Opinion
HHBCV155016997S
04-07-2017
Charleton Barnes v. Premier Education Group, LP dba Branford Hall et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Charleton Barnes, brought this administrative appeal pursuant to General Statutes § 4-183 to challenge the decision of the defendant, Commission on Human Rights and Opportunities (commission), in response to a sexual harassment complaint the plaintiff filed against the defendant, Premier Education Group, LP, d/b/a Branford Hall Career Institute (Branford Hall). The commission dismissed the plaintiff's complaint based on a finding of no reasonable cause and rejected the plaintiff's subsequent request for reconsideration as untimely. On appeal, the plaintiff raises five issues. First, he challenges the commission's factual finding that there was no reasonable cause to believe that sexual harassment had occurred. Second, he claims that the commission should have issued a release of jurisdiction based upon a request by the plaintiff on December 2, 2014. Third, he claims that his request for reconsideration was timely and should have been granted. Fourth, he claims that the commission should have defaulted Branford Hall when it filed its answer to his complaint three days after the response date. Fifth, he claims that he was prejudiced by the commission's failure to release jurisdiction and failure to deny his request for reconsideration within ninety days.
The summons and case caption identify the defendant as " Premier Education Group, LP dba Branford Hill Career Institute, " but the record indicates that the defendant does business as " Branford Hall Career Institute."
The commission contends, in response, that the commission properly rejected the plaintiff's untimely request for reconsideration and that the plaintiff failed to demonstrate bias regarding that rejection. It further contends that the plaintiff failed adequately to brief any other claims and that they should be rejected on that ground. Finally, it argues that the court lacks jurisdiction because the plaintiff brought the appeal under General Statutes § 4-183(b), which does not apply, rather than § 4-183(a), which does apply.
Branford Hall contends that substantial evidence in the record supports the commission's finding of no reasonable cause. It further contends that the commission did not err in failing to issue a release of jurisdiction because the plaintiff never effectively requested such a release and instead actively sought to win on the merits of his sexual harassment claim.
For the reasons stated below, the court concludes that it has jurisdiction over the plaintiff's claims. The court concludes that the plaintiff has failed to establish that the commission improperly prejudiced his substantial rights by any factual findings or procedural rulings. Accordingly, the appeal is dismissed.
FACTUAL AND PROCEDURAL HISTORY
The record discloses the following relevant facts and procedural history. The plaintiff filed a sexual harassment complaint against Branford Hall on October 23, 2013. Return of Record (ROR), pp. 9-12. After a fact finding conference at which the plaintiff was represented by counsel and both the plaintiff and Branford Hall presented evidence, on November 17, 2014, the commission's investigator issued a Draft Summary of No Reasonable Cause Finding (draft finding). ROR, pp. 81-88. The draft finding stated the following facts in twenty-four numbered paragraphs.
The plaintiff enrolled as a student in Branford Hall's Health Claims Specialist Program on March 14, 2013. The program was eleven months in duration and consisted of four terms, each of which had two modules. The plaintiff's daughter enrolled in a different program in the school and traveled to school with him. ROR, p. 86, ¶ ¶ 2-3.
Patricia Harrison, the admissions coordinator, and her supervisor, Celine Carnevale, assisted the plaintiff and his daughter in the enrollment process and in acquiring financial assistance. Neither Harrison nor Carnevale was involved in their classroom education, but both continued to provide support to them, and especially to the plaintiff's daughter, on matters unrelated to their course work, such as food, grooming, and financial concerns. ROR, p. 86, ¶ ¶ 3-4.
During his first module in the first term, the plaintiff failed basic keyboarding because he had failing grades and had not submitted assignments on time. He received an academic advisement on April 15, 2013, advising that he was in danger of losing financial aid or being withdrawn from the program if he did not maintain a minimum grade point average of 2.0. The plaintiff repeated the basic keyboarding course during the second module of the first term. On May 8, 2013, he received a warning in that course regarding failing grades, not completing assignments, and not submitting assignments on time. On May 9, 2013, he also received an early warning in applied business writing due to failing grades and missed quizzes. On May 28, 2013, he withdrew from the school without providing a reason. ROR, pp. 86-87, ¶ ¶ 6-10.
In August 2013, Branford Hall contacted the plaintiff regarding the unpaid balance on his tuition account. After receiving that payment request, the plaintiff reported, for the first time, an allegation of sexual harassment by Harrison to Susan Tsolis, Branford Hall's student ombudsman. ROR, p. 87, ¶ ¶ 11-12.
The plaintiff reported an incident that occurred on April 18, 2013. He did not report any other incidents. Tsolis asked him to submit a written statement detailing his allegations, but he failed to do so. ROR, p. 87, ¶ ¶ 13-14.
Another student at Branford Hall, Ruth Resto, was acquainted with the plaintiff but was not in any of his classes. The plaintiff was very sociable and engaged in conversations with Resto in breaks between classes. He told her of his problems in typing class and she advised him to practice more instead of playing basketball all the time. He responded that he liked basketball. ROR, p. 87, ¶ 15.
Resto testified at the fact finding conference that she was sitting on a bench with the plaintiff on April 18, 2013, in a break between classes, when Harrison walked by, exchanged greetings with the plaintiff, and then sat on his knee for a second or two and got up. According to Resto, Harrison did not sit in the plaintiff's lap, did not sit near his groin area, and did not grind herself into him; it was a " tap and up." ROR, p. 87, ¶ 16.
On April 18, 2013, Resto reported Harrison's conduct to Gerri Braison, an acting academic dean and director of education, who in turn notified Christopher Whelpley, the campus director. Whelpley immediately addressed the matter with Harrison, counseling her that her behavior was inappropriate and advising her that any further such conduct would result in her termination. Harrison subsequently apologized to the plaintiff. Harrison's conduct was unprofessional but there was no sexual component to the conduct. ROR, p. 87, ¶ ¶ 16-19.
Before he left the school, the plaintiff told Resto that he was suing Branford Hall and asked her to be a witness. She gave his daughter her name and number and was told that the plaintiff's lawyer would contact her. The plaintiff's lawyer later subpoenaed Resto to testify in the factfinding conference. ROR, p. 87, ¶ 20.
At the factfinding conference, the plaintiff's testimony about the April 18, 2013, incident with Harrison strongly conflicted with Resto's and Harrison's testimony. The plaintiff described the conduct as explicitly sexual in nature, claiming that Harrison blew him kisses before sitting on his lap and squished herself into his private parts. The investigator determined that the plaintiff's testimony lacked credibility. ROR, p. 88, ¶ 21.
All Branford Hall students, including the plaintiff, receive orientation about its policies. Whelpley, the campus director, had an open-door policy. The plaintiff was aware of those policies but never went to Whelpley to discuss Harrison or issues involved with her allegedly sexually inappropriate conduct toward him. ROR, p. 88, ¶ 22.
The investigator concluded that there was insufficient evidence to support the plaintiff's claims. Resto, whom the plaintiff had called to testify, provided testimony consistent with the investigator's finding that Harrison did not engage in sexually inappropriate conduct. The investigator concluded that the totality of the information in the case file did not support the plaintiff's claim that Branford Hall created an environment that was so sexually hostile for him as a student that he was forced to withdraw. She further concluded that there was insufficient evidence to support the plaintiff's claim that Branford Hall denied him equal services on the basis of his gender, male. ROR, p. 88, ¶ ¶ 23-24.
Although the plaintiff was represented by counsel, he personally submitted a response to the draft finding of no reasonable cause on December 2, 2014. ROR, pp. 72-78. His response consisted of twenty-four paragraphs that appeared to respond to each of the twenty-four paragraphs of the draft finding. The plaintiff disagreed with many of the facts stated in the draft finding and alleged, in various paragraphs of his response, that the investigator was biased against him. At the end of paragraph 15, near the middle of his response, he wrote that he wanted a copy of the tape recording (presumably of the fact finding conference) and wanted to " remove the CHRO, for this to be placed in a federal court." ROR, p. 75, ¶ 15.
On December 18, 2014, the investigator sent a letter to the plaintiff's counsel by e-mail and to the plaintiff by regular mail, advising the plaintiff's counsel that the plaintiff had submitted comments on the draft finding. She then reported that the plaintiff had stated, in his comments, that he wanted to have the case removed from the commission and sent to federal court. She explained that because the plaintiff had not filed a complaint with the federal Equal Employment Opportunity Commission, he would be unable to get a release of jurisdiction from that organization. She requested that the plaintiff or his counsel resubmit a request for release of jurisdiction to file in state court. ROR, p. 70. Neither the plaintiff nor his counsel responded to that letter.
On December 19, 2014, the commission dismissed the complaint with a finding of no reasonable cause. It mailed notice of the finding to the plaintiff by regular first-class mail and e-mailed it to his attorney on the same date. ROR, pp. 55-60. A copy was also mailed to the plaintiff's attorney. ROR, pp. 55-60. The notice accompanying the finding advised the plaintiff and his attorney that the plaintiff could request reconsideration of the finding by filing a written request for reconsideration within fifteen days at the commission's regional office. The notice expressly stated that " A request for reconsideration must be rejected as untimely without review of the specific grounds stated if it is not received by the [c]ommission within fifteen (15) days of the mailing of this notice. It is the [c]omplainant's responsibility to file a timely request." (Emphasis in original.) ROR, p. 56. The notice further advised the plaintiff that, in the alternative, he could appeal the finding of no reasonable cause in Superior Court. ROR, p. 57.
On January 8, 2015, the commission received a document from the plaintiff's counsel that was captioned " Complainant's Response to No Reasonable Cause Finding, " which the commission treated as a request for reconsideration. ROR, pp. 32-42. The request for reconsideration disputed several factual findings but did not raise the issue of a release of jurisdiction. On September 30, 2015, the commission's legal counsel issued a decision rejecting the request for reconsideration as untimely. ROR, pp. 27-31.
On November 10, 2015, the plaintiff, representing himself, filed his appeal in this court. The introductory paragraph stated that the appeal was brought pursuant to General Statutes § 4-183(b). An attorney subsequently appeared for the plaintiff and filed a brief for him. In the brief, the plaintiff raised five issues, including the commission's failure to release jurisdiction in response to his December 2, 2014 filing. He represented that the issue regarding the release of jurisdiction was brought pursuant to § 4-183(b) as a preliminary ruling of the commission.
Branford Hall filed a responsive brief in which it argued that the commission's finding of no reasonable cause was supported by substantial evidence in the record and that the plaintiff failed to file an effective request for release of jurisdiction. The commission filed a responsive brief asserting, among other things, that the court lacks jurisdiction over the appeal because it was brought pursuant to § 4-183(b), which governs interlocutory appeals, when the rejection of the plaintiff's request for reconsideration was a final judgment, subject to appeal under § 4-183(a). It also argued there was substantial evidence in the record to support the commission's finding that the request for reconsideration was untimely and that the plaintiff failed adequately to brief any issues in the case.
In reply, the plaintiff argued that his appeal was brought under § 4-183(a) and that the reference to § 4-183(b) was merely a " scrivener's error." He also repeated many of the arguments made in his initial brief and attempted to supply case law authority that had not been provided in his initial brief to bolster his claims on appeal.
JURISDICTION
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. As stated above, the commission asserts that the plaintiff's reliance on § 4-183(b), rather than § 4-183(a), deprives the court of subject matter jurisdiction over the appeal. Because it concerns the court's jurisdiction, this issue must be resolved before turning to the plaintiff's issues on appeal.
General Statutes § 4-183(a) governs an appeal from a " final decision" of an agency, while § 4-183(b) allows an interlocutory appeal of agency rulings in limited circumstances.
General Statutes § 4-183(a) provides: " A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal."
General Statutes § 4-183(b) provides: " A person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling, and (2) postponement of the appeal would result in an inadequate remedy."
The plaintiff's appeal cites § 4-183(b), the provision allowing an interlocutory appeal, but the appeal was filed after the commission rendered a final decision rejecting the plaintiff's request for reconsideration. The commission argues that the plaintiff's failure to identify § 4-183(a) as the statutory authority for the appeal deprives the court of subject matter jurisdiction. The court disagrees that a mere error in the designation of the relevant subsection of § 4-183 deprives the court of jurisdiction where the appeal is otherwise jurisdictionally proper. There is no dispute in this case that the plaintiff is aggrieved by the final decision rejecting his request for reconsideration. The appeal was properly filed and served within forty-five days after that final decision. The plaintiff satisfied the subject matter jurisdictional requirements of § 4-183(c) for an appeal from a final decision under § 4-183(a). While the plaintiff concedes, in his reply brief, that he erroneously cited § 4-183(b), the commission has not cited any authority requiring dismissal for lack of subject matter jurisdiction based on such an error. Nor has the commission argued that it was prejudiced in any way by the erroneous citation. Our Supreme and Appellate Court have repeatedly counseled that, even in administrative appeals where strict compliance with statutory mandates is required, " [t]he determination of whether a statutory requirement implicates the subject matter jurisdiction of the court must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction." (Internal quotation marks omitted.) Tolly v. Dept. of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993). See also Bittle v. Commissioner of Social Services, 249 Conn. 503, 514, 734 A.2d 551 (1999) (observing that 1988 amendments to the UAPA were intended to " simplify administrative procedures in order to make the administrative process easier, and thus more practically useful to the public"); Kindl v. Dept. of Social Services, 69 Conn.App. 563, 575, 795 A.2d 622 (2002) (similar). The court concludes that the plaintiff's erroneous citation to § 4-183(b) does not deprive it of jurisdiction.
STANDARD OF REVIEW
The scope of the court's authority in an administrative appeal is strictly limited. " [T]he scope of judicial review of an administrative agency's decision under § 4-183 is very restricted . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citation omitted; internal quotation marks omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009). This court may not " retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id., 561.
I
The plaintiff's first claim on appeal is that the hearing officer disregarded his evidence that he was " persistently sexually harassed" by Harrison. The focus of this first claim is not legal but factual. In addition to the April 18, 2013 incident described in the draft finding, the plaintiff testified that Harrison invited him to her office and her condo, asked if he wanted to see her breast, made obscene gestures, blew him a kiss, rubbed his shoulders, and invited him to relocate with her, and that her conduct caused him such distress that he could not concentrate on his studies. Although the plaintiff claimed that his adult daughter had witnessed some instances of the alleged harassment, he did not call her as a witness.
The plaintiff cites as legal authority for his discussion of sexual harassment in education certain " guidance" that appeared in the Federal Register on March 13, 1997, promulgated either by the federal Office of Civil Rights or the federal Department of Education. See Pl. Br., p. 3. The legal authority for his claim is inadequately briefed. Without a more precise citation, the court is unable to identify the " guidance" on which the plaintiff relies. Moreover, in his complaint to the commission, the plaintiff did not identify any federal law that he claimed had been violated. See ROR, p. 9. It is therefore not clear what relevance the citation to federal " guidance" has to his claims under the Connecticut antidiscrimination laws cited in his complaint. Courts at every level decline to review claims that are inadequately briefed. " The parties may not merely cite a legal principle without analyzing the facts of the case and the law cited." (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603-04, 10 A.3d 59 (2010). " Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Id., 603.
The commission submitted an audio recording of the fact finding conference. It did not have the recording transcribed, as required by General Statutes § 4-183(g). The court listened to the entire audio recording before hearing oral argument in the appeal.
Other witnesses at the fact finding conference contradicted the plaintiff's testimony on almost every point. Harrison admitted that she sat briefly on the plaintiff's knee on April 18, 2013, but denied all the other conduct alleged by the plaintiff. Resto, who was called by the plaintiff, testified that Harrison did not grind herself into the plaintiff's privates, as he claimed, but merely sat very briefly on his knee and then got up--a " tap and up." Other witnesses contradicted his claims that he had complained to Branford Hall officials about Harrison's conduct before he withdrew from the school.
Branford Hall argues that the investigator rejected the plaintiff's claims because she did not find his testimony to be credible in light of the testimony of other witnesses. The court has reviewed the entire audio recording of the factfinding conference and agrees that there is substantial evidence in the record to support the investigator's findings. In Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 316-17, 596 A.2d 426 (1991), the court held that " the reasonable cause standard requires the commission to consider all reliable probative evidence, including evidence unfavorable to the complainant's claim." It further concluded that " a necessary corollary to allowing the commission to consider all relevant evidence gathered during the investigation is that in making the reasonable cause determination, the investigator, and the commission when reviewing the investigator's recommendation, are entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences." Id., 317.
" In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dept. of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014). The court has considered the plaintiff's contradictory evidence but concludes that, despite the plaintiff's testimony, substantial evidence supports the finding of no reasonable cause.
II
The plaintiff's second claim is that the commission violated the law by failing to release jurisdiction in response to the plaintiff's December 2, 2014 filing. He claims that General Statutes (Rev. to 2015) § 46a-101 required the commission to release jurisdiction within ten days of his request. Branford Hall argues that the plaintiff failed to make an effective request for release of jurisdiction and his counsel did not respond to the investigator's request for clarification. The commission argues that the plaintiff has not adequately briefed his claims and that they should not be reviewed.
General Statutes § 46a-101 was amended by Public Acts, Spec. Sess., June 2015, No. 15-5, § 85, which made technical changes to the statute that are not material to this appeal. For purposes of clarity, all references to § 46a-101 in this opinion are to the 2015 revision to the statute, unless otherwise indicated.
General Statutes (Rev. to 2015) § 46a-100 permits a complainant to bring an action in Superior Court to challenge a discriminatory action after obtaining a release of jurisdiction from the commission. General Statutes § 46a-101(b) provides in relevant part that " [t]he complainant or the complainant's attorney may request a release from the commission if the complaint is still pending after the expiration of one hundred eighty days from the date of its filing . . ." General Statutes § 46a-101(c) provides in relevant part that " [t]he executive director of the commission shall grant a release, allowing the complainant to bring a civil action, within ten business days after the date of the receipt of the request for release . . ." It is undisputed that the plaintiff's case had been pending with the jurisdiction more than one hundred eighty days when he filed his response to the draft finding on December 2, 2014, and it is undisputed that the commission did not issue a release of jurisdiction. The question presented here is whether the plaintiff's December 2, 2014 filing constituted a request for release of jurisdiction that the commission was required to grant. Although the plaintiff has cited to § 46a-101, he has not provided any substantive legal analysis. He argues only that he was representing himself when he filed his December 2, 2014 response, and the commission therefore should have liberally construed his request to " remove the CHRO, for this to be placed in a federal court" (ROR, p. 75, ¶ 15) as a request for release of jurisdiction to bring an action in Superior Court pursuant to General Statutes § § 46a-100 and 46a-101(b).
General Statutes § 46a-100 was amended by Public Acts, Spec. Sess., June 2015, No. 15-5, § 84, which made technical changes to the statute that are not material to this appeal. For purposes of clarity, all references to § 46a-100 in this opinion are to the 2015 revision to the statute, unless otherwise indicated.
The court first addresses the plaintiff's claim that his December 2, 2014 filing should have been construed liberally to request a release of jurisdiction to Superior Court because he was representing himself when he filed the document. The court disagrees that the plaintiff's status as self-represented party required the commission to interpret his request as meaning " state court" when it said " federal court." Although courts and state agencies are " solicitous of pro se litigants and when it does not interfere with the rights of other parties [will] construe the rules of practice liberally in favor of the pro se party . . . the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) Keating v. Ferrandino, supra, 125 Conn.App. 604. The court further disagrees with the plaintiff's characterization of himself as a pro se litigant. Although the plaintiff chose to submit the December 2, 2014 filing on his own, he was simultaneously represented by experienced counsel who vigorously prosecuted his claims at the fact finding conference, filed his request for reconsideration, and argued his appeal in this court. Whether or not he chose to consult her about his December 2, 2014 filing, nothing in the record suggests that he did not have counsel available to consult with him or to draft a request for a release of jurisdiction, if in fact that was what he wanted.
Second, it was not clear that the plaintiff wanted a release of jurisdiction to state court rather than vindication by the commission. Most of the twenty-four paragraphs of his December 2, 2014 filing vigorously disputed the facts stated in the investigator's draft summary and claimed that various individuals on the commission's staff were biased against him and did not treat him fairly. The paragraph that contained what arguably might have been construed as a request for release of jurisdiction read in full as follows: " If anyone knows me I'm a straight forward person, and I do like basketball. Ruth Resto also mentioned that I had old school values and morals and a courtesy about myself, that was rarely seen anymore. I would also like a copy of the tape recording. There is a lot on that tape, and I respectfully ask to remove the CHRO, for this to be placed in a federal court, Thank You." ROR, p. 75, ¶ 15. In the last paragraph of the same filing, the plaintiff wrote in relevant part that " I feel that there cannot be a reasonable determination due to the partial behavior within your services, I am taking it to policy management or further." ROR, p. 77, ¶ 24. His December 2, 2014 filing thus contained conflicting statements as to what he wanted and what he was asking of the commission. His challenges to most of the facts in the draft finding suggested that he was trying to bring about a change in the final finding to be issued by the investigator.
Third, the one sentence that could arguably have been construed as a request for release of jurisdiction sought to " remove the CHRO, for this to be placed in a federal court." ROR, p. 75, ¶ 15. This was a request that the commission could not grant. When the plaintiff filed his initial complaint, he alleged only violations of General Statutes § § 46a-58 and 46a-64(a). See ROR, p. 9. To obtain the right to sue in federal court, he would have needed to assert violations of federal law, which the commission would have forwarded to the federal Equal Employment Opportunity Commission (EEOC). See ROR, p. 9 (commission claim form). He did not request a release to bring a case in Superior Court, and the commission did not have the authority to issue a right to sue letter for a federal action.
Fourth, and significantly, the investigator attempted to obtain clarification of the plaintiff's request by a letter dated December 18, 2014, that was e-mailed to the plaintiff's counsel and mailed to the plaintiff. In that letter, the investigator explained that the plaintiff's complaint had not been filed with the EEOC and asked that the plaintiff's counsel or the plaintiff resubmit a request for a release of jurisdiction to file in state court. ROR, p. 70. Neither the plaintiff nor his counsel ever responded to that letter. On appeal, the plaintiff argued that he had insufficient time to respond because the finding of no reasonable cause was issued on December 19, 2014, only one day after the investigator's letter was e-mailed to the plaintiff's counsel. The court is not persuaded. The plaintiff's counsel could have acknowledged the e-mail and requested time to consult with the plaintiff. If neither the plaintiff nor his counsel received the investigator's letter or e-mail before the final finding of no reasonable cause was issued, the plaintiff could have cited the failure to receive it as a ground for reconsideration and could have asked the commission to reopen the matter to allow him to file such a request. The plaintiff's counsel did in fact file a request for reconsideration but did not include in that request anything about the plaintiff's desire to obtain a release of jurisdiction to file an action in state court. The record as a whole therefore supports an inference that the plaintiff never effectively requested a release of jurisdiction to bring an action in state court. The commission did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in requiring the plaintiff to clarify whether he wanted a release of jurisdiction to bring an action in state court.
III
The plaintiff's third claim on appeal is that the commission improperly rejected his request for reconsideration as untimely. The court disagrees. General Statutes (Rev. to 2015) § 46a-83(f) provides in relevant part: " If the investigator issues a finding of no reasonable cause . . . the complainant may file a written request for reconsideration with the executive director or the executive director's designee, not later than fifteen days from the sending of such finding of dismissal. A request for reconsideration shall state specifically the reasons why reconsideration should be granted. The executive director or the executive director's designee shall grant or reject reconsideration within ninety days of the sending of such finding or dismissal." The commission has promulgated regulations under the authority of General Statutes § 46a-54. Its regulation governing requests for reconsideration provides in relevant part as follows: " Requests for reconsideration shall be received not later than fifteen (15) days after the date of mailing of the investigator's finding of no reasonable cause. The complainant shall prove receipt of the reconsideration request by the commission." Regs., Conn. State Agencies § 46a-54-62a(b). Section 46a-54-62a(c) further provides that " [t]he executive director shall reject untimely requests for reconsideration without a formal review of the substance of the request for reconsideration." (Emphasis added.)
General Statutes § 46a-83 was amended by Public Acts No. 15-249, § 2, which made technical changes to the statute that are not material to this appeal. For purposes of clarity, all references to § 46a-83 in this opinion are to the 2015 revision to the statute, unless otherwise indicated.
In this case, it is undisputed that the commission mailed the finding of no reasonable cause on December 19, 2014. The fifteenth day following December 19, 2014, was Saturday, January 3, 2015. Because the fifteenth day fell on a weekend when the commission office was not open, the last day for filing became Monday, January 5, 2015. The plaintiff claims that his request for reconsideration was filed on January 2, 2015. The record does not support this claim. Although the plaintiff's request for reconsideration was dated January 2, 2015, it was date-stamped as received by the commission on January 8, 2015. The plaintiff did not offer any evidence to prove that the commission actually received his request for reconsideration by January 5, 2015. By regulation, as quoted above, the burden was on the plaintiff to prove timely receipt of the request by the commission. See Guest v. Connecticut Board of Education, Superior Court, judicial district of New Britain, Docket No. CV-08-4017587-S, (March 25, 2009, Cohn, J.) (holding that § 46a-54-62a of the commission's regulations was duly promulgated and properly enforced to require receipt of reconsideration request within fifteen days).
The plaintiff additionally claims that the commission's failure to issue its rejection of his request for consideration within ninety days, as required by General Statutes § 46a-83(f), prejudiced him. He does not provide any analysis as to the legal effect of a late decision by the commission.
It is undisputed that the commission did not issue its decision rejecting the plaintiff's reconsideration request until September 30, 2015, more than eight months after its receipt. General Statutes (Rev. to 2015) § 46a-82e(a), however, provides that " [n]otwithstanding the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of sections 46a-83 and 46a-84 with respect to a complaint before the commission, the jurisdiction of the commission over any such complaint shall be retained." The plaintiff cites no statutory provision or judicial decision that requires invalidation of the commission's rejection because it was late. Indeed, the plaintiff merely asserts that he was prejudiced, without any analysis or explanation at all. In light of the saving provision of § 46a-82e(a), the court concludes that the commission's failure to issue a timely rejection does not provide a ground for reversing the commission's rejection of the plaintiff's untimely request for reconsideration.
General Statutes § 46a-82e was amended by Public Acts, Spec. Sess., June 2015, No. 15-5, § 75, which made technical changes to the statute that are not material to this appeal. For purposes of clarity, all references to § 46a-82e in this opinion are to the 2015 revision to the statute, unless otherwise indicated.
The plaintiff also asserts that the investigator must have been biased against him because Branford Hall was not defaulted when it filed its answer several days late, while the plaintiff's request for reconsideration was rejected when it was three days late. It is well established, however, that " [a] presumption of impartiality attends administrative determinations, and the burden of establishing a disqualifying interest on the part of an adjudicator rests upon the one seeking disqualification . . . To overcome the presumption, the plaintiff in this case must demonstrate actual bias, rather than mere potential bias, of the [adjudicator] challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable." (Citations omitted; internal quotation marks omitted.) Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). In this case, the commission's regulations afford the commission the discretion to default a party that fails to file an answer. See Regs., Conn. State Agencies § 46a-54-46a(a) (" [t]he executive director may enter an order of default against a respondent who, after notice, fails to answer a complaint") (emphasis added). In contrast, the regulations require the commission to reject an untimely request for reconsideration. See Regs., Conn. State Agencies § 46a-54-62a(c) (" [t]he executive director shall reject untimely requests for reconsideration without a formal review of the substance of the request for reconsideration") (emphasis added). In view of this difference in the regulations applying to an answer to the complaint and an untimely request for reconsideration, the plaintiff cannot establish bias merely by pointing to a difference in treatment that the regulations allow.
IV
The plaintiff's fourth issue is whether the commission should have defaulted Branford Hall when it failed to file its response to the plaintiff's complaint within the time allowed. The investigator granted Branford Hall an extension of time to December 16, 2013, to file its answer. ROR, p. 193. Its answer was dated December 19, 2013, and date-stamped as received by the commission on December 23, 2013. ROR, p. 147. It is clear, therefore, that Branford Hall filed its answer late. The plaintiff, however, never moved to default Branford Hall for its late answer.
In a response to Branford Hall's answer, the plaintiff noted that Branford Hall had not filed its response in a timely manner, but he did not ask that Branford Hall be defaulted. Instead, he proceeded to dispute the facts asserted by Branford Hall in its answer and also stated that he was thinking of getting an attorney to represent him. ROR, p. 138. Attorney Sandra Moore thereafter filed an appearance for him. ROR, p. 137.
The plaintiff cites no legal authority for the proposition that the commission is required to enter, sua sponte, a default against a respondent whose answer is a few days late. Indeed, the plaintiff's entire discussion of this claim occurs in a single paragraph that accuses the commission of being " unethical and bias" because it rejected the plaintiff's request for reconsideration as untimely but did not penalize Branford Hall for its late answer. See Pl. Br., pp. 8-9, ¶ 4. As discussed in Section III above, however, the regulations governing answers and requests for reconsideration differ. Under § 46a-54-46a(a), the executive director " may enter an order of default against a respondent who, after notice, fails to answer a complaint." (Emphasis added.) In contrast, the regulation governing requests for reconsideration is mandatory. It provides unequivocally that " [t]he executive director shall reject untimely requests for reconsideration without a formal review of the substance of the request for reconsideration." Regs., Conn. State Agencies § 46a-54-62a(c). Our Supreme Court has observed the distinction between the use of " may" and " shall" in different provisions governing the commission's complaint process. " [The] use of the word 'shall, ' considered in conjunction with the use of the word 'may' in other sentences of the same statutory section, supports the conclusion that the legislature acted with complete awareness of their different meanings." (Internal quotation marks omitted.) Hartford Principals' & Supervisors' Ass'n v. Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987). An exercise of discretion by an administrative agency must be upheld unless the agency abused its discretion. The plaintiff has not shown that the commission abused its discretion by accepting Branford Hall's answer even though it was a few days late.
V
Although the plaintiff purports to raise five issues on appeal, his fifth issue is merely a recapitulation of the four issues discussed above. The section of his brief devoted to this issue is a single paragraph that includes no legal analysis of any sort. Because it raises no new issues and contains no legal analysis, the court need not address it here. See Keating v. Ferrandino, supra, 125 Conn. at 603 (inadequately briefed claims are deemed abandoned).
CONCLUSION
For the reasons stated above, the court concludes that the plaintiff has not met his burden of proving that his substantial rights were prejudiced or that the commission acted arbitrarily, illegally, or in abuse of its discretion in finding no reasonable cause and in rejecting his request for reconsideration as untimely. The appeal is therefore dismissed.