Opinion
CV176071050S
05-31-2018
Khalilah BOYKE v. SOUTHERN CONNECTICUT STATE UNIVERSITY
UNPUBLISHED OPINION
Wilson, J.
I
FACTS
On May 21, 2018, the plaintiff, Khalilah Boyke (plaintiff), filed a four-count revised complaint against the defendant, Southern Connecticut State University (defendant), asserting claims of discrimination pursuant to General Statutes § 46a-60(a)(1), violation of the Connecticut Family and Medical Leave Act (CFMLA), intentional infliction of emotional distress, and negligent infliction of emotional distress, counts one, two, three, and four, respectively of the Revised Complaint. The plaintiff also asserts a claim for punitive damages.
The plaintiff revised the complaint to withdraw her claim asserting violation of General Statutes § 46a-70, in accordance with the representation that the plaintiff made to the court, Wilson, J., at oral argument on February 20, 2018.
The plaintiff’s revised complaint alleges the following facts. The defendant is a public state university in Connecticut. The plaintiff worked for the defendant as an Emergency Dispatcher. The plaintiff began suffering from an acute illness, later diagnosed as undifferentiated connective tissue disorder (UCTD), which was debilitating and left her unable to work. Upon providing the defendant with medical documentation from her treating doctors, the plaintiff was approved for medical leave under the CFMLA. From October 2008 until February 2016, the plaintiff continued to receive approval for medical leave under the CFMLA, during which time the plaintiff continued to work for the defendant and perform all of her occupational duties. On February 19, 2016, the defendant placed the plaintiff on unpaid leave. The defendant refused to allow the plaintiff to return to work despite medical records from the plaintiff’s treating doctors indicating that she could return to work. The plaintiff was terminated from her employment with the defendant on September 15, 2016, after having been informed that she would not be reinstated, and that the defendant did not have a less arduous position available that would fit the plaintiff’s needs.
In 2008, the plaintiff was approved to miss one to two days per month in the event of a flare-up. In December 2012, as a result of increased flare-ups from the UCTD, the plaintiff needed to take additional time off, and was approved for three to four intermittent absences from work each month.
The plaintiff alleges wrongful conduct by the defendant. The plaintiff also alleges that the defendant’s wrongful conduct was willful, wanton, and/or malicious and, as such, the plaintiff is entitled to punitive damages. Rev. Comp., Count Two, ¶ 49, and Count Three, ¶ 39.
The plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO), and received a release of jurisdiction for count one, which was dated February 27, 2017. The plaintiff has sought permission from the Claims Commissioner to bring her claims, but has not yet received permission to sue.
On August 17, 2017, the defendant filed a motion to dismiss counts two, three, and four, and the plaintiff’s claim for punitive damages, on the ground of sovereign immunity. With respect to count two, the defendant argues, in the alternative, that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies. The defendant’s motion is accompanied by a memorandum of law. The plaintiff filed an objection to the motion to dismiss on January 16, 2018. On February 15, 2018, the defendant filed a reply memorandum to the plaintiff’s objection. Oral argument on the motion was heard at short calendar on February 20, 2018.
The defendant also moved to dismiss the plaintiff’s claim for violation of General Statutes § 46a-70, which is now moot. See footnote one of this memorandum.
II
DISCUSSION
A
LEGAL STANDARD OF REVIEW
"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).
"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). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[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.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
B
COUNT TWO
EXHAUSTION OF ADMINISTRATIVE REMEDIES
The defendant argues that count two of the plaintiff’s revised complaint must be dismissed because the court lacks subject matter jurisdiction on two grounds. One ground is sovereign immunity, and the second ground is failure to exhaust administrative remedies. The plaintiff counters by making several arguments as to why sovereign immunity should not bar the plaintiff’s claim. The court need not address these arguments because the court grants the defendant’s motion to dismiss count two on grounds that the plaintiff failed to exhaust her administrative remedies.
First, the plaintiff argues that the legislature waived the state’s sovereign immunity by enacting General Statutes § 5-248a and the CFMLA. The plaintiff argues that the court should adopt the reasoning of Judge Bellis in Siuzdak v. Greater Bridgeport Community Mental Health Center, Superior Court, judicial district of Fairfield, Docket No. CV-05-4013170-S (October 9, 2009, Bellis, J.) (48 Conn.L.Rptr. 680) and Judge Rittenband in Kenney v. Department of Mental Health and Addiction Services, Superior Court, judicial district of Hartford, Docket No. CV-02-0813589-S (October 24, 2007, Rittenband, J.T.R.) , wherein both courts concluded that state employees may bring a claim pursuant to § 5-248a and the CFMLA. The defendant argues that this court should follow Judge Trombley’s decision in Nocera v. State, Superior Court, judicial district of Waterbury, Docket No. CV-10-6007437-S (June 28, 2011, Trombley, J.) wherein the court concluded that § 5-248a and the CFMLA do not waive sovereign immunity for state employees to sue under the CFMLA.
"Under our exhaustion of administrative remedies 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.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). "Because the exhaustion [of administrative remedies] 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.
"Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the [exhaustion] 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." (Internal quotation marks omitted.) BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 123, 826 A.2d 1109 (2003).
In Roberts v. Area Cooperative Educational Services, Superior Court, judicial district of New Haven, Docket No. CV-09-5031646-S (January 28, 2010, Wilson, J.) (49 Conn.L.Rptr. 368, 369), this court held that the CFMLA requires an aggrieved employee to exhaust administrative remedies prior to seeking judicial action. In Roberts, the court analyzed regulations, which were promulgated pursuant to a legislative mandate "that the Labor Commissioner adopt regulations, in accordance with the Uniform Administrative Procedures Act, to establish procedures and guidelines necessary to implement the provisions of the CFMLA including, but not limited to, procedures for hearings and redress, including restoration and restitution, for an employee who believes that his or her employer is violating the CFMLA." Id. The adopted regulations provide in relevant part that "[a]ny employee ... may file a complaint with the Labor Department if he believes that ... his employer discharged or caused to be discharged, or in any manner discriminated against such employee ... because such employee has exercised the rights afforded to such employee under the Act." Regs., Conn. State Agencies § 31-51qq-43(a)(2).
At oral argument, the court, Wilson, J., indicated that it was unsure about whether it found the reasoning in Persky v. Cendant Corp., 114 F.Supp.2d 105, 106 (D.Conn. 2000) persuasive. However, further research revealed that this court in Roberts adopted the reasoning in Persky (requiring exhaustion). Given this court’s decision in Roberts agreeing with the reasoning in Persky, the court must exercise stare decisis and rule consistently with its prior decision. "Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law ... If ... stare decisis is to continue to serve the cause of stability and certainty in the law- a condition indispensable to any well-ordered system of jurisprudence- a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it ... This is especially true when the precedent involved concerns the interpretation or construction of a statute." (Citations omitted; internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990). The court finds no cogent reason to overrule its prior decision in Roberts . In addition, the court’s research revealed other decisions consistent with the court’s ruling in Roberts requiring exhaustion under CFMLA.
Relying on Persky, this court reasoned in Roberts that, "[a]n analysis of the regulations demonstrates that the legislature intended to adopt the exhaustion requirement for claims brought under the [CFMLA]. First, as the court in [Persky v. Cendant Corp., 114 F.Supp.2d 105, 107 (D.Conn. 2000) ] noted: Had the legislature wanted to create a new, substantive, direct cause of action for Connecticut employees, the legislation [should] have so stated, as does the [federal] FMLA. The right is too important to be left unsaid and to be established by a court instead of a legislature. Furthermore, the use of the word ‘may’ in the regulation means that the employee ‘may’ use the administrative process if [he] so chooses, but ‘may’ elect to take no action if [he] so wishes ... It does not mean that one may use the administrative process or may, in the alternative, initiate a judicial proceeding." (Citations omitted; internal quotation marks omitted.) Roberts v. Area Cooperative Educational Services, supra, 49 Conn.L.Rptr. 369.
"Moreover, the regulations adopted by the commissioner in § § 31-51qq-43 through 31-51qq-47 of the Regulations of Connecticut State Agencies supply a sweeping or comprehensive administrative scheme ... that ... provides a claimant the full panoply of rights and remedies [under the Act] ... The Labor Commissioner has a broad range of remedies to offer a claimant, including restoration of rights and benefits, reinstatement, back pay and other monetary compensation for any loss which was a direct result of a violation of ... [the Act]. This range of remedies is further confirmation that exhaustion of administrative remedies is required under the ... [Act] prior to judicial action being initiated ... Further, it is the Labor Department [that] is fully equipped with the expertise to adjudicate a claim under ... [the Act] in the first instance, as it is responsible for such legislation, and has a full array of remedies to order." (Citations omitted; internal quotation marks omitted.) Id.
Since the decision of Roberts was released in 2010, at least one other Superior Court held that exhaustion of administrative remedies is required under the CFMLA. See Siuzdak v. Greater Bridgeport Community Mental Health Center, Superior Court, judicial district of Fairfield, Docket No. CV-05-4013170-S (October 9, 2009, Bellis, J.) (48 Conn.L.Rptr. 680, 684) ("the only enforcement mechanism provided for in the [CFMLA] is an administrative review process with the labor commission and there has been no allegation that the plaintiff has filed such a complaint" [emphasis added]; motion to dismiss CFMLA count was granted). At least one other court suggests the same. See Nocera v. State, Superior Court, judicial district of Waterbury, Docket No. CV-10-6007437-S (June 28, 2011, Trombley, J.) (52 Conn.L.Rptr. 267, 270) ("[General Statutes § 31-51pp(c)(2) of the CFMLA] provides a specific administrative remedy, including a mandated hearing, before the labor commissioner and an appeal process to the superior court by any person aggrieved by the [Labor] Commissioner’s adverse decision ... Thus, the cited provisions would appear to provide the plaintiff with an appropriate administrative procedure and subsequent right of access to the superior court in order to have some tribunal hear his claim that his termination from the department violated the rights granted to him by Connecticut’s FMLA." [Emphasis added.] )
In the present case, the plaintiff has not produced evidence demonstrating that she filed a complaint with the Department of Labor prior to the filing of this action. Therefore, the plaintiff has not met her burden of proving that this court has subject matter jurisdiction over her claim. "[A] trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding ..." Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). The court therefore grants the defendant’s motion to dismiss count two of the plaintiff’s revised complaint.
The plaintiff argues that she exhausted her administrative remedies at the CHRO with regard to her employment discrimination claim in count one of the revised complaint, and that "[a]t the CHRO level, the plaintiff specifically alleged violation of the CFMLA. As such, the Plaintiff took the steps necessary to exhaust her administrative remedies. At the present time, it would be impractical and overly burdensome to demand a plaintiff to seek remedies for the same violations in separate administrative facilities; namely the CHRO and the Department of Labor." Pl.’s Mem., 7.
C
COUNTS THREE AND FOUR
The plaintiff argues that counts three and four of the revised complaint are exempt from sovereign immunity pursuant to General Statutes § 4-165 because she alleges extreme conduct that rises to the level of willful, wanton, reckless, or malicious conduct.
The defendant argues that sovereign immunity is applicable to counts three and four as they are common-law tort claims for which the legislature has not waived immunity, and the plaintiff has not received permission to sue from the Claims Commissioner. The defendant further argues that the plaintiff’s argument regarding the applicability of General Statutes § 4-165 is misguided as that statute applies to individual state employees, and the only defendant in the present case is Southern Connecticut State University. Furthermore, the defendant argues that even if the statute were applicable to this case, the plaintiff has not alleged conduct that rises to the level of willful, wanton, reckless, or malicious conduct.
SOVEREIGN IMMUNITY
In counts three and four of the complaint the plaintiff alleges intentional and negligent infliction of emotional distress as a result of the defendant’s conduct. "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court’s subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, "a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
"Our courts have long recognized the validity of the common-law principle that the state cannot be sued without its consent ... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends ... The doctrine of sovereign immunity operates as a strong presumption in favor of the state’s immunity from liability or suit ... When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language ... Accordingly, to circumvent the strong presumption of sovereign immunity in an action for monetary damages, the burden is on the plaintiff to show that ... the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... Exceptions to [the] doctrine [of sovereign immunity] are few and narrowly construed under our jurisprudence ...; which is consistent with what our Supreme Court has termed its longstanding adherence to the strict requirements for a waiver of such immunity ... In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." (Citations omitted; internal quotation marks omitted.) DePietro v. Dept. of Public Safety, 126 Conn.App. 414, 417-18, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d 69 (2011).
"Whenever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact, under which the state, were it a private person, could be liable." General Statutes § 4-160(a). In the present case, the plaintiff has not cited authority to support the proposition that the Connecticut legislature has statutorily waived the state’s sovereign immunity or otherwise consented to be sued for intentional infliction of emotional distress and negligent infliction of emotional distress. Indeed, relevant case law indicates that the Connecticut legislature has not waived sovereign immunity for claims of intentional infliction of emotional distress; see Prigge v. Ragaglia, 265 Conn. 338, 348-49, 828 A.2d 542 (2003) (noting that sovereign immunity barred claims seeking monetary damages against state officials, including claim for intentional infliction of emotional distress); or negligent infliction of emotional distress. Perrone v. State, 122 Conn.App. 391, 399 (2010) ("[T]here is no statutory provision that authorizes the commencement of a negligence action against the state in the Superior Court for money damages without permission from the commissioner or the General Assembly. The doctrine of sovereign immunity therefore bars the plaintiffs’ negligence claim against the state, and the court lacked subject matter jurisdiction over that claim").
The plaintiff would, therefore, need permission from the claims commissioner pursuant to General Statutes § 4-160. The plaintiff in this case has not received permission from the Claims Commissioner, and therefore, her common-law claims of intentional infliction of emotional distress and negligent infliction of emotional distress are dismissed as the court lacks subject matter jurisdiction over those claims.
APPLICABILITY OF STATUTORY SOVEREIGN IMMUNITY
General Statutes § 4-165 provides: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." "Common-law sovereign immunity is distinct from the statutory immunity provided by § 4-165 ... By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities, and is therefore inapplicable to the determination of whether ... a state agency ... is immune from suit." (Citations omitted; footnote omitted.) Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002) (holding that trial court’s reliance on § 4-165 was misplaced when it denied state agency’s motion to dismiss plaintiff’s claim against defendant health center for negligence and recklessness); cf. Lemoine v. McCann, 40 Conn.App. 460, 464, 673 A.2d 115 (1996) (statutory immunity applicable in case where defendant was public official or employee of the state). Although it is true that "[b]ecause the state can act only through its officer and agents, a suit against a state officer or employee is in effect one against the sovereign state"; Lemoine v. McCann, supra, 40 Conn.App. 463; it does not follow that a suit against a state entity is in effect one against a state officer or employee.
In the present case, the plaintiff has not sued any individuals. The single defendant named in the present action is Southern Connecticut State University. Thus, the court cannot reasonably conclude that the plaintiff has asserted claims against an individual state official or agent, and therefore § 4-165 is inapplicable. In light of the court’s conclusion that § 4-165 is inapplicable, the court need not decide whether plaintiff has alleged reckless conduct by the defendant.
D
PUNITIVE DAMAGES
The plaintiff argues that her claim for punitive damages should survive to the extent that her claim for intentional infliction of emotional distress survives this motion to dismiss. "[I]t is well established that a demand for punitive damages is not a freestanding claim; rather, it is parasitic and possesses no viability absent its attachment to a substantive cause of action." (Internal quotation marks omitted.) Rendahl v. Peluso, 173 Conn.App. 66, 100-01, 162 A.3d 1 (2017).
In the present case, the defendant’s motion to dismiss the plaintiff’s claim for punitive damages is granted because such a claim is not viable absent attachment to count three, which this court has dismissed.
III
CONCLUSION
The CFMLA requires that a plaintiff exhaust administrative remedies prior to bringing suit in court. The plaintiff has not submitted any evidence to demonstrate that she has exhausted her administrative remedies. Accordingly, the defendant’s motion to dismiss count two of the plaintiff’s revised complaint, claiming a violation of the CFMLA is granted. Additionally, sovereign immunity applies to tort claims against the state. The plaintiff has not demonstrated that sovereign immunity has been waived or that any exceptions apply. Accordingly, the defendant’s motion to dismiss counts three and four is granted. Finally, a claim for punitive damages is not a freestanding claim. Accordingly, the plaintiff’s claim for punitive damages is dismissed because the court has dismissed the substantive claim of intentional infliction of emotional distress to which it is attached.
The plaintiff also argues that sovereign immunity is not applicable where the Claims Commissioner has no jurisdiction. General Statutes § 4-142 provides: "There shall be an Office of the Claims Commissioner which shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes." The plaintiff argues that her claim is exempted from the doctrine of sovereign immunity as she seeks the recovery of employment benefits, and is asserting a claim for which an administrative process has been established. The defendant counters that the fact that claims are excepted from the jurisdiction of the Claims Commissioner does not give the plaintiff the right to pursue such claims in state court. Further, the plaintiff’s claims are not for the periodic payment of disability, pension, retirement or other employment benefits to be excluded from the Claims Commissioner. The defendant argues that while the plaintiff seeks damages for incidents arising out of the plaintiff’s employment, the plaintiff’s claim is not in and of itself for periodic payments to be excepted under the statute. As the court noted above, it need not reach the merits of these arguments in light of the court’s conclusion that the court lacks subject matter jurisdiction over count two because the plaintiff failed to exhaust her administrative remedies.
"[The court] is not required to review issues that have been improperly presented to [the] 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." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Ass’n, Inc., 63 Conn.App. 657, 659 n.2, 778 A.2d 237 (2001). In the present case, the plaintiff’s memorandum of law in opposition to the defendant’s motion to dismiss is totally devoid of any legal analysis or argument in furtherance of her assertion that her complaint at the CHRO, as opposed to the Department of Labor, is sufficient to exhaust administrative remedies to confer jurisdiction upon the court. Since the plaintiff’s argument was not sufficiently briefed, the court will not consider this argument. See Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 2351, 353, 918 A.2d 288 (2007); See LoPresti v. Norwalk Public Schools, Docket No. CV-15-6017660-S, Superior Court, judicial district of Milford (March 1, 2017, Tyma, J.) (holding that defendant’s motion was totally devoid of any legal analysis or argument in furtherance of her claim, and that court would not consider it).