Schoen v. Grace Christian School - 0120163, Ruling Re: R's Motion to Dismiss

CHRO No. 0120163
Fed. No. N/A

Commission on Human Rights and Opportunities ex rel. : Sandra J. Schoen
v.
Grace Christian School

December 2, 2002

Ruling re: Respondent's Motion to Dismiss

    On July 2, 2002, the respondent served in hand on the commission a motion to dismiss the complaint. The commission did not file an objection or answering statement "within ten (10) days of receipt of the motion" as required under Section 46a-54-97(b) of the Regulations of Connecticut State Agencies. The motion, re-dated to October 23, 2002, was subsequently filed on October 25, 2002, served on the complainant and re-served on the commission. Neither the complainant nor the commission filed an objection "within ten (10) days of receipt of the motion" (Regs., Conn. State Agencies § 46a-54-97(b)) or within "fourteen (14) days after the filing of the motion" (Regs., Conn. State Agencies § 46a-54-87a(b)(effective November 4, 2002, superseding § 46a-54-97(b)). As of the date of this ruling, no objection to the motion to dismiss has been filed by either the complainant or the commission.
    For the reasons set forth herein, the respondent's motion is granted. The complaint is dismissed.

I. Complaint

    In her complaint dated October 17, 2000, the complainant alleges that the respondent terminated her employment in violation of General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4) ("CFEPA") and 42 U.S.C. § 2000e ("Title VII"). The complainant alleges that she was harassed, discriminated against in the terms and conditions of her employment and terminated by the respondent in retaliation for her refusal to ask her minister if he was a homosexual. Specifically, she alleges that on approximately seven occasions between September 18, 2000 and October 3, 2000, her supervisors asked her whether her minister was a homosexual and told her to ask him whether he was homosexual. She further alleges that the reason given for her subsequent termination on October 4, 2000, complaints about her from parents and volunteers, was pretextual.
    It is important to identify what the complainant does not allege. She does not allege that she was terminated, harassed, discriminated against in the terms and conditions of her employment or retaliated against because of her own race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning or physical disability, or sexual orientation. The complainant also makes no allegation that an employment relationship ever existed between her minister and the respondent.
Liberally construing the complaint most favorably to the complainant, she alleges that she was retaliated against for her opposition to the respondent's anti-homosexual policies. Her opposition manifested itself in her refusal to discuss with her minister his sexual orientation and, because of this refusal, she was terminated from employment.

II. Motion to Dismiss

    In its motion to dismiss, the respondent alleges that the commission lacks jurisdiction over the complaint because no protected activity occurred within the definition of Title VII and §§ 46a-60(a)(1) and 46a-60(a)(4) and because the respondent is exempt under the provisions of General Statutes § 46a-81p.
    "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citations omitted; internal quotation marks omitted.) Federal Deposit Insurance Corp. v. Peabody N.E., Inc., 239 Conn. 93, 99 (1996). "Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." (Citations omitted; internal quotation marks omitted.) Salmon v. Department of Public Health and Addition Services, 58 Conn. App. 642, 649 (2000). The Connecticut Supreme Court has at least twice approved the use of a motion to dismiss for purposes of raising the question of lack of jurisdiction in commission complaints at the administrative adjudicatory stage. Commission on Human Rights and Opportunities v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609, 612-13 (1987); City of Groton v. Commission on Human Rights and Opportunities, 169 Conn. 89, 101 (1975).

III. Analysis

    In this case, the commission lacks subject matter jurisdiction for one or more reasons including: sexual orientation is not an enumerated protected class within Title VII or § 46a-60(a); opposing a discriminatory employment practice is not protected by General Statutes § 46a-81c; the respondent is exempt under § 46a-81p from § 46a-81c; and there is no employment relationship between the respondent and the complainant's minister.
    As CFEPA claims are analyzed in the same manner as those under Title VII, the analysis will encompass both. State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 469-70 (1989).

A. Title VII and General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4)

    The complaint fails because the prohibition on retaliation contained in § 46a-60(a)(4) is limited to the employment practices proscribed in § 46a-60(a) and because discrimination on the basis of sexual orientation is not encompassed within the prohibited employment practices enumerated in either § 46a-60(a) or Title VII.
    The complainant alleges that the respondent violated Title VII and §§ 46a-60(a)(1) and 46a-60(a)(4) by harassing her and terminating her employment because of the alleged sexual orientation of her minister and her refusal to confront her minister about his alleged sexual orientation. Title VII prohibits employment discrimination based on an individual's "race, color, religion, sex or national origin. …" 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits discrimination against an individual for her opposition to proscribed employment practices. 42 U.S.C. § 2000e-3(a). The status of sexual orientation, though, is not included within this exhaustive list. Further, the Court of Appeals for the Second Circuit has concluded that "[t]he law is well-settled in this circuit and in all others to have reached the question that [the plaintiff] has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation." Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). Thus, the commission has no jurisdiction under Title VII.
    With respect to CFEPA, the commission's jurisdiction is limited to the clear and unambiguous language of § 46a-60(a). "The purpose of [CFEPA] is to eliminate discrimination in employment for specified reasons. …. It is only within the prescribed reasons that the statute becomes operative." Draper v. Clark Dairy, Inc., 17 Conn. Sup. 93, 100 (1950). The prescribed reasons set forth in § 46a-60(a)(1), as amended by P.A. 01-28, are limited to: "race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability. …" Sexual orientation is not included.
    The absence of sexual orientation from those enumerated in § 46a-60(a)(1) is critical. "Administrative agencies (such as the department) are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. … We have recognized that it is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. … It cannot modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power." (Internal quotation marks omitted; citations omitted.) Salmon, 58 Conn. App. 649. In this case, because there is no statutory grant of authority under §§ 46a-60(a)(1) or 46a-60(a)(4) to prosecute an alleged act of retaliation based upon sexual orientation, the commission has no jurisdiction under these statutes.

B. General Statutes § 46a-81c

    Although sexual orientation is excluded from the proscribed employment practices set forth in Title VII and § 46a-60(a), Connecticut law does prohibit discrimination in employment based upon sexual orientation in § 46a-81c. While the complainant does not specifically cite this statute in her complaint, for purposes of this ruling the undersigned will presume that her allegations regarding sexual orientation incorporate a claim under this section. Section 46a-81c, prohibits an employer from refusing to hire or employ, discharging from employment, or discriminating against an individual in the terms and conditions of employment because of the individual's sexual orientation. The statute also prohibits discriminatory acts by employment agencies and labor organizations. However, the statute has no provision comparable to § 46a-60(a)(4)'s prohibition against retaliation for opposing a discriminatory employment practice.
    The absence of a comparable retaliation provision is significant. If the legislature had wanted § 46a-81c to be coextensive with § 46a-60(a), it could have included sexual orientation in the prohibited practices set forth in § 46a-60(a). Alternatively, the legislature could have restated all the provisions of § 46a-60(a), including the protection from retaliation, in § 46a-81c. In contrast, for example, the prohibitions on discriminatory housing practices of § 46a-64c, not applicable to sexual orientation, are recited nearly verbatim in § 46a-81e, applicable to sexual orientation. Since the legislature did not include sexual orientation within the list of prohibited employment practices in § 46a-60(a) nor provide protection against retaliation in § 46a-81c, the only logical conclusion to be drawn is that the legislature did not intend § 46a-81c to be coextensive with § 46a-60(a).
    Thus, even if the complaint included an alleged violation of § 46a-81c, the commission would, nevertheless, lack jurisdiction because § 46a-81c does not, in fact, prohibit an employer from retaliating against an employee for her opposition to a discriminatory employment policy based upon the sexual orientation of a non-employee.

C. General Statute § 46a-81p

    Even if an anti-retaliation provision could be read into § 46a-81c and even if the respondent's actions amounted to a violation of § 46a-81c, the complaint would still fail because the respondent is exempt from this statute by § 46a-81p. In interpreting § 46a-81p, "we are guided by well established tenets of statutory construction. 'Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. … In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.'" (Citations omitted) Nancy G. v. Department of Children and Families, 248 Conn. 672, 683 (1999). The language of section 46a-81p itself provides that "[t]he provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association educational institution or society."
    The clear language of § 46a-81p that the prohibitions on sexual orientation contained in §§ 46a-81a to 46a-81o do not apply to religious institutions is reinforced by the statute's legislative history. Throughout the extensive debate in the state House of Representatives and Senate on the Gay Rights Bill, repeated statements were made reiterating the broad exemption for religious institutions from the prohibition on discrimination based on sexual orientation. 34 H.R. Proc. Pt. 7, 1991 Sess. p. 2596 - 2661; 34 S. Proc., Pt. 3, 1991 Sess., p. 974-1004.
    There appears no dispute that the respondent is a religious educational institution performing work in connection with its educational activities. Given the clear language of § 46a-81p and its unambiguous legislative history, the respondent is exempt from the provisions of § 46a-81c and the commission has no jurisdiction.

D. Lack of employment relationship

    The failure of the complainant to allege an employment relationship between her minister and the respondent is also fatal to her claim of illegal retaliation. The plain language of Title VII and §§ 46a-60(a)(1) and 46a-81c(1) requires the existence of an employment relationship. In this case, although there is an employment relationship between the respondent and the complainant, there is no employment relationship alleged between the respondent and the complainant's minister. Absent an employment relationship, the respondent could not have committed an adverse employment action against the minister. An employment nexus, then, between the respondent and the minister is essential to the complainant's retaliation claim.
    To establish a prima facie case of retaliation, the complainant must show (1) participation in a protected activity known to the respondent; (2) adverse employment action taken by the respondent against her; and (3) a causal connection between the protected activity and the subsequent adverse employment action. It is not necessary for the complainant to prove that the conditions against which she protested amounted to a violation of Title VII or CFEPA for her to meet the first element and qualify for protection against retaliation. However, she must, nevertheless, demonstrate a good faith belief that the underlying actions of the respondent violated the law. Wimmer v. Suffolk County Police Department, 175 F.3d 125, 135 (2d Cir. 1999) cert. denied 528 U.S. 964 (1999). The issue, then, is whether opposing discrimination against non-employees can, as a matter of law, constitute a good faith belief and be a protected activity.
    The Court of Appeals for the Second Circuit has addressed the "precise issue presented, whether a complaint of retaliation for opposing discrimination by co-employees against non-employees is cognizable under Title VII. …" The court concluded that the plaintiff's "claim of retaliation is not cognizable under Title VII because his opposition was not directed at an unlawful employment practice of his employer. The specific evil at which Title VII was directed was not the eradication of all discrimination by private individuals, undesirable though that is, but the eradication of discrimination by employers against employees." (Internal quotation marks omitted; internal citations omitted.) Wimmer, 175 F.3d. 135.
    As that court noted, even though conduct may be "wrongful or even spiteful[,] [w]e have emphasized, however, that Title VII is not a general 'bad acts' statute. Rather, the conduct it prohibits is specifically set forth. … While Congress may decide to extend the statute's coverage to persons who bring any discriminatory practice of an employer to light, such a step lies beyond the province of courts. To find in Title VII protection for whistle-blowers on each and every instance of discrimination on the part of an employer is more than we think the plain language of its provisions will support." (Internal quotation marks omitted; citations omitted.) Wimmer, 175 F.3d 135.
    For retaliatory action to be a proscribed act of employment discrimination, the employer's underlying act that the employee is opposing must be an unlawful employment practice committed by the employer against its own employee or a good faith belief that an employer committed an unlawful employment practice against its own employee. In the present case, the respondent's alleged anti-homosexual policy was directed at the complainant's minister, a non-employee. Thus, the commission has no jurisdiction.

IV. Conclusion

1. The complainant does not allege that she was terminated, harassed, discriminated against in the terms and conditions of her employment or retaliated against because of her own race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning or physical disability, or sexual orientation.

2. General Statutes § 46a-81c does not encompass a claim of retaliation.

3. Pursuant to General Statutes § 46a-81p, the respondent is exempt from the provisions of § 46a-81c.

4. The complainant makes no allegation of an employment relationship between her minister and the respondent.

5. There is no cause of action for the complainant under either CFEPA or Title VII for her employer's alleged retaliation resulting from her opposition to an alleged discriminatory policy by her employer against a non-employee.

V. Order

The complaint is dismissed. The public hearing is cancelled.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
C:
Ms. S. Schoen
Mr. J. Fixary
Atty. D. Hunsberger
Atty. R. Hopkins

CHRO No. 0120163
Fed. No. N/A

Commission on Human Rights and Opportunities ex rel. : Sandra J. Schoen
v.
Grace Christian School

December 2, 2002

Ruling re: Commission's motion for reconsideration

The commission's motion for reconsideration dated November 14, 2002 is denied.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
C:
Ms. S. Schoen
Mr. J. Fixary
Atty. D. Hunsberger
Atty. R. Hopkins