CHRO: Walley v. DOC - 0020470, Ruling Re: Commission's Motion to Amend the Complaint

Walley v. DOC - 0020470, Ruling Re: Commission's Motion to Amend the Complaint

CHRO No. 0020470

EEOC No. 16AA02320

Commission on Human Rights and Opportunities ex rel. :
Terry Walley, Complainant

v.

State of Connecticut Department of Correction, Respondent

July 31, 2002

Ruling re: commission's motion to amend the complaint
and the respondent's objection thereto

I.

    On June 20, 2000, the complainant filed this complaint with the commission alleging that the respondent had failed to accommodate his physical disability. By motion dated July 11, 2002, the commission moves to amend the complaint to add a claim of retaliation. The commission alleges that the respondent terminated the complainant's employment on August 2, 2001 in retaliation for the complainant's previous opposition to discrimination, his participation in a commission proceeding and his physical disability. The respondent filed an objection on July 22, 2002. The respondent asserts, inter alia, that the proposed amendment constitutes a restatement of allegations contained in an Affidavit of Illegal Discriminatory Practice, CHRO # 0220027, ("affidavit") filed by the complainant against the respondent. The commission dismissed said affidavit on December 6, 2001 and issued a release on December 27, 2001.
    For the reasons set forth herein, the commission's motion to amend is denied and the respondent's objection is sustained.


II.


    On June 20, 2000, the complainant filed the present complaint (CHRO No. 0020470). While this complaint was pending, he filed, on July 25, 2001, the affidavit against the respondent alleging retaliation based upon the complainant's race, physical disability, and for previously filing complaints with the commission. The affidavit was amended on August 23, 2001 to include a claim of retaliation resulting from the respondent's termination of the complainant's employment.
On December 6, 2001, the commission dismissed the affidavit, pursuant to General Statute 46a-83(b). According to the commission, "there is no reasonable possibility that further investigation will result in a finding of reasonable cause inasmuch as it was determined that: the record did not support [the complainant's] allegations that the respondent discriminated/retaliated against [him] based upon the protected classes [he] claimed." The complainant did not seek a reconsideration of the dismissal and, pursuant to General Statutes 46a-83a, the commission issued a release on December 27, 2001.
    Section 46a-83a(a), as amended by P.A. 01-95, provides in relevant part that "[i]f a complaint is dismissed pursuant to subsection (b) of section 46a-83 and the complainant does not request reconsideration of such a dismissal as provided in subjection (e) of said section 46a-83 the executive director of the commission shall issue a release and the complainant may, within ninety days of receipt of the release from the commission, bring an action in accordance with section 46a-100 and sections 46a-102 to 46a-104, inclusive." As the allegations in the amended affidavit are essentially the same as the proposed amendment to the complaint, the motion to amend the complaint must be denied. Under 46a-83a(a), the commission has released its jurisdiction to adjudicate the retaliation allegation in whatever form it may take, and the statute has limited the complainant's relief to either an action in superior court or a request to the commission for reconsideration of its dismissal.
Generally, the scope of the public hearing should be limited not by the words of the complaint or affidavit but by the scope of the investigation that reasonably grows out of the allegation of discrimination. Cameron v. St. Francis Hospital and Medical Center, 56 F. Sup. 2d 235, 240 (D. Conn. 1999). In this case, the commission's investigation has already concluded that there is no basis for the allegation of retaliatory discharge.
    If the complainant had simply amended this complaint rather than file a new affidavit or amended this complaint and then withdrawn his affidavit prior to its dismissal and release, the proposed amendment might stand. Alternatively, the commission could have found reasonable cause for the retaliation allegation and certified the affidavit to public hearing. However, the complainant and the commission pursued none of these alternatives. Instead, the complainant voluntarily filed a new affidavit; and the commission dismissed the affidavit as unsupported by the investigatory record and released its jurisdiction over the retaliation allegation. As a result of the choices made by the commission and the complainant, the commission no longer has jurisdiction to hear the allegations contained in the affidavit. See Commission on Human Rights and Opportunities ex rel. Claire T. Doyle v. State of Connecticut, CHRO No. 9730257, Ruling on Respondent's Motion to Dismiss (August 18, 2000).

III.


    Notwithstanding the general principle favoring amendments to complaints, under the facts of this case the commission's motion to amend the complaint is denied and the respondent's objection is sustained. As previously ordered, on or before September 26, 2002, the parties shall file and serve notice as to the order in which the cases of CHRO ex rel. Terry Walley v. State of Connecticut and CHRO ex rel. Christopher Long v. State of Connecticut shall be presented. The public hearing shall commence on October 1, 2002 at 9:30 AM.

______________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. T. Walley
Mr. D. Kruk
Atty. J. Emons
Atty. C. Sharp





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