Bruce Fondelheit v. Windham Pepsi–Cola Bottling Company, Inc. et al. (2013)

MEMORANDUM OF DECISION

This is an administrative appeal brought by the plaintiff, Bruce Fondelheit, challenging the dismissal of his employment discrimination complaint by the Commission of Human Rights and Opportunities (“CHRO”) for lack of reasonable cause.   The plaintiff raises three separate issues on appeal:  (1) whether the tape recordings, filed in lieu of a transcript, of the CHRO fact-finding hearing are of such poor quality that the record is inadequate for review, (2) whether the CHRO improperly prohibited the plaintiff from using his laptop at the hearing, and (3) whether the CHRO improperly permitted an attorney who is not admitted in Connecticut to represent the defendant at the fact-finding conference.¹

For the reasons set forth below, the court concludes that the record is adequate for review, because the tape recording is intelligible and the recording device was never improperly switched off.   The court also concludes that the plaintiff waived any claim concerning the CHRO's refusal to allow him to use his laptop at the hearing and the presence of an out-of-state attorney, because he failed to preserve these objections on the record.   Finally, the court concludes that the CHRO's regulations do not prohibit an out-of-state attorney from appearing at a fact-finding conference, and that even if such an appearance were prohibited, it did not prejudice the plaintiff.

I. FACTS AND PROCEDURAL HISTORY

The record discloses the following facts and procedural history.   The plaintiff, Bruce Fondelheit, began working for defendant Windham Pepsi–Cola Bottling Company, Inc. (“Windham Pepsi–Cola”) as a delivery driver in March 1987.   The plaintiff was promoted to a driver sales position in August 1991 and up to a sales merchandiser position in October 1998.   The plaintiff's primary duty at this position was to keep stores on a specific route stocked with Pepsi products.   On March 19, 2010, the plaintiff received “written notice of five warnings for ‘substandard work.’  “ On November 16, 2010, a supervisor removed the plaintiff from his route and demoted him from sales merchandiser to utility driver.

The plaintiff filed an affidavit of illegal discriminatory practice on March 16, 2011.   The affidavit alleged that Windham Pepsi–Cola discriminated against the plaintiff based on account of his age, by demoting him and assigning a younger man in his place.   On May 31, 2012, the plaintiff amended his complaint to include an allegation that the defendant discriminated against him on the basis of his asthma.

The CHRO held a fact-finding conference on November 7, 2012 pursuant to General Statutes § 46a–83(d).  After the fact-finding conference, and after interviewing additional witnesses, the CHRO Investigator did not “find any pattern of adverse employment action because of complainant's age,” nor “any correlation between respondent's employment action and complainant's physical disability.”   R., p. 47–48.   Accordingly, he dismissed the plaintiff's complaint on the merits for lack of reasonable cause.   The plaintiff appealed the CHRO's finding of no reasonable cause to Superior Court.   The defendant CHRO sought leave to file recorded tapes of the hearing in lieu of transcripts, and this court granted that motion.

II. ANALYSIS

A. The record is adequate for review.

The first issue is whether the tape recordings of the CHRO hearing provided an adequate record for review.   The CHRO sought leave to file the tapes in lieu of a transcript to avoid the cost of transcription.   This court granted that motion and received two cassette tapes of the CHRO hearing.

The plaintiff argues that the record is inadequate because the tapes “are frequently unintelligible” and “[i]t appears, moreover, that the recording device was periodically switched off.”   He demands an evidentiary hearing before this court that would permit him “to supplement the record by presenting testimony concerning the events which compose the actual history of the administrative proceedings.” ²

This court has listened to the tapes in their entirety, and finds that the plaintiff has exaggerated their deficiencies.   They are not “unintelligible,” even if, at times, they are not crystal clear.   A listener may on occasion strain to hear the testimony, or have to turn the volume up all the way to understand the more soft-spoken individuals who testified at the hearing.   Nevertheless, the testimony is arguably “unintelligible” in only a few brief instances, and this minor deficiency is not enough to render the entire record inadequate for review.

The plaintiff's contention “that the recording device was periodically switched off,” is likewise meritless.   This court finds that the recording device was turned off only for legitimate reasons;  for example, to flip the tape over, commence a bathroom break, or to instruct the plaintiff's wife to stop interrupting the proceedings.

“If alleged irregularities in procedure before the agency are not shown in the record ․ proof limited thereto may be taken in the court.”  General Statutes § 4–183(i).  “An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when the record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear evidence.”  Leib v. Bd. of Examiners for Nursing, 177 Conn. 78, 92, 411 A.2d 42 (1979) (quoting Tarasovic v. Zoning Comm'n, 147 Conn. 65, 69, 157 A.2d 103 (1959)).

In this case, the irregularities alleged by the plaintiff (to the extent that he preserved any of them) can be evaluated from the recordings.   This court has listened to the tapes to assess how frequently the testimony is unintelligible, and to determine whether gaps indicate that the recording device was improperly switched off.   An evidentiary hearing therefore is not necessary to determine “the actual history of the administrative proceedings.”   The plaintiff has not even alleged which specific parts of the testimony are missing or inaudible,³ or how this might affect the merits of his appeal.   Accordingly, this court finds that the record is adequate for review and the plaintiff's demand for an evidentiary hearing is denied.

2. The plaintiff failed to preserve his claim concerning the CHRO's denying him the use of his laptop at the fact-finding conference.

The plaintiff next claims that the CHRO abused its discretion, violated basic principles of natural justice, and denied him procedural due process by prohibiting him from using his laptop computer at the hearing.   This alleged order by the CHRO, however, is not contained in the record before this court.   The plaintiff's laptop is not mentioned anywhere in the tapes of the hearing.

This appeal is confined to the record.  General Statutes § 4–183(i).   In order to preserve this issue on appeal, the plaintiff was obligated to place on the record his request to use the laptop and what limitations, if any, the fact-finder placed on his use of the device.⁴  Indeed, the record is silent as to whether the fact-finder simply prohibited the plaintiff from testifying directly from the laptop, which would seem to be a reasonable exercise of discretion, or whether he was prohibited from using it for any purpose whatsoever.   Such facts are crucial to question of whether the agency acted improperly in this regard.   Consequently, by failing to preserve this issue on the record, the plaintiff has waived the claim.

3. The plaintiff cannot prevail on his claim that the CHRO improperly permitted an attorney who is not licensed in Connecticut to represent Windham Pepsi Cola at the fact-finding conference.

The plaintiff next asserts that the CHRO improperly permitted Windham Pepsi–Cola to be represented by an attorney who is not licensed in Connecticut.   The plaintiff contends, without explanation, that he was “brutally disadvantaged” by this fact.   This assertion is meritless for a number of reasons.

The record discloses that Attorney Phillip Leader of Worcestor, Massachusetts represented Windham Pepsi Cola Bottling Co. in this matter before the CHRO. There is nothing in the record to indicate whether Attorney Leader has been admitted in Connecticut.

Despite the plaintiff's contention that he objected to Attorney Leader's participation as an attorney before the Commission and that his objection was overruled, this objection was not made on the record.⁵  As noted above, this appeal is statutorily limited to the record of the agency below.   General Statutes § 4–183(i).   In order to preserve this issue, the plaintiff was obligated to place his objection on the record, including any facts necessary to support the claim.   By failing to do so, the plaintiff has waived this claim.

Moreover, even if the plaintiff had preserved this issue on appeal, attorneys who are not licensed in Connecticut are not prohibited from participating in fact-finding conferences held pursuant to General Statutes § 46a–83(d).  Although Regulations of State Agencies § 46a–54–15a ⁶ requires that counsel appearing in contested cases before the CHRO be admitted in Connecticut, the regulations impose no similar requirements for § 46a–83(d) fact-finding conferences, which are specifically excluded from the definition of a “contested case.” ⁷  See Regulations of State Agencies § 46a–54–15a.

Finally, the plaintiff fails to show how he was prejudiced at the fact-finding conference by the participation of an attorney who is not licensed in Connecticut.   The plaintiff may have been strategically disadvantaged by choosing to represent himself at the fact-finding conference, but he would have experienced the same strategic disadvantage had Windham Pepsi–Cola been represented by an attorney admitted in Connecticut.   Indeed, the plaintiff arguably could have been more disadvantaged if he had faced a Connecticut licensed attorney, because such an attorney may be more familiar with Connecticut law and CHRO practice.⁸

III. CONCLUSION

For the reasons set forth above, the plaintiff cannot prevail in this appeal and the decision of the CHRO is affirmed.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. The plaintiff did not brief a number of claims of alleged error that are listed in his complaint.   Counsel for the plaintiff conceded at argument that these claims have been abandoned..  FN1. The plaintiff did not brief a number of claims of alleged error that are listed in his complaint.   Counsel for the plaintiff conceded at argument that these claims have been abandoned.

FN2. Astoundingly, at oral argument, when the court attempted to ask the plaintiff's counsel specific questions about the tape recording, she conceded that she could not answer the court's questions because she had not personally listened to the tapes.   Thus, the court is left with the plaintiff's bald assertions in his brief, and the court's own review of the tapes..  FN2. Astoundingly, at oral argument, when the court attempted to ask the plaintiff's counsel specific questions about the tape recording, she conceded that she could not answer the court's questions because she had not personally listened to the tapes.   Thus, the court is left with the plaintiff's bald assertions in his brief, and the court's own review of the tapes.

FN3. The plaintiff also does not appear to argue that the alleged deficiencies in the recording relate to, or would otherwise memorialize, CHRO's prohibition of his use of his laptop computer or the its allowance of an appearance by an attorney who is not licensed in Connecticut on behalf of Windham Pepsi–Cola..  FN3. The plaintiff also does not appear to argue that the alleged deficiencies in the recording relate to, or would otherwise memorialize, CHRO's prohibition of his use of his laptop computer or the its allowance of an appearance by an attorney who is not licensed in Connecticut on behalf of Windham Pepsi–Cola.

FN4. The plaintiff does not contend that the CHRO prevented him from making a record of this issue..  FN4. The plaintiff does not contend that the CHRO prevented him from making a record of this issue.

FN5. Again, the plaintiff has not asserted that he was improperly prevented from making a record of this issue and the plaintiff's brief contains no citation to the record to assist the court in determining whether such an objection was made..  FN5. Again, the plaintiff has not asserted that he was improperly prevented from making a record of this issue and the plaintiff's brief contains no citation to the record to assist the court in determining whether such an objection was made.

FN6. Regulations of Connecticut State Agencies § 46a–54–15a(a) provides in relevant part:  “[c]ounsel appearing in contested case proceedings ․ shall be duly admitted to practice law in the state of Connecticut.”.  FN6. Regulations of Connecticut State Agencies § 46a–54–15a(a) provides in relevant part:  “[c]ounsel appearing in contested case proceedings ․ shall be duly admitted to practice law in the state of Connecticut.”

FN7. See Regulations of Connecticut State Agencies § 46a–54–55a(g) ( “Both the complainant and the respondent may have an attorney or other person present at the fact-finding conference”)..  FN7. See Regulations of Connecticut State Agencies § 46a–54–55a(g) ( “Both the complainant and the respondent may have an attorney or other person present at the fact-finding conference”).

FN8. Because the record is inadequate to review this claim, and the plaintiff suffered no prejudice, it is not necessary to reach the interesting question of whether the CHRO may authorize an attorney who is not licensed in Connecticut to practice law at the agency without violating the separation of powers doctrine..  FN8. Because the record is inadequate to review this claim, and the plaintiff suffered no prejudice, it is not necessary to reach the interesting question of whether the CHRO may authorize an attorney who is not licensed in Connecticut to practice law at the agency without violating the separation of powers doctrine.

Prescott, Eliot D., J.