Commission on Human Rights and Oppportunities v. Metro-North Commuter Railroad Company et al (2010)

MEMORANDUM OF DECISION

The commission on human rights and opportunities (CHRO), pursuant to General Statutes § 46a-94a, appeals from an October 16, 2008 ruling of a presiding human rights referee dismissing two complaints brought to the CHRO alleging discrimination by the defendant Metro-North Commuter Railroad Company (Metro-North).¹

The record shows that on June 22, 2006, Robert Vidal and Holger Ocana, employees of Metro-North, filed separate charges of discrimination with the CHRO, alleging that they were denied promotions in violation of the Connecticut Fair Employment Practices act, §§ 46a-58, 46a-60(a)(1), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.   Ocana also alleged a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623.

The CHRO investigated the charges and issued a finding of reasonable cause for both complainants.   After conciliation failed, the CHRO certified the cases to public hearing in keeping with General Statutes § 46a-84.   On August 16, 2008, Metro-North moved to dismiss both complaints based on § 16-344(a).

The referee's ruling on October 16, 2008, noted that Metro-North was a “wholly owned subsidiary of the Metropolitan Transportation Authority, organized under the laws of the State of New York. As a result of a compact between Connecticut and New York, codified in General Statutes §§ 16-343 and 16-344, [Metro-North] operates a commuter rail service in Connecticut and is exempted by Connecticut's legislature from state regulation, including exemption from Connecticut's anti-discrimination laws.”

The referee's conclusion was based upon Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 341, 348 A.2d 596 (1974), which found the exemption from state regulation to apply to the state Environmental Protection Act. The referee pointed out that the Greenwich court had interpreted § 16-344 to extend “beyond the narrow confines” of rates and schedules of service.   Further, the Greenwich dissent had declared that the majority's interpretation clearly made Connecticut's statutes forbidding discrimination in employment inapplicable to compact activities.

The referee concluded:  “In this case, [Metro-North] is in the business of providing mass transportation and railroad service pursuant to the Connecticut-New York compact and is the beneficiary of the exemption in § 16-344(a).   Its promotion of employees involved in its mass transportation and railroad service is within its routine and normal business operations.   Based upon [Greenwich ], the exemption in § 16-344(a) applies in [each] case.   Therefore, the [CHRO] lacks subject matter jurisdiction of [these claims] and the motion to dismiss is granted.”   The CHRO has brought an administrative appeal from the dismissal of each complaint and on March 5, 2009, on Metro-North's motion, these appeals were consolidated.²

The CHRO argues that while the exemption of § 16-344(a) (as interpreted in Greenwich ) might apply to pollution claims against Metro-North, the statute should not apply to complaints to the CHRO. It claims that the legislature would not intend the compact to prohibit complainants from taking advantage of anti-discrimination laws, that the exemption relates to transportation regulation, and that the legislative history supports its interpretation.

The court reviews the CHRO's claim under the Uniform Administrative Procedure Act, § 4-166 et seq., “which limits the scope of judicial review of administrative agency decisions ․ The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ․ affected by ․ [an] error of law.”   (Citations omitted.)  Menillo v. Connecticut Human Rights and Opportunities Commission, 47 Conn.App. 325, 331-32, 703 A.2d 1180 (1997).   See also Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 258, 967 A.2d 1199 (2009) (plaintiff has burden to prove that agency acted contrary to law).

Moreover, “deference” should be “accorded to an agency's interpretation ³ of a statutory term” when there has been previous appellate judicial scrutiny of the term.   See Longley v. State Employees Retirement Commission, 284 Conn. 149, 163, 931 A.2d 890 (2007);  see also Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 446 (2009) (“We have determined, therefore, that we will defer to an agency's interpretation of a statutory term ․ when that interpretation of the statute previously has been subjected to judicial scrutiny”).

As the referee noted in his decision, Connecticut and New York entered into a compact that provides for the operation of the Metro-North passenger service.   See § 16-343.  Section 16-344(a) provides:  “Mass transportation and railroad service operated pursuant to this compact shall be exempt from state regulation.”   This exemption provision came to our Supreme Court in Greenwich v. Connecticut Transportation Authority, supra, 166 Conn. 337.

Greenwich concerned a lawsuit brought by the town against the parent of Metro-North, under the provisions of the state Environmental Protection Act of 1971, seeking injunctive relief from pollution at the Cos Cob power plant which generated electric power for the railroad.   The defendant successfully received judgment in its favor by relying upon § 16-344.   On appeal, Greenwich argued that federal environmental laws should not be considered “state regulation,” and that § 16-344 should be read narrowly to refer only to the control or management of the railroad.

The Court rejected this argument:  “[Greenwich] ․ maintains that the correct interpretation of § 16-344 is that interstate railroad service operated under compacts is exempt only from control of management of the roads or the fixing of rates which may be charged by the service.   The obvious weakness in this argument is that no such limitation is expressed in § 16-344, whereas its predecessor statute ․ did expressly state that the service operated pursuant to the contract and was exempt from federal and state regulation of ‘rates and schedules of service.’   The obvious legislative intent was to expand the exemption beyond the narrow confines of those specific areas of regulation.”  Id., 345-46.

The majority had before it and did not adopt the position of the dissent:  “The broad interpretation of § 16-344 adopted by the majority is implausible as well as unsupported by the legislative history.   To be consistent the majority would have to concede that § 16-344 exempts compact activities from a veritable host of statutes.   For instance, the construction approved by the majority implies that statutes forbidding discrimination in employment do not apply to compact activities ․ I cannot believe that the General Assembly intended § 16-344 to have such bizarre results.”  Id., 349.

In light of the majority opinion in Greenwich, the CHRO cannot succeed in its consolidated appeals.   There is no need to address legislative history when § 16-344 is clear on its face that Metro-North activities are exempt from “state regulation.”   See Commission on Human Rights & Opportunities v. Litchfield Housing Authority, 117 Conn.App. 30, 44-45, 978 A.2d 136 (2009):  “The process of statutory interpretation involves a reasoned search for the intention of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratexual evidence of the meaning of the statute shall not be considered.”  (Citations omitted;  internal quotation marks omitted.) ⁴

Further, the court cannot find anything “bizarre” about the legislature intending a broad meaning for “state regulation” as applied to the functions of the CHRO. Section 16-344 merely codifies similar holdings regarding compacts that forbid the application of one state's discrimination laws.   See, e.g., Eastern Paralyzed Veterans v. Camden, 111 N.J. 389, 545 A.2d 127, 136 (1988):  “This state lacks the sovereign authority to direct the DRPA [compact agency] to cede jurisdiction to New Jersey.   Just as a State cannot be its own ultimate judge in a controversy with a sister state ․ so too a single state cannot dictate the policy of a bi-state agency.   We hold that the State of New Jersey cannot exercise unilateral jurisdiction over the DRPA;  to the extent that the judgment of the trial court involves a mandatory injunction to compel the DRPA to comply with the directives of the Department of Community Affairs [to construct an elevator for handicapped], that judgment must be vacated.”   (Bracket omitted;  citation omitted;  quotation marks omitted.)   See also Notte v. Merchants Mutual Insurance Co., 386 N.J.Super. 623, 902 A.2d 352 (2006) (statute remedying employer harassment “not legally cognizable” as regards compact entity).

Our General Assembly clearly was following the rule limiting one-state regulation of bi-state compact agencies.   Given this intent, to paraphrase our Supreme Court in Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 708, 802 A.2d 731 (2002):  “Although one may agree or disagree that these reasons provide a convincing basis for exempting [compact agencies] from the [CHRO statutes], we are not free to disregard the legislative policy determination upon which the exemption is founded.”

Indeed in Thibodeau, which concerned the “small employer” exception to the CHRO statutes, the Supreme Court acknowledged that some “otherwise meritorious ․ discrimination claims may go unremedied.”  Id., 709.   Here, by contrast, the complainants still retain a remedy through the EEOC.⁵ Moreover, the EEOC has the authority to award attorneys fees and costs and if a court case proceeds, there can be a jury trial.   See 42 U.S.C. § 2000e-5(k);  29 U.S.C. § 626(b);  42 U.S.C. § 1981a(c);  29 U.S.C. § 626(c)(2).   These are complainants' rights not allowed under the CHRO statutes.

The CHRO argues finally that its own “institutional interest in decisions affecting its decision-making ability” would be adversely affected by the referee's dismissal of these claims.   See Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 670, n.7, 855 A.2d 212 (2004).   The answer is that, given the specific language of § 16-344, the breadth of the Greenwich decision, the nature of the claims (failure to promote based on age and national origin),⁶ and the pending EEOC charges, the court has concluded that the referee has correctly dismissed the complaints herein.   Certainly future complaints filed with the CHRO that are distinguishable legally or factually are not subject to the holding of this administrative appeal.   Therefore the CHRO's own efforts to eliminate discrimination remain open in appropriate circumstances.

The administrative appeal is therefore dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The CHRO also named as defendants the CHRO acting though its referee and the complainants in two separate appeals of the referee's October 16, 2008 ruling dismissing the action.   The complainants did not appear and the referee is merely a nominal party..  FN1. The CHRO also named as defendants the CHRO acting though its referee and the complainants in two separate appeals of the referee's October 16, 2008 ruling dismissing the action.   The complainants did not appear and the referee is merely a nominal party.

FN2. The court finds that the CHRO is aggrieved, as required by § 4-183(a), by the order of dismissal entered by the human rights referee..  FN2. The court finds that the CHRO is aggrieved, as required by § 4-183(a), by the order of dismissal entered by the human rights referee.

FN3. In this instance the agency is appealing from a ruling of an agency referee.   Deference, if appropriate, should follow the ruling of the referee, not the agency staff that is prosecuting the claims of the complainants.   The referee is the designee of the CHRO commissioner under § 46a-84..  FN3. In this instance the agency is appealing from a ruling of an agency referee.   Deference, if appropriate, should follow the ruling of the referee, not the agency staff that is prosecuting the claims of the complainants.   The referee is the designee of the CHRO commissioner under § 46a-84.

FN4. Even if the court were to consult any existing legislative history for § 16-344, there is no specific discussion in the legislative proceedings of “state regulation.”   In addition, as the Greenwich court pointed out, supra, 166 Conn. 344, the provision prior to § 16-344 barred state regulation of the compact only as such regulation affected rates and schedules;  under § 16-344 all “state regulation” is barred..  FN4. Even if the court were to consult any existing legislative history for § 16-344, there is no specific discussion in the legislative proceedings of “state regulation.”   In addition, as the Greenwich court pointed out, supra, 166 Conn. 344, the provision prior to § 16-344 barred state regulation of the compact only as such regulation affected rates and schedules;  under § 16-344 all “state regulation” is barred.

FN5. The court has taken judicial notice of the EEOC letters of April 20, 2009 and May 1, 2009 indicating that the complainants have active cases before the EEOC..  FN5. The court has taken judicial notice of the EEOC letters of April 20, 2009 and May 1, 2009 indicating that the complainants have active cases before the EEOC.

FN6. These allegations may be pursued under both state and federal law.   They are not unique to Connecticut so that the plaintiffs are without a remedy through the EEOC..  FN6. These allegations may be pursued under both state and federal law.   They are not unique to Connecticut so that the plaintiffs are without a remedy through the EEOC.

Cohn, Henry S., J.