Opinion
No. HHD CV 09-4045477
March 8, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Kim Benevides, commenced this one-count whistle-blower action pursuant to General Statutes § 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 alleges that on or about April 2, 2009, she filed a complaint to the DOL, that the defendant had improperly classified her as an independent contractor. When she subsequently informed the defendant of her complaint, the defendant terminated her employment on July 1, 2009.
On August 7, 2009, approximately one month after commencing the instant lawsuit, the plaintiff also filed a charge of sexual harassment and retaliation against the defendant with the Connecticut commission on human rights and opportunities (CHRO), which remains pending. In her "affidavit of illegal discriminatory practice" the plaintiff states: "I was sexually harassed on or about [October 2008] through [March 2009] and believe that my having previously opposed discriminatory conduct was in part a factor in this action. I believe that the respondent violated the following Connecticut General Statutes and Acts listed below: [§§ ]46a-58(a), 46a-60(a)(1), 46a-60(a)(4), [and] Title VII of the Civil Rights Act of 1964, as amended . . ." In the narrative portion of her CHRO affidavit, the plaintiff states that the defendant's principal, Peter Amenta, sexually harassed her on at least five occasions. She further states: "On or about April 2, 2009, I told Amenta that I had just faxed a complaint to the Connecticut Department of Labor because he had just informed us that he was going to classify us as independent contractors. During that conversation, I also said that I should complain about the sexual harassment . . . In response to these complaints, and because of my complaint of sexual harassment, Amenta fired me." (Pl.'s CHRO affidavit, ¶¶ 7-8.) Finally, the plaintiff's affidavit states that Amenta's conduct violated the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-60(a)(1) and (4) (CFEPA), in that she was sexually harassed and terminated for complaining about it.
Pending before the court is the defendant's motion to dismiss asserting that the court lacks subject matter jurisdiction because the plaintiff has failed to exhaust her administrative remedies before filing this lawsuit pursuant to § 31-51m.
"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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "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).
In support of its motion, the defendant claims that the court lacks subject matter jurisdiction to hear the plaintiff's claim pursuant to § 31-51m because the plaintiff has failed to exhaust all available administrative remedies, notably her CHRO complaint. The plaintiff objects to this motion, arguing that her CHRO complaint, brought pursuant to the CFEPA, specifically, §§ 46a-60(a)(1) and (4), alleging sexual harassment and retaliation, is a separate and distinct claim from her whistle-blower action; that the CHRO has no jurisdiction to address the issue of which she complains in this lawsuit, i.e., termination from her employment for filing a complaint with the DOL for misclassification as an independent contractor; and, therefore, this lawsuit is not barred under the exhaustion requirement of § 31-51m.
Section 31-51m(c) provides in relevant part: "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 . . ." (Emphasis added.)
"Administrative adjudications can provide an opportunity for successful resolution of disputes without the time and costs associated with litigation. They also serve to reduce the burden on judicial resources . . . A valid administrative remedy, however, must provide for `meaningful relief,' otherwise litigation is merely postponed." Campbell v. Plymouth, 74 Conn.App. 67, 82, 811 A.2d 243 (2002). For example, the Appellate Court has held that "[u]nemployment compensation does not provide meaningful relief from a claim of wrongful discharge for `whistle-blowing' because it provides only partial wage compensation during periods of unemployment. [Unlike § 31-51m(c),] [t]he unemployment compensation commission cannot provide reinstatement or continuation of employee benefits." Id.
The defendant contends that the CHRO complaint can provide "meaningful relief" to the plaintiff and, therefore, the court lacks jurisdiction over the present case pending the outcome of the CHRO complaint. First, the defendant argues that both the CHRO complaint and the present action stem from the plaintiff's whistle-blowing regarding her improper classification. Second, the defendant argues that even if the CHRO complaint is unrelated to the present action, the scope of § 31-51m(c) is broad enough to encompass the CHRO complaint.
The defendant's arguments fail on both grounds. It cannot prevail on its first argument because, while the evidence underlying both complaints may be related or even overlapping, the CHRO complaint and the present action seek relief for distinctly different types of harm with separate statutory remedies. The complex of statutes that make up the CFEPA, constitutes most of Chapter 814c of the General Statutes, and includes §§ 46a-51 through 46a-104 which also includes a private right of action to bring a civil suit to the Superior Court after exhausting the administrative remedy provided by the CHRO. See General Statutes § 46a-104. Although both § 31-51 in 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 including sexual harassment and retaliation in the form of termination of employment as defined by § 46a-51(8).
"Our review of the [Fair Employment Practices Act] reveals that the legislature has devised a comprehensive ordered scheme through which claims of employment discrimination may be prosecuted." Lyon v. Jones, 291 Conn. 384, 397, 968 A.2d 416 (2009).
Secondly, the defendant's argument fails because the exhaustion requirement of § 31-51m(c) only encompasses available administrative remedies and the CHRO does not provide an administrative remedy for whistle-blowing claims based on the improper classification of an employee by an employer as an independent contractor.
In addition, the CHRO complaint process is complex and involves a detailed and often lengthy investigative process. To require exhaustion of it prior to bringing a § 31-51m lawsuit would undermine the comparatively streamlined relief contemplated by § 31-51m. Therefore, the plaintiff's CHRO remedy, which would address her sexual harassment and retaliation complaint, cannot be considered to provide "meaningful relief" to a § 31-51m(c) claim of wrongful termination based a relatively simple complaint to a different agency, the DOL, that her employer improperly classified her as an independent contractor.
Finally, the Superior Court decisions cited by the defendant are inapposite because they address situations where a pending CHRO claim dealt with the same matter as the § 31-51m(c) claim which is not the case herein. See Alston v. Banctec, Inc., Superior Court, judicial district of Hartford, Docket No. CV 02 0813684 (December 12, 2002, Cohn, J.) [ 33 Conn. L. Rptr. 523]; or the CHRO had jurisdiction to hear matters brought in a § 31-51m(c) claim. Daconto v. Housing Authority, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 4007847 (January 31, 2008, Ripley, J.T.R.).
CONCLUSION
Accordingly, for all the foregoing reasons, the motion to dismiss is hereby denied.