Opinion
No. CV 05 4012161S
September 7, 2011
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (#132)
FACTS
The plaintiff, Kelly Skorzewski, commenced this action by service of process on the defendant, the town of Guilford, on June 21, 2005. On the same day the plaintiff also served Thomas Terribile, the Guilford Chief of Police, and Jeff Hutchinson and Alberto Magriz, Guilford police department officers. Before bringing suit in this court, the plaintiff filed a complaint against the defendant with the Connecticut commission on human rights and opportunities ("CHRO") on March 10, 2003. The plaintiff then requested a release of jurisdiction from the CHRO on June 17, 2005. The CHRO granted the plaintiff's request and issued a release of jurisdiction letter dated June 27, 2005.
On December 3, 2010, however, the court granted a motion to strike submitted by Terribile, Hutchinson and Magriz which challenged plaintiff's claims against them in their individual capacity. On January 4, 2011, the court, pursuant to Practice Book § 10-44 granted the individual defendants' motion for judgment on the stricken counts against them because a revised pleading had not been filed by the plaintiff within fifteen days following the court's order striking those counts. The only remaining defendant, who brings the pending motion to dismiss, is the town of Guilford; therefore, "the defendant" will hereinafter refer to the town of Guilford only.
The plaintiff alleges the following facts in her second revised complaint, which is the operative complaint. On or about September 2002, the plaintiff applied for a dispatcher position with the Guilford police department. The plaintiff interviewed for the position, and on January 6, 2003, Terribile made a conditional offer of employment to her pending background checks and other hiring procedures. Upon completion of the background checks, Magriz informed the plaintiff that she would begin work on February 23, 2003, after an evaluation, which included a home visit. On January 27, 2003, Magriz conducted a home visit at the plaintiff's home with her and her female roommate present. During this visit, Magriz discovered that the plaintiff was in a romantic relationship with her female roommate. Within days of the home visit, Hutchinson called the plaintiff and told her that she would not be hired as a dispatcher. The plaintiff received a rejection letter from Terribile on January 31, 2003, which did not provide a reason for her rejection. Shortly thereafter, the plaintiff called the police department seeking an explanation of their decision. Terribile responded to her by letter on March 6, 2003 which stated that she was not hired because one of her former employers told them she had breached its confidentiality policy. The plaintiff alleges that this account from her former employer is false, and further alleges that her offer of employment was revoked only because of her sexual orientation. She finally alleges that the defendant's discrimination has caused her economic loss and emotional distress.
On March 16, 2010, the defendant filed an answer and special defenses, to which the plaintiff filed a reply, dated March 19, 2010, denying all allegations made in the special defenses. The defendant then filed the present motion to dismiss on May 12, 2011. The plaintiff filed two memoranda in opposition to the motion on May 23, and 24, 2011. The second filing appears to be identical to the first, except that it includes pages from one of the attached cases which were omitted from the first filing. The parties presented oral argument on the motion at short calendar on May 31, 2011.
DISCUSSION
Practice Book § 10-31 provides in relevant part: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
"[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651-52.
The defendant moves to dismiss the plaintiff's only remaining claim on three grounds: (1) the plaintiff brought suit before receiving a release of jurisdiction from the CHRO, as required by General Statutes § 46a-101; (2) the plaintiff failed to bring suit within the two-year statute of limitations under General Statutes § 46a-102; and (3) the plaintiff failed to serve a copy of its complaint on the CHRO, as required by General Statutes § 46a-103. The plaintiff responds that each of the defendant's stated grounds do not raise issues of jurisdictional defects, and therefore, they cannot be a basis for a motion to dismiss. Specifically, the plaintiff argues in her memorandum that "so long as the plaintiff has obtained a release before the defendant files a motion challenging that fact" a dismissal cannot be granted. The plaintiff also argues that a statute of limitations defense is an affirmative defense which is not an appropriate ground for a motion to dismiss.
Section 46a-101 states in relevant part: "(a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section. (b) The complainant and the respondent, by themselves or their attorneys, may jointly request that the complainant receive a release from the commission at any time from the date of filing the complaint until the expiration of two hundred ten days from the date of filing of the complaint. The complainant, or his attorney, may request a release from the commission if his complaint with the commission is still pending after the expiration of two hundred ten days from the date of its filing . . ."
"Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission, except that an action may be brought within six months of October 1, 1991, with respect to an alleged violation provided a complaint concerning such violation has been pending with the commission for more than one year as of October 1, 1991, unless the complaint has been scheduled for a hearing." General Statutes § 46a-102.
"The complainant or his attorney shall serve a copy of the complaint in an action brought in accordance with section 46a-100 on the commission at the same time all other parties in such action are served. Service on the commission shall be for the purpose of providing legal notice of the action and shall not thereby make the commission a necessary party to the action. The commission, through its counsel or the Attorney General, may intervene as a matter of right in any action brought in accordance with section 46a-100." General Statutes § 46a-103.
The first issue is whether the plaintiff commencing suit before receiving a release of jurisdiction from the CHRO denies this court of subject matter jurisdiction. "If the complainant has not received a release from the CHRO prior to filing suit, the Superior Court does not have subject matter jurisdiction and must dismiss her claim." Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018766 (February 21, 2007, Wiese, J.). The Milne court relied on an Appellate court case which held the following: "the [trial] court . . . granted the defendants' motion to dismiss count nine on the ground that the plaintiff's failure to obtain a release from the commission on human rights and opportunities (commission) deprived the court of subject matter jurisdiction to consider that claim. We conclude that the court properly dismissed count nine due to the plaintiff's failure to obtain a release from the commission." Hayes v. Yale-New Haven Hospital, 82 Conn.App. 58, 59 n. 2 (2004); see also Angelsea Productions, Inc. v. Commission on Human Rights Opportunities, 248 Conn. 392, 405, 727 A.2d 1268 (1999) (holding that a party could only bring a civil action against the plaintiff if that party requests and obtains a release from the commission).
In cases analogous to the present case, the court has dismissed a complaint when the plaintiff commences a suit before obtaining a release of jurisdiction. In Franchina v. William Raveis Real Estate, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6009769 (December 1, 2010, Tyma, J.) [ 51 Conn. L. Rptr. 39], the court dismissed a plaintiff's complaint for commencing suit in Superior Court one day before the plaintiff received a release letter from the CHRO. See also Page v. Mount Vernon Money Center, Corp., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001014 (May 23, 2006, Rodriguez, J.) ("Notwithstanding the plaintiff's argument that she has requested the release, the failure to obtain a release prior to the filing of the instant action deprives this court of subject matter jurisdiction to consider the plaintiff's claim").
The plaintiff cites to multiple federal cases which hold that a failure to obtain a "right to sue letter" from the United States Equal Employment Opportunity Commission does not amount to a jurisdictional defect. See e.g. Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000); Gooding v. Warner-Lambert Co., 744 F.2d. 354, 358 (3rd Cir. 1984). While Connecticut employment discrimination law is largely modeled after the federal statutes and administrative system, federal case law interpreting federal statutes is not binding on this court. See Commission on Human Rights Opportunities v. General Dynamics Corp., Superior Court, judicial district of New London, Docket No. 524470 (May 1, 1995, Hurley, J.) ("federal law in the area of employment discrimination should not be followed to the extent that it conflicts with Connecticut case law"). Accordingly, this court does not find the federal case law proffered persuasive enough to compel the court to ignore Connecticut case law.
In the present case, the return of service indicates that the plaintiff commenced this action on June 21, 2005, and filed her complaint with the Superior Court on June 25, 2005. A copy of the release of jurisdiction letter issued by the CHRO shows that the plaintiff requested a release of jurisdiction on June 17, 2005. She did not obtain the necessary release from CHRO until the date it was entered and recorded with the commission, June 27, 2005; which is six days after she already commenced the present action. This timing is similar to Franchina v. William Raveis Real Estate, Inc., and Page v. Mount Vernon Money Center, Corp., which both held that the court lacked subject matter jurisdiction, when the plaintiff requested a release but did not wait for the release to be granted before bringing suit. Because the plaintiff brought suit before obtaining a release from the CHRO, this court lacks subject matter jurisdiction. Since the defendant has argued adequate grounds for dismissal through its second argument alone, the court does not need to address whether the plaintiff failed to comply with the two-year statute of limitations under § 46a-102, or the service requirements of § 46a-103.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted because the court lacks subject matter jurisdiction as a result of the plaintiff's failure to obtain a release of jurisdiction before bringing the present action.