Vollemans v. Town of Wallingford, 27332.

Citation928 A.2d 586,103 Conn.App. 188
Decision Date14 August 2007
Docket NumberNo. 27332.,27332.
CourtAppellate Court of Connecticut

John-Henry M. Steele, Middlefield, for the appellant (plaintiff).

Michael J. Rose, with whom was Johanna G. Zelman, for the appellee (defendant).



In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the United States Supreme Court held that the period for filing a discriminatory discharge complaint accrues when the employer unequivocally notifies the employee of termination. We are asked in this case to adopt that federal precedent as a matter of state law. We decline to do so in light of the remedial purpose of the Connecticut Fair Employment Practices Act, the legislative history surrounding General Statutes § 46a-82 (e) and the compelling policy considerations that favor a contrary rule. Accordingly, we reverse the judgment of the trial court granting summary judgment in favor of the defendant, the town of Wallingford, on the age discrimination action of the plaintiff, Peter J. Vollemans, Jr.

The following facts are undisputed. The plaintiff became superintendent of the Pierce power plant, which the defendant owned and operated, in 1989. On February 25, 2000, the plaintiff was informed that the plant would be closed and his position eliminated. The defendant closed the plant on June 30, 2000, but retained the plaintiff's services for some time thereafter as it decommissioned the plant. On November 13, 2002, the defendant's personnel director received a letter from the plaintiff's attorney. That letter provided in relevant part: "I have been retained by [the plaintiff] to represent him in connection with his current employment situation with the [defendant]. . . . As you probably know, [the plaintiff's] employment is scheduled to terminate effective on or about December 31, 2002. . . . All of the other employees at the power plant, who are not being terminated, are substantially younger than [the plaintiff]. . . . The absence of any other reason substantiating the disparate treatment between [the plaintiff] and the other power plant employees raises a strong presumption that [the plaintiff] is not being transferred to another position simply because of his age. During his employment, certain representations were made to [the plaintiff] . . . that [the plaintiff] would have a position with the [defendant] as long as he wanted. . . . Accordingly, the failure to continue [the plaintiff's] employment with the [defendant] appears to be in direct contradiction of these promissory representations. . . . [The plaintiff] is prepared to bring his claims to the [commission on human rights and opportunities (commission)] and to court if necessary, but would rather attempt to reach an accord with the [defendant] than proceed in this matter. Therefore, [the plaintiff] respectfully requests that a representative of the [defendant] contact me . . . to discuss a possible resolution of these issues short of litigation."

The plaintiff subsequently was provided written notice of the impending termination of his employment. In a letter to the plaintiff dated December 13, 2002, Raymond F. Smith, the defendant's director of public utilities, informed him that "[t]his letter will serve as final notice of your termination with the [defendant]. . . ." The plaintiff's final day of employment was January 21, 2003.

The plaintiff filed a complaint with the commission on June 3, 2003, which alleged that his employment was terminated "because of his age in violation of the prohibitions in the Connecticut Fair Employment Practices Act [(CFEPA), General Statutes § 46a-51 et seq.]." After conducting a merit assessment review, the commission dismissed the plaintiff's action as untimely under § 46a-82 (e). The commission stated: "The complaint is untimely filed. There is documentation in the form of a letter written by the [plaintiff's] attorney dated November 13, 2002 which indicates that the [plaintiff] 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 [plaintiff] had first knowledge of his impending termination. Termination is not a continuing violation." The commission further issued a release of jurisdiction, authorizing the plaintiff to commence a civil action in the Superior Court.

The plaintiff's December 17, 2003 complaint followed, which repeated his allegation before the commission that the termination of his employment constituted age discrimination in violation of CFEPA.1 Following discovery, the defendant moved for summary judgment on three grounds: (1) that the plaintiff's complaint to the commission was untimely; (2) that the plaintiff failed to establish a prima facie case of age discrimination; and (3) that the defendant had articulated a nondiscriminatory reason for the termination of the plaintiff's employment. The court heard argument on the motion on May 31, 2005. In its memorandum of decision, the court applied the rule set forth in Ricks, holding that "the alleged discriminatory act for the purposes of the timeliness of the plaintiff's appeal to the [commission] in the present case is the date on which the plaintiff received a definite notice of his termination." Finding that the plaintiff had received that notice "sometime before November 13, 2002," the court concluded that no genuine issues of material fact existed regarding the defendant's claim that the plaintiff's complaint to the commission was untimely. It therefore rendered summary judgment in favor of the defendant.2 From that judgment, the plaintiff now appeals.

Our standard of review governing a court's grant of summary judgment is well established. Summary judgment is appropriate when "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." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); Practice Book § 17-49. As the court's decision on a motion for summary judgment is a legal determination our review on appeal is plenary. Rosato v. Mascardo, 82 Conn.App. 396, 410, 844 A.2d 893 (2004).

"Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [The moving party] must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment. . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. . . . The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate.

"The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion. . . .

[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-803, 842 A.2d 1134 (2004). Finally, because this case distills to an issue of statutory interpretation, our review of that issue of law is plenary. See Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 570, 887 A.2d 848 (2006).

The plaintiff brought the present action under the CFEPA, which proscribes discriminatory employment practices on, inter alia, the basis of age. See General Statutes § 46a-60 (a)(1).3 That statutory scheme sets forth the procedure for filing a complaint thereunder. Section 46a-82 (e) requires that "[a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination except that any complaint by a person claiming to be aggrieved by a violation of subsection (a) of section 46a-80 must be filed within thirty days of the alleged act of discrimination." This appeal centers on the plaintiff's compliance with that statute.

Our Supreme Court scrutinized § 46a-82 (e) in Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645, on appeal after remand, 67 Conn.App. 316, 786 A.2d 1283 (2001), and concluded that the time limit contained therein is not subject matter jurisdictional; id., at 282, 777 A.2d 645; but rather operates as a statute of limitations. Id., at 278, 777 A.2d 645. The court explained: "[T]he failure to meet the 180 day time limit in § 46a-82 (e) is [not] without consequence. . . . [I]f a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling. Thus, a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent, or some other compelling equitable tolling doctrine applies. We conclude that the time limit of § 46a-82 (e) is mandatory, and thus the commission could properly dismiss the plaintiff's complaint...

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