Bogdahn v. Hamilton Stan. Space Sys., No. Cv 97-0569864-S (July 21, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKECT Page 9534 THE FIRST AND FOURTH COUNTS OF THE PLAINTIFF'S AMENDED COMPLAINT DATED MAY 14, 1999 This appears to be a case of first impression in Connecticut. PROCEDURAL HISTORY Defendants, Hamilton Standard and Mark Bond, filed their original motion to strike on December 7, 1998, an objection by the Plaintiff was filed on February 9, 1999. Defendants filed a Reply Brief on April 23, 1999. On May 3, 1999, this Court allowed the Plaintiff two weeks to respond to the Defendants' reply brief and allowed the Defendants one week thereafter to reply to the Plaintiff's brief. On May 14, 1999, the Plaintiff filed an amended complaint. There was no objection to same, and on June 29, 1999, at a hearing before this Court, the Court granted permission to file said amended complaint there having been no objection thereto. On May 14, 1999, the Plaintiff filed his reply memorandum in further support of his objection to the motion to strike, and after an extension of time was granted, the Defendants, Hamilton Standard and Mark Bond filed a supplemental memorandum dated June 1, 1999 in further support of their motion to strike. Oral argument was heard before this court on June 29, 1999. The memorandum filed by Defendants, Hamilton Standard Space Systems International, Inc. ("Hamilton") and Mark Bond (hereinafter "Bond") dated June 1, 1999 urges the Court to strike the first and fourth counts of the amended FACTS The first count, as to Hamilton only, alleges that Paul C. Pelletier was an employee of Hamilton. On June 1, 1994, Mr. Pelletier filed a complaint of sexual harassment and discrimination based upon sexual orientation with the Connecticut Commission on Human Rights and Opportunities (hereinafter "CHRO"). Following the suicide of Mr. Pelletier on June 16, 1994, this action was brought by the Plaintiff, David A. Bogdahn, Administrator of the Estate of Paul C. Pelletier. The decedent, Pelletier, was a homosexual. He had complained to Hamilton of sexual harassment and sexual discrimination based upon his sexual orientation. The decedent was harassed by the Defendants Mark Bond and Bruce McGarry during the time period, continually, from the fall of 1993 through June 1, 1994. The Defendant Mark Bond CT Page 9535 and the Defendant Bruce McGarry were employees of Hamilton at all times relevant hereto. It is alleged that Bond and McGarry ridiculed and harassed the Plaintiff because of his sexual orientation. He was called derogatory names such as "faggot" by said McGarry and Bond, and on repeated occasions in the spring of 1994 the mens' room at Hamilton was defaced with derogatory slurs related to Mr. Pelletier's sexual orientation. Not only did he file a complaint with the CHRO on June 1, 1994, but he had also complained to Hamilton of these actions by Mark Bond and Bruce McGarry. The claim against Hamilton is that it discriminated against him in terms, conditions or privileges of employment by failing to properly protect him against sexual orientation discrimination in violation of C.G.S. § 46a-81c (1) and failed to properly protect Mr. Pelletier against the infliction of sexual orientation discrimination in violation of C.G.S. §46a-60 (5). The Plaintiff claims that the decedent committed suicide on June 16, 1994 as a direct result of the sexual harassment and discrimination described above.

The fourth count as to Mark Bond only alleges that he was an employee of Hamilton and between September 1993 and June 1994, he conspired with Bruce McGarry to harass, ridicule, discriminate, batter and cause injury to Mr. Pelletier based upon his sexual orientation. It is further alleged that the actions taken by Bond were done as an agent of Hamilton. These actions, it is claimed, violate C.G.S. §§ 46a-60 (5), 46a-60 (8) and C.G.S. §46a-81c (1). The Defendants Hamilton and Bond have jointly moved to strike count one against Hamilton and count four against Bond.

STANDARD OF REVIEW The purpose of a motion to strike is to "contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." NovametrixMedical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15,618 A.2d 25 (1992). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations omitted.) Id., 215. ISSUES I. The first basis for the Defendants' motion to strike is that CT Page 9536 the Plaintiff's claims pursuant to C.G.S. § 46a-60 were not alleged in the administrative complaint that Mr. Pelletier brought to the CHRO. The Defendants claim that the administrative complaint fails because C.G.S. § 46a-60 was not mentioned in the administrative complaint. However, this argument flies in the face of Connecticut Regulations 46a-54-52(b) (1997) which provides:

"A timely filed complaint under oath is sufficient when the commission receives from the person making the complaint a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of which have occurred, are occurring, or are about to occur and when." (Emphasis added);

And C.G.S. § 46a-82 (a) which reads as follows:

"(a) any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of § 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission."

No where in the statute or regulation is there a requirement that the specific statute be named.

Further, it is clear that these requirements must be liberally interpreted. The Court has reviewed the administrative complaint and finds that it complies with the statutory and regulatory requirements with sufficient specificity. It describes the sexual discrimination as being based on sexual orientation and even cites C.G.S. § 46a-81c (1). C.G.S. § 46a-81c provides in pertinent part:

"It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual's sexual orientation." Emphasis added. CT Page 9537

The Defendants' claim that the administrative, complaint could not have been asserted under C.G.S. § 46a-60 is without merit. C.G.S. § 46a-60 (a)(5) provides that it is a prohibited discriminatory employment practice: "(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so." C.G.S. § 46a-51 (7) defines discriminatory employment practice as ". . . any discriminatory practice specified in §§46a-60 or 46a-81c." As noted above, C.G.S. § 46a-81c (1) states that discrimination on the basis of sexual orientation is a discriminatory employment practice. It is true that §46a-60 (a)(5) does mention that it is discriminatory ". . . to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so." However, the administrative complaint paragraph 6b. states in pertinent part: ". . . Respondent Mark Bond, individually, . . . and Hamilton Standard, by and through their employee, servant or agent, Mark Bond, . . . have ratified, endorsed and perpetrated respondent, Bruce McGarry's, actions." (emphasis added). This Court find these words in the administrative complaint, again interpreted on a liberal basis, are with sufficient specificity to qualify as aiding and abetting.

This Court also finds that the complaint in this action cites C.G.S. § 46a-60 (a)(5) and C.G.S. § 46a-81c (1). As stated above, there is a specific reference in the administrative complaint to § 46a-81c (1), and because of the relationship of the statutes mentioned, § 46a-60 (a)(5) is also included in the administrative complaint. Finally, there is the Second Circuit Court of Appeals case of Gomes v. Avon Corporation,964 F.2d 1330 (2nd Circuit 1992) in which the court found that the court does have jurisdiction over those claims that are reasonably related to the allegations in Plaintiff's administrative complaint, and further found that a claim is reasonably related to the Plaintiff's administrative complaint if it is within the "scope of the administrative investigation which can be reasonably expected to grow out of the charge of discrimination." Id. at 1334. This court finds that the allegations of the complaint are reasonably related to the allegations in Mr. Pelletier's administrative complaint.

II. CT Page 9538 Next, the defendants argue that the plaintiff did not have a private cause of action because the release granted by the CHRO was issued pursuant to General Statutes § 46a-82b. According to the complaint, the plaintiff filed a complaint with the CHRO on June 1, 1994. The plaintiff requested a release to sue from the CHRO by a letter dated November 27, 1996. The CHRO granted a release to sue to the plaintiff on January 2, 1997, pursuant to General Statutes § 46a-82b.

By P.A. 98-245, the Connecticut General Assembly revised General Statutes § 46a-100 to state in pertinent part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a, as amended by this act, or 46a-101, as amended by this act, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business. . . ." With the current revision, a party is not limited to the forms of discrimination listed in General Statutes § 46a-60 in order to bring an action before the superior court for a discriminatory practice.¹ A claim under § 46a-81c may also be brought.

The defendants claim that the plaintiff did not have a valid cause of action when he originally filed suit in both federal and state court. The defendants argue that the legislature did not intend to permit a cause of action that was improperly before the court to continue.

"It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation."

Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391,618 A.2d 1340 (1993). In ascertaining the legislature's intent, the court must be mindful that the legislature is presumed to have intended a just and rational result. Id. Applying these pinciples to the present case, it is apparent that the legislature intended to allow a cause of action to proceed which was brought before the effective date of the statute. Public Act 98-245, § 14 states that the changes included in General Statutes § 46a-100 are applicable to "all cases pending with the commissioner or in the courts. . . . Therefore, the plaintiff's action alleging a violation of General Statutes § CT Page 953946a-81c prior to P.A. 98-245 may be brought before the superior court because it was a case pending "in the courts" on the effective date.

Additionally, the defendants argue that the legislature specifically excluded plaintiffs who received a release to sue under § 46a-82b² by specifically mentioning releases under §§ 46a-83a and 46a-101. The plaintiff contends that a release to sue under General Statutes § 46a-82b is adequate because of the passage of P.A. 98-245. Our courts have consistently held that failure to comply with the conditions established by the [Connecticut Fair Employment Practices Act]³ forecloses [a plaintiff's] access to judicial relief, because it [deprives] the trial court of jurisdiction to hear [her] complaint. See Sullivan v. Board of Police Commissioners,196 Conn. 208, 218, 491 A.2d 1096 (1985). In the present case, the plaintiff received a release to sue pursuant to General Statutes § 46a-82b, not a release under General Statutes §§ 46a-83a or 46a-101. General Statutes § 46a-83a provides for a release to appeal after the CHRO has dismissed an administrative complaint.⁴ General Statutes § 46a-101 provides for the CHRO to issue a release to sue upon the expiration of two hundred ten days without a ruling.⁵ While courts must ordinarily give a strict construction to a statutory cause of action, the plaintiff should not be deprived of his cause of action because the legislature was imprecise in its statutory language.

A release under General Statutes § 46a-82b would be meaningless if the court adopted the defendants' reasoning. According to the terms of General Statutes § 46a-82b, a "complainant may bring a civil action in accordance with the provisions of General Statutes §§ 46a-100, 46a-101, 46a-103,46a-104]. . . ." At all relevant times, General Statutes §§46a-100 limited the bringing of a civil action to actions that had a release to sue under certain statutory sections, and never cited General Statutes § 46a-82b.⁶ Since General Statutes § 46a-82b would have applicability to action filed with the commission prior to January 1, 1996, it is an understandable oversight that the legislature failed to include such releases within General Statutes § 46a-100. If the court adopted the defendants' reasoning, any action pursuant to a release to sue under General Statutes § 46a-82b, whether filed prior to or subsequent to the adoption of P.A. 98-245, could not be brought because General Statutes § 46a-100 did not provide for a CT Page 9540 release to sue under General Statutes § 46a-82b.

It is apparent that there are inconsistencies regarding releases to sue within Connecticut Fair Employment Practices Act. For example, General Statutes § 46a-101 (a) stated at all relevant times: "No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of thissection."⁷ (Emphasis added.) This language could even foreclose an action brought under General Statutes § 46a-83a, a statutory section specifically included within General Statutes § 46a-100. In light of this oversight by the legislature and the analysis above, it seems apparent that the legislature did not intend to bar an action brought with a release to sue under General Statutes § 46a-82b. Instead, the legislature provided for a civil action in the case of an appeal of a CHRO ruling or the expiration of a statutory time limitation without including every section that provides for a release to sue in General Statutes § 46a-100.

Alternatively, under § 46a-82b, the CHRO was mandated to release the complaint to the commission allowing plaintiff to sue in Superior Court if it had not acted by January 1, 1997. Accordingly, the CHRO did issue such a release on January 2, 1997 and tolled the statute of limitations. Therefore, a private cause of action was authorized even though P.A. 98-245 cited a release only in accordance with § 46a-83a and § 46a-101 becauseP.A. 98-245 hadn't taken effect at the time of the granting of the release on January 2, 1997. The release under § 46a-82b stands on its own and is valid.

Assuming arguendo that a release specifying § 46a-83a or46a-101 was required, based upon the legislative intent and scheme described above, the plaintiff could under P.A. 98-245 obtain a valid release under § 46a-82b.

Also, if there was a mistake by the CHRO in issuing the wrong release, it would be fundamentally unfair and contrary to the legislative intent to bar the plaintiff from proceeding with a private cause of action because of such mistake.

Finally § 46a-81c was adopted in 1991 and that cause of action by itself or through § 46a-60 (5) was a cause of action at all times relevant hereto. CT Page 9541

For the foregoing reasons this court concludes that the plaintiff did have and does have a private cause of action.

III. The third claim is that the Defendant Mark Bond is not a proper Defendant under C.G.S. §§ 46a-60 (a)(8) and 46a-81c. The Plaintiff concedes that Mark Bond is not a proper Defendant under those sections. However, under § 46a-60 (5) Mark Bond may be held liable as an employee if he "aided, abetted, . . . the doing of an act declared to be a discriminatory employment practice or to attempt to do so." This Court has already stated that the administrative complaint has, for all practical purposes, accused Mark Bond of aiding and abetting the discriminatory act. The allegations of the complaint in this court include the claim that Mark Bond ". . . conspired with the Defendant McGarry to harass, ridicule, discriminate, batter and cause injury to the decedent based upon the decedent's sexual orientation." As stated above, a discriminatory employment practice includes discrimination because of sexual orientation, and although Mark Bond may not be held liable solely under §46a-81c of the General Statutes, based upon the definition of discriminatory practice which includes as described above discrimination because of sexual orientation, the defendant Bond is liable under § 46a-60 (a)(5). Although the violations of C.G.S. §§ 46a-60 (a)(8) and 46a-81c are not in and of themselves actionable, there is a valid cause of action against Mark Bond as a result of § 46a-60 (a)(5) and the definitions in the statutes that include sexual orientation under §46a-81c under the terms of C.G.S. § 46a-60a (5). The allegations of the violation of § 46a-81c may, therefore, stand. Although the Court does not find any basis for a violation of C.G.S. §46a-60 (a)(8), the court will not strike that portion of the complaint because the court should either strike or not strike the entire count.

For all of the above stated reasons, the Defendants' motion to strike the first and fourth counts of the complaint is denied.

Rittenband, J.