Opinion
HHDCV176073592S
11-22-2017
Tashanna EDWARDS, et al. v. EASTERN CONNECTICUT STATE UNIVERSITY
UNPUBLISHED OPINION
Caption Date: November 21, 2017
OPINION
Robaina, J.
FACTS
The plaintiffs, Tashanna Edwards (Edwards) and Susan Mehalick (Mehalick), filed the operative complaint against the defendant, Eastern Connecticut State University (university), on December 6, 2016. The complaint contains four counts: one as to Mehalick for the university’s violation of the Connecticut " whistleblower statute, " General Statutes § 31-51m; two as to Mehalick for the university’s violation of General Statutes § 31-51q, which prohibits an employer’s retaliation against an employee for that employee’s exercise of his or her rights to free speech; three as to Edwards for the university’s violation of § 31-51m; and four as to Edwards for the university’s violation of § 31-51q. The only counts at issue for the present motion to dismiss are counts two and four, i.e., those for violation of § 31-51q as to each respective plaintiff. The plaintiffs allege the following facts.
Edwards and Mehalick both worked at the child care center (center) at the university, Edwards as a student worker and Mehalick as an associate teacher. On June 3, 2015, Edwards witnessed the head teacher, Cynthia DeJesus (DeJesus), abusing a four-year-old child (Jane): DeJesus took Jane to a hidden area of the classroom and constrained Jane by leaning on her until Jane screamed that she was being hurt. DeJesus also denied Jane- a four-year-old girl- lunch following the incident. Edwards told Mehalick about the abuse, and that she feared reporting it to the center’s director, Niloufar Rezai (Rezai), because Rezai and DeJesus were close friends. The following day, June 4, 2015, Mehalick reported the abuse to the university. The university told Edwards that it would contact the Connecticut Department of Children and Families (" DCF"), and instructed both Edwards and Mehalick not to contact DCF themselves. DeJesus was sent home that day but returned to work the following Monday, instructing the same class, including Jane. In the weeks following, DCF did not come to investigate and Jane’s mother was not informed of the abuse.
Since there are many representatives of the university involved in the allegations and the names and positions of each for the purposes of this motion are irrelevant, the court will simply refer to each representative as " the university."
On June 8, 2015, Edwards was transferred by Rezai from the preschool classroom to the toddler room, which is on the opposite side of the center. Edwards felt more comfortable and had more experience with preschool children rather than toddlers; she communicated this to the center, which responded that " [t]hey did not change your pay, and they did not fire you, so there is nothing you can do about it." When Jane’s mother came to the center on June 10, 2015, and entered the kitchen where Edwards was present, Rezai actively escorted Jane’s mother away from Edwards. On June 16, 2015, concerned that the university had not informed DCF as it said it had, Mehalick notified DCF herself. DCF investigated within a few days.
Edwards’ employment contract expired in August of 2015. She did not apply for a new contract because she felt it would be futile since Rezai made it clear she was not welcome at the center. In May of 2016, Rezai announced that the center was eliminating temporary positions and that anyone who wanted a permanent position would have to apply for one. Mehalick was classified as a temporary teacher, she had been so since becoming an associate teacher at the center in 2011; all but two employees were classified as temporary. Mehalick, who had a bachelor’s degree in elementary education and twenty-six years of teaching experience, including fourteen years devoted to preschool education, applied for the permanent position but was rejected in favor of a candidate with an associate degree and no prior experience working with preschoolers before she arrived at the center.
PROCEDURE
The university argues that its motion to dismiss on the ground that the plaintiffs have failed to allege a waiver of sovereign immunity is procedurally proper because whether the allegations are sufficient in that respect implicates subject matter jurisdiction. The plaintiffs argue the motion is procedurally improper because whether the plaintiffs have alleged " discipline or discharge, " the retaliatory acts that make up a cause of action under § 31-51q must be raised by a motion to strike.
" Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law ... 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 ... Exceptions to this doctrine are few and narrowly construed under our jurisprudence.
" [T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority ... For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ... Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept . of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). The plaintiffs do not challenge that the university is an entity of the state.
Section 31-51q " intended to protect the first amendment ... rights of working men and women"; Perez-Dickson v. Bridgeport, 304 Conn. 483, 534, 43 A.3d 69 (2012); providing in relevant part: " Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States 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 for damages caused by such discipline or discharge ..." (Emphasis added.)
" [I]t was not until the enactment of § 31-51q in 1983 that [sovereign immunity] was removed in suits against the state for wrongful discharge due to an employee’s exercise of his or her first amendment rights. No principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims." (Citations omitted; emphasis in original; internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 377, 559 A.2d 701 (1989). Because § 31-51q is a statutory waiver in derogation of sovereign immunity, the conduct complained of by the plaintiff must fall strictly within the confines of such waiver, i.e., it must consist of " discipline or discharge, " in order for sovereign immunity to be waived. The plaintiffs’ argument confuses a failure to allege a cause of action under § 31-51q with a failure to allege waiver of sovereign immunity as provided for by the same statute.
" Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by a motion to dismiss ... 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." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). For the foregoing reasons, the present motion to dismiss is procedurally proper.
DISCIPLINE OR DISCHARGE
" Discipline or discharge" for the purposes of § 31-51q is not statutorily defined, and the question before the court is whether the alleged behavior of the university constitutes such. Naturally, the plaintiffs claim it does and the university claims it does not. The plaintiffs claim that the transfer of Edwards, the nonrenewal of the contracts of Edwards and Mehalick, and the failure to give the permanent position to Mehalick constitute " discipline or discharge, " and even if the language " discipline or discharge" does not encompass the university’s actions, to exclude them from coverage creates an absurd result in contravention with General Statutes § 1-2z.
General Statutes § 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
" In (Bombalicki v. Pastore, Superior Court, judicial district of New Haven, Docket No. 378772 (May 10, 2000, Blue, J.) (27 Conn.L.Rptr. 183)), the plaintiff claimed that he was passed over for promotion from sergeant to lieutenant in the New Haven police department by sergeants who ranked below him on the civil service eligibility examination. In determining whether the failure to promote constituted discipline within the meaning of § 31-51q, the court examined the dictionary definition of discipline; the legislative history of § 31-51q; the statutory text; analogous statutes using the term discipline; and policy considerations. Thus, the court stated that: " discipline" involves affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began. A withholding of a benefit- even a benefit that was due or promised- does not fit this pattern. " 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." See also McIntyre v. Fairfield Univ., No. CV020391471, 2003 WL 1090690 (Conn.Super.Ct. Mar. 3, 2003) .
The court went on to hold that the denial of a promotion does not constitute " discipline" within the meaning of § 31-51q. See Bombalicki v. Pastore, supra, 27 Conn.L.Rptr. 185. The court in McIntyre relied on Bombalicki in holding that a denial of tenure and promotion does not constitute discipline. See McIntyre v. Fairfield University, supra, 221.
In D’Angelo v. McGoldrick, Superior court, judicial district of Litchfield, Docket No. 93-0063904-S (August 3, 1995, Pickett, J.), aff’d on other grounds, 239 Conn. 356, 685 A.2d 319 (1996), the court determined that the plaintiff police officers were not disciplined when they were transferred without suffering any loss of pay or rank, and where there was evidence that such transfers were commonplace within the police department. " Although in some situations a transfer to a new assignment may not be discipline, where that transfer is to a position that is so objectively undesirable it could be considered a demotion, then such a transfer could be ‘discipline.’ Likewise, a removal of duties is an affirmative act that could be considered a demotion in certain circumstances." Matthews v. Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV-11-6019959-S (May 31, 2013, Peck J.) (56 Conn.L.Rptr. 262, 270). At the motion to strike stage, the court determined that Sergeant Matthews’ alleged transfer- following his disclosure to the attorney general of a pattern of covering up the misconduct of fellow officers- from the internal affairs unit of the police department to a risk management unit with only one other member, where he was placed in a cubicle under close scrutiny and received threats and undeserved poor evaluations, was sufficient to allege discipline. Id.
Superior Courts have regularly held that the nonrenewal of a contract does not constitute a " discharge" for the purposes of § 31-51q. See Sans-Syzmonik v. Hartford Public Schools, Superior Court, judicial district of Hartford, Docket No. CV-14-6051355-S (November 7, 2014, Peck, J.) (59 Conn. Rptr. 308, 314); McIntyre v. Fairfield University, supra, 34 Conn.L.Rptr. 221; Douglas v. Board of Trustees for Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-95-0372571-S (April 8, 1999, Silbert, J.). See also Avedisian v. Quinnipiac University, United States Courts of Appeals, Docket No. 09-3088-cv (2d Cir. July 21, 2010). Sans-Syzmonik and McIntyre both rely on Douglas v. Board of Trustees for Connecticut State University, supra, wherein the court held that the expiration of a contract does not constitute an actual discharge; and that because the plaintiff had not involuntarily quit, such expiration could not amount to a constructive discharge either. Id. Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), the federal counterpart to § 31-51q, explicitly makes it an unlawful employment practice " to fail or refuse to hire or discharge any individual"; whereas § 31-51q makes no mention of an employer’s refusal to hire, for instance upon the expiration of an employment contract, as actionable retaliation.
As for Edwards, her transfer from the preschool room to the toddler room without any allegations that she received a decrease in pay, diminishment in responsibilities, or was otherwise punished in her new assignment is insufficient to constitute discipline. Her impression that she was transferred in retaliation does not make it so. Although certainly no more noble than disciplining Edwards for her bravery in speaking out, the allegations of the complaint paint the picture of a daycare center trying to prevent the discovery of child abuse by the mother of the abused as well as DCF- and the reprehensibility of such behavior, even if proven, does not make it discipline. Regarding both Edwards and Mehalick, nonrenewal of their contracts, or in the case of Mehalick, failure to provide her with a permanent position, is neither discipline nor discharge. Section 1-2z, upon which the plaintiffs rely, further bolsters this position.
Section 1-2z, titled " [p]lain meaning rule, " provides the following: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." While courts have focused on the meaning of " discipline" or " discharge, " which are arguably ambiguous words, the preceding and following language in the statute plainly articulates that the employer must subject the employee to discipline or discharge on account of their speech. See § 31-51q. How can the expiration of a contract entered into by both parties be something that the employer subjects the employee to?
Additionally, how can the expiration of the contract be on account of speech that occurred after the formulation of such expiry date? The answer is it cannot.
As to whether this leads to an absurd result allowing the court to consider extratextual evidence, none of which the plaintiffs provide in support of their argument, the court concludes that it does not. The status quo of a contract employee is that which is provided for in the employment contract, nothing more. To deny the employee something that neither the employer nor the employee agreed to in the contract, e.g., another contract, cannot amount to discipline or discharge. Although contract employees may have recourse under federal law for retaliatory failure to hire after the contract has expired, our legislature drafted § 31-51q narrowly, and it would be in contravention with § 1-2z for the court to ignore the words of the legislative branch and expand liability in such a broad manner as the plaintiffs ask.
CONCLUSION
Because the university’s motion is procedurally proper and the statute under which the plaintiffs seek redress does not provide for a waiver of the state’s immunity as to the actions complained of, the court hereby grants the university’s motion to dismiss counts two and four.