CHRO: Cayer v. WCSU - Motion to Dismiss

Cayer v. WCSU - Motion to Dismiss

 

STATE OF CONNECTICUT
OFFICE OF PUBLIC HEARINGS

21 Grand Street, 3rd Floor, Hartford, CT 06106
Tel.:(860) 541-3452 Fax.: (860) 246-5301
www.state.ct.us/chro

CASE NO.OPH/WBR: 2003-001

Paul Cayer, Complainant

v.

Western Connecticut StateUniversity, et al. Respondents

December 12, 2003

ORDER
RE: Motion to Dismiss or to Limit the Plaintiff's Claim

It is hereby ORDERED, the Motion to Dismiss or to Limit the [Complainant's] Claim ("Motion to Dismiss") is Granted in part and Denied in part for the reasons discussed below.

INTRODUCTION

On October 28, 2003, the Respondents filed a Motion to Dismiss under General Statutes § 4-61dd(b)(2) in regard to the Complainant's claims for actions that occurred before the effective date (June 2, 2002) of § 4-61dd(b)(2). The Respondents contend that the Human Rights Referee ("HRR") assigned to the present case by the Chief Human Rights Referee ("CHRR") at the Office of Public Hearings ("OPH") has no jurisdiction over claims that arose before the effective date of General Statutes § 4-61dd(b)(2). They also contend that in the instance that the Complainant has a claim that arose before that date, he must avail himself of the procedural and judicial remedies under General Statutes § 4-61dd(b)(4). For the sake of consistency and clarity, I presume the Respondents' use of the word "claims" refers to "whistleblower complaints" initiated per the requirements of General Statutes § 4-61dd(a), even though neither term is used in § 4-61dd(a).

The Complainant notified the Attorney General ("AG") of retaliatory actions on November 13, 2002 (received by the AG on November 18, 2002). This was after the effective date of General Statutes § 4-61dd(b)(2) (also referred to as the "Statute"). The retaliatory actions were allegedly due to information the Complainant disclosed to the Commission on Human Rights and Opportunities ("CHRO") and to the Auditors of Public Accounts ("Auditors") prior to the effective date of the Statute, June 2, 2002. After the AG completed its investigation, the Complainant filed a whistleblower retaliation complaint on June 9, 2003 with the CHRR.

There are two matters that the Complainant has reported as initial whistleblower complaints. The first was his 2000 complaint made to the Auditors about the Western Connecticut State University ("WCSU") financial aid office as well as other alleged incidents. See Motion to Dismiss ("Motion"), pages ("pp.") 3-4, Exhibits ("Ex.") B & C. The second was a 2002 complaint made to the CHRO about the agency's alleged non-compliance with diversity training mandates. Id. The Complainant concedes to this. The Respondents argue that only the 2000 complaint about the WCSU financial aid office and other alleged incidents is a "true whistleblower complaint" and that the Complainant's CHRO complaint was never communicated to the Auditors or to the AG and thus is not covered under General Statutes § 4-61dd(a). Ultimately, the Respondents maintain that for the Complainant to have his case heard before the HRR, "[only] those retaliatory acts based on the [complainant's] filing of an actual whistleblower complaint with the Auditors of Public Accounts after the effective date of the Statute can be considered in this action" under General Statutes § 4-61dd(b)(2). See Motion, pp. 4-5.

In the alternative, the Respondents argue that even if some of the retaliatory acts occurred after June 2, 2002, and the HRR determines to have jurisdiction over those retaliatory acts irrespective of the date when the Complainant filed his whistleblower complaint with the Auditors, the HRR's jurisdiction would be limited to only those retaliatory acts after the effective date of the Statute, narrowing the scope of the administrative proceeding.

The Complainant contends that the AG's office agreed to have his case heard before the HRR when the AG took the Complainant's whistleblower retaliation complaint dated November 13, 2002, which technically was the notice of retaliation to the AG received November 18, 2002. Complainant's Response to Motion to Dismiss ("Response"), p. 1. In that notice to the AG, the Complainant included information of all the allegations made to the CHRO and to the Auditors along with the twelve allegations of retaliatory actions. See Motion, Ex. B. After its investigation, the AG's office referred the Complainant to CHRO (which technically was the CHRR) for "additional relief". See Response, p. 1.

The Complainant also contends that "the legislature did not intend to make it [more] difficult for individuals to obtain relief under the law by permitting the [AG's] Office to change its interpretation of the law in mid-stream, to the detriment of the person seeking justice." Id. It is important to note that the Attorney General's office has many Assistant Attorneys General representing various entities of the State of Connecticut. The Assistant Attorney General representing the Respondents in the present case is separate from the Assistant Attorney General who investigated the Complainant's allegations of retaliation pursuant to General Statutes § 4-61dd(b)(2).

ISSUES

Whether the HRR has jurisdiction over the whistleblower retaliation complaint filed on June 9, 2003 with the OPH that includes retaliatory actions that stem from information the Complainant disclosed to CHRO, the WCSU Administration, and the CSU Chancellor but did not disclose to the Auditors in 2002.

Whether the HRR has jurisdiction over the whistleblower retaliation complaint filed on June 9, 2003 with the OPH that includes retaliatory actions that stem from information the Complainant disclosed to the Auditors of Public Accounts in 2000.

Standard of Review
"A motion to dismiss attacks the court's jurisdiction to hear the present action: the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . Every presumption is to be indulged in favor of jurisdiction. In ruling upon a motion to dismiss the complaint is to be construed most favorably to the plaintiff. The motion to dismiss…admits all facts, which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however,…the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations in the complaint." (Internal quotation marks omitted; internal citations omitted.) Lueneburg v. Mystic Dental Group, 2 Conn. Ops. 937, 1996 WL 456967 *2 (Conn. Super. August 1, 1996).

ANALYSIS

Jurisdiction over Retaliatory Actions Due to Information Disclosed to the CHRO, WCSU Administration, and the CSU Chancellor

General Statutes Section 4-61dd(a) specifically denotes the requirements to be complied with for an employee to avail himself under the jurisdiction of the CHRR. General Statutes Section 4-61dd(a) provides: "any person having knowledge of any matter. . . may transmit all facts and information. . . .to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report…to the Attorney General." Next, pursuant to the new language of General Statutes § 4-61dd(b)(2), "[i]f a state or quasi-public agency employee… alleges that a personnel action has been threatened or taken in retaliation for such employee's disclosure of information to the Auditors of Public Accounts or the Attorney General under the provisions of subsection (a) of this section, the employee may notify the Attorney General, who shall investigate…After the conclusion of such investigation,…the employee…may file a complaint…with the Chief Human Rights Referee . . . "

It is undisputed that the Complainant did not disclose the information of the alleged problems of the "agency's non-compliance with the diversity training" to the Auditors. See Response, p. 1 and Motion, p. 3, . 2. The Complainant did not comply with the requirements denoted in General Statutes § 4-61dd(a) to avail himself of the jurisdiction of the HRR pursuant to General Statutes § 4-61dd(b)(2). Therefore, the allegations in the whistleblower retaliation complaint pertinent to the information not transmitted to the Auditors but instead given to WCSU administration, the CSU Chancellor and to the CHRO cannot be adjudicated by the HRR. See Response, p. 1. The HRR lacks jurisdiction to hear those allegations.

The Complainant is able to have those allegations of his whistleblower retaliation complaint adjudicated elsewhere, and in this case, he has chosen to go to another forum, the CHRO. See Response, p. 1 and Motion, p.4.

Jurisdiction over Retaliatory Actions Due to Information Disclosed to the Auditors of Public Accounts

The Respondents contend that Public Acts 2002, No. 02-91 § 1, codified as General Statutes § 4-61dd(b)(2), was intended to apply prospectively to whistleblower retaliation complaints initiated pursuant to General Statutes § 4-61dd(a) when the initial disclosure of information to the Auditors occurs after the effective date of the Statute.

The Complainant argues that all of the allegations in his whistleblower retaliation complaint that stem from the information disclosed to the Auditors pursuant to General Statutes § 4-61dd(a) are covered under the jurisdiction of the CHRR.

Plain Language of the Statute

In order to determine whether the Statute applies to information transmitted to the Auditors prior to or after the effective date of the Statute, I must look first to the language of the Statute. Public Acts 2003, No. 03-154, § 1 (P.A. 03-154) states that "[t]he 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."

In the present case, when reading General Statutes § 4-61dd(b)(2) there is no need to consider extratextual evidence or legislative intent. It is clear from the language of the Statute that there is not a date stated when a complainant may transmit information to the Auditors pursuant to General Statutes § 4-61dd(a) nor a date stated when a complainant may notify the AG or file his whistleblower retaliation complaint with the CHRR pursuant to General Statutes § 4-61dd(b)(2) in order for the complainant to avail himself/herself to the jurisdiction of the HRR.

The lack of a specific date does not make General Statutes § 4-61dd(b)(2) ambiguous but instead makes it broad and inclusive. By interpreting General Statutes § 4-61dd(b)(2) in this manner, it does not yield absurd or unworkable results. It allows for the HRR assigned by the CHRR to hear all complaints of whistleblower retaliation regardless of when the information was transmitted to the Auditors. "It is our duty to interpret statutes as written. Courts cannot, by construction, read into statutes provisions which are not clearly stated. The intent of the legislature is to be found not in what it meant to say but in what it did say." (Citations omitted. Internal quotation marks omitted.) The Glastonbury Company v. Gillies, 209 Conn. 175, 179; 550 A. 2d 8, 1988 Conn. Lexis 314 (1988).

If the legislature intended for the CHRR to hear complaints under General Statutes § 4-61dd(b)(2) stemming only from information transmitted to the Auditors under General Statutes § 4-61dd(a) after the effective date of the Statute, it would have added that language in General Statutes §4-61dd et seq. when it drafted the new language of § 4-61dd(b)(2), but it did not. Its silence on this matter indicates that it did not want to impose such a restriction.

Retrospective and/or Prospective Application of the Statute

Although, the plain language interpretation of the Statute is dispositive, the Respondents, in citing to Colonial Penn Ins. v. Bryant, 245 Conn. 710, 714 A.2d 1209 (1998), argue "that statutory enactments presumptively apply prospectively." See Motion, p. 5, 2. However, the actual language of Colonial Penn Ins. v. Bryant, supra 718, is that the court has "uniformly interpreted [General Statutes] § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively." (Emphasis added). Id. The Respondents concede that General Statutes § 4-61dd(b)(2) "simply created an additional procedural remedy that was not available prior to the enactment of the statutory subsection." (Emphasis added). See Motion, p. 1, 2. Therefore, contrary to the Respondents' position, General Statutes § 4-61dd(b)(2) should be applied retroactively because it does not affect one's substantive rights, but instead provides for additional procedural requirements to provide the Complainant relief. See Davis v. Forman School, 54 Conn. App. 841, 738 A.2d 697 (1999).

In Davis v. Forman School, supra, a penalty provision was imposed in an enactment on late payments per a stipulation agreement made prior to the effective date of the enactment. "[T]he statute applied to this case even though the claim arose prior to the effective date of the act because the statute was procedural in nature." Id. at 841. In the present case, because the Statute is remedial in nature, this tribunal should not impose limitations on the enforcement procedures provided for an employee alleging retaliation that the Statute itself does not clearly specify. See Davis v. Forman School, supra, 844.

"Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. See, e.g., State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). In order to determine the legislative intent, the court utilizes well established rules of statutory construction. The court's point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law." Davis v. Forman School, supra, 54 Conn. 853-4. "The rule of presumed legislative intent is not, however, applied to legislation that is general in its terms, affects only matters of procedure and does not impose new obligations or affect the substantive rights of the parties. While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress. Where the amendment is not substantive, i.e., not directed to the right itself, but rather to the remedy, it is generally considered a distinctly procedural matter." (Citations omitted; internal quotation marks omitted.) Id. at 854-5.

The statutory enactment of General Statutes § 4-61dd(b)(2) did not cause a change in the substantive rights of the parties. It did not impose a new obligation on the part of the Respondents as stated in General Statutes § 55-3. Rather, it provided for another forum for a complainant to go to receive relief when the complainant has transmitted information to the Auditors pursuant to General Statutes § 4-61dd(a) that is a prerequisite to the requirements of General Statutes § 4-61dd (b)(2). The Statute is procedural in that it prescribes another avenue for an employee who alleges retaliation to go to enforce his/her preexisting rights under General Statutes § 4-61dd et seq.

"Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore, leaving the preexisting scheme intact. Procedural statutes generally will be applied retroactively absent contrary legislative intent . . .. This rule, however is not purely mechanical in its application. . . . Absent an express legislative intent, a statute will not be applied retroactively, even if it is procedural, when considerations of good sense and justice dictate that it not be so applied. . . . These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes." (Citations omitted; Internal quotation marks omitted.) Davis v. Forman School, supra, 856.

Even though the Respondents concede that the Statute is procedural (see Motion, p. 1), they look to legislative history for support that the Statute should be applied prospectively to claims that are initiated under General Statutes § 4-61dd(a) only after the effective date of the Statute. Here, although there is not an express legislative intent to apply the Statute retroactively, the Statute is procedural and when considering good sense and justice (discussed below under public policy discussion), it should be applied retroactively as it relates to General Statutes § 4-61dd(a).

Legislative History of the Statute

The language of the legislative history of the Statute is somewhat unclear and not helpful in this matter. In their discussion of the Statute, the legislators used the terms, "complaint" and "report" as well as the terms, "Attorney General" and "Auditors" many times interchangeably and in reference to different circumstances that were not consistent with the language of General Statutes § 4-61dd(b)(2). The Respondents cite the discussion between Representatives Belden and O'Rourke to support their position that "[only] those retaliatory acts based on the [complainant's] filing of an actual whistleblower complaint with the Auditor[s]. . . after the effective date of the [S]tatute" are under the jurisdiction of the HRR pursuant to General Statutes § 4-61dd(b)(2). See Motion, p.5 1. I will presume that here, the Respondents use the phrase "filing. . . whistleblower complaint" to mean information disclosed to the Auditors. Because, earlier in its Motion, the Respondents state that, "the triggering event for protective activity under the Whistleblower statute, [General Statutes §] 4-61dd(a), is the reporting of information to the Auditor[s] . . ." not the filing of a whistleblower complaint with the Auditors. (emphasis added.) Motion, p.2, 2. Because of the very specific requirements denoted in General Statutes § 4-61dd(a) and (b)(2), it is paramount to distinguish the terms "information" and "report" from "complaint" as well as "Attorney General" from "Auditors". Each word applies to completely different scenarios in General Statutes § 4-61dd(a) and (b)(2).

The legislator's discussion is as follows:

Representative Beldon: (113th)
Through you Mr. Speaker. It indicates that the bill is effective on passing. Can I assume from that that only complaints after the bill becomes law will in fact be covered under the new language and the proposal before us?

Representative O'Rourke: (32nd)
Through you Mr. Speaker. That's a good question, let me just take a moment to prepare my answer. Through you Mr. Speaker, if I could. Yes, it would be complaints brought to the Attorney General and the state auditors after the effective date of the act.

45 H.R. Proc., Pt. 9, 2002 Sess., pp. 2869-2870. In this colloquy, it is unclear what Representative Belden meant when he used the word "complaints". Did he mean the initial transmittal of information to the Auditors prescribed under General Statutes § 4-61dd(a) or the notice of retaliatory actions given to the AG and/or the filing of a complaint with the CHRR prescribed under General Statutes § 4-61dd(b)(2)? The word "complaint" is only used once in General Statutes § 4-61dd(b)(2) to refer to when the employee makes a complaint to the CHRR and not mentioned at all in General Statutes § 4-61dd(a). See General Statutes § 4-61dd(a) and (b)(2). Representative O'Rourke responded by stating, "complaints brought to the Attorney General and the state auditors . . ." However, in the following subsequent discussion, he explained that he had misspoken and that the "information" (not a complaint) is brought only to the Auditors of Public Accounts (not the AG). 45 H.R. Proc., supra, p. 2934.

Representative Heagney stated:
I'm now referring if you will, to the proponent of the bill, that the rights we're talking about in this act as amended only come into existence if the individual makes a complaint or provides information to the auditor of public accounts.

Representative O'Rourke responded by stating:
These rights are triggered in the event that a person brings whistleblower information and then, it's not a complaint, it's information to the AG or the auditors of public account[s]. 45 H.R. Proc., supra, p. 2932.

Representative Heagney stated:
[I]t seems to me that the act as proposed only calls for attention to be brought of these facts to the auditors of public accounts, no other individuals.

Representative O'Rourke responded, stating:
You're correct, I misspoke a moment ago. It brings that information to the auditors of public accounts. 45 H.R. Proc., supra, p. 2934.

Also, in an earlier discussion, Representative O'Rourke used the term "reports" when discussing the initial bringing of information to the Auditors. 45 H.R. Proc., supra, p. 2858. Representative O'Rourke had stated: ". . . if someone brings forth reports of waste, fraud…to the Attorney General or the state auditors . . .." Here, he's talking about reports, not "complaints", and that they are brought to the AG and Auditors (which was later corrected). Hence, there is some confusion regarding the terms: complaints, reports, information, AG, and Auditors. The various uses of these terms in the legislators' discussion of the Statute cause a lack of clarity in the legislative history, which makes it difficult to rely on when interpreting the meaning of the Statute.

It is unclear from the reading of the legislative history what, in the paragraph that Respondents cite, Representative O'Rourke intended in his statement, the "complaints brought to the [AG] and [Auditors] after the effective date of the act." Based on the discussion it appears that Representative O'Rourke did not intend to say "complaints" nor did he intend to use the word AG. If he did intend to use these terms, was he referring to information disclosed to the Auditors or was he referring to notice of retaliatory actions given to the AG or complaints filed with the CHRR?

Immediately prior to the discussion between Representatives Belden and O'Rourke, the legislators were discussing the bill (House Bill No. 5487, Public Act 02-91) as amended, in regard to the requirements that the AG investigates and then the employee can proceed to the CHRR. See 45 H.R. Proc., supra, pp. 2867-2869. Therefore, it would be logical to assume that the legislators were referring to "complaints" to the AG and then to the CHRR that could mean that only those notices to the AG and thereafter complaints made to the CHRR after the effective date of the Statute are covered under the jurisdiction of the CHRR irrespective of § 4-61dd(a). However, I cannot assume what the legislature intended due to the lack of consistency and the varying uses of the terms in the legislative history. When taken in its entirety, the legislative history is inconclusive to Respondents' contention that the Statute only applies to whistleblower retaliation complaints that arose due to the disclosure of information under General Statutes § 4-61dd(a) after the effective date of the Statute.

The requirements of General Statutes § 4-61dd(a) are stated in General Statutes § 4-61(b)(2) and must be complied with before an employee can avail himself/herself to the additional requirements of § 4-61dd(b)(2). There is no clear discussion in the legislative history that General Statutes § 4-61dd(b)(2) should affect the requirements of General Statutes § 4-61dd(a) in a prospective manner. The legislature may have intended for General Statutes § 4-61dd(a) not to be affected.

The public policy is spelled out in the earlier discussion of the Statute when Representative O'Rourke stated: "…the bill before us Mr. Speaker tries to create a more favorable environment whereby state workers and employees of large state contractors feel free to bring forth important information of waste, fraud…in order to protect the public tax dollar and the proper running of our government." 45 H.R. Proc., supra, p. 2857. Representative O'Rourke also stated: "the thought here is to speed up the processing of these complaints, to streamline it and have a faster decision." 45 H.R. Proc., supra, p. 2871.

I am not persuaded that the statement made by the same legislator referenced by the Respondents evidenced prospective application of the Statute as it relates to General Statutes § 4-61dd(a). The public policy appears to better reflect the intent of the legislature than the legislators' understanding of the language of General Statutes § 4-61dd(b)(2) and (a) in the earlier discussion of the bill. See Sears, Roebuck & Co. v. Brown, 806 F.2d 399; 1986 U.S. App. Lexis 34179, (1986). The discussion in the legislative history on which the Respondents rely is not the clear expression of the legislative intent that Respondents would like it to be.

"It is not the [the court's] practice to construe a statute in a way to thwart its purpose or lead to absurd results or in a way that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." Colonial Penn Insurance Company v. D. Eugene Bryant, supra, 245 Conn. 725.

Here, if I accept Respondents' argument that the Statute is applied prospectively and it applies to General Statutes § 4-61dd(a) in the same manner, the Complainant would not have his case heard pursuant to General Statutes § 4-61dd et seq. This is because under General Statutes § 4-61dd(b)(4) he would have had to appeal to the Employees' Review Board within thirty days of knowledge of the incident giving rise to such claim. This does not achieve the legislature's purpose in streamlining the cases resulting in efficiency and faster decisions. In addition, if I accept Respondents' position in the alternative that only retaliatory acts that occurred after the effective date of the Statute should be covered under the jurisdiction of the HRR, that would mean that only part of Complainant's case is heard before the HRR and the other is not. This clearly results in absurdity and does attain a sensible result.

More important, the legislators did not consider and discuss the specific scenario before me, when facts and information were transmitted to the Auditors prior to the effective date of the Statute and the actual notification of retaliatory actions to the AG and the filing of a complaint with the CHHR occur after the effective date of the Statute. Therefore it would only be fair and logical to apply the Statute retroactively as it relates to General Statutes § 4-61dd(a) since the legislative history is not clearly stated on this particular issue.

If any intention can be drawn from the legislative discussion referenced by the Respondents, it possibly would be that the legislature intended that the new requirements of the Statute take effect after June 2, 2002. Since these requirements were not in existence prior to June 2, 2002, an employee would not have been aware of the requirement to make notice to the AG and the option to go to the CHRR. Therefore, no notice would have been given and no complaints would have been filed with the CHRR prior to June 2, 2002.

"A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment." Guy Poirer v. Zoning Board of Appeals of the Town of Wilton, 75 Conn. App. 289, 296, 815 A.2d 716, (2003) citing Reynolds v. Unites States, 292 U.S. 443, 449, 54 S.Ct. 800, 78 L. Ed. 1353, 79 Ct. Cl. 790 (1934). Here, the facts or requisites are "that a personnel action has been threatened or taken in retaliation for such employee's disclosure of information to the Auditors . . .," which is explicitly stated in General Statutes § 4-61dd(b)(2). The subsequent action, which depends upon the facts or requisites, is that "the employee may notify the Attorney General, who shall investigate pursuant to subsection (a) of this section. After the conclusion of such investigation, the Attorney General, the employee . . . may file a complaint … with the Chief Human Rights Referee. . .." General Statutes § 4-61dd(b)(2).

Therefore, the Statute can be considered prospective despite its effect on cases previously initiated under the requirements of General Statutes § 4-61dd(a) before the effective date of the Statute. Guy Poirer v. Zoning Board of Appeals of the Town of Wilton, supra, 296. As stated in Guy Poirer v. Zoning Board of Appeals of the Town of Wilton, supra, 296, "[t]hus, although the act applies prospectively to terminations of distributorships, the criteria upon which such terminations are to be considered might well arise either before or after its effective date. Cf. Hartford v.Suffield, 137 Conn. 341, 343, 77 A.2d 760 (1950)." (Emphasis added). Id. citing Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 479 A.2d 1191 (1984). This is the present case, that the Statute applies prospectively to whistleblower retaliation complaints filed with the CHRR, the prerequisites/criteria upon which such whistleblower retaliation complaints are derived might well arise either before or after the Statute's effective date.

Therefore, I disagree with the Respondents that the triggering event under General Statutes § 4-61dd(a) (the prerequisite to General Statutes § 4-61dd(b)(2)) must occur after the effective date of the Statute in order for the HRR to have jurisdiction over the whistleblower retaliation complaint. Although, I do agree that the Statute can be applied prospectively as to a complainant complying with its requirements of General Statutes § 4-61dd(b)(2) only.

I conclude that the requirements under General Statutes § 4-61dd(a) may occur prior to the effective date of the Statute. As good sense dictates, the legislators clearly intended pursuant to public policy that an employee should have a more efficient route to bring his whistleblower retaliation complaint. Also, for the sake of justice, the legislators intended to give the employee a more favorable forum to bring forth claims freely. Dismissing this case would not be in the best interest of justice for the employee who has complied with all requirements of General Statutes § 4-61dd et seq., as the Complainant has done here.

Respondents' Alternative Position

In the alternative, the Respondents state that "[the complainant] may argue that the [HRR] can apply [General Statutes] § 4-61dd(b)(2) to any retaliatory acts that occurred after the effective date of the [S]tatute irrespective of the date when he filed his whistleblower complaint with the auditor of public accounts in 2001." See Motion, p. 6. The Respondents argue that if this interpretation is correct, the Complainant must plead facts showing exactly what retaliatory conduct occurred after the effective date of the Statute, June 2, 2002. Id. However, the issue here is not that the "retaliatory acts or conduct" must occur after the effective date of the Statute, it is that the notification of retaliatory acts/actions to the AG must occur. Here, the complainant notified the AG on November 18, 2002, which is after the effective date of the Statute.

CONCLUSION

As long as the Complainant transmitted information to the Auditors, pursuant to General Statutes § 4-61dd(a), and then notified the AG of retaliatory actions, pursuant to General Statutes § 4-61dd(b)(2), all of the allegations of retaliatory actions included in the whistleblower retaliation complaint that the Complainant filed with the CHRR are to be adjudicated by the HRR assigned to hear the case. The particular issue of which retaliatory actions stem from the Complainant's whistleblower information brought to the Auditors will be adjudicated also by the HRR. Thus, the portion of the Complainant's whistleblower retaliation complaint stemming from information regarding the alleged problems in the WCSU's financial aid office as well as other alleged incidents are covered under the jurisdiction of the HRR.

ORDER

Hence, the Motion to Dismiss that part of the whistleblower retaliation complaint that stems from the information transmitted to the Auditors about the alleged problems in the WCSU financial aid office and other incidents is hereby DENIED. The Motion to Dismiss that part of the whistleblower retaliation complaint that stems from the information about the alleged problems with the agency's diversity training program that was not transmitted to the Auditors is hereby GRANTED.

So Ordered this _____ day of December 2003.

_____________________________________
The Honorable Donna Maria Wilkerson
Human Rights Referee

c. Joseph A. Jordano, AAG
Paul Cayer





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