Opinion
No. CV 07 4029029S
April 6, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #129
FACTS
This case concerns alleged racial discrimination against black firefighters by the New Haven Firefighters Local 825. The plaintiff, Gary Tinney, commenced this action by service of process on the defendant, the New Haven Firefighters Local 825, on November 30, 2007. The plaintiff's third revised complaint, filed January 2, 2009, alleges the following facts. The defendant has repeatedly acted against the interests of minority firefighters. The complaint lists several examples. First, the defendant filed a federal lawsuit in 2004 in an attempt to force the city of New Haven to certify the civil service exams of two white firefighters after the city refused to do so on the ground that the examinations were culturally biased and resulted in too few minority candidates for promotions. Second, the defendant failed to represent the interests of minority firefighters who had been unfairly disciplined by the Department of Fire Service. For example, the union refused to intervene on behalf of a minority firefighter, not a party to this action, who was required to submit to nineteen drug tests. Third, the defendant offered favorable treatment to Caucasian firefighters. For example, a Caucasian firefighter arrived to work while intoxicated. Fourth, the defendant supported the filling of vacant positions within the Department with white temporary acting personnel who had not submitted to testing while minority employees could have filled the positions. For example, a minority firefighter, not a party to this action, was not given a position he wanted. Fifth, after the plaintiff voiced his opposition to the discriminatory practices of the defendant, the defendant subjected the plaintiff to retaliatory treatment, public scorn and ridicule. For example, the plaintiff was detailed to a different location than his regular assignment on April 2, 2006, while a white overtime officer covered the plaintiff's regular shift. The defendant refused to intervene on the plaintiff's behalf in the matter.
The complaint alleges that the plaintiff presented his case to the Commission on Human Rights and Opportunities (CHRO) and the Equal Employment Opportunities Commission (EEOC). The complaint further alleges that the plaintiff has "satisfied all statutory conditions precedent to bringing the instant causes of action by exhausting all applicable administrative remedies." The CHRO issued a release of jurisdiction letter on November 2, 2007.
The third revised complaint is divided into three counts. The first count alleges a violation of General Statutes § 46a-60(a)(3) and (4). The second count alleges intentional infliction of emotional distress and alleges further that the defendant's actions were both intentional and extreme and outrageous. The third count alleges negligent infliction of emotional distress and further alleges that the defendant knew or should have known that its conduct created an unreasonable risk of causing emotional distress.
Section 46a-60(a) provides, in relevant part: "It shall be a discriminatory practice in violation of this section: . . . (3) For a labor organization, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification; (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . ."
On August 23, 2010, the defendant moved for summary judgment on the ground that there were no genuine issues of material fact, and that it was entitled to a judgment as a matter of law on all three counts. On October 29, 2010, the Superior Court, Frechette, J., denied that motion because of the existence of genuine issues of material fact. On February 3, 2011, the defendant moved to dismiss the plaintiff's third revised complaint in its entirety on the ground that this court lacks subject matter jurisdiction over the plaintiff's claim. The defendant filed a memorandum in support of its motion on the same day. The court heard the matter at short calendar on February 22, 2011. A jury trial is scheduled for this case on April 15, 2011.
ANALYSIS
"Under [the exhaustion 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." (Internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). "Because the [exhaustion doctrine] implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Id.
"Pursuant 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). "Subject matter jurisdiction [implicates] 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 . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). "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.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).
The defendant argues that the court lacks subject matter jurisdiction because the plaintiff's complaint is based on the defendant's failure to provide fair representation to the plaintiff under General Statutes § 7-468(d). Those complaints must first be presented to the State Board of Labor Relations (SBLR) under § 7-471, and that administrative remedy must be exhausted before the plaintiff may bring an action in the Superior Court. Here, the plaintiff has not presented his cause of action to the SBLR and the defendant argues that this court therefore lacks subject matter jurisdiction to hear the plaintiff's claims. The plaintiff counters that his complaint does not allege a cause of action based on the union's failure to provide fair representation to the plaintiff. Instead, the plaintiff argues that his claim is a race discrimination claim against the defendant. Indeed, the plaintiff argues, he did present his claim to the CHRO and the CHRO released jurisdiction to the Superior Court. Moreover, a voluntary association of black firefighters, the Firebirds, presented claims substantially similar to the ones in this case to the SBLR while the plaintiff was the vice president of that organization. The SBLR declined to examine the organization's racial discrimination claims.
Section 7-468(d) provides: "When an employee organization has been designated in accordance with the provisions of sections 7-467 to 7-477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit."
"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . For example, when a statute provides for an adequate remedy, we have long adhered to the rule that, where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test . . ."A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of [g]overnment, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Citations omitted; internal quotation marks omitted.) St. Paul Travelers Cos., Inc. v. Kuehl, 299 Conn. 800, 812-13, 12 A.3d 852 (2011).
The defendant's argument is premised on the assumption that this case implicates § 7-468(b). "The legislative history of General Statutes § 7-468(d) clearly shows that the legislature's two related purposes for enacting it were as follows: first, to codify the existing duty of fair representation, as it had been recognized and defined in Connecticut case law up to 1993; and second, to make any breach of that duty a prohibited act or practice under subsection (3) of General Statutes § 7-470(b) which was added to that statute as a part of Public Act 93-426, and thus to require any employee claiming breach of that duty to file his claim initially as a complaint with the SBLR rather than an action in Superior Court. These purposes were detailed with unusual clarity by the discussion that took place on the floor of the House of Representatives shortly before it was passed." Long Ridge Paid Drivers Ass'n v. Romaniello, Superior Court, complex litigation docket at Hartford, Docket X02 CV 97 0163992 (Aug. 6, 2002, Sheldon, J.) ( 32 Conn. L. Rptr. 675, 677). "[T]he new legislation was specifically intended to require all persons bringing claims for breach of the duty of fair representation to file their claims initially with the SBLR." (Emphasis in original.) Id., 678.
It is clear from the text of the statute and the legislative history that any claim against a union claiming a breach of the duty of fair representation must first be presented to the SBLR. Here, however, the plaintiff claims that his three counts, for civil rights violations, intentional infliction of emotional distress, and negligent infliction of emotional distress, are not claims for a breach of the duty of fair representation. The defendant counters that the factual allegations underlying those claims are premised on the union's failure to fairly represent the plaintiff.
The court has already stricken a count from the plaintiff's complaint that alleged a violation of the duty of fair representation. Tinney v. New Haven Firefighters Local 825, Superior Court, judicial district of New Haven, Docket No. CV 07 4029029 (October 20, 2008, Cosgrove, J.). That count alleged: "Notwithstanding the plaintiffs' legal entitlement to representation . . . the defendant has refused to honor and/or enforce said representation in complete disregard of and in direct breach of its duty . . . to the plaintiff . . ." In ruling on the motion to strike, the court agreed with the defendant and ruled that the allegation was one for a breach of the duty of fair representation in violation of § 7-470(b)(3). A claim for a violation of that section must be presented to the SBLR before being presented to the Superior Court. The court therefore agreed that it lacked subject matter jurisdiction to hear the plaintiff's claim for a breach of the union's duty of fair representation.
The defendant now asks the court to apply the same ruling to the plaintiff's other claims and rule that the plaintiff was required to submit his racial discrimination, intentional infliction of emotional distress, and negligent infliction of emotional distress claims to the SBLR. That interpretation of the plaintiff's claims defy logic and the SBLR's own interpretation of § 7-470(b)(3). When the Firebirds presented an identical claim to the SBLR in 2007, the SBLR declined to hear the matter because the Firebirds lacked standing, but went on to say: "There is a very considerable question as to whether there can be a breach of duty of fair representation based solely on alleged racial discrimination . . . Since the General Assembly put . . . specific language regarding racial discrimination into the statutes creating and empowering CHRO, and put nothing expressly dealing with this issue in any of the four Acts that we administer, a reasonable interpretation is that [the] Board of Labor Relations was not meant to have jurisdiction over such matters." (Ex. A to Pl.'s Mem. in Opp'n to Mot. to Strike, 5, May 30, 2008.)
Although this case is not a direct appeal from an administrative agency's decision, our Supreme Court has held: "We normally accord great deference to the construction of a statute by the agency charged with its enforcement and only reverse when the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion." Crocetto v. Lynn Development Corporation, 223 Conn. 376, 381, 612 A.2d 1212 (1992). In this case, the SBLR indicated in a prior decision that it was not empowered to consider the racial discrimination claim in the plaintiff's complaint.
The plaintiff's surviving claims have their basis in § 46a-60 and the common law. None of those claims is based on the defendant's alleged violation of § 7-470(b)(3). The plaintiff alleges that he was the victim of racial discrimination at the hands of the defendant and that the defendant intentionally and negligently inflicted emotional distress on the plaintiff, not that the defendant breached its duty of fair representation of the plaintiff. The plaintiff was therefore not required to present his claim to the SBLR in this case before proceeding in the Superior Court. The court has subject matter jurisdiction over this claim. Accordingly, the defendants' motion to dismiss is denied.
The court's holding is not premised on the doctrine of futility. "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . We have held that utilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant." (Emphasis in original; citations omitted; internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004). In this case, the court need not address the possibility that presenting the plaintiff's claims to the SBLR would be futile because of the court's ruling that the plaintiff's claims do not arise out of the defendant's duty of fair representation and are therefore not within the ambit of § 7-470(b)(3).