Commission on Human Rights and Opportunities

9710052, Bernd v. Hamilton Sundstrand, Ruling on Motion to Dismiss

9710052, Bernd v. Hamilton Sundstrand, Ruling on Motion to Dismiss

CHRO No. 9710052

CHRO No. 9710053

CHRO No. 9710063

(Consolidated Cases)

Commission on Human Rights and Opportunities ex rel. Robert Bernd, John Bielanski, and Richard Perry, Complainants

v.

Hamilton Sundstrand Corporation, Respondent

January 4, 2002

Ruling on Motion to Dismiss

By motion filed December 7, 2001, the respondent moves to dismiss the above captioned complaints. For the reasons stated herein, the motion is denied.

I. Procedural history

These complaints were filed in August 1996 and certified on August 27, 1997. On May 26, 1998, the respondent’s motion to stay proceedings was granted. Subsequently, a status conference was held on June 17, 1999 at which time the public hearing was scheduled for January 24 – February 4, 2000. On July 19, 1999, the respondent filed a motion to dismiss, and on August 31, 1999 the commission decertified the complaints and remanded them to the investigator for further action. The complaints were amended in September 2001 and again certified on October 2, 2001. A hearing conference was held on November 14, 2001. The respondent filed its pending motion to dismiss on December 7, 2001 and the commission filed its objection on January 3, 2002. The complainants did not file a response.

II. The parties’ positions

In their complaints as amended ("complaints"), the complainants allege that the respondent violated General Statutes § 46a-60(a)(1)("CFEPA") and the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"). According to the complainants, the respondent laid them off in the winter of 1995 due to its need to downsize. The complainants allege that, beginning in March 1996, the respondent illegally discriminated against them when, in response to an increasing workload, it hired younger workers with less experience and seniority to perform duties the complainants had previously performed.

In its motion, the respondent argues that the complaints should be dismissed because (1) since the complainants never applied for the positions in question, they cannot establish a prima facie case; (2) the evidence cited in the reasonable cause finding is insufficient to satisfy the complainants’ burden of showing that the respondent’s proffered non-discriminatory reason is pretextual; (3) the commission has no jurisdiction to adjudicate ADEA allegations; (4) the reasonable cause finding was not issued within the time frame set by the executive director; and (5) the claims are preempted by section 301 of the federal Labor Management Relations Act.

III. Standard of review

"A ruling on a motion to dismiss is neither a ruling on the merits of the action … nor a test of whether the complaint states a cause of action." (Citations omitted.) Malasky v. Metal Products Corporation, 44 Conn. App. 446, 452 (1997). "A motion to dismiss attacks the court’s jurisdiction to hear the present action: the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. …. Every presumption is to be indulged in favor of jurisdiction. In ruling upon a motion to dismiss, the complaint is to be construed most favorably to the plaintiff. The motion to dismiss … admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however, … the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations in the complaint." (Internal quotation marks omitted; internal citations omitted.) Lueneburg v. Mystic Dental Group, 2 Conn. Ops. 937, 1996 WL 456967 *2 (Conn. Super. August 1, 1996).

IV. Analysis of the respondent’s claims

A. Application for position

The respondent first asserts that the complainants cannot establish a prima facie case of age discrimination. One element of a prima facie case that the complainants must establish is that they applied for the positions in question. State of Connecticut, Department of Public Health v. State of Connecticut, Commission on Human Rights and Opportunities, 2001 WL 418046 *3 (Conn. Super. April 6, 2001); Mauro v. Southern New England Telecommunications, Inc., 208 F3d 384, 386 (2nd Cir. 2000). According to the respondent, since the complainants did not apply for the positions they cannot establish their prima facie case and their complaints should be dismissed.

However, applying for a position is a flexible, fact-based concept. Applying may involve submitting a formal application or it may be the expression of an interest. Department of Public Health, 2001 WL 418046 *4; Mauro, 208 F.3d 387. Even if a formal application is required, "this rule is relaxed where the posting is hidden." Department of Public Health, 2001 WL 418046 *3 FN 3. In a situation where the plaintiff indicates to an employer an interest in a position but is "unaware of specific available positions because the employer never posted them … requiring the plaintiff to show that he or she applied for the specific jobs at issue would be unrealistic, as an employee by definition cannot apply for a job that he or she does not know exists." Mauro, 208 F3d 387. Also, this prima facie element may be excused where the complainant "demonstrates that the employer had some reason or duty to consider him for the position." (Internal quotation marks omitted; citations omitted.) Department of Public Health, 2001 WL 418046 *3.

In this case, the public hearing record to date contains no information confirming the respondent’s contention that the complainants’ conceded that they were unaware of the position until after it had been filled. Further, even if the complainants did make that concession, remaining factual issues may include whether the respondent had a reason such that it should have considered the complainants and whether the respondent’s recall process discriminatorily prevented the complainants from being aware of the existence of the vacant positions.

B. Reasonable cause finding

The respondent next argues that there is no evidence of age discrimination as a matter of law. According to the respondent, seniority systems are expressly permitted under CFEPA and the evidence cited in the reasonable cause finding is insufficient for a finding of age discrimination.

These arguments are also rejected. First, the complaints, the answers, and the motion to dismiss do not articulate how, if at all, the respondent’s seniority system impacts these complaints.

Second, relative to the investigation, the investigator is "entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences." Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 317 (1991).

Finally, the public hearing is "not an appeal of the commission’s processing of the complaint prior to its certification." General Statutes § 46a-84(b). Thus, the public hearing is not an opportunity to challenge the adequacy of the investigation resulting in a reasonable cause or a no reasonable cause finding. Commission on Human Rights and Opportunities ex rel. Lisa Charette v. State of Connecticut, Department of Social Services, CHRO Nos. 9810371 and 9810581 (April 26, 2001); Commission on Human Rights and Opportunities ex rel. Francis Okonkwo v. Bidwell Healthcare Center, CHRO No. 9940144 (Ruling on Motion to Dismiss)(February 5, 2001).

C. Jurisdiction of ADEA claim

The respondent next argues that the commission lacks jurisdiction to adjudicate ADEA allegations. According to the respondent, federal law allowing the Equal Employment Opportunity Commission to defer investigation of the complaint to the commission does not constitute an authorization for the commission to adjudicate ADEA allegations.

This argument is rejected. The respondent provides no citations to cases holding that the commission does not have jurisdiction to adjudicate ADEA claims. Indeed, the commission has routinely adjudicated ADEA claims. See e.g., Commission on Human Rights and Opportunities ex rel. John J. Saunders v. City of Norwalk Board of Education, CHRO No. 9820124 (September 29, 2000); Commission on Human Rights and Opportunities ex rel. Barbara G. DeRosa v. Dr. Fredric Rosen, CHRO No. 9830057 (Rulings on motions to dismiss)(August 17, 1999; July 22, 1999); Commission on Human Rights and Opportunities ex rel. Maria D. Ramos v. Futuramik Industries, Inc., CHRO No. 9210532 (November 10, 1997); Commission on Human Rights and Opportunities ex rel. Paul Martin v. Laflamme Services Inc., CHRO No. 9020083 (October 12, 1993).

D. Date certain for issuance of finding

The respondent next claims that the complaint must be dismissed because of the commission’s failure to issue its reasonable cause findings by the "date certain" set by the commission’s executive director pursuant to General Statutes § 46a-82e(c). By correspondence dated June 20, 2001, the respondent requested pursuant to General Statutes § 46a-82e that the executive director set a date certain for the issuance of the reasonable cause findings. In response to the request, the executive director instructed the investigator to issue findings of reasonable cause or no reasonable cause on or before August 31, 2001; however, the findings of reasonable cause were not issued until September 2001. Therefore, claims the respondent, the complaints must be dismissed.

This claim is also rejected. The respondent’s relief for the commission’s failure to issue its reasonable cause finding by the executive director’s designated date certain is not a dismissal of the complaint by the presiding human rights referee. Rather, the respondent’s relief is to petition the superior court for an order requiring the commission to issue a finding of reasonable cause or no reasonable cause by a date certain. General Statutes § 46a-82e(d). Once that court ordered date is obtained, the respondent can thereafter proceed in superior court for an appropriate remedy for noncompliance with the court order.

E. Preemption by the Labor Management Act

The respondent’s final argument is that the complaints are preempted by section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185(a).

This argument is also rejected. "Not all disputes involving a collective bargaining agreement or provisions thereof, however, are preempted by § 301." (Citations omitted.) Barbieri v. United Technologies Corporation, 255 Conn. 708, 724 (2001). Preemption occurs only if resolution of these cases is "substantially dependent upon an analysis of the terms of a labor contract or require[s] an interpretation of such an agreement for their resolution." (Citations omitted.) Barbieri, 255 Conn. 723. "Not every state-law suit asserting a right that relates in some way to a provision in a collective-bargaining agreement, or more generally to the parties to such an agreement, necessarily is pre-empted by § 301. The full scope of the pre-emptive effect of federal labor-contract law remains to be fleshed out on a case-by-case basis." (Internal quotation marks omitted; citations omitted.) Barbieri, 255 Conn. 724. If the complainants’ allegations are founded on rights independent of the collective bargaining agreement and resolution of these allegations will not require analysis of the agreement, the complaints are not preempted. Barbieri, 255 Conn. 732.

In its brief, pages 22-23, the respondent argues that "[i]n order to resolve the present action, it will be necessary to interpret the collective bargaining agreement to determine whether the seniority provisions confer any duty on the Company to consider laid-off employees for rehire in positions to which they do not have recall rights, even when they do not specifically apply for the positions." However, no party has cited as applicable to these complaints any specific provision of any identified collective bargaining agreement. The complainants’ allegations of age discrimination are founded on state law and their use of the term "seniority" in their complaints does not, without more, invoke a substantive analysis of a collective bargaining agreement. If as these complaints proceed it becomes apparent that their resolution is substantially dependent on an analysis of a collective bargaining agreement, the respondent can renew its argument of preemption.

V. Conclusion

For the reasons stated herein, the motion to dismiss is denied. Prehearing activities and the public hearing shall proceed as previously scheduled; that is, requests for production to be served by February 7, 2002; objections by February 21, 2002; compliance with requests not objected to by March 7, 2002; motions to compel by March 28, 2002; the filing of witness and exhibit lists and the exchange of exhibits by May 2, 2002; and objections to proposed exhibits by May 16, 2002. The prehearing conference remains scheduled for June 4, 2002 at 10:00 AM, and the public hearing for July 16 – 19, 2002 commencing at 9:30 AM.

__________________________

Hon. Jon P. FitzGerald

Presiding Human Rights Referee

c:

Mr. R. Bernd
Mr. J. Bielanski
Mr. R. Perry
Atty. J. Odell
Atty. H. Platt
Atty. D. Kent