9830057, DeRosa v. Rosen, Ruling on Respondent's Motion to Dismiss

CHRO No. 9830057

Commission on Human Rights and Opportunities, ex rel. :  Barbara G. DeRosa, Complainant
v.
Dr. Fredric Rosen, DDS, Respondent : July 22, 1999

RULING ON RESPONDENT’S MOTION TO DISMISS
and
Commission’s motion to amend complaint

This matter involves a dental hygienist’s claim that she was terminated by her former employer due to age and disability discrimination. The complaint alleges that the Respondent violated: (1) General Statutes § 46a-60(a)(1); and (2) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991 (hereinafter, "Title VII").

The Respondent, Dr. Fredric Rosen, DDS, filed a Motion to Dismiss arguing that Title VII does not encompass claims for age and disability discrimination, and the Respondent does not meet its definition of "employer," and that the complaint names the wrong defendant because the complainant was employed by a corporation, and not the Respondent as an individual. Furthermore, the Respondent states that General Statutes § 46a-60(a)(1) does not impose liability on individuals. Therefore, it is argued, the complaint should be dismissed.

The Connecticut Commission on Human Rights and Opportunities (hereinafter, the "Commission"), subsequently filed a Motion to Amend Complaint, requesting to make the following changes to the complaint: (1) substitute the cover sheet setting forth the applicable statutes for the complainant’s claims thereby changing the basis for her claims from Title VII to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (hereinafter, the "ADEA"), and to the Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq. (hereinafter, the "ADA"); (2) add the proper corporate Respondent; and (3) add a new claim pursuant to General Statutes §46a-60(a)(5) alleging the Respondent, as an individual, aided and abetted in the discrimination allegedly committed by the corporate Respondent. The issues presented are:

For the reasons hereinafter set forth, it is concluded that: 

Accordingly, the Motion to Dismiss is DENIED and the Motion to Amend Complaint is GRANTED in part and DENIED in part.

FACTS

The complaint alleges that the Complainant is a forty-one year old woman who began working for the Respondent on July 2, 1994 as a dental hygienist (¶¶ 4-5). The Complainant was subsequently forced to take several extended absences from work due to several surgeries and resulting periods of recovery therefrom after having been diagnosed with cancer (¶¶ 7-13). Prior to her return to full-time work, she was terminated by the Respondent (¶ 14), allegedly due to her age and physical disability (¶¶ 14-16). The complaint alleges that these actions constitute violations of Title VII and General Statutes § 46a-60(a)(1).

Standards

In reviewing a motion to dismiss, a tribunal must construe those facts alleged or implied in the complaint in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260 (1954). Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983).

As for motions to amend pleadings, General Statutes §46a-84(g) directs a presiding officer or hearing adjudicator to "permit reasonable amendment to any complaint or answer." See also Regulations of Connecticut State Agencies § 46a-54-90(e). Courts have broad discretion to allow amendments to the pleadings before, during, or even after trial in order to conform to the proof. Gionfriddo v. Carter-Howe Development Corp., 27 Conn.App. 706, 712-13, 609 A.2d 662 (1992). "Connecticut courts have generally been most liberal in allowing amendments." Dunnett v. Thornton, 73 Conn. 1, 46 A. 158 (1900). "An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action. . ." Kaye v. Manchester, 20 Conn.App. 439, 444, 568 A.2d 459 (1990). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Cook v. Lawlor, 139 Conn. 68, 72, 90 A.2d 164, 166 (1952).

Discussion

I.     Changing the Statutory Bases of the Complainant’s Claims of Discrimination

The Respondent argues that the complaint must be dismissed for two reasons:

(1) although the complainant alleges age and disability discrimination, the complaint cites Title VII which does not apply to the categories of age and disability; and 
(2) the Respondent does not meet the definition of "employer" under Title VII.

The Commission agrees, in its Memorandum of Law in Opposition to Respondent’s Motion to Dismiss, that the Complainant incorrectly brought her claims under Title VII. The Commission subsequently moves to amend the complaint to strike references to Title VII and to substitute the ADEA and the ADA.

There are two cases decided by the Fifth Circuit Court of Appeals which actually had similar circumstances involving the Equal Employment Opportunity Commission (hereinafter, "EEOC"). In Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5^th Cir. 1970), the complainant filed a Title VII charge of discrimination against her employer, and checked off a box marked "sex" as the category of discrimination alleged. She later filed an amended charge form and checked off an additional box for "national origin." Because the EEOC could not obtain a conciliation, the complainant filed a suit in the district court. The respondent filed a motion to dismiss because the "national origin" claim of discrimination, which was alleged in complainant’s amended complaint, had been filed after the ninety day period had expired and was therefore time-barred. The court held that the most important part of the complaint was the factual statement. Sanchez, supra, at 462.

This ruling was later confirmed by Galvan v. Bexar County, Texas, 785 F.2d 1298 (5^th Cir.1986) rehearing denied 790 F.2d 890 (5^th Cir.1986). There, the complainant had checked "other" on the intake form because there was no box for age discrimination. An intake worker who reviewed the form actually checked off "national origin" when that did not even apply. Later, in district court, the complainant amended his complaint to include age discrimination. The court permitted the amendment.

[A] claimant informed the EEOC of the nature of his charges against his employer, and the EEOC failed to properly complete the EEOC form, and the employer was fully apprised of the claims pending against it, and the parties had discussed these claims and had an opportunity to resolve the claims before litigation, the fact that the formal EEOC charge form did not correctly state the exact basis of the discrimination should not preclude a court from granting relief where appropriate. Galvan, supra at 1307.

The key to this decision was that the employer was apprised of the charge and had an opportunity to resolve it through conciliation with the EEOC. The court did not intend for the complainant to be penalized due to a mistake on the part of the EEOC. Id. at 1306-07.

In the instant matter, the complainant’s statement of facts clearly specifies allegations of age and disability discrimination, although Title VII was checked on the cover page. Therefore, the Respondent cannot claim surprise or need additional discovery because these claims had to have been discussed and investigated prior to the transfer of the file to the Office of Public Hearings. This amendment will not delay the trial or work an injustice to the Respondent and the undersigned finds it to be reasonable. Therefore, the Motion to Amend is granted in part as to the Commission’s request to substitute the ADA and the ADEA for Title VII. The Respondent’s Motion to Dismiss is consequently denied in connection with Title VII.

II.     Individual Liability pursuant to General Statutes §46a-60(a)(1)

The Respondent argues in its Motion to Dismiss that because Dr. Rosen is an individual, he cannot be liable under the allegations pursuant to General Statutes §46a-60(a)(1), and therefore that claim must be dismissed. The Commission, rather than objecting, moves to amend its complaint to add the correct entity as an additional Respondent. Although the Commission is granted leave to amend its complaint to cite in the correct corporate respondent infra, the Respondent’s Motion to Dismiss as to Dr. Rosen, individually, is denied.

The Respondent cites three superior court decisions which support his position that an individual employee cannot be liable under General Statutes §46a-60(a)(1). However, he does not cite that there is currently a split in superior court decisions regarding individual liability under the statute and that the court in Lueneburg v. Mystic Dental Group, 1996 WL 456967 (Conn.Super.1996)(Hurley, J.) ruled the exact opposite when faced with a similar motion to dismiss. Citing the facts that (1) the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-51 et seq., unlike Title VII and the ADEA, does not expose supervisory employees to greater liability based on the number of employees of the company, and (2) that the federal statutes were intended to exclude small employers, while the General Statutes were not; the court holds that supervisory employees may be held individually liable under CFEPA. Id.

Even more persuasive, however, is the consistency among the Connecticut district courts in holding that CFEPA, which includes General Statutes § 46a-60(a)(1), does apply to individual supervisory employees. See Swanson v. Envirotest System, Inc., 1998 WL 928415 (D.Conn.1998); Thompson v. Service Merchandise, 1998 WL 559735 (D.Conn.1998); Armstrong v. Chrysler Fin. Corp., 1998 WL 342045 (D.Conn.1998); and Valenti v. Carten Controls, Inc., 1997 WL 766854 (D.Conn.1997). Moreover, the district court in Murphy v. Burgess & Norwalk Economic Opportunity Now, Inc., 1997 WL 529610 (D.Conn.1997) ruled that in the absence of any controlling precedent on the issue, it would take it upon itself to decide how the Connecticut Supreme Court would have decided the issue. Murphy, supra. The Court held that CFEPA was intended to impose individual liability on supervisors "who hold positions of power, control, and authority, and who use that power, control, and authority to engage in the conduct giving rise to a discrimination claim" because of:

CFEPA’s definition of employer, which broadly encompasses persons and individuals, CFEPA’s remedial provisions and statutory scheme, as well as the Connecticut Supreme court’s [sic] directives concerning the meaningful differences between CFEPA and the federal anti-discrimination acts[.] Id.  

Therefore, based on the overwhelming uniformity among the Connecticut district courts in ruling that General Statutes § 46a-60(a)(1) does impose individual liability, the Respondent’s Motion to Dismiss is denied as to General Statutes §46a-60(a)(1).

III.     Amending the Complaint to Cite In the Proper Respondent

The Commission also moves to amend the complaint to add the proper Respondent, Progressive Dentistry of Connecticut PC (hereinafter, "Progressive Dentistry") due to discovering its mistake in the Respondent’s Special Defense included in its Amended Answer dated March 18, 1999.

The Respondent objects to the continued naming of Dr. Rosen, individually, as a respondent, in addition to the corporate respondent.

The general trend among the Connecticut courts is to permit parties to amend their pleadings to correct technical defects. See Four Beaches Condominium Association v. W.C. Brecia Plumbing & Heating, 1997 WL 678219 (Conn.Super.1997) (Zoarski, J.); and Maulucci v. St. Francis Hospital, 1996 WL 285535 (Conn.Super.1996)(Blue, J.) "[A] defendant designated by an incorrect name is referred to as a ‘misnomer.’ It is a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment." Andover Limited Partnership I v. Board of Tax Review of the Town of West Hartford, 232 Conn. 392, 398 (1995). "Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." Id. Misdescribing the type of entity of a party, such as naming the defendant as a corporation rather than as a d/b/a, has been determined to be circumstantial. See World Fire & Marine Insurance Co. v. Alliance Sandblasting Co., 105 Conn. 640 (1927).

In Andover, the Supreme Court overturned the lower court’s refusal to permit the plaintiff to amend her complaint naming the board of tax review instead of the town of West Hartford as the defendant. In doing so, it relied on the two-part test set forth in Pack v. Burns, 212 Conn. 381 (1989). First, it must be considered whether the error is simply a misnomer, or a complete change in party. Misnomers may be amended, changes in the identity of a party may not. Andover, at 397, citing Pack v. Burns, supra at 384-85. Second, to determine whether something is a misnomer, three factors are reviewed: (1) whether the correct defendant had notice of the action; (2) whether the correct defendant knew or should have known it was the correct defendant; and (3) whether the correct defendant was misled to its prejudice. Andover at 397, citing Pack v. Burns, at 385. Because the town clerk had been served in Andover, and had answered the complaint and otherwise acted as the defendant in negotiating the settlement and appearing in the case, the plaintiff was allowed to amend its complaint.

Applying the Pack v. Burns test to the instant matter, it is clear that the proper respondent has had actual notice of the institution of the action. In a letter dated May 4, 1999, Attorney Stephen J. Courtney enters his appearance "on behalf of the respondent Dr. Rosen, Progressive Dentistry of Connecticut PC." In fact, Dr. Rosen, himself, by letter dated March 25, 1999 informs the prior Human Rights Referee, Jon P. FitzGerald, that he is changing attorneys. That letterhead has the name, "Progressive Dentistry of Connecticut PC", and the footer reveals the names of only two doctors, one of which is Dr. Rosen. It is therefore clear to the undersigned that Progressive Dentistry had actual notice of the institution of this action.

The second factor is whether Progressive Dentistry knew or should have known it was the intended respondent in this action. For the reasons cited above, including the fact that it included a special defense naming the correct respondent, it is also clear that Progressive Dentistry knew or should have known it was the intended respondent.

The third factor is whether Progressive Dentistry was misled to its prejudice. Again, the answer is in the negative. As Dr. Rosen is one of only two doctors within the corporation, and used its letterhead to inform the Commission of its change of counsel, it is clear that it, through Dr. Rosen and his counsel, was aware of this action, participated in settlement discussions, and is represented by Attorney Courtney. The trial will not be delayed due to this disclosure. Therefore, adding Progressive Dentistry as a respondent is appropriate.

The issue arises whether it is appropriate to add Progressive Dentistry as a respondent, rather than substitute Progressive Dentistry for Dr. Rosen. However, the only basis given by the Respondent for the dismissal of claims against Dr. Rosen is that General Statutes §46a-60(a)(1) does not apply to individuals and that motion has been denied as discussed supra. In its objection to the Motion to Amend Complaint, the Respondent merely asserts that Dr. Rosen should not continue to be a respondent. Since no other justification is given, the complaint is amended to add Progressive Dentistry as a second respondent.

VI.     Adding a Claim Pursuant to General Statutes § 46a-60(a)(5)

The Commission moves to further amend the complaint to add a claim pursuant to General Statutes § 46a-60(a)(5) against Dr. Rosen. The Respondent objects for the following reasons: 

General Statutes §46a-60(a)(5) provides that it is a discriminatory practice:

It is here determined that this is not a reasonable amendment pursuant to General Statutes § 46a-84(g) and §46a-54-90(e). First, the Commission is not relying on the same set of facts, but must instead add new language to the statement of facts to pursue this claim. Second, trial has already been scheduled for this matter, and the discovery deadlines have passed. It would be prejudicial to the Respondent to have a new claim directed against him at this late date, with trial only two months away. Finally, the Respondents have not had the opportunity to have this claim investigated in the underlying fact-finding investigation, or even conciliated. Settlement efforts have come and gone and this claim was not considered or discussed. Based on these reasons, the Commission’s Motion to Amend Paragraph 16 of the complaint is denied as to that part seeking to pursue claims against Dr. Rosen individually pursuant to General Statutes §46a-60(a)(5).

Conclusion

For the foregoing reasons, Respondent’s Motion to Dismiss is denied. The Commission’s Motion to Amend Complaint is granted in part and denied in part. It is granted as to: (1) changing the federal statute from Title VII to the ADEA and the ADA; and (2) adding Progressive Dentistry of Connecticut PC as a respondent. It is denied as to adding a claim pursuant to § 46a-60(a)(5).

It is so ordered this 22nd day of July, 1999, at Hartford, Connecticut.

______________________________

Hon. Lisa B. Giliberto, Presiding Human Rights Referee