CITY OF SHELTON

v.
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NO.:
COMMISSION ON HUMAN RIGHTS and :
OPPORTUNITIES AUGUST 13, 2012
COMPLAINT
JURISDICTION AND VENUE
1. This is a suit brought pursuant to 42 U.S.C. 1983, the Fourteenth Amendment
of the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et. seq. as amended by and including the Civil Rights Act of 1991 and the
Declaratory Judgment Act, 28 U.S.C. 2201, et. seq.
2. Jurisdiction of the Court is invoked pursuant to 42 U.S.C. 1331 and 1343.
3. Venue in this district is appropriate pursuant to 28 U.S.C. 1391(b), because this
is the district in which all parties reside and in which the cause of action arose.
PARTIES
4. The Plaintiff, City of Shelton (hereinafter the "City"), is a municipal corporation
organized under the laws of the State of Connecticut, whose business address is 54 Hill
Street, Shelton, Connecticut 06106. The plaintiff seeks equitable relief on behalf of itself
and all similarly situated employers who are charged with violations of federal
1
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 1 of 7
employments laws, which the Defendant purports to have the authority to adjudicate
under state law.
5. The Defendant, Commission on Human Rights and Opportunities (hereinafter the
"CHRO"), is an agency of the State of Connecticut, whose administrative offices are
located at 25 Sigourney Street, Hartford, Connecticut 06016.
FACTS
6. The City is a Respondent in two separate contested cases now pending before
the CHRO's Office of Public Hearing.
7. The first case, titled McGorty v. City of Shelton Fire Department (CHRO No.
0930371 and EEOC No. 16A-2009-01129), was brought by a current employee and
raises claims of sexual harassment, hostile work environment, gender discrimination
and retaliation in violation of the Connecticut Fair Employment Practices Act ("CFEPA"),
Conn. Gen. Stat. 46a-60(a)(1 ), (a)(4) and (a)(8) and Title VII. This action was
certified for public hearing following an investigator's finding of reasonable cause.
8. The second case, titled Puryear v. Echo Hose Ambulance Corps and City of
Shelton (CHRO No. 1130518), was brought by a volunteer member of Echo Hose
Ambulance Corps. and alleges race discrimination in violation of the CFEPA, Conn.
Gen. Stat. 46a-60(a)(1) and Title VII. This action was certified for public hearing
without the parties' consent through a process called "Early Legal Intervention," a
mechanism that allows CHRO's Executive Director to certify matters for public hearing
2
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 2 of 7
prior to any investigation or finding of reasonable cause.
9. "Public Hearings" are administrative hearings, or trials, governed by the Uniform
Administrative Procedure Act.
1 0. The process and procedures for contested cases are set forth in Sections 46a-
54-78a to 46a-54-98a of CHRO's Regulations:
a. First, a complaint is certified for public hearing. Upon certification, the Office
of Public Hearing appoints a human rights referee to act as the presiding officer. The
presiding officer has the authority to rule upon motions, enter an order of default,
administer oaths, admit or exclude testimony or other evidence, subpoena witnesses,
and compels their attendance for the purpose of providing testimony or producing
physical evidence or both.
b. Within 45 days of certification, a "Hearing Conference" is held. The "Hearing
Conference" is akin to a scheduling conference. The parties set dates for the
amendment of the pleadings, the disclosure of documents, motion practice, the
exchange of witness and exhibit lists, and documents the parties intend to introduce as
exhibits at the hearing.
c. The presiding officer then issues a Notice of Public Hearing. The Respondent
has 15 days from the Notice of Public Hearing to Answer the Complaint.
d. Thereafter, a public hearing is held. There, the parties may call, examine and
cross-examine witnesses and introduce evidence into the record, subject to the
3
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 3 of 7
approval of the presiding officer. The presiding officer may also examine witnesses.
e. At the conclusion of the hearing, the parties may offer closing arguments and
submit briefs or at the request of the presiding officer, proposed findings of fact.
f. The presiding officer then issues a final decision and if applicable, awards
damages. Any party may petition for reconsideration of the final decision.
10. In McGorty and Puryear, in addition to all other pending cases, the CHRO/OPH
has claimed that the Office of Public Hearing has the authority to finally and fully
adjudicate federal law, specifically Title VII, and to award all damages available under
federal law, including emotional distress damages. As such, a public hearing
adjuciating federal law constitutes a trial of federal claims, without resort to a federal
judge or jury. There is no mechanism for removal of the case.
11. Published decisions from the Office of Public Hearing indicate that the CHRO
relies on Conn. Gen. Stat. 46a-58(a) and 46a-86(c) for its authority to adjudicate
claimed violations of federal law. Conn. Gen. Stat. 46a-58(a), states, "[i]t shall be a
discriminatory practice in violation of this section for any person to subject, or cause to
be subjected, any other person to the deprivation of any rights, privileges or immunities,
secured or protected by the Constitution or laws of this state or of the United States, on
account of religion, national origin, alienage, color, race, sex, blindness or physical
disability." Likewise, Conn. Gen. Stat. 46a-86(c) states, in relevant part, " .... upon a
finding of a discriminatory practice prohibited by section 46a-58 ... the presiding officer
4
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 4 of 7
shall determine the damages suffered by the complaint .... "
12. Upon information and belief, the CHRO has established this practice so it can
avoid the Connecticut Supreme Court's rulings in Bridgeport Hasp. v. CHRO, 232 Conn.
91 (1995) and CHRO v. Truelove & Maclean, Inc., 238 Conn. 337 (1996) and award
complainants emotional distress damages under the guise that it is properly "enforcing"
federal law.
13. The City and other similarly situated Respondents will be harmed, and have
been harmed, by the Office of Public Hearing's adjudication of Title VII in McGorty and
Puryear and awarding of emotional distress damages, should a violation be found. The
process results in a trial of federal claims without right to a federal judge, jury, or appeal
to a federal Court of Appeals. In sum, the Defendant has denied the Plaintiff the Due
Process procedures contained in 28 U.S.C. 1331 and the Civil Rights Act of 1991
(mandating the right to jury trial in civil rights claims.)
14. This harm is imminent, as both of the McGorty and Puryear cases are scheduled
for a hearing not before a federal or state judge, but rather a "Hearing Referee" from
whose decision an appeal is based on administrative, as opposed to civil law.
15. The federal courts have original jurisdiction to adjudicate and enforce federal law.
16. Accordingly, the CHRO's practice of adjudicating Title VII is a violation of Article
VI, Clause 2 of the United States Constitution, the Supremacy Clause.
17. CHRO's practice of adjudicating Title VII in public hearings is also a violation of
5
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 5 of 7
the yth Amendment of the U.S. Constitution as Title VII, as amended, expressly
authorizes trial by jury. The Office of Public Hearing usurps that function by delegating
exclusive adjudicative authority to a presiding officer.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff respectfully requests this Court grant it the following relief:
A. A temporary and permanent injunction prohibiting the CHRO's Office of Public
Hearing from adjudicating and enforcing Title VII or any other federal law;
B. A declaratory judgment holding that Conn. Gen. Stat. 46a-58a violates federal
law, specifically the Civil Rights Act of 1991, the Due Process Clause, the
Supremacy Clause, and the Seventh Amendment of the U.S. Constitution and
28 U.S.C. 1332.
C. A declaratory judgment that Conn. Gen. Stat. 46a-58a is unconstitutional;
D. Attorney's fees and costs;
E. Any other legal or equitable relief the Court deems just.
Dated at Hartford, Connecticut this 13th day of August, 2012.
6
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 6 of 7
PLAINTIFF,
CITY OF SHELTON
By
J. Rose (ct14803)
Rose Kallor, LLP
7
750 Main Street, Suite 606
Hartford, CT 06103
Ph: 860-7 48-4660
Fax: (860) 241-1547
E-mail: mrose@rosekallor.com
Case 3:12-cv-01176-JBA Document 1 Filed 08/14/12 Page 7 of 7