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Velazquez v. State of Connecticut Department of Corrections

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

May 18, 2016

Ernesto Velazquez
v.
State of Connecticut Department of Corrections Opinion No. 133747

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wenzel, William J., J.

          MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS

          WENZEL, J.

         This action comes before the court on the Motion to Dismiss (#103) of the Defendant State of Connecticut Department of Correction (" State"). The motion challenges the subject matter jurisdiction of this court on the basis that plaintiff cannot assert a claim for discrimination based on sexual orientation because such claim was never raised before the Connecticut Human Rights and Opportunities Commission (" CHRO" ) and this failure to exhaust his administrative remedy deprives this court of any jurisdiction over the claim.[1]

         Standard of Review

         " Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim . . . The Superior Court has no jurisdiction to act where there is an adequate administrative remedy that has not been exhausted." (Citations omitted; internal quotation marks omitted.) Flanagan v. Commission on Human Rights & Opportunities, 54 Conn.App. 89, 91-92, 733 A.2d 881, cert. denied, 250 Conn. 925, 738 A.2d 656 (1999). Thus, our resolution of the defendant's claim turns on whether the complaint filed with the commission, in which the plaintiff made claims . . . satisfied the exhaustion requirement as to the other claims contained in her complaint before the Superior Court. Ware v. State, 118 Conn.App. 65, 81, 983 A.2d 853, 864 (2009).

         Discussion

         The Complaint in question asserts two causes of action: Count One, a claim for discrimination based on sexual orientation under § 46a-81c, and Count Two, a claim for maintaining a hostile work environment based on plaintiff's sexual orientation. Each of these claims is based on the same five alleged acts of other corrections officers during plaintiff's employment as a corrections officer with the State. The motion to dismiss is directed to Count One of the Complaint only. The basis for the motion is that the plaintiff has failed to exhaust his administrative remedies having never identified his claim before the CHRO as one for sexual orientation discrimination. Where this is an adequate administrative remedy which has not been exhausted, the Superior Court has no jurisdiction. Flanagan v. Commission on Human Rights & Opportunities, 54 Conn.App. 89, 91-92 (1999).

         In considering this motion, there is no dispute that plaintiff did in fact file a complaint before the CHRO on September 5, 2014. A copy of that complaint, more specifically the Affidavit of Illegal Discriminatory Practice (" Affidavit"), dated September 4, 2014 and filed by plaintiff with the CHRO is Exhibit A to the motion. There is also no dispute that on June 4, 2015 the CHRO released its jurisdiction over this complaint allowing plaintiff to commence a civil action based on that complaint. See Exhibit B to Motion to Dismiss. The issue framed for resolution on this motion is whether the claim asserted in Count One was part of the CHRO proceeding.

         Here, the State claims that the Affidavit filed by plaintiff with the CHRO fails to bring to the attention of that agency any claim for discrimination based on sexual orientation. The operable language found in the Affidavit states: " I was sexually harassed, subjected to unequal terms and conditions of my employment, and treated unfairly based on my sex (male)." [2] The Affidavit, which is a form available for presentation of claims to the Agency, also contains a series of boxes which can be checked to show the state of federal statutes the claimant believes were violated by the conduct alleged. Here, plaintiff checked the boxes for General Statutes § § 46a-58(a)and 46a-60(a)(4) and Title VII of the Civil Rights Act of 1964.

         Following the cover sheet of the Affidavit, plaintiff provided the CHRO more details as to the nature of his complaint. Plaintiff alleged there that he was a Corrections Officer for the State and worked with other employees of the DOC. In terms of labels used, he complains of sexual harassment and retaliation. However, the plaintiff also provides some more detailed information. Plaintiff alleges being referred to as " homo" and " faggot" and being called " bitch" and " crazy." He alleges he was intimidated and insulted by being told to provide oral sex to another male staff member. He also alleges other forms of insult or harassment not overtly sexual in nature.

         In the court's opinion, it would be fair to say that nowhere in the Affidavit does the plaintiff ever expressly state to the CHRO that he is alleging discrimination based on his sexual orientation. He does not cite the statute affording protection for such, General Statutes § 46a-81c; he never alleges his sexual orientation or states his preference in that regard. Were this court to simply determine if a specific reference to the nature of discrimination was alleged, the State would be entitled to prevail on the motion. The issue before the court is not so simple.

         " Exhaustion does not, however, require " precise pleading"; a plaintiff need not use precise terms to classify the type of discrimination alleged before the administrative agency as long as the facts alleged give the agency " adequate notice to investigate discrimination on [all] bases." Collins v. University of Bridgeport, 781 F.Supp.2d 59, 63 (D.Conn. 2011) (quoting from Deravin v. Kerik, 335 F.3d 195, 202-03 (2d Cir. 2003), holding that the absence of an explicit reference to one form of discrimination in the complaint to an administrative agency did not mean that claimant failed to exhaust his discrimination claim as to others where his factual allegations gave sufficient notice to the agency to investigate). Whether referred to as " an allowance of loose pleadings, " Butts v. City of New York, 990 F.2d 1397, 1402 (2d Cir. 1993), or an " exception" to the rule requiring exhaustion, Resnick v. United Public Service Employees Union, 2013 WL 6038364 at *3 (Ct.Super. 10/23/13) [57 Conn. L. Rptr. 89], the rule seems the same: If the discrimination asserted in the lawsuit is " reasonably related" to the agency complaint such that the agency investigation growing out of the claim asserted before it would reasonably be expected to cover such conduct, then the doctrine of exhaustion does not apply.

         Though admittedly a close call, here the court ultimately finds that the discrimination asserted in Count One was reasonably related to the allegations contained in plaintiff's Affidavit and hence not barred by the doctrine of exhaustion.

         The court first notes that discrimination based on gender, sexual orientation and sexual harassment can sometimes be intertwined and difficult for the victim of such to readily identify and distinguish. Here the factual allegation made before the agency could, depending on context and intent, well lead into any of those areas, including sexual orientation. Just as the factual allegations of discrimination based on national origin in Deravin were found sufficiently related to an unexpressed claim for race discrimination, 335 F.3d @ 201-02, so too the specific factual allegations ...


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