9530630, Blake - Decision on R's Motion


Commission on Human Rights and Opportunities, ex rel. : CHRO No. 9530630 Lugenia Blake, Complainant
Beverly Enterprises-Connecticut, et al, Respondents

July 8, 1999



This action commenced with a Complaint by Lugenia Blake ("Complainant") of 766 Capitol Avenue, Bridgeport, Connecticut 06606, on June 13, 1995, in which she alleged that her discharge by the Respondents – Beverly Enterprises-CT/Beverly, California of 5111 Rogers Avenue, Fort Smith, Arkansas and Lexington Health Care Group c/o Lewis K. Wise, Esq., Rogin, Nassau, Caplan, Lassman & Hirtle, CityPlace 1, 22nd Floor, 185 Asylum Avenue, Hartford, CT 06103, on January 26, 1995, from her position as a Certified Nurse Aide was based on her race and age in violation of C.G.S. §46a-60(a)(1). Her dismissal followed the issuance of a Final Memorandum of Decision from the Department of Health and Addiction Services dated December 29, 1994, in which she was found to have been guilty of abuse and neglect of patients in her care. That decision came after a full evidentiary hearing conducted on November 7, 1994, before a Health Department hearing officer in which the Complainant herein appeared and represented herself.

After investigating the Complaint, the Commission on Human Rights and Opportunities (hereinafter "CHRO") issued an original Notice of Public Hearing on February 24, 1997. In October of 1997 the Respondent, Beverly Enterprises-Connecticut, Inc., submitted a Motion to Dismiss the Complaint or for Summary Judgment, which was objected to, and the Motion was denied by the then-assigned Hearing Officer, Attorney Mona E. Herman, on January 4, 1999. Respondent’s Motion cited four grounds for dismissal: (1) the complaint was not filed or served within the statutorily mandated time period; (2) it failed to make out a prima facie case of discrimination as the Complainant was not qualified for the position at issue; (3) the Complainant could not receive any compensation in any event under applicable Federal and State Law; and (4) the Commission’s jurisdiction to proceed was invalidated because of alleged failures during the investigative process. Only the first two will be relevant to our further discussion.

Hearing Officer Herman’s denial of the Motion was based on her agreement with the contention of the CHRO Counsel that she lacked authority to dismiss a complaint absent a full, complete evidentiary hearing.

Subsequently, this case was assigned to the undersigned, and a status conference was held on March 5, 1999. At that time, this Referee expressed a desire to reconsider these issues, and asked for briefs on the questions raised. The parties have complied by filing the requested briefs, which have been fully considered by me along with the memoranda and related exhibits previously submitted.


Prior to a consideration of the substance of the Respondents’ Motion, a determination is required with respect to the argument made by Commission (and Complainant) Counsel about the Referee’s lacking authority to dismiss this (or any other) Complaint absent a evidentiary hearing.

The sole authority cited by Commission Counsel is his reading of C.G.S. §46a-86(e) which references the power granted to a hearing officer to dismiss a complaint "if, upon all the evidence, and after a complete hearing, the presiding officer finds that the respondent has not engaged in any alleged discriminatory practice." The Respondent’s brief is correct in noting that the qualifying word "only" is used in the Commission’s brief, but not in the statute itself. In the undersigned’s view this is not an insignificant difference, as it renders the grant of authority (to dismiss) as inclusive as opposed to exclusive.

Under the Regulations governing the Rules of Practice of the Commission on Human Rights and Opportunities (Regulations of Connecticut State Agencies, Sections §46a-54-1 to 46a-54-152 – hereinafter "Commission Rules"), a hearing officer is specifically empowered to consider all "motions directed to the pleadings" (§46a-54-96(a)(5). Moreover, the Commission Rules provide that such motions can be ruled on before or after (author’s emphasis) a Hearing (§46a-54-97), and without oral argument (§46a-54-97(c)).

Section 46a-54-101 of the Commission Rules gives hearing officers "full authority to control all conferences and hearings, to receive motions and other papers … and to rule upon all (authors emphasis) motions and objections" without limitation. That such power extends to dismissals is even clearer upon a closer reading of §46a-54-96(d) of the Commission Rules. In this subsection the hearing officer is provided with the authority "to implement the provisions of this section by appropriate order" (including rulings on motions addressed to the pleadings); significantly it follows with a specific limitation on Dismissal authority by mandating that "in no event shall the complainant be dismissed because of the Commission’s failure to disclose information which it is prohibited from disclosing pursuant to …."

The plain purport of this clause is that dismissals are an available option to hearing officers on other grounds. That such is the case is evident not only from a review of the Commission Rules as a whole, but logically as well. The purpose of a hearing is to resolve disputed issues of fact, and in those instances, relatively rare as they may be, where the essential facts are not in dispute, or where lack of jurisdiction is evident from the record, there would be no purpose served by conducting a hearing for its own sake.

Notwithstanding the Commission’s claims in this case that there is never authority to dismiss a certified complaint prior to a hearing, the Commission has not only recognized such authority, but has either requested this action itself or not opposed pre-hearing dismissal on a number of prior occasions. See CHRO ex rel Susan Hefti v. Fairfield University, CHRO No. 9120206 (9/23/97); CHRO ex rel Michelle Eichelberg v. The Quality Inn, et al, CHRO No 9740229 (8/21/97); CHRO ex rel Cuffee v. Nine West Group, CHRO No 9720038 (4/11/99). Other rulings involving pre-hearing dismissals and pre-hearing summary judgments include CHRO ex rel Mays v. Wethersfield Police Department, CHRO No. 8710341 (5/9/94); CHRO ex rel George Frazier v. General Dynamics, CHRO No. 8940034 (12/22/92) respectively.

It is not a viable position for the Commission to contend in some instances that hearing officers have the power to enter pre-hearing dismissals, but not in others. The authority to do so exists, or it doesn’t. For the reasons set forth above I find that I do have the authority, under the proper, limited circumstances, to grant Motions to Dismiss. Therefore I reject the Commission’s, and the Complainant’s, claim to the contrary in this case.


With respect to the instant case certain essential facts are clearly not in dispute. First, there is no argument but that the Department of Public Health and Addiction Services rendered a Final Memorandum of Decision adverse to the Complainant herein on December 29, 1994 (Exhibit E, Affidavit of Todd A. Bromberg dated May 19, 1999). The finding was that Complainant was guilty of abuse and neglect, and that this verdict should be listed as such on the Connecticut Nurse Aide Registry. Nor is there a dispute that federal law requires, upon a finding that an individual has abused and/or neglected a patient, that she be listed on a state registry and prohibited from continued employment in a health care facility. 42CFR§483.13(c)(1)(ii)(B).

Complainant’s and CHRO’s position is not markedly advanced by the boilerplate assertion that ambiguities or factual inferences to be drawn from contested facts must be viewed in the light most favorable to the non-moving party Cohen v. S.U.P.A. Inc., 814 F Supp 251, at 257 (N.D.N.Y. 1993). The bold and unsupported assertion in the Commission’s brief, and in the Complaint, that Complainant "vehemently denies the validity of the patient abuse charges" does not by itself create a genuine issue of fact. More persuasive to the undersigned is the holding of the United States Supreme Court that an administrative finding must be given preclusive effect where the aggrieved party has had a "full and fair opportunity to present her claims in that forum" University of Tennessee v. Elliott, 478U.S788 (1986). The proposed Final Decision by Stephen Miltimore, Administrative Hearings Attorney on December 6, 1994, stated that "the Respondent represented herself … Both parties presented evidence and had the opportunity to conduct cross examination." Therefore I conclude that this administrative decision, which was never appealed, must be given res adjucata effect. As of January 1995, then, the Complainant was precluded from working at the Respondents facility by operation of applicable state and federal law; in other words she was not (author’s enphasis), her claims to the contrary notwithstanding, qualified to work as a Certified Nurse Aide.

The standards for establishing a case of employment discrimination were established in the leading case of McDonnell Douglas v. Green, 411 U.S. 792 (1973), and have been adopted by our Supreme Court. See Levy v. CHRO 236 Conn. 96 (1996) and Miko v. CHRO 220 Conn. 192 (1991). Those are: the establishment by the Complainant that (1) she belongs to a protected class, (2) that she was qualified for the job and satisfied its normal requirements (emphasis added), (3) that despite her qualifications she was discharged and, (4) she was replaced by someone not a member of a protected class or that similarly situated members of an unprotected class were retained while she was dismissed.

For the reasons cited hereinabove it is not possible for the Complainant to establish either (2) or (3) of the conditions for the establishment of a prima facie case. That being the case, the Respondent Beverly’s Motion for Summary Judgment and Dismissal must be granted.

As no prima facie case can be established against the Respondent, Beverly, there can be no liability that can attach to its successor the Respondent Lexington Health Care Group, and it is therefore unnecessary to discuss whether a timely filing was made as to it, or whether it was indeed a successor entity for these purposes at all.


This Complainant is therefore: DISMISSED AS TO ALL RESPONDENTS.

Dated at Hartford this 8th day of July, 1999.

Hon. Gordon T. Allen
Human Rights Referee