Opinion
NNHCV176067843
09-27-2017
Phillip Browne v. State of Connecticut Department of Correction
UNPUBLISHED OPINION
Filed October 10, 2017
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101.00)
Steven D. Ecker, Judge.
Plaintiff, an employee of the Department of Corrections (DOC), claims that his civil rights were violated when his employer imposed discipline against him based on his race (First and Second Counts; Connecticut Fair Employment Practices Act, and Title VII of the Civil Rights Act of 1964, respectively) and in retaliation for protected speech activity undertaken by plaintiff in his role as a union steward (Third Count; General Statutes 31-51q). Only the Third Count, alleging a violation of § 31-51q, is presently at issue.
A fourth count, alleging defamation, has been abandoned.
Defendant has moved to dismiss the Third Count for lack of subject-matter jurisdiction, on sovereign immunity grounds, based on the argument that plaintiff was not subjected to " discipline" within the meaning of § 31-51q. On this record, the court has concluded that this issue cannot be decided at this early stage of the case, because the jurisdictional issue is wholly intertwined with the merits of the case. Due to the fact-intensive nature of the issue (did the employer's actions constitute " discipline" under § 31-51q?), resolution should await further discovery, and possibly should be decided only after a full trial on the merits. See Conboy v. State, 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009); see also Giannoni v. Commissioner of Transportation, 322 Conn. 344, 350, 141 A.3d 784 (2016); Cuozzo v. Town of Orange, 315 Conn. 606, 616, 109 A.3d 903 (2015).
The statute provides, in relevant part, that " any employer, including the state, . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the [free speech clauses of the federal or state] . . . Constitution, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee . . ." Plaintiff here was not discharged, so his claim in the Third Count requires proof that he was subjected to " discipline."
Defendant's characterization of the " discipline" issue as jurisdictional is correct, see e.g., Conboy, supra (treating similar issue as jurisdictional), but not unproblematic. The jurisdictional argument is that sovereign immunity deprives the court of jurisdiction; sovereign immunity exists in the absence of a statutory waiver of that immunity; and there has been no such waiver in the present case because plaintiff cannot establish a necessary element of liability under § 31-51q (i.e., plaintiff was not subject to " discipline"). As this description makes clear, the jurisdictional determination is not merely " intertwined with" the merits determination--they are one and the same. Put differently, this doctrinal framework means that a challenge to the court's subject-matter jurisdiction is raised in every motion attacking the sufficiency of pleading or proof aimed at any substantive element of every claim against the state under § 31-51q. Labels matter in this context, of course, because very important consequences attach once an issue is deemed jurisdictional. Among other things, (1) the defendant has an immediate right to appeal the denial of a motion to dismiss raising sovereign immunity, see, e.g., Giannoni v. Commissioner of Transportation, supra, 322 Conn. 344; (2) the filing of a jurisdictional motion brings the entire proceeding to a standstill in all other respects, at least until the motion is decided, see, e.g., Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (" as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made"); and (3) if the motion to dismiss is granted, there is no automatic right to re-plead, as there would be in the usual case involving a motion successfully challenging the legal sufficiency of a pleading, see Practice Book 10-44 (right to re-plead as of right if motion to strike is granted). Perhaps these considerations explain why the Supreme Court has made it clear that a trial judge considering a motion to dismiss involving a jurisdictional issue intertwined with the merits of a case " may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Conboy v. State, supra, 292 Conn. at 653 n.16.
In addition to showing that he was disciplined or discharged, a plaintiff must establish additional elements of liability in order to prevail under § 31-51q. Defendant's position is that each and every statutory element is simultaneously a jurisdictional prerequisite in lawsuits against a state employer.
The point is not limited to cases brought against a state defendant under § 31-51q. The same situation presumably arises with respect to any other statute expressly waiving sovereign immunity under specified conditions, including, for example, the highway defect statute, General Statutes § 13a-144. See, e.g., Giannoni v. Commissioner of Transportation, supra, 322 Conn. at 348-50, 357-70 (treating as " jurisdictional" two issues under § 13a-144 that required resolution of " merits" issues, including whether plaintiff, who fell into a culvert while riding his bicycle on a sidewalk along a state highway, was injured by means of a " defective highway" within the meaning of the statute).
A plaintiff is prohibited even from curing the alleged defect by amending his complaint while the motion to dismiss is pending, see, e.g., FDIC v. Peabody, N.E., Inc., 239 Conn. 93, 97, 680 A.2d 1321 (1996).
The procedure appears to be non-discretionary in federal courts. " [W]here the jurisdictional facts are intertwined with the facts central to the merits of the dispute . . . the defendant has challenged not only the court's jurisdiction but also the existence of the plaintiff's cause of action. A trial court should then afford the plaintiff the procedural safeguards--such as discovery--that would apply were the plaintiff facing a direct attack on the merits." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (inner quotation marks and citations omitted); see, e.g., Xavier v. Bryk, No. 3:14CV-1267 (JCH), 2015 WL 918755, at *2 (D.Conn., March 2, 2015) (holding that motion to dismiss raising an immunity issue in a lawsuit against state defendants requires determination of a " jurisdictional fact (whether the defendants' actions were 'wanton, reckless, or malicious'). [that is] intertwined with the merits of the case. Indeed, the truth or falsity of these allegations is actually the core of the case. This question is thus more appropriately decided on a summary judgment motion or by the fact finder at trial." (quotation marks and citation omitted)); 5B C. Wright & A. Miller, Federal Practice & Procedure § 1350, at 245-49 (3d ed. 2004 & 2017 Sup.).
Plaintiff's complaint alleges that, in his role as union steward, he had challenged DOC's discipline of minority employees on numerous occasions over the years, based on his belief that minority employees at DOC sometimes are disciplined in a selective and/or disproportionate manner due to their race. Plaintiff alleges that two white DOC employees retaliated in response to his discrimination claims in one particular case, in 2016, by knowingly filing false allegations of misconduct against him. He further alleges that the DOC used that particular opportunity to " discipline" him by transferring him, pending investigation of the false charges, to a less desirable assignment with different job duties. Plaintiff alleges that the transfer was unduly prolonged as the investigation dragged on very slowly, adversely affected his promotional opportunities, and caused the revocation of previously approved vacation time.
Defendant argues that the Third Count must be dismissed because plaintiff was not subjected to " discipline" within the meaning of § 31-51q. This argument begins by observing that the statute applies only when an employee is subjected to " discipline or discharge" on account of his exercise of the right to free speech. Defendant contends that plaintiff (who indisputably has not been discharged) has not been subject to " discipline" within the meaning of § 31-51q, as a matter of law. In particular, defendant argues that neither the administrative transfer of plaintiff, nor any auxiliary consequences of the transfer, constitute " discipline" under the statute. The argument relies on four basic premises: (1) the rule that a waiver of sovereign immunity will be strictly construed, see Envirotest Systems v. Commissioner, 293 Conn. 382, 390, 978 A.2d 49 (2009); Skinner v. Angliker, 211 Conn. 370, 380-81, 559 A.2d 701 (1989); (2) the restricted definition of " discipline" as found in DOC Administrative Directive 2.6 (Employee Discipline), which contains a provision stating that " disciplinary actions shall include" written reprimand, suspension, demotion, and discharge, without further enumeration; (3) the operative Collective Bargaining Agreement (CBA), which contains a provision permitting the DOC to reassign employees to alternative assignments pending an administrative investigation; and (4) trial court case law interpreting the meaning of " discipline" under § 31-51q.
There is no Connecticut appellate law on the issue, unfortunately.
Plaintiff's opposition memorandum includes an affidavit of plaintiff containing factual allegations in support of his objection to the motion to dismiss. His fundamental claim is that his " administrative" transfer was disciplinary in intent and effect. The transfer caused him to lose a job with the DOC's Central [Corrections] Transportation Unit (CTU), a post he held for seven years. He avers that his job duties with CTU involved prisoner transport, and were completely different than his new job duties since his transfer to Manson Youth Institution (MYI). His affidavit also states that the MYI job " is a less desirable job assignment, " an assessment that will be credited for purposes of this motion. He alleges that the transfer negatively affected his chances of a job promotion, and resulted in the loss of a previously approved annual vacation. Plaintiff's complaint also alleges that the investigation prompting the " administrative" transfer lasted more than seven months, which, he says, was over twice the time typically required to complete an investigation (the typical time is less than seventy-five days, according to plaintiff). The inference urged by plaintiff is that the investigation was deliberately delayed to extend the time during which plaintiff was forced to remain in the less desirable assignment.
As the parties acknowledge, there is no Connecticut appellate decision providing any direct guidance about what exactly constitutes " discipline" as that word is used in § 31-51q. The parties cite numerous superior court decisions addressing the issue. See Matthews v. Department of Public Safety, No. CV-116019959, 2013 WL 3306435, at *11-*14 (J.D. Hartford, May 31, 2013) [56 Conn. L. Rptr. 262, ]; Charron v. Town of Griswold, No. CV-065000849, 2009 WL 5511272, at *11 (J.D. New London, Dec. 14, 2009); Bombalicki v. Pastore, No. CV-378772, 2000 WL 726839, at *3-*5 (J.D. New Haven, May 10, 2000) [27 Conn. L. Rptr. 183, ]. The court has read numerous additional decisions examining the question, though none are controlling. See, e.g., Avedisian v. Quinnipiac University, 387 Fed.Appx. 59, 60-61, (2d Cir. 2010); Bourne v. City of Middletown, No. 3:11-cv-00309 (JAM), 2017 WL 1138125, at *8-*9 & n.5 (D.Conn., March 27, 2017); DeFusco v. Town of West Hartford, No. 3:15-CV-0485 (VLB), 2016 WL 1225496, at *3-*4 (D.Conn., March 28, 2016); Lynch v. Ackley, No. 3:12cv537 (JBA), 2012 WL 6553649, at *8-*9 (D.Conn., Dec. 14, 2012); Sans-Syzmonik v. Hartford Public Schools, No. CV-146051355, 2014 WL 7156776, at *5 (J.D. Hartford, Nov. 7, 2014) [59 Conn. L. Rptr. 308, ]; Burdick v. Clouet, No. CV-085006062, 2011 WL 2739557, at *6-*7 (J.D. New London, June 14, 2011); McIntyre v. Fairfield University, No. CV020391471, 2003 WL 1090690, at *2-*3 (J.D. Fairfield, March 3, 2003) [34 Conn. L. Rptr. 219, ].
These cases do not adopt a uniform definition of what " discipline" means under § 31-51q. See Lynch v. Ackley, supra, 2012 WL 6553649, at *8-*9 (noting differences). One thoughtful decision, which has gained a substantial following, is Bombalicki, supra, wherein Judge Blue concludes that discipline must " involve affirmative acts of punishment that . . . leave the recipients in a less happy state than that which they enjoyed that which they enjoyed before the punishment began . . . 'Discipline' is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness. " Id., 2000 WL 726839, 2002 WL 726839, at *3. The Bombalicki " affirmative deprivation" requirement excludes from its scope--and the statute's scope--an employer's withholding of benefits (e.g., a refusal to promote) on account of the employee's exercise of the right to free speech.
Plaintiff in the present case alleges one or more " affirmative deprivations" by defendant (e.g., the retraction of vacation days), so the court need not decide whether to adopt that aspect of the Bombalicki formulation. Because further proceedings in this case seem likely, however, the parties are on notice that the court is not inclined to adopt the " affirmative deprivation" requirement unless mandated by controlling precedent. In the court's view, the difference between an " affirmative act of deprivation" and a " failure to enhance [an employee's status]" will often be a matter of semantics, which is to say that an employer's failure to enhance an employee's status could just as accurately be characterized as an affirmative act of deprivation. Discipline is any adverse material consequence imposed by an employer on an employee for the purpose of punishing or deterring behavior that the authority wishes to suppress. One common method of discipline in the employment context is to deprive the employee of a benefit already in hand (demotion, reduction in pay, etc.). But discipline also can consist of other actions, including the employer's decision to withhold from an employee a benefit that is not yet in hand, but is to be conferred soon, or is reasonably expected to be conferred in the future based on custom, practice, promise, etc. For example, an employee can be disciplined on account of her protected speech by being demoted from vice-president to district manager, but she also can be disciplined for that speech by the employer's decision to deny her a promotion to the position of senior vice-president. It may be more difficult in some cases to prove that the anticipated promotion was forthcoming, or to show a retaliatory motivation for passing over the employee, but these are problems of proof, not shortcomings on the merits. In this court's opinion, an employee has been subjected to " discipline" if the employee can prove that a material benefit such as a promotion would have been conferred but for the employer's negative reaction to the protected speech activity.
With the significant exception of the " affirmative deprivation" element, the court finds no fault with the definition of " discipline" adopted in a number of the Connecticut trial court decisions. See, e.g., Sans-Syzmonik v. Hartford Public Schools, supra,, 2014 WL 7156776, at *5 (quoting jury charge used by Judge Susan Peck). It declines to adopt any definitive test at this point, however, without further briefing, because it is unclear why Connecticut would adopt a less protective statutory standard than that developed by federal courts in first amendment retaliation cases. See, e.g., Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 226 (2d Cir. 2006) (defining the prohibition as covering " retaliatory conduct that would deter a similarly situated individual or ordinary firmness from exercising his or her constitutional rights . . .") Under the federal first-amendment test, the employer imposes discipline if its response to protected speech subjects the employee to consequences that would chill similarly-situated employees from speaking. When the time comes, it is worth analyzing more closely why the federal standard, which has the virtue of simplicity and the advantage of a direct nexus to the vice (chilling effect) to be deterred, should not be used to define the meaning of " discipline" under 31-51q. Bombalicki contends that the statutory scope of § 31-51q is intended to be narrower than comparable federal law because the Connecticut statute prohibits only retaliatory " discipline or discharge, " not retaliatory " discrimination" or " deprivation" more generally. This gloss may ignore the fact that the underlying right protected by the statute is of constitutional magnitude--the right to free speech--and it seems unlikely that the legislature enacting § 31-51q intended it to provide less protection than the first amendment itself confers to public employees.
Both actions are disciplinary because punishment is not limited to acts of " affirmative deprivation, " as any teenager will attest after being told by his parents that he will be spending the next semester without access to his parents' car, on account of a poor report card.
The distinction drawn in Bombalicki bears similarities to the " vested right" versus " mere expectancy" distinction used to identify property interests in certain contexts. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (" To have a property interest in a benefit [protected by the due process clause], a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it"); Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 365 (1995) (to qualify as " property" subject to equitable distribution in a Connecticut divorce, there must be a " presently existing property entitlement, " not a " mere expectation" of a future entitlement). The distinction carries force in certain contexts involving property rights. It does not work well, in the court's view, to define the parameters of impermissible workplace retaliation in the free speech context.
Defendant is quite right that the meaning of " discipline" cannot rest on a purely subjective standard, or mean whatever an employee says it means, however trivial the deprivation. But surely there must a middle ground, an ascertainable standard that is sufficiently flexible to include within its scope the wide variety of workplace disciplinary practices that can be used by an employer to penalize an employee for engaging in protected speech. If the standard is not flexible, it would be far too easy for an employer to evade the statutory prohibition by imposing disciplinary measures that are not obviously categorized as such by outsiders, but that everyone on the inside knows are punitive in nature. In light of the statute's purpose to safeguard fundamental constitutional rights, an employer should not be allowed to penalize an employee's exercise of those rights by inflicting pain without leaving marks. An administrative transfer can be sensible and necessary, or it can be cynical and punitive. The adverse effects can be significant or de minimis . Whether the job action is disciplinary cannot be decided based solely on what the employer calls it. In the context of a transfer or reassignment, the inquiry will require consideration of factors such as past practices involving other employees under similar circumstances; the title, duties, conditions, advantages, disadvantages, and other relevant characteristics that determine job status and desirability in that particular workplace; the duration of the reassignment; and other considerations relevant under the circumstances. Except in obvious cases, the determination often will be highly fact-sensitive. Cf. Zelnik v. Fashion Institute of Technology, supra, 464 F.3d at 226 (determining whether employer has taken retaliatory " adverse employment action" against employee in violation of first amendment " is a heavily fact-specific, contextual determination"), which is why it normally is not susceptible to summary disposition.
Defendant here has failed to demonstrate as a matter of law that plaintiff was not subjected to " discipline." Construing the allegations in a light most favorable to plaintiff, he claims that he was transferred to a significantly less desirable job; the transfer was ordered " pending investigation, " but the investigation lasted more than seven months, an unusually and unjustifiably long time (a fact arguably supporting an inference of a disciplinary motivation); the transfer adversely affected plaintiff's opportunities for promotion; and the transfer resulted in a loss of previously approved vacation time. If these allegations are proven, a reasonable fact-finder could conclude that plaintiff was subjected to discipline within the meaning of § 31-51q.
Defendant's other arguments are insufficient to win the day. First, with respect to defendant's contention that a narrow construction of § 31-51q is required because sovereign immunity is implicated, the argument carries far less force here than in many other contexts. Again it is important to recall that § 31-51q is intended to enforce rights of constitutional magnitude. Sovereign immunity is not a defense to constitutional violations, see Skinner v. Angliker, 15 Conn.App. 297, 301, 544 A.2d 246, aff'd, 211 Conn. 370, 559 A.2d 701 (1989), and it therefore does not exert its usual restrictive force on the meaning of the statute at issue. To put the point slightly differently, the " strict construction" canon applicable to waivers of sovereign immunity may be offset or neutralized in cases that also implicate the countervailing canon of " liberal construction" applicable to remedial civil rights statutes. See, e.g., National Rifle Ass'n v. Bentsen, 999 F.2d 772, 773 (4th Cir. 1993) (referring to " duel of competing canons"). In addition, § 31-51q is somewhat unusual because it regulates the conduct of both public and private employers, and " discipline" should mean the same thing in the public and private context. Cf. Schumann v. Dianon Systems, Inc., 304 Conn. 585, 605-11, 43 A.3d 111 (2012) (holding that so-called Garcetti rule, developed in first-amendment context, should apply to private as well as public employees under § 31-51q). In sum, sovereignty concerns would appear to be significantly less compelling in these circumstances.
The affirmance in Angliker did not involve the issue discussed here.
Defendant's arguments based on the provisions in the CBA and the Administrative Directive are also unpersuasive. The Administrative Directive addresses certain forms of discipline, but does not purport to define the meaning of that term for all purposes. Nor could it--an employer plainly cannot unilaterally constrict the scope of constitutional or statutory protections by issuing its own definition of what can be considered retaliatory. As for the CBA provision relied upon by defendant, it does nothing more than permit the DOC to reassign an employee to an alternative assignment pending investigation into allegations that, if substantiated, would provide grounds for dismissal. This provision does not mean that a reassignment can never be disciplinary. Nor is it clear from this record that the allegations being investigated were of a type that could " constitute grounds for dismissal." Finally, if defendant wishes to rely on the CBA to establish the meaning of " discipline" under § 31-51q, then it must also accept the provision in Article 13, Section 1 of the CBA, which defines " disciplinary action" to include not only oral reprimand, written reprimand, suspension, demotion, and discharge, but also " transfer between facilities, " the action imposed on plaintiff here.
The court is aware that the foregoing analysis, with its emphasis on the fact-specific, context-driven assessment required to determine what constitutes " discipline" in any particular case, makes it difficult (though not impossible) for a defendant to obtain summary dismissal of a lawsuit under § 31-51q. The court also understands that this difficulty does nothing to allay concerns about a statute that invites judges (or juries) into the workplace for the purpose of assessing the particularized factors used to determine whether or not the employer's actions constitute " discipline" under the circumstances. Cf. Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 603 (acknowledging need for employers to exercise a significant degree of control over the words and actions of their employees, and cautioning that the first amendment does not constitutionalize the employee grievance process). These concerns are legitimate. However, in the court's view, once again, it should be possible to accommodate an employer's obvious need for significant control over the workplace, while also safeguarding an employee's constitutional right to free speech as established under controlling law.
The motion to dismiss the Third Count is denied.