Atkins v. Bridgeport Hydraulic Co.
| Decision Date | 24 December 1985 |
| Docket Number | No. 3608,3608 |
| Citation | 501 A.2d 1223,5 Conn.App. 643 |
| Parties | , 47 Fair Empl.Prac.Cas. (BNA) 527 Errol ATKINS v. BRIDGEPORT HYDRAULIC COMPANY. |
| Court | Connecticut Court of Appeals |
Ernest C. LaFollette, Monroe, for appellant (plaintiff).
Paul E. Knag, with whom was Gregory B. Nokes, Stamford, for appellee (defendant).
Before SPALLONE, DALY and BIELUCH, JJ.
This appeal arises from an action claiming wrongful termination of employment under common law and under the Fair Employment Practices Act, General Statutes § 46a-60(a)(4). The plaintiff, Errol Atkins, instituted a two count complaint against the defendant, Bridgeport Hydraulic Company, alleging wrongful discharge from employment and seeking reinstatement and damages. From the granting of the defendant's motion for summary judgment, the plaintiff has appealed.
The facts are not in dispute. The plaintiff had been employed by the defendant from November, 1971, until January 28, 1983. The plaintiff lodged three complaints with the Commission on Human Rights and Opportunities (CHRO). The first complaint, filed on August 17, 1982, claimed that he had been denied a promotion due to his race. The second, filed on September 1, 1982, alleged that he received a disciplinary suspension because of his race and because he had initiated the first complaint. The third, filed subsequent to the termination of his employment, on February 1, 1983, claimed that his discharge was retaliatory and racially motivated.
On September 7, 1983, the CHRO dismissed all three complaints as being unsupported by the evidence. A request for reconsideration was denied by letter dated September 30, 1983, which noted that the time period applicable to an appeal was thirty days for service upon the parties. The plaintiff let the time limit pass and served the defendant with notice on the thirty-first day, Monday, October 31, 1983. The CHRO, although not named as a party, was provided with a copy of the action against the defendant.
The trial court, in rendering summary judgment for the defendant, found that the plaintiff had failed to follow the statutory route of appeal, and that the independent action was not an appeal and was therefore improper. In his appeal to this court, the plaintiff claims that the trial court incorrectly concluded from the dismissals by the CHRO that this action was not an appeal, and that the plaintiff could not bring a separate and independent action.
The plaintiff contends that the present action constitutes an appeal to a court from a decision by an administrative agency. In the sense of transferring jurisdiction from one court to another, however, this is not an "appeal" but merely "a process, under the misleading name of appeal, for invoking the judicial power to determine a legal injury complained of, or the legality of an act done by the officers of another department." (Citations omitted.) Sheehan v. Zoning Commission, 173 Conn. 408, 411, 378 A.2d 519 (1977), quoting Malmo's Appeal, 72 Conn. 1, 6, 43 A. 485 (1899). While purportedly challenging the action of the CHRO in dismissing his complaints, the plaintiff has proceeded against the defendant seeking to compel reinstatement and the award of monetary damages.
Even if we assume arguendo that the plaintiff has filed an appeal, General Statutes § 4-183(b) provides in pertinent part: "Copies of the petition shall be served upon the agency and all parties of record ... within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." The plaintiff failed to serve process timely or properly within the proscriptions of the statute.
"Without a citation signed by competent authority, the officer to whom it is given for service receives no power or authority to execute its command, and becomes 'little more than a deliveryman.' " Sheehan v. Zoning Commission, supra, 173 Conn. 413, 378 A.2d 519; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961). (Citations omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, supra. The purpose of General Statutes § 4-183(b) is not to obviate the need for a citation, but rather to permit service upon the administrative agency in a manner different from ordinary civil actions, that is, by registered or certified mail.
Appeals to courts from administrative agencies may only be brought under statutory authority and only by strict compliance with the statutory provisions by which they are allowed. Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Newtown v. Department of Public Utility Control, 3 Conn.App. 416, 488 A.2d 1286 (1985); Board of Education v. State Board of Education, 38 Conn.Sup. 712, 717, 461 A.2d 997 (1983). Statutory time provisions which specify when an appeal must be taken are designed to facilitate a speedy determination of the case. The element of time represents not merely a procedural limitation but is an essential part of the remedy. "Such provisions are mandatory, and, if not complied with, render the appeal subject to [dismissal]." (Citations omitted.) Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).
Where the last day to appeal fell on Sunday, as was the case here, service of process on the following day did not satisfy the statutory requirements. Souza v. Great Atlantic & Pacific Tea Co., 25 Conn.Sup. 174, 176, 199 A.2d 170 (1964). Furthermore, restrictions on the service of process on Sundays were abolished upon the repealing of General Statutes § 52-71 by Public Acts 1976, No. 76-415, § 9.
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...However, the statute does not provide a private right of action for violations of § 46a-58. See Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 647-48, 501 A.2d 1223 (1985) (no private right of action for violation of § 46a-60); Osborn v. Rocklen Automotive Parts & Serv., Inc., 4 Conn.......
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