Shelton v. Collins - Motion to Dismiss by CHRO

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 1 of 39

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CITY OF SHELTON Plaintiff

: CIVIL ACTION NO. 3:12-cv-01176(JBA) : : v. : : GARY H. COLLINS, Chairperson of the Comm. on: Human Rights and Opportunities, in his official : Capacity; TANYA HUGHES, Interim Executive : Director of the Commission on Human Rights and : Opportunities, in her official capacity : Defendants : SEPTEMBER 27, 2013 MEMORANDUM IN SUPPORT OF THE DEFENDANTS’ SECOND MOTION TO DISMISS I. INTRODUCTION. The second amended complaint1 is an action for declaratory and injunctive relief brought by the City of Shelton (Plaintiff) against Gary H. Collins and Tanya Hughes (Defendants). Collins is the chairperson of the Commission on Human Rights and Opportunities (CHRO). See Second Amended Complaint, ¶ 5. He occupies his office at the pleasure of the Governor of the State of Connecticut with the approval of both houses of the General Assembly. See CONN. GEN. STAT. § 46a-52(a). Hughes is the agency‘s interim executive director. Id., ¶ 6. She owes 1

The original Complaint was filed on August 14, 2012. It named as a Defendant only the CHRO, which the Plaintiff admitted is ―an agency of the State of Connecticut‖. See Complaint, ¶ 5. For many years it has been settled that ―in the absence of consent[,] a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.‖ Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984); Quern v. Jordan, 440 U.S. 332, 341 (1979)(state administrative agency is immune from § 1983 action). The CHRO has never been inclined to consent to this kind of suit; White v. Martin, 26 F.Supp.2d 385, 387 (D.Conn. 1998), aff’d sub nom. White v. CHRO, 198 F.3d 235, 1999 WL 973622 (2d Cir. 1999); making the viability of the original Complaint extremely precarious. The Amended Complaint was filed on November 12, 2012. It named the CHRO‘s chairperson, executive director and three human rights referees, who function as administrative law judges. See Amended Complaint, ¶¶ 5-9.

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 2 of 39

her appointment to the agency‘s commissioners. See CONN. GEN. STAT. § 46a-52(c).

The

Defendants are sued in their official capacities only. 2 CONN. GEN. STAT. § 46a-58(a) makes it a ―discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States‖ on account of things such as race or sex. CONN. GEN. STAT. § 46a58(a) ―has long been this state‘s fundamental civil rights statute, with a purpose to cast a broad net of protection for all persons from discrimination.‖ CHRO v. Board of Education, 270 Conn. 665, 711, 855 A.2d 212 (2004). At the heart of this action is the Plaintiff‘s contention that CONN. GEN. STAT. § 46a-58(a) violates ―Article VI, Clause 2 of the United States Constitution, the Supremacy Clause.‖ See Second Amended Complaint, ¶ 32. The Plaintiff alleges that once there were two cases pending before the CHRO in which it was a party, McGorty v. City of Shelton Fire Department and Puryear v. Echo Hose Ambulance Corps and the City of Shelton; see Second Amended Complaint, ¶¶ 8, 12; but that both cases have now passed through the CHRO, either closed through settlement or on appeal. Id., ¶¶ 11, 13, 14. The Second Amended Complaint identifies a handful of other instances of allegedly unconstitutional action by the CHRO under CONN. GEN. STAT. § 46a-58(a), none of which involved the Plaintiff. Id., ¶¶ 17-19, 21, 22. Nevertheless the Plaintiff pleads that it has standing to raise the claims asserted. Id., ¶¶ 36-41. 2

The Defendants have absolute immunity for claims against them in their individual capacities. Butz v. Economu, 438 U. S. 478, 513–17 (1978); Waldin v. Wishengrad, 745 F.2d 149, 151-53 (2d Cir. 1984); Barrett v. U. S., 798 F.2d 565, 572 (2d Cir. 1986). This Court has already found that the CHRO‘s executive director and other agency employees have absolute immunity when discharging their judicial functions, the conduct challenged here. White v. Martin, 26 F.Supp.2d 385, 390 (D. Conn. 1998), aff’d sub nom. White v. CHRO, 198 F.3d 235, 1999 WL 973622 (2d Cir. 1999). Page 2

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 3 of 39

II. LEGAL STANDARDS GOVERNING THE MOTION. On a motion to dismiss under Rule 12(b)(6), the moving party carries the burden of showing that jurisdiction does not exist. Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir. 2003). A defendant may base a motion to dismiss for failure to state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge to the ―sufficiency of the pleading‖ under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal existence of the claim. Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004)(―There is a critical distinction between the notice requirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted.‖); Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000). ―To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.‖ (Internal quotation marks omitted.) Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). ―A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‖ Iqbal, 556 U.S. 678. The issue is ―not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.‖ Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001)(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). ―[T]he tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.‖ Iqbal, 556 U.S. 678. A pleading that only ―tenders naked assertions devoid of further factual enhancement‖ will fail. Id. Rule 8 ―demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.‖

Page 3

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 4 of 39

Twombly, 550 U.S. 555. The Court's review of a motion to dismiss under Rule 12(b)(6) is generally limited to ―the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.‖ McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court may also consider ―matters of which judicial notice may be taken‖ and ―documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.‖ Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). This can include undisputed facts that are matters of public record. Almonte v. City of Long Beach, 478 F.3d 100, 104 n.2 (2d Cir. 2007). Under Rule 12(b)(1), a claim may be properly dismissed for lack of subject matter jurisdiction if a district court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). ―In a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both.‖ Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001). ―[H]ow the district court proceeds to resolve the motion to dismiss depends upon whether the motion presents a [legal or] factual challenge.‖ Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir. 2000). ―A [legal or] facial attack merely questions the sufficiency of the pleading. When a defendant raises a facial attack to subject matter jurisdiction, the court takes the allegations in the complaint as true and draws all inferences in favor of the non-movant.‖ Russo v. City of Hartford, 184 F. Supp. 2d 169, 178 (D. Conn. 2002); Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). ―When a court reviews a complaint under a factual attack for lack of subject matter jurisdiction, it must determine whether the factual predicate for subject matter exists.‖

Page 4

Russo v.

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 5 of 39

City of Hartford, 184 F. Supp. 2d 178. The requirement that jurisdiction be established as a threshold matter ―spring[s] from the nature and limits of the judicial power of the United States and is inflexible and without exception.‖ (Citation and quotation marks omitted.) Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998). ―The Court must be assured that it is acting within the scope of its jurisdictional authority and…must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim.‖ Norris v. Salazar, 885 F. Supp. 2d 402, 411 (D.D.C. 2012), aff'd, 12-5288, 2013 WL 1733645 (D.C. Cir. Apr. 10, 2013). ―Therefore, there is no presumptive truthfulness to the facts alleged in the complaint, and the court may consider evidentiary matter presented in an affidavit or otherwise in addition to the complaint. Kamen v. AT & T Co., 791 F.2d 1006, 1011 (2d Cir. 1986).‖ (Citations omitted.) Russo v. City of Hartford, 184 F. Supp. 178; Makarova v. United States, 201 F.3d 113; State Emp. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n. 4 (2d Cir. 2007). ―The mover and the pleader may use affidavits and other materials beyond the pleadings themselves in support of or in opposition to a challenge to subject matter jurisdiction.‖ Philbrick v. Univ. of CT, 90 F. Supp. 2d 195, 196 (D. Conn. 2000)(citing Land v. Dollar, 330 U.S. 731, 735 (1947)). ―When the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it. The plaintiff bears the burden of proving that subject matter jurisdiction exists.‖ (Internal quotation marks and citation omitted.) Smith v. Potter, 208 F. Supp. 2d 415, 417 (S.D.N.Y. 2002), aff'd sub nom. APWU v. Potter, 343 F.3d 619 (2d Cir. 2003); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).

Page 5

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 6 of 39

III. THE PLAINTIFF LACKS STANDING TO BRING THIS ACTION. A. As a Municipality the Plaintiff Does Not Have Standing to Challenge the Constitutionality of a State Statute. The Plaintiff ―is a municipal corporation organized under the laws of the State of Connecticut.‖ Id., ¶ 4. Even if a private party has standing to challenge the constitutionality of CONN. GEN. STAT. § 46a-58(a), a municipality has no such right. ―Municipal Corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted [sic] to them.‖ Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907). ―A municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the state exercising and holding powers and privileges subject to the sovereign will.‖ City of Trenton v. State of New Jersey, 262 U.S. 182, 187, (1923)(citing Barnes v. District of Columbia, 91 U. S. 540, 544, 545, (1875)). ―[A] political subdivision, ‗created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.‘‖ Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 363-64 (2009)(citing Williams v. Mayor of Baltimore, 289 U.S. 36, 40, (1933). The United States Supreme Court has barred cases brought by cities in New Jersey against the state claiming that a state statute violated rights under the Takings, Contracts, and Due Process Clauses. Trenton, 262 U.S. 187.

The Court found that Hunter barred municip-

alities from lodging constitutional claims by municipalities against their states. Id. In Williams v. Mayor of Baltimore, 289 U.S. 36 (1933) the Court barred a city‘s constitutional challenge to a state statute exempting an entity from taxation, determining that a ―municipal corporation,

Page 6

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 7 of 39

created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.‖ Id. at 40. The Second Circuit has specifically ruled on this issue in relation to a Fourteenth Amendment challenge. Political subdivisions of a state may not challenge the validity of a state statute under the Fourteenth Amendment. City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir.), cert. denied sub nom. Lavine v. Lindsay, 412 U.S. 950 (1973)(citing Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973), cert. denied, 414 U.S. 1146 (1974)). ―A municipality is prevented from attacking state legislation on the grounds that the law violates the municipality's own rights.‖ City of New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353, 364 (S.D.N.Y. 2000)(citing City of New Orleans v. New Orleans Water–Works Co., 142 U.S. 79, 89–91, (1891)); Bd. of Ed. of Pawling Central School Dist. v. Schutz, 137 F. Supp. 2d 83, 87-88 (N.D.N.Y. 2001), aff'd, 290 F.3d 476 (2d Cir. 2002); Lindsay v. Wyman, 372 F.Supp. 1360, 1366 (S.D.N.Y. 1974); City of Poughkeepsie, N.Y. v. Poughkeepsie Cablevision, Inc., 571 F. Supp. 1225, 1229 n.5 (S.D.N.Y. 1983); Yonkers Comm. on Human Rights v. City of Yonkers, 654 F.Supp. 544, 553 (S.D.N.Y.1987)(―[I]t is well established that Constitutional due process rights do not inhere in municipal corporations as against the state of their creation. A municipal corporation may not assert a denial of the equal protection or due process clauses of the Fourteenth Amendment as against the state by which created, and therefore, a department which is an arm or agency of a unit of state government, is not protected against the acts of the state or other entities exercising state delegated authority.‖). The same position has been echoed by other circuits as well. Delta Special Sch. Dist. No. 5 v. State Bd. of Educ. for the State of Arkansas, 745 F.2d 532, 533 (8th Cir.1984); Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1051 n.1 (5th Cir.1984); Village of Arlington

Page 7

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 8 of 39

Heights v. Regional Trans. Auth., 653 F.2d 1149, 1152–53 (7th Cir.1981). Some courts have barred municipalities from pursing all constitutional claims. BurbankGlendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1362 (9th Cir. 1998)(―[A] political subdivision of a state lacks standing under federal law to challenge the constitutionality of a state statute.‖)(Supremacy Clause challenge); Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104 (9th Cir. 1999); Gwin Area Community School v. Michigan, 741 F.2d 840 (6th Cir. 1984); Northwestern School District v. Pittenger, 397 F.Supp. 975, 979 (W.D.Pa.1975). Although there has been debate as to whether there should be a per se rule preventing a municipality from ever challenging the constitutionality of a state statute, ―the cases nevertheless reflect the general reluctance of federal courts to meddle in disputes between state governmental units. That reluctance must certainly factor into our prudential balance.‖ Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991). Certainly Connecticut has not provided expansive rights to municipalities seeking to challenge the constitutionality of state legislation. Town of Berlin v. Santaguida, 181 Conn. 421, 423-25, 435 A.2d 980, 982-83 (1980)(noting the rule ―denying a municipality standing to challenge the constitutionality of legislation enacted by its creator‖ and refusing to erode it by recognizing another exception). The Plaintiff is claiming the deprivation of due process rights such as the right to a federal jury trial and the right to discovery and challenges the constitutionality of CONN. GEN. STAT. § 46a-58 under the Supremacy Clause. See Second Amended Complaint, ¶¶ 30, 32. The Plaintiff does not have standing as a municipality to assert such claims. B. The Plaintiff Has Not Alleged an Injury in Fact. ―Article III of the Constitution limits the jurisdiction of federal courts to the resolution of cases and controversies.….[T]o ensure that this bedrock case-or-controversy requirement is met,

Page 8

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 9 of 39

courts require that plaintiffs establish their standing as the proper part[ies] to bring suit.‖ (Internal quotation marks and citation omitted.) W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008). ―In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.‖ (Citations omitted.) Warth v. Seldin, 422 U.S. 490, 498 (1975); Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004). The constitutional limitations derived from Article III are ―the injury in fact, causation, and redressability elements set out by the Supreme Court in Lujan‖. Center for Reproductive Law & Policy v. Bush, 304 F.3d 183, 195-96 (2d Cir. 2002); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); Woods v. Empire Health Choice, Inc., 574 F.3d 92, 96 (2d Cir. 2009). ―Accordingly…to meet the minimum constitutional requirements for standing, a plaintiff must allege an actual or threatened injury to himself (sic) that is fairly traceable to the allegedly unlawful conduct of the defendant and is likely to be redressed by the requested relief.‖ (Internal quotation marks and citation omitted.) Sullivan v. Syracuse Housing Auth., 962 F.2d 1101, 1106 (2d Cir. 1992). Constitutional standing ―is an essential and unchanging part of the case-orcontroversy requirement of Article III.‖ Lujan v. Defenders of Wildlife, 504 U.S. 560. ―The party invoking federal jurisdiction bears the burden of establishing these elements.‖ Id. 561. ―To qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be concrete and particularized as well as actual or imminent, not conjectural or hypothetical.‖ Internal quotation marks and citation omitted.) Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003); Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004). As explained in (Internal quotation

Page 9

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 10 of 39

marks and citations omitted.) W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008): By particularized, we mean that the injury must affect the plaintiff in a personal and individual way. Art[icle] III requires the party who invokes the court's authority to show that he (sic) personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. Indeed, [t]he Art[icle] III judicial power exists only to redress or otherwise to protect against injury to the complaining party….[A] party may invoke the court's authority only in order to seek redress for injury done to him (sic)...not [to] seek redress for injuries done to others. A plaintiff ―cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he (sic)...will be injured in the future.‖ Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). If the Article III ―constitutional minima are satisfied, a court may nevertheless deny standing for prudential reasons‖. Lamont v. Woods, 948 F.2d 825, 829 (2d Cir. 1991). ―[P]rudential considerations suggest that a plaintiff generally may not rest his claim on the legal rights of a third-party; that courts generally should refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances; and that the interest asserted by the plaintiff should be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.‖ (Internal quotations and citations omitted.) Sullivan v. Syracuse Housing Auth., 962 F.2d 1106. The constitutional and prudential limitations are distinct. ―[N]either the counsels of prudence nor the policies implicit in the case or controversy requirement should be mistaken for the rigorous Art. III requirements themselves. Satisfaction of the former cannot substitute for a demonstration of distinct and palpable injury…that is likely to be redressed if the requested relief is granted.‖ (Internal quotation marks and citation omitted.) Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982). Page 10

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 11 of 39

The Plaintiff has not suffered an injury in fact. The bulk of the allegations concern supposed unconstitutional activity directed at others. See Second Amended Complaint, ¶¶ 1719, 21, 22. None of the nine instances of supposed unconstitutional activity involves the Plaintiff. The Plaintiff does not allege that they did. Some of these decisions occurred up to 10 years ago. Id., ¶ 24. The Plaintiff claims that it suffered an injury in fact; id., ¶ 36; but it settled one case and won the other. Id., ¶¶ 11, 3 13. That hardly qualifies as injury. The Plaintiff‘s only connection—a remote one at that—is that it at one time had two matters pending before the CHRO. See Second Amended Complaint, ¶¶ 8-14. As the Plaintiff readily admits, it ―was a Respondent in two separate contested cases before the CHRO‘s Office of Public Hearing.‖ Id., ¶ 7 (emphasis added). It no longer is. The Plaintiff has not alleged that any other matters are pending with the Office of Public Hearings. Given this footing, all the Plaintiff can offer is speculation, speculation that at some unidentified point in the future it could find itself before the CHRO‘s Office of Public Hearings. Id., ¶¶ 30, 38. These allegations, though, are conclusory, lacking any factual ossature upon which to stand. In this respect any employer could end up before the CHRO. This is not an actual, particularized injury. It is merely hypothetical. The Plaintiff shares such a speculative injury with thousands of other employers.

―The party who invokes the power must be able to show not only that the statute is

invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common

3

The Plaintiff does allege that it was compelled to settle McGorty. This assertion is contrary to the Stipulated Agreement signed under oath by the Mayor of Shelton, Mark A. Lauretti, in the CHRO proceedings, Paragraph 12 of which states that the City of Shelton ―executed this Stipulated Agreement and the Confidential Agreement knowingly and voluntarily.‖ See Exhibit 1. Further, at the time McGorty settled, the Plaintiff was facing a motion to dismiss under Younger v. Harris, 401 U.S. 37 (1971). Younger abstention made it inconvenient to have a case pending before the CHRO. Page 11

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 12 of 39

with people generally.‖ (Citation omitted.) Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599 (2007). In this sense it does not avail the Plaintiff to rely on the alleged actual or speculative misfortunes of others. Id., ¶¶ 17-22, 30, 34, 38. It only serves to highlight the scarcity of its own injury. ―[T]o support standing, the plaintiff‘s injury must be actual or imminent to ensure that the court avoids deciding a purely hypothetical case in which the projected harm may ultimately fail to occur.‖ Baur, 352 F.3d 632. Federal courts are not ―forums for the ventilation of public grievances or the refinement of jurisprudential understanding.‖ Valley Forge, 454 U.S. 473.

IV. NO DECLARATORY RELIEF SHOULD BE AWARDED AS THERE IS NO PENDING CASE OR CONTROVERSY BETWEEN THE PARTIES. The Plaintiff‘s reliance on the Declaratory Judgment Act is no more secure than its constitutional claims. When seeking a declaratory judgment, the Plaintiff must allege an actual controversy in which it has real interests. (Citation omitted.) Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41, rehearing denied, 300 U.S. 687 (1937)(―A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.‖). ―The Declaratory Judgment Act of 1934, in its limitation to ‗cases of actual controversy,‘ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense.‖ Id., 239-240. Aetna is the first case to articulate the standard for ―actual controversy‖. The court explained, ―the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . .It

Page 12

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 13 of 39

must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.‖ (Internal citation omitted.) Id. 240-41. Many cases expand upon Aetna to further define whether there is an actual controversy between parties that would demand relief in the form of a declaratory judgment, not always with the most clarity. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27 (2007)(lamenting that the post-Aetna cases ―[d]o not draw the brightest of lines between those declaratoryjudgment actions that satisfy the case-or-controversy requirement and those that do not‖). Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941), however, is frequently cited: ―Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.‖ See, e.g., Golden v. Zwickler, 394 U.S. 103, 108 (1969); Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). This is where the interrelation between ―case or controversy‖ for Article III purposes and ―case of controversy‖ for declaratory judgment purposes breaks downs for the Plaintiff. If it cannot show it has standing under Article III, it cannot skirt that problem under the Declaratory Judgment Act. ―[T]he phrase ‗case of actual controversy‘ in the Act refers to the type of ‗Cases' and ‗Controversies‘ that are justiciable under Article III.‖ Velvet Underground v. Andy Warhol Found. for the Visual Arts, Inc., 890 F. Supp. 2d 398, 403 (S.D.N.Y. 2012)(citing MedImmune, Inc. v. Genentech, Inc., 549 U.S. 127 and Aetna, 300 U.S. 240). The part of the Second Amended Complaint which seeks relief in the form of a declaratory judgment is moot as no case of actual controversy exists at the CHRO. Both cases

Page 13

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 14 of 39

involving the Plaintiff are no longer pending at the CHRO. See Second Amended Complaint, ¶¶ 11, 13. The Plaintiff no longer has a case of actual controversy because there are no longer any claims involving the Plaintiff pending before the CHRO. Further, unlike Article III, relief under the Declaratory Judgment Act is discretionary, not mandatory. A court can most certainly decide not to issue a declaratory judgment. Even if the Plaintiff pled its case in textbook fashion, there is no requirement of a federal court to issue a declaratory judgment. ―The Declaratory Judgment Act provides that a court ―may declare the rights and other legal relations of any interested party,‖ 28 U.S.C. § 2201(a) (emphasis added), not that it must do so. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 136; Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942)(―Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, 28 U.S.C. § 400, it was under no compulsion to exercise that jurisdiction.‖ As the Court stated in (Internal quotation marks and citations omitted.) Wilton v. Seven Falls Co., 515 U.S. 277, 286-88 (1995) Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants…. We have repeatedly characterized the Declaratory Judgment Act as an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant….When all is said and done, we have concluded, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. Acknowledging, as they must, the unique breadth of this discretion to decline to enter a declaratory judgment, [Petitioners] nonetheless contend that…district courts lack discretion to decline to hear a declaratory judgment suit at the outset. See Brief for Petitioners 22 (―District courts must hear declaratory judgment cases absent exceptional circumstances; district courts may decline to enter the requested relief following a full trial on the merits, if no beneficial purpose is thereby served or if equity otherwise counsels‖). We are not persuaded by this distinction. [The] argument depends on the untenable proposition that a district court, knowing at the commencement of litigation that it will exercise its broad statutory discretion to decline declaratory relief, must nonetheless go through the futile exercise of hearing Page 14

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 15 of 39

a case on the merits first. Nothing in the language of the Declaratory Judgment Act recommends [this] reading, and we are unwilling to impute to Congress an intention to require such a wasteful expenditure of judicial resources. If a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action. A court should decline to entertain a declaratory ruling where the case has been effectively settled by the decision of some other tribunal. Travelers Ins. Co. v. Davis, 490 F.2d 536 (3d Cir. 1974); Tyler Pharmacal Distributors, Inc. v. U.S. Dept. of HEW, 408 F.2d 95 (7th Cir. 1969); Kephart v. Wilson, 219 F.Supp. 801 (D.C. Tex. 1963), aff’d, 350 F.2d 669 (5th Cir. 1965), cert. denied, 382 U.S. 977 (1965), Any argument by the Plaintiff that it may realize some future harm should fail. The Second Amended Complaint puts forward a litany such scenarios. ―Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing. Many of the same reasons are present which impel them to abstain from adjudicating constitutional claims against a statute before it effectively and presently impinges on such claims.‖

Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S. 426, 432 (1948).

―Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.‖ Id., 431.

V. THIS MATTER IS NOT RIPE FOR ADJUDICATION. Along with standing and mootness, ripeness is a subset of justiciability. An issue is ripe for judicial review where there is an actual or imminent injury rather than one which is purely hypothetical or speculative. Brooklyn Legal Services Corp. v. Legal Services Corp., 462 F.3d 219, 225 (2d Cir. 2006). It requires a balancing between the values of protecting parties from possible injury while avoiding unnecessary judicial decisions. In determining whether an issue is

Page 15

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 16 of 39

ripe for review, courts must balance whether there a need for more facts and review to develop the record against whether there is too great a risk of hardship to a party for the court to not make a decision. Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977); Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-12 (2003). The ripeness doctrine is ―drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction‖. (Citations omitted.) Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n. 18 (1993). As explained in (Internal quotation marks and citations omitted.) New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 13031 (2d Cir. 2008), Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III.... Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial. ―[R]ipeness is peculiarly a question of timing[;] it is the situation now rather than the situation at the time‖ the lawsuit was filed that ―must govern‖. Blanchette v. Connecticut Gen. Ins. Corporations, 419 U.S. 102, 140 (1974). ―The concept of ripeness assumes that the relationship between the parties might at some point ripen into an injury sufficiently direct and realized to satisfy the requirements of Article III standing. It recognizes, however, that some disputes mature in stages, going through preliminary phases during which the injury is as yet but a speculative possibility, too remote or hypothetical to warrant present submission to a federal court. Page 16

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 17 of 39

Such a dispute is considered as yet ‗unripe‘ for adjudication.‖ Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89, 111 (2d Cir. 2007). ―The doctrine prevents the premature adjudication of issues that may never arise‖. Pac. Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 203 (1983); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York State Dep't of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996)(quoting Chemical Waste Management, Inc., v. U.S. Envtl. Protection Agency, 869 F.2d 1526, 1532 (D.C.Cir.1989)(―[T]he mere potential for future injury ...is insufficient to render an issue ripe for review.‖)(emphasis and omission in original)(quoting Alascom, Inc. v. FCC, 727 F.2d 1212, 1217 (D.C.Cir.1984)). ―In assessing the possibility of hardship, we ask whether the challenged action creates a direct and immediate dilemma for the parties….The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.‖ (Internal quotation marks and citations omitted.) New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 134 (2d Cir. 2008). A court ―cannot entertain a claim which is based upon contingent future events that may not occur as anticipated, or indeed may not occur at all.‖ (Internal quotation marks omitted.) Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir. 1998). Consequently, ―when resolution of an issue turns on whether there are nebulous future events so contingent in nature that there is no certainty they will ever occur, the case is not ripe for adjudication.‖ Id. As the Defendants have previously pointed out, the two cases that inaugurated this lawsuit have passed beyond the CHRO, one into history and the other into a state appellate court. There has been no agency decision that poses imminent harm to the Plaintiff. There has been no determination by the CHRO that the Plaintiff violated CONN. GEN. STAT. § 46a-58(a) or any other state or federal law. No damages have been assessed against the Plaintiff. Whether other

Page 17

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 18 of 39

matters involving the Plaintiff will reach or when they will reach the CHRO‘s Office of Public Hearings is anyone‘s guess, but it would be exactly that: a guess. Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 203 (1983)(ripeness doctrine prevents the premature adjudication of issues that may never arise). If a case arises in the future, the Plaintiff has recourse to the state court system. Connecticut law affords an adequate remedy to address the issues raised in this action. Doe v. CT Dept. of Health Serv., 75 F.3d 81, 85 (2d Cir. 1996)(as amended after denial of rehearing)(2d Cir. Jan. 30, 1996). This Circuit has found other claims unripe where there was no imminent threat. Connecticut v. Duncan, 612 F.3d 107, 115 (2d Cir. 2010)(no showing of harm where state ―faces no imminent enforcement action by the Secretary‖); Thomas, 143 F.3d 35 (where not one of plaintiffs' licenses has been denied, ―plaintiffs have not, as yet, suffered any harm to their procedural due process rights‖); Clearing House Ass'n, L.L.C. v. Cuomo, 510 F.3d 105, 124 (2d Cir. 2007), aff'd in part, rev'd in part, 557 U.S. 519 (2009)(claim by consortium of national banks that enforcement of Fair Housing Act was preempted by National Bank Act was not ripe, because if the New York State ―Attorney General ultimately decide[d] to pursue an action to enforce the federal statute, [the plaintiffs] could assert its objection immediately before a court‖ and could appeal in the event of a judgment against them); Seafarers Int'l Union of N. Am., AFL-CIO v. U.S. Coast Guard, 736 F.2d 19, 28 (2d Cir. 1984)(―the fact that there are available administrative remedies which are not even referred to, much less shown to have been exhausted, is also crucial‖). See also Standing Rock Housing Authority v. U.S. E.E.O.C., 585 F.Supp.2d 1112, 1121 (D.N.D. 2008)(in action brought against the EEOC to quash an administrative subpoena seeking information about whether the plaintiff was an employer, ―[t]he proceeding is not ripe for judicial review because it is an anticipatory action to challenge the validity of the

Page 18

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 19 of 39

EEOC's administrative subpoena before the agency has sought judicial enforcement of the subpoena.‖) This case is not ripe and should be dismissed.

VI. THE PLAINTIFF’S CLAIMS GAINST THE DEFENDANTS ARE MOOT. As the Plaintiff candidly admits, ―McGorty has settled and Puryear is on appeal‖. See Second Amended Complaint, ¶ 36. The Plaintiff has not alleged that any other matters involving it are pending before the CHRO such that it is subject to the procedures it challenges in this litigation. The Plaintiff therefore is not subject to any harm. This controversy has become moot.4 The mootness doctrine is rooted in the ―case or controversy‖ requirement of Article III of the Constitution, which describes ―the principle that, at all times, the dispute before the court must be real and live, not feigned, academic, or conjectural.‖ U.S. CONST. Art. III, § 2, cl. 1; Russman v. Bd. of Ed. of Enlarged City School Dist. Of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). A case is moot, and the federal court is divested of jurisdiction over it, ―when the parties lack a legally cognizable interest in the outcome.‖ (Internal quotation marks and citations omitted.) Fox v. Bd. of Trustees of the State Univ. of NY, 42 F.3d 135, 140 (2d Cir. 1994). The Plaintiff alleges that this case falls within the ―capable of repetition, yet evading review‖ exception to mootness. See Second Amended Complaint, ¶ 36. The Supreme Court has recognized a limited exception to the mootness doctrine, where the plaintiff can show that the challenged action is ―capable of repetition, yet evading review….‖ Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). In cases such as this where suit is brought in an 4

The Plaintiff‘s contention that it previously suffered an ―injury in fact‖ does not save this case from being moot. The Ex Parte Young ―exception is narrow: It…does not permit judgments against state officers declaring that they violated federal law in the past….‖ Puerto Rico A. & S. Authority v. Metcalf & Eddy, 506 U.S. 139, 146 (1993). Page 19

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 20 of 39

individual rather than a representational capacity, this exception to mootness applies only if: ―(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.‖ Weinstein v. Bradford, 423 U.S. 147, 149 (1975)(per curiam). Both must be satisfied. Freedom Party of New York v. NY State Bd. of Elections, 77 F.3d 660, 662-63 (2d Cir. 1996). ―Many Supreme Court cases have rejected the application of the ‗capable of repetition, yet evading review‘ exception in the face of the complaining party's speculative and theoretical assertion that the issue in dispute was capable of repetition.‖ Presnick v. Bysiewicz, 297 F. Supp. 2d 431, 435 (D. Conn. 2003) This case does not present a situation where an injury occurred and was over so quickly that the case will always be moot before the court litigation process is over. In Roe v. Wade, 410 U.S 113 (1973), for example, when the case reached the Supreme Court, Roe‘s pregnancy was completed and she no longer sought an abortion. Although her claim was moot, the Supreme Court nonetheless decided the constitutional question presented. The Court reasoned that laws prohibiting abortion would inflict wrongs in the future and that they would escape review because the time period of human gestation is invariably shorter than that for human litigation. Id. at 125. The instant case, however, does not involve such a situation. The Plaintiff had and will continue to have the ability to litigate its arguments in state forums. See Second Amended Complaint, ¶¶ 9, 11 (noting that McGorty had been before the CHRO for over two years). As to the second prong of the test, the Second Circuit has described the requisite likelihood of repetition as a ―demonstrated probability‖ or a ―reasonable expectation.‖ Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 82 (2d Cir. 1991); McFarlin v. Newport School Dist., 980 F.2d 1208, 1211 (8th Cir. 1992)(―A mere physical or theoretical possibility is insuf-

Page 20

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 21 of 39

ficient; a demonstrated probability must be shown.‖ (Internal quotation marks and citation omitted.). Here, there is only one case pending, Puryear. As the Plaintiff correctly states, ―Puryear was dismissed in the favor of the City on the basis that Puryear had ―failed to allege sufficient facts to support the existence of an employment relationship.‖ See Second Amended Complaint, ¶ 13. At this point, no one knows what the result of the appeal will be. Certainly, there is no demonstrated probability or reasonable expectation that the Plaintiff will necessarily not prevail on appeal. Even if it loses on appeal and the case results in an administrative public hearing, there is no demonstrated probability or reasonable expectation that it will lose on the merits at public hearing. Further, even if the CHRO prevails on the merits at public hearing, there is no demonstrated probability or reasonable expectation that the CHRO will ―adjudicate federal law‖ as alleged. ―[F]or purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.‖ Honig v. Doe, 484 U.S. 305, 320 (1988)(collecting cases). The Plaintiff has failed to allege that it violates or will violate CONN. GEN. STAT. § 46a-58(a) or Title VII in the future or that it has other matters currently at public hearing before the CHRO. In short, this case is moot because the Plaintiff advances a speculative argument that sometime in the future it could be subjected to adjudication of federal law in the CHRO administrative process.

There is simply no

demonstrated probability or reasonable expectation that such an event will ever occur. The Plaintiff apparently also asserts that the case is not moot because it is litigating in a representational capacity. The Plaintiff has absolutely no authority to seek relief in this lawsuit on behalf of any party other than itself. The Plaintiff has not even attempted to bring a class

Page 21

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 22 of 39

action. Except for the ―similarly situated‖ language; see Second Amended Complaint ¶¶ 4, 30 and 38; the complaint contains no class allegations, no definition of class members, and there is no request by Plaintiff to represent a class. Noticeably absent from the Prayer for Relief; see Second Amended Complaint pp. 12-13; is a request for an order of class certification or relief for any purported class. Nor is any motion for class certification complying with Fed. R. Civ. P. 23 to be found. ―[I]n general, if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot.‖ Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994)(citing Board of Sch. Comm‘rs v. Jacobs, 420 U.S. 128, 129-30 (1975)(per curiam).

VII. THE ELEVENTH AMENDMENT BARS THIS SUIT. A. Introduction. The Eleventh Amendment to the U.S. Constitution provides that ‗[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.‖ Early on the amendment was construed to apply to suits by citizens of the same state. Hans v. Louisiana, 134 U.S. 1, 10 (1890). Although sovereign immunity has its limits, its history is long and unencumbered. The Second Circuit has noted that states‘ sovereign immunity dates back to the infancy of the republic itself. New York City Health & Hospitals Corp. v. Perales, 50 F.3d 129, 133-34 (2d Cir. 1995). Today it is well settled that the Eleventh Amendment imposes a near total blackout on suits in federal court against states, their agencies and officials acting in their official capacities, regardless of whether the relief sought is legal or equitable.

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100-01

(1984); Papasan v. Allain, 478 U.S. 265, 276 (1986).

Page 22

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 23 of 39

Sovereign immunity is limited only by three narrow exceptions: (1) where it has been waived by the state; Kentucky v. Graham, 473 U.S. 159, 169 (1985); (2) where it has been abrogated by Congress; Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003); and (3) where a state official is sued in his or her official capacity for prospective injunctive relief. Ex Parte Young, 209 U.S. 123, 157 (1908). The plaintiff fails to satisfy any of these exceptions. The first two are not in play. For waiver to be effective, ―the state‘s consent [to suit must] be unequivocally expressed.‖ Pennhurst, 465 U.S. 99; Edelman v. Jordan, 415 U.S. 661, 673 (1974)(waiver found ―only where stated by the most express language or by such overwhelming implication…as [will] leave no room for any other reasonable construction.‖). ―Courts indulge every reasonable presumption against waiver‖ of sovereign immunity. College Savings Bank v. Florida Prepaid Postsecondary Educational Expense Bd., 527 U.S. 666, 682 (1999). Neither the state nor the CHRO has waived immunity; see n.1 above; nor does the plaintiff claim otherwise.

See Second Amended

Complaint. ―[T]he Court has adopted a particularly strict standard to evaluate claims that Congress has abrogated the States' sovereign immunity.‖ Port Authority Trans-Hudson Corp. v. Freeney, 495 U.S. 299, 305 (1990). ―Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.‖ Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). While Congress has the power to abrogate state sovereign immunity under the Fourteenth Amendment, it is clear that 42 U.S.C. § 1983, the main engine pulling this lawsuit, has not abrogated Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 340-42 (1979); Dube v. S.U.N.Y., 900 F.2d 587, 594 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991).

Page 23

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 24 of 39

The third exception was first articulated in Ex parte Young, 209 U.S. 123. Young ―rests on the premise—less delicately called a ―fiction‖—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he [or she] is not the State for sovereign-immunity purposes.‖ (Internal citations and quotation marks omitted.) Virginia Office for Protection and Advocacy v. Stewart, 538 U.S. ___, 131 S.Ct. 1632, 1638 (2011). Like other exceptions to Eleventh Amendment immunity, this ―exception is narrow: It applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought. Rather than defining the nature of Eleventh Amendment immunity, Young and its progeny render the Amendment wholly inapplicable to a certain class of suits. Such suits are deemed to be against officials and not the States or their agencies, which retain their immunity against all suits in federal court.‖ (Internal citations omitted.) Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). For a plaintiff to succeed under Ex parte Young, several requirements must be met. A plaintiff must allege that state officials have ―threaten[ed] and are about to commence proceedings‖ against it. Ex parte Young, 209 U.S. 156. A plaintiff must allege an ―ongoing violation of federal law‖. Green v. Mansour, 474 U.S. 64, 68 (1985). A plaintiff must also direct the requested relief against officials acting in their official capacities who are directly responsible for the alleged ongoing violation of federal law. Ex parte Young, 209 U .S. 157; Dube v. S.U.N.Y., 900 F.2d 587, 595 (2d Cir. 1990); Marshall v. Switzer, 900 F.Supp. 604, 615 (N.D.N.Y.1995)(explaining that the state official must have a direct connection to, or responsibility for, the alleged illegal action)

Page 24

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 25 of 39

1. The Defendants Have Not Threatened to Commence Proceedings Against the Plaintiff. Ex Parte Young, 209 U.S. 156 holds that a state‘s Eleventh Amendment immunity does not extend to instances where state officers ―threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal constitution.‖ ―When enforcement actions are imminent—and at least when repetitive penalties attach to continuing or repeated violations and the moving party lacks the realistic option of violating the law once and raising its federal defenses—there is no adequate remedy at law.‖ Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). The Court further explains that the prospect of state suit must be imminent, for it is the prospect of that suit which supplies the necessary irreparable injury….[W]e have recognized in a related context that a conjectural injury cannot warrant equitable relief. Any other rule (assuming it would meet Article III case-or-controversy requirements) would require federal courts to determine the constitutionality of state laws in hypothetical situations…. Id. at 382 (emphasis in original). The Plaintiff‘s second amended complaint lacks the most basic allegations that a threatened action is imminent.

We learn from it that at one time there were two actions

involving the Plaintiff before the CHRO at public hearing. One such case, McGorty v. City of Shelton Fire Department, never was subjected to the process that the Plaintiff finds odious, as the case settled before the public hearing got underway. 5 See Second Amend Complaint, ¶¶ 8-11. The other, Puryear v. Echo Hose Ambulance Corps and City of Shelton, likewise did not reach public hearing on the merits. It was dismissed because the complaining party ―failed to

5

The Plaintiff had filed a Motion to Dismiss Title VII Claims Under CONN. GEN. STAT. § 46a-58(a) dated May 11, 2011, but chose to settle the case rather than let the motion be decided. The Plaintiff thus had an opportunity to have the issues aired without involving this Court. Page 25

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 26 of 39

allege sufficient facts to support the existence of an employment relationship.‖ Id., ¶ 13. As the Plaintiff readily admits, the issue on appeal is only whether Puryear is an employee; id., ¶ 14; not the issues raised here. The Plaintiff goes so far as to allege in that it cannot raise the issue. Id. With Puryear dismissed, the Plaintiff sits in a commanding position well removed from any imminent harm. The Plaintiff also lists some hearing officer decisions as examples of the practices challenged. See Second Amended Complaint, ¶¶ 17-22. None of the decisions involve the Plaintiff. The Plaintiff has omitted any reference to decisions in which compensatory damages were found not to be authorized, thereby rendering a distorted portrait of CHRO decisions, but the point is that the decisions listed in the Second Amended Complaint are past.6 They were issued by persons who are no longer hearing officers 7 or employed by the CHRO in any capacity and were issued ―over [the course of] ten years‖. Id., ¶ 24. Even assuming the Plaintiff correctly characterizes these decisions as unconstitutional, the Eleventh Amendment ―does not permit judgments against state officers declaring that they violated federal law in the past.‖ Puerto Rico

6

These decisions include Farling v. State of CT Div. of Special Revenue, CHRO No. 9240371 (February 8, 1995)(Lifton, Hearing Officer); Dennen v. Superbin USA, Inc., CHRO No. 9230020 (September 19, 1995)(Adams, Hearing Officer); Advani v. Ernst & Young, CHRO No. 9220359 (January 5, 1996)(Monahan, Hearing Officer); Kochey v. Eastman Kodak Co., CHRO No. 8310319 (May 1, 1996)(Shedd, Hearing Officer); Fernandez v. CIGNA, CHRO No. 8610332 (December 23, 1996) (Acosta, Hearing Officer); Illingworth v. City of New Haven, CHRO No. 9130299 (February 24, 1997)(Adams, Hearing Officer)(―[T]his hearing officer would submit that this case screams for the awarding of such damages. What the Complainant had to live through for two years and eight months of humiliation, degradation and abasement…is hardly fairly compensated by just the return to her of her actual damages. It is therefore with some regret that I can not (sic) approve any award for emotional distress or attorneys fees.‖). 7

The current hearing officers, called human rights referees, were named as defendants in the Amended Complaint. They submitted affidavits that were attached to the first motion to dismiss indicating that they have not ruled on or decided the questions the Plaintiff presents in this lawsuit. Page 26

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 27 of 39

Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 146); Green v. Mansour, 474 U.S. 65-66. The Plaintiff also alleges that it ―and other similarly situated Respondents have been harmed, (sic) the Defendants‘ prosecution and initiation and adjudication of the Complainants (sic) Title VII claims in McGorty and Puryear and other cases.‖

See Second Amended

Complaint, ¶ 30 (emphasis added). Again, the use of the past tense gives away the lack of a prospective injury. Wilson v. Edmund, No. 10 Civ. 659, 2011 WL 494777 at *9 (D.Conn. Feb. 5, 2011)(Allegations that defendant ―had failed‖ to comply with federal law are insufficient for Ex parte Young purposes. ―[T]hese allegations are plainly in the past tense.‖). It is instructive to compare Morales, 504 U.S. 381 (Ex parte Young exception met because ―the attorneys general of seven States…had made clear that they would seek to enforce the challenged portions of the guidelines…through suits under their respective state laws‖) with Goodspeed Airport, LLC v. E. Haddam Inland Wetlands & Watercourses Commission, 632 F.Supp.2d 185, 188 (D.Conn. 2009)(plaintiff could not rely on Ex parte Young, because it ―merely claims that the Commissioner could act…should [it] choose‖ to take certain action, ―and it wants a ruling on the applicability of those state statutes before taking any action.‖)(emphasis in original). This case looks more like Goodspeed than Morales and should be dismissed. Whatever happened in the two cases that inaugurated this litigation has ended, and the Plaintiff has not convincingly alleged that a new suit is on the horizon. The Plaintiff gets marginally closer in the second sentence of that paragraph, where it alleges it ―and other similarly situated Respondents will be harmed by the Defendants‘ continuing position that they can adjudicate federal law.‖ See Second Amended Complaint, ¶ 30. Only marginally, because the Plaintiff in part relies on supposed future harm to others rather than itself. Cf. KM Enterprises, Inc. v. McDonald, 11-CV-5098 ADS ETB, 2012 WL 4472010,

Page 27

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 28 of 39

*8, 9 (E.D.N.Y. Sept. 25, 2012)(―Certainly, the majority of the Plaintiff‘s contentions…concern the previous award of the subcontract to GTT rather than KME…. KME has failed to allege that the Commissioner is engaged in an ongoing violation of federal law with respect to KME.‖), aff'd, 12-4314-CV, 2013 WL 1799866 (2d Cir. Apr. 30, 2013). The Plaintiff does claim that it ―will be harmed‖ by the CHRO and makes other vague claims of future injury; see, e.g., Second Amended Complaint, ¶ 32; but the shortcoming here is that the claims are wholly speculative and conjectural, missing any type of factual underpinning. Morales v. Trans World Airlines, Inc., 504 U.S. 382 (―a conjectural injury cannot warrant equitable relief‖); Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 148 (2d Cir. 2011) cert. denied, ___ U.S. ___, 133 S. Ct. 1586, 185 L. Ed. 2d 578 (2013); Goodspeed Airport, 632 F.Supp.2d 188 (―As the Commissioner makes clear…‗Plaintiff has not alleged that the Commissioner has sent to the Plaintiff any memoranda or letters regarding a potential CEPA against it. Nor has the Plaintiff pointed to any other action by the Commissioner that might be construed to indicate an imminent threat by the Commissioner to bring a CEPA action against the Plaintiff.‘ [citation omitted.] The Court agrees.‖). Like Goodspeed Airport, the second amended complaint makes absolutely no allegation that the CHRO has instituted or threatened imminently to institute any type of action. What separates this case from Morales, 504 U.S. 381 (―the attorneys general of seven States…had made clear that they would seek to enforce‖ the challenged provisions ―through suits under their respective state laws‖) or Ex parte Young, 209 U.S. 131 (the penalties prescribed for violation of state law were ―so drastic that no owner or operator of a railway property could invoke the jurisdiction of any court to test the validity thereof‖ and the ―attorney general…would, as

Page 28

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 29 of 39

complainants were advised and believed, institute proceedings‖)(emphasis added) is exactly the type of immediate threat that Young insists be present. Also separating this case from Morales and Ex parte Young is that discriminatory practice complaints are typically filed by complainants who believe that they are victims of discrimination. They just do not appear on their own. McGorty has settled and the Puryear litigation is not before the CHRO. See Second Amended Complaint, ¶¶ 11, 13, 14. Despite being the Plaintiff‘s third try at stating a claim, the second amended complaint utterly fails to allege that there are other matters involving it now pending before the CHRO which subject it to the procedures it believes offend the U.S. Constitution. The mere possibility that a state official ―might decide to act under the [challenged law] without more does not give rise to either an ongoing violation of federal law or an imminent threat of proceedings‖ for Ex parte Young purposes of attaining equitable relief, the court granted the defendant state officer's motion to dismiss the claims against her.

Goodspeed

Airport, 632 F.Supp.2d at 189 (citing Morales, 504 U.S. 382). 2. There Is No Ongoing Violation of Federal Law by the Defendants. ―In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.‖ (Internal quotation marks omitted.) Verizon Maryland, Inc. v. Public Serv. Comm. of Maryland, 535 U.S. 635, 645 (2002). ―[D]eciding whether a state official violated federal law affects both the initial immunity inquiry as well as the ultimate decision on the merits. At this stage, we need only determine whether [the plaintiff‘s] assertion that the [defendants‘ actions] resulted in a violation of federal

Page 29

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 30 of 39

law is a substantial and not frivolous claim; we need not reach the legal merits of the claim. (Internal quotation marks and citation omitted.) In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 374 -75 (2d Cir. 2005); In re Deposit Insurance Agency, 482 F.3d 612, 621 (2d Cir. 2007); Oneida Indian Nation of N. Y. State v. Oneida Cnty., New York, 414 U.S. 661, 666-67 (1974) (complaint raising federal question must not be ―so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits.‖). If the state officials' conduct was authorized by state law and no federal rights were infringed, the Eleventh Amendment bars federal jurisdiction. Larson v. Domestic & Foreign Commerce, Corp., 337 U.S. 682, 693 (1949). The point of the analysis remains on assuring that a plaintiff does not allege a violation of federal law ―solely for the purpose of obtaining jurisdiction.‖ Id. at 690 n.10. ―To interpret Young to permit a federal court-action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his [or her] individual capacity, would be to adhere to an empty formalism and to undermine the principle…that Eleventh Amendment immunity represents a real limitation on a federal court‘s federal-question jurisdiction.‖ Idaho v. Coeur d‘ Alene Tribe, 521 U.S. 261, 270 (1997). Cf. HealthNow New York, Inc. v. New York, 739 F. Supp. 2d 286, 297 (W.D.N.Y. 2010) aff'd, 448 F. App'x 79 (2d Cir. 2011)(―If a federal case could be made for the purpose of testing the constitutionality of a state statute merely by naming any state official in an injunction suit, the limited exception of Ex parte Young would be stretched far beyond its intended purpose. See, e.g., CSX Transp., 306 F.3d at 98; Klinger v. Connecticut, No. 3:04CV1081, 2004 WL 2750318, at *2 (D.Conn. Nov. 12, 2004)(quoting Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441).‖).

Page 30

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 31 of 39

The Court may look to outside evidence to decide whether the second amended complaint contains a substantial and not frivolous claim. In re Dairy Mart Convenience Stores, Inc., 411 F.3d 374-75. The Court is not required to ―accept conclusory allegations on the legal effect of the events plaintiff has set out if these allegations do not reasonably follow from [the] description of what happened.‖ First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 772 (2d Cir.1994). It does not need to accept the allegations as true.8 ―The real interests served by the Eleventh Amendment are not to be sacrificed to elementary to elementary mechanics of captions and pleading.‖ Idaho v. Coeur d‘Alene Tribe, 521 U.S. 270. The Second Amended Complaint rests on the premise that the defendants are wrongly using CONN. GEN. STAT. § 46a-58(a) to adjudicate Title VII claims. For example, the Plaintiff alleges that ―the defendants are prosecuting and adjudicating Title VII employment claims under the guise of Conn. Gen. Stat. § 46a-58 in blatant disregard of the federal court decisions in this District which have held that employment related claims may only be brought under Conn. Gen. Stat. § 46a-60. See, e.g., Hill v. Pinkerton, 977 F. Supp. 148 (D. Conn. 1977).‖ See Second Amended Complaint, ¶ 25. The Plaintiff points to instances where it claims federal claims were wrongly decided. Id., ¶¶ 17-22. Judicial decisions construing CONN. GEN. STAT. § 46a-58(a) as well as actions taken by the U.S. Equal Employment Opportunity Commission (EEOC) on the complaints claimed to illustrate the unconstitutionality of CHRO practices clearly refute these contentions.

8

They

For instance, the Court could find that Hill v. Pinkerton, 977 F.Supp. 148, which the Plaintiff cites prominently in support of its allegation that defendants are prosecuting Title VII claims; see Second Amended Complaint, ¶ 25; has nothing to do with CONN. GEN. STAT. § 46a-58 in the context of Title VII or the CHRO. Likewise, the Court could reject the plaintiff‘s assertion that ―Title VII vests enforcement authority of its provisions in the federal courts‖; id., ¶ 35; because Yellow Freight Systems, Inc. v. Donnelly, 494 U.S. 820, 823 (1990) holds that Title VII actions may properly be brought in a state court. Page 31

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 32 of 39

establish that lying behind the face of the allegations of the Second Amended Complaints are facts that essentially make the Plaintiff‘s claims impossible to sustain. Both state and federal courts have held that CONN. GEN. STAT. § 46a-58 incorporates by reference state and federal antidiscrimination laws and makes them its own. Judge Burns held in Holt v. Continental Group, 631 F. Supp. 653, 657 (D. Conn. 1985), aff‘d, 788 F.2d 3 (2d Cir.), cert. denied, 479 U.S. 839 (1986) that CHRO may assert jurisdiction through state statutes over practices that are illegal under federal law: The CCHRO is a state agency established under state law to enforce state-created rights….[M]any discriminatory practices made illegal under federal law are also made illegal under Connecticut statutes….To the extent that a discriminatory practice which is illegal under federal law is also illegal under Connecticut law, the CCHRO may assert jurisdiction over the claim. In CHRO ex rel. Doe v. Hamden Developers, LLC, No. 3:03CV1223 (DJS), 2003 WL 22995165 (D.Conn. Dec. 15, 2003), Judge Squatrito granted the CHRO‘s motion to remand a matter alleging a violation of CONN. GEN. STAT. § 46a-58 involving the Fair Housing Act (Title VIII). The Court noted that ―[t]he complaint, which mentions certain federal anti-discrimination statutes in passing, does not expressly state that plaintiff intends to state a claim under these statutes, nor does it specifically claim relief under federal law.‖ The Court found that the CHRO‘s ―intentions are clear….All evidence indicates that plaintiffs intend to restrict their claims to state law. Therefore, because plaintiffs exclusively rely upon state law, there is no subject matter jurisdiction over the claims set forth in the complaint.‖ Cf. Sullivan v. American Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005)(―As a general rule, a suit seeking recovery under state law is not transformed into a suit ‗arising under‘ federal law merely because, to resolve it, the court may need to interpret federal law. See Gully v. First Nat'l Bank, 299 U.S. 109, 115, 57

Page 32

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 33 of 39

S.Ct. 96, 81 L.Ed. 70 (1936) (―Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.‖).‖ Connecticut Superior Court Judge Devlin held in Trimachi v. CT Workers Compensation Committee, No. CV-97-0403037, 2000 WL 872451, 7 (Conn. Super. June 14, 2000) that CONN. GEN. STAT. § 46a-58 expressly converts a violation of federal antidiscrimination law (such as Title VII) into a violation of Conn. Gen. Stat. § 46a-58: Connecticut antidiscrimination statutes are intended to be at least coextensive with their federal counterparts. See Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982). General Statutes 46a58(a) has expressly converted a violation of federal antidiscrimination laws into a violation of Connecticut antidiscrimination laws. Section 46a-58(a) provides that ―it shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability. These ―well established judicial gloss[es]‖; Williams v. CHRO, 257 Conn. 258, 271 (2001); of CONN. GEN. STAT. § 46a-58 are now part of the fabric of the law. Checked against this authority, the plaintiff‘s allegation that ―it is the Defendant‘s (sic) position that they (sic) can adjudicate, and have adjudicated[,] Title VII claims” is an assertion empty of legal basis. See Second Amended Complaint, ¶ 17. Decisions of this Court and in Connecticut state court establish that a federal statute recited in a CONN. GEN. STAT. § 46a58(a) claim does not raise a federal claim. The Defendants‘ legal position is that it proceeds under state law on CONN. GEN. STAT. § 46a-58(a) claims. This Court agrees. CHRO ex rel. Doe v. Hamden Developers, LLC, supra. Moreover, as the affidavit of Feng Kuei ―Kenneth‖ An, Acting Area Director of the Boston Area Office of the EEOC; see Exhibit 2; indicates:

Page 33

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 34 of 39

9. Pursuant to our work sharing agreement with the CHRO, all charges dual-filed by the CHRO with the EEOC that are submitted for contract credit will be issued a notice of right-to-sue by the EEOC except when there is a settlement, withdrawal without benefits, or if the EEOC decides to litigate the charge. 10. A claimant will not lose a federal right based on a decision of CHRO human rights referee on a CONN. GEN. STAT. § 46a-58(a) claim. As the affidavit of Robin Fox, Human Rights Attorney 3; see Exhibit 3; indicates, the EEOC issued right-to-sue letters to the charging parties in seven of the nine cases in which the Plaintiff claims the CHRO had determined that federal law had been violated! See Second Amended Complaint, ¶¶ 17-22.9 Having a right-to-sue letter is a prerequisite to bringing suit under Title VII.

Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d

Cir.2001). By issuing the right-to-sue letters, the EEOC allowed the charging parties to bring the very actions in court that the Plaintiff claims had been foreclosed by the CHRO. Had the CHRO decided federal law questions as a matter of fact rather than as a matter of pleading, the issuance of the right-to-sue letters would have been impossible, thereby making the Plaintiff‘s allegations insubstantial or frivolous. As these affidavits show, there has never been any violation of federal law by the Defendants, let alone an ongoing violation. The Plaintiff attempts to tie these otherwise dangling decisions to the present by making a conclusory leap that it will suffer imminent harm. See Second Amended Complaint, ¶ 30. Because this is a prospective injury, the plaintiff must demonstrate that the threatened injury is real, immediate and direct. Peterec-Tolino v. New York, 364 Fed.Appx. 708, 711, 2010 WL 445643, 1 (2d Cir. 2010). Cf. Halkin v. Helms, 690 F.2d 977, 1006 (D.C.Cir.1982)(where policy

9

In the two instances where the EEOC did not issue right-to-sue letters, as Fox‘s affidavit indicates, the CHRO neglected to forward the closure papers to the EEOC in one and the CHRO has yet to conclude its proceedings in the other. Page 34

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 35 of 39

or action rests on distant contingencies or upon an act of an official which may or may not occur, declaratory relief is inappropriate.). All the Plaintiff offers is speculation. The essential connection—how these decisions are binding on the Defendants and so the harm to the Plaintiff, although not now evident, is inevitable and will become palpable—is never found in the Second Amended Complaint. These past decisions to which the Plaintiff objects may or may not be accepted as persuasive by the Defendants or, more important, by the CHRO‘s human rights referees, who actually decide contested cases. The Court need not accept this type of faulty and wholly speculative assertion. None of the three human rights referees named as defendants in the Amended Complaint—Wilson, Bromley and Mount—has ever issued a decision involving the Plaintiff.10 Nor have they issued an opinion in any case interpreting CONN. GEN. STAT. § 46a-58 (a) to mean that the CHRO has the authority to enforce federal law. See Wilson, Bromley and Mount affidavits.

Nor does the Plaintiff make a contrary allegation even once in the thirty-five

paragraphs of its amended complaint. Neither the past non-binding adjudications11 nor the threat of future adverse adjudications put forth by the Plaintiff satisfies the Ex parte Young requirement of a present and ongoing violation of law. Again, the Plaintiff‘s claims are insubstantial. To ―ensure that the doctrine of

10

The CHRO only has three referees. See CONN. GEN. STAT. § 46a-57(a)(2)(E).

11

Under Connecticut law, ―it is for the courts, and not for administrative agencies, to expound and apply governing principles of law‖. (Internal quotation marks and citation omitted.) Szewczyk v. Dep't of Social Services, 275 Conn. 464, 474, 881 A.2d 259, 266 (2005). Nor would the decisions of previous hearing officers be binding on the current human rights referees. J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 369, 528 A.2d 786 (1987)(trial court cases do not establish binding precedent). Page 35

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 36 of 39

sovereign immunity remains meaningful‖; Idaho v. Coeur d‘Alene Tribe, 521 U.S. 269; the Court should dismiss the Second Amended Complaint.

VIII. THE AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER TITLE VII. The Plaintiff makes frequent references to purported violations of Title VII by the Defendants. See Second Amended Complaint, ¶¶ 1, 15-35. Presumably the Plaintiff bases its Title VII claim on the manner in which the CHRO processes complaints and not on a violation arising out of an employment relationship. The Second Amended Complaint states a claim under neither theory, however. This Circuit has previously considered and dismissed two variants of a claimed Title VII violation based on the processing of a complaint, because Title VII contains no right to an effective processing of a complaint by the CHRO or EEOC. 12 This Court‘s existing decisions speak with one voice against such lawsuits. Holt v. Continental Group, Inc., 631 F.Supp. 653, 657-59 (D.Conn.1985)(―Because Title VII does not create a federal right to an effective state investigation, plaintiff cannot assert a claim under section 1983 based solely upon the state defendants' failure to provide an effective state investigation.‖), aff‘d, 788 F.2d 3 (2d Cir.), cert. denied, 479 U.S. 839 (1986); Nadimi v. Brown, No. 3:99CV1305 (GLG), 2000 WL 133735 (D.Conn. Jan. 26, 2000)(―As to the CCHRO defendants, it is clear that the plaintiff has failed to state a claim upon which relief may be granted….Her claim against the CCHRO personnel is for somehow mishandling their investigation into her charge of discrimination. However, Title VII does not create a federal right to an effective state investigation.‖), aff‘d on other grounds, 8

12

The same rule governs cases under Title VIII. Marinoff v. U.S. Dep't of Housing and Urban Development, 892 F.Supp. 493 (S.D.N.Y.1995), aff'd, 78 F.3d 64 (2d Cir.1996)(holding that the Fair Housing Act does not provide an express nor an implied cause of action against HUD). Page 36

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 37 of 39

Fed.Appx. 122, 124-25, 2001 WL 533591, 2 (2d Cir. 2001). Cf. White v. Martin, 26 F.Supp.2d 389 (―Although plaintiff now seeks to characterize the CHRO defendants' actions as a ―policy,‖ what plaintiff is challenging is the CHRO's decision-making process and the decisions themselves.‖) Other courts agree. ―The underlying purpose of Title VII is to curtail employment discrimination, not to police the actions of governmental administrative agencies….Numerous courts have held that no cause of action exists against local governmental agencies for failing to process adequately a discrimination complaint….‖ Askew v. Human Rights Division, No. 97 Civ.1213 (DAB), 1998 WL 299943 (S.D.N.Y. June 9, 1998). ―There is no cause of action against the EEOC or a deferral agency under Title VII for the improper processing or investigation of a discrimination charge filed with the EEOC or a deferral agency.‖ Moore v. New Hanover County Government, No. No. 7:03–CV–195–DEV, 2004 WL 3266045, 6 (E.D.N.C. Aug. 13, 2004)(citing cases); Baba v. Japan Travel Bureau International, Inc., No. 94 Civ. 2171(SS), 1997 WL 801451, 1 (S.D.N.Y. Dec. 30, 1997)(―A mistake by either the EEOC or the [NY State Division of Human Rights] in reaching their determinations would not create subject matter jurisdiction in this Court.‖). Cf. Polk v. Kramarsky, 711 F.2d 505, 508 (2d Cir.)(―the New York Human Rights Law does not provide any remedy against the Division.‖), cert. denied, 464 U.S. 1000 (1983); Baba v. Japan Travel Bureau International, Inc., No. 94-CV2177 (SS), 1995 WL 35689, 1-2 (S.D.N.Y. 1995)(―Various courts have rejected the claim that a cause of action exists under Title VII against the EEOC for its improper investigation or processing of a discrimination charge….Except for the right given to the EEOC's own employees or former employees, Congress did not create an explicit right to sue the EEOC under Title VII.‖), aff‘d, 111 F.2d 2, 6 (2d Cir. 1997)(per curiam)(―Title VII provides no express or implied

Page 37

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 38 of 39

cause of action against the EEOC for claims that the EEOC failed properly to investigate or process an employment discrimination charge.‖); Ward v. E.E.O.C., 719 F.2d 311, 313 (9th Cir. 1983)(collecting cases)(―Congress did not intend to imply a private cause of action against the EEOC.‖). Nor does the Second Amended Complaint support a claim for relief from a discriminatory employment practice. ―Title VII is an employment law, available only to employees (or prospective employees) seeking redress for the unlawful employment practices of their employers.‖ Tadros v. Coleman, 717 F.Supp. 996, 1002 (S.D.N.Y.1989), aff'd, 898 F.2d 10 (2d Cir.), cert. denied, 498 U.S. 869 (1990)(cited in Kern v. City of Rochester, 93 F.3d 38, 44-45 (2d Cir.1996). The Second Amended Complaint claims no employer-employee relationship between the Plaintiff and either Defendant. ―The plaintiff‘s status as an ‗employee‘ and the defendant‘s status as an ‗employer‘ are jurisdictional requirements for recovery under Title VII.‖ Santerre v. AGIP Petroleum Co., Inc., 45 F. Supp. 2d 558, 572 (S.D. Tex. 1999); Arbaugh v. Y&H Corp., 380 F.3d 219, 231 (5th Cir. 2004). Nor does the Second Amended Complaint allege that the Plaintiff filed an EEOC charge, and this deprives the Court of jurisdiction. Butts v. City of New York Dep‘t of Housing Preservation & Dev., 990 F.2d 1397, 1401-02 (2d Cir. 1993); Bland v. State of New York, 263 F. Supp 2d 526, 546 (E.D. N.Y. 2003). The Second Amended Complaint fails to state a claim upon which can be granted under Title VII and should be dismissed pursuant to F.R.Civ.P. 12(b)(6).

IX. CONCLUSION. The Second Amended Complaint should be dismissed under Rules 12(b)(1) and 12(b)(6).

Page 38

Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 39 of 39

DEFENDANTS GARY H. COLLINS and TANYA HUGHES, in their official capacities

BY:

______________________________ Charles Krich, Esq. Comm. on Human Rights and Opportunities 25 Sigourney Street Hartford, CT 06106 Tel: (860) 541-3429 Fax: (860) 246-5265

CERTIFICATION I hereby certify that on September 27, 2013 a copy of this memorandum was filed electronically. Notice of this filing was sent by e-mail to all parties by operation of the Court‘s electronic filing system. Parties may access this filing through the Court‘s system. Michael J. Rose, Esquire Cindy Miller, Esquire Rose Kallor, LLP 750 Main Street, Suite 606 Hartford, CT 06103

_______________________________ (ct09055) Charles Krich, Esq. CHRO Principal Attorney Commission on Human Rights and Opportunities 25 Sigourney Street Hartford, CT 06106 Tel: (860) 541-3429 Fax: (860) 246-5265 Email: [email protected]

Page 39