Jason Bissonnette v. Highland Park Market, Inc. (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

In this unlawful termination of employment action after plaintiff suffered a work related disability, the defendant filed an answer, three special defenses and a counterclaim for vexations litigation.   The defendant, in its counterclaim, alleges that the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO) asserting that the defendant's termination of the plaintiff amounted to discrimination based on his disability.   The CHRO dismissed the plaintiff's complaint on July 26, 2010, and released jurisdiction of the claim.   The defendant alleges that the plaintiff lacked probable cause in filing a complaint with the CHRO and that the plaintiff filed his complaint with malice and with the intent to force the defendant to pay him money beyond the unemployment compensation he was entitled to.

On December 17, 2010, the plaintiff filed this motion to dismiss the defendant's counterclaim on the ground that the court lacks subject matter jurisdiction because the defendant's counterclaim is not ripe as no proceeding has terminated in its favor.

-I-

The requirements for maintaining a suit for vexatious litigation are well established.   A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint.   To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor ․ Thus, for a vexatious litigation claim to be ripe for adjudication, the party must allege, among other facts, that the allegedly vexatious litigation has terminated in its favor.  Keller v. Beckenstein, 122 Conn.App. 438, 443–44, 998 A.2d 838, cert. granted in part, 298 Conn. 291, 4 A.3d 1227 (2010).

In its counterclaim, the defendant does not allege that the CHRO proceeding terminated in its favor.   Rather, the defendant alleges:  “By letter dated July 26, 2010 CHRO dismissed Mr. Bissonnette's complaint and released jurisdiction of the claim.   Mr. Bissonnette thereafter filed this lawsuit.”   Although the defendant alleges that the plaintiff acted with malice and that he lacked probable cause to file his suit, the defendant has not alleged that the CHRO proceeding terminated in its favor.   Further, the CHRO's release of jurisdiction over the plaintiff's complaint left the plaintiff the right to bring his discrimination claim in Superior Court.  General Statutes § 46a–101(a) states:  “No action may be brought in accordance with § 46a–100 unless the complainant has received a release from the commission in accordance with the provisions of this section.”  General Statutes § 46a–100 provides, in relevant part:  “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities ․ and who has obtained a release from the commission ․ may also bring an action in the Superior Court.”   General Statutes § 46a–101(d) states:  “Upon granting a release, the commission shall dismiss or otherwise administratively dispose of the discriminatory practice complaint ․”

-II-

In the present case, upon the CHRO's finding in the merit assessment review that there was a reasonable possibility that an investigation would result in a finding of reasonable cause and obtaining a release of jurisdiction from the CHRO, the plaintiff acquired the right to file his discrimination claims in this Court.   See General Statutes § 46a–101(a).   The CHRO's release of jurisdiction to the plaintiff precludes the defendant from establishing a required element of its vexatious litigation counterclaim, that the dismissal of the CHRO action constitutes a termination in its favor.   Accordingly, defendant's vexatious litigation counterclaim is not ripe for adjudication.   Keller v. Beckenstein, supra, 122 Conn.App. 443–44.

Plaintiff's motion to dismiss the defendant's counterclaim is granted.

Wagner, J., JTR

Wagner, Jerry, J.T.R.