Negron v DSMA Enterprises 0110448 Ruling Re Motion to Dismiss

Negron v. DSMA Enterprises - 0110448, Ruling Re: Motion to Dismiss

CHRO No. 0110448

Fed No. 16aa11280

Commission on Human Rights and Opportunities ex rel. :
Lishka Negron

DSMA Enterprises d/b/a The Whole Donut

April 11, 2003

Ruling re: Motion to Dismiss

By motion dated March 25, 2003 and filed March 27, 2003, the respondent moved to dismiss the complaint because of the complainant's failure to attend the duly noticed hearing conference on March 7, 2003. The complainant did not request to be excused from attending the conference nor did she request a continuance. Pursuant to Section 46a-54-87a(b) of the Regulations of Connecticut State Agencies ("the Regulations"), the parties were given fourteen days from the date of the filing of the motion to file a response. The commission filed its response on April 4, 2003. The complainant did not file a response.
For the reasons stated herein, the respondent's motion is granted and the complaint is dismissed. The public hearing and prehearing activity dates previously scheduled are cancelled.

    In its objection to the motion to dismiss, the commission raises two arguments. First, the commission postulates that the human rights referees have no authority to dismiss a complaint because of the complainant's failure to appear at a hearing conference. Second, the commission claims "that the administration of the case was not impeded by Complainant's absence at the hearing conference since the Commission was present and an order was issued governing processing of the case." The commission is in error in both of its arguments.
    The commission first errs because the human rights referees obviously possess the authority to dismiss a complaint for the failure of a complainant to attend a hearing conference. Section 46a-54-88a(d) of the Regulations provides in relevant part that "[t]he presiding officer may, on his or her own or upon motion by a party, dismiss a complaint or a portion thereof if the complainant or the commission: … (3) Fails to appear at a lawfully noticed conference or hearing without good cause …." According to Section 46a-54-78a(b) of the Regulations, "[c]onferences and hearings held pursuant to Article III include, but are not limited to, the following: (1) Hearing conferences …" Thus, human rights referees possess the explicit authority to dismiss a complaint if the complainant fails to attend a hearing conference without good cause. In the present case, the complainant failed to attend a lawfully noticed hearing conference and neither the complainant nor the commission has proffered good cause as to the complainant's absence. Indeed, neither the commission nor the complainant offers any reason for the complainant's absence.
    In addition to the regulations, case law also supports the authority of the human rights referees to dismiss cases. See, for example, CHRO ex rel. Sheila Allen v. Pollack's, CHRO No. 9710692; Lugenia Blake v. Beverly Enterprises - Connecticut, CHRO No. 9530630; Bradley Brown, Sr. v. Creative Management & Realty Co., CHRO No. 9850062; Edward D'Angelo v. University of Bridgeport, CHRO No. 9520185; Claire T. Doyle v. State of Connecticut, CHRO No. 9730257; Robert Henry v. Edwards Super Food Stores, CHRO No. 9510617; Patricia Nicolosi v. Johnny's Pizza, CHRO No. 9840466; Francis Okonkwo v. Bidwell Healthcare Center, CHRO No. 9940144; and Ira Ratner v. Home & Life Security, Inc., CHRO No. 9930246.
    The commission further errs because the administration of the case was, indeed, impeded by the failure of the complainant to attend the hearing conference, assuming that such an argument would even constitute a cognizable, acceptable defense for failure to appear. As noted in the Hearing Conference Summary and Order, "[n]o settlement conference is being scheduled at this time. Because of the absence of the complainant, her schedule could not be determined so a mutually convenient settlement date could not be set." Thus, the complainant's failure to attend the hearing conference prevented the scheduling of a settlement conference. Also at the hearing conference, dates agreed upon by the commission and the respondent were established for case flow activities including production, the prehearing conference and the public hearing. Again because of the complainant's absence, her ability to comply with the production dates and her availability to attend the prehearing conference and the public hearing remain in doubt.
    In addition, counsel for the commission is an inadequate substitute for the presence of the complainant. Counsel for the commission represents only the commission and not the complainant, who is a separate and independent party with rights and responsibilities separate and independent from those of the commission. General Statutes § 46a-84(d); Regs., Conn. State Agencies § 46a-54-81a(a).
    Further, the complainant's pro se status does not confer a license to create her own rules. "Where a defendant acts as his own counsel, as he has every right to do, his rights are subject to and will receive the same consideration as if he had been represented by an attorney. … Such a litigant is bound by the same rules of evidence and procedure as those qualified to practice law. Although we allow pro se litigants some latitude, the right to self-representation provides no attendant license not to comply with relevant rules of procedure and substantive law." (Internal quotation marks omitted; internal citations omitted.) Town of Groton v. Lewis, 58 Conn. App. 359, 362 (2000), cert. denied, 255 Conn. 912 (2000); Commission on Human Rights and Opportunities ex rel. Deborah and Raymond Aguiar, Jr. v. Nancy and Ralph Frenzilli, CHRO No. 9850105, p. 20 (April 22, 2002, Ruling re: Setting Aside Default After Judgment). Attendance is a relevant and vital rule of procedural and substantive law. The complainant and the commission proffer no good cause, nor any excuse at all, for the complainant's absence from the hearing conference.

The complaint is dismissed.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

c:
Ms. L. Negron
Mr. M. Shah
Atty. D. Metzger
Atty. C. Parker
Post Reporting Service