Opinion
No. CV 01-0812369S
February 28, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FACTS
The plaintiff, Geraldine Lyon, brings the present action pursuant to General Statutes §§ 46a-58(a), 46a-60(a)(1) and 46a-70(a), against Virginia Jones, Edward Reynolds and the office of the Attorney General (OAG) (collectively, the defendants), alleging employment discrimination on the basis of age, sex and disability. The action was commenced by service of process upon the defendants on November 15, 2001.
On November 5, 2003, the plaintiff filed an amended complaint consisting of four counts. The plaintiff brings the first count against the OAG pursuant to § 46a-60(a)(1). Therein, the plaintiff alleges that the OAG discriminated against the plaintiff based on age, sex and disability. The plaintiff further alleges that a claim was timely filed with the CHRO, that the CHRO provided a release of jurisdiction and that the present action was filed within the time period prescribed by § 46a-100. The plaintiff brings the third count of the amended complaint pursuant to § 46a-70(a) and alleges that the OAG discriminated against the plaintiff based upon her age, sex and disability. The plaintiff makes identical claims against Reynolds and Jones in the fifth and sixth counts of the amended complaint, respectively.
The plaintiff did not number the counts in the amended complaint sequentially. It appears that the plaintiff cut out previously stricken counts of the complaint and filed a pleading containing the remaining counts as a substitute or amended complaint without bothering to re-number them. Accordingly, the counts are referred to as they are actually labeled in the substitute or amended complaint.
This appears to be a "cured" version of the second count of the original complaint.
This was the third count in the original complaint.
This was the ninth count in the original complaint.
This was the sixth count in the original complaint.
The defendants filed an answer and affirmative defenses to the amended complaint on February 22, 2005. In the first special defense, the defendants claim that the complaint fails to state a claim upon which relief can be granted. In the second special defense, the defendants claim that the court lacks jurisdiction over some or all of the subject matter of the complaint. In the third special defense, the defendants claim that Jones and Reynolds are immune in their individual capacities under General Statutes § 4-165. In the fourth special defense, the defendants claim that they acted in good faith and for legitimate business reasons at all relevant times. In the fifth special defense, the defendants allege that they were not the proximate cause of the plaintiff's claimed injuries. In the sixth special defense, the defendants claim that they would have taken the same actions with respect to the plaintiff without regard to the plaintiff's age, gender or perceived disability. In the seventh special defense, the defendants claim that the plaintiff failed to mitigate her damages, if any. In the eighth special defense, the defendants claim that the plaintiff's claims are barred by the applicable statutes of limitations. In the ninth special defense, the defendants claim that plaintiff's claims are barred by the doctrines of claim and/or issue preclusion because the plaintiff had the opportunity to, and actually did, litigate her discrimination claims in the prior federal action.
The defendants moved for summary judgment on June 29, 2005, and filed the requisite supporting memorandum of law. The defendants aver that there are no genuine issues of material fact relative to the defendants' entitlement to judgment as to the entire complaint on the grounds of sovereign immunity, res judicata and collateral estoppel as well as the immunity afforded state officers and employees pursuant to § 4-165. Additionally, the defendants assert that the plaintiff's claims under § 46a-60(a)(1) are time barred and that the plaintiff has inadequately pleaded a request for injunctive relief pursuant to §§ 46a-70(a) and 46a-99. The plaintiff objects to the grounds of claims and issue preclusion, arguing that these doctrines are not applicable. The plaintiff further argues that her claim for failure to promote is not untimely and that the doctrine of sovereign immunity is not applicable. For the reasons set forth below, the first count of the amended complaint is dismissed in its entirety. The third and fifth counts of the amended complaint are dismissed insofar as the plaintiff seeks an award of compensatory and punitive damages and costs, the defendants' motion for summary judgment is granted as to the plaintiff's requests for injunctive relief in the third and fifth counts of the amended complaint and as to the entire sixth count of the amended complaint.
The memorandum states that five of the nine counts contained in the original complaint were stricken by the court, Rittenband J., and that two additional counts were subsequently stricken by the court. A reading of the file shows that only one additional count of the complaint was stricken in response to the defendants' motion to reargue nunc pro tunc.
I
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49; Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted.) Barrett v. Montesano, supra, 791.
II
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Bloom v. Gershon, 271 Conn. 96, 113, 856 A.2d 335 (2004). In the present case, the defendants set forth statutory and sovereign immunity as alternatives to summary judgment on the grounds of res judicata, collateral estoppel and the time provisions of General Statutes § 46a-82(e). Because the defendants' claims of statutory and sovereign immunity raise the issue of the court's jurisdiction over the subject matter of this action, they must be considered first. See Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985) ("[o]nce [an issue of subject matter jurisdiction is] brought to the attention of the court, regardless of the form of the motion, it must be acted upon").
"It is a well-established rule of the common law that a state cannot be sued without its consent." (Internal quotation marks omitted) Martinez v. Dept. of Public Safety, 263 Conn. 74, 78, 818 A.2d 758 (2003). "A sovereign is exempt from suit, 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 . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." (Internal quotation marks omitted.) Id., 78-79.
General Statutes § 4-141 provides, in relevant part: "`state agency' includes every department, division, board, office, commission, arm, agency and institution of the state government, whatever its title or function . . ."
The plaintiff names the OAG as the defendant in counts one and three of her amended complaint dated November 3, 2003 (amended complaint). In the first count of the amended complaint, the plaintiff alleges that her claims against the OAG arise under General Statutes § 46a-60(a)(1). "When a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). The plaintiff has not obtained an authorization to sue the OAG from either the claims commissioner or the General Assembly and has not set forth a claim against the OAG under a section of the General Statutes that waives sovereign immunity. Accordingly, the claims set forth in the first count of the plaintiff's amended complaint should be dismissed in their entirety.
In the third count of the amended complaint, the plaintiff claims that the OAG violated General Statutes § 46a-70(a). Section 46a-70(a) states: "State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved." The plaintiff seeks relief in the form of compensatory damages, punitive damages, costs and injunctive relief. General Statutes § 46a-99 provides a private cause of action and relief to persons "claiming to be aggrieved by a violation of any provision of sections 46a-70 to 46a-78, inclusive, or sections 46a-81h to 46a-81o, inclusive . . ."
The court, Rittenband, J., previously found that the § 46a-70 claim against the OAG was legally sufficient.
The issue is whether § 46a-99 waives sovereign immunity. While there is no appellate authority on the issue, a Superior Court judge considering the issue has concluded that it does. See De Hass v. Connecticut, Superior Court, judicial district of Tolland, Docket No. CV 99 69640 (August 17, 1999, Stengel, J.) ( 25 Conn. L. Rptr. 295); Masih v. University of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 98 057218 (August 24, 1998, Stengel, J.) ( 23 Conn. L. Rptr. 17). Statutes that provide exceptions to the common-law doctrine of sovereign immunity, however, must be strictly construed in favor of the state. See Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "[T]he state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication." (Internal quotation marks omitted.) Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).
Section 46a-99 provides, in relevant part that the Superior Court, "shall have the power to grant such relief, by injunction or otherwise, as it deems just and suitable." There is no Appellate authority on the issue of whether § 46a-99 provides a waiver of sovereign immunity in an action for money damages. A Superior Court judge considering the matter determined that it does not. See Prigge v. Connecticut Department of Children and Families, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 02 181467 (March 26, 2004, Alander, J.) ( 36 Conn. L. Rptr. 829).
In Prigge v. Connecticut Department of Children and Families, supra, 36 Conn. L. Rptr. 829, the plaintiffs asserted, inter alia, that the department of children and families violated General Statutes § 46a-71, "which declares that all services of every state agency shall be performed without discrimination based upon religious creed." Id., 830. The defendants moved to dismiss the plaintiffs' claims for monetary, punitive and exemplary damages based on the doctrine of sovereign immunity. Id. The court analyzed the language of § 46a-99 and its legislative history as well as similar statutes in determining that § 46a-99 does not constitute a waiver of the state's sovereign immunity in suits for damages and dismissed those claims. Id., 831-32.
Accordingly, the third count of the amended complaint, insofar as the plaintiff seeks compensatory damages, punitive damages and costs against the OAG, is dismissed because § 46a-99 does not provide a waiver of sovereign immunity for the purposes of bringing a suit for damages.
The fifth and sixth counts of the amended complaint are brought against Reynolds and Jones pursuant to § 46a-70(a). The plaintiff alleges that she is suing Reynolds in both his individual and official capacities and Jones in her individual capacity alone. The plaintiff names Reynolds and Jones separately from the OAG, and from each other, in both the summons and in the amended complaint. Reynolds and Jones were each served with process separately, but not at their places of abode.
In the amended complaint, the plaintiff does not distinguish between the claims brought against Reynolds in his individual as opposed to his official capacity. It is, then, questionable whether the undifferentiated claims against Reynolds are actually claims against the state. See Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003) ("because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state"). "[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871.
The Supreme Court, in Spring v. Constantino, supra, 168 Conn. 568, sets forth the criteria to be used in determining "whether [a] . . . suit is, in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Id., 568.
In Miller v. Egan, supra, 265 Conn. 301, the individual defendants had been named as separate parties in the complaint and the plaintiff alleged that the suit was brought against the defendants in their official capacities. Id., 307-08. The court concluded that because the plaintiff did not allege that he was bringing an action against the defendants in their individual capacities and because the plaintiff brought a claim under section 1983 of title 42 of the United States Code which does not provide for an official capacity claim, that the third criterion of Spring was met. The court also concluded that because the plaintiff only sought relief against the state, the fourth criterion was satisfied as judgment against the defendants would subject the state to liability. Id., 311.
In Miller, the plaintiff conceded that the first two criteria of the test set forth in Spring v. Constantino were met. Miller v. Egan, supra, 265 Conn. 301, 308.
In determining whether the first prong of the test set forth in Spring is satisfied, the court must determine whether Reynolds is a state or public official. "[T]he essential characteristics of a public office are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government." Murach v. Planning Zoning Commission, 196 Conn. 192, 198, 491 A.2d 1058 (1985). "[The Supreme Court] . . . indicated in dictum, that a fixed tenure of office was one that was either fixed by law or enduring at the pleasure of the creating power. Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 638 n. 5, 573 A.2d 724 (1990). "A public office is a position in a governmental system created, or at least recognized, by applicable law to which position "certain permanent duties are assigned, either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it." Murach v. Planning Zoning Commission, supra, 196. "Public office embraces the idea of tenure and duration and this view rests on the continuing and permanent nature of the office . . ." (Internal quotation marks omitted.) Id., 199.
General Statutes § 3-125 provides, in relevant part: "The Attorney General shall appoint a deputy, who shall be sworn to the faithful discharge of his duties and shall perform all the duties of the Attorney General in case of his sickness or absence. He shall appoint such other assistants as he deems necessary, subject to the approval of the Governor. The Attorney General may also appoint not more than four associate attorneys general who will serve at the pleasure of the Attorney General and will be exempt from the classified service." (Emphasis added.)
The plaintiff alleges that Reynolds was an assistant attorney general and departmental head at all relevant times and that he is being sued in his individual and official capacity. The General Assembly created the position of assistant attorney general. See General Statutes § 3-125. Assistant attorneys general are appointed by the attorney general and such appointments are subject to the Governor's approval. See General Statutes § 3-125. The office of assistant attorney general is of a continuing and permanent nature; see Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 638; Murach v. Planning Zoning Commission, supra, 196 Conn. 199; and confers with it the power to exercise certain sovereign functions of government as set forth in § 3-125. Accordingly, Reynolds is a state official.
As an assistant attorney general and department head, Reynolds represents the state. Notably, the plaintiff alleges that during all relevant times, Reynolds was acting within the scope of and in the course of his employment duties. Any judgment against Reynolds will operate to control the activities of the state, as to the injunctive relief claimed, or subject it to liability for money damages, so the state is the real party against whom the plaintiff seeks relief. For these reasons, the plaintiff's claims against Reynolds are, in fact, against the state.
Because the claims against Reynolds are against the state, the doctrine of sovereign immunity applies to the claims brought against him as set forth in the fifth count of the amended complaint. These claims should, then, be treated in the same manner as the claims brought against the OAG pursuant to § 46a-70. Accordingly, the claim against Reynolds for compensatory and punitive damages and costs in the fifth count of the amended complaint is dismissed.
The plaintiff alleges that Jones is being sued in her individual capacity. As previously stated, Jones is named separately in the summons and the complaint. "If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Miller v. Egan, supra, 265 Conn. 307.
The General Assembly has provided immunity for state officers under certain circumstances. General Statutes § 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter."
The plaintiff alleges that Jones was acting within the scope of and in the course of her employment duties. The plaintiff, however, also alleges that Jones falsely accused her of harassing male attorneys and that Jones' acts and omissions were inspired by malice. This takes the claims against Jones outside the purview of § 4-165 immunity. Accordingly, the plaintiff's claims against Jones set forth in the sixth count of the amended complaint should not be dismissed.
III
The defendants also move for summary judgment based upon the doctrine of res judicata, more specifically the doctrines of claim preclusion and collateral estoppel. "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997).
"Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, [u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . [or any claim based on the same operative facts that] might have been made . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43, 694 A.2d 1246 (1997). "The two doctrines protect the finality of judicial determinations, conserve the time of the court and prevent wasteful relitigation." (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 812.
Here, the plaintiff also brought an action in the United States District Court for the District of Connecticut. The District Court dismissed the plaintiff's Connecticut Fair Employment Practices Act (CFEPA) claims against the OAG on the grounds of immunity pursuant to the eleventh amendment of the United States Constitution. "Because an assertion of Eleventh Amendment immunity concerns the subject matter jurisdiction of the district court, we address that issue before turning to the merits of the case." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Thus, while the District Court may have been able to exercise pendent jurisdiction over the plaintiff's CFEPA claims against the OAG, the District Court determined that it did not have subject matter jurisdiction over these claims because § 46a-99 does not expressly waive eleventh amendment immunity for CFEPA claims.
"The question of [subject matter jurisdiction] does not involve an inquiry into the merits of the case." Davis v. Board of Education, 3 Conn.App. 317, 320, 487 A.2d 1114 (1985); see also Cayer Enterprises, Inc. v. DiMasi, 84 Conn.App. 190, 194, 852 A.2d 758 (2004) (dismissal for lack of standing not a judgment on the merits).
The District Court, because it did not have jurisdiction over the subject matter of the plaintiff's CFEPA claims, was not able to consider the plaintiff's state law claims on the merits. The threshold requirement for application of the doctrine of claim preclusion, a previous judgment that was rendered on the merits, has not been met as to the OAG. See Connecticut National Bank v. Rytman, supra, 241 Conn. 43. Accordingly, the doctrine of claim preclusion does not apply to the plaintiff's remaining claim for injunctive relief against the OAG pursuant to CFEPA in the third count of the amended complaint.
The District Court also dismissed all of the claims brought against Reynolds and Jones pursuant to Federal Rule of Civil Procedure 12(b)(5) for lack of personal jurisdiction due to improper service. The District Court instructed the plaintiff that an amended complaint could be served upon Jones and Reynolds within forty-five days of the court's ruling. The District Court also instructed the plaintiff, essentially, that if Reynolds and Jones were properly served with an amended complaint, the complaint should reflect the fact that individuals cannot be sued under Title VII, the ADEA or the ADA, that there is no private cause of action under General Statutes § 46-58(a) and that injunctive relief cannot be sought against defendants sued in their individual capacities. It should be noted that the District Court, in ruling upon the motion to dismiss, did not instruct the plaintiff that she should not bring claims for damages against Reynolds and Jones under § 46a-70(a). It does not appear that subsequent to the District Court's ruling on the motion to dismiss, based on a review of both the copy of second amended complaint supplied by the plaintiff and the District Court's April 23, 2003 ruling on the defendants' motion for summary judgment, the plaintiff served an amended federal complaint on Reynolds or Jones that set forth any CFEPA claims.
This dismissal was not a decision on the merits, either.
In the present case, the plaintiff brings claims for damages and injunctive relief against Jones and Reynolds under § 46a-70(a) of CFEPA. The issue, then, is whether the plaintiff had an adequate opportunity to litigate all of her § 46a-70(a) claims against Jones and Reynolds in the federal proceeding. See Connecticut National Bank v. Rytman, supra, 241 Conn. 44.
Our Supreme Court adopted the following test, set forth in the Restatement (Second) of Judgments, § 25, comment (e), in making this type of determination: "[w]hen the plaintiff brings an action on [a] claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If, however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be precluded." (Emphasis omitted.) Id., 44.
As to the claim for injunctive relief against Reynolds, "[t]he Eleventh Amendment precludes a federal court from ordering a state, including its agencies or officials, to conform their conduct to state law. See Pennhurst State. Sch. Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)." Randolph v. Rogers, 170 F.3d 850, 859 (8th Cir. 1999) (vacating injunction issued against state department of corrections to enforce state statute). All of the CFEPA claims for damages against Reynolds, then, would require dismissal in a federal case pursuant to the doctrine of sovereign immunity as derived from the eleventh amendment to the United States Constitution. The jurisdictional obstacle to the plaintiff's claims against Reynolds in federal court is the eleventh amendment to the United States Constitution because, as previously discussed, the claims against Reynolds were actually against the state. See Cates v. State of Connecticut Department of Correction, No. 3:98 CV 2232 (SRU) (D.Conn. March 13, 2000). Accordingly, the doctrine of claim preclusion does not apply to the plaintiff's claim for injunctive relief against Reynolds.
Jones was sued in her individual capacity. The District Court concluded, in its ruling on the motion to dismiss, that injunctive relief could not be sought against defendants sued in their individual capacities. However, the eleventh amendment to the Constitution of the United States does not otherwise bar the action against Jones. See Hafer v. Melo, 502 U.S. 21, 27-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); see also Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1998). Since the CFEPA claims against Jones were not barred, but were not considered on the merits, the question is whether the district court "would clearly not have had [pendent] jurisdiction or, if it would have had such jurisdiction, whether it would clearly have declined to exercise it as a matter of discretion . . ." (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, supra, 241 Conn. 46.
"A district court may entertain a pendent claim only if it is `so related to claims in the action within such original jurisdiction that [it forms] part of the same case or controversy under Article III of the United States Constitution . . .' 28 U.S.C. § 1367(a). Subsection (c) enumerates those situations identified in Gibbs in which a district court may decline to exercise pendent jurisdiction even when it has the power to do so. In particular, under § 1367(c)(3) a district court may refuse pendent jurisdiction when the court `has dismissed all claims over which it has original jurisdiction . . .'" Id., 48-49. "The Second Circuit has held that absent exceptional circumstances, where federal claims are disposed of [prior to trial], courts should abstain from exercising pendent jurisdiction . . . Factors to be considered by the court include (1) the length of time the matter has been pending before the federal court; (2) the proximity of the trial date; and (3) the predominance of issues of federal, as opposed to local concern . . . In the usual case in which all federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims." (Citations omitted; internal quotation marks omitted.) Id., 50.
In the present case, not all of the claims over which the District Court had original jurisdiction were dismissed, however all of those claims were disposed of prior to trial. Applying the factors set forth above, it appears that the plaintiff's matter was pending before the federal court for a little over two years at the time the last of the federal claims were disposed of by summary judgment. The present action was commenced in November of 2001. It is unclear whether a trial on the merits was in close temporal proximity, however, following the ruling on the motion for summary judgment, there were no remaining issues of federal concern. White the results of the test set forth in Connecticut National Bank v. Rytman are inconclusive, there were no exceptional circumstances that would have warranted the exercise of pendent jurisdiction here. See id. Accordingly, because there is no reason to believe that the District Court would have exercised pendent jurisdiction over the claims against Jones, and because the District Court explicitly stated in its ruling on the motion to dismiss that it could not entertain claims for injunctive relief against persons sued in their individual capacities, the doctrine of claim preclusion does not apply to the claims against Jones.
IV
The defendants also argue that the plaintiff's claims are barred by the doctrine of collateral estoppel. "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . ." (Internal quotation marks omitted; emphasis in original.). RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001).
"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id.
In the federal case, the District Court first considered the plaintiff's claims against OAG under Title VII of the Civil Rights Act of 1964. The District Court held that the failure to promote claim was time barred because the plaintiff did not file a charge with the EEOC within 300 days of the date of occurrence. As to the Title VII hostile work environment claim, the District Court found that the plaintiff did not establish that the work environment "severely permeated with discriminatory intimidation, ridicule, and insult." Additionally, the District Court stated that the plaintiff did not create a material issue of fact that any of the conduct complained of was motivated by a discriminatory intent. Accordingly, the District Court granted the defendants' motion for summary judgment on the plaintiff's hostile work environment claim brought pursuant to Title VII.
The District Court also considered the plaintiff's § 1983 claims against Jones and Reynolds, one regarding two incidents of failure to promote the plaintiff and one regarding a hostile work environment claim. The District Court held that one of the incidents involving a failure to promote the plaintiff in violation of the equal protection clause was time barred. As to the second incident, the District Court held that the plaintiff failed to create a material issue of fact as to whether she was treated differently than others that were similarly situated. The District Court also found that the plaintiff's hostile work environment claims failed because the plaintiff did not create an issue of material fact as to whether the harassment was pervasive or severe enough to create a hostile work environment. Accordingly, the District Court granted summary judgment in favor of the defendants on the hostile work environment claim brought pursuant to 42 U.S.C. § 1983.
The only remaining claims in the present case are failure to promote claims brought pursuant to § 46a-70(a) on the basis of age, sex or disability discrimination. Section 46a-70(a) states: "State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved." Section 46a-99 states: "Any person claiming to be aggrieved by a violation of any provision of sections 46a-70 to 46a-78, inclusive, or sections 46a-81h to 46a-81o, inclusive, may petition the Superior Court for appropriate relief and said court shall have the power to grant such relief by injunction or otherwise, as it deems just and suitable."
The relevant question with regard to collateral estoppel is whether the plaintiff would litigate the same issues here as she previously litigated in the district court if the § 46a-70(a) claims were allowed to proceed.
"Although we are not bound by federal interpretation of Title VII provisions, [w]e have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute." (Internal quotation marks omitted.) State v. Commission on Human Rights Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). "To establish a prima facie case for discriminatory failure to promote, a plaintiff must demonstrate that: 1) he is a member of a protected class; 2) he applied for promotion to a position for which he was qualified; 3) he was rejected for the position; and 4) the employer kept the position open and continued to seek applicants." Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384, 386 (2d Cir. 2000). To meet the fourth prong of that prima facie showing, the plaintiff must establish that she was treated differently than a similarly situated employee that is not a member of the protected class. See United Technologies Corp. v. Commission on Human Rights Opportunities, 72 Conn.App. 212, 226, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002). It appears that the elements of a prima facie claim for failure to promote are the same under state or federal law.
The court is aware that the second amended complaint upon which the federal District Court granted summary judgment in favor of the defendant did not contain causes of action based on age or disability discrimination. However, the plaintiff presents no material facts to establish the requisite prima facie cause for discriminatory failure to promote here other than the facts she used to support her federal claims.
The factual allegations underpinning the federal and state complaints are identical. The District Court determine that plaintiff's equal protection "class of one" claims for failure to promote were devoid of merit under § 1983. See Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed. 1060 (2000). After fully litigating the issue, plaintiff did not show that she was treated differently from any other similarly situated employee (whether on account of her sex, age or disability or other characteristic) and that there was no rational reason for such differential treatment.
As in her federal action, the plaintiff has failed to show there is a genuine, material issue of fact that she was treated differently than others similarly situated in all material respects. She has not demonstrated that other similarly situated persons received promotions while she did not, and her efforts to establish that fact in this case are no different from her failed efforts in the federal case. Thus, plaintiff's claim as a member of protected class must fail.
Since the same issue, the plaintiff's ability to establish a prima facie case for discriminatory failure to promote, would be litigated here as was actually litigated in the plaintiff's federal case if the plaintiff is permitted to pursue her claims pursuant to § 46a-70(a), the defendants' motion for summary judgment should be granted as to the requests for injunctive relief in the third and fifth counts of the amended complaint and as to the entire sixth count of the amended complaint.
CONCLUSION
For the foregoing reasons, on the grounds of sovereign immunity, the first count of the amended complaint is dismissed in its entirety and the third and fifth counts of the amended complaint are dismissed insofar as the plaintiff seeks an award of compensatory and punitive damages and costs because the court lacks subject matter jurisdiction. The defendants' motion for summary judgment is hereby granted as to the plaintiff's requests for injunctive relief in the third and fifth counts of the amended complaint and as to the entire sixth count of the amended complaint.