WAGNER, J.,JTR.
The plaintiff, Phyllis Brooks, commenced this four-count employment discrimination action on February 19, 2009, complaining that the defendant violated General Statutes § 46a-60(a)(1) by discriminating against her on the basis of her gender (count one) and physical disability (count two). In count three, she alleges that the defendant's conduct constituted retaliation in violation of General Statutes § 46a-60(a)(4). Finally, in count four, the plaintiff alleges that the defendant violated General Statutes § 31-290a by retaliating against her for exercising her right under the Workers' Compensation Act.
Prior to commencing the present action, the plaintiff filed an affidavit of illegal discriminatory practice with the Connecticut commission on human rights and opportunities (CHRO) on November 5, 2007. In this original CHRO complaint, the plaintiff stated that "I was subjected to unequal terms and conditions of employment and terminated on or about May 15, 2007 and I believe my sex (female) was in part a factor in this action." She claimed that the defendant violated the following statutes: General Statutes §§ 46a-58(a), 46a-60(a)(4), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 200e and the Civil Rights Act of 1991. In the narrative portion of the original complaint, the plaintiff provided facts supporting a claim of gender discrimination. Although she did not provide similar facts to support a claim of physical disability discrimination, she did state that the defendant "did not allow me any assistance on my routes."
On December 3, 2008, the plaintiff filed an amended complaint with the CHRO to include a claim of disability discrimination. (CHRO complaint, 12/3/2008, ¶ 20.) The plaintiff stated that she suffered injuries to her ankle and, later, to her right knee and hip in the course of her employment. Although her doctor imposed medical restrictions on her following these injuries, she claimed that the defendant failed to assist her in performing her duties.
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The defendant answered the amended CHRO complaint on December 22, 2008, and filed a special defense that the CHRO lacked jurisdiction over the new allegations in the amended complaint because these allegations were untimely. Nonetheless, the CHRO released jurisdiction of the plaintiff's claims on January 8, 2009, and authorized the plaintiff to file the present discrimination action.
On July 7, 2009, the defendant filed this motion to dismiss counts two, three and four of the complaint claiming lack of jurisdiction. The parties were heard at short calendar on March 22, 2010.
— I —
The defendant argues that counts two and three, as they relate to physical disability discrimination and retaliation, should be dismissed because they were included in an amended CHRO complaint and do not relate back to the original CHRO complaint. Although the parties agree that a CHRO complaint can be amended pursuant to § 46a-54-38a of the Regulations of Connecticut State Agencies, the defendant argues that the plaintiff did not satisfy any of the grounds for amendment provided by that regulation.
Section 46a-54-38a(b) of the Regulations of Connecticut State Agencies provides: "A complaint may be amended to restate its contents on a commission complaint form, to cure technical defects and omissions or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts that constitute discriminatory practices which are reasonably like or related to or growing out of the allegations of the original complaint, including those facts discovered during the investigation of the original complaint, and including additional protected class status or naming additional respondents who have had notice of the complaint, relate back to the date the complaint was first received."
The plaintiff's amended CHRO complaint alleges additional acts constituting discriminatory practices that are "reasonably like or related to or growing out of the allegations of the original complaint" and include "additional protected class status." The original complaint claims that the defendant violated, inter alia, General Statutes §§ 46a-58(a) and 46a-60(a)(4). Both of these statutes penalize discrimination on the basis of both gender and physical disability. Thus, the plaintiff's amended complaint, which alleges the additional protected class status of physical disability, arises from the statutory violations alleged in the original complaint. Furthermore, the original complaint alleges, without elaboration, that the defendant "did not allow CT Page 11397 [the plaintiff] any assistance on [her] routes." The amended complaint clarifies this allegation by explaining that the plaintiff needs assistance on her routes because of a physical disability. Because the allegations of the amended complaint satisfy the requirements of § 46a-54-38a of the Regulations of Connecticut State Agencies the plaintiff's protected class status of physical disability "relates back" to the date when the complaint was first received.
— II —
The defendant argues that count four, which alleges that the defendant retaliated against the plaintiff for filing a workers' compensation claim in violation of § 31-290a, should be dismissed because it was filed outside the one-year statute of limitations for bringing a claim under the Workers' Compensation Act. The plaintiff argues that the three-year statue of limitations for intentional tort claims under § 52-577 should apply.
General Statutes § 31-290a(a) provides: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
Section 31-290a does not contain a statute of limitations, nor have the parties provided appellate-level authority on the issue. Several trial courts hold that the three-year statute of limitations for intentional tort claims applies to § 31-290a claims. Because "§ 31-290a is essentially a codification of the Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) holding [which recognized the common law cause of action for the intentional tort of retaliatory discharge], in the context of workers' compensation," the appropriate statute of limitations is provided by § 52-577. Morehouse v. SNET Systems, Inc., Superior Court, judicial district of New Haven, Docket No., 329768 (December 9, 1992, Zoarski, J.) ( 8 C.S.C.R. 66) [ 8 Conn. L. Rptr. 51]. See also DeOliveira v. Ross Roberts, Inc., Superior Court, judicial district of Fairfield, Docket No., CV 96-0329389 (September 4, 1998, Nadeau, J.); Hoopes v. First National Supermarkets, Inc., Superior Court, judicial district of New Britain, Docket No., 93-0456915 (October 6, 1995, Fineberg, J.); Frederick v. Schrier Bros., Inc., Superior CT Page 11398 Court, judicial district of Fairfield, Docket No. CV 93-302860 (May 20, 1994, Fuller, J.).
Because the plaintiff's claims were brought within the three-year statute of limitations provided by § 52-577, they are timely.
Motion to dismiss denied.
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