Carla Bray-Faulks v. The Hartford Financial Services Group -- Ruling re: Motion to Dismiss

CHRO No. 0210354

Fed. No. 16aa200797

Commission on Human Rights and Opportunities ex rel :
Carla Bray-Faulks

v.

The Hartford Financial Services Group, Inc.

May 25, 2004

Ruling re: motion to dismiss

I. Summary

On April 19, 2004, The Hartford Financial Services Group, Inc. ("respondent") filed a motion to dismiss the complaint filed by Carla Bray-Faulks ("complainant") with the Commission on Human Rights and Opportunities ("commission"). The respondent argues that the commission lacks subject matter jurisdiction over the entirety of the complainant or, in the alternative, portions of the complaint.

For the reasons set forth herein, the motion is denied. However, the complaint is remanded to the investigator to attempt to eliminate the alleged discriminatory conduct by conference, conciliation and persuasion as required by General Statutes § 46a-83(f).

II. Procedural History

The complainant filed her complaint with the commission on March 4, 2002. She alleged that the respondent violated General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4) and Title VII of the federal Civil Rights Act of 1964 by discriminating against her on the basis of her race, color and/or her previous opposition to the respondent's discriminatory conduct. She filed an amendment to the complaint dated February 5, 2003 restating the original complaint's second paragraph. She filed another amendment dated September 19, 2003 in which she added a claim of discrimination on the basis of physical disability. In the certification of the complaint dated October 22, 2003, the commission's investigator "determined that there was reasonable cause for believing that an unfair practice was committed as alleged in this complaint." The investigator also reported in the certification that "[t]he Commission has endeavored to eliminate the unfair practice(s) complained of by conciliation and persuasion but as of today, October 16, 2003, such efforts have been unsuccessful."

III. Discussion
A. Standard of review for motion to dismiss

In reviewing a motion to dismiss, a tribunal must construe the facts alleged or implied in the complaint most favorable to the complainant. Pamela B. v. Ment, 244 Conn. 296, 308 (1998). "Furthermore, it is an established rule of statutory construction to interpret statutes in favor of maintaining subject matter jurisdiction." Taylor v. Commissioner of Revenue Services, 48 Conn. Sup. 410, 419 (2004) citing Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn. App. 757, 765, 811 A.2d 717 (2002) and Rayhall v. Akim Co., 263 Conn. 328, 339, 819 A.2d 803 (2003).

B. Whether to dismiss the complainant in its entirety

The respondent raises two arguments in its motion to dismiss. The respondent first argues that the complaint should be dismissed in its entirety due to lack of subject matter jurisdiction because the investigator did not comply with § 46a-83(f). Section 46a-83(f) provides that "[u]pon a determination that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion within fifty days of a finding of reasonable cause. The refusal to accept a settlement shall not be grounds for dismissal of any complaint."

According to the respondent, § 46a-83(f) requires an investigator to attempt to eliminate the alleged discriminatory practice by conference, conciliation and persuasion subsequent to a finding of reasonable cause and prior to the certification of the complaint. Through an affidavit signed by the respondent's human resources manager, the respondent represents that the investigator in this case, contrary to her statement in the certification, did not contact any of the respondent's employees to discuss conciliation. In its motion, the respondent claims that this "failure of the investigator to comply with the statutory requirements contained in Conn. Gen. Stat. § 46a-83(f) prior to certifying this matter for public hearing deprives the Commission of subject matter jurisdiction over the complaint." (p.8)

I conclude that, with respect to the attempt at "conference, conciliation and persuasion, the use of the word "shall" and the repetitive language of "conference, conciliation and persuasion" in § 46a-83(f) mandate that the investigator attempt to resolve a complaint subsequent to the finding of reasonable cause and prior to its certification. Based on the respondent's affidavit, I also conclude that the investigator in this case did not make the required attempt at conciliation.

However, a review of the applicable statutes also establishes that the failure of an investigator to attempt "conference, conciliation and persuasion" does not result in the commission's loss of subject matter jurisdiction over the complaint. The relevant statutes are General Statutes §§ 46a-82e(a), 46a-84(a) and 46a-84(b). Section 46a-82e(a) provides that "[n]otwithstanding the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of sections 46a-83 and 46a-84 with respect to a complaint before the commission, the jurisdiction of the commission over such complaint shall be retained."

Section 46a-84(a) provides that "[i]f the investigator fails to eliminate a discriminatory practice complained of pursuant to section 46a-82 within fifty days of a finding of reasonable cause, he shall, within ten days, certify the complaint and the results of the investigation to the executive director of the commission and to the Attorney General." Section 46a-84(b) then provides in relevant part that "[u]pon certification of the complaint, the executive director of the commission or his designee shall appoint a hearing officer, hearing adjudicator or human rights referee to act as a presiding officer to hear the complaint …." (Pursuant to General Statutes § 46a-57(c), the chief human rights referee may also appoint the presiding human rights referee.)

A fair reading of these statutes results in two conclusions. First, although "conference, conciliation and persuasion" must occur, the commission does not lose subject matter jurisdiction if conciliation does not occur within fifty days of the finding of reasonable cause (§ 46a-82e(a)). Second, "conference, conciliation and persuasion" is not a subject matter jurisdiction requirement but rather is a condition precedent to the certification of the complaint, the appointment of a presiding referee and a hearing on the complaint. Thus, the failure of the investigator to attempt "conference, conciliation and persuasion" within fifty days from the finding of reasonable cause does not result in the loss of jurisdiction by the commission and the dismissal of the complaint. Instead, the complaint is simply not ripe for certification by the investigator and a hearing by a presiding referee. Therefore, the case is remanded to the investigator to "attempt to eliminate the practice complained of by conference, conciliation and persuasion". If conciliation is unsuccessful, the investigator may certify the complaint for a public hearing.

A remand is appropriate not only as a matter of law but also as a matter of equity. Under § 46a-83(f), only the commission's investigator can attempt conciliation. To dismiss the complaint because the commission did not attempt conciliation would be to punish an innocent complainant who has no control over whether the commission through its investigator attempts conciliation.

C. Whether to dismiss portions of the complaint

The respondent's second argument is that, even if the entire complaint is not dismissed, portions of the complaint should, nevertheless, be dismissed. According to the respondent, the commission lacks subject matter jurisdiction over the claims of disability discrimination raised in the second amendment to the complaint because such claims are untimely and unrelated to the claims of race discrimination and retaliation raised in the original complaint. The respondent also argues that the claims of race discrimination in the original complaint relative to the alleged denial of a position upgrade in July 1999 and of a promotion in August 1999 are also untimely as the complaint was filed in March 2002.

Because the complaint is being remanded to the investigator, the respondent's arguments to dismiss portions of the complaint need not be addressed at this time.

C:
Ms. Carla Bray-Faulks
Ms. Lisa Anderson
Miquel A. Escalera, Jr., Esq.
Alix Simonetti, Esq.