Nicolosi v Johnny's Pizza 9840466 order of dismissal

Commission on Human Rights and Opportunities, ex rel. : CHRO No. 9840466 Patricia Nicolosi, Complainant
v.
Johnny’s Pizza, Respondent : October 26, 1999

ORDER OF DISMISSAL DUE TO
COMPLAINANT’S FAILURE TO COOPERATE

This matter involves a former waitress/pizza-maker’s claims of sexual harassment against her former employer, a restaurant. The Complainant, Patricia Nicolosi, filed an Affidavit of Illegal Discriminatory Practice (the "Complaint") on or about May 8, 1998 with the Connecticut Commission on Human Rights & Opportunities (the "Commission"). The Complaint was certified to public hearing on January 12, 1999. The Honorable Lara L. Manzione was appointed presiding Human Rights Referee and a Hearing Conference was conducted on February 18, 1999. Subsequently a status conference was scheduled for May 12, 1999. The matter was reassigned to the undersigned on May 11, 1999 and I presided over the May 12, 1999 status conference. The Complainant, who is pro se, failed to attend the status conference, and failed to notify the undersigned or the Office of Public Hearings that she intended to be absent. Both the Respondent and the Commission appeared. At no time after the conference did the Complainant call the Office of Public Hearings to explain her absence or ask questions as to what had occurred therein. A Scheduling Conference Summary and Order, dated May 13, 1999 (the "Scheduling Order"), was thereafter mailed to all parties, including the Complainant. This Scheduling Order summarized the procedural rules and dates of upcoming conferences and hearings.

The next scheduled event was a settlement conference with the Honorable Donna Maria Wilkerson on October 6, 1999. The Scheduling Order specifically provided that "Counsel for the Complainant and Respondent must be accompanied by their clients at this meeting" thereby giving clear notice that all parties were required to attend pursuant to an order of the presiding human rights referee. Settlement Referee Wilkerson reported to the undersigned that the Complainant failed to attend this settlement conference as well.

The Respondent, Johnny’s Pizza, has filed a Motion to Dismiss For Failure to Cooperate dated October 7, 1999 on the basis of Complainant’s failure to attend the October 6, 1999 settlement conference, as well as a settlement conference on May 12, 1999. The Commission has filed an objection to this motion dated October 13, 1999 on the dual grounds that a human rights referee lacks the authority to dismiss a complaint based on a complainant’s failure to attend a settlement conference and also because the Complainant informed her that she had not received the Scheduling Order and she intended to work on the date of the settlement conference.

For the reasons hereinafter set forth, the Respondent’s Motion to Dismiss is hereby granted.

A.    Authority to Dismiss

The Commission argues that I do not have the power to dismiss the complaint based on these circumstances because "there is no express regulatory or statutory authority for a Human Rights Referee to dismiss a CHRO complaint because a Complainant has not attended a settlement conference." It refers to Regulations of Connecticut State Agencies (the "Regulations") § 46a-54-81(e)(1)(B) as evidence that the only persons able to dismiss complaints are the Commission staff. I disagree based on the inherent authority given presiding hearing officers as well as case precedent.

Section 46a-54-96 of the Regulations governs hearing conferences, the first stage of the contested case process. When a complaint is certified, it is referred to the Office of Public Hearings and a hearing conference is scheduled. This section of the Regulations sets forth the procedure and subject-matter of the conference, as well as the authority of the presiding officer. The Regulation requires that all parties attend: "(a). . .The parties or their authorized representatives shall appear on the date and at the time and place specified in the notice for the hearing (emphasis supplied)." In fact, subsection (d) of this Regulation supplies the sanctions to be applied in the event a party does not appear:

Therefore, the presiding officer clearly may not only default a respondent for failure to appear, he or she may dismiss a complaint except in cases where the Commission has lawfully refused to disclose information within its files. This regulation contemplates dismissal of complaints for other reasons, which may include a non-appearing complainant.

Additionally, the Regulations grant the presiding officer full control over all proceedings before the Commission. Section 46a-54-101 provides in no uncertain terms:

The presiding officer shall have full authority to control all

conferences and hearings, to receive motions and other papers, to administer oaths, to admit or to exclude testimony or other evidence and to rule upon all motions and objections. A presiding officer may, on her or his own initiative or upon the request of a party, subpoena witnesses and compel their attendance for the purpose of providing testimony or producing physical evidence or both. Such authority shall vest in the presiding officer upon appointment by the Executive Director of the Commission.(emphasis supplied). Id. 

Therefore, the presiding officer has the authority to dismiss a complaint based on a complainant’s clear violation of an order, to wit, that she must attend a settlement conference. In the absence of this power, the presiding officer cannot "control" any proceedings, if the complainant, whose complaint is the very reason all of the parties are meeting, can choose which orders and conferences merit attendance or compliance. Obviously, a settlement conference is a waste of the other parties’ time and efforts if the complainant is unavailable to even accept or reject any offers made. It is fundamentally unfair to require a Respondent to attend under the threat of default, yet allow a complainant to decide for herself whether she will make the conference meaningful or a futile exercise for all involved. This Referee refuses to waste the Commission’s valuable time, resources and staff when they could better serve the many other complainants who take their complaints seriously.

Furthermore, if a presiding officer’s orders, which often contain pleading deadlines as well as conference and hearing dates, can be ignored or selectively followed by some parties and not others, then the purposes and policies of the Commission are a mere sham. If its own policies and procedures are actually applicable and enforceable only against one identifiable group, it is, therefore, promoting and encouraging the very ills it was created to eliminate, instead of acting as a body dedicated to the elimination of discriminatory practices. The agency could be frequently misused as a tool for the harassment of others if complainants need only file a complaint rather than participate in its processing by the agency.

In addition to the authority granted by the Regulations, there is considerable precedent established by other presiding officers for the Commission for dismissing complaints due to a complainant’s failure to cooperate. See CHRO ex rel. Willie Leslie v. City of New Haven, Department of Fire Services, No. 9830575, Final Decision and Order dated September 1, 1999; CHRO ex rel. Shelia Allen v. Pollack’s, No. 9710692, Notice dated June 17, 1999 (complainant failed to appear for public hearing); CHRO ex rel. Tamiepko Tion Cuffe v. Nine West Group, Inc., No. 9720038, Order of Dismissal dated May 7, 1999 (complainant failed to appear at scheduled settlement and status conferences); CHRO, ex rel. Susan Hefti v. Fairfield University, No. 9120206, Order of Dismissal dated September 23, 1997 (complainant refused to comply with order granting respondent’s motion to compel); CHRO, ex rel. Michelle Eichelberg v. The Quality Inn, No.9740229, August 21, 1997 (complainant failed to cooperate).

Based on the above, it is here determined that a presiding human rights referee does have the authority to dismiss a complaint based on a complainant’s failure to cooperate.

B.    Complainant’s Failure to Cooperate

The Commission also argues, on the Complainant’s behalf, that it had spoken to the Complainant via telephone on the day before the settlement conference. Complainant apparently told the Commission that she never received the Scheduling Order but that she still would not be attending because she could not take the time off from her current place of employment. These reasons are not sufficient to deny the Motion to Dismiss.

The Complainant’s statement that she did not receive the Scheduling Order is not acceptable. The Scheduling Order was mailed to all parties at their last known addresses. The Complainant has received other notices sent to the address to which the Scheduling Order was sent, as evidenced by her signature on various return receipt green cards from certified mailings. Furthermore, the Scheduling Order was never returned to the Office of Public Hearings due to an improper address. In fact, the Commission’s certification at the end of its Objection to the Motion to Dismiss certifies that a copy was sent to the Complainant at the address on file in the Office of Public Hearings. If the Complainant has since moved, it is her responsibility to notify the Office of Public Hearings of her new address—particularly when she is representing herself as a pro se party in this matter.

Also, the Commission’s objection informs the undersigned that—even if it is assumed that the Complainant never received the Scheduling Order—she was informed of the conference during that telephone call the day before it from the Commission. In fact, she decided on her own that she would not be attending. She never filed any motion for continuance, or called the Office of Public Hearings to inform it that she would not be attending the conference. When she heard that there was a Scheduling Order that she allegedly did not receive, she never called to request a copy or to inform the Office that because she failed to receive it she would be unable to attend. In fact, the Complainant did nothing to be excused from the conference and has since made no effort to explain her absence or even to request another conference. She has not even filed a response to the Respondent’s Motion to Dismiss. It is important to note that this was not merely one conference that the complainant failed to attend—there were two conferences, including also the scheduling conference, which she ignored without requesting a continuance and without a subsequent explanation for her absence. The undersigned Referee will not tolerate a party who willfully, knowingly and repeatedly ignores her orders without any excuse or explanation. If the Complainant does not take her own Complaint seriously, neither will I.

Based on the above, the Respondent’s Motion to Dismiss the Complaint, as to complainant, is granted. The Commission has until November 30, 1999 to substitute itself as a complainant. Absent said substitution by that date, a final order of dismissal will be entered.

It is so ordered this 26th day of October, 1999

______________________________

Hon. Lisa B. Giliberto
Human Rights Referee

Cc:  Patricia Nicolosi
Regina M. Hopkins, Assistant Commission Counsel II
Anastasios M. Leotsakos, Esq.
Raymond P. Pech, Deputy Commission Counsel