9940144, Okonkwo - Ruling re R's Motion
CHRO No. 9940144
Commission on Human Rights and Opportunities ex rel. Francis Okonkwo, Complainant
Bidwell Healthcare Center, Respondent :
February 5, 2001
Ruling re: The Respondent’s Motion to Dismiss
By motion dated December 13, 2000, the respondent moves to dismiss the complaint for lack of jurisdiction. The respondent alleges that the investigator, in his reasonable cause finding, found no reasonable cause to believe that the complainant had been sexually harassed. The respondent further alleges that the investigator, in his reasonable cause finding, found reasonable cause for a claim, disparate treatment, not alleged in the complaint. Specifically, the investigator found that "[t]he investigation did not support the complainant’s allegations of sexual harassment." (Finding of Reasonable Cause and Summary, October 3, 2000, p. 5.) Relative to the disparate treatment finding, the investigator found that "[t]he respondent has clearly held the complainant to a different standard than it held other employees …. "Id. at 8.
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citations omitted; internal quotation marks omitted.) Federal Deposit Insurance Corp. v. Peabody N.E., Inc., 239 Conn. 93, 99 (1996). "Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." (Citations omitted; internal quotation marks omitted.) Salmon v. Department of Public Health and Addition Services, 58 Conn. App. 642, 649 (2000).
On December 21, 2000, the commission and the complainant were given until January 23, 2001 to file a reply to the respondent’s motion to dismiss. The complainant filed no reply and the commission eventually filed its objection on February 1, 2001.
The respondent’s motion to dismiss dated December 13, 2000 is denied in part and granted in part.
A. Allegation of disparate treatment
The motion is denied as to the allegation for which reasonable cause was found, the alleged disparate treatment. In its motion, the respondent argues that this claim was not made in the complaint and, therefore, the investigator’s finding of reasonable cause for a non-alleged discriminatory action is contrary to General Statutes § 46a-83. However, according to paragraph number 7 of the complaint, "[o]n knowledge and belief, respondent has paid for time suspended pending an investigation to employees who were found not to have abused patients, including but not limited to Beverly Palmer. They have also returned within a few weeks." This allegation sufficiently raises a claim, of disparate disciplinary treatment between the complainant and other employees, to put the respondent on notice that the allegation would reasonably fall within the scope of the investigation. Cameron v. St. Francis Hospital and Medical Center, 56 F. Sup. 2d. 235, 239 (D. Conn. 1999).
B. Allegation of sexual harassment
Notwithstanding agency decisions to the contrary, the respondent’s motion to dismiss is granted as to the allegation for which the investigator did not find reasonable cause, the alleged sexual harassment claim. The motion is granted for one or more of the following reasons:
First, General Statutes § 46a-84(b) provides in relevant part that "[t]he hearing shall be a de novo hearing on the merits of the complaint and not an appeal of the commission’s processing of the complaint prior to its certification." To allow the complainant a hearing on a claim for which reasonable cause was not found would be to allow the complainant to impermissibly appeal the commission’s processing that resulted in that finding of no reasonable cause. As the respondent cannot use the hearing process as an appeal of the investigator’s finding of reasonable cause, likewise, the complainant cannot use the hearing process as an appeal of the investigator’s finding of no reasonable cause. Precluding the commission and the complainant from a hearing on allegations for which reasonable cause was not found enforces the commission’s processing of the complaint prior to its certification.
Second, the finding of reasonable cause is an essential and indispensable jurisdictional condition precedent to a public hearing. "When the commission attorney proffered the report [the investigator’s reasonable cause finding], he and counsel for the complainants stated that it was offered solely for the purpose of establishing that the statutory prerequisites to the hearing had been met, one of those being that the commission had determined the existence of reasonable cause. See § 46-84(a) and (b)." Menillo v. Commission on Human Rights and Opportunities, 1996 WL 601982 *3 (Conn. Super., October 8, 1996).
The statutes require an investigation, reasonable cause finding, and conciliation prior to a hearing. One cannot have conciliation without a reasonable cause finding.
Third, the Connecticut Supreme Court has said "[i]t is quite apparent that a purpose of the statute is to guard against subjecting a respondent to a hearing upon every complaint which might be made to the commission, however unfounded. To guard against such an eventuality, the statute requires the commission, once a complaint has been filed, to investigate it, and it is only after such preliminary investigation has established that there is reasonable cause for action and after arbitration methods have failed that a hearing is authorized." Waterbury v. Commission on Human Rights and Opportunities, 160 Conn. 226, 235 (1971). The Supreme Court again warned against "rendering the reasonable cause determination a nullity" by allowing unfounded allegations to result in a hearing. The reasonable cause determination must serve a practical purpose. Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 318 (1991). Likewise, a no reasonable cause determination also must serve a practical purpose.
These admonitions by the Supreme Court are as applicable to a complaint in which reasonable cause is not found on one allegation as it is to a complaint in which reasonable cause is not found on all of the allegations.
Fourth, had separate complaints been filed for each allegation, the investigator would have dismissed the complaint for which reasonable cause was not found. The result is the same by this dismissal of the sexual harassment allegation. As the Connecticut Supreme Court said in Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 427 (1990), "This court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results." (Citations omitted; internal quotation marks omitted.) Requiring a hearing and compelling the respondent to defend against allegations that in another format would be dismissed as lacking merit is exactly the absurd consequence and bizarre result the court warned against.
Fifth, this ruling is consistent with the federal courts’ requirement that the Equal Employment Opportunity Commission make an express finding of reasonable cause for each employment practice which it concludes to be violative of Title VII. Equal Employment Opportunity Commission v. Sherwood Medical Industries, 452 F. Sup. 678, 681-83 (M.D. Fla. 1978). As a general rule, Connecticut courts and agency hearing officers look to federal employment discrimination law to interpret Connecticut’s antidiscrimination statutes. Brittell v. Department of Correction, 247 Conn. 148, 164 (1998); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996). Although Connecticut courts have also found that federal interpretations of Title VII are not binding on the interpretation of Connecticut’s antidiscrimination statutes (State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn 464, 470 (1989)), no special circumstances have been proposed supporting a deviation from the federal practice requiring an express finding of reasonable cause for each employment practice.
Finally, the Connecticut Supreme Court, in Evening Sentinel v. National Organization for Women, 168 Conn. 26, 33-34 (1975), noted that "[t]he [Connecticut Fair Employment Practice] act is a segment of legislation designed to protect individuals from discrimination because of their sex, age, religion, race, color, national origin or ancestry." Where, as here, "the investigator proceeded to conduct a thorough and complete investigation into the facts of the complaint" and concluded that "[t]he investigation did not support the complainant’s allegations of sexual harassment" (Finding of Reasonable Cause and Summary, pp. 2, 5), there is no discriminatory act to remedy or from which to protect the individual.
C. Use of finding of reasonable cause and summary
By order dated January 24, 2001, the respondent was ordered to supplement its motion to dismiss with a copy of the investigator’s Finding of Reasonable Cause and Summary. The report was considered for the limited purposes of establishing (1) that the respondent’s motion to dismiss accurately identified those allegations for which reasonable cause was and was not found, and (2) that the commission had established "that the statutory prerequisites to the hearing had been met, one of those being that the commission had determined the existence of reasonable cause." Menillo, supra, 1996 WL 601982 *3.
No evidentiary significance is attributed to the reasonable cause finding as an attachment to a motion. Based on the evidence presented at the hearing, I will make an independent determination whether the parties have met their applicable burdens of proof.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Mr. F. Okonkwo
Atty. C. Sharp
Mr. K Prisco
Atty. D Houston