Vollemans v. Town of Wallingford

awareness of some “potential problem” one might, day, require simply medication cannot be enough trigger provision. notice of claim by on the basis of the Accordingly, facts found commissioner, and affirmed the board, we conclude improperly that the commissioner concluded that the jurisdiction. commission lacked The decision of the workers’ compensation review board is reversed and the case is remanded with direc- tion to reverse the determination of the commissioner and to remand the case to the commissioner for further proceedings accordance with law. opinion

In this the other concurred. judges PETER VOLLEMANS, J. JR. v. TOWN OF

WALLINGFORD (AC 27332) Schaller, Gruendel, McLachlan and Js. officially released14, January August

Argued Steele, appellant M. for John-Henry (plaintiff). Zelman, Rose,

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

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

The facts are following undisputed. superintendent became power of the Pierce plant, which the defendant owned and operated, 1989. On February 25, 2000, was informed that the plant would be position closed and his eliminated. The defendant plant closed the on June 30, 2000, but plaintiffs retained the services for some time thereafter as it plant. decommissioned the On 13, 2002, November personnel defendant’s director received a letter plaintiffs from the attorney. That provided letter part: relevant “I have been retained plaintiff] to [the represent him in connection with employ- his current ment situation with you . . . As proba- [defendant]. bly know, plaintiffs] employment is scheduled to [the terminate effective on or about December .... All employees of the other power plant, at the who terminated, are not are being substantially younger plaintiff] than .... any The absence of other rea- [the son substantiating disparate treatment between [the plaintiff] power plant and the other employees raises presumption strong plaintiff] that is being not [the position transferred to another simply because of his his age. During employment, representations certain were made to . . plaintiff] . that plaintiff] [the [the position would have a with as long as [defendant] he wanted. Accordingly, failure to continue plaintiffs] employment with the [the [defendant] appears to be in direct promis- contradiction of these sory representations .... plaintiff] prepared [The rights on human his claims to bring [commission if neces- to court opportunities (commission)] with an accord attempt to reach sary, but would rather Therefore, matter. proceed than in this the [defendant] representative that a respectfully requests plaintiff] [the possi- discuss a contact me ... [defendant] litigation.” issues short of resolution of these ble written provided was subsequently The employment. his termination of impending notice of the plaintiff dated December In a letter to the public director of Smith, F. the defendant’s Raymond will serve as him that letter utilities, informed “[t]his your with the final notice of termination [defendant] was Janu- day employment final plaintiffs . . . .” The ary with the commission filed a his 2003, which

on June of his in violation age was terminated “because Prac- Employment in the Connecticut Fair prohibitions seq.].” 46a-51 et Act General Statutes [(CFEPA), § tices the com- review, a merit assessment conducting After untimely action as mission dismissed the stated: “The com- under 46a-82 The commission (e). in the plaint untimely is filed. There is documentation attorney dated [plaintiffs] of a letter written form [plaintiff] 2002 which indicates that the November was to be terminated as was aware that he scheduled not complaint 2002. In that the was of December days elapsed had 3, 2003, filed until June more than 180 his knowledge had first [plaintiff] from the date the a continuing termination. Termination is not impending a release of The commission further issued violation.” plaintiff to commence jurisdiction, authorizing Superior action in the Court. civil followed, 17,2003 complaint December plaintiffs The before the commission repeated allegation which his of his constituted age that the termination in of CFEPA.1 dis- Following discrimination violation covery, summary the defendant moved for judgment plaintiffs complaint on three that the to the grounds: (1) untimely; plaintiff commission was that the failed to (2) prima discrimination; establish a facie case of age that the defendant had articulated nondiscrimina- (3) tory plaintiffs employ- reason for the termination of the May argument ment. The court heard on the motion on decision, its memorandum of the court applied Ricks, the rule set in holding forth “the discriminatory purposes act for the of the timeli- plaintiffs appeal ness of the to the in the [commission] present plaintiff case is the date on which the received a definite notice of his termination.” that the Finding plaintiff had received that notice “sometime before 13, 2002,” November the court concluded that no genu- ine material fact regarding issues of existed the defen- plaintiffs dant’s claim that untimely. commission was It therefore rendered sum- mary favor of the defendant.2 From that judgment now judgment, appeals.

Our standard of review a court’s governing grant of summary Summary judgment well established. judg appropriate pleadings, ment is when “the affidavits and any proof other submitted show that there is no genuine any issue as to material fact and that the moving party is entitled to as a matter of law.” judgment (Internal Technologies quotation marks omitted.) Miller United rp., 732, 744-45, 233 Conn. 660 A.2d 810 (1995); Co Practice Book 17-49. As the court’s decision on a summary determination, motion for is a judgment legal separate against also instituted a action the defendant sound ing stemming on breach of contract March from the termination employment. of his The court consolidated the two actions on appeal. That at March breach of contract action is not issue this grounds The court did not address the defendant’s alternate for sum mary judgment. Mascardo, plenary. Rosato appeal on is review our A.2d 893 (2004). App. 396, 82 Conn. a constitutional ordinarily have litigants

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

“The court is most summary light judgment in a motion for . . . the motion. party opposing favorable is the issue-determination, rather than [I]ssue-finding, not . . trial court does procedure. . key to the [T]he when on a motion ruling the trier of fact sit as not to decide function is summary judgment. [Its] whether rather to determine fact, of material but issues quo- internal omitted; any (Citations such issues exist.” Road, Still Hill Barasso Rear omitted.) tation marks A.2d 1134 LLC, 798, 802-803, (2004). App. 81 Conn. statutory to an issue of this case distills Finally, because plenary. that issue of law is our review of interpretation, Dark-Eyes Commissioner Revenue Services, See 848, 276 Conn. 887 A.2d cert. denied, 549 U.S. 815, 127 S. Ct. 166 L. Ed. 2d 26 (2006).

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

Our Supreme Court scrutinized Wil 46a-82 (e) § liams v. Commission on Rights Opportuni Human & ties, 257 Conn. 777 A.2d aff'd after remand, App. 316, 67 Conn. 786 A.2d (2001), and concluded that subject the time limit contained therein is not mat jurisdictional; id., 282; operates ter but rather as a stat ute Id., explained: of limitations. 278. The court “[T]he day failure to meet the 180 time limit 46a-82 is (e) § consequence. without . . . require a time [not] [I]f ment mandatory, complied is deemed to be it must be with, consent, absent such factors as waiver equita or Thus, complaint ble that tolling. is not filed within mandatory requirement time is dismissible unless waiver, consent, or some other compelling equitable applies. doctrine We tolling conclude that the time limit of 46a-82 (e) mandatory, and thus the commission § “Discriminatory employment practices prohibited,” Entitled General provides part: discriminatory “(a) Statutes 46a-60 in relevant It shall be a practice (1) employer, employer in violation of this section: For an employer’s agent, except occupational or the in the case of a bona fide qualification need, employment any discharge or to . . . from individual age . . . because of the individual’s . . . .” if was it dismiss the properly could of discrimina- act days within not filed Id., 284. in original.) (Emphasis tion.” waiver, consent or argue does not doctrine equitable tolling compelling other some simple, his claim is Although case. present in the applies filed that he plaintiff The contends is not. its resolution days of within 180 with the commission complaint his on which he claims occurred discrimination, the act of By contrast, the defendant day employment.4 his final of act of discrimination alleged the maintains that of the termina- the was notified occurred when prior to the employment point at some tion of his attorney plaintiffs letter from the November 2002 employment status. plaintiffs the seeking negotiate to then, proper concerns the inter- pertinent issue, determine, of 46a-82 Our task is to pretation (e). § action in which the dis- allegedly an discrimination age criminatory practice employment, is the termination of act of discrimination tran- precisely alleged when the spires.5 question impression That is a of first in Connect- inquiry icut. our with the mandate of Although begins l-2z,6 respective General Statutes the of arguments § adopt were In the event that this court to the federal rule enunciated Ricks, alternatively argues that he filed his within the days 13, 2002, of December the date that he claims to have received employment. unequivocal notice of the termination of his reject We the defendant’s exhortation to defer to the commission’s inter pretation [o]rdinarily, appellate] (e). § Statutes 46a-82 of General “[While] [an applied by court affords deference to the construction of a statute the empowered by carry purposes agency administrative law to out the statute’s question agency’s . . law has not . when a state determination of judicial scrutiny previously subject agency . . . been to is not entitled special courts, agen is for the and administrative deference. not [I]t cies, expound apply governing principles (Internal quotation and of law.” England Telephone Dept. omitted.) marks Southern New Co. Public Control, Utility (2005). 874 A.2d 776 274 Conn. provides: meaning shall, § General Statutes l-2z “The of a statute in the instance, first be from the text of the statute itself and its ascertained If, relationship examining considering to other statutes. after such text and relationship, meaning plain unambiguous such of such text is patent in 46a- parties ambiguity underscore § statute, operative date is that on (e). Under In “the act of discrimination” occurred. alleged

which cases like discriminatory termination act is the dis- present one, 46a-60 does not indicate when (a) (1) Yet charge. We con- employment” from arises. therefore “discharge proper to ascertain its sider extratextual evidence meaning. of statu principles to our

“According long-standing objective fundamental is to ascer tory construction, our . . intent of the . legislature. tain and effect to the give statute, we look to the the intent of determining history itself, legislative words of the statute enactment, circumstances its surrounding to implement, it was to policy designed legislative and common law relationship existing legislation its to subject same matter.” principles general governing King Sultar, marks v. 253 quotation omitted.) (Internal A.2d 782 “In 429, 437-38, (2000). construing Conn. 754 be and courts will statute, used, a common sense must accomplish assume that the intended legislature quotation (Internal reasonable and rational result.” King Education, Board v. 203 Conn. marks omitted.) addition, 324, 332-33, (1987). 524 A.2d 1131 “[w]here doubt, in to legisla of a statute is reference meaning jurisdictions pertains states and which tion other subject matter, persons, things, or relations the same may helpful interpretative source of guidance.” be Johnson v. Man quotation omitted.) marks (Internal son, A.2d cert. 309, 318-19, (1985), 196 Conn. 846 813, 88 L. Ed. 2d 787 denied, 474 U.S. 106 S. Ct. (1986). yield results, or unworkable extratextual evidence of the does not absurd

meaning of the statute shall not be considered.”

I observed, CFEPA “defines Court has As our of dis workplace to rid the designed important rights v. Police Com . . . .”7Sullivan Board crimination A.2d 1096 208, 216, (1985); missioners, 196 Conn. Opportuni & Rights on Human see also Commission 665, 694, 855A.2d Education, 270 Conn. ties v. Board of composed is of remedial such, “As the act 212 (2004). liberally to effectu construed which are to ‘be statutes, Service Commis purposes.’ Civil ate their beneficent A.2d 1203 Sup. 528, 532, 466 Trainor, 39 Conn. sion Realty Larsen, Co. v. Chelsey also Larsen see (1983); (1995) (remedial 656 A.2d 1009 232 Conn. liberally construed in favor of those are to ‘be statutes Commis benefit’).” intended to legislature whom the Opportunities v. Truelove & Rights on Human & sion A.2d 1261 (1996). 238 Conn. Maclean, Inc., period contained Therefore, reading filing a broad required. (e) in 46a-82 § history 46a-82 com- surrounding (e)

The legislative The statute was amended ports principle. with that which Acts, 74-54 of the 1974 Public No. ninety days. to 180 As deadline from changed decision, in memorandum of the trial court noted its was “to state law purpose bring one of that amendment with federal law.”8 Williams Commission into accord machinery purpose ... is to create an effective noble of this bill “[T]he employment.” in 8 H.R. of discrimination in this state for the elimination Sess., p. 2584, Representative Proc., 12, Satter. remarks of Robert Pt. 1959 period amendment, filing contained in General Prior to the counterpart. (e) than that of its federal § was much shorter Statutes 46a-82 Hearings, Rights Opportunities, Standing Human Conn. Joint Committee Assembly Similarly, again Sess., p. in 1975 amended the General 4. pay expand for which back could be awarded to the amount of time § 46a-82 practice years, bring remedy to two so as to an unfair as a harmony v. Commission on with federal law. Williams our statute into Opportunities, supra, (citing Rights 274-75 Public & 257 Conn. Human 1975, 75-27). Acts No. particular legislative purpose Application issue now before of that light (e) was § dubious in of the fact that 46a-82 this court is somewhat Opportunities, & Rights on Human 257 Conn. the revision aimed to ensure Equally significant, potentially meritorious claims were not dismissed Green, Arthur L. director of the due to late As filing. “[P]erhaps the reason for the bill commission, testified: of the commission many knowing is that citizens not past [ninety] much get around to allowed discrimination day period. We think there is so will have a chance to to us people get in this state and last weeks we had to without cut off. two being away [attention, cases that came to our turn [three] [ninety] . . . because the perfectly] complaints valid days Conn. Joint Committee [passed].” Standing had Opportunities, Human Hearings, Rights also Williams Commission on Sess., p. 4; see Rights Opportunities, Human & supra, 274 (legislature response prevalence to requirement amended filing history That complainants missing filing deadline). that the to provides strong legislature sought evidence complaints (e) avoid the dismissal of under 46a-82 filing. due to late repeatedly law has

Finally, we note that “Connecticut to about a trial on expressed policy preference bring dispute possible merits of a whenever and to secure day practice in court. . . . Our for the his or her litigant without proceedings does not favor the termination of controversy where a determination of the merits necessary with due regard that can be about brought procedure.” omitted; quota rules of internal (Citations Egri Foisie, App. 243, tion marks 83 Conn. omitted.) denied, 931, A.2d cert. 271 Conn. 249-50, 848 preference represents That “a funda A.2d 930 (2004). ”9Id., state. 249. With policy mental consideration this years Supreme Court’s enunciation of the rule in Ricks amended before Fernandez, (1981). 102 S. Ct. 70 L. Ed. 2d 6 and Chardon v. 454 U.S. contrary. part decisions, generally II. Prior those federal law held to the See See footnote 13. explained, ago the common law 9As our Court “[c]enturies upon prescribed England rigid . . adherence to the courts of . insisted prece- federal we turn to the mind, in principles those consid- policy as well as the adopt, we are asked to dent therein. erations involved

II the United States maintains The defendant dis present dispositively resolved Supreme Court law, of state adopt, to as a matter pute and us urges day require of the 180 interpretation that federal employer’s of an duties “In the contours defining ment. we have statutes, antidiscrimination under our state interpreting law to federal case guidance looked for 2000e Act of 1964 U.S.C. Rights § Title VII of the Civil [42 counterpart to 46a-60.” statutory the federal seq.], et Dept. Correction, 164, 717 Brittell v. 247 Conn. of v. Commission on see also Williams (1998); A.2d Opportunities, & Conn. 278. Rights Human “ a source of assis time, ‘great At same while often Council force’ Local persuasive ”; tance of Relations, Labor No. v. State Board 224 Conn. of that decisions A.2d 766 it is axiomatic (1993); on binding Court are not of the United States our Gen interpreting courts tasked with Connecticut final arbiter Rather, “Connecticut is the eral Statutes. many action, resulting in suits for technical faults forms of the defeat of upon jurisprudence migrated their merits. Some of that ancient rather than country development procedural of law to this . . . and has affected the procedural [H]owever, legislature in our enacted numerous this state. applicable ordinary designed ameliorate civil actions that are to reforms many prescribed consequences from the norm result deviations [that] fallibility legal profession, generally largely from the order provide parties opportunity for cases to be resolved on their errant with an quotation (Internal flaw.” merits rather than dismissed for some technical 657, 664-65, Coppola Coppola, omitted.) v. 707 A.2d 281 marks 243 Conn. Planning Zoning Commission, quoting (1998), & Andrew Ansaldi Co. 67, 75-76, (Shea, J., concurring); (1988) 540 A.2d 59 see also 207 Conn. Review, 618, 623-24, Concept Associates, 229 Conn. Ltd. Board Tax requirements (1994) (“[o]ver-technical been formal have ever 642A.2d 1186 periodic problem law, leading legislature] intervals the common at [the which, substance, the courts to be reasonable to enact statutes . . . told perfection” quotation omitted]). marks in their search for technical [internal 200 Manson, its own laws.”10 Johnson v. 196 supra,

Conn. 319. Ricks, College

In the seminal case of Delaware State v. 250, the United States Court supra, 449 U.S. requirement VII, which, the of Title addressed persons to file a “requires aggrieved like 46a-82 (e), § Employment Opportunity [Equal with the ‘within one hundred and eighty Commission (EEOC)] days employment practice after the unlawful Delaware State Col- (e).” occurred.’ 42 U.S.C. 2000e-5 § lege Ricks, plaintiff v. 256. The was a member 13, On March faculty College. of the at Delaware State of trustees voted to 1974, (board) board college’s plaintiff. Id., 252. A grievance withhold tenure from by plaintiff followed. On June initiated proceeding the board sent the an official notice him “of its intent decision, of its in which it informed at the end of the 1974-75 not to renew contract [his] n.2. that notice acknowl- year.” Id., Although school proceed- the result of the edged pending grievance that decision, the grievance could overturn the board’s ing September 12, Id., 254. was denied on disagree We that the rule established Ricks and Chardon Fernan discuss, dez, 6, 28, (1981), will 102 S. Ct. 70 L. Ed. 2d 6 which we U.S. simply deserving great deference because it emanated from the United proclaimed Supreme Court, particularly have it States when other states 479, See, International, Inc., e.g., Romano v. Rockwell 14 Cal. 4th unsound. Rptr. question (1996) (“we 2d 20 the soundness 926 P.2d 59 Cal. high Chardon’’) reasoning of the court’s decisions in Ricks and Inc., Super. 30, 46, (App. 2000) TRW, N.J. 748 A.2d 1141 Div. Homlin v. adopt arbitrary (“[w]e rule of Ricks and Chardon see no reason to 'd, any persuasive policy basis”), discussion of a sound aff 167 lack] [which (2001). N.J. 770 A.2d 283 deciding question impression interpreting our statutes and this of first law, depart we are free to from that federal as a matter of Connecticut statutory interpretation upon concluding fails effectuate both the that it legislative policy underlying the statute at issue and the remedial nature jurisdictions thereof, sibling that consid- as have more than one-third of those question. part See II. ered the with the EEOC plaintiff filed April 28, 1975, On complaint against discrimination an to sue right issued subsequently The EEOC college. an action in commenced then letter. Id. tenure, him court, denying alleging federal of his him on the basis against discriminated college VII and 42 U.S.C. in violation of Title origin national Ricks, supra, College State 1981.11Delaware claims as dismissed both 254. The District Court U.S. discriminatory event that the untimely, holding received when the on June occurred His Id., 254—55. of the denial of tenure. official notice therefore, fell EEOC, to the April 28, complaint 1975 required by 42 U.S.C. day period the 180 beyond well v. College Ricks, 2000e-5 Delaware State (e). 254-55. Appeals United States Court appeal,

On v. See Ricks judgment. Third Circuit reversed that 1979), F.2d 710 Cir. College, (3d State Delaware L. 498, 66 (1980). Ct. Ed. 2d 431 rev’d, 250, 101 S. 449 U.S. what as, before it posed question The court “[f]rom Id., 711. The court 180-day period date does this run?” of Bonham v. analysis its with a discussion began 569 F.2d 187 Cir. Industries, Inc., (3d 1977), Dresser L. 2d 439 U.S. 99 S. Ct. Ed. denied, cert. question in a similar which it considered (1978), contained in day requirement the 180 regarding filing Employment in Act (ADEA), Discrimination Age decision, the Third seq. Quoting 621 et U.S.C. § 180-day period begin “The does not Circuit stated: person a reasonable employee knows, or as run until has made a final deci know, employer that the should employee to ren him, terminate and the ceases sion to Until that time he employer. der services further present case, complaint did Ricks Unlike the in the College Ricks, supra, discriminatory discharge. allege Delaware State not 449 U.S. 257.

may have reason to believe that his status an as employee finally determined, has not been and should opportunity any difficulty be an to resolve while given employer. any event, he continues to work for the employee a terminated who is still should not working lawyer required be to consult a or file of dis charges against employer crimination his as as he is still long even has working, though employer’s he been told of the present intention to terminate him in the future.” quotation internal (Emphasis original; marks omit 712. In ted.) College, supra, Ricks Delaware State day of the identical light wording respective 180 requirements ADEA, in Title VII and the the court perceived interpret requirements “no reason to the two differently . . . .’’Id. the considerations noted the Third Circuit

Among may were employers the fact that reverse termination decisions and that to file suit while forcing employed still the defendant would hostil- engender ity in workplace. the Id. The court further stated that day employment a rule on the last would focusing provide employees line to courts and bright guide Id., alike in what is often a clouded matter.12 712-13. that the court held that the dis- Applying rule, alleged criminatory 30,1975, plain- event occurred on June the day employment. Id., tiffs last 713. his Accordingly, timely. EEOC was State 404 U.S. it would have to determine when would construing increasing that a final employees who, charge. and when a reasonable As the Third Circuit stated: “Under the often College, supra, unwittingly Such an laymen, the cost of decision the ^[527] procedural through approach not had lose the 92 S. 605 F.2d 713. litigation, lawyers, been person attempts Ct. requirements would made. opportunity who initiate would this purportedly at ignore 30 L. Ed. 2d 679 Besides approach internal resolution of really of Title the to make a creating know or have reason to know appellees’ formulation, final decisions are learning is process.” likely VH, complexity (1972), must be mindful that timely to become a of Love v. Ricks Delaware their that filing grievances, really courts, Pullman, of their thereby trap courts final reversed the judg-

The United States Court that “limita- of the Third Circuit. It first observed ment protection periods, guaranteeing tions while assert their promptly civil laws to those who rights protect employers from the burden of rights, also employment decisions arising claims from defending Ricks, College Delaware State past.” that are long explained 449 U.S. 256-57. The court then plaintiffs complaint of whether the the determination timely required precise in a identifi- was filed manner practice of which employment cation of the unlawful plaintiff complained. Id., Noting that termina- delayed, inevitable, tion of is “a but conse- quence tenure,” of the denial of the court concluded only that “the discrimination occurred—and filing periods limitations therefore commenced—at time the tenure decision was made and communicated plaintiff].” Id., 257-58. It continued: [the “[T]he discriminatory proper upon focus is the time of the acts, consequences upon not the time at which the painful.” acts became most (Emphasis original; quotation internal Id., marks 258. Because the omitted.) “formally board rejected” tenure bid and “ ” communicated that position’ ‘official on June 26, 1974, day the court held that the 180 period Id., commenced on that action, date. 261. His therefore, was time barred. dissented from the Ricks justices

Four majority opin- joined by ion. a dissent Justices Brennan and Mar- shall, Justice Stewart indicated that “a fair reading the plausible reveals a allegation that the actually [c]ollege plaintiff] Sep- denied tenure on [the tember the date on finally which the [b]oard accept confirmed its decision to faculty’s the recom- mendation that he not be tenure.” given Id., (Stew- art, J., difficulty the dissenting). Underscoring in determining precisely when definitive communication made, he observed that “the

of termination is [b]oard its earlier actions as tentative may have regarded itself review pending thorough triggered preliminary, or educational respondent’s request [board’s may be able plaintiff] policy] [The [c]ommittee. [c]ollege Court that at his to the District prove to faculty’s recommenda- response to the original [b]oard subject reopening to virtually not a final action tion was deci- cases, preliminary but a only in the most extreme question to the advance the tenure sion to [b]oard’s stage next conventional as the committee grievance J., Id., dissenting). process.” (Stewart, separately. addressing Stevens dissented Justice different explained that hand, issue at he “[t]hree when a determine points arguably could reference discriminatory accrues: discharge cause of action for the relation- decides to terminate employer when the (1) given to when notice of termination ship; (2) effec- discharge when the becomes employee; (3) Justice Stevens J., dissenting). Id., tive.” 265 (Stevens, filing period with the Third Circuit agreed day complainant’s of a on the last should commence “The most sensible rule would He stated: employment. time establishes the discharge that the date of provide of limita- accrues and the statute when a cause of action date, the allegedly run. Prior to that tions begins importantly, more subject change; act is wrongful the date which can nor- date is discharge the effective difficulty dispute.” or mally identified with the least be J., dissenting). (Stevens, Id. Ricks, the United year deciding than one after

Less the issue Chardon Supreme Court revisited States 70 L. Ed. 2d 6 102 S. Ct. Fernandez, 454 U.S. nontenured educa- Ricks, like involved which, (1981), were Chardon 18,1977, to June tors. Prior at the expire would appointments that their informed year” given and were present school “termination 8, June 30 and 1977. August termination dates between Chardon, 765, (1st 648 F.2d Rivera Fernandez Ct. L. Ed. 2d 6 rev’d, 454 U.S. 102 S. Cir.), filed suit under On June (1981). unlawful termination alleging U.S.C. § 766. employment. Chardon, supra, Rivera Fernandez v. prescribed a one applicable statute of limitations year Id., Hence, limit. 766-67. each was timely if measured from the actual termination plain- if employment but late measured from when The United tiffs were informed that termination. Id. Appeals for States Court of the First Circuit concluded complaints timely. 767. plaintiffs’ Id., that the were per opinion, In a curiam Court con- cluded otherwise. It stated: “The decision below is con- trary College recent decision Delaware State [our] [in] [supra, v. Ricks 449 U.S. . . . The Court of 250]. Appeals for the First Circuit Ricks on the distinguished in that had that ground [the Ricks] employment prac- denial of tenure was the ‘unlawful respondents termi- tice,’ allege whereas here [the] employment nation of their as administrators was the employment practice.’ ‘unlawful We thinkiUc/cs is indis- When in was denied tinguishable. [the Ricks] tenure, 1-year Thus, he was ‘terminal’ contract. given decision was made—and each case, operative which designated advance of a date on given—in notice Fernandez, terminated.” Chardon v. plaintiffs were notified supra, 454 U.S. 7-8. Because the had been made to terminate their “that a final decision year they more than one before filed appointments” complaints the court held that complaints, their Id., time barred. were opinion the Chardon was not unanimous. Ricks,

As joined by Marshall, dissented, Justice Brennan, Justice “plainly case was from stating distinguishable that the Id., J., . . . .” He (Brennan, dissenting). Ricks hold, [Ricks], to as was held in explained: thing “It is one period, the limitations purpose computing the of that for tenure, denial of a benefit such as a cause of action for plaintiff when the consequent accrues damage, and benefit; quite been denied that it is learns that he has here, that a cause of hold, as the does another to [c]ourt from an unconstitutional resulting action for damages employment accrues when the termination of my knowledge, will be terminated. To learns that he customary principles of analogue such a rule has no Corbin, (1951) 4 A. Contracts 989§ limitations law. See for to penalized leaving should not be (‘The his opportunity wrongful an to retract the defendant if the statu- penalized and he would be so repudiation; to run tory begin against of limitation is held period Fernandez, him Chardon immediately’).” Justice Brennan con- J., dissenting). U.S. 9 (Brennan, of this will be to increase ruling cluded that effect “[t]he unripe anticipatory lawsuits the number of filed until that should not be federal courts—lawsuits suffered, and until the some concrete harm has been time, have had maximum parties, and the forces controversy.” Id. opportunity (Brennan, to resolve J., dissenting). sepa- authored a Ricks, he did in Justice Stevens

As joined by this time Justices Brennan dissent, rate Circuit, the decision of the First Quoting Marshall. from of action “The issue of when the cause he stated: when the unlawful depends alleged accrues ... on identify necessary, therefore, act occurred. It is an here, as the claim is that Where, unlawful act. reason, prohibited was made for a employment decision was the making that the unlawful act argued it could be implementation of it. decision, rather than depart a refined rule would too But we think such ordinary people. sharply understanding from the revocable, incom- act was . . . The unlawful nonexistent until practical purposes, plete and, here, as [W]here, . . . discharge. actual demotion or closely plaintiffs’ related to the date that is most identified, we think easily date most claim is also the promotes the rule that best adoption concern for nice- over technical certainty litigation and eliminates quarrel is plaintiffs’ is well warranted. ties [The] with discharges—not with their demotions and until the No actual harm is done notices themselves. then, the act action is consummated. Until threatened claim remains plaintiffs’ which is the central focus of the omitted; quotation internal incomplete.” (Citation Jus- Id., J., dissenting). 10-13 omitted.) (Stevens, marks plaintiffs’ com- Stevens thus concluded that tice untimely. been dismissed as plaints should not have J., Id., (Stevens, dissenting). enunciation of the so-called Ricks-Char-

Prior to the in courts, federal addition rule, don several and First Cir- of the Third Circuit respective decisions a rule.13In the Chardon, rejected in and such cuit Ricks Industries, Inc., example, F.2d v. Dresser For in Bonham run, of limitations to the Third Circuit concluded that for the statute unequivocal prerequisites employee (1) must be met: must receive two day. (2) employee have worked his last notice of termination and must practice test, Applying the court concluded that “the unlawful perform 31,1975 plaintiff] services occurred on October when ceased to [the knowledge and on notice that he was not to return with [the defendant] job.” Id., Appeals to his 192. The United States Court of for the Second University Circuit reached a similar result in the related cases of Noble 756, 758 Egelston v. University Rochester, (2d 1976), Cir. State 535F.2d of O’Koren, College Geneseo, (2d 1976). at 535 F.2d Cir. In Rubin Court, Appeals (5th 1980), of for the Fifth 621 F.2d 114 Cir. the United States § 1983when Circuit held that cause of action accrues under U.S.C.] “[a] [42 injury or has reason to know of the which is the basis knows accrue, plaintiff the cause of action to a must first of the action. For injury supporting a suit to enforce his have suffered an the maintenance of day employment, plaintiff] be claim. . . . Until her last of could not [the any recompensable injury. . . . When her certain that she would suffer perform paid period and she ceased to services for terminated injury complete [ujniversity, plaintiff’s] was and her the [defendant] [the necessarily courts Chardon, federal

wake of Ricks disputes involving filing in applied holdings have those VII cases.14 Because those limitations in ADEA or Title precedent are federal courts bound lower claims, federal deciding Court in United States the issue before us. they light little additional on shed attention, however, is federal decision that merits One F.2d 945 Cir. Corp., (6th v. Bendix Janikowski 1987). case, ques- Janikowski involved present

Like the commenced on whether limitation filing tion of day employment or the date of notice of the final omitted; quotation (Citations internal marks omit cause of action accrued.” Id., ted.) Metropolitan Likewise, Krzyzewski v. Government Nashville & County, 1978), (6th 584 F.2d 802 Cir. the United States Court Davidson explained Appeals that the ADEA “is humanitarian for the Sixth Circuit interpreted legislation and commonsensical which must be humane 180-day period very employee manner; short. An should not be its required rights while he continues to work to take action to enforce his 180-day period employment status is at all uncertain. The and while his employee knows, person begin or as a reasonable does not to run until the him, employer final to terminate know that the has made a decision should employer. employee services to the Until and the ceases to render further employee may status as an has that time he have reason to believe that his opportunity finally determined, given to resolve and should be an not been any employer. event, any difficulty work for the In while he continues to required employee working to consult who is still should not be terminated lawyer against employer long charges discrimination his as as or file employer’s present working, though he has told of the he is still even been Id., 805-806; (Emphasis added.) him in the future.” intention to terminate Brewing Corp., 92, (8th 1975) v. 525 F.2d 95 Cir. see also Moses Falstaff requirement “although fully complied (plaintiff because with ADEA notice discharge was transmitted on November it was not notice of appellant’s fully implemented until official termination on November the 30, 1973”). 14 Proppants, 481, (8th See, e.g., Duty v. 293 F.3d 489-90 Norton-Alcoa Board, 452, (6th 2002); F.3d 460 Cir. Wade v. Knoxville Utilities Cir. America, Inc., 266, 2001); 65 F.3d Smith United Parcel Service of 86, Bank, (4th (2d 1995); v. 1st Source 928 F.2d 88-89 Cir. Cir. Hamilton 756, Chapman Homco, Inc., (5th 1989), 1990) (en banc); F.2d Cir. (1990); denied, 110 S. Ct. 108 L. Ed. 2d 785 Mull cert. 494 U.S. Plastics, Inc., (7th 1986). Cir. v. ARCO Durethene 784 F.2d alleging filed suit notably, plaintiff the Most termination. and state of both federal in violation discrimination age Appeals Court of United States Id., 946. The law.15 federal plaintiffs the first addressed Circuit the Sixth Ricks-Chardon the Applying ADEA. under the claim claim was plaintiffs that the court concluded rule, the Id., 947-48. untimely filed. plaintiffs attention to the turned its court then It act. rights civil Michigan’s under law claim

state law, Michigan that contends plaintiff] stated: “[The of limita- the statute Chardon, starts unlike Ricks rather than discharge actual the date of tions from . . . discharge. s] date of notification [The accrues from of limitations timely period if the is suit untimely period if but discharge, the date of they him notified day from the accrues defendant] [the The court continued: Id., him.” terminating were Court has never “Unfortunately, Michigan to divine task is question. addressed this [0]ur with say would if faced court Michigan high what the is that if it were confronted guess . . . Our the issue. Supreme Court us, Michigan with the issue before precedent federal away from the current would veer limitations for the period declare that actually run date began claim [state] . .” The Sixth Circuit Id., . . 948-49. stopped working timely.16Id., 950-51. state claim was thus held that the appears although it to us that foregoing, light regard law of land in rule is the the Ricks-Chardon is not discriminatory it discharge, claims of to federal arising standard for claims appropriate a fortiori 15 present proceedings point in the case raised has the At no of action. a federal cause 16 “schizophrenic potential Although the dissent is concerned court,” “may application in federal lead to curious results of the law” that difficulty respective applying state and federal little the Sixth Circuit had law in Janikowski.

210 Supreme under Connecticut law. As our Court has explained, “under certain circumstances, federal law beginning approach defines the and not the end our subject.” (Internal quotation omitted.) marks Rights Opportuni- v. State Commission on Human & (1989). ties, 211 464, 470, Conn. 559 A.2d 1120 construing The decisions of sister states similar statu tory provisions interpretation also inform our of 46a- (e). 82 See Johnson v.Manson, 318-19; 196Conn. (1979). v. Elliott, State 177 Conn. 411 1, 5, A.2d 3 adopt question Whether to the Ricks-Chardon rule is a authority split. sibling on which majority jurisdictions applied A have the Ricks- discriminatory Chardon rule as a matter of state law in discharge doing, they rely primarily cases.17 so on the United States Court’s statement that the discriminatory act occurs when termination is commu- employee, nicated to an rather than it is when effectu- recently However, ated. observed, “[o]f as one court adopted [the] the states that many . . [rule] Ricks/Chardon . analysis have done so with little or discussion. Human SchoolDistrict No. Scriptures, Inc., Inc. N.W.2d 251 v. denied, Turner 636 N.E.2d 265 P.2d 1197 N.E.2d 64 Wheatley 1991); (Colo. (Fla Dept. ^[17] S.E.2d 223 See (Ind. App. Wagher Guy’s Foods, Inc., (Ind. 2006); Weberv. App. DeMoranville, v. 125 Wash. 2d Rights Commission, Quicker American v. (2005); (1994); App. Industry, IDS Financial Humphreys 1990); 1987); (Wis. Moses, (1994) (distinguishing (1983); 2005), 114 P.3d v. Colorado Civil v. Keene Marion Eastin v. App. St. Labor Human Petersburg 69 Wash. 933 S.W.2d 938 S.W.2d 387, 393 vacated and aff'd on other Allen Telephone Telegraph Co., 1988). 602, v. Services, Inc., & Entergy Corp., 889 P.2d 498 v. 378 S.E.2d App. 445, 449-50, 850 Riverside v. Lieberman, Motor Club v. 490, & County Superior Court, Rights Commission, Ricks 604-605 (Utah App. Relations, 492-93 471 N.W.2d (Tenn. 1996); Specialty Retailers, (1994); Naylor 865 So. 2d 359 Ill. factually Mfg. Co., 845-46 (Tex. 1996); Cook, 256 Kan. 2005); grounds, 147 Wis. 2d App. 418 Mass. 394, 399-400, P.2d 536 (W. 567 So. 2d but 49, 169 Ga. 105, Hinman v. Yakima 3d Va. adopting 747 P.2d v. West 53-54 300, 309-10, Clarke 849 N.E.2d 823 N.E.2d 1216, 107-108 (1993), 48, 52, 56, 1989); App. 18, 19, 488, (La 2004); Virginia its 682, Hilmes Living review 489-90 (Minn. rule); 1141, ^[683]

211 Ricks/Chardon, following . . . cases . . . These out of convenience the rule adopt to us to appear sufficiently similar are provisions state because their spoken has Court VIIand to Title [because] v. Lockheed Haas of the issue.” side the federal on 735 487-88, (2007). 914 A.2d 469, Md. Corp., 396 Martin Ricks- applied this case court in the trial Likewise, discussion a substantive rule without Chardon therein. involved policies interests competing is considerations policy that addresses One case 105 Inc., 471 N.W.2d Services, Financial v. IDS Turner of the Ricks-Chardon adoption urging 1991). (Minn. the date (1) argued in that case defendant rule, the easily identifiable, (2) always also is not of termination of termination employer’s notice of an purpose for another time to look employee discharged give prospective relief and injunctive job, an action (3) of notice of at date can be commenced salary loss very signif- of termination is notice (4) termination the need to seek employee event that alerts icant that “the Nevertheless, noting Id., 107. advice. legal each tend to counterbalance arguments competing rule the Ricks-Chardon id.; adopted the court other”; policy consideration. any particular on without reliance Id., 108. rejected have the Ricks-Chardon minority

A of states discussions they have delved into doing, In so rule.18 Ltd., P.2d N.W.2d 713 223, 225-26, Or. 433, 439-40, N.C. Div. (1993); Tobacco ^[18] Rockwell Romano See v. 2000), 76 Haw. 454, 461, 879 1114, 396 Md. Homlin Co., 59 Cal. Rptr. aff 729 N.E.2d (2003); 'd, S.E.2d 344 500; 963 P.2d 678 167 N.J. N.C. TRW, Inc., Appeal Collins App. 78, 2d 20 (2001); P.2d 1037 (2000); ^[770] v. Comerica International, (1998). (1996); Super. 30, 46, 330 N.J. Pritchard, 79-80, A.2d 283 Oker Stupek Wyle (1994); Ross v. Ameritech ^{[549] [137]} v. (2001); Renegar R.J. Haas v. Lockheed Bank, v. S.E.2d Inc., Stouffer N.H. ^[468] 14 Cal. 4th Laboratories Corp., 748 A.2d Hotel Co. Mich. review denied, Martin 628, 633, 627 A.2d 479, Ohio St. 3d ^[1141] (Hawai'i) Corp., Reynolds 495, Corp., (App. ^{[926] [354] [664] [102]}

of the practical effects of requirements such discriminatory discharge emphasized cases and have the remedial nature of such legislation. An illustrative decision is v. TRW, Inc., Homlin Super. 30, 330 N.J. 748 A.2d 1141 Div. (App. aff'd, 167 2000), 205, N.J. 770 A.2d here, 283 As is the case (2001). the defendant Homlin claimed that the Ricks-Chardon rule was well established law. Id., Appellate 37. The Division of the Jersey New Superior Court thought otherwise, flatly rejecting Ricks-Chardon rule: “We see no reason adopt arbitrary rule of Ricks and Chardon. . . . either any those cases nor of the decisions that fol [N] low them any persuasive contain discussion of a sound policy basis for that selecting Id., rule.” 46. The court then set forth what it deemed “compelling reasons for contrary a rule. . . . First, employee actually until an is terminated, a final seemingly may decision well be perhaps reconsidered and reversed. There is no reason to encourage litigation preclude which might possi bility of reconsideration. . . . a Second, rule which triggers period of the limitation running on the date provides actual termination a date brightline eliminates much of the tortuous litigation hairsplit . . . ting where courts to determine when an [have] employee knew or should have known that he was definitely going to be terminated. In addition, rule which dates of the limitation running period from the actual termination of a s conforms proposition with a basic of our law: a cause of action accrues when a plaintiff injured has been or damaged. date, only Prior to that he or she is faced with an antici pation possible injury, may may which or occur, not upon depending employee actually whether the termi (Citations omitted; nated.” internal quotation marks Id. The court omitted.) period thus held that the filing discriminatory for the discharge Homlin “began day to run on last Id.; of work .”

213 Inc., International, Cal. v. Romano Rockwell accord Rptr. Cal. 2d 20 493-500, P.2d 4th Ltd., (Hawai‘i) Co. v. Hotel Ross (1996); Stouffer P.2d 1037 Haas 461-62, (1994); Haw. 494-500. supra, Md. Corp., Martin Lockheed Ill the ques- has considered precedent reviewing with the us, we observation agree tion before Jersey Superior Court of the New Appellate Division any nor of the decisions Chardon, nor that neither Ríete persuasive analysis as that followed them contains rule. See the Ricks-Chardon why adopt we should Super. 330 N.J. To the TRW, Inc., Homlin the rationales set compelling we find most contrary, that rejected that have rule. by jurisdictions forth those policy They directly legislative the stated relate to both potentially meritorious of the dismissal of avoiding and the remedial nature of our due to late filing claims As it is our fundamental statutes. antidiscrimination give appar- effect to responsibility ascertain Kinsey Employ- v. legislature; ent intent of Pacific 959 (2006); 277 Conn. 891 A.2d Co., ers Ins. interpretation inform our following considerations of (e).19 46a-82

19 Autuori, Writing 676 A.2d 357 for the court Waters 236 Conn. (1996), that Chief Peters observed that axiomatic “[i]t former Justice policy as are relevant because is a we such concerns [i]t must consider impact assumption jurisprudence that law have an rules of fundamental quotation (Internal society its affairs.” on the in which conducts manner points Id., out, omitted.) numerous dissent state marks As the play resolving policy at federal have scrutinized the considerations courts Industries, See, e.g., presently Dresser the issue before this court. Bonham v. Corp., supra, Inc., 187; supra, Md. F.2d v. Lockheed Martin Haas Services, Inc., supra, 469; 471 N.W.2d 105. Ricks v. IDS Financial Turner College policy State See Delaware itself discusses several considerations. n.11, 256-57, 259-60, Ricks, supra, n.16. The U.S. dissent usurps legislative suggests that our consideration thereof nevertheless province Although agree it is the exclusive General function. we that fit, Assembly it sees when our statutes as to amend antidiscrimination statutory interpretation plain question in which with a confronted

As the Third warned, Circuit courts must be mindful laymen, lawyers, that it is often not who initiate the complaint process. College, Ricks v. Delaware State supra, 605 F.2d 713.The United States Court acknowledged point, noting itself that that “the limita periods tions should not commence to run so soon layman that it becomes difficult for a to invoke the protection rights of the civil statutes.” Delaware State College supra, Many, v. Ricks, 449 U.S. 262 n.16. if not employees legal most, become aware of remedies for discriminatory only discharge after the cessation of employment. noted, “[w]ere As one court the time for begin upon an administrative employer discharge notification that the intended to an employee, likely many employees it is that would have perhaps, protections little or, no time left to invoke the statutory following [the conferred state scheme] an discharge. unlawful Ross v. Hotel Co. Stouffer (Hawai'i) Ltd., 76 Haw. 462. Our construction (e) recognizes reality. §of 46a-82 It is basic to our law that a cause of action accrues injured damaged. when a has been or principle by requir- Ricks-Chardon rule confounds that ing employee, discriminatory an termination of employment disputing cases, to a file claim events that yet pass. have not come to As the Court of setting, California observed, “[i]nthe nonacademic noti- comparable fication of termination is not to a denial of tenure—termination is not result, the inevitable setting because the nonacademic termination of inevitably does not ensue once notification given.” of termination has been Romano v. Rockwell International, Inc., 14 Cal. 4th 497. Until the language admittedly provides guidance, no on our shoulders the falls task effectuating legislature. of the intent of the employer’s arrives, alleg- the of termination actual date to subject change.20 edly discriminatoiy act remains which is one facilitates reason, For that the better rule is no reason to possible. “There whenever conciliation preclude possibil- which might encourage litigation marks omit- quotation ity (Internal of reconsideration.” Super. 330 N.J. TRW, Inc., supra, v. ted.) Homlin explained that Appeals Maryland Court of “[t]he process conciliation rule frustrates Ricks/Chardon [the] begins that accrual .... the rule establishes Because to employees notification, discharged it behooves upon avoid their possible having a as to file lawsuit as soon . limitations. . . claims barred under statute employee rule motivates Ricks/Chardon [T]he a of whether conciliation regardless file lawsuit represents a choice process is concluded. [T]his on the public chilling where effect poor policy either timely occurs, manner or employee in the most employer or before the termi- employee sues his her any final, thus chance at con- dooming nation becomes Corp., supra, Martin ciliation.” Haas Lockheed anticipatory unripe Md. lawsuits 496-97. Such harm has been “should not be filed until some concrete time, forces parties, and the suffered, and until opportunity to resolve the contro- have had maximum 454 U.S. versy.” Fernandez, supra, (Bren- Chardon J., nan, dissenting). an to file a addition, requiring employee may hostility in

while the work- employed engender still posi- It uncomfortable place. places employees in the they an with employer tion of to sue whom having they presently trying and often with whom are have, job.21 maintain, present case, every particularly compelling in the as This rationale is power plant employee still other at the time of the June closure employed by was the defendant when received the December 13, 2002 notice of termination. plaintiff’s employ con desire to remain in the defendant’s is not tested.

A predicated rule on the unequivocal date of notice presents problems for both litigants and the court. As present exemplifies, case precisely determining unequivocal when notice of termination pro has been vided can be a daunting result, “protracted task.22As a expensive and litigation precise over the date and ade quacy employer’s of an notice of termination” often ensues. Ross v. Ltd., Co. (Hawai‘i) Stouffer Hotel By 76 Haw. 462. contrast, measuring filing period from the actual cessation employment provides of practical more and workable guide employees and courts employees, alike. For represents date most logical date from which to statutory measure their For right. employers, such a rule makes clear how their record and keeping termination must proceedings be approached in properly order to defend against a dis criminatory action. discharge courts, For while determining precision exactly with when an employee 22Discriminatory practices by employer always precise, an do not occur in capable ready applying well defined moments identification. In the Ricks rule, plaintiff Chardon the trial court found that the received notice of the 13, termination of his “sometime before November 2002 . . . .” requires “employer give employee unequivocal Federal law that an must (Internal quotation omitted.) notice of its final termination decision.” marks Flannery Recording Industry America, (7th Assn. 354 F.3d 2004); America, Inc., Cir. see also Smith v. United Parcel Service 65 F.3d (2d 1995) (holding effective, Cir. that “for the notice to be it must apparent employee position’ be made that the notice states the ‘official employer”). present The defendant in the case offered no evidence whatsoever that officially unequivocally it ever communicated a final notice of termina- plaintiff prior 13,2002 application tion to the to Smith’s December letter. The by cursory of the Ricks-Chardon rule the trial court contains discussion requirement. light plaintiff, of that Viewed in the most favorable to the (1) February 25,2000, position fact that was informed on that his eliminated, yet employ would be nevertheless remained in the defendant’s years (2) for almost two thereafter and no notice of termination document concerning agents or affidavit such notification the defendant or its accompanied summary judgment together sug- the defendant’s motion for gest genuine may that a issue of material fact exist as to whether the provided unequivocal defendant with notice of its final prior termination decision to Smith’s December 2002 letter. official an termina- unequivocal upcoming notice of received tortuous frequently involving is a cumbersome task tion of employee’s last date hairsplitting, and an litigation difficulty little or be with employment can identified dispute.23 Supreme Court focused Ricks, the United States claims, of policy stale preventing litigation on the of “ not that time-limita-

stating forgotten that should be [i]t important inter- provisions promote tions themselves inevitably suit period instituting allowed for ests; point at which concerning reflects a value judgment are in favor of valid claims protecting the interests prosecu- by prohibiting the interests in outweighed marks (Internal quotation omitted.) tion of stale ones.” College 449 U.S. 259-60. Ricks, Delaware State context of discrimi- That concern is unwarranted in the natory complaints the commission. The discharge very day period specified by 46a-82 filing (e) § short, ordinarily period as is the between notice of entirety of Moreover, actual the termina- discharge. employer. process tion is within control employers “may credibly maintain an Accordingly, not they adequate would be without notice” argument discriminatory Haas v. Lockheed discharge claim. Corp., supra, Martin 396 Md. 499. entirety process

The fact that the of the termination employer presents is within the control of the a further period concern. we to hold of 46a- Were that the upon unequivocal commences notification of ter- (e) mination, any could foreclose cunning employer all complaints simply setting commission point beyond some the effective date termination at days. Plainly, Assembly that is not the General what enacting legislation. Yet, intended in this remedial day The record is clear that the final was January 21, 2003. the Ricks-Chardon rule, the eviscera- adopt should we employee’s statutory tion of an right under CFEPA may result.

As we have noted, Connecticut law favors a determi- dispute nation on the merits of the possible. whenever history The legislative of 46a-82 (e) § indicates that the legislature sought complaints to avoid the dismissal of under 46a-82 (e) due to late Our filing. interpretation § of (e) 46a-82 must be mindful of that legislative policy. §

Finally, the fact that 46a-82 (e) part of a remedial § statutory scheme cannot be disregarded.24 Accordingly, 46a-82 (e) liberally must be construed in § favor of those whom the intended to benefit. See Commis- legislature sion on & Rights Opportunities Human v. Truelove & Maclean, Inc., supra, 238 Conn. 355.

Section (e) requires 46a-82 of a filing days within 180 of “the alleged act discrimination . . . .” The act in alleged plaintiffs complaint is the employment. termination of his Among discrimina- tory practices proscribed by 46a-60 is “dis- (a) (1) § employment from charge .” That language dates Assembly back to when our General enacted Con- necticut’s unfair employment practices first statute. See (Cum. Sup. General Statutes 1947) 1364i. The term § employment in the “discharge” context means dis- “[t]o miss employment; from to terminate person.” Dictionary of a Law p. Black’s Ed. (6th 1990) 463; see also Webster’s Third New International Diction- Liberally ary, p. statutory 644. construing provision In neither Ricks nor Churdón did the United States Court acknowledge legislative question. the remedial nature of the acts in Contra International, Inc., supra, 494; Romano Rockwell 14 Cal. 4th Haas v. Corp., supra, Lockheed Martin 396 Md. dissent likewise fails to give proper weight to the remedial nature of our antidiscrimination statutes. eyes, great purpose. In our we must accord deference to that remedial See Goodyear Co., Ledbetter v. Tire & Rubber 550 U.S. 127 S. Ct. (2007) J., (Ginsburg, dissenting) (interpreting L. Ed. 2d 982 Title VII requires “fidelity purpose”). core [a]ct’s the defeat intent avoid legislature’s mindful on their faults rather than complaints filing of such period contained we conclude that the merits, upon actual cessation (e) 46a-82 commences thereof.25 rather than notice employment, IV were enacted employment practices fair statutes Our They employment. are to eliminate discrimination We there- and receive liberal construction. remedial in an action in fore conclude that discrimination age discriminatory practice is the termi- allegedly which the act of employment, nation of discrimination rather than transpires employment, on the final date of notice of termination. employee when receives filed the com- Accordingly, any complaint must be with days mission within 180 of that date. undisputed plaintiffs day employ- the final of

It is that January 21, 3, 2003, ment was 2003. Filed on June the plaintiffs complaint to the within commission was the day period timely. and, hence, of 46a-82 was (e) § incorrectly otherwise, The trial court concluded summary should judgment not have been rendered in favor of defendant on that ground.

V alternatively summary The defendant claims that was appropriate (1) because judgment prima failed to establish a facie case of discrimina- age a (2) tion and the defendant articulated nondiscrimina- tory reason for the termination employment. Although the trial court did not rule on summary those alternate it grounds judgment, is our to do appeal. within discretion so on See Skuzinski Assembly, course, parameters revisit The General is free to necessary (e) Statutes as it General 46a-82 deems further effectuate legislative policy implement. designed that CFEPA was Fuels, Inc., Bouchard Conn. 694 A.2d We (1997). disagree summary judgment is appropriate on ground. either

As our explained, Court “[w]hen claims disparate facially treatment under a neutral employment policy, employs this court the burden-shift analysis ing by set out the United States Supreme Court Corp. Douglas Green, McDonnell 411 U.S. 792, 93 S. Ct. L. 1817, 36 Ed. 2d 668 Under this (1973). analysis, the employee prima must first make a facie case of may discrimination. The employer prima then rebut the by facie case stating legitimate, nondiscriminatory justification employment question. for the decision in employee then must demonstrate that the reason proffered by employer merely a pretext and that actually the decision was motivated discrimi illegal natory bias.” v. Trinity College, Craine 259 Conn. 625, 636-37, 791 A.2d 518 That test is a flexible (2002). one. Dept. Community Texas v. Burdine, 450 U.S. Affairs n.6, 101 S. Ct. 67 L. Ed. 2d 207 (1981). To prima establish a facie case of discrimination, complainant must demonstrate that (1) he is protected class; he (2) qualified was for the position; he (3) suffered an adverse action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. Board of Education v. Commission on Human Rights Oppor- & tunities, 266 Conn. 832 A.2d 660 “The (2003). proof required level of prima to establish a facie case is minimal and need not reach the required level to support jury plaintiffs a verdict in the favor.” Craine v. Trinity College, supra, 259 Conn. 638. every

It is power plant uncontested other employee at the time 30, of the June 2000 closure was plaintiff than the younger employed by and was still the plaintiff defendant when the received the December put, the Simply notice of termination. employee discharged by the only power plant was the analytical framework enunci- defendant. In the applying United Douglas Corp., the States ated in McDonnell for held that Appeals Court the Tenth Circuit of “[e]vi- employer qualified employees fired older dence that an in is suffi- younger positions but ones similar retained discrimina- presumption cient of to create rebuttable tory to the to articulate require employer intent and River for its decision.” Branson v. Price Coal reasons Co., Moreover, F.2d Cir. (10th 1988). for Second Circuit Appeals United States Court of in force, has reduction involving noted that cases “[i]n specific.” New York inquiry highly Burger is fact Cir. 1996). 94 F.3d Technology, (2d Institute of not employee It continued: laid-off who does have “[A] is, counterpart company—that a functional there job—is no for that necessarily precluded similar not particularly action,” reason from an ADEA bringing employer many where the transferred of the terminated department employee. or employee’s duties another documentary Id., 834. The introduced evidence majority of his duties were trans- indicating that Exhibits employee ferred to another defendant. appended plaintiffs C and which were to the memo- D, motion opposition randum of law defendant’s summary percent for reveal that than 65 judgment, more were to Michael C. duties transferred subsequent correspon- in a Furthermore, Holmes.26 Holmes, bottom line dence to Smith stated that “[t]he representative. Shelby Jackson, Smith’s a union Exhibit C was letter percent plaintiffs] part: “[F]ifty That in relevant ... [the letter states specifications/documents developing with for the time associated bid was Division, including and recommendation of award. Electric review clearly job descriptions, reviewing this is the function of the Assistant Gen largest (15%) Manager-Electric. . . work eral . third element of [T]he [was] person safety ‘a and environmental technical and administrative contact position Again, Manager’s covers these concerns.’ the Assistant General only activity significant involves . . . The other area of the direc functions. System Operator group. longer work . . . There is no tion activities of jobs that we are protecting five without changing salary in spite of the fact that primary function of job their existing description operate is to a power plant.” That document also was plain- attached to the tiffs memorandum. In of the light we con- foregoing, clude that the established a prima facie case of discrimination.

The defendant nevertheless maintains that it articu- nondiscriminatory lated a reason for the termination plaintiffs of the employment, namely, position that the of power plant superintendent no longer existed.27 To survive the motion summary for judgment, therefore, required was to demonstrate that the reason proffered by the merely pretext defendant is and that operation power plant they a need to schedule workers for the of the have established a five man rotation work schedule which can be overseen by Manager. the Assistant General will You note that some the work will Manager. However, highly paid, fall to the Assistant General Mr. Holmes is a well-qualified responsible’ ‘highly sup- managerial individual who is for . . . port utility’s Manager super- General whose duties . also include '. . vis[ing] managerial employees.’ possible subordinate and staff It is that Mr. may reassign portions complement Holmes want to various duties to [his] schedule, however, by myself his work it is believed and the Commission reasonably performed that his work can be Mr. Holmes.” Likewise, D exhibit was a memorandum from Smith to Holmes. It stated part: “Very soon, only funding in relevant will there be four months of remaining Superintendent position. for the Power Plant One of the areas replacement of concern that I think needs immediate attention will be as Spill (SPCC). hereby designating Prevention Control Coordinator I am you Coordinator, your knowledge as the future as a result of [SPCC] experience issues and in that . . area. . Another area that will need atten- year supervisory designee replace plaintiff] tion at the end of the is the [the Systems Operators/Utility Operators. system oper- for the . . . Inasmuch as essentially function, ations are a distribution I believe that it would be appropriate you to take direct control of these individuals for the foresee- able . . . .” future specifically Sullivan, The defendant relies on the affidavit of P. Terence personnel document, averred, alia, its director. that Sullivan inter January 21,2003, plaintiffs position Superin “on or about as Power Plant opera tendent was eliminated as the Pierce Power Plant Station had ceased person, older, younger tions” and that “no or has filled the former position Superintendent.” as Power Plant dis- by illegal an actually was motivated the decision Corp. Douglas See McDonnell criminatory bias. 411 U.S. 792. Green, supra, “by reliance may pretext demonstrate employee

An case, prima her facie established evidence that on the .” required being evidence any additional without Ser Residential Gallo v. Prudential omitted.) (Citation 1994). Partnership, 1219, 1226(2dCir. 22 F.3d Ltd. vices indicates that by plaintiff submitted The evidence superintendent power plant position of although duties were position’s that eliminated, several of was another they were transferred Instead, not. employee. Assn, Savings & Loan v. First Federal

In Montana the court 1989), Cir. Rochester, (2d 869 F.2d to show required was “not plaintiff that the explained deci- only factor in was the age that defendant’s] [the was reason proffered the defendant’s sion” nor that defen- establish that the her burden was to false; rather, that only reason and was not the dant’s “stated reason Id., Among did make a difference.” age her at (1) were that by the Second Circuit factors noted was the oldest plaintiff her discharge, the time of personnel employee the defendant’s paid and highest head only department she was the department; (2) con- and whose staff position was consolidated whose opportu- offered the her; she was not (3) tinued without her duties were transfer; discharge, after her nity (4) to a eliminated, reassigned but instead were not workload increased that coworker’s coworker; (5) The court thus concluded percent. Id. 15 to create a these circumstances together, viewed “[w]hen to whether factual issue as genuine defendant’s] [the cen- plaintiff]—the terminating reason for stated [the department in Rochester personnel of its tralization pretextual and, reduction in force—was accompanying age thus, [its] as to whether was a factor in decision plaintiff].” [the Id., 106. to terminate present in the case submitted a similar opposing factual basis in the defendant’s motion for summary power judgment. The was the oldest only plant employee one who not trans- and the was position Although with ferred to another the defendant. plant superintendent position power was elimi- of plaintiffs nated, the bulk of the duties was transferred employee. plaintiff presented In addition, to another employee evidence in the form of a letter from that to indicating Smith that his workload would increase as a result thereof.28 light

Viewing that evidence most favorable to plaintiff, genuine question a we conclude that of material fact exists as to whether the defendant’s stated plaintiffs employment terminating reason for was pretext discharging age. him on the basis of his Summary judgment, inappropriate. therefore, was judgment reversed and the is case is remanded proceedings opinion. for further consistent with this opinion SCHALLER,J., In this concurred. respectfully dissenting. disagree J., I McLACHLAN, majority’s part ways with the conclusion that we should Smith, September 4, 2002, dated Holmes’ memorandum to stated receipt your part: writing acknowledge relevant “This is to of memorandum August 22, pertaining designation myself of to of as the Coordinator Spill (SPCC) for the Prevention Control and Countermeasures Plan for the Division, supervisory Utility designee as for the Electric as well Turbine Operators, January 1, responsibility beginning 2003. Both of these areas of traditionally performed by Superintendent Plant .... have been Power your surprised I was to receive memorandum .... I had not considered responsibilities prior your writing, referring and I am these added this proposal Wallingford Management Union-Local 17 of the Connecticut Independent Labor Union for their review and consideration.” Supreme Court States with well established United majority jurisdictions throughout precedent the nation. has that when an

Our Court determined deliberate, law is overlap state and federal between Commis precedent particularly persuasive. federal Opportunities & Savin Rock Rights sion on Human 373, 386, A.2d Assn., Inc., Conn. Condominium reluctant inter Conversely, we have been 457 (2005). manner at with pret statutory schemes in a odds state they See, which are modeled. e.g., federal schemes on Services, 98 Conn. Blasko v. Commissioner Revenue 456, 910 A.2d 219 “highly App. 439, (2006) (finding signif tax code to claim permitted icant” that federal credit, interpretation scheme, of state credit while which “to mirror the federal credit scheme” sought any application credit). disallowed the Connecticut Fair drafting modifying Employment Practices Act General Statutes (CFEPA), seq., 46a-51 our modeled CFEPA after legislature et § counterpart, its Title VII of the Civil Act Rights federal seq., of 1964 42 U.S.C. 2000e et. and it has (Title VII), § law with law sought keep our state consistent federal in this Human & See, e.g., Rights area. Commission on Opportunities Assn., v. Savin Rock Condominium Inc., the intent of (“[w]ith creating 273 Conn. a state statute consistent housing antidiscrimination counterpart, legislature adopted with its federal related provisions”). 46a-64c and § [General Statutes] interpretation in involving matters Accordingly, statutes, scope of our antidiscrimination our courts consistently precedent looked to for guid have federal Dept. Correction, ance. 247 Conn. Brittell the contours of an (“[i]n defining 717 A.2d 1254 (1998) antidiscrimination employer’s duties under our state statutes, to federal case guidance we have looked for Act law Title VII of Civil interpreting Rights statutory the federal counterpart to [General Statutes] 46a-60”). § proper interpreta- issue before us concerns the

tion of CFEPA’s filing statute, limitations General Stat- provides “Any utes 46a-82 which in (e), part: § relevant pursuant filed to this section must be filed days within one eighty hundred and after the alleged act of discrimination . . . .” Where, here, as the alleged act of discrimination is the termination of employment, provides 46a-82 (e) guidance § no to assist us in determining precisely point at what act of majority discrimination occurs. As the correctly notes, therefore, presents question impres- this issue of first requires sion Connecticut that us to look to extratex- tual point evidence to determine at what the “discharge employment” from arises, day the 180 triggering period limitations in 46a-82 See (e). § General Statutes l-2z. §

Beginning history, with the legislative modifying the filing period limitations set forth in 46a-82 (e), expressed has its clear legislature keep intent to state law with law. consistent federal Williams v. Commis Rights Opportunities, sion on Human & 257 Conn. 258, 275, 777 A.2d 645 ‘The 1974 (“ [Assembly [G]eneral period increased the for filing complaints with the ninety days from to one hundred eighty [commission after the alleged discrimination, act of which reflected its concern with consistency legislation federal presumably extended that pay back to one hundred days.’ Proc., Pt., 2, 18 H.R. eighty Sess., pp. 908- omitted.]), [Emphasis added; quotation 909.” internal marks remand, 'd after 67 Conn. App. 316, 786 A.2d aff Thus, it is no coincidence that (2001). 46a-82 § is, respects, in all relevant (e) identical to its federal counterpart, 42 U.S.C. 2000e-5 (e) (1), provides which § part in relevant that charge under this section shall “[a] the days after eighty hundred filed within one be . . . .” practice occurred unlawful legislative of the portions majority references The legislature the evidence that as history (e) of 46a-82 § to late complaints due avoid the dismissal to sought of 46a- interpretation and concludes that “[o]ur How- policy.” legislative mindful of that must be (e) why we adequately address majority fails to ever, the to intent legislative stated expressly the ignore should counterpart with its federal consistent keep the statute law.” accord with federal law into bring and “to state Opportu- Rights & on Human v. Commission Williams asked to Because we are Conn. 274.1 nities, supra, 257 virtually a state statute that provisions interpret legislature and our counterpart, to its federal identical state law intent to harmonize clearly expressed its has reason compelling area, I find no with federal law this the United deference to why great we should not accord already resolved Court, which has Supreme States before us.2 issue 1 majority amending acknowledges § 46a-82 that in General Statutes consistency legislature’s promote law was (e), with federal intent to poten ensuring “[ejqually significant” legislature’s that concern for to the filing; however,

tially due to late meritorious claims were not dismissed clearly weight legislature’s majority give equally significant declines to Seeking align to with federal law in this area. stated intent to state law intent, majority points importance rule out that the of that discount College Supreme by Court in Delaware State the United States established 498, (1980), Ricks, Chardon S. 66 L. Ed. 2d 431 449 U.S. 101 Ct. (1981), Fernandez, 70 L. Ed. 2d 6 was enunciated 454 U.S. 102S. Ct. majority nothing legislative has cited from the after the 1975amendment. The history support to the date of accrual that federal court decisions related by legislature discriminatory discharge were considered claim speculation Thus, pure adoption to infer that the amendment. it is its expressly light depart legislature stated intent in of Ricks would from its and Chardon. Where, final of its laws. is axiomatic that Connecticut is the arbiter It deliberately overlapped here, legislature law with federal has state as our area, expressed guided federal law in this its intent to be law and has Supreme precedent compelled to consider United States Court we are particularly persuasive simply the decision emanated from not because be court, so. See Court has instructed us to do but because our 228 v. College Ricks, 250,

In Delaware State 449 U.S. 101 498, S. Ct. 66 L. Ed. 2d 431 the United States (1980), period Court held that the a discrimi filing natory employer accrues when the discharge unequivocally employee notifies the of termination. Similarly, Fernandez, in Chardon v. 454 U.S. 102 28, explained: S. Ct. 70 L. Ed. 2d 6 the court (1981), “ notified, they were when received their [Respondents specific employ dates when their [giving letters them end], ment would that a final decision had been made appointments. they to terminate their The fact that were period afforded reasonable notice cannot extend the majority within which suit must be filed.” As the con rule uni cedes, applied the Ricks-Chardon has been 3 formly in courts in limitation cases lower federal Rights Opportunities Commission on Human & v. Savin Rock Condomin- Inc., supra, overlap Assn., (“when Conn. state ium 273 386 between particularly persua- and federal law is deliberate federal decisions are opinion, us, sive”). resolving the issue before it is As discussed this Assembly clear that the final arbiter should be the General and not this court. 3 Washington Ins., (11th 2000) v. T. F.3d 844 Cir. See Stewart Booker (statute begins employee employ of limitations to run when informed her Co., being terminated); (1st Thomas v. Eastman 183 F.3d 38 ment is Kodak employee 1999)(holding began Cir. action for discrimination to accrue when layoff), denied, 1161, 1174, notified of cert. 528 U.S. 120 S. Ct. 145 L. Ed. Joseph City Education, (2000); 2d v. New York Board 171 F.3d 87 discriminatory (2d Cir.) (stating discharge begins action for to accrue when employee employer’s discriminatory denied, decision), cert. notified McCoy 876, 182, (1999); L. v. U.S. 120 S. Ct. 145 Ed. 2d 154 San Francisco City County, 28, 29(9th 1994)(“[t]he & 14F.3d Cir. touchstone for determin ing period notice”); v. the commencement of the limitations Lever North University, (7th 1992) (holding gender western 979 F.2d 552 Cir. action for professor discrimination accrued from time informed she would not be denied, 2443, given tenure), 113 S. 124 L. 2d cert. 508 U.S. Ct. Ed. (1993);English Whitfield, (4th 1988)(holding 858 F.2d 957 Cir. discrimina employee protection Energy Reorganiza brought tion claim under section of began § time tion Act of U.S.C. barred because action employee’s upon termination); accrue notification of Janikowski Bendix Corp., (6th 1987) (holding brought 823 F.2d 945 Cir. discrimination claim Employment Act, seq., Age began under Discrimination in 29 U.S.C. 621 et upon employee’s Shields, termination); to accrue notification of Bronze Inc. Jersey Dept. Service, (3d (holding 1981) v. New Civil 667 F.2d 1074 Cir. promulgated eligi accrued when state civil service action for discrimination majority throughout state courts by a of adopted 4 the nation. Supreme explana- on our Court’s majority The relies precedent from “under may depart tion that we federal v. Commission on certain circumstances.” State Opportunities, Human & 211 Conn. Rights policy On of concerns 559 A.2d 1120 the basis (1989). the Ricks-Chardon application rule, arising from the of majority appropriate concludes that it is not to statutory remedial follow because CFEPA is a the rule scheme, complaints, to avoid the dismissal designed antidis- liberally and therefore must be construed. context, departure a from federal however, crimination in precedent recognized only highly been limited has in the in to fill federal gaps legislation circumstances procedural than on on matters of substance rather Evening Organization v. National Sentinel issues. See A.2d Women, n.5, 168 Conn. (1975) from federal statute where federal statute (departing drew between and race discrimination). distinction sex Here, interpretation concerned with the of a we are procedural disputed time limit. It be that the cannot some intended that finite deadline would legislature exist for an discrimination claim. See Rights Opportu- v. Commission on Human & Williams nities, 257 Conn. 284 conclude that the (“[w]e majority is (e) mandatory”). time limit of 46a-82 § authority support no to notion that we ought cites depart precedent interpreting to from sound federal procedural (e), statute such as 46a-82 which our keep has amended to consistent with its legislature counterpart. federal policy

Further, I am unconvinced that considera- majority to warrant significant tions raised are so bility gave discriminatory policemen that to roster for notice 1122, 102 decision), denied, 3510, 73 (1982). L. 2d 458 U.S. S. Ct. Ed. cert. majority opinion. See footnote 17 of the an rejection precedent of federal because there outright are policy sound considerations the Ricks- supporting Chardon rule. As the United States Court recently in a observed similar context: “Statutes of limi- policy repose. They represent tations serve a pervasive unjust that it fail legislative judgment to adversary put specified on notice to defend within a period of time and that the to be free of right stale prevail prose- claims time comes to over the right cute them.” internal (Citation omitted; quotation marks Goodyear Ledbetter v. Tire & Rubber omitted.) Co., 550 U.S. 127 S. Ct. 167 L. Ed. 2d 982 (2007) VII (holding pay that Title discrimination claim cannot allegedly discriminatory be based on events pay employ- occurred before last decision that affected pay ee’s relevant during period). limitation With respect counterpart to the Title VII federal of 46a-82 § (e), therefore, the United States Court explained: Equal Employment Opportu- “The [federal nity (EEOC)] filing protects] Commission deadline employers from the burden of defending arising claims employment past. from decisions that are . . . long Certainly, 180-day the EEOC charging deadline, by any measure, U.S.C. 2000e-5 is short but (e) (1), [b]y obviously quite deadlines, what are short choosing Congress clearly prompt pro- intended to the encourage employment of all discrimination. cessing charges pref- This short deadline reflects Congress’ strong prompt erence for the resolution of dis- voluntary crimination allegations through conciliation cooperation.” omitted; quotation and internal (Citations marks Ledbetter v. Tire & omitted.) Goodyear Rubber Co., supra, 630-31. majority

Thus, notes, explained as the the Ricks court periods, that the “limitations while guaranteeing laws protection rights promptly of the civil to those who from the bur- employers protect also rights, assert their employment deci- from defending arising claims den of College State past.” are Delaware long sions that Haas v. Lockheed 256-57; see also Ricks, supra, U.S. A.2d 735 507-508, (2007) Corp., 396 Md. Martin majority believe that J., dissenting) (“I (Battaglia, Ricks/Chardon Supreme Court’s rejecting wrong with this Court’s tongue groove because it fits Rule provides which discovery rule, adherence to the long run when the begins statute of limitations that the due dili- exercise of discovers, or through injury, damages or discovered, have should gence, discovery rule adopted . claim. . . We potential adequate diligent time for provides because it ensuring fairness an action while also to initiate claims, prompt filing encouraging defendants claims, avoiding stale or fraudulent suppressing delay.” from may which stem inconvenience [Citations that the alter- The Ricks court also observed omitted.]). ” “ rule could discour- day employment’ native ‘final period employees grace employers giving from age College Delaware State employment elsewhere. to seek 260 n.12. Ricks, supra, v. many of our rule, the Ricks-Chardon following

In concerns in public policy have discussed sister states contrary disfavoring the rule and support adopting of Inc., 114 P.3d Scriptures, v. approach. Living In Clarke Appeals Court of App. the Utah 602, (Utah 2005), 606 of limi- rule that extends the statute explained that “[a] employment, rather than to the last date tations termination, would receives notice of employee date the post-termination employers providing from discourage [California], 649 See, v. Bank e.g., benefits. [Naton] on focusing rule 691, 1981) (‘[A] F.2d 695 Cir. (9th dis- might of economic benefits date of termination to a dis- from benefits employer extending suade an had ceased employee after employee charged [Industries, Inc.], Bonham Dresser working.’); 187, (‘We F.2d 191-92 Cir. would view (3d 1977) penalizes company with disfavor a rule that for giving employee periodic pay an severance or other extended relationship after the has terminated rather benefits employee than all ties when the is let severing go.’) L. denied, 439 U.S. 99 S. Ct. Ed. 2d [cert. & Dept. Industry, In Hilmes Labor (1979)].” Relations, Human Wis. 2d 433 N.W.2d 251 App. Appeals the Court of of Wisconsin (Wis. 1988), emphasized that an ‘occurrence’ of discrimi eying “[k] prior nation to a time to termination can afford the employee opportunity prevent—rather an than rec loss and other harmful effects of the discrim tify—wage inatory practice.” Services, Inc.,

In Turner v. IDS Financial 471 N.W.2d 1991), Court of Minnesota (Minn. that the date of determined notification was the correct explained measure. In so the court that at the holding, notification, plaintiff “immediately date of attains and, prior may a lame duck status to actual discharge, employment agency well incur fees and sustain dam for ‘mental .... Put ages anguish suffering’ if way, discharged employee prior another job actual obtains another as discharge paying date of better, well or we do not think the unfair discrimination always usually claim is or even omit gone.” (Citation Id. ted.) policy weighing addition to the concerns favor of the Ricks-Chardon adoption I rule,

of an am also application majority’s that an holding concerned may lead to curious results in federal corut. In Bogle- Assegai State, 470 F.3d Cir. the (2d 2006), plaintiff employer received a letter from her on March employment her 29, 2001, informing her that would be April 12, terminated effective 2001. On October the filed an administrative with the Id. The to sue letter. right received a EEOC and employer, alleging, her against an action commenced Title in violation of discriminatory discharge alia, inter on the Id., Relying of CFEPA. VII and a violation Appeals Court of notification, the date of 29,2001 March plaintiffs Court’s dismissal the District affirmed elapsed days had on the that grounds Title claims VII timely not was charge her administrative and therefore this factual Id., arguendo 507. If I assume filed.5 majority’s the in the wake of were to arise scenario ancillary CFEPA claim plaintiffs and that the holding, federal court properly filed, the had been otherwise applica- schizophrenic in a engage be forced to would on the of termination law, the date applying tion of the on the fed- and the date of notification state law claim to dismiss the whether determining eral law claim would survive a motion CFEPA claim Thus, action. the yet termination, the basis of the date to dismiss on subject to VII claim would be nearly the identical Title rule. basis of the Ricks-Chardon dismissal on the may cause majority’s holding Application of the in state court. uniformity problems equally significant only in the con- applies the court’s Specifically, ruling and does not clar- employment of termination from text 46a-82 to other forms of ify application (e) of § example, If, discrimination. discriminatory demotion, departure the court’s act is a entirely unclear rule makes it from the Ricks-Chardon would period relevant limitations whether unequivocal date of notice of the commence on the the actual demotion. demotion or on the date of policy concerns raised Finally, I believe that the appro- be more majority opinion are issues that can legislature. examining addressed priately previously state law claims The District Court dismissed appeal. challenged grounds, See that dismissal was not on on unrelated Bogle-Assegai State, supra, 470 F.3d 509.

scope province of it statutes, our is not the of this court usurp Mingachos legislative CBS, the function. See v. (1985). Although Inc., 91, 106, 196 Conn. 491 A.2d 368 certainly province it is the of the court to consider policy interpreting matters when statutes, unclear proper countervailing policy venue to consider con establishing cerns that arise in the context or effec tively changing the duration of a limitations statute is legislature. e.g., See, in the v. Sanders Club Officers Connecticut, Inc., 196 Conn. 493 A.2d 184 (1985) (“[T]he [the asks that we declare dram shop damages statute] [inter limitation unconstitutional ground damage on alia] that the limitation in the legisla statute flies the face of the true intent of the changing . ... ture It is settled in this state that legislature. damage limitation is a matter If inadequate, proper remedy limitation is then the is statutory by legislative to increase the limitation by overturning enactment rather than established judicial principles precedents." [Citation omitted; emphasis quotation omitted.]); added; internal marks Goodyear see also v. & Co., Ledbetter Tire Rubber supra, (“[r]espectful pro legislative 550 U.S. 630 give [Title cess that we must VII], crafted effect to the repeatedly statute as enacted . . . and we have rejected suggestions that we extend or truncate Con quotation gress’ [citation omitted; deadlines” internal omitted]). legislature marks Here, the has evinced its guided area, intent to be federal law this and there clearly policy competing surrounding are concerns issue. Services, Inc., See Turner IDSFinancial [policy] (“the competing arguments 471 N.W.2d 107 other”). tend to if Thus, counterbalance each period inadequate, proper remedy limitation then the statutory by legislative is to increase the limitation by overturning enactment rather than established fed judicial principles precedents, eral in this which, great ought See circumstance, we to accord deference.6 generally Connecticut, Inc., Sanders Club Officers supra, 353. pursuant I the Ricks-Char- that,

Because believe occurred rule, don act of discrimination plaintiff, Vollemans, Jr., when the Peter J. received unequivocal notification of the termination of his employment, plaintiffs I would address the second improperly claim that the trial court concluded genuine there was no plaintiff issue of fact as to whether the unequivocal received notice of the termination employment prior of his 13, to November majority footnote, indicates that evidence that the plaintiff February was informed on 25, 2000, that his position yet would be eliminated, remained in the employ Wallingford, defendant, the town of years coupled two thereafter, with the defendant’s fail- unequivocal sug- ure to submit gests notice, evidence of an genuine may that a issue of material fact exist as unequivocal to whether the received notice of the defendant’s final and official termination decision. Appeals States United Court of for the Second begins Circuit has held that the statute of limitations employee to run on the date the receives a definite employer’s representing notice of termination offi- position. cial Smith v. United Parcel Service recognize majority’s filing 6 I valid concern that a six month limitation may results; see, e.g., Goodyear harsh lead to Ledbetter v. Tire & Rubber Co., supra, 630-31; however, proper way 550 U.S. to avoid such results legislative Indeed, many jurisdictions adopted is with a enactment. have periods beyond days. See, e.g., similar statutes with limitations (d) (Deering 2006) (one year); § Cal. Gov’t Code § D.C. Code Ann. 2- (a) (LexisNexis 2001) (one year); (1) (West 1403.04 § Fla. Stat. Ann. 760.11 2005) (365 days); (LexisNexis Sup. 2007) Mass. Ann. § Laws ch. 151B 5 Cum. (300 days); Comp. (10) (LexisNexis 2004) (three § Mich. Laws 600.5805 years); (West 2004) (one year); § Minn. Stat. Ann. 363A28 subd. 3 N.Y. Exec. (5) (McKinney 2005) (one year); (5) § Law 297 § N.C. Gen. Stat. Ann. 1-52 (LexisNexis 2005) (three years); (1) (2005) (one Or. Rev. Stat. 659A.820 year); (LexisNexis 2006) (365 days). W. Ann. § Va. Code 5-11-10 1995). (2d America, 266, Inc., 65F.3d 268 Cir. In O’Mal- Corp., ley (2d F.2d Cir. GTE Service 1985), Circuit affirmed the trial court’s the Second summary granting judgment, holding that where the early knowledge impending of his confirmed separate defen- retirement in two documents employer plain- an dant issued announcement that the plaintiffs retiring, tiff was claim was time barred. Co., In Stone v. National Bank & Trust 1996U.S. Dist. 1996) (N.D.N.Y. LEXIS *46 June the District granting that a relevant factor in sum- Court discussed mary plaintiffs judgment grounds was on that the claim time included the retention of counsel barred negotiating agreement. in connection with a severance plaintiff in Here, November, 2002, concedes that the going was the was he aware that defendant to terminate plaintiff employment. Further, his reason- the cannot ably dispute prior 13, 2002, or to November that on represent to him to this he retained counsel related importantly, 2002, Most on November termination. by attorney, his the in a letter sent to the defendant you plaintiff, attorney, probably through “As his stated: plaintiffs employment] is to ter- know, [the scheduled 31, minate on or about December with effective proffered being the the Power Plant as the closure of justification Thus, that termination.” plaintiffs retention of counsel and content of the attorney employer by his makes it letter sent to his overwhelmingly given clear that the defendant had plaintiff unequivocal notice of termination sometime Compare prior to Smith v. United November America, Inc., Parcel 65 F.3d Service of equivocal plaintiff (finding in that advised notice only employer he about future [his] that should “think company” carrying “wasn’t his with the and told he quotation weight” omitted]). [internal Moreover, marks properly as the noted its memorandum trial court letter 13, 2002 December decision, the defendant’s of termination with notice” providing ‘‘final had defendant evidence that simply was further termi- notice of the definite previously given added.) employment. (Emphasis nation of his conclude, as the trial court I would reasons, For these prove met its burden did, that the defendant regarding of material fact are no issues genuine there which he filed complaint, its claim that the opportunities rights on human with the commission 46a-82 untimely pursuant (e). was on June trial court Therefore, judgment I would affirm of the defendant.7 summary favor rendering judgment respectfully I dissent. Accordingly, ET AL. v. ASPETUCK CHRISTOPHER MONTANARO ET AL. TRUST, INC., LAND (AC 28057) Schaller, Stoughton, Js. DiPentima summary appropriate judgment was on this Because I conclude that ground, express opinion alternate claims. I no as to the defendant’s

Case Details

Case Name: Vollemans v. Town of Wallingford

Court Name: Connecticut Appellate Court

Date Published: Aug 14, 2007

Citation: 103 Conn. App. 188

Docket Number: AC 27332

Court Abbreviation: Conn. App. Ct.