Opinion
No. CV 96-0393656 S
May 10, 2001
MEMORANDUM OF DECISION RE: MOTION TO DISMISS (#153)
In count nine of the Fifth Revised Complaint, the plaintiff seeks damages arising out of an alleged violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. The question before the court is whether the plaintiffs' failure to obtain a release to sue from the Connecticut Commission on Human Rights and Opportunities ("CHRO") deprives the court of subject matter jurisdiction to consider this claim. For the reasons set forth below, the motion to dismiss count nine must be granted.
The Superior Court decisions have taken three approaches to this issue. Some trial courts have ruled that exhaustion of remedies with the CHRO is not required where a plaintiff, as in the present case, seeks compensatory and punitive damages which are unavailable through the administrative process. See e.g. Delvecchio v. Griggs and Browne Company, Inc., Superior Court, Judicial District of New London at Norwich, Docket No. 118659 (April 17, 2000) (Hurley J.T.R.) (27 Conn. L. Rptr 89, 92). A second approach allows the plaintiff to pursue an independent action in the Superior Court so long as the plaintiff has made a "good faith" attempt to have the claim resolved by the CHRO. See e.g. Dinegar v. University of New Haven, Superior Court, judicial district of New Haven, Docket No. 378256 (October 16, 1997) (Silbert, J.). Finally, a third approach construes the language of General Statutes §§ 46a-100 and 46a-101 (a) as mandating that a plaintiff file a complaint with the CHRO and obtaining a release to sue before initiating a private cause of action. See e.g. Brightly v. Abbott Terrance Health Center, Inc., Superior Court, Judicial District of Waterbury, Docket No. CV 98-0148584S (February 27, 2001) (Rogers, J.) (29 Conn.L.Rptr 102).
"Section 46a-100 provides, in part:
"[any person who has timely filed a complaint with the [CHRO] in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may bring an action in superior court . . .
Section 46a-101 (a) provides, in part:
"[n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission."
In Angelsea Productions, Inc. v. Commission on Human Rights Opportunities, 248 Conn. 392 (1999), our Supreme Court considered the question of whether General Statutes § 46a-82b gave the CHRO jurisdiction to consider the petitioners' complaint under circumstances where the CHRO had not adjudicated the complaint in a timely fashion. Although this case has a complicated procedural history that is not relevant to the present issue, a key question was whether the petitioner's complaint was still pending in the CHRO after it had been dismissed. Id., 402. In concluding that the petitioner's complaint was still pending, the court observed that the petitioner could not bring a civil employment discrimination suit in Superior Court without first requesting and obtaining a release to sue pursuant to § 46a-101. Id., 404. In this regard, the Supreme Court stated:
"[The petitioner] can only bring a civil action against the [employer] if she requests and obtains a release from the commission."
Id., 405. (Emphasis added)
Based on this language from Angelsea, this court concludes that the release to sue requirements are mandatory. Since the plaintiff herein has not obtained such a release, the Superior Court lacks subject matter jurisdiction to consider the employment discrimination claims alleged in count nine. Accordingly the defendants' motion to dismiss must be granted.
Conclusion
For the reasons set forth above, the motion to dismiss count nine of the Fifth Revised Complaint is granted.
So Ordered at New Haven, Connecticut this 10th day of May, 2001.