Sperow v. Regional School District No. 7 - 0130607, Ruling on Motion to Dismiss

CHRO No. 0130607

Fed. No. 16aa13360

CHRO ex rel. Joyce Sperow,


Regional School District No. 7,

December 1, 2005

Ruling on Motion to Dismiss

1. Preliminary statement

This matter was initiated with the filing of a complaint with the Commission on Human Rights and Opportunities ("Commission" or "CHRO" as context requires) on June 20, 2001. The Complainant, Joyce Sperow ("Complainant") alleged that she was wrongfully terminated from her teaching position with Regional School District No. 7 ("Respondent") because of her age (DOB November 6, 1939) and religion (Methodist) in violation of Section 46a-60(a)(1) of the General Statutes, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991 and the Age Discrimination in Employment Act of 1967. The case was certified after a finding of reasonable cause to believe that an unfair employment practice had been committed, on August 3, 2004.

The Respondent filed the subject motion to dismiss on August 23, 2004. All parties participated in oral argument on the motion to dismiss on May 9, 2005, subsequent to briefs having been filed on behalf of the parties. By motion dated August 3, 2005, the Complainant sought to amend her complaint by adding sex (female) to her listing of protected classes, and adding discrimination in her general treatment and in the terms and conditions of her employment to her initial claim for unlawful termination, again citing Section 46a-60(a)(1) of the General Statutes and the Civil Rights Acts of 1964 and 1991. Good reason having been advanced for the motion to amend, and no objection having been made, that motion has been granted by separate order dated November 30, 2005. The ruling on this motion to dismiss will be applied to the complaint as amended.

2. Basis for motion

The Respondent's motion adopts the following factual history. The Complainant's employment contract, as a tenured teacher of the Respondent regional school district, was terminated pursuant to a procedure set forth in Section 10-151 of the General Statutes. Pursuant to the procedure therein mandated ("Section 151 Process"), the Respondent's superintendent initiated termination proceedings by letter dated August 1, 2000. On August 29, 2000, in response to the Complainant's request, he recited reasons for the proposed termination. The letter cited three of the six possible statutory reasons warranting termination of a tenured teacher;

a. inefficiency or incompetence;
b. insubordination against reasonable rules of the Board of Education;
c. other due and sufficient cause.

Pursuant to the statute a three member "impartial panel" was constituted, one member selected by the Complainant, one by the Respondent and the third by the first two. A five-day hearing was held during which a number of "disciplinary incidents" concerning the Complainant were discussed; culminating with an incident that occurred on May 18, 2000, in which the Complainant had denied a special education student egress from a small room adjacent to the Complainant's classroom. The student had been confined to the room because of disruptive behavior. Prior disciplinary incidents directed against the Complainant (including one resulting from a previous Section 151 Process hearing where the impartial panel was chaired by a former dean of the University of Connecticut School of Law and which panel found "significant discipline" against the Complainant to be warranted) were reviewed. The Section 151 Process assigned to the Respondent the burden of proving a statutorily sufficient cause for termination. Tucker v. Norfolk Board of Education, 177 Conn. 572, 576 (1979). During the hearing the Complainant was represented by counsel. The proceedings were judicial in nature.

Upon completion of the hearing a majority of the panel concluded that the May 18, 2000 incident, in conjunction with prior documented incidents, suspensions and misconduct, constituted "other due and sufficient cause" necessary to warrant termination. In explanation of its findings, the majority found that the Complainant had exhibited an "extraordinary history of disciplinary suspensions" which had been "ineffective in convincing her to refrain from misconduct". See Impartial Hearing Panel Report, Ultimate Finding, p. 64. The Respondent's board of education accepted the factual findings and the recommendation of the impartial panel and voted on April 3, 2001 to terminate the Complainant's teaching contract. Pursuant to the Section 151 Process, a board of education is bound by an impartial panel's factual findings, and may only disregard them if they are not supported by substantial evidence. Barnett v. Fairfield Board of Education, 232 Conn. 198 (1995).

Pursuant to the Section 151 Process (in particular Section 10-151(e) of the General Statutes), the Complainant appealed the termination to the superior court, raising issues of lack of due process and lack of evidence. The court utilized the same scope of review as used in appeals from administrative agencies. Hanes v. Board of Education of Bridgeport, 65 Conn. App. 224, 230 (2001). The court (DiPentima, J.) upheld the termination, finding that there was sufficient substantial evidence to support the termination and that there was no violation of the Complainant's right to due process. Sperow v. Regional 7 Board of Education, 2002 WL 31818839 (Conn. Super.)

The Respondent argues that the Section 151 Process outlined above, culminating in the superior court's 2002 upholding of the Complainant's termination, warrants the dismissal of this complaint for four (4) reasons:

1. res judicata (claim preclusion)
2. collateral estoppel (issue preclusion)
3. established fact preclusion
4. timeliness

This decision, in part as a result of addressing the complaint as now amended, will address the Complainant's termination claims, and how items one through three (treated collectively as preclusion claims) impact those claims.

Connecticut Agency Regulations § 46a-54-88a allows the presiding officer, on his or her own or upon motion of a party, to dismiss a complaint or a portion thereof if a complainant fails to establish jurisdiction, fails to state a claim for which relief can be granted or fails to sustain his or her burden in the presentation of the evidence (non exhaustive listing). Commission on Human Rights and Opportunities ex rel. Friedman v. State of Connecticut, Office of the Comptroller, CHRO No. 0110195 (Ruling on motion to dismiss, November 17, 2003). Therefore, the present motion is properly before this tribunal. In evaluating the motion, the Complainant's allegations are accepted as true and interpreted in a light most favorable to the complainant. The motion admits all facts well pleaded, and invokes any record that accompanies the motion. Malasky v. Metal Products Corp., 44 Conn. App. 446, 451-452 (1997), cert. denied, 241 Conn. 906 (1997). A complainant's evidence and allegations must be accepted as true and interpreted in a light most favorable to the complainant, and every reasonable inference is to be drawn in favor of the non-moving party. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608 (1998). While Connecticut practice usually requires preclusion issues to be raised as an affirmative defense and resolved by summary judgment, the CHRO regulation is broadly worded, and neither the Complainant nor the Commission have raised any objection as to the form of this motion.

In addition, as the Respondent argued in its brief, the Connecticut courts rely on federal case law in Title VII discrimination cases (including discrimination claims brought under state statutes). State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989). Age Discrimination in Employment Act ("ADEA") claims utilize the same burden-shifting framework as claims brought under Title VII. TWA v. Thurston, 469 U.S. 111, 121 (1985).

Similar to Connecticut practice the Federal Rules of Civil Procedure provide for a dismissal of federal claims for failure to state a viable claim for relief. Rule 12(b)(6) of the Federal Rules of Procedure. A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief". Conley v. Gibson, 335 U.S. 41, 45-46 (1957). The preclusion doctrines of res judicata and collateral estoppel may be raised via a Rule 12(b) motion to dismiss. Kaufman v. Somers Board of Education, 368 F. Supp. 28, 32 (D. Conn. 1973).

3. Preclusion Issues

The doctrine of res judicata, or claim preclusion, provides that a lawful judgment including the same parties (or their privies) and based on the same cause of action warrants dismissal of a second suit by the same parties on the second cause. Lawlor v. National Screen Service Corporation, 349 U.S. 322 (1955). In Connecticut, "[a] judgment is final not only as to every matter which is offered to sustain the claim, but also as to any admissible matter which might have been offered for that purpose". DeMile & Company v. Commission on Motor Vehicles, 233 Conn. 281, 292 (1995) (emphasis in original). Res judicata prevents the pursuit of any claims relating to the same cause of action which were actually made or which might have been made. Scalzo v. Danbury, 224 Conn. 124, 127 (1992).

The doctrine of collateral estoppel, or issue preclusion, protects litigants from the need to re-litigate identical issues between the same parties or their privies. Blonder Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971). Collateral estoppel is that aspect of res judicata, which is concerned, with the effect of a final judgment on subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties. Brockett v. Jensen, 154 Conn. 328, 337 (1966).

What this decision has termed "established fact preclusion", is best described in McDermott v. Town of Windham Public Schools, 225 F. Supp. 2nd 180 (D. Conn. 2002). The case stands for the proposition that even when findings of an administrative agency are not entitled to res judicata or collateral estoppel consideration (in McDermott because of the lack of judicial review) they may still be sufficient to eliminate the possibility of a finding of racial animus in the decision making process, if the record shows the deliberations to have been thorough and objective, thereby allowing for a granting of summary judgment.

In tailoring its res judicata arguments to this matter, the Respondent relies on the case of Sekor v. Ridgefield Board of Education, 1 F. Supp. 2d 140 (D. Conn. 1998). Sekor involved a U.S. District Court dismissal (by summary judgment) of a terminated teacher's age discrimination claim by utilization of a res judicata finding, predicated on the Connecticut Supreme Court's prior upholding of the teachers dismissal pursuant to the Section 10-151 Process. Pursuant to the governing statute, an impartial panel had found the termination warranted because of the teacher's incompetence. The District Court found that the teacher had had an adequate opportunity to litigate her discrimination claim in the state court proceeding, in which proceeding the appeal from the administrative dismissal had been heard. The court was at least in part persuaded by the fact that the plaintiff did not provide persuasive evidence to support her claim that she was not permitted to litigate her age discrimination claim in state court. The Commission was not a party to either court action. The Complainant and Commission rely on the cases of Meehan v. Town of East Lyme, 919 F. Supp. 80 (D. Conn.) aff'd, 104 F. 3d 352 (2nd Cir. 1996) and Kaufman v. Somers Board of Education, 368 F. Supp 28 (D. Conn. 1973). In Meehan, the Plaintiff had claimed unsuccessfully before the state courts (on appeal from a Section 151 Process termination) that the termination proceedings were in violation of his state and federal rights of due process. His civil rights action in federal court, which was predicated on the same due process violations as had been alleged in state court, was dismissed on summary judgment because of a finding of res judicata. The court relied in part on the "transactional test" which dictates res judicata shall apply when the competing claims arise from the same transaction or series of transactions. Commission of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 188 (1993).

In Kaufman, the U.S. District Court dismissed a teacher's claim (predicated on a Section 151 Process terminationl) that the procedure had relied on unconstitutionally vague grounds and had therefore violated the teacher's due process rights. The court found the teacher's claim barred by the doctrine of res judicata, finding that even though he did not raise the constitutional claims in the state court appeal from the administrative dismissal, he had nonetheless presented these claims in his brief.

While the Respondent apparently waives any claim that the findings of a Section 151 Process impartial hearing panel should be afforded ant preclusive effect on a subsequent action before the CHRO, unless those findings had been previously upheld by the superior court, this may not actually be the case. In Corey v. Avco-Lycoming Division, Arco Corporation, 163 Conn. 309 (1972), our Supreme Court upheld the dismissal of a complaint before the Commission on res judicata grounds, predicated on the prior findings of a board of arbitration. The Court stated that it upheld the concept that the decisions of administrative boards should be afforded res judicata effect if the boards were acting in a judicial capacity. Id at 318. See also, University of Tennessee v. Elliott, 478 U.S. 788 (1986).

The Respondent cites Gedney v. Groton Board of Education, 47 Conn. App. 297 (1997), cert. denied, 243 Conn. 968 (1998), for the proposition that the Complainant could have presented her claims of discrimination to the reviewing court (and presumably to the impartial panel as well) in an appeal from a Section 151 Process termination. In Gedney, the Appellate Court affirmed the trial court in its findings (on an appeal from the termination) that if a termination was properly predicated on "moral misconduct" and "other due and sufficient cause" unrelated to a disability claim, that it followed that the termination could not have been the result of unequal treatment or actionable discrimination. The case is advanced by the Respondent in part to establish that claims of discrimination should be presented to a Section 151 Process impartial panel and in a subsequent appeal to the reviewing court as well, so as to preclude the possibility of a finding that the termination was for just cause. The Respondent sets forth a compelling case that a teacher termination recommended by such a panel, subsequently adopted by a board of education, and ratified by the superior court, should generally be afforded preclusive effect in subsequent proceedings predicated on the termination. No case has been presented, however, which dictates what preclusive effect should be afforded when the subsequent proceedings are before the CHRO.

The Complainant and the Commission take an entirely different tack in their presentation. They cite Mendillo v. Board of Education of East Haddam, 246 Conn. 456 (1998) for the proposition that a teacher who had filed a wrongful termination lawsuit, did not have to pursue her administrative (Section 151 Process) remedies where the issue was whether she had resigned voluntarily or had been forced to do so (constructively discharged) by the Respondent's wrongful conduct. The court found that that question was not one that could be addressed by consideration of the six available grounds for termination provided by Section 10-151(d) of the General Statutes, and that to require the plaintiff to invoke the statutory procedure, would be to "attempt to force the proverbial square peg into a round hole". Id at 469. Mendillo certainly supports the proposition that not all teacher employment issues must follow the Section 151 Process track, particularly if it is neither empowered nor otherwise constituted to resolve that particular employment issue.

The Complainant and Commission then extend this argument to the proposition that tenured teachers who believe discrimination is the basis of their termination need never employ their Section 151 remedies, and need never be prejudiced by the result even if they do, in part because it would have been the Respondent's very decisions that the then CHRO complaint would in effect be challenging. This argument ignores the fact that the initiating superintendent (or other individual administrator), the board of education and the impartial panel are all separate and distinct incarnations of a respondent school district. Even if a rogue superintendent might harbor an impermissible animus, and be selective in the initiation of proceedings, the impartial hearing panel and elected board of education are presumably independent buffers capable of objective review.

The Complainant and Commission then attempt to transpose this line of argument to Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45 (2002) wherein our Supreme Court rejected claims of both res judicata and collateral estoppel made by the defendant's zoning board of appeals. In Cumberland, the plaintiff appealed the denial (by the ZBA) of its request for a variance from the zoning (and environmental) regulations, for having "practically destroyed" the value of its property. The superior court found the denial reasonably supported by the record. A petition for certification was denied. Plaintiff then filed an inverse condemnation action in the superior court. The municipal defendant was granted summary judgment on the theory of collateral estoppel. The court found that the zoning appeal and the inverse condemnation matter encompassed common issues, and applied issue preclusion. The Connecticut Supreme Court ultimately reversed the trial court, finding that collateral estoppel (and res judicata), are neither "statutorily nor constitutionally mandated" and that the doctrines are judicially created and enforced on policy grounds. The competing policies are the interests of defendants and the courts in bringing litigation to a close, versus the interests of the plaintiffs in the vindication of just claims. The Court went on to recite the judicially established exceptions to the general application of the preclusion doctrines, and found them to be;

1) a competing public policy interest outweighing the interest of finality;
2) differing incentive to litigate the claim in the two competing forums;
3) differing opportunity to limit the claim in the two competing forums;
4) legislative intent indicating the doctrine should not apply.

The Supreme Court applied these principles in deciding that an exception should be found to allow the plaintiff's inverse condemnation to go forward. In doing so, however, findings were made which distinguish the case in significant ways from the matter at hand. First, the Court was reluctant in Cumberland to allow constitutional fact finding duties to be entrusted to "citizen volunteers", who are not "land use professionals", are governed by rules that are in contrast to those governing court proceedings, and whose proceedings encourage input from the "general public" (whose members have an actual interest in the outcome of the proceedings). The Court noted also that in Cumberland it was the zoning board's action that gave rise to the constitutional claim-one of the Complainant and Commission's principal arguments in this matter. This case creates an intelligent and comprehensive balancing standard, which affords the trier of fact some reasonable discretion in applying the doctrine, at least in those situations where case law does not seem to control. Cumberland is certainly our Supreme Court's most recent (2002) and comprehensive statement as to the applicability of the preclusion doctrine in Connecticut. Its decision to make exception to the preclusion doctrine in Cumberland is not, however, fully compelling in this matter for two reasons;

1) impartial hearing panels under the Section 151 Process are made up of legal and education experts (see earlier reference to former Dean of University of Connecticut School of Law being member of prior Sperow impartial panel) who function in a judicial atmosphere;
2) it was not necessarily the direct doings of the impartial panel or the elected regional board of education that gave rise to the Complainant's discrimination claim, and neither the Complainant nor the Commission have yet made any direct claims that it was. Their evident concern appears to be with the individual administrators who initiated the termination process.

The Complainant and Commission next turn their argument to EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). In this matter, the U.S. Supreme Court recognized the EEOC's primacy in matters of discrimination, by allowing it to pursue litigation, overriding - largely for public policy concerns - an agreement by the employee and employer to submit such matters to binding arbitration. Waffle House is also not conclusive to the matter at hand, in part because the employee did not seek to arbitrate his claim (the Complainant participated in the Section 151 Process hearing and appealed the result). The arbitration process not having been invoked in Waffle House, no finding had been made to which to afford preclusive effect. The case relates more to the question of exhaustion of remedies than to general principles of preclusion. Had an arbitration finding been made, Waffle House actually provides some support for the Respondent's cause by finding that actual results of the arbitration process (had it gone forward) might be afforded preclusive effect. "It is an open question, whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of the relief the EEOC may seek". Id at 297.

All parties have briefed their claims well, but neither side's arguments and authorities appear to conclusively justify the findings they respectively request. As previously suggested, it appears that a request to apply preclusive effect to the judicial upholding of a Section 151 Process termination, so as to preclude a CHRO claim, may constitute a case of first impression in Connecticut. Consistent with Cumberland, it is essential in such a matter to look at public policy concerns and equitable balancing considerations before rendering a decision as to whether an exception to the preclusion doctrines is warranted, and if so, to what extent.

This decision is fully appreciative that the CHRO is our country's first civil rights watchdog agency, and that it is, "…charged by [law] with initial responsibility for the investigation and adjudication of claims of…discrimination." Sullivan v. Board of Police Commissions, 196 Conn. 208, 215 (1985). The Commission's "privity arguments" are duly noted, as is its recitation of the independent role it plays in the processing of complaints before it. Miko v. CHRO, 220 Conn. 192 (1991). This decision must respect and acknowledge the Commission's assigned duty, "…to do away with discrimination…altogether." Evening Sentinel v. NOW, 168 Conn. 26, 34 (1975). It would clearly be unacceptable to fashion a decision that would in effect preclude every terminated public teaching professional in Connecticut from any access to the CHRO simply because he or she had fought to save his or her job by participating in the Section 151 Process, and appealed a resulting adverse finding to the courts.

Equally unacceptable would be a decision that would allow a terminated teacher to ignore a judicially ratified Section 151 Process termination simply because a claim of discrimination is made, which claim could have been made in that proceeding before the impartial panel, to at the very least rebut a school district's claim that the proposed termination is for a lawful and legitimate reason, and to establish that the stated reasons are but pretext to disguise an impermissible motive. The establishment of the Section 151 Process under the Teacher Tenure Act was a significant undertaking by the Connecticut legislature, and was clearly intended by it to be the appropriate, or default "vehicle" to balance the lawful protection of tenured (and to a lesser extent non tenured) teachers to employment security against the right of the public (and our children) to qualified and competent teachers in the classroom, and therefore to a quality public education.

During revisions to the Teacher Tenure Act in 1995 Representative Cafero (142nd) discussed with the Education Committee some of the underpinnings of the Section151 Process as follows:

"I guess what I am saying is, if in fact we can revise the system wherein it is not as cumbersome and costly, while at the same time protecting due process for a teacher. For a board of education to terminate a teacher for the reasons as stated, even currently in our statute, basically incompetence and inefficiency, then wouldn't that really solve the problems that CBIA mentions with the current law, in that if the problem is ridding the system of incompetent and inefficient teachers, if we could develop a process that on the other hand guarantees due process to those employed, but on the other hand is not a deterrent because of cost and timeliness for a board of ed to take action, then what's the problem with keeping tenure as we know it today?" Education Committee, March 16, 1995, pages 001483, 001484.

A witness before the education committee, David Mulholland, spoke about the intent of having established the Section 151 Process, and the breadth of the ills the process was designed to address, which clearly included discrimination:

"Once a tenure law is triggered into action, the law is so constructed that it provides for fair dismissal procedures. And it allows for a concept that we hold dear in the United States of America, that a person is innocent until proven guilty. And it's quite one thing we're going to say we're going to dismiss you because of these reasons. It's quite another thing to prove them to be truthful and accurate. And certainly we should have that protection under the law."

"Also, if you read the history of the tenure act, it came into effect because teachers years ago were being fired because of their religion, because of their political beliefs and because of other kinds of activities in the community the boards of education did not approve of. And so that's how this came out and the tenure law became effective as it is today." Education Committee, March 16, 1995, page 001474.

Representative Cafero also addressed the point that one of the principal reasons for establishing the Section 151 Process was to control costs and the length of proceedings:

"What I need to hear from you and I know you to some degree you're representing a larger group, but if in fact you have an incompetent or inefficient teacher and there is a process in place whereupon with fairness to that individual, you can conduct a hearing in a very reasonable period of time, at reasonable cost can resolve or dispose of the issue one way or the other and move on only with the life of a board of education, but also for that individual teacher, their life, isn't that what we're after?" Education Committee, March 16, 1995, page 001492.

Senator Sullivan summed up his feelings about the tenure act before the Senate on May 3, 1995 thusly:

"I would like to associate myself with the remarks of the Chairperson of the Education Committee, Senator Freedman and also acknowledge that House and Senate Democrat and Republican alike in that Committee, worked hard to bring this proposal here".

"People simply do not understand when we say the word tenure that what we really say is, fairness and due process. And what this bill does is maintain that fairness and due process and it recognizes that we do need a workable process to protect both the rights of teachers and the prerogatives of school systems and boards of education." Senate Proceedings, May 3, 1995, page 001957.

Representative Cafero talked finally of the need to protect the interests of the children:

"As was said, the subject of teacher tenure and termination has long been one that evokes a range of emotions. And I think the Education Committee, in this bill, has really taken a very tough controversial issue, analyzed it, scrutinized it, made compromises, talked to all sides and come up with a process that is fair and reasonable and frankly, in the best interest of those we care the most about, which is our children." House Proceedings, May 10, 1995, pages 002258,002259.

Clearly the Teacher Tenure Act and the Section 151 Process it establishes is as significant a piece of legislation, and as valued a component of government vis a vis teachers, administrators and children, as the establishment of the CHRO vis a vis the rights of the victims of unlawful discrimination. Absent a definitive statement by the courts as to precisely how to balance the competing interests-legal and public policy-of these two instrumentalities of government under the factual scenario presented by this matter, the public policy component of Cumberland should be utilized in conjunction with existing employment/discrimination law in an evaluation of appropriate preclusion application, so as at least not to render either of these instrumentalities irrelevant in the event discrimination and teacher termination issues should overlap, and to attempt - if possible - to apply both in a logical and consistent manner.

Perhaps fortuitously (at least for the purposes of rendering this decision) employment/discrimination law has developed in such a way that mutual accommodation is actually warranted. There can be no question that the three member impartial panel afforded the Complainant an ample opportunity to meet the Respondent's charges and that the assigned burden of proof was on the Respondent to prove the charges. As previously stated, the Complainant and Respondent (in the person of the Respondent's superintendent of schools) were represented by counsel, the proceedings were judicial in nature and due process was fully afforded. While the Complainant did raise the charge of disparate treatment, the claim was not seriously pursued and the hearings concentrated overwhelmingly on the Complainant's attempting to meet the Respondent's charges "head on". The incidents, which were the foundation for the charges, were not denied. Rather, the Complainant sought to justify her actions. After a full hearing and briefings, the impartial panel rejected the charges predicated on incompetence and insubordination, but found them proven as to "other due and sufficient cause", which cause was predicated primarily on numerous incidents of misconduct. The impartial panel's findings on a number of issues are instructive:

"Sperow's record of disciplinary suspensions, coupled with her May 18, 2000 misconduct toward Student-42 would be sufficient standing alone to justify her termination. In over 20 years as a neutral arbitrator of labor disputes in both the private and public sectors covering a wide range of occupational groups, employers and unions, including past service on 10-151 impartial panels, the panel chair has arbitrated many termination cases, but rarely seen an employee with so many disciplinary suspensions…Given that Sperow's extraordinary history of disciplinary suspensions have been ineffective in convincing her to refrain from misconduct it is clear that further progressive discipline (e.g. suspensions) would have no reasonable prospect of correcting Sperow's behavior."

In addition to these findings by the impartial panel, it also commented on the Respondent's apparent good faith and patience, attributes not commonly attributed to disparate treatment:

"The record is replete with instances of complaints of misconduct against Sperow since 1996 (via unwarranted touching of students in confrontations after inappropriate conduct towards students, failure to comply with directives from her supervisors, misrepresenting the contents of past directives with her supervisors) where the administration merely counseled Sperow and issued what amounted to written reprimands."

Again, on appeal, the superior court upheld the termination effectuated by the impartial panel.

Given the specialized and professional makeup of the Section 151 Process impartial panel, the thoroughness of the proceedings, the clear legislative intent that such panels be the appropriate forum (in conjunction with judicial review) in which to balance the need for fairness and due process for the teacher, against an expeditious and cost contained process for our school districts and the legislatures stated belief that utilization of the Section 10-151 Process is ultimately in the best interest of the children of Connecticut, it is very difficult to envision that the courts would assign to the CHRO the essentially de novo responsibility of determining whether a terminated teacher is entitled to reinstatement - in essence, of determining whether it is in the best interest of the children of Connecticut that said teacher be returned to the classroom, irrespective and in complete disregard of the court ratified findings of impartial education experts (subsequent to a due process judicial hearing) that it is not. That would render the prior administrative and judicial proceedings irrelevant, which is the kind of waste and duplication-not to mention potential inconsistency-that preclusion is intended to curb.

Conversely, it must be acknowledged that since the focus of a Section 151 Process impartial hearing panel is on the best interests of the children, once a teacher is presented to such a panel for termination proceedings, the technical charges against the teacher are preeminent. It may be true, as the Respondent suggests, that upon a clear and convincing showing of improper and discriminatory motive, the panel could find the charges to be pretextual, and dismiss them for having not been levied in good faith. What is more likely, however, is the probability that claims of disparate treatment (other non basis teachers shortcomings being overlooked) would not (and by law could not) prevent the impartial panel from making a finding in favor of termination if the charges against the unfortunate teacher were nonetheless proved, and if the best interests of the children therefore required it.

Hence, given the courts' strong endorsement of the CHRO as the preeminent bulkward against discrimination in Connecticut (Evening Sentinel, supra), it is equally difficult to envision that just because a terminated employee happens to be a public school teacher under the purview of a Section 151 Process proceeding, that each and every claim of discrimination that employee might have, must be presented to an impartial panel, with any further recourse to the Commission (should termination be upheld) forever foreclosed.

If the incentive to litigate a claim differs between the two competing forums, that disparity has been found as a basis for an exception to the application of preclusion doctrines. Isaac v. Truck Service, Inc., 253 Conn. 416 (2000). If the substantive charges against the complainant were well founded, equally well-founded claims of disparate treatment might well (and necessarily) fall on "deaf ears" before a panel whose principal constituency is the school children of Connecticut and whose principal charge is to determine whether a teacher's continued employment (irrespective of disparate treatment) is in the best interests of that constituency.

A related theory can be found in Jeanson v. Lazier, 21 Conn. L. Rptr. 332 (Superior Court Hartford 1998) wherein citing prior Connecticut authority, Judge Teller found exceptions to the preclusion doctrine to be more expansive when in the first instance the subject party was a defendant, therefore allowing the defendant in a prior summary process case to pursue a claim for legal title to realty, even thought such a claim could have been presented as a special defense in the summary process action. The court cited Battista v. DeNegris, 10 Conn. L. Rptr. 453 (Superior Court, Hartford-New Britain at Hartford 1994) wherein Judge Corradino found "…it is fair to say to a plaintiff that if you bring a suite on a claim and force a defendant thereby into court and litigate that claim, we won't allow you to bring another suit against the same party on an aspect of the claim that could have been litigated in the first suit. It is quite another thing to say to a defendant who is forced to litigate not by his own choosing that you must bring any counter claim you could have brought against the plaintiff (in the forum and at the time the latter has chosen) or be forever barred from bringing that claim. That wouldn't be fair…" And perhaps it wouldn't be "fair" to have expected the Complainant to exhaust her disparate treatment claims in a setting where she was in essence a defendant, and before a tribunal that was focused primarily on her competence and alleged insubordination, irrespective of the possible existence of unexplored charges of a similar nature that might have been warranted against others.

4. Findings.

This case should be evaluated as a "disparate treatment" case, which is a case where the Complainant claims he or she has been treated differently than others. Teamsters v. United States, 431, U.S. 324 (1977). That is certainly the scenario the Complainant alluded to in her complaint, and emphasized in her amendment. Under a disparate treatment analysis there are essentially two methods to allocate the burden of proof.

A Complainant can establish a prima facie case of disparate treatment (discrimination) through mere inference, by presenting facts sufficient to create an inference of discrimination through proving four qualifying elements by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Given the allegations in the Complainant's complaint (as amended) and the presumptions to which she is entitled on a motion to dismiss, this burden has been satisfied. The burden then would shift to the Respondent to produce and articulate (the ultimate burden of proof remaining with the Complainant) a legitimate non-discriminatory reason for the employment action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The complainant then has an opportunity to prevail by proving by a preponderance of the evidence that the proffered reason was pretextual. Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192 (1991). While the complaint, as amended (and given the generous presumptions a motion to dismiss would require), might cast some doubt on the Complainant's selection by certain school administrators as a candidate for discipline (there being others perhaps more deserving), there is nothing alleged to seriously call into question the judicially approved termination of the Complainant for "good cause shown". As such the judicial and administrative doings of the Respondent's impartial panel and board, as upheld by the superior court, must preclude as a matter of law a finding that the Respondent's reasons for terminating the complainant were solely pretextual, inasmuch as good cause has been judicially established, at the very least as a sufficient cause (even if not necessarily the only cause) for termination. As such the Complainant's and the Commission's claim cannot survive this motion under a McDonnell Douglas analysis, and under such an analysis this matter should be dismissed.

However, a second avenue remains under which a complainant can establish a disparate treatment case, that being by mixed motive analysis, as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Such a scenario puts a greater initial burden on the complainant, who must prove by direct evidence that an impermissible factor played a "motivating" or "substantial" role in the employment decision. Id at 258. Circumstantial evidence was first acknowledged to be allowed as an alternative to direct evidence in this analysis in Tyler v. Bethlehem Steel Corp., 958 F 2d. 1176 (2nd Cir. 1992) and was acknowledged by the Connecticut Supreme Court in Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96 (1996). Given the generous presumptions a motion to dismiss must allow, this decision will presume that the Complainant and Commission have sufficient evidence to meet a mixed motive burden.

Under Price Waterhouse the Respondent may then avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the impermissible factor into account. Again, the Respondent's court approved termination of the Complainant for "good cause shown" must preclude any further litigation on the question of whether the termination would have been effectuated but for the presence of an impermissible motive on the part of the Respondent. The Respondent's substantive charges against the Complainant were fully engaged by the Complainant. She sought essentially to justify her conduct, not deny it. The impartial panel's recommendation was clearly based on the substantive merits. But for the enactment of the Civil Rights Act of 1991, this matter would warrant dismissal under the mixed motive analysis as well, which would in turn warrant the granting of the Respondent's motion to dismiss in it's entirety.

However, the Civil Rights Act of 1991 was enacted in part to soften the effects of the Price Waterhouse analysis. Under the amendment, in a mixed motive case, an unlawful employment practice can by established if the complainant can establish that an impermissible factor was a motivating factor in an employment decision, even though other (presumably legitimate factors) also motivated the decision. 42 U.S.C. § 2000e-2(m). The employer may then, however, limit the employee's remedy to declaratory relief, injunctive relief, and or attorney's fees if it can nonetheless show that it would have taken the subject action in the absence of the impermissible consideration 42 U.S.C. § 2000e-5(a)(b). The 1991 amendment provides a limited remedy once a complainant has established that an impermissible factor played a "motivating" role in the employment decision Tyler v. Bethlehem Steel Corp., supra 958 F. 2d 1181. Under the 1991 Act, even though preclusion prevents the Complainant from contesting that the impartial hearing panel and the Respondent's board did not have established legitimate reasons for terminating the Complainant, the Complainant may still prevail, and be entitled to limited relief, if an illegitimate reason can be established as well. Certainly Sperow believed such an impermissible reason played a role in her termination. To this extent, the Complainant's claim should survive a motion to dismiss, inasmuch as she has articulated (particularly in her amended complaint), that she was the victim of unlawful disparate treatment in her having been wrongfully singled out for insubordination, and ultimately for termination.

Critical then is the applicability of the 1991 Act to Sperow's claims. Her CFEPA state claims (Section 46a-60(a)(1) of the General Statutes) remain governed by Price Waterhouse, and the 1991 Act has been found inapplicable to them. Levy v. Commission on Human Rights and Opportunities, supra 236 Conn. 107. The Complainant's ADEA claims also remain governed by Price Waterhouse, as the 1991 Act has likewise been found inapplicable to them. Lewis v. Young Men's Christian Association, 208 F. 3d 1303 (11th Cir. 2000). The Complainant's claims under Title Vll of the Civil Rights Act of 1964 do, however, receive the benefits of the Civil Rights Act of 1991.

5. Ruling

As to the Complainant's termination claims under General Statutes § 46a-60(a)(1) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-634 (20 or more employees), the Respondent's Motion to Dismiss is GRANTED and these claims are DISMISSED.

The Respondent's Motion to Dismiss the Complainant's claims under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. 2000e and the Civil Rights Act of 1991 (15 or more employees) and Section 46a-58(a) of the General Statutes is herewith DENIED.

It is so ordered this 1st day of December 2005.
J. Allen Kerr, Jr.
Presiding HRR

Joyce Sperow
Attorney Mark J. Sommaruga
Attorney Joseph P. Secola
Attorney Alix Simonetti