Opinion
No. CV-04-0286311
January 10, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #107
As a result of his termination as superintendent of Pierce Power Station in Wallingford, Connecticut, the plaintiff, Peter J. Vollemans, brought this action sounding in age discrimination against his employer, the defendant, the town of Wallingford. In his complaint filed on December 17, 2003, the plaintiff alleges that he was terminated on January 21, 2003, because of his age, in violation of the Connecticut Fair Employment Practices Act (CFEPA), which prohibits employers from discriminating against employees on the basis of age. The plaintiff further alleges that on or about June 3, 2003, he filed a complaint with the commission on human rights and opportunities (CHRO) and that on or about October 28, 2003, the CHRO issued a release of jurisdiction, authorizing the plaintiff to commence the action presently before this court.
As a result of his termination the plaintiff instituted two actions. On March 12, 2003, the plaintiff filed a three-count complaint (Docket No. CV 03 283760) sounding in breach of contract; on December 17, 2003, the plaintiff filed the instant one-count complaint (Docket No. CV 04 0286311) sounding in age discrimination. The two cases were consolidated by order of this court on March 15, 2004.
Now pending is the defendant's motion for summary judgment. In support of their respective positions, the parties have submitted memoranda of law and affidavits.
The defendant has submitted a memorandum of law in support of his motion, accompanied by: (1) a copy of the merit assessment review completed by the CHRO regarding the plaintiff's complaint to that agency, (2) a copy of a letter from the plaintiff's attorney to the defendant's personnel director, Terence P. Sullivan, (3) Sullivan's affidavit, and (4) an excerpt from the plaintiff's deposition. The plaintiff filed a memorandum of law in opposition to the motion on May 25, 2005, accompanied by: (1) a copy of his termination letter, (2) the plaintiff's affidavit, (3) a copy of a letter from the town of Wallingford to the plaintiff's union representative, (4) a letter from Raymond F. Smith to Michael Holmes, (5) a memorandum from Holmes to Smith regarding additional supervisory assignments, and (6) a memorandum from Holmes to Smith regarding dispatcher/system operations.
DISCUSSION
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law, . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "A material fact has been defined . . . as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The defendant first argues that summary judgment should enter in its favor as to the plaintiff's age discrimination claim because that claim was untimely filed with the CHRO. General Statutes § 46a-82, which governs the filing of complaints before the CHRO, states in subsection (e) that "[a]ny complaint filed [with the CHRO] pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." General Statutes § 46a-100 states that "[a]ny 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 . . . may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred. . .". . . " (Emphasis added.)
The defendant argues that the plaintiff was fully aware of his termination as early as November 13, 2002, and possibly even earlier as evidenced by a November 13, 2003 letter from the plaintiff's attorney to the defendant's personnel director stating: "As you probably know, Mr. Vollemans' employment is scheduled to terminate effective on or about December 31, 2002, with the closure of the Power Plant being proffered as the alleged justification for that termination . . . The absence of any other reason substantiating the disparate treatment between Mr. Vollemans and the other power plant employees raises a strong presumption that Mr. Vollemans is not being transferred to another position simply because of his age." (Defendant's Exhibit B.) The defendant argues that the plaintiff's complaint filed with the CHRO on June 3, 2003, was filed more than 180 days from November 13, 2002, the date when the plaintiff clearly was aware of his termination and believed it to be discriminatory.
The plaintiff argues in opposition that his complaint to the CHRO was timely and that the defendant's reliance on the letter from his counsel is misplaced. The plaintiff argues that the discriminatory act that he alleges in his complaint is his actual termination date, which occurred on January 21, 2003, and that he received explicit "final notice" of his termination date on December 13, 2002. He argues that his complaint filed with the CHRO on June 3, 2003, was within 180 days of both the date of his final notice and his termination date.
The parties are clearly at issue as to the second requirement set out in § 46a-100 for bringing an action in superior court — the requirement that the person bringing the court action "has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82." The answer to the question of whether the plaintiff's complaint to the CHRO was timely is central to this court's ruling on the defendant's motion for summary judgment because in Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001), our Supreme Court held that although not an issue of subject matter jurisidiction, "the time limit of § 46a-82(e) is mandatory, and thus the commission could properly dismiss the plaintiff's complaint if it was not filed within 180 days of the alleged act of discrimination." (Emphasis in original.) The court further stated that "[i]f a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling." Id.
The determination of whether the plaintiff's complaint to the CHRO was timely requires this court to interpret § 46a-82(e) and, more specifically, to identify the "alleged act of discrimination" from which to begin counting the one hundred and eighty days allowed for filing a complaint. Generally, "[s]tatutory construction is a question of law . . ." (Internal quotation marks omitted.) Kelo v. City of New London, 268 Conn. 1, 13, 843 A.2d 500 (2004). Nevertheless, "it is the well established practice of [the Connecticut Supreme Court] to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . [The Supreme Court also has] held that an exception is made when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference." Szewczyk v. Dept. of Social Services, 275 Conn. 464, 474 (2005).
The defendant's Exhibit B filed in support of its motion for summary judgment is a copy of the merit assessment review issued by the CHRO relative to the complaint filed by the plaintiff with that agency. The form states that the CHRO is required to conduct a merit assessment review of all complaints pursuant to General Statutes § 46a-83(b), and the purpose of the review is to determine whether the complaint should be retained for a full investigation or be dismissed. The review indicates, at page 3, that the plaintiff's complaint was dismissed because "[t]he complaint is untimely filed. There is documentation in the form of a letter written by the complainant's attorney dated November 13, 2002 which indicates that the complainant was aware that he was scheduled to be terminated as of December 31, 2002. In that the complaint was not filed until June 3, 2003, more than 180 days had elapsed from the date the complainant had first knowledge of his impending termination. Termination is not a continuing violation." Although the CHRO began counting the 180 days allowed for filing a complaint from November 13, 2002, the date on which it determined that the plaintiff had "first knowledge of his impending termination," this court's research has not found, nor have either of the parties directed the court to, any case law indicating that the application of the 180-day requirement in the context presented by this case has been subject to any scrutiny by our appellate courts. This court has, however, found that the issue was previously and persuasively addressed by Judge Conway in McDougal v. CT. Comm. On Human R. Opp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV97-0348451 (October 5, 1999, Conway, J.) ( 25 Conn. L. Rptr. 551). In that action, however, the CHRO took the position that the plaintiff asserts in this case — that the actual termination date rather than the date the plaintiff is informed of the termination triggers the 180-limitation period. Because the McDougall decision arose in a different postural context and because our appellate courts have not ruled on the question, the CHRO's finding of untimeliness in this case, arguably, is not entitled to any special deference in deciding the defendant's motion for summary judgment.
In undertaking a determination of the timeliness of the plaintiff's CHRO complaint, this court notes that "[t]he state fair employment practices statute . . . is designed to eliminate certain discriminatory practices by employers in the hiring, promotion and discharge of employees . . . General Statutes § 46a-82 provides a wide assortment of prophylactic and specific remedies designed both to prevent future discriminatory practices and to accord the victim of past discrimination specific relief. In determining the scope of the relief [courts] are properly guided by the case law surrounding federal fair employment legislation." (Citation omitted.) Civil Service Commission v. Commission on Human Rights Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985). "Although the language of [Title VII of the Civil Rights Act of 1964, § 703(a)(1); 42 U.S.C. § 2000e-2(a)] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 (which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex) was to make the Connecticut statute coextensive with the federal . . . Although we are not bound by federal interpretation of Title VII provisions, [w]e have often looked to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute." (Citations omitted; internal quotation marks omitted.) State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989).
In the federal forum the time limitation period in an employment discrimination case begins to accrue at the time of the discriminatory act itself rather than the time wherein its consequences take effect. Moreover, continuity of employment, as arguably occurred in the instant case, is insufficient to prolong the life of an employment discriminations cause of action such as this. See generally Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and its progeny.
In Delaware State College v. Ricks, the question before the United States Supreme Court was whether the respondent, Ricks, had timely complained under the civil rights laws that he had been denied academic tenure because of his national origin. The court noted that "[d]etermining the timeliness of Ricks' . . . complaint, and this ensuing lawsuit, requires us to identify precisely the `unlawful employment practice' of which he complains"; Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); the same identification required to be made by this court. The Supreme Court rejected Ricks' argument that the naming of the 180-day filing requirement began with the actual termination of his employment, noting that "[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Id., 258. The court held that the only discrimination Ricks had alleged was the denial of tenure and thus the filing limitation for that action began at the time the tenure decision was made and communicated to him. Id., 258.
The plaintiff has attempted to distinguish Delaware State College v. Ricks from the present case on the basis of the allegation in his complaint that the "alleged discriminatory act" was the defendant's act of terminating him on January 21, 2003. Ricks, who had argued for the use of his termination date for the purposes of calculating the timeliness of his action, had pleaded only the denial of tenure as the alleged discriminatory act, not a discriminatory discharge. Apparently, the plaintiff posits that because he pleads that the alleged discriminatory act was his termination on January 21, 2003, the situation facing this court is "drastically different from the situation facing the Supreme Court in Ricks." The plaintiff also argues that he did not get "explicit" notice of his termination until he received the December 13, 2002 letter from Raymond F. Smith, the Director of Public Utilities for the defendant. (Plaintiff's Exhibit B.)
This court is not persuaded by the distinction the plaintiff attempts to make. The Supreme Court in Delaware State College v. Ricks, supra, in reversing the decision of the Court of Appeals for the Third Circuit, expressly rejected the reasoning of that court, which had determined that the statute of limitations for the respondent's claim in Ricks did not commence to run until his termination date. The reasoning of the Court of Appeals that was rejected by the Supreme Court would support the reasoning urged by the plaintiff in the present case: "[A] terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer's present intention to terminate him in the future." (Internal quotation marks omitted.) Delaware State College v. Ricks, supra, 449 U.S. 255. The Supreme Court noted that the Court of Appeals based its reasoning on its belief that an initial decision to terminate an employee sometimes might be reversed and that a rule focusing on the last day of employment would provide a "bright line guide both for the court and for tie victims of discrimination." (Internal quotation marks omitted.) Id., 255-56.
Delaware State College v. Ricks, supra, has been cited repeatedly by other federal courts in the context of discrimination claims. For example, in Flaherty v. Metromail Corp., 235 F.3d 133, 136 (2nd Cir. 2000), the court, in determining when a claim for constructive discharge occasioned by unlawful discrimination in employment accrues and citing Ricks, stated: "It has long been settled that a claim of employment discrimination accrues for statute of limitations purposes on the date the employee learns of the employer's discriminatory conduct." Again citing Ricks as authority, the Flaherty court stated: "In discriminatory discharge cases . . . the illegal act is often the decision to terminate the employee, and the limitations period begins to run on the date that the employer gives definite notice of the decision to the employee." Id., 137.
In Economu v. Borg-Warner Corp., 829 F.2d 311, 315 (2nd Cir. 1987), the court pointed out that "the Supreme Court [in Delaware State College v. Ricks, supra] expressly rejected a brightline, last-day-of-work rule . . . holding instead that the filing limitation period for claims of employment discrimination commences on the date the allegedly discriminatory decision was made and communicated to [the employee] . . . [T]he limitation period begins to run on the date when the employee receives a definite notice of the termination." (Citations omitted; internal quotation marks omitted.) Id., 315. See also Morse v. University of Vermont, 973 F.2d 122 (2nd Cir. 1992) (proper focus in analyzing timing of accrual in context of discrimination claims is on time of the discriminatory act, not the point at which the consequences of the act become painful).
Under the principles enunciated in the above-noted cases, the alleged discriminatory act for the purposes of the timeliness of the plaintiff's appeal to the CHRO in the present case is the date on which the plaintiff received a definite notice of his termination. As has previously been noted, the defendant's Exhibit B, filed in support of its motion for summary judgment, is a copy of a letter dated November 13, 2002, from the attorney "retained by the plaintiff to represent him in connection with his current employment situation with the Town of Wallingford," as the letter so states. The letter further states that "Mr. Vollemans' employment is scheduled to terminate effective on or about December 31, 2002, with the closure of the Power Plant being proffered as the alleged justification for that termination."
The court is not persuaded by the plaintiff's argument that although he "was aware in November 2002 that his employment was going to end, he was never given explicit notice of his termination until he received the letter from Mr. Smith dated December 13, 2002"; (emphasis added); which letter the plaintiff has submitted as Exhibit A to his memorandum of law in opposition to the defendant's motion for summary judgment. Smith's letter itself does not support the plaintiff's argument, because it opens by stating: "This letter will serve as final notice of your termination with the Town of Wallingford . . . Your position was funded through December 31, 2002 and therefore you are entitled to vacation, accrued . . . Therefore, you will remain on the payroll through one-half day on January 21, 2003." (Emphasis added.) "Final" notice would imply that the plaintiff previously was given notice of his termination, an implication that is supported by the action taken by the plaintiff in retaining a lawyer. The alleged discriminatory act occurred, sometime before November 13, 2002, when the plaintiff was informed of the decision to terminate his employment "on or about December 31, 2003." It is immaterial that he remained on the payroll because of accrued vacation through one-half day on January 21, 2003.
The defendant has met its burden to prove that there are no genuine issues of material fact regarding its claim that plaintiff's complaint to the CHRO was untimely filed pursuant to § 46a-82(e). The defendant is entitled to summary judgment as a matter of law.
The motion for summary judgment is granted.
Because the issue of the timeliness of the plaintiff's complaint to the CHRO is dispositive, this court need not and does not address the other grounds advanced by the defendant in support of its motion for summary judgment — that the plaintiff has failed to establish a prima facie case to establish age discrimination and that the defendant has articulated a nondiscriminatory reason for the plaintiff's termination.