this case, Rosenblatt said in an interview, “the employee was Maria Cone — nobody’s disputing that.” This is a factually distinguishable case, he added, from McWeeny’s 1997 decision, upholding the CHRO’s dismissal of Priscilla Merola’s claim on grounds she was only an independent contractor, not an employee. In that case, Rosenblatt said, no employee at all was in the fact pattern. He said McWeeny’s case is destined to be resolved by the state Supreme Court: “It’s a matter of first impression. If we win in Superior Court, the city of Hartford will appeal, and if they win, we will appeal.”

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