Hinde v. Specialized Education of Connecticut, Inc. , 147 Conn. App. 730 ( 2014 )

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KIM HINDE v. SPECIALIZED EDUCATION OF
CONNECTICUT, INC.
(AC 35265)
Lavine, Robinson and Alvord, Js.*
Argued October 9, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of New
Haven at Meriden, J. Fischer, J.)
Katrena Engstrom, with whom, on the brief, was
John R. Williams, for the appellant (plaintiff).
Sandra Rachel Stanfield, for the appellee
(defendant).
Opinion
ROBINSON, J. The plaintiff, Kim Hinde, appeals from
the trial court’s judgment dismissing her action for fail-
ure to exhaust her administrative remedies against the
defendant, Specialized Education of Connecticut, Inc.,
before filing her employment discrimination action
directly with the Superior Court. The plaintiff claims
that the court erred by (1) misinterpreting a prior order
dismissing her original complaint, (2) failing to make
findings as to her arguments of estoppel and alter ego,
and (3) concluding that she failed to exhaust her admin-
istrative remedies with respect to both her cause of
action pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Con-
necticut Fair Employment Practices Act, General Stat-
utes § 46a-51 et seq. (CFEPA). We affirm the trial court’s
judgment of dismissal.
The record reveals the following facts and procedural
history necessary to our resolution of the plaintiff’s
appeal. The plaintiff, a teaching assistant at High Road
School in Wallingford, filed a complaint and charge of
discrimination with the Commission on Human Rights
and Opportunities (commission) against Specialized
Education Services, Inc. (SESI), in March, 2011, alleging
that, because of her gender, she had been sexually hara-
ssed and subjected to a hostile work environment. After
a mandatory mediation conference between the plain-
tiff and SESI, the plaintiff received a release of jurisdic-
tion in December, 2011, to file an action against SESI
in the Superior Court.
On February 24, 2012, the plaintiff filed her original
complaint (February, 2012 complaint) in the New Haven
Superior Court. When filing that complaint, the plaintiff
listed ‘‘Specialized Student Education Services, Inc.,’’
as the defendant on the summons and caption of the
complaint, but named ‘‘Specialized Education of Con-
necticut (‘SESI’)’’ as the defendant in the body of the
complaint.1 The plaintiff referred to the defendant as
SESI throughout the entire complaint and served SESI
with the complaint and summons.2
On April 12, 2012, the plaintiff filed a motion to cor-
rect the caption, requesting that the caption list ‘‘Spe-
cialized Education of Connecticut, Inc.,’’ as the
defendant. The defendant filed an objection to the
motion to correct the caption, stating that it was not
proper to substitute an entity that had not been served
properly. The court, Silbert, J., denied the plaintiff’s
motion.
SESI then filed a motion to dismiss, claiming lack
of personal jurisdiction. It argued that there was no
personal jurisdiction for the court to hear the case
because the plaintiff was not an employee of SESI,
but rather an employee of the defendant, which was a
distinct and separate entity, and was not named as a
defendant in the February, 2012 complaint. SESI sup-
ported its motion with an affidavit from Nancy Kelly,
Director of Human Resources for SESI, who averred
that the defendant and SESI were separate, independent
entities, and that, at all times pertinent to the complaint,
the plaintiff was not an employee of SESI.
The plaintiff filed an objection to the motion to dis-
miss, arguing that SESI was the parent corporation of
the defendant, and that SESI had represented itself to
the plaintiff as her employer. Accordingly, the plaintiff
argued that SESI had waived the issue of personal juris-
diction, or, alternatively, that SESI should be estopped
from claiming that it was not the plaintiff’s employer.3
The plaintiff supported her objection with administra-
tive paperwork she had in her possession bearing
SESI’s logo.4
After a hearing held on May 21, 2012, the court, Frech-
ette, J., rejected SESI’s claim of lack of personal juris-
diction, reasoning that SESI should have brought its
motion to dismiss under a claim of lack of subject
matter jurisdiction. Accordingly, the court ordered sup-
plemental briefing on this issue. The court also ordered
supplemental briefing on how the plaintiff’s arguments
of waiver and estoppel would apply to a motion to
dismiss grounded in lack of subject matter jurisdiction.
SESI filed a supplemental brief and affidavit in support
of its motion to dismiss addressing those issues. An
affidavit from Brooke Violante, the defendant’s Chief
School Director, was attached thereto, attesting that
the defendant and SESI were separate entities, and that
the plaintiff was an employee of the defendant for all
times relevant to the plaintiff’s complaint. The plaintiff
did not file a supplemental brief, and neither party
requested an evidentiary hearing.5 The court granted
the motion to dismiss on September 24, 2012, after
finding that ‘‘Specialized Student Education Services,
Inc.,’’6 presented ‘‘uncontroverted evidence via affidavit
that it was not the employer of the plaintiff.’’ The plain-
tiff did not appeal from that order, and neither party
moved for an articulation.7
On October 11, 2012, the plaintiff filed the present
action against the defendant in the Meriden Superior
Court.8 The defendant then filed a motion to dismiss
claiming that, pursuant to CFEPA and Title VII, the
plaintiff failed to exhaust her administrative remedies
against the defendant prior to filing the action in the
Superior Court. The plaintiff filed an opposition to the
motion to dismiss to which the defendant replied. The
plaintiff argued that the exhaustion requirement should
be set aside by the court under the doctrines of waiver
and estoppel because SESI was the alter ego of the
defendant, and, therefore, the defendant was aware of,
and had participated in, the proceedings before the
commission. The matter was heard on short calendar
on December 10, 2012. Again, neither party requested
an evidentiary hearing. In its December 12, 2012 memo-
randum of decision, the court, J. Fischer, J., noted that
there already was a judicial determination by Judge
Frechette that SESI was not the plaintiff’s employer,
and that the defendant and SESI were separate entities.
Accordingly, the court concluded that the plaintiff failed
to exhaust her administrative remedies as to the defen-
dant and dismissed the plaintiff’s action. This appeal
followed.
We begin by setting forth our standard of review. ‘‘In
an appeal from the granting of a motion to dismiss on
the ground of subject matter jurisdiction, this court’s
review is plenary. A determination regarding a trial
court’s subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Chayoon v. Sherlock, 89
Conn. App. 821, 825–26, 877 A.2d 4, cert. denied, 276
Conn. 913, 888 A.2d 83 (2005), cert. denied, 547 U.S.
1138, 126 S. Ct. 2042, 164 L. Ed. 2d 797 (2006).
I
The plaintiff claims that the court erred in its interpre-
tation of Judge Frechette’s order granting SESI’s motion
to dismiss the February, 2012 complaint. The plaintiff
argues that Judge Frechette dismissed the claims
against Specialized Student Education Services, Inc.,
not SESI, and that Judge Frechette did so because no
such corporation existed, and because the plaintiff’s
counsel acknowledged that listing Specialized Student
Education Services, Inc., as the defendant was a misno-
mer. Additionally, the plaintiff contends that the court
erred in concluding that Judge Frechette had found
the defendant and SESI to be separate entities. We do
not agree.
‘‘Because [t]he construction of a judgment is a ques-
tion of law for the court . . . our review of the . . .
claim is plenary. As a general rule, judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the judgment.
. . . The interpretation of a judgment may involve the
circumstances surrounding the making of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole.’’ (Citation omitted; internal quotation marks
omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn.
69, 91–92, 952 A.2d 1 (2008).
Judge Frechette specifically found that ‘‘Specialized
Student Education Services, Inc., has submitted uncon-
troverted evidence via affidavit that it was not the
employer of the plaintiff. (See affidavit of Nancy Kelly,
attached to [the] motion to dismiss.) The plaintiff did
not dispute at oral argument that she sued the incorrect
entity, and that [it] was not her employer.’’ The plaintiff
argues that this is a finding that Specialized Student
Education Services, Inc.—an entity that the plaintiff
concedes does not exist—is not the plaintiff’s employer,
and therefore, that it is an order dismissing the plaintiff’s
February, 2012 complaint against Specialized Student
Education Services, Inc. Additionally, the plaintiff
argues that there is no finding by Judge Frechette in
his order that SESI and the defendant are separate and
independent entities. The defendant argues that this is
a finding that SESI—the party that the plaintiff actually
served, that appeared in court and that submitted affida-
vits—is not the plaintiff’s employer, and therefore, that
it is an order dismissing the plaintiff’s complaint against
SESI. The defendant also argues that it is implicit in
Judge Frechette’s finding that he rejected the plaintiff’s
claim that SESI was the alter ego of the defendant, and
therefore, that it is a finding that SESI and the defendant
are separate and independent entities. Although Judge
Frechette’s order did not explicitly dismiss the com-
plaint against SESI or find that the defendant and SESI
are two separate entities, the record supports this con-
clusion.
We first address the plaintiff’s argument that Judge
Frechette’s order finds that Specialized Student Educa-
tion Services, Inc., was not the plaintiff’s employer.
At the September 24, 2012, hearing, Judge Frechette
acknowledged that Specialized Student Education Ser-
vices, Inc., was a misnomer on the summons for SESI.9
Additionally, the record reveals that SESI was the entity
that was served by the plaintiff, that responded to the
complaint, that appeared in court and that submitted
an affidavit by Kelly. Thus, Judge Frechette’s reference
to the filing of Kelly’s affidavit in the order supports
the conclusion that his finding pertained to SESI as it
was SESI that submitted evidence via affidavit to the
court. We therefore construe Judge Frechette’s refer-
ence in his order to Specialized Student Education Ser-
vices Inc., as referring to SESI, and, accordingly, a
finding that SESI is not the plaintiff’s employer.
As for the plaintiff’s argument that the order does
not find that the defendant and SESI are separate enti-
ties, the record does not support this interpretation.
The plaintiff originally argued the theory of alter ego
in her objection to SESI’s motion to dismiss, in which
she contended that SESI was the parent corporation of
the defendant, and, therefore, that SESI should be held
liable as the plaintiff’s employer. Judge Frechette asked
for supplemental briefing on this issue, and heard oral
argument from both parties as to whether the defendant
and SESI were an integrated enterprise or two separate
and distinct entities. SESI submitted affidavits from
Kelly and Violante attesting that the entities were sepa-
rate and distinct, and that the plaintiff was an employee
of the defendant only. The plaintiff submitted no affida-
vits or testimony to refute these affidavits. In light of
these circumstances and Judge Frechette’s finding that
SESI is not the plaintiff’s employer, we necessarily must
construe Judge Frechette’s order as implicitly rejecting
the plaintiff’s claim that SESI is the alter ego of the
defendant. It would be illogical for Judge Frechette to
determine that SESI was not the plaintiff’s employer
had he found that SESI and the defendant were an
integrated enterprise. We therefore conclude that the
court did not err in its interpretation of Judge Frechet-
te’s order.
II
The plaintiff also claims that the court erred in not
making findings as to her arguments of estoppel and
alter ego. The plaintiff contends that the defendant
should be estopped from claiming that she did not prop-
erly fulfill the exhaustion requirement prior to filing
her employment discrimination action because the
defendant allowed SESI to hold itself out as the plain-
tiff’s employer and Violante, an employee of the defen-
dant, allegedly participated in the proceedings before
the commission against SESI. The plaintiff further con-
tends that the exhaustion requirement should be waived
with regard to the defendant because SESI is the alter
ego of the defendant and the court’s refusal to address
this issue because it was not pleaded in the plaintiff’s
complaint was error. We are not persuaded.
‘‘A motion to dismiss properly attacks the jurisdiction
of the court, essentially asserting that the plaintiff can-
not as a matter of law and fact state a cause of action
that should be heard by the court. . . . A court decid-
ing a motion to dismiss must determine not the merits
of the claim or even its legal sufficiency, but rather,
whether the claim is one that the court has jurisdiction
to hear and decide. . . . Our Supreme Court has deter-
mined that when ruling upon whether a complaint sur-
vives a motion to dismiss, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) Bailey v. Medical Examining Board
for State Employee Disability Retirement, 75 Conn.
App. 215, 219, 815 A.2d 281 (2003). ‘‘Where, however
. . . the motion is accompanied by supporting affida-
vits containing undisputed facts, the court may look
to their content for determination of the jurisdictional
issue and need not conclusively presume the validity
of the allegations of the complaint.’’ (Footnote omitted.)
Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d
1000 (1988).
Our review of the plaintiff’s complaint reveals that the
plaintiff failed to allege any facts sufficient to support an
allegation of estoppel or alter ego. Additionally, the
plaintiff failed to supplement the record with supporting
affidavits as to facts not apparent on the record, or to
request an evidentiary hearing in which the plaintiff
could have presented testimony on these two claims.
See Practice Book § 10-31 (b) (‘‘[a]ny adverse party
who objects to [a motion to dismiss] shall . . . where
appropriate, [file and serve] supporting affidavits as to
facts not apparent on the record’’); see also footnote 5
of this opinion. The only thing presented by the plaintiff
to support her arguments of estoppel and alter ego was
her counsel’s assertions and argument at the hearing
on the motion to dismiss. It is well established that
representations of counsel are not evidence. See Martin
v. Liberty Bank, 46 Conn. App. 559, 562, 699 A.2d 305(1997). Therefore, on the basis of the allegations on the
face of the complaint taken in the light most favorable
to the plaintiff, there exists no foundation on which the
plaintiff could support her arguments of estoppel and
alter ego. Accordingly, we conclude that the court did
not err in failing to make express findings as to these
arguments when determining whether to dismiss the
plaintiff’s action for lack of subject matter jurisdiction.
III
We now turn our attention to the plaintiff’s claim that
the court erred by concluding that the plaintiff had
failed to exhaust her administrative remedies. The
plaintiff argues that her failure to obtain a notice of
right to sue letter is not a jurisdictional bar to a civil
action, but a precondition to filing that can be, and
should have been, waived by the trial court. To support
her argument, the plaintiff relies on federal case law
that has held that fulfilling procedural requirements,
such as timely filing a complaint in the appropriate
administrative agency, or receiving a right to sue letter,
are preconditions to bringing a Title VII claim in federal
court, rather than a jurisdictional requirement, and as
such, these conditions can be waived. The plaintiff
argues that, under this jurisprudence, the court erred
in dismissing her Title VII cause of action for failure
to exhaust her administrative remedies. Further, the
plaintiff argues that the federal jurisprudence should
apply to her claim under CFEPA, and, accordingly, she
argues that the court erred in dismissing her state cause
of action for failing to exhaust her administrative reme-
dies. We do not agree.
The following facts and procedural history are rele-
vant to the resolution of this claim. In March, 2011,
the plaintiff filed a charge of discrimination with the
commission against SESI, along with a complaint alleg-
ing sexual harassment and gender discrimination. In
December, 2011, the plaintiff received a release of juris-
diction from the commission granting the plaintiff per-
mission to file an action against SESI in the Superior
Court. The plaintiff commenced the February, 2012
action alleging in count one of her complaint that SESI
violated CFEPA and in count two of her complaint that
it violated Title VII. After a finding by the court that SESI
was not the plaintiff’s employer, the court dismissed the
action against SESI. The plaintiff then filed identical
claims against the defendant in the Superior Court.
A
We first address the plaintiff’s claim that the court
erred in dismissing her Title VII cause of action for
failure to exhaust her administrative remedies. The
United States Supreme Court has held that ‘‘filing a
timely charge of discrimination with the [Equal Employ-
ment Opportunity Commission] is not a jurisdictional
prerequisite to suit in federal court, but a requirement
that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling.’’ Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L.
Ed. 2d 234 (1982). The Supreme Court reasoned that
the legislature listed the filing requirement in a separate
section of Title VII than the section that grants jurisdic-
tion to the federal district courts. Id., 393–94. Further-
more, the Supreme Court reasoned that ‘‘[b]y holding
compliance with the filing period to be not a jurisdic-
tional prerequisite to filing a Title VII suit, but a require-
ment subject to waiver as well as tolling when equity
so requires, we honor the remedial purpose of the legis-
lation as a whole without negating the particular pur-
pose of the filing requirement, to give prompt notice
to the employer.’’ Id., 398.
Since the Supreme Court’s holding in Zipes, some
federal circuit courts have held that ‘‘all Title VII proce-
dural requirements to suit are henceforth to be viewed
as conditions precedent to suit rather than as jurisdic-
tional requirements’’; Fouche v. Jekyll Island-State Park
Authority, 713 F.2d 1518, 1525 (11th Cir. 1983); while
other federal circuit courts have taken a piecemeal
approach to extending the holding in Zipes to other
procedural requirements. See Rivers v. Board of Educa-
tion, 143 F.3d 1029, 1031 (6th Cir. 1998). When pre-
sented with the issue of extending the Zipes holding
to the right to sue letter requirement, every federal
circuit court has decided that that procedural require-
ment is a precondition subject to equitable tolling,
estoppel and waiver. See, e.g., Pietras v. Board of Fire
Commissioners, 180 F.3d 468, 473–74 (2d Cir. 1999);
Forehand v. Florida State Hospital, 89 F.3d 1562,
1567–69 (11th Cir. 1996); McKinnon v. Kwong Wah
Restaurant, 83 F.3d 498, 505 (1st Cir. 1996); Puckett v.
Tennessee Eastman Co., 889 F.2d 1481, 1487 (6th Cir.
1989); Gooding v. Warner–Lambert Co., 744 F.2d 354,
358 (3d Cir. 1984).
The plaintiff contends that the court should have
waived the preconditions of timely filing a charge of
discrimination and obtaining a right to sue letter against
the defendant because the defendant should have been
estopped from claiming that it did not have notice of
the administrative proceedings. The plaintiff argues that
because employees of the defendant allegedly appeared
at the hearing before the commission against SESI and
because SESI is the alter ego of the defendant, the
defendant had sufficient notice of the proceedings. The
plaintiff failed to seek an articulation of the court’s
judgment; however, we necessarily must conclude that
it is implicit in the court’s finding that the plaintiff failed
to exhaust her administrative remedies that the court
rejected the plaintiff’s arguments of estoppel and alter
ego. As discussed in part II of this opinion, the plaintiff
failed to allege any facts sufficient to support an allega-
tion of estoppel or alter ego. On the basis of the limited
record before us, we conclude that the court did not
err in its determination that the plaintiff failed to
exhaust her administrative remedies with respect to
her Title VII claim.
B
We next consider the plaintiff’s claim that the court
erred in dismissing her claim under CFEPA after finding
that she failed to exhaust her administrative remedies.
Although the plaintiff is correct that Connecticut courts
turn to federal precedent for guidance in construing
our antidiscrimination statutes; Levy v. Commission
on Human Rights & Opportunities, 236 Conn. 96, 103,
671 A.2d 349 (1996); we are not bound to automatically
adopt federal precedent, and the law regarding
exhausting administrative remedies with respect to
CFEPA has been well settled in the wake of Zipes. ‘‘The
provisions of . . . CFEPA that prohibit discriminatory
employment practices . . . must be read in conjunc-
tion with the act’s provisions for the filing of complaints
concerning alleged discriminatory practices with the
[commission].’’ (Citations omitted.) Sullivan v. Board
of Police Commissioners, 196 Conn. 208, 215, 491 A.2d
1096 (1985). General Statutes § 46a-83 (b) provides in
relevant part: ‘‘Within ninety days of the filing of the
respondent’s answer to the complaint, the [commis-
sion’s] executive director or the executive director’s
designee shall conduct a merit assessment review. The
merit assessment review shall include the complaint,
the respondent’s answer and the responses to the com-
mission’s requests for information, if any, and the com-
plainant’s comments, if any, to the respondent’s answer
and information responses . . . .’’ ‘‘After finding that
there is reasonable cause to believe that a discrimina-
tory practice has been or is being committed as alleged
in the complaint, an investigator shall attempt to elimi-
nate the practice complained of by conference, concilia-
tion and persuasion within fifty days of the finding.’’
General Statutes § 46a-83 (g). If the investigator fails
to eliminate a discriminatory practice, the investigator
must certify the complaint, hold a hearing on the matter,
and order appropriate relief. General Statutes §§ 46a-
84 and 46a-86. Thereafter, any party aggrieved by a final
order of the commission may appeal to the Superior
Court. General Statutes §§ 46a-94a (a) and 4-183.
If a party has filed a timely complaint with the com-
mission and has obtained a release of jurisdiction, Gen-
eral Statutes § 46a-100 allows that party to file an action
directly with the Superior Court without a ruling from
the commission. General Statutes § 46a-101 (a), how-
ever, mandates that ‘‘[n]o action may be brought in
accordance with section 46a-100 unless the complain-
ant has received a release from the commission . . . .’’
‘‘Read in its entirety . . . CFEPA not only defines
important rights designed to rid the workplace of dis-
crimination, but also vests first-order administrative
oversight and enforcement of these rights in the com-
mission. It is the commission that is charged by the
act with initial responsibility for the investigation and
adjudication of claims of employment discrimination.
That the act does not provide an unconditional private
right of action for claimants like the plaintiff is under-
scored by the terms of General Statutes § 46a-99, which
expressly provides such a direct right of action when the
allegedly discriminatory employer is a state agency.’’
Sullivan v. Board of Police Commissioners, supra, 196
Conn. 216. ‘‘Under our exhaustion of administrative
remedies doctrine, a trial court lacks subject matter
jurisdiction over an action that seeks a remedy that
could be provided through an administrative proceed-
ing, unless and until that remedy has been sought in
the administrative forum. . . . In the absence of
exhaustion of that remedy, the action must be dis-
missed.’’ (Internal quotation marks omitted.) D’Eramo
v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
Because the court properly interpreted Judge Frech-
ette’s order as a finding that the defendant and SESI
are separate and distinct entities, under current Con-
necticut precedent, it was proper for the court to con-
clude that the plaintiff failed to exhaust her
administrative remedies as to the defendant. The court’s
conclusion was proper because the plaintiff did not
commence an action against the defendant with the
commission, nor did the plaintiff receive a release from
the commission to sue the defendant. The plaintiff had
administrative remedies available to her that could have
afforded her meaningful relief under the federal and
state statutes that govern her claim of gender discrimi-
nation. Her failure to bring her complaint against the
defendant to the commission foreclosed her access to
judicial relief because it deprived the trial court of juris-
diction to hear her complaint.
The plaintiff argues that we should adopt the federal
rule discussed in part III A of this opinion and apply it
to CFEPA, thereby holding that the failure to obtain a
right to sue letter is a precondition that may be waived
by the court upon proper compelling circumstances
instead of a jurisdictional requirement. Because our
Supreme Court has determined that a plaintiff who
‘‘fail[s] to follow the administrative route that the legis-
lature has prescribed for [her] claim of discrimination
. . . lacks the statutory authority to pursue that claim
in the Superior Court’’; Sullivan v. Board of Police Com-
missioners, supra 196 Conn. 216; both the trial court
and this court are bound by its decision. See Martin
v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241(1996) (Appellate Court, as intermediate court, pre-
vented from ‘‘reexamining or reevaluating Supreme
Court precedent’’), aff’d, 240 Conn. 105, 689 A.2d 1125(1997); Lash v. Aetna Casualty & Surety Co., 36 Conn.
App. 623, 624, 652 A.2d 526 (1995) (Appellate Court
‘‘bound by Supreme Court precedent’’), aff’d, 236 Conn.
318, 673 A.2d 84 (1996). Accordingly, we conclude that
the court did not err in dismissing the plaintiff’s cause
of action under CFEPA for failing to exhaust her admin-
istrative remedies.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The complaint also named Edward Botwick and Ronald Chomicz as
defendants. They are not, however, parties to the present action and appeal.
2
The certified mail receipt shows that, although the plaintiff addressed
the summons and complaint to ‘‘Specialized Student Education Services,
Inc.’’ in Yardley, Pennsylvania, Nancy Kelly, Director of Human Resources
for SESI, accepted service.
3
Although the plaintiff argued to the court, and continues to argue on
appeal that SESI is the alter ego of the defendant, the plaintiff stated at a
May 21, 2012 hearing that there appeared to be two defendants and requested
leave to file an amended complaint. The court denied leave to amend the
complaint because a proper motion was not before it at that time. The
plaintiff failed to file a motion requesting leave to amend the complaint
thereafter.
4
The plaintiff appended the following exhibits bearing SESI’s logo: a letter
from SESI regarding the plaintiff’s request for a foreseeable medical leave
form; a foreseeable medical leave form; a staff training manual; and an
unsigned employment contract for the plaintiff.
5
In adjudicating a motion to dismiss, the trial court must hold an eviden-
tiary hearing to determine disputed facts necessary to the resolution of the
motion. See Bellman v. West Hartford, 96 Conn. App. 387, 396, 900 A.2d 82(2006). The plaintiff, however, does not raise this issue as a claim on appeal,
and therefore, we need not address whether it was error for the court not
to hold an evidentiary hearing to determine whether SESI was the alter ego
of the defendant.
6
Specialized Student Education Services, Inc., is the entity that the plaintiff
named as the defendant on the summons and in the caption of the February,
2012 complaint. Both parties, however, acknowledge that an entity by this
name does not exist.
7
We note that the February, 2012 complaint remains open as the motion
to dismiss did not apply to the claims against the individual defendants,
Edward Botwick and Ronald Chomicz.
8
We note that the plaintiff filed this action in a different judicial district.
9
The transcript from the September 24, 2012 hearing reads:
‘‘[The Plaintiff’s Counsel]: So, you see the heading on [the paperwork is]
the Delaware company.
‘‘The Court: Well, it’s [SESI].
‘‘[The Plaintiff’s Counsel]: Yep.
‘‘The Court: As opposed to Specialized Student Education Services, Inc.
‘‘[The Plaintiff’s Counsel]: Right. That’s the wrong name. I—That’s correct.
That’s the wrong name.
‘‘The Court: It’s a misnomer on the—on the writ [of summons].
‘‘[The Plaintiff’s Counsel]: Yea.’’