Cordone v. Bridgeport Board of Eduction - Ruling on Motion to Dismiss

CHRO No. 0420409

EEOC No. 16AA301108

Commission on Human Rights : And Opportunities, ex rel.
Angelo Cordone, Complainant

v.

Bridgeport Board of Education, Respondent

July 21, 2004

RULING ON MOTION TO DISMISS

This complaint involves claims of age discrimination in violation of §46a-60(a)(1) of the Connecticut General Statutes and the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. §§621 et seq. In particular, the complainant alleges two specific acts of discrimination: (1) the respondent transferred him involuntarily from his assignment as a mathematics resource teacher to an assignment as a classroom teacher; and (2) the respondent failed to transfer or promote him to a newly-created position of "numeracy coach."

On or about July 7, 2004, the respondent filed a motion to dismiss, claiming that the complainant's allegations were time-barred and, furthermore, that the respondent's actions did not constitute "adverse employment actions." The commission filed a timely objection to the motion; the complainant himself did not file a response.

A motion to dismiss is an appropriate means to challenge a tribunal's jurisdiction to hear an action. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996); Upson v. State, 190 Conn. 622 (1983). A motion to dismiss admits all facts well-pleaded and invokes any record that accompanies the motion, including supporting affidavits containing uncontested facts. Malasky v. Metal Products Corp., 44 Conn. App. 446, 451-52 (1997), cert. denied, 241 Conn. 906 (1997). In evaluating the motion, the complainant's allegations and evidence are accepted as true and interpreted in a light most favorable to the complainant. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608 (1998).

The respondent claims that the first alleged discriminatory act, an involuntary transfer on June 28, 2002, occurred more than 180 days before the filing of this complaint on April 2, 2003, and accordingly should be dismissed. The commission does not contest these dates. The Connecticut Supreme Court has addressed the application of the 180-day filing period of §46a-82(e) of the General Statutes, and has held that it is not jurisdictional in nature but is comparable to a statute of limitations. Williams v. Commission on Human Rights and Opportunities, 257 Conn. 258, 277-78, (2001). As such, while the 180-day requirement is mandatory, it can also be excused by a showing of "waiver, consent or some other compelling equitable tolling." Id. at 284.

Determining whether an April 2, 2003 complaint predicated on the June 28, 2002 incident should be dismissed as untimely--or allowed for equitable reasons--would therefore require review of the extant evidentiary record. In its objection to the motion, the commission simply states, without any record references, that it does not waive its right to argue that the first incident is timely. The commission includes with its objection no affidavit, other document, or legal or factual argument that might demonstrate--or, for that matter, even remotely suggest--any justification for overriding the mandatory 180-day filing period. Nor does the commission indicate why such supporting documents were not included. In light of the commission's responses, I have no reason to believe that the complainant would be able to demonstrate an equitable challenge to the 180-day filing period. Accordingly, the portion of the complaint stemming from the June 28, 2002 incident is untimely and must be dismissed.

The respondent's denial of the numeracy coach position occurred on or after November 25, 2002, and thus would not be time barred. However, the respondent also moves to dismiss this allegation for a second reason: denial of the position does not constitute an adverse employment action. The law is not as cut and dried as the respondent suggests. Denial of a desired position, whether a promotion or a transfer, may, depending on the circumstances, be an adverse employment action. See, e.g., Pimentel v. City of New York, 2003 U.S. App. LEXIS 18863 *3-4 (2nd Cir. 2003). Because the requisite determination depends on the circumstances of each case, I cannot address the respondent's claim absent a factual record far more detailed than the scant material presently before me. The motion to dismiss this claim should be denied and the matter allowed to proceed to full adjudication.

In light of the foregoing, the motion to dismiss is granted as to the June 28, 2002 transfer, but denied as to the respondent's failure to place the complainant in the numeracy coach position.

________________________________
David S. Knishkowy
Human Rights Referee

c: A. Cordone
L. Grasso-Egan
C.J. Parker