Opinion
MMXCV186020531
08-13-2018
Roland CENAC v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendant, State of Connecticut, Department of Mental Health and Addiction Services ("DMHAS"), has moved to dismiss this action on the grounds that 1) there is no private cause of action for damages under Article First, § 1 of the Connecticut Constitution, and 2) the plaintiff’s claim under Article First, § 1 of the Connecticut Constitution is barred by sovereign immunity.
Allegations of the Complaint and Background
In the complaint in this action the plaintiff, Roland Cenac, asserts that the defendant violated Article First, § 1 of the Connecticut State Constitution by wrongfully terminating the plaintiff’s employment. (Compl. ¶¶ 11, 17.) Specifically, the plaintiff claims that although DMHAS substantiated that the plaintiff had assaulted a patient by kicking her in the face, his employment was instead terminated because of his race, color, or national origin. (Compl. ¶¶ 1, 9, 11, 12, 16, 17.) Plaintiff is seeking "a. Compensatory damages in the amount of no less than One Million Dollars ($1,000,000.00); b. Attorneys fees and the reimbursement of costs of the instant action; and c. Reimbursement of back wages and re-establishment of any and all employee benefits to which plaintiff would otherwise have been entitled had he not been wrongfully terminated; and d. Such other relief as this court shall consider to be just, fair and equitable." (Compl. p. 4.)
On April 25, 2017, the plaintiff filed a two-count complaint against DMHAS in Federal District Court asserting the same substantive claims. (Cenac v. DMHAS, Docket No. 3:17-CV-00683-AWT). Count One of that case asserted a claim brought under Title VII of the Civil Rights Act and Count Two asserted a claim under the Connecticut State Constitution. On February 28, 2018, the District Court dismissed Plaintiff’s Title VII claim with prejudice, and dismissed Plaintiff’s Connecticut Constitutional claim without prejudice.
On March 23, 2018, the plaintiff instituted the present action, asserting a single claim of wrongful termination in violation of the Connecticut State Constitution, Article First, § 1. The defendant argues that this claim is barred 1) because there is no private cause of action for damages under Article First, § 1 of the Connecticut Constitution, and 2) this claim is barred by sovereign immunity because Connecticut has not waived its immunity to suit and the plaintiff has not received permission to sue from the Connecticut Claims Commissioner.
Discussion of the Law and Ruling
"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." Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008) (internal quotation marks omitted); Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
"When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007) (internal quotation marks omitted); Fillipi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"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). "The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Henderson v. State, 151 Conn.App. 246, 256, 95 A.3d 1 (2014) (internal quotation marks omitted, quoting Filippi, 273 Conn. at 8. "It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." Federal Deposit Insurance Corp. v. Peabody N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Gurliacci v. Mayer, 218 Conn. 531, 544-45, 590 A.2d 914 (1991); Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989).
The complaint is brought pursuant to the Connecticut State Constitution, Article First, § 1, and alleges that "The acts of the defendant in terminating the defendant (sic) violated public policy as it deprived plaintiff of his equal protection rights as guaranteed by the Connecticut State Constitution, Article First, Section 1 and, as such, constituted wrongful termination." (Compl. ¶ [17.) Article First, § 1 of the Connecticut Constitution provides, "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
"[T]his constitutional provision prohibits the adoption of legislation that has no public purpose but operates to confer private gain on an individual or group." Beccia v. City of Waterbury, 192 Conn. 127, 134, 470 A.2d 1202 (1984). "To prevail under article first, § 1, of our constitution, the [plaintiff] must demonstrate that ‘the sole objective of the General Assembly is to grant personal gain or advantage to an individual.’ " Chotkowski v. State, 240 Conn. 246, 257, 690 A.2d 368 (1997).
The plaintiff does not assert any claims pertaining to "the adoption of legislation that has no public purpose but operates to confer private gain on an individual or group." Instead, he is expressly asserting a claim of wrongful termination.
The plaintiff does not address Breccia or Chotkowski. Rather, he argues without reference to any caselaw, that Article First, § 1 of the Connecticut Constitution should be interpreted "to apply broader meaning ... given that the terms used are patently ambiguous and that their present construction reduces their meaning to mere surplusage." (Plaintiff’s Memorandum, pp. 7-8.) This argument ignores the Court’s existing interpretation of Article First, § 1 of the Connecticut Constitution, a portion of which the plaintiff acknowledges in his memorandum when he cites Merly v. State, 211 Conn. 199, 212, 558 A.2d 977 (1989), which held that it pertained to "legislation preferring certain individuals over others when wholly unrelated to the public interest." (Plaintiff’s Memorandum, p. 8.)
The plaintiff argues that even though his claim is for "wrongful termination," he can still assert this claim through Article First, § 1 of the Connecticut Constitution because "the conduct alleged in the plaintiff’s complaint does essentially pertain to the defendant’s own quasi legislative function as it propagated a system of rules that systematically factored (sic) Caucasian employees over minority workers." (Plaintiff’s Memorandum, pp. 8-9.)
In response to the foregoing argument, the defendant argues that it is a state agency, not the General Assembly. The employment practices of a state agency are not transformed into "quasi-legislative" acts. Its policies and rules do not constitute "legislation" within the meaning of Article First, § 1 of the Connecticut Constitution.
The defendant also argues that even if the plaintiff could asserted a valid Article First, § 1 claim, this Court does not have subject matter jurisdiction over the plaintiff’s damages claims because "the constitution of Connecticut does not provide for a private right of action based on a violation of article first, § 1 ..." Sommers v. Klug, No. FSTCV 165015768S, 2017 WL 2466688, at *5 (Conn.Super.Ct. Apr. 25, 2017); see also Massey v. Town of Branford, No. X 10NNHCV04048778SCLD, 2006 WL 1000309, at *7 (Conn.Super.Ct. Mar. 28, 2006) (dismissing plaintiff’s Article First, § 1 claim because "[t]he plaintiffs have pled no facts consistent with a cause of action under either of these sections. Article First, § 1 generally prohibits legislative acts that are intended solely for the benefit or advantage of an individual" and the plaintiffs made no such claims); McKiernan v. Amento, No. CV 010453718S, 2003 WL 22333200, at *5 (Conn.Super.Ct. Oct. 2, 2003) (citing Schlicht v. Royer, Superior Court, judicial district of New Britain, Docket No. X03 CV 99 0509270 (December 3, 2002, Aurigemma, J.) and Best v. D’Amario-Rossi, Superior Court, judicial district of Danbury, Docket No. CV 99 0334718 (January 2, 2003, White, J.), dismissing plaintiff’s article first, § 1 claim, holding that " ‘no appellate court or trial court in this state has recognized a cause of action for monetary damages under [article first, § 1] of the state constitution ... [and] [s]ince our Supreme Court has yet to recognize a cause of action for money damages for a deprivation of fundamental rights under article first, [§ § 1 or 8] of the state constitution, this court is without authority to do so"); Schlicht v. Royer, No. X 03CV990509270S, 2002 WL 31886706, at *4 (Conn.Super.Ct. Dec. 4, 2002) ("Not only is there no authority to support the plaintiffs’ argument that Article First, Section 1 can apply where the plaintiff does not claim improper legislative action, no appellate court or trial court in this state has recognized a cause of action for monetary damages under this provision of the state constitution"); Boudreau v. City of Middletown, No. CV 970083396S, 1998 WL 321858, at *3 (Conn.Super.Ct. June 9, 1998) (dismissing Article first, § 1 claim finding there is no direct cause of action); Outlaw v. City of Hartford, No. 3:07-CV-01769, 2015 WL 1538230, at *14 (D.Conn. Apr. 6, 2015) (dismissing claims brought pursuant to Article First, § § 1, 8, or 20 of the Connecticut Constitution because "the Connecticut Supreme Court has not recognized a private cause of action for an alleged violation of [those sections]"); Schofield v. Magrey, No. 3:12CV544 JBA, 2015 WL 521418, at *12 n.12 (D.Conn. Feb. 9, 2015) (dismissing plaintiff’s claim because plaintiff "cites no case in which a Connecticut court has recognized a private cause of action for monetary damages under the due process and equal protection provisions of article first, § § 1, 8, 20 of the State Constitution, and courts in this state have consistently declined to do so"); Coleman v. Town of Old Saybrook, No. 3:03cv01275, 2004 WL 936174, at *3 (D.Conn. Apr. 28, 2004) (declining to recognize private cause of action under Article First, § § 1, 8 or 20); Warde v. Housatonic Area Reg’l Transit Dist., 154 F.Supp.2d 339, 356 (D.Conn. 2001) ("The court finds there is no private cause of action for monetary damages under the equal protection and due process provisions (Art. First, § § 1, 8, 20) of the Connecticut Constitution"). No Court in Connecticut has ever recognized a private cause of action for damages under Article First, § 1 of the Connecticut Constitution as of the filing of this motion.
The Connecticut Supreme Court has explicitly "declined to create an all encompassing damages action for any and all alleged violations of state constitutional provisions." ATC P’shp v. Town of Windham, 251 Conn. 597, 613, 741 A.2d 305 (1999), cert. den., 530 U.S. 1214 (2000). Instead, the Court "conclude[d] that, as a general matter, we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy." Kelley Property Dev., Inc. v. Lebanon, 226 Conn. 314, 339, 627 A.2d 314 (1993). The Court’s hesitation "accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy." Id.
In Binette v. Sabo, 244 Conn. 23, 710 A.2d 688, the Connecticut Supreme Court cited an alleged violation of a federal employee’s first amendment rights to exemplify a situation where the court has declined to allow a Bivens remedy in the past. 244 Conn. at 37-38 (citing Bush v. Lucas, 462 U.S. 367, 388 (1983) ). The court explained that "because Congress had enacted a comprehensive legislative scheme providing meaningful remedies for those violations even though the remedial legislation did not afford complete relief to the plaintiff," creating a new private cause of action was inappropriate. Id. at 37-38; see also Schweiker v. Chilicky, 487 U.S. 412, 425 (1988); Bush v. Lucas, 462 U.S. 367, 388 (1983).
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), was the United States Supreme Court’s first decision recognizing a damages remedy against individual capacity defendants directly under the United States Constitution. The Connecticut Supreme Court has generally followed the United States Supreme Court’s analysis in Bivens and its progeny in determining whether to recognize a private damages action under the Connecticut Constitution.
The present case similarly involves an alleged Constitutional claim in the workplace environment where, because a statutory remedy already exists under both state and federal law, a newly created Constitutional cause of action would step far beyond what is necessary and legally appropriate. Specifically, in the employment context, the Connecticut legislature has provided for a statutory remedy in Connecticut General Statutes § 46a-60 et seq. The defendant argues that the availability of that statutory remedy is dispositive in this case.
The Connecticut Supreme Court has never judicially created a Constitutional damages cause of action where a sufficient, alternate statutory remedy was available. The Court has indicated that it would be inappropriate to do so. See, e.g., Binette, 244 Conn. at 41. The Binette court explained the method for determining whether a Constitutional cause of action should exist when it quoted its opinion from Kelley, stating that:
We reviewed Bivens and its progeny, observing that in its current configuration, the Bivens line of ... cases ... appears to require a would be Bivens plaintiff to establish that he or she would lack any remedy for alleged constitutional injuries if a damages remedy were not created. It is no longer sufficient under federal law to allege that the available statutory or administrative mechanisms do not afford as complete a remedy as a Bivens action would provide.Binette, 244 Conn. at 41-42 (quoting Kelley, 226 Conn. at 337-38).
The defendant further argues that assuming there is a private cause of action under Article First, § 1 of the Connecticut Constitution, the plaintiff has neither identified a Connecticut statute waiving sovereign immunity to a suit for such a claim, nor stated that he has permission from the Claims Commissioner to bring his Constitutional claim.
"The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ... It has deep roots in this state and our legal system in general, finding its origin in ancient common law ... Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. The principle of sovereign immunity implicates the subject matter jurisdiction of the court." Allen v. Comm’r of Revenue Servs., 324 Conn. 292, 298-99, 152 A.3d 488 (2016), cert. denied sub nom. Allen v. Connecticut Com’r of Revenue Servs., No. 16-1192, 2017 WL 1211591 (U.S. June 5, 2017) quoting DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007) (internal citation and quotation omitted).
"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. A plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner." Columbia Air Servs., Inc. v. Dep’t of Transp., 293 Conn. 342, 346-52, 977 A.2d 636 (2009). "A claim for relief invoking a provision of the constitution of Connecticut is not one of the exemptions from filing a suit with the claims commissioner." Best v. D’Amario-Rossi, No. CV 990334718S, 2003 WL 138521, at *6 (Conn.Super.Ct. Jan. 2, 2003) ).
Here, there is no statute waiving Connecticut’s immunity to suit for damages under Article First, § 1 of the Connecticut Constitution. The only mechanism available to the plaintiff to avoid Connecticut’s sovereign immunity is to receive permission from the Connecticut Claims Commissioner. Plaintiff has not sought or received permission from the Connecticut Claims Commissioner to sue the State of Connecticut for damages at any time. Therefore, any claim the plaintiff might have under Article First, § 1 of the Connecticut Constitution is barred by sovereign immunity.
The plaintiff argues that even if he cannot recover a damages award, he should still be able to assert a claim for declaratory relief under Article First, § 1 of the Connecticut Constitution. In his brief, the plaintiff concedes that "Although the plaintiff’s constitutional claims as currently drafted do assert claims for monetary relief, the complaint does seek, ‘[s]uch other relief as this court shall consider to be just, fair and equitable.’ " (Brief p. 11.)
A review of the complaint reveals no request for declaratory relief. On the Summons Form (Doc. 100.30), there are three boxes for plaintiffs to check. Box # 1 identifies that the legal interest or property in demand is less than $2,500. Box # 2 identifies that the legal interest or property in demand is more than $2,500. Box # 3 identifies that the plaintiff is "claiming other relief in addition to or in lieu of money or damages." The plaintiff checked Box # 2 only. The plaintiff did not check Box # 3, and it is quite clear that the plaintiff was not, and is not, seeking declaratory relief in this case.
"An action for declaratory judgment is a special proceeding ... [that] requires the existence of an actual bona fide and substantial question in dispute which requires settlement between the parties." Wilson v. Kelley, 224 Conn. 110, 121, 617 A.2d 433 (1992) (quoting Kiszkiel v. Gwiazda, 174 Conn. 176, 180-81, 383 A.2d 1348 (1978). The Summons and Complaint fail to contain any mention of or demand for declaratory relief. Moreover, the plaintiff does not identify "the existence of an actual bona fide and substantial question in dispute which requires settlement between the parties." His claim is that he was wrongfully terminated. If such a claim were considered to raise a "substantial dispute between the parties," within the meaning of the declaratory judgment rules, then every lawsuit could be deemed to seek declaratory relief. The plaintiff’s incorrect characterization of this suit as being one for declaratory relief cannot save it from dismissal.
The plaintiff’s final argument to avoid dismissal is that even if the Court were to dismiss his Article First, § 1 of the Connecticut Constitution claim, he should be permitted to replead his complaint to assert a claim under Connecticut General Statutes § 46a-60. Although this planned amended complaint is not before the court, the defendant has pointed out that the plaintiff has failed to exhaust his administrative remedies under that statutory scheme, he is barred from asserting a claim under that statute in this Court and, therefore, there is no legal basis to permit the plaintiff to replead his complaint.
"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986). "The failure to exhaust administrative remedies implicates the subject matter jurisdiction of the court." Johnson v. Dept. of Public Health, 48 Conn.App. 102, 108, 710 A.2d 176 (1998). Therefore, courts must decide whether a plaintiff has exhausted her administrative remedies prior to considering a case on its merits. Id. If a plaintiff has not exhausted her administrative remedies, the court lacks jurisdiction and the proper procedure is to dismiss the case. Id.
The plaintiff cannot assert a claim under § 46a-60, otherwise known as the Connecticut Fair Employment Practices Act ("CFEPA"), because the plaintiff failed to file a timely complaint with the Connecticut Commissioner on Human Rights and Opportunities ("CHRO") and failed to obtain a release of jurisdiction from the CHRO.
Connecticut General Statutes § § 46a-51 et seq. provides a statutory scheme with which all plaintiffs must comply in order to bring suit in the Superior Court for employment discrimination. The statutory language is clear and unambiguous- claims of discrimination or retaliation arising under 46a-51 et seq. may only be raised by filing a complaint as required by § 46a-82(a), which states in relevant part:
Any person claiming to be aggrieved by an alleged discriminatory practice, ... may, by himself or herself or by such person’s attorney, file with the commission a complaint in writing under oath ... The complaint shall state the name and address of the person alleged to have committed the discriminatory practice, provide a short and plain statement of the allegations upon which the claim is based and contain such other information as may be required by the commission. After the filing of a complaint, the commission shall provide the complainant with a notice that: (1) Acknowledges receipt of the complaint; and (2) advises of the time frames and choice of forums available under this chapter.(Emphasis added.) Section 46a-51(2) clarifies that the " ‘Commission’ means the Commission on Human Rights and Opportunities created by section 46a-52."
Connecticut General Statutes § 46a-82(f) states that "Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination, except that any complaint by a person claiming to be aggrieved by a violation of subsection (a) of section 46a-80 must be filed within thirty days of the alleged act of discrimination." (Emphasis added). Finally, "Any person who has filed a complaint with the commission in accordance with section 46a-82 and who has obtained a release of jurisdiction in accordance with section 46a-83a or 46a-101, may bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred ..." Connecticut General Statutes § 46a-100. (Emphasis added.)
The Connecticut legislature vested authority in the CHRO to investigate initial claims of discrimination under CFEPA, and courts are without subject matter jurisdiction where claimants fail to follow the proper administrative procedure before filing suit in the Superior Court:
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. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency. The plaintiff, having failed to follow the administrative route that the legislature has prescribed for his claim of discrimination, lacks the statutory authority to pursue that claim in the Superior Court.Sullivan v. Bd. of Police Comm’rs of City of Waterbury, 196 Conn. 208, 216, 491 A.2d 1096 (1985). "The provisions of ... CFEPA that prohibit discriminatory employment practices ... must be read in conjunction with the act’s provisions for the filing of complaints concerning alleged discriminatory practices with the [commission]." Hinde v. Specialized Educ. of Connecticut, Inc., 147 Conn.App. 730, 745, 84 A.3d 895 (2014) quoting Sullivan, 196 Conn. at 215. Connecticut General Statutes § 46a-82 provides an unambiguous statute of limitations requirement for bringing claims of employment discrimination under CFEPA. It states, in relevant part: "[a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination ..." Connecticut General Statutes § 46a-82.
Courts have subject matter jurisdiction over CFEPA claims, only if "(1) the plaintiff timely files a discrimination complaint with the CHRO ...; and, (2) the plaintiff obtains a release from the commission to file suit ." Luth v. Wal-Mart Stores, Inc., CV 94-358488, 1995 WL 506076, at *5 (Conn.Super.Ct. Aug. 18, 1995) (Emphasis added). Any claims that fail to comply with all of the above requirements are absolutely barred.
"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 .’ " Hinde, 147 Conn.App. at 746 quoting D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005) (Emphasis added). "When a plaintiff has available to him administrative remedies that could have afforded him meaningful relief ... [h]is failure to [properly pursue those remedies] forecloses his access to judicial relief because it deprive[s] the trial court of jurisdiction to hear his complaint .’ In addition, when a plaintiff fail[s] to follow the administrative route prescribed by the legislature for his claim; the plaintiff fails to exhaust his or her administrative remedies." Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 168-69, 745 A.2d 178 (2000) (Emphasis added, internal citation and quotation omitted).
Courts routinely find that jurisdiction is lacking in cases when CFEPA claims were not filed with CHRO within 180 days of the alleged discrimination. See e.g., Desardouin v. United Parcel Serv., Inc., 285 F.Supp.2d 153, 158-59 (D.Conn. 2003); Sullivan v. Bd. of Police Comm’rs of City of Waterbury, 196 Conn. 208, 216, 491 A.2d 1096 (1985); Luth v. Wal-Mart Stores, Inc., CV 94-358488, 1995 WL 506076 at *5 (Conn.Super.Ct. Aug. 18, 1995). Courts also routinely find jurisdiction lacking where the plaintiff failed to obtain a release of jurisdiction prior to commencing suit. See, e.g., Hinde v. Specialized Educ. of Connecticut, Inc., 147 Conn.App. 730, 748, 84 A.3d 895 (2014); Ware v. State, 118 Conn.App. 65, 86, 983 A.2d 853 (2009); Osborn v. Rocklen Auto. Parts & Serv., Inc., 4 Conn.App. 423, 425, 494 A.2d 622 (1985).
In this case, the plaintiff does not claim that he filed a claim with the CHRO at any time. Instead, the plaintiff asserts that he filed a complaint with the federal Equal Employment Opportunities Commission ("EEOC") on May 31, 2016, which was 298 days after his employment was terminated. (Brief, p.13, Complaint ¶ 11). Plaintiff then claims, without any caselaw in support, that he does not have to comply with the Connecticut statutory scheme because he filed a complaint with the EEOC.
The defendant argues that the plaintiff has it backwards. The EEOC worksharing agreement allows federal Title VII complaints to be exhausted through the CHRO process- but there is no mechanism for plaintiffs to exhaust CFEPA claims through the EEOC. This exact same issue was addressed in the case of Paris-Purtle v. State, No. X 10UWYCV146025212, 2015 WL 1500798, at *4-8 (Conn.Super.Ct. Mar. 11, 2015) . In that case, the plaintiff also failed to timely file a complaint with the CHRO and argued that her filing with the EEOC satisfied the exhaustion requirement of CFEPA. The Court held that "[f]iling with the EEOC, even if permitted under the work sharing agreement, could not and did not satisfy the statutes. The plaintiff failed to exhaust her administrative remedies." Id. The Court reasoned that "neither Section 46a-82 nor 46a-100 makes any reference to the EEOC. Nor do they provide any alternative to filing with the CHRO, for example by giving the Commissioner the authority to delegate the authority to receive such complaints to a different entity, such as the EEOC. Section 46a-82 clearly requires that a complaint be filed with the CHRO. Section 46a-100 clearly requires both a timely complaint to the CHRO as well as a release from the CHRO. The language is plain, clear and unambiguous." Id. at *7.
There is no authority for the plaintiff’s claim that he was relieved of the obligation of filing his CFEPA claims with the CHRO by filing a complaint instead with the EEOC. "The statute having created the cause of action and prescribed the procedure, the mode of proceeding is mandatory and must be strictly complied with." Okee Indus., Inc. v. Nat’l Grange Mut. Ins. Co., 225 Conn. 367, 373, 623 A.2d 483 (1993) quoting Pittsburgh Plate Glass Co. v. Dahm, 159 Conn. 563, 565, 271 A.2d 55 (1970); New Britain Lumber Co. v. American Surety Co., 113 Conn. 1, 7-8, 154 A. 147 (1931); Wickes Mfg. Co. v. Currier Electric Co., 25 Conn.App. 751, 757, 496 A.2d 1331 (1991). "[O]ur Supreme Court has determined that a plaintiff who ‘fail[s] to follow the administrative route that the legislature has prescribed for [her] claim of discrimination ... lacks the statutory authority to pursue that claim in the Superior Court.’ " Hinde, 147 Conn.App. at 747 quoting Sullivan, 196 Conn. at 216.
The plaintiff has offered no caselaw in support of his claim that Connecticut’s thorough statutory scheme can be ignored because of his untimely filing with the EEOC. The caselaw cited by the plaintiff applies to Title VII- not to CFEPA. However, the plaintiff is not asserting a Title VII claim. The Federal Court already dismissed the plaintiff’s Title VII claim with prejudice. The law is clear that the plaintiff cannot assert a claim under CFEPA because he failed to exhaust his administrative remedies, and there is no legal basis to permit plaintiff to replead his complaint with a claim that will be dismissed for failure to exhaust.
For the foregoing reasons, the motion to dismiss is granted.