Sokolovsky v. Mulholland

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MATVEY SOKOLOVSKY v. WILLIAM
MULHOLLAND ET AL.
(AC 43937)
Moll, Clark and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for alleged
discriminatory conduct. The plaintiff filed a discrimination complaint
with the Commission on Human Rights and Opportunities alleging that
the defendant town of East Lyme discriminated against him on the basis
of national origin by denying him equal services and by treating him
differently than his neighbors. The commission issued a release of juris-
diction, concluding that the evidence was insufficient to warrant further
investigation. The Superior Court granted the plaintiff’s application for
a waiver of fees, and the plaintiff subsequently served the defendants
with a summons and complaint. The defendants filed a motion to dismiss
the complaint on the ground that the court lacked subject matter jurisdic-
tion pursuant to statute (§ 46a-101), because the plaintiff commenced
the action more than ninety days after he received the release of jurisdic-
tion. The trial court granted the motion to dismiss, concluding that the
time limitation in § 46a-101 was subject matter jurisdictional and not
subject to equitable tolling. The court determined that, although the
plaintiff had filed an application for a waiver of fees, the plaintiff’s
complaint was commenced, by service of the summons and complaint,
beyond the ninety day limitation period. The court also concluded that
the plaintiff improperly failed to plead the continuing course of conduct
doctrine in his complaint in order for it to consider its affect on the
limitation period. On the plaintiff’s appeal to this court, held:
1. The trial court erred in concluding that the ninety day limitation period
for commencing an action pursuant to the applicable statute (§ 46a-100)
was subject matter jurisdictional: neither the language of § 46a-101 nor
its legislative history revealed any indication that the legislature intended
the time limitation of that statute to be jurisdictional, the geneaology
of our antidiscrimination laws suggested an ongoing legislative intent to
expand a complainant’s right to seek a remedy for acts of discrimination,
these factors underscored the remedial nature of the statutory scheme
and weighed against a conclusion that the legislature intended to make
the time limitation in § 46a-101 jurisdictional, and this court located
support for its conclusion that the time limitation in § 46a-101 was
mandatory and, thus, subject to waiver and equitable tolling, from state
and federal case law.
2. The plaintiff could not prevail on his claim that the trial court improperly
dismissed his action, which was based on his claim that the court erred
by not considering the action commenced on the date that he filed his
application for a waiver of fees: pursuant to §§ 46a-100 and 46a-101, the
plaintiff had ninety days from the date that he received the release of
jurisdiction to commence an action in the Superior Court, and, although
the plaintiff filed an application for a waiver of fees, he did not serve
the summons and complaint on the defendants until after the statutory
limitation period had expired; moreover, the plaintiff did not provide
any support for the proposition that the filing of an application for a
waiver of fees tolled the limitation period while the application remained
pending, and, even if his application did toll the deadline until the date
that the court granted the application, the plaintiff’s action would still
have been untimely filed.
3. The trial court erred in concluding that the plaintiff was required to plead
the continuing course of conduct doctrine in his complaint; this court
found nothing in the applicable rule of practice (§ 10-57) that suggested,
much less required, that the continuing course of conduct doctrine must
be pleaded in the complaint, no special defense raising a limitations
defense was filed by the defendants to which the plaintiff could have
replied, the defendants raised the ninety day limitation period for the
first time in their motion to dismiss, and the plaintiff raised the continu-
ing course of conduct doctrine in his opposition to that motion.
Argued October 13, 2021—officially released June 7, 2022
Procedural History
Action for, inter alia, the defendants’ alleged discrimi-
nation, and for other relief, brought to the Superior
Court in the judicial district of New London, where
the court, Knox, J., granted the defendants’ motion to
dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Reversed; further
proceedings.
Matvey Sokolovsky, self-represented, the appellant
(plaintiff).
Ryan J. McKone, for the appellees (defendants).
Michael E. Roberts and Kimberly A. Jacobsen, human
rights attorneys, filed a brief on behalf of the Commis-
sion on Human Rights and Opportunities as amicus
curiae.
Opinion
CLARK, J. The self-represented plaintiff, Matvey
Sokolovsky, appeals from the judgment of the trial court
granting a motion to dismiss filed by the defendants,
the town of East Lyme; William Mulholland, zoning
official; and Mark C. Nickerson, first selectman.
Although the plaintiff’s claims on appeal are not a model
of clarity, he appears to argue that the court erred by
concluding that (1) the ninety day time limitation set
forth in General Statutes § 46a-101 (e)1 for commencing
an action in Superior Court pursuant to General Statutes
§ 46a-1002 is subject matter jurisdictional, (2) his appli-
cation for a waiver of fees did not commence the action,
and (3) he was required to specially plead the continuing
course of conduct doctrine in his complaint in order
for the court to consider its effect on the limitation
period. We conclude that the time limitation in § 46a-
101 (e) is not subject matter jurisdictional but, rather,
is mandatory and subject to consent, waiver, and equita-
ble tolling. As a result, we reverse the judgment of
the court and remand the case for further proceedings
consistent with this opinion.
We begin by setting forth the relevant facts, as found
by the trial court, in addition to the procedural history
in this case. On September 20, 2017, the plaintiff filed
a discrimination complaint with the Commission on
Human Rights and Opportunities (commission) alleging
that the town of East Lyme had discriminated against
him on the basis of national origin by denying him equal
services. On November 6, 2018, the commission issued
a release of jurisdiction to the plaintiff, concluding that
the evidence presented to it was insufficient to warrant
further investigation. The release of jurisdiction stated:
‘‘The [c]omplainant must bring an action in Superior
Court within [ninety] days of receipt of this release and
within two years of the date of filing the complaint
with the [c]ommission unless circumstances tolling the
statute of limitations are present.’’
On January 31, 2019, the plaintiff filed an application
for a waiver of fees with the Superior Court, which was
granted on February 4, 2019. The defendants subse-
quently were served with a writ of summons and com-
plaint on February 22, 2019, which was returned to the
court on February 26, 2019.
On July 10, 2019, the defendants filed a motion to
dismiss arguing that the court lacked subject matter
jurisdiction pursuant to § 46a-101 (e) because the plain-
tiff had commenced the action more than ninety days
after he had received the release of jurisdiction, also
commonly known as a right to sue letter, from the
commission. Before the court had rendered a decision,
the commission filed an application requesting permis-
sion to file an amicus curiae brief addressing the ques-
tion of whether the ninety day filing requirement in
§ 46a-101 (e) is subject matter jurisdictional. The court
granted the application on November 7, 2019. In its
brief, the commission argued that the ninety day time
limitation should be interpreted as a mandatory, rather
than a jurisdictional, time limitation.3 The defendants
filed a reply brief arguing that the court need not
address the jurisdictional issue because there was no
dispute as to the mandatory nature of § 46a-101 (e).
The court heard oral argument on the motion to dismiss
on December 16, 2019, and issued its decision on Janu-
ary 15, 2020.
In its memorandum of decision, the court noted that
the complaint was written in narrative form and that
it had considered carefully the statements contained
therein. The court observed that the plaintiff was claim-
ing that the defendants were treating him in a discrimi-
natory manner by treating him differently than his
neighbors. The court explained: ‘‘First, the plaintiff
alleges that, in 2017, the defendants failed to investigate
the plaintiff’s complaint against his neighbors for mov-
ing their shed closer to his property, which he believes
does not comply with the town of East Lyme’s zoning
ordinances. Second, the plaintiff alleges that in May of
2017, Zoning Official William Mulholland, sent him a
letter regarding a complaint made by the plaintiff’s
neighbors about multiple unregistered vehicles on his
property in violation of the town of East Lyme’s zoning
ordinances. . . . Specifically, the plaintiff alleges that
he believes he was ‘held to a higher standard than [his]
neighbors’ and that the ‘neighbors [were] allowed to
violate zoning rules despite clear evidence of their viola-
tion.’ ’’ (Footnote omitted.)
The court then addressed the defendants’ motion to
dismiss. The court explained that there was a split of
authority on the issue of whether the time limitation
in § 46a-101 (e) is subject matter jurisdictional or man-
datory and subject to equitable tolling. It noted, how-
ever, that the ‘‘majority of Superior Courts recognize
that a plaintiff’s failure to comply with the time limita-
tion in § 46a-101 (e) deprives the court of subject matter
jurisdiction.’’ After discussing this apparent split of
authority, the court ‘‘adopt[ed] the prevailing position
among the Superior Courts and conclude[d] that the
plaintiff’s failure to meet the time limitation’’ of the
statute required dismissal of the action.
The court went on to find that the plaintiff received
the release of jurisdiction from the commission on
November 6, 2018, but did not serve the defendants
with a writ of summons and complaint until February
22, 2019. The court explained that, although the plaintiff
had filed an application for a waiver of fees on January
31, 2019, it is well established that an action is com-
menced when the writ of summons and complaint have
been served on the defendant. Accordingly, the court
concluded that the plaintiff’s complaint was com-
menced beyond the ninety day time limitation set forth
in § 46a-101 (e).
Notwithstanding its determination that the time limi-
tation in § 46a-101 (e) was subject matter jurisdictional
and that the plaintiff’s action had been untimely com-
menced, the court also addressed the plaintiff’s argu-
ment that the continuing course of conduct doctrine
tolled the limitation period. The court concluded that
the continuing course of conduct doctrine must be
pleaded in avoidance of the statute of limitations and
that the plaintiff had ‘‘failed to plead the continuing
course of conduct doctrine in his complaint.’’ The court
ultimately dismissed the plaintiff’s complaint for lack
of subject matter jurisdiction. This appeal followed.
I
We first address whether the ninety day time limita-
tion of § 46a-101 (e) is subject matter jurisdictional.
Several factors convince us that the ninety day time
limitation for commencing an action in Superior Court
pursuant to § 46a-100 is mandatory and not jurisdic-
tional.
We begin by setting forth our standard of review.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it.’’ (Internal quotation
marks omitted.) Peters v. Dept. of Social Services, 273
Conn. 434, 441, 870 A.2d 448 (2005). ‘‘A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record. . . . Our review of a trial court’s ruling on a
motion to dismiss is de novo and we indulge every
presumption favoring jurisdiction.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Sempey v. Stamford Hospital, 180 Conn. App. 605, 612,
184 A.3d 761 (2018).
We next turn to the legal principles that underlie the
plaintiff’s claim. In Williams v. Commission on Human
Rights & Opportunities, 257 Conn. 258, 259–60, 777
A.2d 645 (2001), our Supreme Court considered whether
the statutory 180 day period set forth in General Statutes
(Rev. to 2001) § 46a-82 (e), now codified at General
Statutes § 46a-82 (f), for filing a discrimination com-
plaint with the commission was subject matter jurisdic-
tional. The court held that, although mandatory, ‘‘the
180 day time requirement for filing a discrimination
petition pursuant to § 46a-82 (e) is not jurisdictional
but, rather, is subject to waiver and equitable tolling.’’
Id., 264. In so doing, the court explained that ‘‘[a] conclu-
sion that a time limit is subject matter jurisdictional
has very serious and final consequences. It means that,
except in very rare circumstances . . . a subject mat-
ter jurisdictional defect may not be waived . . . [and]
may be raised at any time, even on appeal . . . and
that subject matter jurisdiction, if lacking, may not be
conferred by the parties, explicitly or implicitly. . . .
Therefore, we have stated many times that there is a
presumption in favor of subject matter jurisdiction, and
we require a strong showing of legislative intent that
such a time limit is jurisdictional.’’ (Citations omitted.)
Id., 266.
The court also recognized that it previously had
applied inconsistent approaches in determining
whether a time limitation is jurisdictional. Id., 267. ‘‘In
[some] cases, the court, in discerning the intent of the
legislature, at times [has] equated the intent of the legis-
lature to create a mandatory limitation with the intent
to create a subject matter jurisdictional limit.’’ (Empha-
sis in original.) Id., 268. In other cases, the court ‘‘implic-
itly [has held] that a conclusion that a time limit is
mandatory does not necessarily mean that it is also
subject matter jurisdictional, because the notions of
waiver and consent are fundamentally inconsistent with
the notion of subject matter jurisdiction.’’ Id., 269. The
court then went on to clarify the difference between
mandatory and jurisdictional time limitations and
explained the analysis to be undertaken when deciding
whether a time limitation is jurisdictional. Id., 269–70.
The court stated: ‘‘Although we acknowledge that man-
datory language may be an indication that the legisla-
ture intended a time requirement to be jurisdictional,
such language alone does not overcome the strong pre-
sumption of jurisdiction, nor does such language alone
prove strong legislative intent to create a jurisdictional
bar. In the absence of such a showing, mandatory time
limitations must be complied with absent an equitable
reason for excusing compliance, including waiver or
consent by the parties. Such time limitations do not,
however, implicate the subject matter jurisdiction of
the agency or the court.’’ Id.
Although Williams dealt only with the time limit for
filing a complaint of discrimination with the commis-
sion, the plaintiff and the amicus curiae argue that Wil-
liams is pertinent to our analysis of whether § 46a-101
(e) is subject matter jurisdictional.4 They argue that the
decisions in which our Superior Courts have concluded
that § 46a-101 (e) is jurisdictional did not consider or
discuss the Williams decision in their consideration of
the issue. We are persuaded that Williams provides the
relevant framework for our analysis, keeping in mind
that, ‘‘[i]n light of the strong presumption in favor of
jurisdiction, we require a strong showing of a legislative
intent to create a time limitation that, in the event of
noncompliance, acts as a subject matter jurisdictional
bar.’’ (Internal quotation marks omitted.) Id., 269.
As noted in Williams, the question of whether a time
limitation implicates a court’s subject matter jurisdic-
tion is a question of statutory interpretation. We there-
fore begin our analysis with the language of the statute
itself. See General Statutes § 1-2z;5 see also Hartford v.
Hartford Municipal Employees Assn., 259 Conn. 251,
263, 788 A.2d 60 (2002) (‘‘[a]s with any issue of statutory
interpretation, our initial guide is the language of the
statute itself’’ (internal quotation marks omitted)). Sec-
tion 46a-101 (e) provides: ‘‘Any action brought by the
complainant in accordance with section 46a-100 shall
be brought not later than ninety days after the date
of the receipt of the release from the commission.’’
Although the word ‘‘shall’’ reflects the legislature’s
intent to require a complainant to commence an action
within the time limitation set forth in the statute, the
word ‘‘shall’’ is not by itself clear evidence that the
legislature intended the time limitation to be jurisdic-
tional rather than mandatory. See Commission on
Human Rights & Opportunities v. Savin Rock Condo-
minium Assn., Inc., 273 Conn. 373, 380, 870 A.2d 457(2005) (‘‘[w]e concluded in Williams that a determina-
tion that a time limit is mandatory does not necessarily
mean that it also is subject matter jurisdictional’’).
Although ‘‘mandatory language may be an indication
that the legislature intended a time requirement to be
jurisdictional, such language alone does not overcome
the strong presumption of jurisdiction, nor does such
language alone prove strong legislative intent to create a
jurisdictional bar.’’ Williams v. Commission on Human
Rights & Opportunities, supra, 257 Conn. 269–70.
As a result, we must look to other sources to deter-
mine the legislature’s intent. See Commissioner of Men-
tal Health & Addiction Services v. Saeedi, 143 Conn.
App. 839, 850, 71 A.3d 619 (2013) (‘‘Our inquiry, how-
ever, does not end with the text of [the statute]. We
also have carefully reviewed the legislative history
. . . .’’). First, our review of the legislative history of
§ 46a-101 (e) reveals no indication that the legislature
intended the time limitation of that statute to be jurisdic-
tional. The only discussion of jurisdiction in the legisla-
tive history pertained to the question of whether the
commission would retain jurisdiction over a complaint
after it granted a release, not whether the deadline for
commencing an action in the Superior Court is jurisdic-
tional. See 34 H.R. Proc., Pt. 23, 1991 Sess., p. 8926,
remarks of Representative Robert Frankel. The legisla-
tive history discloses that an earlier draft of the law;
see Substitute Senate Bill No. 292, 1991 Sess.; contained
a provision that provided that, ‘‘[u]pon granting a
release, the commission may dismiss the discrimina-
tory practice complaint pending with the commission.’’
(Emphasis added.) Representative Edward Krawiecki,
however, drew attention to this provision indicating
that ‘‘[t]his seems to indicate that there are going to be
two [forums] where the action continues to pend. If
the commission decides to have a fight with whoever
the person bringing the complaint is, for example, they
may very well leave the action pending before the com-
mission and at the same time you’re in Superior Court,
and through you, Mr. Speaker, it would seem to me
that the language should have been it shall be dismissed
and I’m just wondering, through you, Mr. Speaker, what
the intention of the committee is.’’ See 34 H.R. Proc.,
supra, pp. 8924–8925, remarks of Representative
Edward Krawiecki. Representative Frankel addressed
Representative Krawiecki’s concern, stating that ‘‘[i]n
the course of debate a number of us in studying, it does
appear that there should not be a jurisdiction presiding
in two places in two causes of action. The ‘may’ should
certainly be changed to a ‘shall’ in line 39. With a view
towards receiving an amendment to do that, I move
this item be passed temporarily.’’ Id., p. 8926. The bill
ultimately passed with an amendment reflecting the
change discussed during the debate in the House of
Representatives. See Public Acts 1991, No. 91-331, § 2;
see also General Statutes § 46a-101 (d). Thus, neither
the language of the statute nor its legislative history
evinces a clear intent by the legislature to impose a
jurisdictional bar to claims brought outside of the time
limitation contained in § 46a-101 (e).
Having reviewed the statute’s language and the legis-
lative history, we next look to the general purpose and
genealogy of Connecticut’s antidiscrimination statutes.
See Commission on Human Rights & Opportunities
v. Savin Rock Condominium Assn., Inc., supra, 273
Conn. 380 (in Williams, ‘‘[we] concluded that, despite
statutory language that appeared mandatory, the gene-
alogy and legislative history of the statute, as well as our
case law addressing the policy underlying the statute,
reflected a legislative intent not to impose a jurisdic-
tional bar to complaints filed after the prescribed
period’’). Our Supreme Court has observed that the
general remedial purpose of our antidiscrimination stat-
utes ‘‘is, in general, to construct a remedy for discrimi-
nation ‘that will, so far as possible, eliminate the dis-
criminatory effects of the past as well as bar like
discrimination in the future.’ ’’ Commission on Human
Rights & Opportunities v. Board of Education, 270
Conn. 665, 694, 855 A.2d 212 (2004). Furthermore, our
Supreme Court has recognized that the legislative gene-
alogy and history of earlier antidiscrimination laws
spanning from the 1960s to the 1980s indicate ‘‘an intent
to authorize a broad, rather than a limited, scope of
damages, including damages protective of the ‘dignity’
of an individual.’’ Id. The court observed that the legisla-
tive genealogy of these laws ‘‘[suggests] an ongoing
legislative process of expanding the commission’s
authority to award damages.’’ Id.Indeed, the genealogy of our antidiscrimination laws
in general suggests an ongoing legislative intent of
expanding a complainant’s right to seek a remedy for
acts of alleged instances of discrimination. For exam-
ple, Public Acts 1991, No. 91-331, § 2, which first intro-
duced the ninety day limitation at the heart of this
appeal, expanded the rights of complainants by
affording those who filed employment complaints that
were still pending with the commission after 210 days
the right to request a release from the commission in
order to bring a private right of action in Superior Court.
Subsequent amendments to the law expanded this right
beyond just employment discrimination claims; see
Public Acts 1998, No. 98-245, § 6; and decreased the
number of days that a complainant must wait in order
to obtain a release of jurisdiction from the commission.
See Public Acts 2011, No. 11-237, § 14.
More recently, the legislature amended § 46a-82 (f)
to provide claimants with more time to file claims of
discrimination with the commission.6 See Public Acts
2021, No. 21-109, § 5. The law now allows claimants to
file all types of discriminatory practice complaints with
the commission within 300 days after an alleged act of
discrimination that occurs on or after October 1, 2021,
whereas earlier iterations of the law required such com-
plaints to be filed with the commission within 180 days.
See General Statutes (Supp. 2022) § 46a-82 (f) (2).
The aforementioned legislative history and geneal-
ogy, although only one factor in our analysis, under-
score the remedial nature of our state’s antidiscrimina-
tion statutory scheme, including § 46a-101 (e), and
weighs against a conclusion that the legislature
intended to make the time limitation set forth in § 46a-
101 (e) jurisdictional. This remedial nature is similarly
highlighted in our case law, where we are reminded
that antidiscrimination provisions should be ‘‘liberally
construed in favor of those whom the legislature
intended to benefit.’’ (Internal quotation marks omit-
ted.) Vollemans v. Wallingford, 103 Conn. App. 188,
197, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d
579 (2008).
For example, in Vollemans, the plaintiff, alleging dis-
criminatory termination on account of his age, was dis-
charged on January 21, 2003. Id., 191. He filed a com-
plaint with the commission on June 3, 2003. Id. The
commission concluded, and the Superior Court agreed,
that the plaintiff’s claim was barred by the 180 day
limitation period in § 46a-82 (e) because he had received
‘‘a definite notice of his termination . . . sometime
before November 13, 2002 . . . .’’ (Internal quotation
marks omitted.) Id., 191–92. On appeal to this court,
the pertinent issue was the proper interpretation of
§ 46a-82 (e). Id., 195. We stated that our ‘‘task [was] to
determine, in an age discrimination action in which the
allegedly discriminatory practice is the termination of
employment, precisely when the alleged act of discrimi-
nation transpires.’’ Id. Specifically, we were called on
to decide whether the alleged act of discrimination
occurred on the final day of the plaintiff’s employment
or on the date the plaintiff was notified of the termina-
tion of his employment. Id., 219. This court concluded
that the pertinent date was the final date of the plaintiff’s
employment. Id. In so doing, we stated that ‘‘[l]iberally
construing that statutory provision and mindful of the
legislature’s intent to avoid the defeat of such com-
plaints for filing faults rather than on their merits, we
conclude that the filing period contained in § 46a-82
(e) commences upon actual cessation of employment,
rather than notice thereof.’’ Id., 218–19. Our Supreme
Court affirmed this court’s judgment, noting that ‘‘the
thoughtful and comprehensive opinion of the Appellate
Court majority properly resolved the issues in this certi-
fied appeal,’’ and that its own discussion ‘‘would serve
no useful purpose.’’ Vollemans v. Wallingford, 289
Conn. 57, 61, 956 A.2d 579 (2008).
Similarly, in Commission on Human Rights &
Opportunities v. Board of Education, supra, 270 Conn.
667–69, our Supreme Court was tasked with determin-
ing whether the commission has subject matter jurisdic-
tion pursuant to General Statutes § 46a-58 (a), to adjudi-
cate a claim of racial discrimination brought by a
student in a public school against a school principal
and a local board of education on the basis of a discrete
course of allegedly discriminatory conduct by the prin-
cipal, or whether exclusive jurisdiction to adjudicate
such a claim is vested in the state board of education
pursuant to General Statutes §§ 10-4b and 10-15c. In
reviewing the language and genealogy of the statutes
in question, our Supreme Court held that the jurisdic-
tion of the state board of education under § 10-4b is not
exclusive and that the commission also may exercise
jurisdiction over such claims under § 46a-58 (a). Id.,
722. In reaching this conclusion, the court emphasized
that remedial statutes must be construed liberally to
effectuate legislative intent, concluding that ‘‘the
broadly defined subject matter of [§ 46a-58 (a)’s] protec-
tion, namely, the deprivation of all of the rights, privi-
leges or immunities secured by both the state and fed-
eral laws and constitutions, strongly suggests that it
applies to a discrete course of conduct constituting
racial discrimination against a student in a public school
by educational officials . . . .’’ Id., 708. The court fur-
ther stated that ‘‘[t]he genealogy of § 46a-58 (a) . . .
points strongly in the same direction, because it indi-
cates a consistent history of the statute’s retaining its
core protection—the rights, privileges or immunities
secured by the state or federal laws or constitutions—
while expanding both the ways in which its core protec-
tion may be enforced and the types of discrimination
to which it applies.’’ Id. These cases further underscore
the remedial nature of our antidiscrimination laws and
weigh against an interpretation of § 46a-101 (e) that
would preclude a claimant from making an equitable
tolling argument against dismissal of an action that was
commenced after the statutory deadline.
Federal antidiscrimination case law provides further
support for our conclusion that the time limitation in
§ 46a-101 (e) is not subject matter jurisdictional. See
Williams v. Commission on Human Rights & Opportu-
nities, supra, 257 Conn. 278 (‘‘[w]e have often looked
to federal . . . discrimination law for guidance in
enforcing our own anti-discrimination statute’’ (internal
quotation marks omitted)). Following the United States
Supreme Court’s decision in Zipes v. Trans World Air-
lines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed.
2d 234 (1982), which held that ‘‘filing a timely charge
of discrimination with the [Equal Employment Opportu-
nity Commission] is not a jurisdictional prerequisite to
suit in federal court, but a requirement that, like a stat-
ute of limitations, is subject to waiver, estoppel, and
equitable tolling,’’ many federal courts were confronted
with the question of whether the rationale employed
in Zipes7 should be applied to Title VII’s8 ninety day
requirement for filing suit in federal court following the
receipt of an Equal Employment Opportunity Commis-
sion right to sue letter, or whether it should be consid-
ered jurisdictional. See 42 U.S.C. § 2000e-5 (f) (1)
(2018).9 It appears that federal courts uniformly have
interpreted § 2000e-5 (f), the federal counterpart to
§ 46a-101 (e), as being nonjurisdictional. See, e.g.,
Brown v. John Deere Product, Inc., 460 Fed. Appx. 908,
909 (11th Cir. 2012); Crabill v. Charlotte Mecklenburg
Board of Education, 423 Fed. Appx. 314, 321 (4th Cir.
2011); Truitt v. Wayne, 148 F.3d 644, 646–47 (6th Cir.
1998); Williams-Guice v. Board of Education, 45 F.3d
161, 165 (7th Cir. 1995); Jarrett v. U.S. Sprint Commu-
nications Co., 22 F.3d 256, 259–60 (10th Cir.), cert.
denied, 513 U.S. 951, 115 S. Ct. 368, 130 L. Ed. 2d 320(1994); Scholar v. Pacific Bell, 963 F.2d 264, 266 (9th
Cir.), cert. denied, 506 U.S. 868, 113 S. Ct. 196, 121 L.
Ed. 2d 139 (1992); Hill v. John Chezik Imports, 869
F.2d 1122, 1124 (8th Cir. 1989); Mosel v. Hills Dept.
Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986); Espinoza
v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1250
(5th Cir. 1985); Johnson v. Al Tech Specialties Steel
Corp., 731 F.2d 143, 146 (2d Cir. 1984); Fouche v. Jekyll
Island-State Park Authority, 713 F.2d 1518, 1525 (11th
Cir. 1983); Rice v. New England College, 676 F.2d 9, 10
(1st Cir. 1982); Gordon v. National Youth Work Alli-
ance, 675 F.2d 356, 360 (D.C. Cir. 1982).
Having reviewed all of the factors that our Supreme
Court analyzed in Williams when it determined that
the statute at issue in that case was mandatory and not
jurisdictional, including the statute’s language, legisla-
tive history, genealogy, purpose, and relation to other
statutes, as well as federal case law interpreting the
federal statutory analog to § 46a-101 (e), we are con-
vinced that § 46a-101 (e) is a mandatory time limitation,
subject to waiver and equitable tolling. Simply put, none
of those factors evinces a clear legislative intent to
contravene our long recognized presumption in favor
of jurisdiction. On the contrary, interpreting the dead-
line as jurisdictional would frustrate the remedial pur-
pose of that statute by barring litigants from pursuing
claims of discrimination even in cases in which com-
mon-law equitable principles would otherwise toll the
deadline for bringing such claims.
Having concluded that the time limitation in § 46a-
101 (e) is mandatory and not jurisdictional, we next
consider whether dismissal was nevertheless appro-
priate in this case. The plaintiff appears to argue that
the court erred by not considering the action com-
menced for purposes of § 46a-101 (e) on the date he
filed his application for a waiver of fees. He argues that
he is not a lawyer and questions how an ordinary person
would know that, in order to commence an action, he
was required to serve a writ of summons and complaint
within the statutory deadline rather than simply filing
within that time period his application for a waiver of
fees. Relatedly, he appears to argue that fairness is at
the ‘‘core [of his] situation’’ and that he should be
excused from his untimely filing. We disagree.
Pursuant to §§ 46a-100 and 46a-101 (e), the plaintiff
had ninety days from the date on which he received
the release of jurisdiction from the commission to com-
mence his action in the Superior Court. The plaintiff
received the release of jurisdiction from the commis-
sion on November 6, 2018.10 The plaintiff, therefore, was
required to commence his action by February 4, 2019.
This court has held that, in order for an action to be
timely brought under § 46a-101 (e), it must be com-
menced, as that term is understood under Connecticut
law, no later than ninety days after receipt of the release.
See Mosby v. Board of Education, 187 Conn. App. 771,
774, 203 A.3d 694, cert. denied, 331 Conn. 917, 204 A.3d
1160 (2019). It is bedrock principle that, ‘‘in Connecti-
cut, an action is commenced not when the writ is
returned but when it is served upon the defendant.’’
(Internal quotation marks omitted.) Id.Although the plaintiff filed his application for a waiver
of fees on January 31, 2019, he did not serve the sum-
mons and complaint on the defendants until February
22, 2019. It is clear that the plaintiff failed to satisfy
the mandate of the statute because he commenced the
action after February 4, 2019—the deadline prescribed
by the statute. The fact that the plaintiff is self-repre-
sented does not excuse him from compliance with the
ninety day limitation period. See Kelsey v. Commis-
sioner of Correction, 202 Conn. App. 21, 42, 244 A.3d
171 (2020) (‘‘ignorance of the limitation period or lack
of legal experience generally is insufficient cause to
excuse an untimely filed [action]’’), aff’d, 343 Conn. 424,
A.3d (2022).
Furthermore, to the extent the plaintiff’s claim can
be construed as arguing that the filing of his application
for a waiver of fees tolled the limitation period during
the time that his application remained pending and
undecided by the court, the plaintiff has not directed
this court to any authority in support of that proposi-
tion.11 Nevertheless, even if his fee waiver application
did toll the deadline from the date he filed his applica-
tion, January 31, 2019, to the date the court granted the
application, February 4, 2019, he would have still been
required to commence the action by February 8, 2019,
which he failed to do. Accordingly, the plaintiff’s argu-
ment that he timely commenced the action must be
rejected.
II
The plaintiff next argues that the court erred in con-
cluding that he was required to plead the continuing
course of conduct doctrine in his complaint. We agree.
Although the court’s determination that the time limit
in § 46a-101 (e) was jurisdictional should have ended
its analysis, the court went further and addressed the
plaintiff’s argument concerning the continuing course
of conduct doctrine and concluded, as a matter of law,
that because the plaintiff ‘‘failed to plead the continuing
course of conduct doctrine in his complaint,’’ it was
precluded from considering whether the doctrine tolled
the applicable time limitation.
Because we hold today that the time limit in § 46a-
101 (e) is not jurisdictional, and, thus, is subject to
equitable tolling, we address the plaintiff’s claim
because it likely will arise again on remand. See, e.g.,
Sullivan v. Metro-North Commuter Railroad Co., 292
Conn. 150, 164 n.8, 971 A.2d 676 (2009) (‘‘[w]e think it
prudent to address the second issue because it is likely
to arise on remand’’). ‘‘The interpretive construction of
the rules of practice is to be governed by the same
principles as those regulating statutory interpretation.
. . . The interpretation and application of a statute,
and thus a Practice Book provision, involves a question
of law over which our review is plenary.’’ (Internal
quotation marks omitted.) Disciplinary Counsel v.
Elder, 325 Conn. 378, 386, 159 A.3d 220 (2017).
Practice Book § 10-57 provides: ‘‘Matter in avoidance
of affirmative allegations in an answer or counterclaim
shall be specially pleaded in the reply. Such a reply
may contain two or more distinct avoidances of the
same defense or counterclaim, but they must be sepa-
rately stated.’’ (Emphasis added.) Our Supreme Court
has held that, ‘‘[u]nder § 10-57, the continuing course
of conduct doctrine is a matter that must be pleaded
in avoidance of a statute of limitations special defense.’’
(Internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, 312 Conn. 286, 300, 94 A.3d
553 (2014).
On the basis of our review of the language of Practice
Book § 10-57 and the relevant case law pertaining
thereto, we have found nothing in that rule that sug-
gests, much less requires, that the continuing course
of conduct doctrine be pleaded in the complaint. The
rule clearly states that a matter in avoidance must be
pleaded in ‘‘the reply.’’ Practice Book § 10-57. Moreover,
our Supreme Court expressly has held that matters in
avoidance of a statute of limitations ‘‘need not be
pleaded in the complaint.’’ Ross Realty Corp. v. Surkis,
163 Conn. 388, 392, 311 A.2d 74 (1972) (‘‘[i]t has been
and is the holding of this court that matters in avoidance
of the [s]tatute of [l]imitations need not be pleaded in
the complaint but only in response to such a defense
properly raised’’); see also, e.g., Beckenstein Enter-
prises-Prestige Park, LLC v. Keller, 115 Conn. App. 680,
691, 974 A.2d 764 (‘‘we conclude that the court properly
denied the plaintiffs’ offer to prove the applicability of
[General Statutes] § 52-592 after the close of evidence
when it had not been pleaded in the complaint or as a
matter in avoidance of the statute of limitations
defense’’), cert. denied, 293 Conn. 916, 979 A.2d 488(2009); Flannery v. Singer Asset Finance Co., LLC,
supra, 312 Conn. 301 (‘‘Beckenstein Enterprises-Pres-
tige Park, LLC, does not, however, stand for the propo-
sition that the pleading requirements are so rigid as to
require that potentially meritorious claims in avoidance
of the statute of limitations be categorically barred in
all cases because of pleading lapses’’); Macellaio v.
Newington Police Dept., 145 Conn. App. 426, 430, 75
A.3d 78 (2013) (although plaintiff’s reply did not
‘‘squarely comply’’ with Practice Book § 10-57, court
was not precluded from reaching merits because plain-
tiff specifically stated in reply to defendants’ motion
for summary judgment that ‘‘statutes of limitations
should be tolled based on the fraudulent concealment
and continuing course of conduct doctrines’’).
In the present case, no special defense raising a limi-
tations defense was filed by the defendants to which
the plaintiff could have replied. The defendants raised
the ninety day limitation period for the first time in
their motion to dismiss, and the plaintiff raised the
continuing course of conduct doctrine in his opposition
to that motion to dismiss. Although a plaintiff certainly
may choose to plead in his initial complaint a matter
in avoidance of the statute of limitations when he knows
the applicable statute of limitations has passed, we do
not read our rules to require him to do so. Accordingly,
we conclude that the court’s determination that the
plaintiff was required to specially plead the continuing
course of conduct doctrine in his complaint in order
for the court to consider its effect on the limitation
period was erroneous.12
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
General Statutes § 46a-101 (e) provides: ‘‘Any action brought by the
complainant in accordance with section 46a-100 shall be brought not later
than ninety days after the date of the receipt of the release from the commis-
sion.’’
2
General Statutes § 46a-100 provides: ‘‘Any person who has filed a com-
plaint with the commission in accordance with section 46a-82 and who has
obtained a release of jurisdiction in accordance with section 46a-83a or 46a-
101, may bring an action in the superior court for the judicial district in
which the discriminatory practice is alleged to have occurred, the judicial
district in which the respondent transacts business or the judicial district
in which the complainant resides, except any action involving a state agency
or official may be brought in the superior court for the judicial district
of Hartford.’’
3
We note that the commission also filed an application for leave to file
a brief in this appeal as amicus curiae, which this court granted. In its brief
to this court, the commission indicated that it ‘‘does not take any position
as to whether the plaintiff’s case should ultimately have been dismissed
below.’’ It argued, however, that ‘‘to the extent . . . that the Superior Court
premised its dismissal on the ninety day filing period in . . . § 46a-101 (e)
. . . being jurisdictional, and not mandatory subject to equitable tolling,
waiver, and consent, the commission submits that this was an error of law.’’
(Footnote omitted.)
4
We note that this court previously has recognized a split among the
judges of the Superior Court who have addressed the question of whether
§ 46a-101 (e) is jurisdictional. See Mosby v. Board of Education, 187 Conn.
App. 771, 775 n.5, 203 A.3d 694 (‘‘we note that our Superior Court has been
divided over whether the time limit in § 46a-101 (e) is jurisdictional’’), cert.
denied, 331 Conn. 917, 204 A.3d 1160 (2019); Sempey v. Stamford Hospital,
supra, 180 Conn. App. 616 n.8 (‘‘[w]e acknowledge that our Superior Court
has been divided over this question’’). It was unnecessary, however, for this
court to reach that question in those appeals.
5
General Statutes § 1-2z provides: ’’The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
6
General Statutes (Supp. 2022) § 46a-82 (f) provides: ‘‘(1) Any complaint
filed pursuant to this section for an alleged act of discrimination that
occurred prior to October 1, 2021, shall be filed within one hundred and
eighty days after the date of the alleged act of discrimination, except that
any complaint by a person (A) claiming to be aggrieved by a violation of
subsection (a) of section 46a-80 that occurred before October 1, 2019, shall
be filed within thirty days of the date of the alleged act of discrimination,
and (B) claiming to be aggrieved by a violation of section 46a-60, sections
46a-70 to 46a-78, inclusive, or section 46a-80 or 46a-81c, that occurred on
or after October 1, 2019, and prior to October 1, 2021, shall be filed not later
than three hundred days after the date of the alleged act of discrimination.
‘‘(2) Any complaint filed pursuant to this section for an alleged act of
discrimination that occurred on or after October 1, 2021, shall be filed within
three hundred days after the date of the alleged act of discrimination.’’
7
In Zipes, the United States Supreme Court stated that, ‘‘[b]y holding
compliance with the filing period to be not a jurisdictional prerequisite to
filing a Title VII suit, but a requirement subject to waiver as well as tolling
when equity so requires, we honor the remedial purpose of the legislation
as a whole without negating the particular purpose of the filing requirement,
to give prompt notice to the employer.’’ Zipes v. Trans World Airlines, Inc.,
supra, 455 U.S. 398.
8
Title VII of the Civil Rights Act of 1964, as amended by Title VII of the
Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (2018).
9
Title 42 of the United States Code, § 2000e-5 (f) (1), provides in relevant
part: ‘‘If a charge filed with the Commission pursuant to subsection (b), is
dismissed by the Commission, or if within one hundred and eighty days
from the filing of such charge or the expiration of any period of reference
under subsection (c) or (d), whichever is later, the Commission has not
filed a civil action under this section or the Attorney General has not filed
a civil action in a case involving a government, governmental agency, or
political subdivision, or the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the Commission, or
the Attorney General in a case involving a government, governmental agency,
or political subdivision, shall so notify the person aggrieved and within
ninety days after the giving of such notice a civil action may be brought
against the respondent named in the charge (A) by the person claiming to
be aggrieved or (B) if such charge was filed by a member of the Commission,
by any person whom the charge alleges was aggrieved by the alleged unlawful
employment practice. Upon application by the complainant and in such
circumstances as the court may deem just, the court may appoint an attorney
for such complainant and may authorize the commencement of the action
without the payment of fees, costs, or security. Upon timely application,
the court may, in its discretion, permit the Commission, or the Attorney
General in a case involving a government, governmental agency, or political
subdivision, to intervene in such civil action upon certification that the case
is of general public importance. Upon request, the court may, in its discretion,
stay further proceedings for not more than sixty days pending the termina-
tion of State or local proceedings described in subsection (c) or (d) of this
section or further efforts of the Commission to obtain voluntary compliance.’’
10
The plaintiff also claims that the court could not properly have consid-
ered the limitation period because there was no evidence as to when he
received the right to sue letter. He argues that ‘‘there is no information
whatsoever in the case on when I had received the release.’’ We disagree.
The record includes clear evidence supporting the trial court’s finding that
the plaintiff received the release on November 6, 2018. The court had before
it an affidavit of Charles Perry, the commission’s freedom of information
officer, who attested that, on November 6, 2018, the commission transmitted
its decision and release of jurisdiction to all parties, including the plaintiff.
A copy of the e-mail sent to the parties containing the decision and the
release was attached to the affidavit. The plaintiff submitted no evidence
to the trial court contesting his receipt of the e-mail and its attachments
on November 6, 2018. Moreover, he made no such argument in his opposition
to the motion to dismiss. The only reference he made in his opposition with
respect to the timing of the release was his statement that ‘‘the release
happen[ed] on 11/06/2018.’’ On the basis of the record before us, and in
light of the reasonable inference that the e-mail was received on the same
date it was sent, it was not clearly erroneous for the trial court to conclude
that the plaintiff received the release of jurisdiction on November 6, 2018.
Accordingly, this claim fails.
11
In other contexts, the legislature specifically has indicated that the filing
of an application for a waiver of fees tolls the time limits for filing an appeal.
See, e.g., General Statutes § 45a-186c (in probate context, when appellant
files fee waiver pursuant to § 45a-186c, time limit in § 45a-186 (a) is tolled
until judgment on fee waiver is rendered); General Statutes § 4-183 (m)
(under Uniform Administrative Procedure Act (UAPA), General Statutes
§ 4-166 et seq., ‘‘filing of the application for the waiver shall toll the time
limits for the filing of an appeal until such time as a judgment on such
application is rendered’’); but see General Statutes § 46a-94a (b) (UAPA
appeal provisions do not apply if complainant has been granted release
pursuant to § 46a-101).
12
Because it was not raised or addressed before the trial court, we do
not decide whether the continuing course of conduct doctrine applies, as
a matter of law, to actions commenced under § 46a-101 (e). See, e.g., Bowen-
Hooks v. New York, 13 F. Supp. 3d 179, 207 (E.D.N.Y. 2014) (collecting cases
addressing question of whether continuing violation theory applies to ninety
day time limitation set forth in federal statutory analog to § 46a-101 (e)).