Ceslik Ruling on Complainant's Motion to Strike

Ceslik Ruling on Complainant's Motion to Strike

CHRO Nos. 0030569,  0030586, 0030587
Commission on Human Rights and Opportunities, ex rel.
Stephen Ceslik, Complainant

Napoli Motors, et al., Respondents

March 21, 2002


On February 7, 2002, the complainant filed a motion to strike the respondent’s third and fourth special defenses to the complainant’s amended complaint. The special defenses state as follows:

3. The amended complaint includes claims that the CHRO Commission Counsel has previously found not to be supported by the facts.

4. The prior CHRO investigation found no reasonable cause exists as to some of the claims in the amended complaint.

The complainant did not file a memorandum of law in support of his motion. The respondents and the commission did not file any responses to the motion.

 The objective of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted, or the legal sufficiency of a defense to that claim. Rytman v. Colchester Foods, Inc. 2001 WL 1330416 *1 (Conn. Super.), citing, inter alia, Doe v. Yale University, 252 Conn. 641, 667 (2000); see also Practice Book, §10-39. “The same principles and standard are applicable to motions to strike special defenses as to motions to strike claims.” Rytman v. Colchester Foods, supra *2, citing Connecticut Bank v. Douglas, 221 Conn. 530, 536 (1992).

The purpose of a special defense is to plead facts that, while consistent with the allegations in the complaint, demonstrate, nonetheless, that the complaint is legally deficient. Danbury v. Dana Investment Corp., 249 Conn. 1, 17 (1999). In evaluating the complainant’s motion to strike, I must construe the respondents’ special defenses in a manner most favorable to sustaining their legal sufficiency. Connecticut Bank v. Douglas, supra, 221 Conn. 536; Ratner v. Laviano, 2001 WL 438959 *1 (Conn. Super.)

The amended complaint sets forth claims for, among other things, disability discrimination, age discrimination, discrimination based on perceived sexual orientation, sexual harassment and retaliatory discharge. From the vaguely-worded third special defense, I can discern only that the respondents believe certain of these claims must fail because the commission counsel previously deemed them unsupported by the facts. The respondents do not specify which portions of the amended complaint are objectionable; nor do they identify the commission counsel or the nature of any prior determinations. Had the respondents filed a written response to the motion to strike, their defenses might have been more comprehensible.

 The third special defense is further confusing because the investigation and fact-finding prior to certification are conducted not by the commission counsel representing the commission’s interests at public hearing, but by a commission investigator. However, because the investigator is, by title, an “assistant commission counsel,” I will assume, in the respondents’ favor, that they are referring to the investigator and her findings and conclusions made prior to certification.

In that case, special defenses three and four must be read together as implying that at least some portions of the complaint are not validly before me because they are predicated upon alleged facts not accepted by the investigator and contain some claims for which no reasonable cause was found.

 When a commission investigator makes a finding of reasonable cause and thereafter unsuccessfully attempts to conciliate the matter, she then issues a certification in accordance with General Statutes §46a-84(a), allowing the matter to proceed to hearing before the commission’s Office of Public Hearings.[1] The investigator, in fact, certified this matter for hearing on December 18, 2001.

Section 46a-84 of the General Statutes and the corresponding regulation, §46a-54-77, both refer to certification of “the complaint,” not certain counts or allegations contained therein. The respondents have identified no legal basis for the investigator to deviate from the legal requirements and certify the case as to some, but not all, of the amended complaint. Even if the investigator had such authority, she clearly chose not to exercise it. There is only one certification and, thus, only one finding of reasonable cause that does not distinguish among the various counts in the amended complaint.

Section 46a-54-26 of the regulations defines the term “complaint” simply as “a writing containing facts sufficient to allege a discriminatory practice . . .” No other definition exists for purposes of the Connecticut Fair Employment Practices Act, and nowhere do the statutes or regulations authorize certification or adjudication of only portions of the complaint. See Commission on Human Rights and Opportunities ex rel. Claude Lee Perry v. City of Ansonia, CHRO No. 9730481, p. 4 (Ruling on Motion to Dismiss, December 20, 1999); Commission on Human Rights and Opportunities ex rel. Lange v. Kelly Temporary Services, CHRO No. 99210246, p. 7 (March 18, 1998). Instead, as stated in the Perry case,

[T]he statutes and regulations consistently and repeatedly refer to the complaint. For example, General Statutes §46a-83 requires a preliminary investigation of the complaint. If the investigator finds reasonable cause to believe a discriminatory practice has occurred, the investigator certifies the complaint for a formal adjudicatory hearing pursuant to General Statutes §46a-84(a) and §46a-54-77 of the regulations.

(Emphasis in original.) Commission ex rel. Perry v. City of Ansonia, supra, 4. When the words of a statute are plain and unambiguous, one can assume they express the legislature’s intent. State v. White, 204 Conn. 410, 421-22 (1987). The repeated use of the term “the complaint” demonstrates that the legislature intended the entire complaint to be certified and adjudicated as long as there is any finding of reasonable cause. Thus, even if the investigator found reasonable cause on some, but not all, of the counts, she correctly certified the entire complaint for hearing. Commission ex rel. Perry, supra, 4.

After the entire complaint was certified, it was referred to the Office of Public Hearings for a de novo proceeding on the merits. General Statutes §46a-84(b). “The parties must now raise issues and present facts anew to the human rights referee; this proceeding is not an appeal of what occurred prior to certification and the parties may not predicate their case upon the investigator’s report.” Commission ex rel. Perry v. City of Ansonia, supra, 4; accord Commission on Human Rights and Opportunities ex rel. Massa v. Electric Boat Corporation, CHRO No. 9840265, pp. 2-4 (Ruling on Motion in Limine, March 6, 2000); Commission on Human Rights and Opportunities ex rel. Little v. Clark, CHRO No. 9810387, p. 2 (Ruling on Motion to Dismiss, September 1, 1999); Commission on Human Rights and Opportunities ex rel. Gomez v. Connecticut General Life Insurance Co., CHRO No. 9710105, pp. 2-3 (Ruling on Motion to Dismiss, September 30, 1998); Commission ex rel. Lange v. Kelly Temporary Services, supra, 4; but see Commission on Human Rights and Opportunities ex rel. Okonkwo v. Bidwell Healthcare Center, CHRO No. 9940144 (Ruling on Motion to Dismiss, February 5, 2001) (dismissing portion of complaint for which investigator did not find reasonable cause).

Accordingly, the complainant’s motion to strike the respondents’ third and fourth special defenses is hereby GRANTED.  
David S. Knishkowy
Human Rights Referee

c: S. Ceslik
B. Fournier
M. Nurse-Goodison
R. Pech

1 In the actual certification, the investigator stated that she “determined that there was reasonable cause for believing that an unfair practice was committed as alleged in this complaint.”