Opinion
HHDCV176076224S
06-29-2018
Juan RIVERA, Jr. v. UNIVERSITY OF CONNECTICUT, DEPARTMENT OF DINING SERVICES
UNPUBLISHED OPINION
OPINION
Peck, JTR
On March 9, 2017, the plaintiff, Juan Rivera, Jr., filed a two-count complaint against the defendant, University of Connecticut, Department of Dining Services alleging the following facts. The plaintiff suffers from Post-Traumatic Stress Disorder (PTSD) and engages in the palliative use of marijuana to alleviate his symptoms of PTSD and other debilitating medical conditions. On or about January 17, 2017, the plaintiff applied for a Kitchen Assistant position advertised by the defendant. During the hiring process for this position, the plaintiff submitted to urinalysis drug test at the defendant’s request which came back positive for the presence of marijuana. In response to being notified that the test was positive for the presence of marijuana, the plaintiff contacted the defendant to explain that he had a medical marijuana certificate and that he engages in the palliative use of marijuana to alleviate PTSD symptoms. Notwithstanding the plaintiff’s justification, the defendant disqualified the plaintiff as a potential candidate for the job opening.
On May 30, 2017, the defendant filed a motion to dismiss the plaintiff’s complaint on the ground that it has sovereign immunity from this suit wherein the plaintiff seeks money damages. The motion has been fully briefed by the parties. Oral argument on the motion was held on March 19, 2018.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding 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." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
The plaintiff’s claim is brought under a relatively new statute which allows those with medical conditions to use medical marijuana. In support of its motion to dismiss, the defendant argues that the plaintiff has not alleged and cannot allege that the State has waived its sovereign immunity for such a claim. The plaintiff does not cite to any statute and cannot cite to any statute authorizing an action against the state. In opposition, the plaintiff counters that General Statutes § 21a-408p creates a private action which allows for this suit to be brought against the defendant and that § 21a-408p constitutes a waiver of sovereign immunity by necessary implication.
"The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). "The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state’s immunity from liability or suit." Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010). "[The Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ... [When] there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 388, 978 A.2d 49 (2009).
"[The Supreme Court has] held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ..." (Citation omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "In Mahoney v. Lensink, 213 Conn. 548, 569 A.2d 518 (1990), [the court] explained that, in order for statutory language to give rise to a necessary implication that the state has waived its sovereign immunity, [t]he probability ... must be apparent, and not a mere matter of conjecture; but ... necessarily such that from the words employed an intention to the contrary cannot be supposed. In other words, in order for a court to conclude that a statute waives sovereign immunity by force of necessary implication, it is not sufficient that the claimed waiver reasonably may be implied from the statutory language. It must, by logical necessity, be the only possible interpretation of the language." Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 388-90. "It is well established that, when the doctrine of sovereign immunity is applicable, the state must consent to be sued in order for a claimant to pursue any monetary claim against the state ... The claims commissioner may waive that immunity pursuant to ... § 4-160(a) and consent to suit, but until that occurs, the Superior Court has no jurisdiction to hear any such monetary claim." (Internal quotation marks omitted.) Chief Information Officer v. Computer Plus Center, Inc., 310 Conn. 60, 91, 74 A.3d 1242 (2013).
In the instant action, the plaintiff has not established that the State has waived its sovereign immunity. Section 21a-408p(b)(3) provides that no employer may refuse to hire a person or may discharge, penalize, or threaten an employee solely on the basis of such person’s palliative use of marijuana. There is no language contained in § 21a-408p(b)(3) that expressly waives sovereign immunity. The plaintiff further argues that § 21a-408p(b)(3) waives sovereign immunity by necessary implication. The waiver of sovereign immunity is not the only possible interpretation of the language in § 21a-408p(b)(3). Section 21a-408p(b)(3) establishes the parameters for protecting employees or potential employees using marijuana for palliative care. A plain meaning reading of this specific statutory provision allows for multiple interpretations. It is not enough that the claimed waiver reasonably may be implied from the statutory language. The claimed waiver is not, by logical necessity, the only interpretation of the language contained in § 21a-408p(b)(3). There is a strong presumption in favor of the state’s immunity and the plaintiff has failed to show that the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity.
In a supplemental memorandum, the plaintiff has cited the case of Noffsinger v. SSC Niantic Operating Company, LLC, 273 F.Supp.3d 326 (D.Conn. 2017), wherein the court recognized a private cause of action pursuant to § 21a-408p(b)(3). The court notes, however, that while the issue of sovereign immunity is the only issue before this court, sovereign immunity was not before the court in Noffsinger.
Furthermore, the plaintiff has filed a petition for permission to sue the state with the Office of the Claims Commission, which remains pending. The Claims Commissioner may authorize suit against the state, pursuant to General Statutes § 4-160, and thereby waive the state’s sovereign immunity. Unless or until that occurs, the Superior Court does not have subject matter jurisdiction to hear the case.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant’s motion to dismiss on the ground of sovereign immunity is hereby granted.