Baker v. Lowe's Home Centers - Ruling re: commission's motion for leave to amend

Baker v. Lowe's Home Centers - Ruling re: commission's motion for leave to amend

CHRO No. 0430307

Fed No. 16aa400535

Commission on Human Rights and Opportunities ex rel. :
Michael Baker, Complainant


Lowe's Home Centers, Inc., Respondent

November 18, 2005

Ruling re: commission's motion for leave to amend


The complainant filed his affidavit of illegal discriminatory practice ("complaint") with the commission on December 10, 2003. In his complaint, he alleged that the respondent, his former employer, violated the Age Discrimination in Employment Act and General Statutes §§ 46a-58(a) and 46a-60(a)(1) when it terminated his employment on June 16, 2003 because of his age, 64 years old at the time of the filing of the complaint. On July 27, 2005, the commission certified the complaint to public hearing and, on August 19, 2005, the respondent filed its post-certification answer denying the claims of discrimination.

By motion ("motion") dated and filed October 18, 2005, the commission moved to amend the complaint by adding two paragraphs1. In its motion, the commission seeks to add (1) a new cause of action, that the respondent retaliated against the complainant "for expressing [his] concerns about discriminatory treatment to management, in violation of CONN. GEN. STAT. 46a-60(a)(4)," and (2) a new protected basis, that the complainant's national origin, England, was also a factor in the respondent's decision to terminate the complainant. The respondent filed its objection on November 1, 2005. On November 8, 2005, the commission filed its reply to the objection ("reply"). For the reasons set forth herein, the commission's motion is denied.


General Statutes § 46a-84(g) provides in part that: "The presiding officer or hearing adjudicator conducting any hearing shall permit reasonable amendment to any complaint …." Likewise, its regulatory corollary, section 46a-54-79a(e) of the Regulations of Connecticut State Agencies ("Regulations") provides in relevant part: "Any complaint filed pursuant to section 46a-82 of the Connecticut General Statutes may, upon motion by the complainant or the commission, be amended after the appointment of a presiding officer. Complaint amendments may include, but are not limited to, matters arising out of the investigation or evidence adduced at hearing. The presiding officer shall permit reasonable amendment of any complaint …." The commission's proposed amendment is not reasonable for several reasons.

First, the commission's proposed amendment does not satisfy the minimal requirements of its own regulations. Section 46a-54-35a of the Regulations provides in part that: "(a) A complaint shall be in writing, under oath, and shall contain the following: … (3) A plain and concise statement of the facts, including any pertinent dates, constituting the alleged discriminatory practices …." The proposed amendment contains no such information. It simply recites the complainant's conclusory beliefs that he was retaliated against and that his national origin factored into the respondent's actions. No facts at all are offered as to what his "concerns about discriminatory treatment" were, to whom in the respondent's management he expressed such concerns, or the pertinent date(s) when such concerns were expressed that would support an allegation of retaliation. Similarly, the complainant provided no factual allegations supporting his belief that his national origin played a role in his termination.

More importantly, the proposed amendment is not reasonable because it ignores statutorily mandated processing requirements. Citing court decisions in routine civil cases, the commission argues that the proposed amendment should be allowed unless it causes unreasonable delay, misleads a party or results from negligence. (Motion, p. 2). However, unlike such civil actions, discrimination cases heard by this administrative tribunal have statutory prerequisites that must be met as conditions precedent for the commission to conduct a public hearing over the allegations. These requirements include an initial review of the allegations to determine whether there is a reasonable possibility that investigating them will result in a finding of reasonable cause; processing the allegations through mandatory mediation, fact-finding, or complete investigations; a determination of whether reasonable cause exists to believe the alleged discriminatory practices were committed; the investigator's list of factual findings upon which the reasonable cause determination was based; and, when reasonable cause is found, the investigator's attempt to eliminate the practice complained of through conciliation. Essential to a hearing on the merits of a discrimination claim is the investigator's prior finding of reasonable cause and recitation of factual findings supporting the allegations. See General Statutes §§ 46a-83, 46a-84(a) and 46a-84(b); Adriani v Commission on Human Rights & Opportunities, 220 Conn. 307 (1991); Waterbury v. Commission on Human Rights and Opportunities, 160 Conn. 226 (1971); Menillo v Commission on Human Rights and Opportunities, 1996 Conn. Super. LEXIS 2638, aff'd, 47 Conn. App. 325 (1997); Commission on Human Rights and Opportunities ex rel. Lisa Charette v. State of Connecticut, Department of Social Services, CHRO No. 9810371 & 9810581, Final decision, p. 3 (April 26, 2001) and Commission on Human Rights and Opportunities ex rel. Francis Okonkwo v. Bidwell Healthcare Center, CHRO No. 9940144, Ruling re: The Respondent's Motion to Dismiss, pp. 3-6 (February 5, 2001). The commission proposes to use the amendment process to evade this critical evaluative procedure.

In its reply, the commission notes that § 46a-84(b) provides in part: "The hearing shall be a de novo hearing on the merits of the complaint and not an appeal of the commission's processing of the complaint prior to its certification." However, § 46a-84 presumes compliance with § 46a-83. This opportunity for a hearing on the merits is not a license for the commission to avoid the statutory investigative process of § 46a-83. Commission on Human Rights and Opportunities ex rel. Carla Bray-Faulks v. The Hartford Financial Services Group, Inc., CHRO No. 0210354, Ruling re: motion to dismiss (May 25, 2005)(certified complaint remanded to investigator; conciliation of a complaint is a condition precedent to a complaint's certification and hearing). With respect to amendments with substantive new allegations, a hearing is not a substitute for the prerequisite process and factual findings supporting the allegations.

Factual findings supporting the allegations and the finding of reasonable cause are essential and indispensable jurisdictional conditions precedent to a public hearing. "When the commission attorney proffered the report [the investigator's reasonable cause finding], he and counsel for the complainants stated that it was offered solely for the purpose of establishing that the statutory prerequisites to the hearing had been met, one of those being that the commission had determined the existence of reasonable cause. See 46-84(a) and (b)." (Emphasis added.) Menillo v. Commission on Human Rights and Opportunities, supra, 1996 Conn. Super. LEXIS 2638, 6.

The Connecticut Supreme Court has said "[i]t is quite apparent that a purpose of the statute [requiring a preliminary investigation] is to guard against subjecting a respondent to a hearing upon every complaint which might be made to the commission, however unfounded. To guard against such an eventuality, the statute requires the commission, once a complaint has been filed, to investigate it, and it is only after such preliminary investigation has established that there is reasonable cause for action and after arbitration methods have failed that a hearing is authorized." Waterbury v. Commission on Human Rights and Opportunities, 160 Conn. 226, 235 (1971). The Supreme Court again warned against "rendering the reasonable cause determination a nullity" by allowing unfounded allegations to result in a hearing. Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 318 (1991).

Finally, this ruling is consistent with the federal courts' requirement that the Equal Employment Opportunity Commission make an express finding of reasonable cause for each employment practice which it concludes to be violative of Title VII. Equal Employment Opportunity Commission v. Sherwood Medical Industries, 452 F. Sup. 678, 681-83 (M.D. Fla. 1978). As a general rule, Connecticut courts and the commission officers review federal employment discrimination law to interpret Connecticut's antidiscrimination statutes. Brittell v. Department of Correction, 247 Conn. 148, 164 (1998); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996). Although Connecticut courts have also found that federal interpretations of Title VII are not binding on the interpretation of Connecticut's antidiscrimination statutes; State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn 464, 470 (1989); no special circumstances have been proposed supporting a deviation from the federal practice requiring express factual findings and reasonable cause for each discriminatory employment practice alleged.

Also, it is worth noting what this amendment does not purport to do. It is not correcting a minor defect or clerical error in the original complaint, or correcting the description or misnomer of a party. It is not adding a parent corporation, successor corporation or an otherwise indispensable party. The amendment is not alleging acts of retaliation arising subsequent to and as a result of the filing of the original complaint. The amendment does not purport to conform the complaint to evidence either presented during the commission's precertification investigation of the complaint or arising from the reasonable investigation of the complaint2. Instead, the commission's proposed substantive amendment inappropriately short-circuits the unique and vital role that the legislature and courts have assigned to the commission's precertification investigation and to the investigator's requisite finding with supporting facts that there exists reasonable cause to believe that the discriminatory acts alleged in the complaint may have occurred.


In summary, the statutory requirement of § 46a-83 that the commission's investigator list the factual findings on whether there is reasonable cause to believe that the discriminatory practice(s) alleged in the complaint are or have been committed is a condition precedent to a hearing on those allegations under § 46a-84. In this case, no factual findings were made that reasonable cause exists to support the complainant's beliefs as alleged in the proposed amendment (retaliation and national origin discrimination). Therefore, the commission's motion is denied and the hearing will proceed on the complainant's allegation that he was terminated because of his age.

It is also worth noting that even at this stage of the process the commission is not precluded from investigating the allegations of retaliation and national origin discrimination. If the commission believes that the investigator made a material mistake of law or fact in not fully investigating the complaint, the commission "may withdraw the certification and remand the file to the investigator for further action." § 46a-84(d).

Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Michael Baker
Jesse A. Langer, Esq.
David M. Jaffe, Esq./David C. Casey, Esq.
Michael S. Agress, Esq.


The proposed two paragraphs are: "11. I further believe that my termination was in retaliation for expressing my concerns about discriminatory treatment to management, in violation of CONN. GEN. STAT. 46a-60(a)(4); 12. I further believe that my termination was related to my national origin, England."

Indeed, in its objection the respondent represents that retaliation and national origin discrimination were not raised during the precertification investigation. In its memorandum in opposition to the amendment, the respondent asserts: "On May 14, 2005, the Commission conducted a tape-recorded fact-finding conference on Baker's single claim of age discrimination. During the conference, the CHRO received testimony from Baker. At no time during the investigation or during the fact-finding conference did the Commission or Baker allege that Baker was terminated in retaliation for complaining to Lowe's about discrimination or because of his British national origin." (Emphasis in original.) (p.2). Also according to the respondent: "Nowhere in the draft or final Finding of Reasonable Cause did the CHRO allege that Lowe's discriminated against Baker because of his English national origin or that Lowe's retaliated against him for reporting or complaining about alleged discrimination." (Emphasis in original.) (p. 3). In its reply, the commission did not claim that evidence of retaliation and national origin discrimination had been introduced during the precertification investigation.