Ratner v. Home and Life Security Inc.

Commission on Human Rights and Opportunities : ex rel. Ira Ratner,
Complainant, CHRO # 9930246
v.
Home and Life Security, Inc.,
Respondent

May 12, 2000

Order of Dismissal Due to Complainant’s Failure to Cooperate

1. Procedural Background

On November 27, 1998, Ira Ratner, ("Complainant") filed a complaint with the Commission on Human Rights and Opportunities alleging that he was illegally terminated from the position of telemarketer with Home and Life Security, Inc. ("Respondent") on the basis of his religion (Jewish). The Complainant also alleged that he was subjected to anti-Semitic remarks at work and was otherwise harassed due to his religion in violation of General Statutes § 46a-60(a)(1) and Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991 as enforced through General Statutes § 46a-58(a). The complaint was certified to public hearing on September 9, 1999. The Honorable Lisa B. Giliberto was appointed presiding Human Rights Referee and a hearing conference was conducted on October 12, 1999.

On October 8, 1999, the Complainant¹ filed a motion for default against the Respondent for failure to file an answer. The Respondent complied and the motion was accordingly denied. Pursuant to the hearing conference summary and order ("Order"), the matter was set for a settlement conference to be held on December 8, 1999 before the Honorable Jon P. FitzGerald with a settlement conference report due on or before November 24, 1999. The Order stated in pertinent part,

Upon motion of the Commission, and without objection from the attorneys for the Complainant or Respondent, the settlement conference was rescheduled to December 6, 1999 by Referee FitzGerald. The settlement conference was held on December 6 with counsel for all parties and a representative of the Respondent, John Lewis, President, in attendance. The Complainant did not ask to be excused from, nor did he attend, the settlement conference and no agreement was reached at this time. On December 20, 1999, Referee FitzGerald ordered a second settlement conference to be held on January 25, 2000, with an updated settlement conference report due on January 7, 2000, for the Complainant. Referee FitzGerald’s order stated in pertinent part,

"Counsel for the complainant and the respondent must be accompanied by clients who have direct knowledge of the facts alleged in the complaint and answer and who have the authority to bind the respective parties to a settlement agreement. . . Failure to do so may result in sanctions including default of a party or dismissal of the complaint." (Underlining added.)

On January 14, 2000, the Respondent filed a motion for default and dismissal of complaint based on the Complainant’s failure to attend the December 6 settlement conference and failure to file and serve an updated settlement conference report by January 7, 2000. The Respondent’s motion for default and dismissal of complaint was denied without prejudice on February 1, 2000. In her ruling, Presiding Referee Giliberto included the following language,

"The Complainant is hereby warned, however, that any further failure to abide by an order of the undersigned may result in dismissal of the Complaint or other adverse ruling." (Underlining added.)

The Respondent also requested a continuance of the January 25, 2000 settlement conference until such time as the Complainant complied with both Referees’ orders. The motion for continuance was granted and thus the second settlement conference was not held.

The Commission, Complainant and Respondent all exchanged requests for disclosure and production and responses and objections thereto in accordance with the Order.² On February 28, 2000, the Respondent filed a motion to compel production of documents by the Complainant. On February 29, 2000, the Commission filed a motion to compel production of documents by the Respondent. Without objection from either the Commission or Complainant, Referee Giliberto ruled on Respondent’s motion to compel on March 14, 2000, in part granting and in part denying the requests. Similarly, without objection from the Respondent, Referee Giliberto ruled on the Commission’s motion to compel on March 14, 2000, in part granting and in part denying the requests. On March 24, 2000, the Respondent complied with Referee Giliberto’s March 14 ruling.

The undersigned Human Rights Referee was substituted in place of the Honorable Lisa B. Giliberto on April 10, 2000. On April 11, 2000, the Commission filed a proposed witness list and a proposed exhibit list in compliance with the Order. The Complainant did not file any such lists. The Respondent was unable to file such lists due to the Complainant’s failure to comply with Referee Giliberto’s ruling on the motion to compel.

On May 2, 2000, attorneys for the Complainant, the Commission and the Respondent attended a prehearing conference in compliance with the Order. The Order further required,

"Parties shall bring the original exhibits and one set of copies to the prehearing conference. The original exhibits shall be marked with exhibit labels bearing the appropriate number and identifying prefix in accordance with #2 above. Prior to the prehearing conference, the parties shall discuss with each other the items listed immediately above and, to the extent possible, stipulate to (a) the admission of exhibits, (b) the expertise of the witnesses, (c) pertinent facts, and (d) legal and factual issues that will (and will not) require adjudication. Absent a showing of good cause, failure . . . to comply with this Order may result in the exclusion of testimony or documentary evidence, the entry of an order of default in accordance with §§46a-54-95 and –96 of the Regulations, or in the imposition of other sanctions as allowed by law." (Underlining added.)

On April 20, 2000, the Respondent filed a second motion for default and dismissal of complaint ("Motion") citing a list of five failures of the Complainant to comply with the orders of the Presiding or Settlement Human Rights Referees assigned to this matter. These violations include: failure of the Complainant to attend the December 6, 1999 settlement conference; failure to provide a settlement conference report for the January 7, 2000 settlement conference; failure to comply with the ruling on the Respondent’s motion to compel; failure to produce a list of proposed witnesses; and failure to produce a list of proposed exhibits.

At the prehearing conference, the Complainant’s counsel was ordered to file any objection to Respondent’s Motion by May 4, 2000. In his objection, the Complainant’s counsel was ordered to also address why the original exhibits and one set of copies were not brought to the prehearing conference, in violation of Referee Giliberto’s Order. The Commission was ordered to file any objection to Respondent’s Motion by May 9, 2000. The undersigned Human Rights Referee further orally warned the Complainant’s counsel at the prehearing conference that his actions showed a serious pattern of failure to comply with orders and that dismissal of his case was possible.

The Complainant filed an objection to the Respondent’s Motion on May 4, 2000 and stated,

"The Complainant does not dispute certain failures to comply with dates as to provision of documents and witness and exhibit lists but asserts that Complainants (sic) work related travel and Counsel for Complainants (sic) trial schedule has (sic) interfered with the orderly provision of such materials. Complainant asserts and rewests (sic) that the extraordinary remedy of dismissal is overly punitive and reuests (sic) that an order enter setting May 12, 2000 as a deadline for provision of all materials and allowing respondent a reasonable amount of time to examine said material if requested. This would protect the rights of all parties."

On May 8, 2000, the Respondent filed a rebuttal to Complainant’s objection and stated, "excusing the repeated and continuing failures of the Complainant undermine[s] the rights of all other parties and the authority of all Hearing Officers and the Commission." On May 9, 2000, the Commission timely filed an objection to Respondent’s Motion arguing that the "Human Rights Referee does not have authority to dismiss the complaint prior to conducting a full hearing on the merits of the complaint." Lastly, on May 11, 2000, the Respondent filed a rebuttal to the Commission’s objection positing that Human Rights Referees have inherent authority to dismiss complaints, that the Complainant is deemed to be aware of all orders received on his behalf by his counsel and that as of the date of filing the rebuttal, the Complainant had not complied with any order cited in the Respondent’s Motion.

    2.    Authority of the Human Rights Referee to Dismiss Complaints

Human Rights Referees have the authority to dismiss complaints and have done so, often with the support of the Office of Commission Counsel. The Regulations of Connecticut State Agencies explicitly grant power to the Human Rights Referee to control the proceedings.

"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."

Section 46a-54-101. In the absence of the authority to dismiss complaints, the presiding officer cannot "control" any proceedings, if the complainant, whose complaint is the reason the parties are meeting can choose which orders and conferences merit attendance or compliance.

In addition to the broad authority granted by the Regulations, there is considerable precedent established by other presiding officers of 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 (complainant failed to appear for public hearing); CHRO ex rel. Sheila 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); CHRO ex rel. Patricia Nicolosi v. Johnny’s Pizza, No. 9840466, Order of Dismissal dated October 26, 1999 (complainant failed to attend a status conference and a settlement conference).

The Commission points out in a footnote of its memorandum supporting its objection to the Motion that "unlike other CHRO cases that have been dismissed for lack of cooperation by pro se Complainants over the Commission’s objections, there is no evidence that the Complainant in the instant matter purposefully chose not to comply with the orders of the Referees or that he was aware that said orders existed. To dismiss the complaint without more information would work a manifest injustice to the Complainant." Contrary to Commission’s argument, it is unnecessary to show that the Complainant himself was aware that said orders existed because the Complainant chose to be represented by counsel who was aware of his responsibilities in this matter. It is well-established that the nature of the relationship between the attorney and his client is one of traditional agency. The United States Supreme Court ruled that a district court’s dismissal of a case, without notice, for failure to prosecute based on an attorney’s unexcused absence from a prehearing conference as well as general dilatory handling of a case did not impose an "unjust burden on the client." Link v. Wabash Railroad Company, 370 U.S. 626, 633, 82 S.Ct. 1386, 1390 (1962), rehearing denied, 371 U.S. 873, 83 S.Ct. 115 (1962). The court continued,

"[p]etitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’" Id. at 633-34. (Internal citations omitted.)

Connecticut court have similarly held that the acts of an attorney are ordinarily attributed to his client. Higgins v. Karp, 239 Conn. 802, 810 (1997); Thode v. Thode, 190 Conn. 694, 698 (1983).

Assuming, arguendo, it is necessary that the Complainant be knowledgeable about the existence of the Referees’ orders, the Complainant has shown himself to be an extremely involved participant in his case. When he first received the original notice of public hearing, he realized that an error had been made by the Office of Public Hearings (OPH). The OPH erroneously attached the wrong affidavit to his notice. On September 20, 1999, the Complainant brought this error to OPH’s attention by faxing a memo indicating such error. Additionally, prior to the hearing conference even being held, the Complainant filed a motion to default the Respondent,³ showing himself to be more knowledgeable than most complainants in the ways of contested case proceedings. Furthermore, the Complainant was present at the initial hearing conference where Referee Giliberto outlined what was to be expected during the contested case proceedings.⁴ These actions by the Complainant indicate an interest in his proceedings and at least a basic understanding of how the process works. His public hearing was set for May 22-24, 2000, less than two weeks from today. It is inconceivable that the Complainant did not know that he needed to be prepared to go forward on his case on these dates.

The record in this matter indicates that the Complainant has repeatedly ignored orders of both the Presiding and Settlement Human Rights Referees to attend the settlement conference, produce an updated settlement conference report, disclose documents pursuant to a ruling on a motion to compel, file and serve witness and exhibit lists or bring premarked exhibits to the prehearing conference. Counsel for the Complainant asserts that his trial calendar was busy, yet he never asked for a continuance of any date. He was warned four times in writing and one time orally that his case was subject to dismissal for failure to comply with orders. He chose to ignore such warnings at his peril.

    3.    Summary and Conclusion

The Complainant has shown an appalling lack of respect for the other parties, the Referees and the process itself. The undersigned Referee will not tolerate a party who willfully, knowingly and repeatedly ignores her orders without any excuse or explanation.

Based on the above, the Respondent’s Motion for Default and Dismissal of Complaint, as to the Complainant, is granted. Since the Commission deferred its prosecution of the complaint to the Complainant, the Commission has until June 16, 2000 to file a motion to substitute itself for the Complainant pursuant to § 46a-54-91(b) of the Regulations. If said motion is filed, the Respondent has until June 26, 2000 to file an objection to the granting of the motion to substitute. If said motion is not filed, a final order of dismissal shall be entered.

It is so ORDERED and dated at Hartford, this _____ day of May, 2000

Hon. Lara L. Manzione
Presiding Human Rights Referee

C: Mr. Ira Ratner
Mr. John Lewis
Margaret J. Nurse-Goodison, Esq.
Robert A. Izzo, Esq.
Ronald Michael Meneo, Esq.

Endnotes:

1    It is unclear whether the Complainant was pro se at the time of filing of the motion for default because the motion was filed by the Complainant himself, but was notarized by Robert Izzo, Commissioner of the Superior Court. There is no appearance form or letter of appearance by Robert Izzo in the official file maintained by the Office of Public Hearings.

2    In its February 28, 2000 motion to compel production, the Respondent contends that the Complainant’s responses to the Respondent’s requests for production served via telefacsimile on or about December 23, 1999 should have more accurately been entitled objections. If they were objections they were not in conformance with the Order which required objections filed by December 20, 1999 and responses due on or before January 7, 2000.

3     See footnote 1.

4     The Complainant also called a clerk at OPH on many occasions to check whether the Respondent had complied with Referee Giliberto’s Order to determine whether his motion for default would go into effect.