Fondelheit v. Windham Pepsi-Cola Bottling Co. Inc.
Administrative regulations do not prohibit a party’s representation at a fact-finding conference, held pursuant to Connecticut General Statutes §46a-83(d), by an attorney who is not admitted in Connecticut, because a fact-finding conference does not qualify as a “contested case.” In March 1987, the defendant, Windham Pepsi-Cola Bottling Co., hired the plaintiff, Bruce Fondelheit. In 2010, Fondelheit received warnings and then was demoted from a sales merchandiser to a driver. Fondelheit, who suffers from asthma and was replaced by a younger individual, filed a complaint with the Commission on Human Rights and Opportunities and alleged unlawful discrimination on the basis of age and disability. A commission investigator found that Fondelheit failed to establish reasonable cause. Fondelheit appealed to the Superior Court. Although he alleged that the tapes of the hearing were unintelligible, the court found that the testimony was unintelligible in only a few places, which did not make the record inadequate for review. Pauses in the tape that resulted when the tape was flipped, or the parties took a break, were for legitimate reasons. The Superior Court denied the plaintiff’s allegation that the record was inadequate for review, and the plaintiff’s request for an evidentiary hearing. The plaintiff failed to preserve on the record his objections to the commission’s refusal to permit him to use a laptop computer at the hearing and the employer’s representation by an attorney, Phillip Leader, who apparently is not admitted to the bar of the State of Connecticut. The plaintiff waived both claims. “[T]he record is silent,” wrote the court, “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.” Even if the plaintiff’s objection to the employer’s attorney had been preserved, the plaintiff did not prove prejudice, and the regulations do not prohibit representation at a fact-finding conference by an out-of-state attorney, because a fact-finding conference does not qualify as a “contested case.” The Superior Court affirmed the decision of the Commission on Human Rights and Opportunities.