Opinion
CV156031283S
10-26-2017
Carol Reid v. Town of West Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Henry S. Cohn, Judge Trial Referee.
The plaintiff, Carol George Reid, executrix for the estate of Thomas George, brings this administrative appeal from two decisions of presiding human rights referees of the Commission on Human Rights & Opportunities (CHRO). The first decision, dated March 24, 2011, dismissed George's CHRO complaint alleging that the defendant town of West Hartford (the town) had violated General Statutes § 46a-64. Specifically George claimed that the town had discriminated against him in public accommodation by denying him rear-yard pick up of his trash barrels. The second decision, dated October 1, 2015, dismissed the remainder of George's complaint, brought under the federal Americans with Disabilities Act (ADA) as authorized by General Statutes § 46a-58(a).
The plaintiff CHRO also brought a separate administrative appeal from the two decisions. On September 23, 2016, Judge Huddleston, in responding to a motion to consolidate, issued an order stating that consolidation was not necessary as the two appeals had already been treated as " companion cases."
The record shows as follows. George was a resident of the town. In a complaint filed with the CHRO on June 3, 2009, George claimed that he was " legally blind and [has] a mobility impairment that substantially limits [his] ability to walk." (Return of Record, ROR, Vol. 4, p. 705.) George also alleged that the town required residents to place their trash barrels at the bottom of their driveway for collection by the town's trash hauler. While the trash hauler offered a service of moving the barrels to the street for a fee, the town also developed a program that provided for free service for residents who were handicapped and below a certain income threshold.
George alleged further that he was denied participation in this program because he refused to provide documentation regarding his income. In his CHRO complaint, George claimed that he should have been included in this program as a reasonable accommodation under § 46a-64(a) and title II of the ADA for his alleged disability, regardless of his income. George never paid for the rear yard collection while the town, for a period in 2008, agreed to place him under the program, and once the town disallowed him, George never paid the trash hauler under the special fee program. (ROR, Vol. 1, p. 38.)
As indicated, in an order dated March 24, 2011, the then-presiding human rights referee dismissed George's § 46a-64(a) claim. He declared: " In other words, with respect to § 46a-64(a)(1), the statutory obligation of a place of public accommodation is to treat all persons alike. In this case, [the town] treats Mr. George as it treats the non-disabled occupants of residential housing." (ROR, Vol. 3, p. 485.)
On October 17, 2011, George passed away. On December 2, 2013, the presiding human rights referee allowed George's daughter, the plaintiff, to be substituted for him as the complainant. (ROR, Vol. 3, p. 374.) On April 25, 2014, the town's motion to dismiss was denied and the complaint was certified for a hearing. The hearing consisted of a stipulation of facts and the filing of memoranda of law. As indicated, the presiding human rights referee ruled on October 1, 2015 that George's complaint should be dismissed. The referee concluded that: " Congress only intended for the ADA to prohibit 'trait-based' discrimination and to require covered entities to provide reasonable accommodations or modifications that minimize or eliminated obstacles which exist separate and distinct from an individual's inherent capabilities." (ROR, Vol. 1, p. 28.) This appeal followed on November 13, 2015.
On April 22, 2016, the town moved to dismiss on grounds of lack of aggrievement. On September 1, 2016, the court denied the motion. The court's rationale was that a complaint filed with the CHRO " may be continued upon the death of the complainant 'so long as the estate of the complainant seeks to pursue a claim for monetary relief to which the complainant may be entitled, '" citing Commission on Human Rights & Opportunities v. Greenwich Catholic Elementary School System, 202 Conn. 609, 610, 522 A.2d 785 (1987). Here, George, in his 2009 complaint, had asked that the CHRO " secure for [him] any remedy to which [he] may be entitled." This would be construed to cover the awarding of damages for emotional distress that the CHRO had the authority to award under § 46a-58(a). Administrative appeals were to be given a strong presumption of jurisdiction. Kindl v. Dept of Social Services, 69 Conn.App. 563, 567, 795 A.2d 622 (2002).
At the hearing of this case on April 6, 2017, the court reviewed the prior ruling regarding aggrievement and stated that the prior ruling, in denying a motion to dismiss, had only addressed the issue of the validity of the pleadings. The plaintiff was also under an obligation to prove " the truth of [the] allegations" as well. Conn. Indep. Util. Workers, Local 12924 v. Dep't of Pub. Util. Control, 312 Conn. 265, 273, 92 A.3d 247 (2014). See also State Library v. Freedom of Information Commission, 240 Conn. 824, 832-33, 694 A.2d 1235 (1997), discussing General Statutes § 4-183(i), permitting the taking of evidence in an administrative appeal. Where the administrative record is not specific on aggrievement, it is appropriate to hold an evidentiary hearing in the Superior Court to determine proof of aggrievement. Accordingly, on May 16, 2017, the plaintiff presented her evidence of aggrievement at a hearing and supplemental briefs were filed by the parties.
The ruling of September 1, 2017 was given by Hon. Carl Schuman.
The plaintiff argues that an administrative appeal from a referee's decision of the CHRO does not require the proof of aggrievement as in a " zoning case" because such a case, involving civil rights, does not require more than the timely filing of a § 4-183 appeal. Plaintiff's supplemental brief at page 8. The court disagrees. See Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987) (strict compliance with statutory provisions to take an administrative appeal); McWeeny v. Hartford, 287 Conn. 56, 946 A.2d 862 (2008) (party bringing § 4-183 appeal from a dismissal by a CHRO referee failed to demonstrate aggrievement); Commission on Human Rights & Opportunities v. Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain, Docket No. CV-00-0500563-S, (April 25, 2001, Cohn, J.); Carr v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Danbury, Docket No. 326518, (April 2, 1998, Mihalakos, J.).
The issue becomes whether the plaintiff met her burden to show aggrievement. Missionary Society of Connecticut v. Board of Pardons & Paroles, 272 Conn. 647, 650, 866 A.2d 538 (2005). The test for classical aggrievement is as follows: " We next turn to the plaintiffs' claim that the trial court improperly determined that they had not established classical aggrievement in either appeal. Before addressing the plaintiffs' specific claims, we note the following generally applicable legal principles and the relevant standard of review. As indicated previously, the 'fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specifically and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . .
" 'Mindful that it is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity . . . [a plaintiff is] required to plead and prove some injury in accordance with our rule on aggrievement . . . Accordingly, [i]t [is] the function of the trial court to determine . . . first, whether the [plaintiff's] allegations if they should be proved would constitute aggrievement as a matter of law, and second, if as a matter of law they would constitute aggrievement, then whether [the plaintiff] proved the truth of [the] allegations . . .'" Mayer v. Historic Dist. Comm'n of Groton, 325 Conn. 765, 781-82, 160 A.3d 333 (2017).
It is the plaintiff's burden to prove a " legally protected interest that is concrete and actual, not merely one that is hypothetical. A speculative loss . . . is insufficient to confer standing and establish aggrievement." New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 127, 627 A.2d 1257 (1993). " Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement." Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 198, 895 A.2d 286 (2006).
The plaintiff's proof at the hearing and in her brief may be summarized as regards damages as follows: The prior ruling on aggrievement had noted that George's complaint had alleged that the town had denied him services and that he was seeking " any remedy to which I may be entitled" including damages. The plaintiff was also called to the stand to give evidence.
The parties agree that the plaintiff as executrix was, under the Greenwich case above, entitled to advance any outstanding damage claim that George had in the CHRO. Any other claim, such as one for injunctive relief against the town, would not survive his death.
As the plaintiff's brief correctly notes, the evidence of the plaintiff goes to the standing of George. The plaintiff as executrix would not be entitled to damages. She did testify that she was interested in seeing a favorable resolution as this was a major concern of her father's. While commendable as she was honoring her father's wishes, this itself is not enough for aggrievement purposes.
The plaintiff testified that her father lived in his house in town from 1950 to his death in 2011. He lived alone after the death of his wife in 1989. Her father was a tough and independent person, who " soldiered-on" through difficulties. On the barrel issue, she would bring the barrels to the curb when she visited every two or three weeks. He did not have a lot of trash over this time period. He also believed as a town taxpayer who was disabled that he was entitled to an accommodation. He would therefore not complete the financial application. On cross examination, the plaintiff was asked about whether her father had any emotional injuries due to the actions of the town in denying him the free barrel program. She did not identify any.
In addition, the plaintiff conceded that George received free services under " grandfathering" until 2008. After this time, he refused to submit the financial affidavit and had dealt with the barrels on his own or through the plaintiff's help. It is also true that neither George nor the plaintiff have incurred any legal fees in pursuing George's claim at the CHRO or in the Superior Court.
The court agrees with the town that legal fees standing alone do not provide aggrievement.
On these facts, the court concludes that the plaintiff has failed in her burden to prove aggrievement. There were no actual damages. The plaintiff argues that there were damages for emotional distress, but failed to indicate that George had suffered any emotional harm. The plaintiff never testified that she had evidence that her father was affected by a loss of dignity. The concrete and not hypothetical injury in fact is entirely missing. The town also makes a good point under the ADA that damages are not available without proof of " discriminatory animus or ill will stemming from [George's] disability." Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 89 (2d Cir. 2004). There is no proof of discriminatory animus or ill will against George.
There are two claims here--an ADA claim as allowed by § 46a-58(a) and a public accommodation claim under § 46a-64(a). As stated, the claim under the ADA does not allow for damages as a matter of law and the plaintiff has failed to prove any damages under § 46a-64(a) and General Statutes § 46a-86(c).
The CHRO, in the companion case, argues that it has broader standing than the plaintiff. But the case that it relies upon, Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 265, 777 A.2d 645 (2001), allows the agency broader standing if it must defend the " integrity of its decision-making process." Id. Here, the CHRO as supporting the plaintiff has not prevailed after a hearing before a CHRO human rights referee. Its decision-making process is intact. Cf. Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 596 A.2d 396 (1991); Commission on Human Rights & Opportunities v. Human Rights Referee, 66 Conn.App. 196, 783 A.2d 1214 (2001); Commission on Human Rights & Opportunities v. University of Connecticut, Superior Court, judicial district of Tolland, Docket No. CV-95-57527-S, (December 16, 1996, Bishop, J.). The standard for aggrievement for the CHRO, therefore, is the same as that of the plaintiff. Cf. McWeeny v. Hartford, 287 Conn. 56, 64, 946 A.2d 862 (2008), where the CHRO joined as a plaintiff and argued that it had a broader standard. The Superior Court did not agree with that position. The court concludes that the CHRO also has failed to prove aggrievement.
The court concludes that the two companion appeals must be dismissed for lack of aggrievement.
SO ORDERED.