Opinion
HHDCV156058411S
01-06-2017
Kimberly Crone v. Connecticut State Colleges & Universities et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Constance L. Epstein, Judge Trial Referee.
Underlying Facts
On March 1, 1996, plaintiff, Kimberly Crone, began employment as the Director of Admissions and Enrollment at Eastern Connecticut State University, a division or part of the defendant Connecticut State Colleges & Universities (CSC& U or the " system"). When she was hired in 1996, plaintiff was the beneficiary of a so-called " non-continuation" policy that provided for a one-year notice of termination.
In the fall of 2010, plaintiff was encouraged by senior level administrators at CSC& U to apply for the position of Associate Vice President for Enrollment Management at Southern Connecticut State University (SCSU), also a part of CSC& U. Plaintiff consulted with David Trainor, a Human Resources Officer at CSC& U, who advised plaintiff that her acceptance of the new position would cause her to lose the job protections from her unionized position, but that her original date of hire would apply to other employment benefits and policies of the system, including vacation, sick time, and deferred compensation. He also assured her that he had authored a 2006 revision to the above-referenced non-continuation notice policy and that her original date of employment in 1996 would govern the application of the policy to her.
Based on the representations made to her, plaintiff accepted the Associate Vice President position at SCSU, began that employment on or about January 28, 2011, and continued in that job for the next three years. During that time, plaintiff was rated in four evaluations for performance exceeding expectations.
On or about January 8, 2015, plaintiff was informed by SCSU's President, Mary Papazian, that her employment was being terminated. The termination was not for cause or deficiencies in performance. Ms. Papazian further advised plaintiff that the defendants were exercising their non-continuation policy as to her, but, contrary to plaintiff's expectations, the one-year notice provision was not applied to her. Instead, plaintiff was told by Ms. Papazian, that plaintiff was to vacate her office by January 16, 2015, and that her official termination date would be April 17, 2015, three months later.
The pertinent portions of the defendants' Human Resources Policies for Management and Confidential Professional Personnel, Connecticut State Colleges & Universities (hereinafter " Policies"), the policy in effect at the time of plaintiff's termination provides at No. 8.1: . . . employees may be non-continued in their current position without cause or explanation, at the option of the . . . Presidents . . . Permanent employees hired on or after January 1, 2013 shall receive three (3) months' notice. Permanent employees hired prior to January 1, 2013, shall have the greater of three (3) months' notice or the notice provisions covered by the policy that was previously in effect for their respective employer . . . The Board retains the authority to offer payment of salary in lieu of service or notice . . .
The plaintiff contends that the following provision, § 10.1, of the policy manual approved in 2004 applies to her:
Employees may be non-continued in their current position without cause or explanation at the option of the . . . President . . . Full-time employees hired prior to December 8, 2006, may be non-continued upon a one-year written notice. All employees hired on or after December 8, 2006, may be non-continued upon a three-month written notice.
Plaintiff attempted resolution of her denial of the one-year notice of non-continuation through that part of the defendants' Policies that provides at § 1.13:
Disputes concerning the meaning of these policies shall be reduced to writing and submitted to the Board's Vice President for Human Resources. He/she will convene a meeting to hear the dispute and give the parties an opportunity to present information and respond to questions. The Vice President for Human Resources will make a written recommendation on the disposition of the complaint to the President of the Board within thirty (30) calendar days of receipt of the dispute. The president of the board shall either accept or reject the written recommendation. If he/she rejects the written recommendation then the issue is remanded back to the vice president for human resources for further review and he/she must submit a different written recommendation within thirty (30) calendar days.
Plaintiff was denied the meeting in a communication from the Interim Vice President for Human Resources, Laurie G. Dunn, who informed plaintiff that her claim did not entitle her to the scheduling of a meeting because the policy manual was clear. Ms. Dunn further advised that plaintiff's date of hire was January 28, 2011, and, therefore, that plaintiff was not entitled to any more than a three-month notice of non-continuation.
Plaintiff then initiated this lawsuit asserting in her seventeen-count, thirty-eight-page complaint the assertions which will be described more fully below. The court has struggled long and hard, reviewing the complaint numerous times, as well as the applicable law, and has come to the conclusion that plaintiff's very legally creative and artfully composed complaint really can be reduced to two contentions: that she was denied a one-year notice of termination, thus depriving her of the monetary emoluments therefrom, and that was also denied a hearing to contest that deprivation.
Plaintiff seeks compensatory and punitive monetary damages; attorneys fees; double damages for failure to pay wages; and injunctive relief.
Defendants have moved to dismiss all of the claims against them under the doctrine of sovereign immunity.
Standards for Motion to Dismiss
Pursuant to Practice Book § 10-30 a motion to dismiss properly addresses a claim that the superior court lacks subject matter jurisdiction over the plaintiff's claims, and that the court cannot consider the claims because of the lack of jurisdiction. Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).
In determining whether subject matter jurisdiction exists, a court must consider every presumption favoring jurisdiction. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). In reviewing the complaint, this court is obliged to construe the facts set forth, and the implications therefrom, in the light most favorable to the plaintiff. Envirotest Systems Corporation v. Commissioner of Motor Vehicles, 293 Conn. 382, 385, 978 A.2d 49 (2009). Nevertheless, the burden of demonstrating that subject matter jurisdiction exists rests with the party invoking the court to resolve her dispute. Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213-14.
In this matter, the defendant appropriately challenges, for the most part, the plaintiff's complaint, on the basis of the lack of subject matter jurisdiction relying upon the doctrine of sovereign immunity. Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007).
Sovereign Immunity
The common law does not recognize a right of action against the state. Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). The doctrine of sovereign immunity provides a strong presumption in favor of the state's immunity from liability or lawsuits. C.R. Klewin Northeast v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007). Subjecting the state to private litigation causes the distinct possibility of serious interference with the state's performance of necessary functions for all citizens. Shay v. Rossi, 253 Conn. 134, 165-66, 749 A.2d 1147 (2000). Sovereign immunity insulates the state from lawsuits " . . . not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Lyon v. Jones, 291 Conn. 384, 396, 968 A.2d 416 (2010)
The Connecticut Supreme Court has recognized that " The public service might be hindered . . . and the public safety endangered, if the supreme authority of the state could be subject to suit at the instance of every citizen, and thereby controlled in the use or disposition of the means required for the proper administration of government." Textron, Inc. v. Wood, 167 Conn. 334, 340, 355 A.2d 307 (1974), citing Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899).
Exceptions to this fundamental doctrine exist in situations in which the state has consented to suit against it, waiving its immunity by enacting legislation that permits claims to be brought against the state. Ware v. State, 118 Conn.App. 65, 70, 983 A.2d 853 (2010). In Chapter 53 of the General Statutes of Connecticut, the General Assembly established the office of the Claims Commissioner, which permits that officer, inter alia, to authorize a claimant to sue the state. General Statutes § 4-158(a)(4). In this case plaintiff Crone did not file a petition with the Claims Commissioner and thus has not procured such authorization. Plaintiff asserts that there was no legal necessity for her to do so because General Statutes § 4-142 provides as follows:
There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes.
Plaintiff asserts that, pursuant to this statute, she did not need to procure permission from the Claims Commissioner to sue the state because her claims fall within the " periodic payment" and " employment benefits" exceptions set forth in that statute. Plaintiff further asserts that the exceptions set forth in General Statutes § 4-142 constitute a waiver of the state's sovereign immunity and plaintiff cites to some superior court decisions which so hold. See Wagner v. State of Connecticut, 2010 WL 5064445 (J.T.R. Pellegrino).
Other superior court decisions are to the contrary. On the basis of legislative history, some courts have concluded that the 1996 amendments to this statute listing the exceptions to the Claims' Commissioner's jurisdiction were enacted merely to avoid the possibility of parties initiating identical claims in both the courts and with the Claims Commissioner. See, for example, Doe v. Department of Children and Families, 38 Conn. Law Rptr. 361, (2004), J. Hennessey. Other courts have reached the same conclusion, relying on long-held tenets of statutory construction, as well as the law governing application of the doctrine of sovereign immunity, that General Statutes § 4-142 does not set forth a waiver of the state's immunity from suit. See Doe v. State, 23 Conn.L.Rptr. 352, (1998) (J. Levin).
In Envirotest Systems Corporation v. Commissioner of Motor Vehicles, 293 Conn. 382, 978 A.2d 49 (2009), the Connecticut Supreme Court provided litigants and the superior court with firm guidelines by which to determine whether the state's immunity from suit has been waived. The high court reminded us of the " deep roots" of sovereign immunity in our legal system, with their origins in ancient common law. Id., 388. Any statutes in derogation of the principle must be strictly construed, with " any doubt" being resolved in favor of the preservation of application of the principle. Id., 388. Consent to sue the state must be either explicitly set forth in the statute upon which a plaintiff relies in defending against the application of sovereign immunity, or must give rise to a " necessary implication" that the state has waived its immunity. Id., 389. In further explanation, the high court directed that the implication must be the only possible interpretation of the statutory language, and absent such a finding, or in the finding of any ambiguity, waiver of statutory immunity cannot be attributed to the statute. Id., 389-91.
Pursuant to these directives, this court cannot find that General Statutes § 4-142 provides any basis for the conclusion that the state has waived its immunity for the claims asserted against the state. The subject statute merely provides exceptions to the Claims Commissioner's authority. It does not, explicitly, or by necessary or exclusive implication, expand the superior court's jurisdiction to consider claims asserted against the state. It does not waive the sovereign immunity of the state.
Counts for Breach of Contract
In Counts 1, 3, 5 and 7, plaintiff alleges breach of contract claims against CSC& U and SCSC on the basis that these defendants failed give her the one-year notice of termination to which she believes she was entitled and failed to provide her with a hearing pursuant to the defendants' Policies. The Policies themselves clearly provide that nothing contained therein constitutes a contract of employment, but that is not the focus of this court in considering the motion to dismiss.
In response to the defendants' motion to dismiss, plaintiff has argued that she is seeking " periodic payments" and " employment benefits, " and that General Statutes § 4-142 permits her to bring this suit directly against the state. The plaintiff argues that, although her complaint is addressed to the defendants' failure to honor what plaintiff believes is the right to a one-year notice of termination, what she really is seeking is periodic payment of monetary amounts for that one year and other employment benefits for that period of time.
Even if that were a fair reading of the complaint, the statute on which plaintiff relies does not abrogate the state's sovereign immunity. In the first place, there is clearly no specific mention in any way whatsoever in the statute as amended in 1996 that permits a suit against the state for periodic payments or employment benefits. Envirotest Systems Corporation v. Commissioner of Motor Vehicles, supra, 293 Conn. 388. Furthermore, there is nothing in the statute that provides a basis to claim that the General Assembly intended to waive immunity by implication at all, much less by necessary implication. Id., 389. Waiver is not the only possible interpretation of the language of the statute. Id., 389-90. As has been set forth earlier, the limitations set forth in the statute attempt to preclude the need for the state to have to defend itself in two forums for the same factual allegations. The language clearly does not leave the only interpretation thereof to be that the state has waived its sovereign immunity.
As the Connecticut Supreme Court has noted, when the General Assembly intends to waive the state's immunity from suit, " it knows how to do so explicitly . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms of by the force of a necessary implication." Martinez v. Department of Public Safety, 263 Conn. 74, 818 A.2d 758, (2003).
The motion to dismiss is granted as to Counts 1, 3, 5 and 7.
Claims for Promissory Estoppel
In Counts 2, 4, 6 and 8 plaintiff alleges that CSC& U and SCSU are liable to her on the basis of the representations made to her by an officer of defendants' Human Resources Office when she was considering accepting the new job at SCSU, in other words, that liability rests on the basis of promissory estoppel because she was told that she would have a benefit, and she relied on that statement to her detriment in taking the new job.
The court recognizes that estoppel claims are different from breach-of-contract claims. Claims of estoppel are premised on two essential elements: the party against whom estoppel is claimed must do or say something calculated to induce belief that certain facts exist and the other party must claim detrimental reliance thereon. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).
Viable estoppel claims against a public agency are limited to situations in which the action at issue has been induced by an agent having authority to do so and only when special circumstances make it highly inequitable or oppressive to not estop the defendant. Id., 148. However, the plaintiff has provided no basis on which this court can premise a finding that the state has waived its sovereign immunity from suit on this basis.
The Connecticut Supreme Court has expressly ruled that state employees do not have contractual, implied, or promised rights to pursue employment claims against the state unless there exists a clear and unambiguous expression of legislative intent that the state has provided that right. Chotkowski v. State, 240 Conn. 246, 267, 690 A.2d 368 (1997).
The motion to dismiss is granted as to Counts 2, 4, 6, and 8.
Claims of Violation of Due Process and Freedom of Speech
In Counts 9 and 10, plaintiff sets forth the identical facts for her breach-of-contract claims asserted in Counts One and Five, and contends that these constitute a violation of her constitutional rights to due process by CSC& U and SCSU, thereby violating 42 U.S.C. 1983.
As with the previously discussed claims, these counts also cannot survive a challenge to be considered by this court within its subject matter jurisdiction. As previously set forth, plaintiff's reliance on General Statutes § 4-142 does not support her assertions that her claims survive the application of sovereign immunity. Furthermore, the citation to the federal civil rights statute, 42 U.S.C. § 1983, does not insulate the plaintiff from the application of sovereign immunity because agencies and institutions of the state cannot be sued under this statute as a matter of law. As the Connecticut Supreme Court has noted, relying upon the long-standing rulings and directives of the United States Supreme Court,
A state, as an entity having immunity under the eleventh amendment to the United States constitution, is not a " person" within the meaning of § 1983 and thus is " not subject to suit under § 1983 in either federal or state court." Howlett v. Rose, 496 U.S. 356, 364, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). This rule also extends to state officers sued in their official capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003).
In Counts 16 and 17, plaintiff alleges violation of her due process rights by Laurie Dunn and Mary Papazian. In Count 15 of her complaint, plaintiff asserts that her constitutional right to freedom speech was violated by Laurie Dunn because Ms. Dunn did not afford plaintiff a " meeting" to address the dispute plaintiff had as to the application of the state's Policies to plaintiff's termination.
The same rationale set for above applies to those counts. Under the doctrine of sovereign immunity, the motion to dismiss counts 9, 10, 15, 16, and 17 is granted.
Claims for Common-Law Torts
In Count 11 of her complaint, plaintiff alleges that Laurie G. Dunn, the Interim Vice President for Human Resources for CSC& U in 2015, violated the Policies manual in denying plaintiff a hearing on her dispute as to the termination notice period, and plaintiff labels this a tortious interference with plaintiff's relationship with CSC& U. In her complaint, plaintiff asserts that this claim is governed by the provisions of General Statutes § 4-142 because this deprived plaintiff of an " employment benefit."
In Count 13, plaintiff asserts that President Papazian committed the tort of negligent infliction of emotional distress in terminating plaintiff without affording plaintiff the one-year notice to which plaintiff believes she was entitled.
General Statutes § 4-165 provides that " No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment."
A significant difference exists between the concept of whether subject matter jurisdiction exists and whether a plaintiff has failed to state a claim upon which relief can be granted. The former is addressed by a motion to dismiss and the latter by a motion to strike. Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).
As to plaintiff's common law claims, the issue is whether plaintiff has sufficiently plead facts to permit the claims under General Statutes § 4-145. The motion to dismiss is denied as to those counts.
Claim for Injunctive Relief
Count 12 of plaintiff's complaint seeks injunctive relief against CSC& U, asking that the court enjoin that defendant from not following its own policies and engaging in a " waste of taxpayer monies" by paying someone who is placed on " administrative leave."
Permitting a cause of action such as this to survive a motion to dismiss for lack of subject matter jurisdiction under the doctrine of sovereign immunity would completely and absolutely disregard that the doctrine, and the necessary protections afforded citizens thereunder, exist at all. It is simply beyond comprehension.
Sovereign immunity bars injunctive relief actions against the state. Ware v. State, supra, 118 Conn.App. 76. Plaintiff has not provided any basis whatsoever for the court to consider an exception to the application of sovereign immunity to this claim.
The motion to dismiss count 12 is granted.
Claim for Non-Payment of Wages
In Count 14, plaintiff invokes General Statutes § 31-71a, asserting that the state has waived its statutory immunity pursuant to that statute and permits her to bring her claim against SCSU for " failure to provide a one-year non-continuation notice as provided by the Defendant System's policies." The plaintiff does not mention in her complaint that she is seeking " wages" pursuant to Connecticut General Statutes § 31-72, however, the court in reviewing the complaint in the light most favorable to the plaintiff, assumes that this is what it sought, and plaintiff has indeed argued that she is seeking wages. Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The defendant argues that sovereign immunity is a bar to this claim because plaintiff is not really seeking " wages" under this chapter of the statutes of this state. Defendant points to the definition of " wages" in General Statutes § 31-71a, as well as caselaw, which provide that the " wages" are compensation for labor or services rendered. See Weems v. Citigroup, Inc., 289 Conn. 769, 779, 961 A.2d 349 (2008). Defendant SCSU argues that plaintiff is not really seeking compensation for services rendered, but instead is seeking damages for failure of the defendants to give her all of the benefits which would have accrued to her if she had been given a one-year notice of her termination.
As to claims under General Statutes § 31-72, the state has clearly waived its sovereign immunity because it has included itself within the definition of " employers" who are subject to the statutory obligation to pay wages under that chapter of the statutes. Consequently, the court cannot find that sovereign immunity precludes plaintiff's claim in this count.
As previously discussed, subject matter jurisdiction is not the issue under this count. The issue is whether plaintiff has sufficiently plead facts to set forth a viable cause of action, thus properly addressed in a motion to strike.
For the reasons set forth above, the motion to dismiss Count 14 is denied.
Conclusion
The motion to dismiss is granted as to Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 15, 16 and 17 and is denied as to Counts 11, 13, and 14.