Lamberto Lucarelli v. Commission on Human Rights and Opportunities et al. (2011)

Memorandum of Decision

This is an action appealing the decision of the Commission on Human Rights and Opportunities decision to dismiss the complaints of the plaintiff against the town of Old Saybrook and the State of Connecticut, Chief States Attorney's office in which, in general, he alleged that he had been discriminated against on the basis of his Italian ancestry.   The matter came on for hearing before this court on June 9, 2011.

The record reveals that the following facts are important in resolving this matter.

1. The plaintiff is a gentleman whose ancestry is Italian.

2 The town of Old Saybrook encourages a kind of informal recycling program at the town transfer station in which residents bring their unwanted items and other residents may claim them for their own use.

3. Somebody discarded a toilet seat extender at the transfer station.   The plaintiff, in a visit to the transfer station, either expressed curiosity about or interest in taking ownership of this item in a conversation with one of the town employees operating the transfer station.

4. Sometime thereafter, the plaintiff reports seeing the toilet seat extender on the recycling table with the phrase “Save for Lamberto.   All your's (sic) Bert.” The plaintiff stated he had no interest in the item, however, it was several months before the toilet seat extender was removed from the view of those members of the public frequenting the transfer station.   The last known public appearance of the toilet seat extender was March 6, 2008.

5. The plaintiff perceived this to be a public slur upon his Italian ancestry and accused the town of Old Saybrook of maintaining an atmosphere of hostility towards those of Italian ancestry.

6. The plaintiff reported this matter to the local police complaining of a hate crime.   No perpetrator was located and the state's attorney declined to pursue the matter.

7. On October 29, 2008, the plaintiff submitted a document to the defendant CHRO alleging discrimination.   This submission met neither the statutory nor regulatory requirements to constitute a complaint CGSA § 46a–82a.   Consequently a CHRO employee assisted the plaintiff to put the complaint into an acceptable form.

This complaint against the Town of Old Saybrook was filed with the CHRO on December 9, 2008 and assigned Complaint No. 0940200.   A simultaneous complaint against the state attorney for failing to investigate his complaint of a hate crime was assigned Complaint No. 0940201.

9. Both complaints were referred for viability in a Merit Assessment Review.

10. On May 4, 2009, the Reviewer dismissed the complaint against Old Saybrook on the grounds that the plaintiff failed to state a claim for relief and finding that there was no reasonable possibility that investigating the complaint could result in a finding or reasonable cause.

11. The plaintiff requested reconsideration on May 11, 2009.   After finding that the complaint against Old Saybrook was untimely, as well, this request was denied.

12. On April 23, 2009, the complaint against the state attorney was dismissed by the MAR reviewer because the state attorney was exempt from CHRO jurisdiction.

13. On April 28, 2009, the plaintiff asked for reconsideration and the CHRO concluded that the original finding of a lack of jurisdiction was erroneous, however, the complaint failed to state a claim upon which relief could be granted and reconsideration was denied on April 7, 2010.

14. On April 14, 2010, the plaintiff filed the instant action.

This Court shall sustain the actions of the defendant CHRO for the following reasons.

I. The complaint against the Town of Old Saybrook is untimely.   The defendant CHRO is bound by the statutory time limitation that the legislature has established for the filing of complaints of discrimination.  Conn. Gen.Stat. § 46a–82(f) clearly provides that a discrimination complaint must be filed with the CHRO “within one hundred and eighty days after the alleged act of discrimination.”   Failure so to do deprives the CHRO of jurisdiction over even palpably clear claims of discrimination.   Even assuming that the facts alleged by the plaintiff in regard to the writing on the toilet seat extender can be classified as an ethnic slur,¹ the latest date upon which this toilet seal extender was in the public view was March 6, 2008, That triggered the 180–day time period in which to file the CHRO complaint.   That time period expired on Tuesday, September 2, 2008.   The plaintiff's first contact with the CHRO was on October 29, 2008 and even if this Court takes this defective filing as somehow tolling the statute of limitations, a total of 237 days would have expired, well outside the allowable 180.   In reality, the date upon which the plaintiff actually perfected his filing of a complaint was December 9, 2008, a total of 278 days.   The CHRO was clearly correct when it rejected his complaint against the town of Old Saybrook on that ground and this is completely dispositive of the plaintiff's appeal of the dismissal of the complaint against Old Saybrook.

II. While the complaint against the state's attorneys is not untimely, it does fail to state a claim upon which relief may be granted.   The plaintiff took his complaints of ethnic discrimination to the police department in the town of Old Saybrook.   They were unable to find a person who was responsible for the actions in connection with the toilet seat extender.   He also approached the state's attorney office in the Judicial District of Middletown.   Ultimately, the state's attorney declined to prosecute, investigate further or to order the state police to conduct further investigation and considered the matter closed.   At this point the plaintiff filed a timely complaint of discrimination with the CHRO against the state's attorney.   This complaint was referred for MAR and the reviewer concluded that the plaintiff had failed to state a claim upon which relief may be granted.   This court agrees.   It must be noted that the defendant state's attorney asserts immunity from liability as a basis for dismissal of the plaintiff's appeal.   The defendant CHRO, opposes this basis.   In resolving this appeal, this Court declines to decide the case on that basis as there is another basis upon which the complaint may be dismissed so there is no need to reach the weightier question of the immunity of the state's attorney.

Based upon the entirety of the record before this court it appears that the thrust of the plaintiff's complaint against the state's attorney is that he did not order the police to conduct further and more in depth investigation to discover who was responsible for placing the toilet seat extender in public view and that he failed to find someone to prosecute for what the plaintiff calls a hate crime.   First, it is not altogether whether a crime was even committed in this scenario.   Second, the state attorney is vested with a wide range of discretion as to how to proceed in a criminal prosecution;  i.e. whether to bring charges at all, what sentence to seek, if any, how to resolve a matter, to nolle or to dismiss.   Third, the complaint presupposes that the state's attorney have the power to even order the police to take investigatory action.   The states attorneys are under the Department of Criminal Justice and the state police are under the Department of Public Safety.   The prosecutors can recommend, request, advise and suggest courses of action for the state police, but these are not mandatory for the state police to obey.   For all of these reasons, it is clear that there is substantial evidence in the record to support the actions of the CHRO in dismissing these complaints.   There is nothing in the record nor presented in argument before this court to conclude that the CHRO decision was “unreasonable, arbitrary, illegal, or an abuse of ․ discretion.”  CGS § 4–183(j).  Billings v. CHRO, 18 Conn.App. 241 (1989).   Consequently it is affirmed.

It is therefore, so Ordered,

S.T. Fuger, Jr., Judge

FOOTNOTES

FN1. To characterize the incident in this case as an ethnic slur takes an enormous amount of twisted logic and interpretation.   The most likely interpretation of the words would suggest that the transfer station employees were under the mistaken belief that the plaintiff wanted the toilet seat extender for his own use and as an accommodation to prevent someone else from taking the item, marked it as reserved for him.   It is hard to conceive of the incident being anything other than that.   However, if it was intended to be an ethnic slur, the subtlety employed in making that remark is so pervasive that this Court doubts whether any person who viewed the “offending” toilet seat extender would so conclude.   Consequently, while not necessary to resolve the appeal of the dismissal of the untimely complaint against the Town of Old Saybrook, the Court agrees with the MAR assessment that this complaint failed to state a claim upon which relief could be granted..  FN1. To characterize the incident in this case as an ethnic slur takes an enormous amount of twisted logic and interpretation.   The most likely interpretation of the words would suggest that the transfer station employees were under the mistaken belief that the plaintiff wanted the toilet seat extender for his own use and as an accommodation to prevent someone else from taking the item, marked it as reserved for him.   It is hard to conceive of the incident being anything other than that.   However, if it was intended to be an ethnic slur, the subtlety employed in making that remark is so pervasive that this Court doubts whether any person who viewed the “offending” toilet seat extender would so conclude.   Consequently, while not necessary to resolve the appeal of the dismissal of the untimely complaint against the Town of Old Saybrook, the Court agrees with the MAR assessment that this complaint failed to state a claim upon which relief could be granted.

Fuger, S.T., J.