Opinion
No. CV02 0394052
July 7, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #155
The defendants City of Bridgeport, Joseph Ganim, Ted Grabarz, John Marsilio and Ted Coyne filed a motion to dismiss on December 1, 2005. By way of a motion dated January 14, 2008, these defendants have now renewed their request that the court dismiss the plaintiff's action for a lack of subject matter jurisdiction. The defendants claim that the court lacks subject matter jurisdiction on the grounds that the plaintiff, who is seeking damages as a result of allegations that she suffered a loss of employment with the City of Bridgeport, has failed to exhaust her administrative remedies.
The plaintiff in opposition to the motion to dismiss argues that any potential administrative remedy has proved to be inadequate, futile and failed to provide her full, fair and immediate relief. The plaintiff additionally argues that pursuant to the clear and unambiguous language of General Statutes §§ 31-51q, 31-51m and 31-51bb, the plaintiff is relieved of her burden to exhaust administrative remedies and has a right to full and fair litigation.
I Procedural History
This action is based upon the plaintiff's claim that she was improperly terminated from her employment with the City of Bridgeport because of her role as a "whistle blower" pursuant to the investigation by the Federal Bureau of Investigation into government practices within the City of Bridgeport during the administration of former Mayor Joseph Ganim. The plaintiff claims her termination was a result of her cooperation with federal agents who were investigating "graft," "fraud" and "corruption" within the City of Bridgeport.
The plaintiff filed a grievance and pursued an arbitration against the City though the union which resulted in a favorable arbitrator's decision in 2006. The decision would have reinstated her as an employee of the City of Bridgeport. An appeal of that decision was filed in the Superior Court and the court (Arnold, J.) vacated the arbitration award. The court (Arnold, J.) in its decision found that the arbitrator's award was beyond the scope of the submission. As a result of the court's decision, the matter was then appealed to the Appellate Court for the State of Connecticut, where the matter is currently pending. The defendants, therefore, claim the administrative grievance process is still continuing through the appeal process and is yet to be concluded.
The arbitrator also awarded Nichols back pay, seniority and all other benefits, set off by any earnings received by her from the time of her termination to the time of her reinstatement.
See Bridgeport City Supervisors Association v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV06 4016751 (Nov. 27, 2006, Arnold, J.)
The subject action was commenced by way of a four-count complaint dated June 27, 2002 alleging wrongful discharge, retaliation, violation of the "Whistle Blower" Act, pursuant to General Statutes § 31-51q and harassment, respectively. An amended complaint dated February 6, 2004 was later filed by the plaintiff. The amended complaint also contained four counts alleging wrongful discharge, retaliation, violation of "Whistle Blower" Act and harassment, respectively. The defendants have denied the allegations and on November 9, 2005, filed several special defenses, including but not limited to, governmental immunity and failure to exhaust administrative remedies. The defendants seek to dismiss this case because they claim the plaintiff is a unionized employee who was protected by a collective bargaining unit at the time of her termination, and the plaintiff has failed to exhaust the exclusive grievance and arbitration procedures contained in the collective bargaining agreement prior to instituting this lawsuit.
II Motion to Dismiss and Subject Matter Jurisdiction
The legal principles concerning subject matter jurisdiction are well settled. Our Supreme Court has long held that a determination regarding a trial court's subject matter jurisdiction is a question of law. Bloomfield v. United Electrical, Radio Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008). "Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Id.
Any defendant wishing to contest the court's jurisdiction may do so by filing a motion to dismiss, Practice Book § 10-31. "A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "In ruling upon whether a complaint survives 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, construing them in a manner most favorable to the pleader." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
The exhaustion of administrative remedies doctrine implicates subject matter jurisdiction; Flanagan v. Commission on Human Rights Opportunities, 54 Conn.App. 89, 91, 733 A.2d 881, cert. denied, 250 Conn. 925, 738 A.2d 656 (1999); therefore, "[p]ursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
III Discussion
The law in Connecticut is that a plaintiff's failure to exhaust a grievance procedure regarding a loss of employment normally deprives the court of subject matter jurisdiction.
It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in [a] collective bargaining agreement . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements.
(Citation omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).
"[C]ollective bargaining agreement procedures are the exclusive remedy unless the parties expressly agree otherwise . . . [W]here nothing is said in the collective bargaining agreement about exclusivity, the agreement is considered to be the exclusive remedy." D'Agostino v. Housing Authority, 95 Conn.App. 834, 840, 898 A.2d 228 (2006); Saccardi v. Board of Education, 45 Conn.App. 712, 720, 697 A.2d 716 (1997). "The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes." Id., 841; Labbe v. Pension Commission, 229 Conn. 801, 811, 643 A.2d 1268 (1994).
Unions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship. That authority encompasses issues of law as well as of fact . . . Before pursuing even alleged violations of state statutory procedures and of constitutional rights to due process and equal protection, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court.
(Citations omitted; internal quotation marks omitted.) Sobczak v. Board of Education, 88 Conn.App. 99, 104, 868 A.2d 112 (2005); Trigila v. Hartford, 217 Conn. 490, 494-95, 586 A.2d 605 (1991).
[I]t is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.
(Citations omitted; internal quotation marks omitted.) Santana v. Hartford, 94 Conn.App. 445, 461-62, 894 A.2d 307 (2006).
Nevertheless, our Supreme Court has "grudgingly carved several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile." (Citations omitted; internal quotation marks omitted.) Sobczak v. Board of Education, supra, 88 Conn.App. 103-04. An action is futile when "such action could not result in a favorable decision and invariably would result in further judicial proceedings. The guiding principle in determining futility is that the law does not require the doing of a useless thing."
(Citations omitted; internal quotation marks omitted.) Id.
In determining whether a tort claim is subject to the grievance procedure of a collective bargaining agreement, the critical inquiry, therefore, is whether the tortious conduct is encompassed by the terms of the agreement. Sobczak v. Board of Education, supra, 88 Conn.App. 109. The subject collective bargaining agreement in Article 11, section 11.1 states that "[a]ny grievance or dispute that may arise between the parties concerning the application, meaning or interpretation of this Agreement, shall be settled only in the following manner." (Emphasis added.) Section 11.1 sets forth the grievance process and procedure. Step III of the grievance procedure set forth in Section 11.1 provides for arbitration of the dispute and further states "[t]he decision of the arbitrator(s) shall be final and binding on the parties . . ." (Emphasis added.) Articles 8, 9 and 10 of the Collective Bargaining Agreement set forth the rights and obligations of the parties to the Agreement regarding the subjects of "Seniority," "Lay-Off and Recall" and "Disciplinary Procedure," respectively. Article 28 contains provisions regarding voluntary and involuntary transfers.
Additionally our Supreme Court in Burnham v. Gelb, 252 Conn. 153, 157-58, 745 A.2d 178 (2000) has determined that General Statutes § 31-51m "provides the exclusive remedy for wrongful discharge for "whistle-blowing" and that the availability of that statutory remedy precluded the plaintiff from pleading alternative common-law causes of action." Campbell v. Plymouth, 74 Conn.App. 67, 73-74, 811 A.2d 243 (2002).
Counts One, Two and Four alleging wrongful discharge, retaliation, and harassment, respectively are tort claims contemplated by the parties to be covered under the terms of the collective bargaining agreement and subject to the grievance and arbitrations procedures outlined therein. These counts are also subject to the exclusive remedy that General Statutes § 31-51m provides for one who feels they were wrongfully terminated for "whistle blowing." Accordingly, these three counts are dismissed for lack of subject matter jurisdiction.
In the Second Count, the plaintiff alleges that an act of retaliation is in violation of the employee handbook for the City of Bridgeport and is in violation of the existing union contract.
The claim of negligent infliction of emotional distress, which is predicated on a claim of a hostile work environment concerns a problem incident to working conditions, and meets the Agreement's definition of a grievance. This claim is subject to the grievance procedures. See, Sobczak v. Board of Education, supra, 88 Conn.App. 109.
The plaintiff has failed to demonstrate that resort to the grievance procedure has been or will be futile or inadequate. The agreement mandates that the subject grievance procedure be utilized before seeking other legal or administrative remedies. By not complying with that requirement, the plaintiff failed to exhaust the available grievance procedure. That failure deprives the court of subject matter jurisdiction for Counts One, Two and Four. The grievance procedure did commence within a reasonable time after the plaintiff's request for reinstatement through her union representatives. Santana v. Hartford, supra, 94 Conn.App. 477. While it is unfortunate that the process has taken so long to conclude, the plaintiff's rights under the collective bargaining agreement have been observed. The fact that the trial court vacated the arbitrator's decision and that ruling has been appealed to the Appellate Court, does not make the grievance procedure futile or inadequate.
The Third Count, however, is a statutory action brought pursuant to General Statutes §§ 31-51m and 31-51q. General Statutes § 31-51m reads in relevant part:
(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer . . .
(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee's recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court.
(d) This section shall not be construed to diminish or impair the rights of a person under any collective bargaining agreement.
General Statutes § Sec. 31-51q reads as follows:
Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer.
The defendants argue that the allegations in her amended complaint and her claims for relief and remedies in this civil tort action are identical to those made and sought in her grievance/administrative appeal. Thus, the defendants conclude that these are two parallel actions, which if permitted to proceed, may result in contradictory outcomes as to whether the plaintiff should be allowed to return to her job. However, the legislature has also enacted General Statutes § 31-51bb which states:
No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal Constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
"Section 31-51bb was enacted by the legislature to ensure that employees covered by a collective bargaining agreement receive the same opportunity to litigate their statutory claims as those employees who are not covered by a collective bargaining agreement. 31 H.R. Proc, Pt. 13, 1988 Sess., pp. 4567-68 . . . The legislative history indicates that the legislature intended that employees covered by a collective bargaining agreement retain the right to pursue a statutory action despite an adverse determination in a grievance or arbitration proceeding." Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 484, 628 A.2d 946 (1993). Thus, a plaintiff's statutory action would not be subject to attack by collateral estoppel. Id., 486.
"[T]he language of § 31-51bb and the legislative history indicate that [it was] intended to . . . eliminate the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court." Jackson v. Water Pollution Control Authority, 278 Conn. 692, 709, 900 A.2d 498 (2006). "[§ ]31-51bb was enacted by the legislature to ensure that employees covered by a collective bargaining agreement receive the same opportunity to litigate their statutory claims as those employees who are not covered by a collective bargaining agreement." Id., 710.
General Statutes § 31-51bb eliminates the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court. Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 481-82. "[A]n employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim." Id. "To hold otherwise would be to deny such an employee the right to pursue a statutory action solely because of the existence of a collective bargaining agreement." Id. "[A]lthough arbitral procedures are well suited to the resolution of contractual disputes, the legislature, in enacting 31-51bb, was entitled to consider that arbitration may be a less effective forum for the final resolution of statutory claims." Id., 489.
Having determined that § 31-51bb allows the plaintiff to pursue a separate statutory action under the "Whistle Blower" statute, General Statutes § 31-51m, even if she is ultimately unsuccessful in the grievance process, the question becomes whether the filing of this statutory claim prior to the outcome of the administrative proceeding, was premature. Section 31-51m(c) provides that the employee may bring a civil action " within ninety days of the final administrative determination or within ninety days of such violation, whichever is later." (Emphasis added.) It is clear by the language of the statute upon which the plaintiff relies, that her action under § 31-51m is premature as her administrative remedies have not, in fact, been exhausted.
General Statutes § 1-2z provides: The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
"Administrative adjudications can provide the opportunity for successful resolution of disputes without the time and costs of litigation. They also serve to reduce the burden on judicial resources. It therefore makes sense to toll the statute of limitation to allow the parties to attempt to resolve their differences first by administrative means." Campbell v. Plymouth, supra, 74 Conn.App. 82. Section 31-51m(c) provides a plaintiff remedies such as reinstatement, back wages, and reestablishment of employee benefits which are remedies being sought in the arbitration of the grievance. Section 31-51m also provides for the possible recovery of court costs and reasonable attorneys fees. Id.; see also General Statutes 31-51m. Section 31-51m is the proper statutory remedy for the plaintiff and she may proceed with her "whistle-blowing" claim, within ninety days of the final administrative determination, but not until then. The plaintiff's Third Count is also dismissed for lack of subject matter jurisdiction.
Orders
The defendants' motion to dismiss Counts One through Four of the plaintiff's complaint for a lack of subject matter jurisdiction is hereby granted