Opinion
No. CV 09-4028116 S
August 9, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (Motion #102.00)
FACTS
The plaintiff, Deborah Santacapita, commenced this action by service of process on March 17, 2009, against the defendant, the Board of Education of the city of Bridgeport. The two-count complaint alleges unlawful retaliation in violation of the public policy of the state of Connecticut and a violation of Connecticut's whistleblower statute, General Statutes § 31-51m. The plaintiff alleges the following facts in count one. In 2005, the plaintiff was the assistant principal at Roosevelt School in Bridgeport, Connecticut. At that time, Carmen Perez Dickson was the principal of Roosevelt School. In November 2005, the plaintiff suspected child abuse in connection with an incident involving Dickson and a student. Pursuant to General Statutes §§ 17a-101 to 17a-101c, inclusive, the plaintiff was a mandated reporter of suspected incidents of child abuse and was required to report the incident to the commissioner of children and families. Therefore, the plaintiff reported the incident to the agency.
Section 31-51m(b) provides in relevant part: "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." Section 31-51m(c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of [§ 31-51m(b)] may, after exhausting all available administrative remedies, bring a civil action . . . in the superior court . . ."
Section 17a-101(b) provides in relevant part: "The following persons shall be mandated reporters: Any . . . school teacher, school principal . . ." Section 17a-101a provides in relevant part: "Any mandated reporter . . . who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years . . . has been abused or neglected . . . shall report or cause a report to be made . . ." Section 17a-101b(a) provides in relevant part: "An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm, by telephone or in person to the Commissioner of Children and Families or a law enforcement agency." Section 17a-101c provides in relevant part: "Within forty-eight hours of making an oral report, a mandated reporter shall submit a written report to the Commissioner of Children and Families or his representative . . . In the case of a report concerning a school employee holding a certificate, authorization or permit issued by the State Board of Education . . . a copy of the written report shall also be sent by the person in charge of such institution, school or facility to the Commissioner of Education or his representative."
The plaintiff further alleges the following facts in count one. After the commissioner of children and families determined that there was insufficient evidence against Dickson, the plaintiff was transferred from her position as assistant principal to the interim position of the "No Child Left Behind" liability coordinator. In September of 2008, the plaintiff applied for the Director of Literacy position, and received recommendations from the defendant's Executive Director of Learning and Teaching and the Superintendent of Schools. Before her scheduled interview, members of the defendant were overheard objecting to the plaintiff's appointment on the ground that she allegedly defamed a beloved principal. Moreover, prior to her interview, the defendant's Executive Director of Learning and Teaching, at the direction of the Superintendent of Schools, told the plaintiff to withdraw her application because the plaintiff "had no chance of promotion or recognition as a result of the [plaintiff's] . . . report of suspected child abuse with the Commissioner of Children and Families." Subsequently, the plaintiff withdrew the application for promotion to avoid additional embarrassment and disrepute.
The plaintiff alleges the following additional facts in count one. The plaintiff experienced a pattern and practice of continuing debasement as a professional school administrator. The retaliatory conduct included "actions meant to demean, degrade, intimidate, and punish the plaintiff for reporting Dickson's abusive behavior toward a pupil under her supervision."
The plaintiff alleges that "[i]t is a violation of the public policy of the state of Connecticut for the defendant to retaliate against the plaintiff for reporting in good faith an incident of child abuse." According to the plaintiff, there is also "no available administrative remedy to address the type of retaliatory conduct to which she has been subjected, which does not consist of being discharged, disciplined or otherwise penalized."
The plaintiff incorporates all the allegations of count one within count two. The plaintiff further alleges, however, that "[t]he retaliatory actions of the defendant . . . constitute a continuous course of conduct made unlawful by the provisions of . . . § 31-51m."
On September 18, 2009, the defendant filed a motion to dismiss count one on the ground that only the attorney general may bring a cause of action under General Statutes § 17a-101e(a). The defendant also moves to dismiss count two on the ground that the plaintiff failed to exhaust all available administrative remedies as required by § 31-51m before commencing the present action. The plaintiff filed a memorandum of law in opposition to the motion to dismiss on February 17, 2010. This matter was heard at short calendar on May 16, 2011.
Section 17a-101e(a) provides in relevant part: "No employer shall discharge, or in any manner discriminate or retaliate against, any employee who in good faith makes a report . . . testifies or is about to testify in any proceeding involving child abuse or neglect. The Attorney General may bring an action in Superior Court against an employer who violates this subsection. The court may assess a civil penalty of not more than two thousand five hundred dollars and may order such other equitable relief as the court deems appropriate."
DISCUSSION
Practice Book § 10-31 provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." "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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [and] other types of undisputed evidence . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
I
The defendant argues that the court lacks subject matter jurisdiction over count one of the plaintiff's complaint on the ground that only the attorney general may bring a cause of action under § 17a-101e(a). Specifically, the defendant asserts that "[t]here is no judiciable issue before the court under the first count of the complaint in that the plaintiff cannot bring a civil action before the court based on § 17a-101e. While a portion of that statute does state that it was promulgated to promote a public policy to protect the welfare of children, the statute also clearly states that only the Attorney General may bring [an] action against an employer who violates said statute. Accordingly there is no claim pending based [on that statute]. . ."
The plaintiff concedes that she does not possess a private right of action pursuant to § 17a-101e(a). The plaintiff counters, however, that count one is not alleging a cause of action pursuant to § 17a-101e(a), but rather, it sets forth allegations "of wrongful employment practices in violation of the public policy [of the state of Connecticut]."
Because the plaintiff concedes she has no private right of action and is not bringing court one under § 17a-101e(a), there is no issue of whether she has standing to bring the claim as alleged in count one of the complaint. The court, however, may analyze the issue of standing in connection with the plaintiff's allegations in count one and therefore, it will be briefly addressed. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009) ("the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by . . . the court sua sponte, at any time" [internal quotation marks omitted]).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Luster v. Luster, 128 Conn.App. 259, 263, 17 A.3d 1068 (2011).
In the present case, the plaintiff's allegations include conduct by the defendant directed only against herself as an individual. Moreover, an individual may sue in their own capacity for injuries allegedly sustained to their own person. See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, 829 A.2d 801 (2003) ("[standing] objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [she] has suffered or is likely to suffer, in an individual . . . capacity" [emphasis added; internal quotation marks omitted]). Thus, the plaintiff is the proper party to bring such a claim, and, the court has "the authority . . . to adjudicate the type of controversy presented by [the complaint]." (Emphasis added; internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688-89, 4 A.3d 248 (2010).
II
Next, the defendant argues that the court does not have subject matter jurisdiction over count two, which alleges a violation of § 31-51m, as the plaintiff failed to exhaust all available administrative remedies before instituting the present action. Specifically, the defendant asserts that the plaintiff "failed to avail herself of administrative remedies under . . . the [Connecticut] Fair Employment Practices Act, [General Statutes § 46a-51 et seq.,] and the Municipal Employee Relations Act, [General Statutes § 7-467 et seq.,] and the contract between the city of Bridgeport and the BCAU Union of which she is a member." The defendant further argues that although the plaintiff commenced an administrative action with the Connecticut Commission on Human Rights and Opportunities (CHRO), the agency has yet to issue a "right to sue" letter required by General Statutes §§ 46a-100 and to bring an action in Superior Court.
The defendant has not identified the meaning of the acronym "BCAU."
Other than stating the names of the statutes of which the plaintiff has failed to avail herself, the defendant does not articulate any legal analysis in support of these arguments. "It is not the province of this court to formulate arguments for the parties." (Internal quotation marks omitted.) Murphy v. Cowie, Superior Court, judicial district of New Haven, Docket No. CV 09 5031311 (July 13, 2010, Keegan, J.). "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." Hogan v. Dept. of Children Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009); see also State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess. 1981) (where the defendant did not brief two of the grounds relied upon in his motion to strike, the court "treat[ed] those issues as abandoned"). Although the defendant fails to provide any legal analysis in support of its motion, "once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 778, 15 A.3d 1150 (2011). Therefore, the court must consider the merits of the defendant's conclusory arguments.
Section 46a-100 provides in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities . . . and who has obtained a release from the commission . . . may also bring an action in the superior court . . ."
Section 46a-101 provides in relevant part: "No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission . . ."
The plaintiff counters that the defendant lacks evidence demonstrating that the plaintiff failed to exhaust an available administrative remedy. As to the Municipal Employee Relations Act, the plaintiff argues that the defendant "relies on conclusory allegations based purely on speculation and conjecture unsupported by factual averments . . ." The plaintiff asserts that the Municipal Employee Relations Act does not provide the plaintiff with an administrative remedy, but instead, provides a framework for collective bargaining in the public sector. The plaintiff also points out that the defendant does not provide the court with the actual contract between the city of Bridgeport and the BCAU Union, nor does it cite to any contractual language in support of its argument. As to the "right to sue" letter, the plaintiff argues that the present action does not allege discrimination and therefore, the CHRO does not have jurisdiction over the present claim.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) In re Matthew F., supra, 297 Conn. 688-89. Specifically, "[t]he doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . Under that doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed . . . Thus, [our Supreme Court has] frequently held that [when] a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure . . . When, however, a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Citations omitted; internal quotation marks omitted.) Piteau v. Board of Education, 300 Conn. 667, 678-79, 15 A.3d 1067 (2011).
Section 31-51m(b) provides in relevant part: "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." Section § 31-51m(c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of § 31-51m(b)] may, after exhausting all available administrative remedies, bring a civil action . . . in the superior court . . ."
A
The Municipal Employee Relations Act (MERA), § 7-467 et. seq., governs collective bargaining for municipal employees. Specifically, the purpose of the MERA "is to seek the peaceful adjustment of labor-management disputes as a substitute for industrial strife and the promotion of industrial stabilization through the collective bargaining agreement." Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 356, 402 A.2d 332 (1978). "General Statutes § 7-471(5) provides in relevant part: `Whenever a question arises as to whether a [prohibited practice] . . . has been committed by a municipal employer or employee organization, the board [of labor relations] shall consider that question in accordance with the following procedure . . . (D) For the purposes of hearings and enforcement of orders . . . the board [of labor relations] shall have the same power and authority as it has in sections 31-107 . . . and 31-109 . . .' Thus, the board of labor relations is charged, in the first instance, with determining whether an unfair practice, as defined by statute, has been committed and [if so] with remedying any violations." (Internal quotation marks omitted.) Piteau v. Board of Education, supra, 300 Conn. 679.
General Statutes § 31-107 provides in relevant part: "The [labor relations board] is empowered and directed to prevent any unfair labor practices. When a complaint has been made to the board that any employer has engaged in or is engaging in an unfair labor practice, the board shall refer such complaint to the agent who shall, after investigation and within ninety days after the date of such referral, either (1) make a report to the board recommending dismissal of the complaint or (2) issue a written complaint charging unfair labor practices . . . Upon receiving a report from the agent recommending dismissal of a complaint, the board may issue an order dismissing the complaint or may order a further investigation or a hearing thereon."
General Statutes § 31-109 provides in relevant part: "The [labor relations board] may petition the superior court for the judicial district wherein the unfair labor practice in question occurred or wherein any person charged with the unfair labor practice resides or transacts business, or, if said court is not in session, any judge of said court, for the enforcement of an order and for appropriate temporary relief or a restraining order, and shall certify and file in the court a transcript of the entire record of the proceedings, including the pleadings and testimony upon which such order was made and the finding and orders of the board."
In the present case, the defendant asserts that the plaintiff failed to exhaust administrative remedies pursuant to the MERA. Pursuant to § 7-467(2), however, "`[e]mployee' means any employee of a municipal employer . . . except . . . certified teachers . . ." See also West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 579 n. 3, 295 A.2d 526 (1972) ("[i]t is noteworthy that certified teachers were specifically excluded from the provisions of the Municipal Employee Relations Act"). § 7-467(2), however, does not specifically define "certified teachers." Thus, the court is required to ascertain the meaning of the term.
In order to determine the meaning of a "certified teacher," this court looks to its definition in relation to other statutes. For instance, General Statutes §§ 10-151(2) and 10-151c of the Teacher Tenure Act (TTA) define a "teacher" as "each certified professional employee below the rank of superintendent employed by a board of education . . . in a position requiring a certificate issued by the State Board of Education." For purposes of the TTA, our Supreme Court has also recognized that the term "teachers" includes "administrators." Cimochowski v. Hartford Public Schools, 261 Conn. 287, 298, 802 A.2d 800 (2002), citing Rose v. Freedom of Information Commission, 221 Conn. 217, CT Page 17392 234, 602 A.2d 1019 (1992) (" § 10-151c applies to principal and assistant principal . . ."); see also Connecticut Education Assn. v. State Board of Labor Relations, 5 Conn.App. 253, 271, 498 A.2d 102, cert. denied, 197 Conn. 814, 499 A.2d 804 (1985) ("a certified teacher remains a part of the teacher class regardless of what other administrative positions might be attained").
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [courts] seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . [the court] first . . . [considers] 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." (Citation omitted; internal quotation marks omitted.) Commissioner of Public Safety v. Board of Firearms Permit Examiners, 129 Conn.App. 414, 420, (2011).
Additionally, the Teacher Negotiation Act (TNA) provides guidance in defining "certified teachers." Our Supreme Court has stated that the provisions within the TNA "[are] not limited to teachers who are not in administrative positions. Principals are `certified professional employees' and are covered by the [TNA]." Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 436, 324 A.2d 267 (1973). As a result, in considering the text in relation to other statutes, the term "certified teacher" as used in MERA includes an assistant principal. Pursuant to § 7-467(2), a "certified teacher" is excluded from the provisions of the MERA, and thus, the plaintiff does not have an available administrative remedy to pursue under the MERA.
B
The defendant further argues that the plaintiff failed to exhaust administrative remedies pursuant to "the contract between the city of Bridgeport and the BCAU Union of which she is a member." Our Supreme Court has recognized "a preference for resolving disputes between teachers and boards of education through contract grievance proceedings, thereby affording both union and employer an exclusive and uniform method for orderly settlement of grievances." (Citations omitted.) Kolenberg v. Board of Education, 206 Conn. 113, 123, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed.2d 935 (1988), rev'd on other grounds, 226 Conn. 475, 628 A.2d 946 (1993) (recognizing General Statutes § 31-51bb as overruling Kolenberg v. Board of Education to the extent of its holding that constitutional claims were subject to the exhaustion of administrative remedies requirement). "[I]t is not only permissible but desirable for grievances between employees . . . and the employer . . . to be settled through contract grievance-arbitration procedures." (Internal quotation marks omitted.) Hartford Principals' Supervisors' Assn. v. Shedd, 202 Conn. 492, 500, 522 A.2d 264 (1987).
Section 31-51bb provides: "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."
"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 . . ." (Internal quotation marks omitted.) Reyes v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 07 4022673 (February 24, 2011, Levin, J.), citing Hunt v. Prior, 236 Conn. 421, 431, 673 A.2d 514 (1996); see also Hartford Principals' Supervisors' Assn. v. Shedd, supra, 202 Conn. 500 ("the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement before resorting to the courts" [internal quotation marks omitted]). At the same time, however, our legislature created an exception to this general rule. Section 31-51bb provides: "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." Importantly, the exception applies to statutory claims as well as constitutional claims. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 484, 628 A.2d 946 (1993) ("[s]ection 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"); see also Santana v. Hartford, 94 Conn.App. 445, 468 n. 19, 894 A.2d 307 (2006) ("[s]ection 31-51bb is a statutory exception to the exhaustion doctrine and, therefore, the failure to complete the grievance proceedings [does] not deprive the court of subject matter jurisdiction with respect to the plaintiff's constitutional claim").
In the present case, the defendant fails to submit any affidavits, contracts or other documentation in support of this argument. Therefore, the court is required to decide the "jurisdictional question raised by [the] pretrial motion to dismiss on the basis of the complaint alone, [and] it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651. In the complaint, the plaintiff alleges that she "has no available administrative remedy to address the type of retaliatory conduct to which she has been subjected, which does not consist of being discharged, disciplined or otherwise penalized." As a result, by examining only the allegations within the complaint in their most favorable light, the plaintiff exhausted all administrative remedies in connection with the contract between the city of Bridgeport and the BCAU Union, of which the plaintiff is allegedly a member.
Although it may seem that this is an instance where an evidentiary hearing is required in order to determine jurisdictional facts, a hearing is only required "where a jurisdictional determination is dependent on the resolution of a critical factual dispute . . ." Conboy v. State, supra, 292 Conn. 652. "Our Supreme Court has instructed that in the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss . . . A material fact is one that will make a difference in the result in the case . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 163, 7 A.3d 414 (2010), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011). Here, the court is unable to determine in the first instance whether a "critical factual dispute" exists, as the defendant fails to attach any affidavits or a relevant collective bargaining agreement. Therefore, an evidentiary hearing is not required in order to decide the present motion to dismiss.
C
The defendant argues that the plaintiff did not exhaust administrative remedies pursuant to the Connecticut Fair Employment Practices Act (CFEPA), § 46a-51 et seq. "[T]he Connecticut legislature clearly enacted CFEPA for the purpose of eliminating employment discrimination." Cimino v. Pratt Whitney, Superior Court, judicial district of New Haven, Docket No. CV 07 5011977 (November 29, 2007, Bellis, J) ( 44 Conn. L. Rptr. 621). "[T]he CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO. It is the CHRO that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination." Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985).
Under CFEPA, "`discriminatory employment practice'" means any discriminatory practice specified in section 46a-60 or 46a-81c . . ." General Statutes § 46a-51(7). Section 46a-60(a)(1) provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . [f]or an employer . . . to discriminate against [an] individual . . . in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, martial status, national origin, ancestry, present or past history of mental . . . or physical disability . . ." Additionally, § 46a-81c provides in relevant part: "It shall be a discriminatory practice . . . [for an employer . . . to discriminate against [an individual] . . . in terms, conditions or privileges of employment because of the individual's sexual orientation or civil union status . . ." "Any person claiming to be aggrieved by an alleged discriminatory practice . . . may . . . file with the [CHRO] a complaint in writing . . ." General Statutes § 46a-82.
In the present case, the complaint alleges that the plaintiff was subject to retaliation after reporting suspected child abuse to the commissioner of children and families. Pursuant to § 46a-82, a person alleging a discriminatory practice may file a complaint with the CHRO. Absent from the complaint, however, is any allegation that the plaintiff was subject to any discriminatory practices by the defendant, as defined in §§ 46a-60 and 46a-81c. Therefore, CFEPA does not provide the plaintiff with an available administrative remedy, and thus, it does not bar the plaintiff's present action.
D
Lastly, the defendant argues that although the plaintiff filed a separate complaint with the CHRO, the agency has yet to issue the plaintiff a "right to sue" letter required by §§ 46a-100 and 46a-101. In support of this position, the defendant attaches the plaintiff's complaint filed with the CHRO, accompanied by the plaintiff's affidavit in support of the CHRO complaint.
Section 46a-100 provides in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities . . . and who has obtained a release from the commission . . . may also bring an action in the superior court . . ." Section 46a-101 provides in relevant part: "No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission . . ."
A recent Superior Court case is instructive in considering the defendant's argument. In Benevides v. Roundhouse, LLC, Superior Court, judicial district of Hartford, Docket No. CV 09 4045477 (March 8, 2010, Peck, J.) ( 49 Conn. L. Rptr. 438), the plaintiff brought an action pursuant to § 31-51m "against her former employer, the defendant, Roundhouse, LLC, alleging that she was terminated from her employment by the defendant after reporting illegal conduct to the Connecticut Department of Labor (DOL)." Specifically, the plaintiff filed a complaint with the DOL after the defendant improperly classified her as an independent contractor. Approximately one month after instituting the action, the plaintiff filed a claim with the CHRO alleging sexual harassment and retaliation. Importantly, the CHRO complaint remained pending at the time the court decided the case.
The defendant moved to dismiss the plaintiff's complaint on the ground that the court lacked subject matter jurisdiction because the plaintiff failed to exhaust all administrative remedies. The defendant argued that the present action and the CHRO claim stemmed from the same incident. Additionally, the defendant asserted that although the CHRO complaint was unrelated to the current action, "the scope of § 31-51m(c) is broad enough to encompass the CHRO complaint." The court rejected these arguments, holding that "[a]lthough both § 31-51 and § 46a-104 each afford broad relief, the CHRO has no jurisdiction over claims of misclassification of an employee as an independent contractor. The purview of the CHRO is limited to discriminatory employment practices . . ." The court further held that "the defendant's argument fail[ed] because the exhaustion requirement of § 31-51m(c) only encompasses available administrative remedies and the CHRO does not provide an administrative remedy for . . . improper classification of an employee by an employer as an independent contractor."
General Statutes § 46a-104 provides: "The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs."
In support of its motion, the defendant in the present case attaches the plaintiff's CHRO complaint along with the accompanying affidavit, which the plaintiff fails to dispute. Therefore, "the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651. On March 12, 2009, the plaintiff filed a complaint with the CHRO alleging race and color discrimination in violation of General Statutes §§ 46a-58(a) and 46a-60(a)(1). Five days later, on March 17, 2009, the plaintiff brought the present claim, alleging, inter alia, retaliatory conduct in violation of § 31-51m after reporting suspected child abuse to the commissioner of children and families. The present claim, however, is a separate action in comparison to the CHRO complaint which provides relief under a different statute. Moreover, the plaintiff's present action is not predicated on any alleged discriminatory practices by the defendant; it is based on retaliatory conduct for reporting suspected child abuse. Therefore, similar to Benevides v. Roundhouse, LLC, supra, 49 Conn. L. Rptr. 438, the CHRO does not have jurisdiction over the present claim. As a result, the CHRO does not provide an available administrative remedy to the plaintiff.
Section 46a-58(a) provides: "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability."
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.