City of Groton v. Commission on Human Rights & Opportunities

MacDonald, J.

These two appeals from a judgment rendered by the Superior Court sustaining appeals by Pioneer Hose Company No. 1, hereinafter Pioneer, and the city of Groton, hereinafter Groton, from an order of the Commission on Human Rights and Opportunities, hereinafter commission, have been ordered consolidated upon motion of the parties. The basic facts are not in dispute and, together with the relevant procedural background, have been fully set forth in the memorandum of decision filed by the trial court and in the statement of facts and finding filed by the commission.

The appeals arise from a complaint dated January 9, 1968, filed by Charles M. Richardson, hereinafter Richardson, with the commission against Pioneer alleging an act of discrimination in that Pioneer denied Richardson membership in the volunteer fire company because of his race in violation of General Statutes § 31-126. A hearing tribunal appointed by the commission held a hearing commencing on September 18, 1968, and continuing on various days thereafter until terminated on December 10, 1968. The commission rendered its finding on May 13, 1969, and included in the facts which it found were the following: Pioneer is one of two organized volunteer fire companies in Groton. On October 11, 1967, Richardson, a resident of Groton, personally appeared at Pioneer’s meeting room where he applied for and submitted an application for membership. The application form provided a space for the signature of the applicant’s sponsor and when Richardson was advised by Donald S. Rollins, the foreman of Pioneer, that he needed a sponsor, Richardson asked if he might have a relative who was a fireman or member of the Mystic Fire Department sign as his sponsor. Richardson was advised that he could not since only a member of Pioneer could act as a sponsor. Nevertheless, Richardson submitted his application without a sponsor’s signature and the application was accepted by Rollins. During that portion of the regular meeting of Pioneer when applications for new members were submitted, Richardson’s application for membership was not read, as was customary. Instead, the membership was asked if anyone would sign his application, and upon receiving no response, the secretary was directed to return the application to Richardson, who was notified by certified letter, dated October 17, 1967, that his application was not valid in that it lacked a sponsor’s signature as required by the bylaws of the organization. In fact, the official bylaws contained no provision pertaining to any requirement for a sponsor’s signature on an application for membership; however, for a long time prior to Richardson’s application, the organization had customarily required a sponsor’s signature as a prerequisite for membership. The application contained no inquiry concerning the applicant’s competency or experience as a firefighter. Richardson was black, and there were no black members of Pioneer at the time Richardson made application, nor did it appear that there ever had been any black members of Pioneer.

On January 9, 1968, Richardson executed a complaint under oath and personally delivered it to a representative and investigator of the commission. The commission’s representative did not actually bring the complaint to the commission’s office until the next morning, January 10,1968, ninety-one days after the meeting of October 11, 1967. That complaint was amended on April 24, 1968, joining Groton as a party, in addition to adding to the complaint a specific claim of a violation of § 58-34 as to both Pioneer and Groton. On September 18,1968, and September 24, 1968, the complaint to the commission was again amended, the net effect of the amendments being to allege that Pioneer was an official or quasi-official agency of Groton, and to specify that Richardson was alleging discrimination under subsection (a) of § 31-126.

The hearing tribunal was of the opinion that the original complaint dated January 9,. 1968, and as amended on April 24, 1968, adding Groton as a party, was duly filed within the ninety-day filing limitation as then provided by § 31-127 and further, that Pioneer, while assisting Groton’s regularly constituted fire department in its fire fighting functions, was performing an essential governmental function, and, therefore, was an agent of Groton assisting it in carrying out its statutory duty of providing fire protection to its citizens. The tribunal finally concluded that the procedure of requiring an applicant to obtain a sponsor exclusively from among its own membership discriminated against blacks and other members of minority groups. On these bases the commission found that Pioneer and Groton violated General Statutes §§ 31-126 (a) and 53-34, as amended, and issued a cease and desist order as set forth in the footnote.^{1 2}

The hearing tribunal did not conclude that Richardson was, in fact, excluded from membership because of his race; nor was there presented to the tribunal any direct evidence of discrimination because of race. Richardson stated in his complaint dated January 9, 1968, that he believed his application for membership was not considered and accepted because of his race. However, he had earlier stated on October 19, 1967, that “it appears that I was turned down as a result of a lack of knowledge of the company’s membership.” In view of the finding and orders issued, it appears evident that the tribunal had abandoned its original claim that Richardson himself was denied membership because of his race and had substituted the broader claim of discrimination based on the procedures used by Pioneer in admitting new members, although proceeding in the context of the original Richardson complaint.

The plaintiffs appealed the tribunal’s ruling to the Superior Court, which concluded that the commission was without jurisdiction to issue the cease and desist order against either plaintiff. The principal bases for this conclusion were the court’s findings that the complaint to the commission, originally and as amended prior to the hearing, was defective in failing to refer to the specific subsection of General Statutes § 31-126 claimed to have been violated, and further that the complaint had not been filed within ninety days of the alleged act of discrimination, as required by then § 31-127. The court found the act of discrimination to be Pioneer’s refusal to accept Richardson’s application on October 11, 1967, and the filing date to be ninety-one days later, January. 10, 1968, the date the complaint, entered the offices of the commission. The court never discussed the substantive issues involved beyond the observation that no direct evidence of racial discrimination was presented to the hearing tribunal. The parties have assigned error in the conclusions of the court, but we are constrained to deal with those issues which we find to have been raised within the context of this appeal.

Before the trial court and in this appeal the plaintiffs raised the issue, rejected by the tribunal, that the hearing should have terminated upon the death of Richardson. The appendices to Pioneer’s brief and the commission’s brief present an additional factual background which requires discussion. During the pendency of the hearing before the tribunal, on October 1, 1968, Richardson died, and the attorney general requested an appropriate postponement of the proceedings in a letter to Arthur L. Green, then director of the commission. In a further correspondence, dated October 15, 1968, assistant attorney general Robert L. Hirtle, Jr., who was then serving as attorney for the commission prosecuting the Richardson complaint, recommended the following to director Green: “Because of the unfortunate circumstances which have occurred, I am requesting that the Commission on Unman Rights and Opportunities terminate the hearing now pending on the Richardson complaint as an unfair employment practice. However, I am also recommending that the hearing continue before the same tribunal as an investigation under Section 31-125 of the General Statutes, into the broader public issues raised in this matter. These issues are first; whether the Pioneer Hose Co. No. 1, Inc., of Groton is a public or quasi-public agency of the City of Groton and second; whether the by-laws of this volunteer fire company provide a procedure for discrimination against a Negro applicant for membership in violation of basic constitutional guarantees.” Director Green rejected Attorney Hirtle’s recommendation on October 17, 1968, in a letter addressed to the attorney general, the relevant portions of which are printed in the footnote.³

The plaintiffs moved to dismiss the proceedings on November 25, 1968, when the hearing was resumed, because of Richardson’s death. The tribunal denied the motions and the hearing proceeded to a final disposition. The plaintiffs included this as a ground for their appeal to the Superior Court and Pioneer has discussed the issue in its brief. The court concluded that “[a]lthough the complainant’s right to personal relief did not survive, the public’s interest and right to relief would not be extinguished by the death of a complainant under a valid proceeding.” We cannot agree with the court in this conclusion.

Chapter 563 of the General Statutes (Sup. 1969), §§ 31-122 to 31-128, entitled Pair Employment Practices, delineates the power granted to the commission and the manner in which that power may be invoked. Specifically, under § 31-125 (e) the commission is granted the power “to receive, initiate, investigate and mediate complaints of unfair employment practices.” The relevant statutes and the related regulations delineate the trifurcated manner of invoking the commission’s remedial powers as follows: (1) “Any person claiming to be aggrieved by an alleged unfair employment practice may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath.” § 31-127; (2) “The commission, whenever it has reason to believe that any person has been engaged or is engaged in an unfair employment practice, may issue a complaint.” Ibid. (3) “Any employer whose employees, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the commission a written complaint under oath asking for assistance by conciliation or other remedial action.” Ibid. See Regs., Conn. State Agencies (Civil Rights Commission—Pair Employment Practices Act—Procedure) § 31-125-3.

Procedures (1) and (2) may apply to similar situations, that is, where an unfair employment practice is claimed to exist, the commission or a person claiming to be aggrieved by that practice may file a complaint to review that practice. In the present case review was sought by means of procedure (1), on the personal complaint of Richardson. The relief that could be afforded, however, is dictated by the limits of the complaint. Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 334 A.2d 443. In Veeder-Boot the complainant claimed to be a person aggrieved by a practice of her employer which, she alleged, constituted discrimination against her on the basis of sex. The hearing tribunal, appointed to conduct a hearing on the complaint, issued an order directing Veeder-Root to cease and desist from department-wide sex discrimination. The state referee appointed to hear Veeder-Root’s appeal from the hearing tribunal’s order modified that part of the order to grant relief only to the individual complainant and not to the entire department in which the complainant was employed. In affirming⁴ this action by the referee we stated (p. 327): “The plaintiff claims that the order went beyond the scope of the pleadings, and in this we must agree. As stated by the referee, ‘the clear import of the complaint was that . . . [Hilda Moe], as one of the women in the department, was, without any bona fide occupational' qualification or need, being discriminated against in compensation because of her sex. . . . The complaint could not properly be construed as an attempt to represent, or speak for, the other women in the department as a class.’ ”

Continuing with a discussion of procedural problems in Veeder-Root similar to those involved here, we stated (p. 328): “Furthermore, in its answer the plaintiff denied ‘any violation of Section 31-126, subsection (a), of Chapter 563 of the General Statutes of Connecticut as amended with respect to Complainant Hilda G. Moe [emphasis added].’ The issue was thus framed by the pleadings — was there any sex discrimination in department 99 in the plaintiff’s plant directed against Hilda Moe? As the hearing progressed and it became apparent that sex discrimination existed in department 99 on a department-wide basis, the statute, § 31-127, provided the means whereby the commission could have either amended the complaint to include an attach on the department-wide discrimination or issued a new complaint in the name of the commission containing such an allegation. Had the commission taken either of these actions there would have been no question of the issues that were being litigated as involving department-wide discrimination and of the scope of the order that the commission might issue. Instead, no amendment or new complaint was issued with the result that the commission and the plaintiff are now at odds about what issues were actually litigated and about the legality of the commission’s order.” (Emphasis added.)

In language peculiarly applicable to the case before us, we concluded in Veeder-Root (p. 329): “Section 31-127 clearly provides that the respondent appear before the hearing tribunal in order ‘to answer the charges of . . . [the] complaint.’ This means that the charges in the complaint frame the issues to be decided by the hearing tribunal. Since the individual complaint of Hilda Moe, fairly read, did not provide the respondent, the plaintiff, with notice of the scope of the action and since the commission, wider % 31-127 of the General Statutes, was empowered to issue a new complaint attaching department-wide sex discrimination which would have apprised the plaintiff of the scope of the action, we conclude that the plaintiff was justified in its belief that the commission’s attack was directed solely at sex discrimination as applied only to Hilda Moe. It was, therefore, improper for the commission to issue an order requiring the plaintiff to cease and desist from department-wide discrimination.” (Emphasis added.)

Upon Richardson’s death the commission could have amended the complaint as it was empowered to do under §§ 31-125 and 31-127. Instead, it chose to ignore the advice of the assistant attorney general previously quoted and proceeded to seek an order of general applicability upon the personal complaint of Richardson, then deceased. Authority to make reasonable amendments to a complaint, even during, the hearing, is granted under § 31-127 of the General Statutes and § 31-125-9 of the regulations. The commission clearly is empowered by statute to prosecute complaints on issues of public interest but it must strictly comply with the governing statutes and the regulations it has caused to be issued.

If the commission prosecutes an alleged unfair employment practice upon the complaint of an individual without initiating its own, separate complaint, and absent a proper amendment authorizing broader relief, the tribunal may fashion a remedy only within the confines of the complaint and afford relief only to the individual complainant. Upon the death of an individual complainant the tribunal is rendered powerless to issue an award in conformity with the decedent’s personal complaint. Since the commission failed to amend the complaint to substitute itself as complainant seeking relief in the interest of the general public, it was error for the tribunal to deny the plaintiffs’ timely motions to dismiss. Despite the fact that this precise issue was not specifically assigned as error, this court may consider the question of lack of jurisdiction, whether or not it is raised by the parties; it cannot be waived by silence of the parties or by the failure to raise the issue in the trial court. Simmons v. State, 160 Conn. 492, 503, 280 A.2d 351; Sheridan v. Planning Board, 159 Conn. 1, 10, 266 A.2d 396; Tellier v. Zarnowski, 157 Conn. 370, 373, 254 A.2d 568; Gannon v. Sanders, 157 Conn. 1, 6, 244 A.2d 397. The court was correct in its judgment sustaining the appeal of the plaintiffs. We need not be concerned with the validity of the court’s theory in support of that judgment; since the judgment is correct it must stand. Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683; Hoffman v. Kelly, 138 Conn. 614, 617, 88 A.2d 382.

There is no error.

In this opinion House, C. J., and Loiselue, J., concurred.

1 Section 31-127 has since been amended to provide one hundred and eighty days in which to file such complaints.

2 “1. Pioneer Hose Company No. 1, Inc., the respondent herein, . . . [shall] cease and desist from the use of such membership procedures as require applicants for active membership in a volunteer fire company to provide a sponsor exclusively from within its own membership and any other procedures which effectively prevent membership in their organization solely because of race, creed or color.

“2. The city of Groton, Connecticut, the respondent herein, . . . [shall] cease and desist from furnishing any aid or comfort of whatever nature to the Pioneer Hose Company No. 1, Inc., as long as they shall continue to employ such membership procedures as require applicants for active membership in a volunteer fire company to provide a sponsor exclusively from within its own membership and any other procedures which effectively prevent membership in their organization solely because of race, creed or color.”

3 Relevant portions of director Green's letter of October 17, 1968, to the attorney general: “I think it is unfortunate that the contents of . . . your letter [of October 15, 1968] were carried in the press, since in a discussion of recent date between Mr. Hirtle, Mr. Orenstein and me it was decided that the suggestion by Mr. Hirtle of continuing the Pioneer Hose matter in an altered investigatory form was to be taken up by me with our Commissioners. At a meeting of our Enforcement Committee on Wednesday, October 9, 1968, the Committee was unanimous and adamant in the conclusion that the Sichardson hearing should contimie in its present form, seehing a binding order from the tribunal. The Committee was particularly concerned that altering the proceedings in the form suggested by Mr. Hirtle would result, at best, in this Commission's furnishing recommendations to the city of Groton which have already been rejected.

“At a meeting of the full Commission on October 16, 1968 the entire Commission was similarly unanimous in the resolve to carry the Richardson hearing to a conclusion in its present form.

“The Commission intends to continue under those sections of the law which can lead to a binding order by the tribunal rather than a general investigation of broad issues. While the order sought might, before Mr. Richardson’s death, have been that the city and fire company cease and desist from refusing membership specifically to him because of his color, the order to be sought from this point should be that the city and fire company cease and desist from any requirement for a prior recommendation from a member of the company, each and every one of whom is white, and the subjection of an applicant to a blackball system when dealing with persons seeking membership in a publicly financed fire company. The legal bases, as stated in the original complaint, are that such practice violates either or both of the Connecticut Pair Employment Practices Law and Section 53-34 of the General Statutes concerning the denial of constitutionally protected rights.” (Emphasis added.)

4 Error was found on. other grounds.