Duhaney v. Birk, Ruling re: Respondent's Motion to Dismiss
OPH/WBR No. 2005-014
Damion L. Duhaney, Complainant
Birk Manufacturing, Inc., Respondent
January 12, 2006
Ruling re: the respondent's motion to dismiss
By motion filed December 28, 2005, the respondent moved to dismiss the complaint. The gravamen of the motion is that the complainant (1) failed to pursue his allegations with the auditor and the attorney general prior to filing his complaint with the chief human rights referee and (2) failed to provide all the information requested in the complaint form. However, transmitting the information to the auditors and contacting the attorney general are no longer prerequisites to the filing of a complaint with the chief human rights referee. P. A. 05-287, § 47. Also, a complaint shall not be deemed defective solely because it is incomplete. Regs., Conn. State Agencies § 4-61dd-4(b). The complainant must first be given the opportunity to cure the defect by amending the complaint. Id., Regs., Conn. State Agencies § 4-61dd-9(b).
However, the complaint is nevertheless dismissed. The complainant failed to
appear at the initial conference and provided no explanation for his absence
that would constitute good cause. Regs., Conn. State Agencies § 4-61dd-15(c).
In addition, it appears that the complaint is untimely and barred by the statute
of limitations. A complaint must be filed with the chief human rights referee
not later than thirty days after the complainant is retaliated against or
threatened with retaliation. P. A. 05-287, § 47(b)(3)(A). According to the
complaint, the complainant was retaliated against (terminated) on November 11,
2005. However, the complaint was not filed with the chief human rights referee
until December 16, 2005, more than thirty days after the respondent terminated
the complainant's employment.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Mr. Damion L. Duhaney
Robert Noonan, Esq.