Summary
holding that plaintiff need not exhaust administrative remedies prior to bringing FLSA claim despite acknowledging "that while § 31-51bb allows for causes of action arising under the state or federal constitution or under a state statute, it does not include causes of action under federal statutes"
Summary of this case from Dicesare v. Town of StoningtonOpinion
No. CV 08-4037300
April 14, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#102)
The plaintiffs are former employees of the Connecticut Department of Environmental Protection (Department). In their complaint, they allege that the Department did not pay them overtime wages for hours worked in excess of forty hours per week in violation of General Statutes §§ 5-245(a) (count one), 31-76c (count two), 31-76e (count three) and the Federal Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (count four). The plaintiffs are members of a union that entered into a collective bargaining agreement (agreement) with the defendant. The defendant has moved to dismiss the complaint on the ground that the court lacks subject matter jurisdiction because the plaintiffs have not exhausted their contractual and administrative remedies.
The plaintiffs in the case of York v Dept. of Environmental Protection, Superior Court, judicial district of Hartford, Docket No. CV 08 4037176, allege the same claims as the plaintiffs here. The defendant has filed an identical motion to dismiss in the York case. The parties agreed that the motions would be heard and decided together. The court is filing an identical memorandum in the York case.
General Statutes § 5-245(a) provides: "Any state employee who performs work authorized by his appointing authority for a period in addition to the hours of the employee's regular, established workweek shall receive compensation as follows: (1) For that portion of such additional time worked which when added to the employee's regular, established workweek does not exceed forty hours, the employee shall be compensated at an hourly rate based on his annual salary; (2) for that portion of such addition which when added to the employee's regular, established workweek exceeds forty hours, the employee shall be compensated at a rate equal to one and one-half times an hourly rate based on his annual salary."
General Statutes § 31-76c provides: "No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
General Statutes § 31-76e provides: "No employer shall be deemed to have violated section 31-76c by employing any employee for a workweek in excess of the maximum workweek applicable to such employee if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in subsection (j) of section 31-58 and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified."
The plaintiffs maintain they are entitled to overtime pay under the statutes cited. The defendant claims that under the agreement the plaintiffs are exempt from overtime because of their salary group. Under the agreement, employees paid above salary group twenty-four are deemed exempt from overtime. The plaintiffs do not dispute that their salary group is above salary group twenty-four. The plaintiffs allege, however, that they are first responders to incidents involving hazardous materials. They further allege that § 13a-1 of the Federal Fair Labor Standards Act, 29 U.S.C. § 213(a)(1), and that act's applicable regulations, provide that when an employee is a first responder to incidents involving hazardous materials, there is no exemption from the payment of overtime by an employer at the rate of one and one-half times an employee's regular rate of pay for hours above forty hours per week. In essence, the plaintiffs allege that because of the nature of their work, federal law requiring the payment of overtime supercedes the exemptions as to overtime contained in the agreement. Neither the plaintiffs nor their union filed a grievance under the agreement regarding the overtime issue.
CT Page 6729
Claims under state statutes: Counts one, two and three
"[I]t is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot he made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements . . ."Nevertheless, our Supreme Court has grudgingly carved several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes. One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile . . . An action is futile when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . The guiding principle in determining futility is that the law does not require the doing of a useless thing." (Citations omitted' internal quotation marks omitted.) Santana v. Hartford, 94 Conn.App. 445, 461-62, 894 A.2d 307 (2006), aff'd, 282 Conn. 19, 918 A.2d 267 (2007).
"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Citation omitted.) Frank v. Dept. of Parks Recreation, 78 Conn.App. 601, 605, 828 A.2d 692, cert. granted, 266 Conn. 914, 833 A.2d 465 (2003) (appeal withdrawn March 19, 2004).
Guided by Frank, the court conducted a hearing to determine "whether the grievance procedures established in the collective bargaining agreement were capable of providing relief for the plaintiff's claim[s]." Id., 606. The only evidence presented at the hearing was a copy of the subject agreement, Plaintiffs' Exhibit 1.
Article 14, section one of the agreement defines grievance as "a written complaint involving an alleged violation or a dispute involving the application or interpretation of a specific provision of this Agreement." Our Supreme Court has "construed an arbitration clause referring to `any dispute between the parties hereto as to the interpretation or application of the Agreement,' as `broad and all encompassing' and persuasive evidence of the parties' intent to have their disputes resolved, not by the courts but by an arbitration panel." (Internal quotation marks omitted.) Trigila v. Hartford, 217 Conn. 490, 496-97, 586 A.2d 605 (1991).
As noted earlier, the first three counts of the complaint allege the defendant has violated certain state statutes by failing to pay overtime to the plaintiffs in accordance with those statutes. Article 17 of the agreement contains the provisions concerning overtime. Article 17, section one (a), provides: "The provisions of this article shall be interpreted consistent with [General Statutes § ]5-245, except when specifically provided otherwise." Article 17, section three addresses exempt employees, and provides in relevant part: "During the life of this Agreement, [General Statutes § ]5-245(b)(1) shall be deemed to exempt from overtime all employees being paid above Salary Group 24 . . ."
As to the first three counts, the essential issue is whether the overtime exemption provision in Article 17, section three applies to the plaintiffs' claims under Connecticut statutes. Since the parties dispute the application of a specific provision of the agreement, it is the proper subject of a grievance.
The plaintiffs argue that pursuing a grievance would have been futile. They claim an arbitration of the grievance could not provide them with relief because an arbitrator would be bound by the terms of the agreement. They argue that an arbitrator could not award them overtime without violating Article 14, section nine (c) of the agreement, which limits the power of the arbitrator to modify the agreement. That provision provides in relevant part: "The arbitrator shall have no power to add to, subtract from, alter, or modify this Agreement, nor to grant to either party matters which were not obtained in the bargaining process . . . nor to grant pay retroactivity for more than thirty (30) calendar days prior to the date a grievance was submitted at Step 1 . . ." They further claim that their statutory claims for overtime could not be considered by an arbitrator because the plaintiffs' rights to overtime under the agreement are expressly limited by Article 17, section three, which contains the salary group exemption.
The plaintiffs argue that the holding in Frank v. Dept. of Parks Recreation, supra, 78 Conn.App. 601, supports their futility claim. In Frank, the plaintiff brought an action for unpaid wages in the form of 800 hours of compensatory time worth approximately $28,700. Id., 604. The collective bargaining agreement, which covered the plaintiff, contained a provision allowing for the accumulation of compensatory time. Id., 607. The trial court dismissed the action, having concluded that the plaintiff, a union member, "had failed to exhaust her remedies as established by the grievance procedure in the collective bargaining agreement." Id., 605. The Appellate Court reversed the trial court, holding: "In the labor setting . . . the arbitrator has no authority to award relief to the plaintiff that is not allowed under the terms of the collective bargaining agreement. That is because the provisions of the collective bargaining agreement are solely the product of negotiations between the signatories to the collective bargaining agreement. Once the signatories reached an agreement on the interpretation of the [relevant] provision[s], there was no independent legal authority capable of compelling a different interpretation, and neither signatory considered itself as having any discretion to interpret the provision differently. Thus, the [collective bargaining] agreement contained the parties' final positions on the issue." (Internal quotation marks omitted.) Id., 608.
The defendant argues that this case is distinguishable from Frank because here the plaintiff's claims are not based upon the specific terms of the agreement, but rather upon claims under Connecticut statutes. The defendant maintains that these statutory claims could have been considered in this case if the plaintiffs had exhausted their contractual remedies. In support of its position, the defendant relies on School Administrators Ass'n. v. Dow, 200 Conn. 376, 511 A.2d 1012 (1986). In that case, the plaintiffs claimed they had an inadequate remedy in arbitration because the collective bargaining agreement had limitations upon the arbitrator's authority similar to those in contained in Article 14, section nine (c) in the subject agreement. The Dow Court addressed the issue as follows: "The plaintiffs claim that under the collective bargaining agreement in effect, the arbitrator is vested only with the power to construe specific provisions of the agreement and has no power to apply legal standards. They argue from this premise that arbitration would be an inadequate remedy. We cannot agree with the plaintiffs, however, that the arbitrator is so limited under the collective bargaining agreement. The only limitation on the arbitrator's authority is found in section nine of the grievance procedures which provides that `any arbitrator acting pursuant to this Agreement shall have power only to construe specific provisions of this Agreement and shall have no authority to add, to delete from or modify in any way any provision of this Agreement.' This language can reasonably be read to limit just the arbitrator's powers to construe the agreement and does not necessarily mean that the arbitrator is powerless to apply legal principles. It is presumed that the parties intended to grant to the arbitrators such powers as a reasonably necessary to settle the dispute fully . . . Thus, absent explicit language in the contract to the contrary of limiting language in the submission, it is presumed that the arbitrator in this case has the power fully to decide disputes involving `grievances' as defined by the agreement." (Citation omitted; internal quotation marks omitted.) Id., 383 n. 4.
The plaintiffs' claims constitute a grievance under the terms of the agreement. The quoted language in Dow, and the terms of the agreement, support a conclusion that the plaintiffs' statutory claims could have been considered in a grievance arbitration. As noted earlier, in the absence of contrary language, the grievance procedure of the agreement is the exclusive remedy for resolving disputes between the parties on labor issues. The agreement does not exempt statutory claims from the grievance and arbitration procedure. Article 9, section ten of the agreement does list matters that cannot be the subject the grievance or arbitration procedure and there is no mention of claims under wage statutes. The grievance procedure under the agreement was adequate as to the counts alleging violation of Connecticut statutes.
Considering the issues presented here, the administrative remedy of arbitration is not demonstrably futile in that it could not result in a favorable decision for the plaintiffs. The court notes that in State v. AFSCME, AFL-CIO Council 4, Local 2663, 257 Conn. 80, 82, 777 A.2d 169 (2001), our Supreme Court upheld an arbitrator's award concerning an overtime dispute, arising under a collective bargaining agreement, involving the state of Connecticut and a union. The arbitrator interpreted the Federal Fair Labor Standards Act to require the state to pay overtime to certain employees whom the state claimed were exempt. Id., 89.
In support of their futility claim, the plaintiffs submitted an affidavit from the executive director of their union, Robert D. Rinker, in which he stated that, because of the salary exemption in the agreement, the union "would not be able to successfully process a grievance seeking overtime" on the plaintiffs' behalf. This argument is unavailing. Article 14, section six, of the agreement, which concerns the grievance procedure, allows an individual employee to submit a grievance at Steps I, II, and III without the assistance of the union. Yet, the plaintiffs have not alleged or stated that they have ever taken any individual grievance actions.
In Sobczak v. Board of Education, 88 Conn.App. 99, 107, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005), the plaintiff made a similar claim of futility: "[T]he plaintiff argues that he asked Allen, the union president, to file a grievance on his behalf. Because Allen refused to do so, the plaintiff concludes, the grievance procedure was futile and inadequate. We do not agree. Even if we presume that Allen refused to file the grievance, the plaintiff remained free to pursue his grievance. The grievance procedure provides that `[a] grievant may be represented by any representative at Levels One, Two and Three of the grievance procedure, provided, however, that exclusive organizational representation shall be provided by the Federation. When a grievant is not represented by the Federation, the Federation shall have the right to be present and state its views at Levels One, Two and Three of the grievance procedure.' . . . The plaintiff, therefore, was expressly permitted to initiate a grievance either on his own or with the assistance of a representative other than the union at levels one through three of the grievance procedure. It is undisputed that he failed to do so. Furthermore, the plaintiff's contention that it necessarily would be unavailing to file a grievance pursuant to levels one through three is purely speculative. The mere possibility, or even likelihood, of an adverse decision does not render a remedy futile." (Internal quotation marks omitted.) Id., 107.
Thus, the plaintiffs' claim that their union representative's refusal to process their grievance made arbitration futile is unavailing because the plaintiffs did not exhaust their independent right to bring a grievance under the agreement.
The plaintiffs also argue that they are permitted to bring this action pursuant to General Statute § 31-51bb, which provides: "No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement." The court concludes the plaintiffs do not have the right to pursue their statutory claims under § 31-51bb because their claims depend upon interpreting the provisions of the agreement to address the question of whether the agreement's salary group exemption applies to the plaintiffs. As discussed earlier, these claims are the proper subject of the grievance procedure.
As to the plaintiffs' state statute claims, the court concludes that the grievance procedures under the agreement provided an adequate remedy that would not be futile. Since the plaintiffs have failed to exhaust their contractual remedies, the court lacks subject matter jurisdiction over the matters alleged in counts one, two and three.
The defendant has also argued that the plaintiffs have failed to exhaust their administrative remedies with the State of Connecticut Labor Department. Since the court's conclusion regarding lack of exhaustion of contractual remedies is dispositive, the issue of the plaintiffs' failure to exhaust administrative remedies will not be addressed.
Count Four: Violation of Fair Labor Standards Act
In paragraph twenty-six of the fourth count of their complaint, the plaintiffs allege "§ 13(a)(1) of the Fair Labor Standards Act ( 29 U.S.C. § 201, et seq.) and applicable regulations provide that there is no exemption from the payment of overtime by an employer at the rate of one and one-half times an employee's regular rate of pay for hours above (40) forty hours per week when that employee is a first responder or hazardous materials worker who performs work such as the type of work performed by the plaintiffs herein and thus are protected by the minimum wage and overtime provisions of the [Fair Labor Standards Act]."
The defendant urges dismissal of the plaintiffs' federal law claims, along with their state law claims, under School Administrators Ass'n. v. Dow, supra, 200 Conn. 376. The court concludes that Dow is not applicable to the plaintiffs' Fair Labor Standards Act claims. The United States Supreme Court held that "the statutory enforcement scheme [of the Fair Labor Standards Act] grants individual employees broad access to the courts. Section 16(b) of the Act, 29 U.S.C. § 216(b), which contains the principal enforcement provisions, permits an aggrieved employee to bring the statutory wage and hour claim in any Federal or State court of competent jurisdiction." (Internal quotation marks omitted.) Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). The Fair Labor Standards Act does not set up any exhaustion requirement or other procedural barriers, nor does the Act refer to another forum for enforcement of statutory rights. Id.
The Barrentine case and its rationale were extensively quoted and relied upon by our Supreme Court in the case of Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 628 A.2d 946 (1993). In Genovese, the court held that an unsuccessful arbitration under a collective bargaining agreement did not prevent the plaintiff from pursuing a cause of action in court under § 31-51bb. Id., 481-82. This court acknowledges that while § 31-51bb allows for causes of action "arising under the state or federal constitution or under a state statute," it does not include causes of action under federal statutes. The court is persuaded by the holding of Barrentine that the plaintiffs' actions to enforce their claims under the Fair Labor Standards Act may stand on their own, and need not be enabled by § 31-51bb.
To the extent that defendants may argue that the plaintiffs have not exhausted their administrative remedies as to their federal claim, the court concludes that under Barrentine, it is not necessary to do so.
CONCLUSION
The defendant's motion to dismiss is granted as to counts one, two and three of the complaint. The motion is denied as to count four.