Opinion
No. CV 09 5025835
July 7, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#102)
On January 9, 2009, the plaintiff, Evan Kelly, filed a six-count complaint against his former employer, the defendant, American Medical Response of Connecticut. The complaint alleges that the defendant violated several state and federal employment laws. At issue in the present motion are counts one and two of the complaint. Count one alleges that the defendant violated the Connecticut Fair Employment Practices Act (CFEPA), § 46a-60(a)(1), by engaging in discriminatory employment practices in connection with the plaintiff's alleged disability, Irritable Bowel Syndrome. Count two, also alleges a violation of CFEPA, § 46a-60(a)(4), for the defendant's alleged retaliatory acts against the plaintiff.
The defendant filed a motion to dismiss on April 6, 2009. The plaintiff filed his memorandum in opposition on May 29, 2009. The defendant's reply brief was filed on June 4, 2009. Oral argument on the motion was heard by the court, Licari, J., on June 9, 2009. At oral argument, the defendant withdrew one of the two grounds it relied upon in its motion. Supplemental briefs were requested from the parties to address the remaining ground. On June 15, 2009, the plaintiff filed his supplemental brief. Finally, on June 22, 2009, the defendant filed its supplemental brief.
The defendant initially argued that dismissal of counts one and two was warranted on two grounds. First, the defendant argued that the plaintiff failed to commence his action within ninety days of his receipt of the release of jurisdiction from the Connecticut Commission on Human Rights and Opportunities (CHRO) as required by § 46a-101(e). Second, the defendant argued that the plaintiff's claims were not timely filed with the CHRO and thus, he has failed to comply with the prerequisite in § 46a-100 for bringing an action in this court. At oral argument, however, the defendant conceded that § 52-593a applies to actions filed pursuant to § 46a-101(e) and as a result, the plaintiff's action could not be dismissed on the first ground relied upon in its motion. Therefore, only the second ground will be discussed in this memorandum.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The defendant argues that the plaintiff failed to file a timely complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), pursuant to § 46a-82(f), which provides, in relevant part: "Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." The defendant further argues that compliance with § 46a-82(f) is a prerequisite to bringing counts one and two of his complaint in this court. Section 46a-100 states: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities 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 also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ."
The plaintiff argues that his complaint with the CHRO was timely filed because he concurrently filed a complaint with the Equal Employment Opportunity Commission (EEOC). As a result, he claims that the 300-day period found in 42 U.S.C. § 2000e-5(e)(1) applies to his claim. 42 U.S.C. § 2000e-5(e)(1) provides: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency."
The parties agree that the plaintiff was terminated from his employment with the defendant on May 19, 2007 and filed his complaint with the CHRO 202 days later, on December 7, 2007. The plaintiff relies on several state and federal opinions that he claims establish that the court has the discretion to order that the time available to the plaintiff to file with the CHRO can and should be extended where there exists additional issues that are reasonably related to a party's federal claim. An extensive analysis of the case law that the plaintiff relies upon is unnecessary and familiarity with those opinions is presumed.
This court first addresses the Connecticut case law upon which the plaintiff relies. In State v. Commission on Human Rights Opportunities, 211 Conn. 464, 476, 559 A.2d 1120 (1989), the Supreme Court held that each separate payment of retirement benefits to the aggrieved employee constituted a violation of Connecticut statutes prohibiting employment discrimination. Thus, the time period for which the employee could have recovered began with his first pension benefit payment within 180 days prior to the date he filed his complaint. Id. More recently, in Vollemans v. Wallingford, 103 Conn.App. 188, 219, 928 A.2d 586 (2007), the Appellate Court held that the filing period contained in § 46a-82(e) commences upon actual cessation of employment, rather than notice thereof. Both of these cases represent Connecticut courts' liberal construction of the 180-day filing period so as give affect to the legislature's intent to avoid defeat of employment discrimination complaints. See id., 218-19. However, neither extends the 180-day filing period once the starting event is triggered.
The court has also considered the federal case law cited by the plaintiff. Both Javier v. Deringer-Ney, Inc., United States District Court, Docket No. 3:07-cv-1863 (VLB) (D. Conn. July 25, 2008) and Cameron v. Saint Francis Hosp. and Medical Center, 56 F.Sup.2d 235, 239-40 (D. Conn. 1999), discuss whether untimely filed federal employment discrimination claims are "reasonably related" to timely filed CHRO and EEOC claims so that the untimely claims "relate back" and as a result, may be considered by the federal court. In Javier v. Deringer-Ney, Inc., supra, the plaintiff filed an administrative complaint with both the CHRO and the EEOC alleging that the defendant, his former employer, discriminated against him only in his termination. In several counts of his federal complaint, however, the plaintiff made additional allegations that his employer failed to train him and failed to provide salary increases based on his race, color, national origin, ancestry or alienage. See id. The court granted the defendant's motion to dismiss the counts alleging failure to train and failure to provide salary increases because the plaintiff's original administrative complaint did not include these allegations. See id. Therefore, the court found that these counts were not reasonably related to the claims in his administrative complaint. See id.
In Cameron v. Saint Francis Hosp. and Medical Center, supra, 56 F.Sup.2d 238, the plaintiff's original administrative complaint alleged only age discrimination. The plaintiff did not amend this charge to include allegations of race and national origin discrimination until more than 300 days after his termination. See id. In his federal complaint, the plaintiff alleged age, race and national origin discrimination and argued that the additional race and national origin claims were added based upon statements made during the CHRO/EEOC investigation of his timely-filed age discrimination claim and, therefore, related back to that claim. See id. The court concluded that the plaintiff's claims of race and national origin discrimination were not time-barred and thus, denied the defendant employer's motion to dismiss those counts. See id., 240. The court reasoned: "If, as here, the EEOC in its investigation of an alleged unlawful practice turns up evidence of a type of discrimination other than alleged by the charging party, which the charging party includes in his amended charge and federal complaint, we find that this additional type of discrimination is reasonably related to plaintiff's original charge and, thus, relates back." (Internal quotation marks omitted.) Id. These cases do not inform the court's decision. In both timely claims were originally filed. Moreover, here the plaintiff does not allege any new type of state law discrimination. There is nothing to relate back. The defendant's "piggyback" argument is persuasive.
The plaintiff asks this court to read the Connecticut decisions, which liberally construe the 180-dayfiling period for CHRO claims, in conjunction with the federal decisions, which discuss the principle of reasonably related claims relating back to one another. As a result, the plaintiff asserts that because the claims he raised at the time he concurrently filed his claims with the CHRO and the EEOC arose out of the same set of facts, the claims are reasonably related and the 300-dayfederal filing period should apply.
The state and federal precedent relied upon by the plaintiff does not support his position that the 300-day period of 42 U.S.C. § 2000e-5(e)(1) is applicable in the first instance to his state employment discrimination claims against the defendant. In order for the 300-dayperiod to be applicable to federal claims, the aggrieved party must first initiate "proceedings with a State or local agency with authority to grant or seek relief from such practice," such as the CHRO. See 42 U.S.C. § 2000e-5(e)(1). Such filing must be timely. The District Court of Connecticut in O'Hazo v. Bristol-Burlington Health District, 599 F.Sup.2d 242, 251-52 (D.Conn. 2009), acknowledged this limitation, stating: "To maintain a federal civil action under Title VII . . . a plaintiff must timely file a charge of discrimination with the EEOC . . . The charge must be filed with the EEOC within 180 days of the date on which the `alleged unlawful employment practice occurred.' 42 U.S.C. § 2000e-5(e)(1) . . . The filing deadline for Title VII . . . claims is extended to 300 days, however, in those states or localities that have their own anti-discrimination laws and an agency to enforce those laws. 42 U.S.C. § 2000e-5(e)(1) . . . Connecticut has its own anti-discrimination agency . . . Claims under CFEPA, however, must be filed no more than one 180 days after the alleged act of discrimination. Conn. Gen. Stat. § 46a-82(f)." (Citations omitted; emphasis added.); see also Amoroso v. United Technologies Corp., United States District Court, Docket No. 3:00CV00432 (AVC) (D.Conn. November 6, 2000).
The plaintiff presents no legal or factual basis upon which 42 U.S.C. § 2000e-5(e)(1) can be read to allow the plaintiff an initial 300-dayperiod to file his state claims with the CHRO. While there may be some accommodation between the two jurisdictions there is nothing in the caselaw or facts presented by the plaintiff allowing an initial late filing with the CHRO. As such, counts one and two of his complaint are time-barred because they were filed 202 days after his employment with the defendant was terminated. Therefore, this court lacks subject matter jurisdiction over these claims.
The plaintiff's waiver argument is neither factually or legally supportable and requires no further discussion.
The motion to dismiss counts one and two of the plaintiff's complaint is granted.