Opinion
No. CV 00-0412889S
February 13, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (MOTION 138)
The defendant, Michael Fay, moves to dismiss Count Three and Seven of the Plaintiff's revised complaint (dated December 13, 2006) claiming lack of subject matter jurisdiction due to the fact that the plaintiff failed to exhaust his administrative remedies.
The plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CCHRO") naming the Connecticut Post as the only respondent. The plaintiff had requested and received a Release of Jurisdiction from CCHRO which authorized the plaintiff to commence this civil action.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[A] motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The defendant claims that the court lacks subject matter jurisdiction over Mr. Fay, because the plaintiff did not individually name Mr. Fay in his CCHRO complaint and did not obtain a release of jurisdiction to file suit in the superior court against Mr. Fay pursuant to General Statutes § 46a-100. "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.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "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.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The analysis of the Appellate Court in Malasky v. Metal Products Corp., 44 Conn.App. 446, 689 A.2d 1145, cert. denied, 241 Conn. 906, 695 A.2d 539 (1997), governs this issue. The plaintiff in Malasky filed a CCHRO complaint alleging sexual harassment against two corporations that were owned and operated by the same individual, and the individual was not a named party in the CCHRO complaint. The plaintiff secured a release of jurisdiction from the CCHRO permitting her to bring an action in superior court against the two corporations. The plaintiff then filed a complaint in superior court against both corporations as well as the individual in his capacity as owner and president of the two corporations. The individual defendant then moved to dismiss the case for failure to exhaust administrative remedies and the trial court granted the motion. The Appellate Court reversed, finding that the plaintiff had in fact exhausted her administrative remedies. The Appellate Court determined that the plaintiff had satisfied a limited exception to the exhaustion requirement and thus the trial court had subject matter jurisdiction over the plaintiff's complaint. Id., 453-56.
The Malasky court based its conclusion on the reasoning of Maturo v. National Graphics, Inc., 722 F.Sup. 916 (D.Conn. 1989), and cited the applicable standard from that case: "Generally, an action under Title VII can proceed only against those individuals named as respondents in the complaint filed with the EEOC. 42 U.S.C. § 2000e-5(f)(1). The purpose of this exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of Title VII . . . A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the EEOC complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied . . . Specifically, the factors to be considered under this exception are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party . . ." (Citation omitted; internal quotation marks omitted.) Malasky v. Metal Products Corp., supra, 44 Conn.App. 453-54. "Although the court in Maturo was concerned primarily with EEOC filing requirements, the same rationale applies to the requirements of the CHRO." Id., 454. The exception to the exhaustion requirement, as described above, is commonly known as the "identity of interest" exception. See Johnson v. Palma, 931 F.2d 203, 209-10 (2d Cir. 1991).
The Malasky court, in applying the "identity of interest" factors to assess the underlying dual purposes of the exhaustion requirement, found that each of the factors weighed in favor of the plaintiff.
Similarly, in this case, each of the factors and the underlying purposes of the exhaustion requirement support the plaintiff.
First and foremost, the defendant Mr. Fay clearly had notice of the allegations. Mr. Fay had notice of the claim and his conciliation interests are identical to those of the Connecticut Post, the named respondent to the CCHRO complaint. The first element of the four-part test has been met here because Mr. Fay was named in the text of the CCHRO complaint. In Malasky, the Appellate Court found that the first criteria of the test has been met where the nonnamed party has been referred to by name in the text of the complaint. Id., p. 445.
The second criteria of the test is also met because Mr. Fay's interest, as circulation manager to whom the plaintiff reported, are virtually identical to the interests of the named respondent in securing voluntary conciliation and compliance with the plaintiff.
Furthermore, Mr. Fay has suffered no ascertainable prejudice as a result of the plaintiff's failure to name him as a respondent in the CCHRO complaint. He received actual notice of the claim, any investigation conducted by CCHRO would necessarily have included Mr. Fay. Therefore, the third criteria has been met.
Finally, the fourth criteria has been met because Mr. Fay, as supervisor, exercised control over the plaintiff.
The defendant, however, also argues that the plaintiff was represented by counsel at the time he filed her CHRO complaint. The plaintiff counters that various courts have rejected such a limitation. See Williams v. Quebecor World Infiniti Graphics, Inc., No. 3:03-CV-02200, 2007 WL 926901, 2007 U.S. Dist. LEXIS 21194 (D.Conn. Mar. 22, 2007); Wood v. Pittsford Central School District, No. 03-CV-6541T, 2005 WL 43773, 2005 U.S. Dist. LEXIS 18063 (W.D.N.Y. Jan. 10, 2005); Olvera-Morales v. Sterling Onions, Inc., 322 F.Sup.2d 211 (N.D.N.Y 2004); Manzi v. DiCarlo, 62 F.Sup.2d 780 (E.D.N.Y. 1999). The Malasky court "consider[ed] the fact that the plaintiff was not represented by counsel at the time she filed the complaint with the CHRO" and also noted that the plaintiff was represented by counsel at the time that she sought a release of jurisdiction from the CHRO. Malasky v. Metal Products Corp., supra, 44 Conn.App. 455-56. The Malasky court continued by stating that "[c]onsidering the entire situation, we conclude that the underlying purposes of providing notice to [the defendant] were satisfied in the plaintiff's filing with the CHRO." Id., 456.
Since all four criteria of the Malasky test have been satisfied and since there is split authority as to whether or not these criteria only apply if the plaintiff was unrepresented at the time of the CCHRO filing, this court will deny the Motion to Dismiss as to both counts finding that the plaintiff did exhaust his administrative remedies as to Mr. Fay.