Declaratory Ruling: Herrick v. Sports One
STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
DANIEL HERRICK : NO. 9730219
VS. :
SPORTS ONE, INC., ET AL. : DECEMBER 8, 1997
DECLARATORY RULING
ON THE PETITION FOR A DECLARATORY RULING
FILED BY SPORTS ONE, INC., ET AL.
I. INTRODUCTION.
This Petition for a Declaratory Ruling is an outgrowth of a complaint of discrimination filed by Daniel Herrick (Complainant) against Sports One, Inc. and Peter D. Klein (Respondents) with the Commission on Human Rights and Opportunities (CHRO) on November 25, 1996. By Petition for a Declaratory Ruling dated April 17, 1997, the Respondents requested that the CHRO "declare null and void a decision by Cheryl Sharp, Regional Manager of the Commission dated February 24, 1997 and attached hereto as Exhibit 'A'. The aforementioned Decision retained the Complainant's Complaint following a merit assessment review by the Commission." See Petition at 1.
This Declaratory Ruling was initially due on October 14, 1997. See letter dated July 17, 1997 to Respondents's attorney from Philip A. Murphy, Jr., CHRO Commission Counsel. By letter dated October 3, 1997, their attorney, Ebrahim Dehghani, has agreed that the CHRO could "withhold making its decision on the Petition until December 22, 1997". See letter; CONN. GEN. STAT. ' 4-176(i). This Ruling is issued within the extended time frame.
II. FACTS.
The facts supplied to the CHRO by the Respondents are as follows:
On or about November 25, 1996, the Complainant herein, Daniel Herrick (hereinafter "Herrick"), filed a Complaint with the Commission alleging that he was sexually harssed while he was in the employ of Sports One. In his Complaint with the Commission, Herrick had mentioned specific dates on which the alleged acts were committed by the President of Sports One, Peter D. Klein. Herrick had also alleged in his Complaint that he knows of witnesses who would testify in support of his position. He did not, and has not however, disclosed the identities of the alleged witnesses who he claims to have knowledge of the conduct which he has alleged in his Complaint.
On or about January 3, 1997, the Respondent, Sports One, filed an Answer to Herrick's Complaint which proved that the allegations which Herrick had set forth in his Complaint were without basis in fact or in law. Specifically, the Respondents showed, among other things, that on the dates alleged by the Complainant as being the dates on which the alleged acts took place, it would have been physically impossible for the Respondent, Peter D.Klein[,] to have been with the Complainant. The Complainant never amended his Complaint to allege alternative dates for the occurrence of the alleged conduct.
In response to the Respondents' Answer, Herrick filed a Reply on January 7, 1997 which referred to witnesses and documents that the Complainant failed to introduce and disclose as he is required to do by Connecticut law. A copy of said Reply is attached hereto as Exhibit "B".
In response to Herrick's Reply, the Respondents filed an Objection with the Commission setting forth, inter alia, the violations, informalities and illegalities which they hereinafer more specifically set forth.
The Commission, through its investigator, Kathleen Bowden Gerassino (sic), informed the Respondents that the Complainant's Reply was sufficient.
On or about February 24, 1997, the Commission, through its Regional Maager, Cheryl Sharp and Investigator, Marla Shiller, notified the parties that the Complainant's complaint had been retained for the reasonable cause determination.
See Petition at 2-3
III. PARTIES.
The parties to this Declaratory Ruling are:
Sports One, Inc.
47 Capitol Ave.
Wallingford, CT 06492
Peter D. Klein
47 Capitol Ave.
Wallingford, CT 06492.
In addition, the Complainant has an interest in the subject matter of this Declaratory Ruling. He is:
Daniel Herrick
211 Town Place
Middletown, CT 06457.
The Certification on the Respondents's Petition for a Dec-laratory Ruling indicates that a copy of the Petition was mailed on April 17, 1997 to the Complainant's attorney, Doreen J. Bonadies, at 154 State Street, Suite 206, North Haven, CT 06473. Atty. Bonadies has not formally appeared in connection with this Petition. Had he wished, the Complainant could have intervened or been made a party to this proceeding. See CONN. GEN. STAT. ' 4-176(d); Section 46a-54-124 of the REGULATIONS OF CT STATE AGENCIES.
IV. BASED ON THE FACTUAL RECORD PRESENTED, THE COMPLAINANT DID NOT VIOLATE SECTION 46a-54-68 OF THE REGULATIONS OF CONNECTICUT STATE AGENCIES. THUS, THERE IS NO BASIS FOR DECLARING NULL AND VOID THE DECISION TO RETAIN THE COMPLAINANT'S AFFIDAVIT FOR AN INVESTIGATION.
The Respondents ask that the CHRO "declare null and void a decision by Cheryl Sharp, Regional manager of the Commission dated February 24, 1997". See Petition at 1. In support of the request, the Respondents allege that the Complainant, in his Reply to their Answer, stated that he had witnesses to confirm he was sexually harassed by Klein, but failed to provide their names to the Respondents, in violation of Section 46a-54-68(a) of the REGULATIONS OF CONNECTICUT STATE AGENCIES. Id. at 3-8. Section 46a-54-68(a) provides:
The complainant, upon receipt of a copy of the respondent's answer[,] has a duty to provide any and all information in her or his possession or obtainable by reasonable means which relates to any contested allegation of the complaint or answer, including all documentary evidence and the names of persons having knowledge of the facts and circumstances alleged to constitute a discriminatory practice. The Commission may require the complainant to clarify or supplement any such information, and the duty to provide such information by the complainant shall be a continuing one. The information required by this subsection shall be provided when the complainant meets with the investigator to review the respondent's answer, unless requested earlier by the Executive Director or her or his designee.
The CHRO has previously had occasion to provide interpretation of Section 46a-54-68 within the context of a declaratory ruling. See Declaratory Ruling on the Petition of the Town of Avon, CHRO No. 9415041 (November 14, 1996). As previously declared, even though a complainant has a duty to provide information to a respondent that arises upon receipt of the answer, the actual need for a complainant to make a physical transfer of the in-formation is not triggered until, in the words of Section 46a-54-68(a), "the investigator meets with the complainant to review the respondent's answer, unless requested earlier by the Executive Director or her or his designee." Id. at 24.
In their statement of facts, the Respondents do not allege that any CHRO Investigator ever met with the Complainant. It is the Respondents's responsibility to provide an adequate factual record for this Petition. See Declaratory Ruling on the Petition of the Town of Avon, CHRO No. 9415041; Section 46a-54-122(b)(3) (petition for declaratory ruling must "provide an appropriate factual background of the circumstances giving rise to the request"). Without such a meeting, it would not have been possible for the Complainant to have violated Section 46a-54-68. On the basis of the factual record presented, then, the CHRO declares that the Complainant did not violate Section 46a-54-68.
Even if an Investigator had met with the Complainant, it will be the rare case that the penalty exacted for a violation of Section 46a-54-68 will be to declare a decision null and void, particularly in the absence of demonstrable prejudice. Such declarations should be made sparingly, if ever. Suffice it to say, however, that the Respondents have provided an inadequate record from which the CHRO could make such a declaration in this case.
The Respondents cannot possibly demonstrate prejudice, as the Complainant's failure to produce names of relevant witnesses occurred within the context of a CHRO merit assessment review. A merit assessment review under CONN. GEN. STAT. ' 46a-83(b) is limited to a review of "the complaint, the respondent's answer and the responses to the commission's requests for information, if any, and the complainant's comments, if any, to the respond- ent's answer and information responses." There is no require- ment that the Complainant provide any response; hence, there is no requirement that the Complainant provide the names of rel- evant witnesses.
Further, by failing to provide the names of relevant wit-nesses, the Complainant hurt no one but himself. These were not witnesses who would support the Respondents, and so the Com- plainant cannot be faulted for withholding adverse information from the Respondents which they could use to enhance their own case. Indeed, the withholding of witness names actually impaired the presentation of the Complainant's own case. Given that a merit assessment review is a summary procedure, most complain- ants, as a litigation strategy, would be anxious to present the widest possible array of favorable evidence to the CHRO, as that would surely increase the chance that their case would survive the review and be passed on for a full investigation.
To bolster their argument, the Respondents cite Oakley v. CHRO, 38 Conn.App. 506 (1995), but their reliance on Oakley does not ring convincing. See Petition at 4-5. The Appellate Court decision does not aid the Respondents a whit, concerned as it is with legal questions related to an award of attorney's fees under CONN. GEN. STAT. ' 4-184a. It is Judge Maloney's decision in an earlier, unrelated portion of the case that is of interest here. Oakley v. CHRO, No. CV-91-0398704, J.D. of Hartford-New Britain at Hartford (September 1, 1992)(Maloney, J.). Judge Maloney found fault with a CHRO Investigator who received certain in- formation from a respondent and relied on the information in his decision in determining there was no reasonable cause, even though the respondent did not provide a copy of the information to the complainant. This procedure robbed the complainant of the opportunity to respond to information which formed in part the basis for the CHRO's decision dismissing her complaint.
Oakley is clearly distinguishable from the situation at hand. Here, the Complainant did not supply the CHRO with inform-ation (the names of witnesses and documents) that he neglected to provide the Respondents; he failed to produce information to anyone, the CHRO or the Respondents. Obviously, this failure was not prejudicial, as the CHRO did not and could not rely on the information not produced, whereas in Oakley the CHRO had relied on the information, and had used it in dismissing Oakley's com-plaint. In this case, the Complainant's Affidavit was retained, based on the CHRO's review of information well known to the Respondents.
The Respondents have also argued that they had a right to this material, since this is a contested case under the Uniform Administrative Procedure Act (UAPA). See Petition at 6-8. A merit assessment review is not a "contested case" within the meaning of CONN. GEN. STAT. ' 4-166(2), and so falls outside the ambit of the UAPA. Several decisions have held that CHRO in- vestigations do not mandate UAPA protections. Brennan v. CHRO, No. CV-93-05271767, J.D. of New London at New London (July 3, 1996)(Maloney, J.), appeal dismissed, A.C. 16372 (April 24, 1997); Tanis v. CHRO, No. CV-93-0134702, J.D. of Stamford-Norwalk at Stamford (September 24, 1996)(Maloney, J.).
Beyond the insufficiency of the record, the CHRO notes that the issue of whether an actual failure to comply with Section 46a-54-68 requires that a decision to retain a complaint under CONN. GEN. STAT. ' 46a-83(b) must be declared null and void is now moot in this case. As stated, the Petition for a Declaratory Ruling arose in the context of a complaint of discrimination against the Respondents. On or about October 12, 1997, the Complainant filed an action under state and federal antidiscrim-ination law in federal court. The CHRO takes notice of this law suit. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591 (1979)(court may take judicial notice of court files in-volving litigation between same parties, including judge's opinion). Titled Herrick v. Sports One, Inc., No. 397CV02081 (GLG), the Complaint alleges that the Complainant received a release from the CHRO. See Complaint, & 4. Under CONN. GEN. STAT. ' 46a-101(d), following receipt of the release, the CHRO "shall dismiss or otherwise administratively dispose of the discriminatory practice complaint pending". Thus, Complainant's Affidavit no longer survives. Since this Petition was filed in conjunction with that Affidavit, it is arguably moot. Under similar circumstances, Judge Maloney ordered a respondent to show cause why an appeal from a declaratory judgment issued by the CHRO should not be "dismissed for mootness and/or lack of aggrievement." Town of Avon v. CHRO, No. CV-97-0567024, J.D. of Hartford-New Britain at Hartford (July 28, 1997)(Maloney, J.).
V. SAME-SEX HARASSMENT STATES A CAUSE OF ACTION FOR WHICH RELIEF CAN BE GRANTED UNDER CONNECTICUT ANTIDISCRIMINATION LAW.
The Respondents have also argued that the CHRO should not have retained the Complainant's Affidavit, because his claim of same-sex harassment does not state a claim on which relief can be granted under Connecticut law. See Petition at 8-11. For the reasons stated in the Declaratory Ruling on the Petition of Hunter's Ambulance, Inc., CHRO No. 9730074, the CHRO rejects this contention. Claims of same-sex harassment are actionable in Connecticut.
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
Adopted by a majority vote of the Commissioners of the Commission on Human Rights and Opportunities present and voting at a Special Meeting of the Commission held on December 8, 1997, at Hartford, Connecticut.
Attest: ______________________________
Nicholas Cioffi, Chairperson
Date: _____________________