9510617, Henry - Ruling on Motion

Commission on Human Rights and Opportunities, : ex rel. Robert Henry, Complainant
CHRO # 9510617 Edwards Super Food Stores,  Respondent
July 22, 1999

Ruling on Respondent’s Motion to Dismiss

Procedural Background

At a settlement conference on April 7, 1999, the Honorable Jon P. FitzGerald requested any proposed amendment to the complaint to be filed by April 16, 1999 and any answer or objection thereto filed by June 4, 1999. In the succeeding weeks, attorneys for the Commission and Complainant filed and served three separate Notices to Parties of Complaint Amendment and different sworn affidavits attempting to add The Stop and Shop Supermarket Company ("Stop & Shop") and Ahold USA, Inc. ("Ahold") as additional Respondents.

On June 9, 1999, the undersigned Human Rights Referee ordered, among other things, that:

1) The Complainant and/or Commission shall file and serve on all parties of record a Motion to Amend the Complaint and the Amended Complaint pursuant to General Statutes Section 46a-84(g) and Section 46a-54-90(e) of the Regulations of Connecticut State Agencies by June 25, 1999.

On June 11, 1999, Commission moved to be excused from item 1, above. Without objection from any party, the motion was granted.

On June 30, 1999, Respondents Stop & Shop and Ahold filed a motion to dismiss on the basis that the Commission does not have jurisdiction over those two corporate entities and that the complaint should be dismissed with respect to those two Respondents. The Commission contends that the presiding officer does not have authority to grant a motion to dismiss absent a full hearing on the merits of the case.


Presiding Officer’s Authority to Dismiss a Complaint

Motions to dismiss are appropriately considered by the presiding officer. "The presiding officer shall have full authority to control all conferences and hearings, to receive motions and other papers, to administer oaths, to admit or exclude testimony or other evidence and to rule upon all motions and objections." (emphasis added.) Section 46a-54-101 of the Regulations of Connecticut State Agencies ("Regulations"). A tribunal must have the authority to dismiss cases over which it has no jurisdiction and cases which fail to state a claim upon which relief may be granted. To disallow a tribunal control over its own case flow would, in such instances, waste the limited resources of the tribunal.

The Commission argues that ". . . CONN. GEN. STAT. Sect. 46a-86(e) . . . provides for the dismissal of a complaint only ‘[i]f upon all the evidence and after a complete hearing the presiding officer finds that the Respondent has not engaged in any alleged discriminatory practice . . . . ‘ (emphasis added.) Commission’s Memorandum, p. 4. The contention that a presiding officer can only dismiss a case after a full hearing is an absurd reading of the statute. There is no use of the word "only" anywhere in § 46a-86(e). The language of the § 46a-86(e) provides that if a presiding officer finds after a full hearing that the respondent has not engaged in any alleged discriminatory act that the presiding officer shall enter an order dismissing the complaint. It is a far cry to conclude that presiding officers do not have authority to dismiss complaints for other reasons merely because they explicitly are authorized to dismiss a complaint in cases where no discriminatory conduct is proven.

There is no statute or regulation that states presiding officers do not have the authority to dismiss complaints. On the contrary, one of the two regulations that mentions dismissing complaints in the "Contested Case Proceedings" section of the Regulations leads to the opposite conclusion. Section 46a-54-96(d) of the Regulations grants presiding officers the authority to implement the provisions of said section, including the entry of default orders and further provides that, "[i]n no event shall the complaint be dismissed because of the Commission’s failure to disclose information, which it is prohibited from disclosing pursuant to . . . ." By stating that a complaint shall not be dismissed based on specific grounds necessarily gives rise to the inference that complaints may be dismissed on other grounds.

Commission further argues that the statute "allows for only a single instance in which a hearing referee may dismiss a complaint and that is upon finding that the Respondent has not engaged in any alleged discriminatory practice". Commission’s Memorandum, p. 4-5. Cases are dismissed by presiding officers prior to a complete hearing on a fairly frequent basis, for example, pursuant to a negotiated settlement, as was the case in CHRO ex rel. Shoshana DeMaria v. Neighborhood Legal Services, Case # 9310410 (March 5, 1999). This common type of dismissal, albeit ministerial in nature, contradicts Commission’s claim that there is "only a single instance" in which a hearing referee may dismiss a complaint. Additionally, cases are dismissed for other reasons with either the support of or without objection from the Commission. See CHRO ex rel. Cuffee v. Nine West Group, Inc. , Case # 9720038 (April 11, 1999) (for complainant’s failure to cooperate); CHRO ex rel. Sheila Allen v. Pollack’s, Case # 9710692 (June 2, 1999) (for complainant’s failure to cooperate); CHRO ex rel. Michelle Eichelberg v. The Quality Inn, Case # 9740229 (August 21, 1997) (for complainant’s failure to cooperate). Cases have also been dismissed over the objection of a party. See CHRO ex rel. Mays v. Town of Wethersfield Police Department, Case ## 8710341, 8710322 (May 6, 1994) (lack of subject matter jurisdiction); CHRO ex rel. Susan Hefti v. Fairfield University, Case # 9120206 (September 23, 1997) (for complainant’s failure to comply with orders); CHRO ex rel. Edward D’Angelo, Jak Kovatch, Nahum Spector v. University of Bridgeport, Case ## 9520184, 9520185, 9520186 (June 29, 1999) (lack of subject matter jurisdiction); CHRO ex rel. Lugenia Blake v. Beverly Enterprises-CT and Lexington Health Care Group, Case # 9530630 (July 9, 1999) (failure to state a claim upon which relief may be granted); CHRO ex rel. Chillon Ballard v. Cheshire Board of Education, Case # 9830294 ( July 15, 1999) (lack of subject matter jurisdiction).

The arguments forwarded by the Commission as to the presiding officer’s lack of authority to dismiss complaints lack merit. As the examples cited illustrate, there is not "only a single instance" or a requirement that a full hearing be held before a complaint may be dismissed.

Standard for a Motion to Dismiss

A motion to dismiss is an appropriate means to challenge a tribunal’s jurisdiction to hear an action. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996); Upson v. State, 190 Conn. 622 (1983). In considering a motion to dismiss, facts are to be construed in the light most favorable to the non-moving party, in this case, the Complainant. Every reasonable inference is to be drawn in the Complainant’s favor. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608 (1998); Pamela B. v. Ment, 244 Conn. 296, 308 (1998). The moving party bears a substantial burden to sustain a motion to dismiss.

A review of the memoranda filed in support of and objecting to this motion indicates that there are numerous factual issues which need to be resolved before ruling on the motion to dismiss the complaint with respect to Stop & Shop and Ahold.

Accordingly, this matter shall be scheduled for an evidentiary hearing on the record, the sole purpose of which is to explore the corporate structure of Edwards Super Food Stores, Stop & Shop and Ahold. The parties shall present evidence and argument to address whether successor liability should attach with respect to Stop & Shop and whether the "corporate veil" should be pierced with respect to Ahold. No additional time shall be allotted for written briefs following the close of the hearing.

A telephone conference call shall be held to allow the parties to define the issues and discuss document production necessary for this hearing and to schedule a date for the evidentiary hearing. The conference call shall be arranged at a time mutually agreeable to all the parties, but in no event later than noon on Friday, July 30, 1999. The undersigned presiding officer is available to participate in said conference call any day until then between 8:30 a.m. and 5:30 p.m. The public hearings administrator, Ann Galer-Pasternak at (860) 541-3452 should be notified as to the date chosen for the conference call and who shall initiate it.

It is so ORDERED.

Dated at Hartford, this _____ day of July, 1999.


Lara L. Manzione
Presiding Human Rights Referee

C: Honorable Jon P. FitzGerald, Settlement Human Rights Referee .
Neil Johnson, Esq.
Robert J. Brothers, Jr., Esq. (Hand Delivered)
Duncan J. Forsyth, Esq.
Andrew C. Meyer, Esq.
Lisa J. Damon, Esq.
Lynn A. Kappelman, Esq.
Raymond P. Pech, Esq. (Hand Delivered)