Duhaney v. Birk, Ruling re: Respondent's Motion to Dismiss

OPH/WBR No. 2005-014

Damion L. Duhaney, Complainant

v.

Birk Manufacturing, Inc., Respondent

January 12, 2006

Ruling re: the respondent's motion to dismiss

By motion filed December 28, 2005, the respondent moved to dismiss the complaint. The gravamen of the motion is that the complainant (1) failed to pursue his allegations with the auditor and the attorney general prior to filing his complaint with the chief human rights referee and (2) failed to provide all the information requested in the complaint form. However, transmitting the information to the auditors and contacting the attorney general are no longer prerequisites to the filing of a complaint with the chief human rights referee. P. A. 05-287, § 47. Also, a complaint shall not be deemed defective solely because it is incomplete. Regs., Conn. State Agencies § 4-61dd-4(b). The complainant must first be given the opportunity to cure the defect by amending the complaint. Id., Regs., Conn. State Agencies § 4-61dd-9(b).

However, the complaint is nevertheless dismissed. The complainant failed to appear at the initial conference and provided no explanation for his absence that would constitute good cause. Regs., Conn. State Agencies § 4-61dd-15(c). In addition, it appears that the complaint is untimely and barred by the statute of limitations. A complaint must be filed with the chief human rights referee not later than thirty days after the complainant is retaliated against or threatened with retaliation. P. A. 05-287, § 47(b)(3)(A). According to the complaint, the complainant was retaliated against (terminated) on November 11, 2005. However, the complaint was not filed with the chief human rights referee until December 16, 2005, more than thirty days after the respondent terminated the complainant's employment.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. Damion L. Duhaney
Howard Birk
Norman Birk
Robert Noonan, Esq.