Opinion
KNLCV166026876S
02-02-2017
Dawn Frechette v. Athena Health Care Associates, Inc. dba Athena Health Care Systems and Bayview Health Care Center
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (PLEADING #101)
Timothy D. Bates, J.
INTRODUCTION
This action arises out of a claim by the plaintiff, Dawn Frechette, that she was improperly discharged in retaliation for filing a workers' compensation claim when she was injured as an employee of the defendant, Athena Health Care Associates. In her complaint, filed on May 5, 2016, the plaintiff alleges the following:
On November 12, 2010 the plaintiff was an employee of the defendant and while under the employ of the defendant, she was injured. On October 14, 2011, a notice of claim for workers' compensation benefits was filed on behalf of the plaintiff with the Workers' Compensation Commission (WCC). This notice was accepted by the WCC and the plaintiff began receiving workers' compensation benefits shortly thereafter. In accordance with her physician's treatment orders, the plaintiff remained out of work for three years. During this time the plaintiff continued to receive workers' compensation benefits. The plaintiff was released by her physician to return to work on December 22, 2014. The plaintiff then notified the defendant of her ability to return to work; however, the defendant discharged the plaintiff from employment on December 5, 2014. The plaintiff commenced the present action in this court on May 2, 2016.
On June 23, 2016, the defendant filed this motion to dismiss (#101), along with a memorandum of law in support (#102), contending that the plaintiff is precluded from bringing her claim of workers' compensation retaliation in state court because she already had filed a retaliation complaint with the WCC. The defendant attached the following exhibits to its memorandum of law: a letter dated March 4, 2015, from the plaintiff's attorney on behalf of the plaintiff to the WCC stating an intention to file a § 31-290a claim; a hearing request for a violation of General Statutes § 31-290a dated December 23, 2014, filed on behalf of the plaintiff with the WCC; and a letter dated March 11, 2015, from the chairmen of the WCC assigning the plaintiff's § 31-290a claim to the second district of the WCC.
The plaintiff, in response, objects (#103 and #104) to the motion to dismiss, claiming that the defendant's motion lacks merit on two grounds. First, she asserts the issue of preclusion is more properly raised by way of a special defense and second, she contends the filing of a notice with the WCC does not preclude her subsequent election to pursue her claim in Superior Court. The defendant, in response (#105), argues that notice to the WCC and a request for a hearing constitute institution of a claim with the WCC and, as a result, the plaintiff is precluded from bringing this court action seeking the same relief. The plaintiff, in response (#109), argues that under the election of remedies doctrine, she has the right to change her election under § 31-290a, and this court is not deprived jurisdiction. Oral argument was heard on October 24, 2016.
ANALYSIS
" 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). " [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).
In its memorandum in support of the motion to dismiss, the defendant argues that the plaintiff is barred from seeking redress in state court for her workers' compensation retaliation claim because she already elected to pursue her claim with the WCC. The defendant contends that, under § 31-290a(b), a plaintiff may elect to bring a retaliatory discharge claim either in state court or through the WCC, but cannot bring it in both forums. Therefore, the defendant argues that the plaintiff's decision to first pursue her claim with the WCC is binding and irrevocable and that it precludes her from seeking recourse in state court. By way of support of its position, the defendant submits a letter, attached as Exhibit A to the defendant's memorandum of law, sent on behalf of the plaintiff to the WCC dated March 4, 2015 as proof that the plaintiff instituted her claim first with the WCC before commencing this action in May 2015.
The plaintiff counters that the defendant's argument lacks merit because 1) this issue is not properly raised by a motion to dismiss, but rather should be raised by way of special defense; and 2) that an injured worker has the right to choose the forum by which she will litigate and merely filing a notice with the WCC does not preclude a subsequent election to pursue her claims in state court. Further, the plaintiff argues that the election of remedies doctrine gives her the right to pursue her claim in either forum at any time.
Connecticut courts have " frequently held that [when] a statute has established a procedure to redress a particular wrong a person must follow the specified remedy . . ." (Internal quotation marks omitted.) Piteau v. Board of Education, 300 Conn. 667, 678, 15 A.3d 1067 (2011). In the present action, the applicable statute and procedure to be followed is § 31-290a. Section 31-290a(a) provides, in relevant part: " No employer . . . shall discharge . . . any employee because the employee has filed a claim for workers' compensation benefits . . ." Section 31-290a(b) provides, in relevant part: " Any employee who is so discharged . . . may either (1) Bring a civil action . . . or (2) file a complaint with the chairman of the Workers' Compensation Commission . . ." " [Section] 31-290a(b) provides two alternative procedures an employee may utilize to bring a complaint of wrongful discharge or discrimination. The employee may either bring an action in the Superior Court or file a complaint with the workers' compensation commission with the right to a direct appeal to this court." (Emphasis added.) Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 364 n.5, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991).
" 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). Subject matter jurisdiction must be decided as a threshold matter. See Id. Determining subject matter jurisdiction in this context, initially requires finding " whether the election of fora required by [§ 31-290a] constitutes a jurisdictional bar or an affirmative defense." Oni-Orisan v. Hartford Dispensary, United States District Court, Docket No. 3:15-CV-430 (MPS), (D.Conn. February 25, 2016).
In Baldassario v. Plimpton Hills Corp., Superior Court, judicial district of Hartford, Docket No. CV-92-0512755-S (January 19, 1993, Hennessey, J.) [8 Conn.L.Rptr. 699, ], the court, relying heavily on the holding in Grant v. Bassman, 221 Conn. 465, 604 A.2d 814 (1992), concluded that the election of forum issue in the context of § 31-290a is best brought up as an affirmative defense by the defendant. The court in Baldassario reasoned that " [t]he purpose of a special defense is to plead facts that are consistent with the allegation of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Baldassario v. Plimpton Hills Corp., supra, Superior Court, Docket No. CV-92-0512755-S. The court held that, " [t]he claim that a plaintiff elected an exclusive remedy relies on facts outside those alleged in the complaint that operate to negate what may once have been a valid cause of action." Id.
This court was unable to locate any other Connecticut court ruling dealing with this particular issue. However, the court in Oni-Orisan, supra, United States District Court, Docket No. 3:15-CV-430 (MPS), applying Connecticut law, addressed the issue of whether an objection to plaintiff's use of both the administrative processes should be raised by a motion to dismiss or by a special defense. The District court recognized a fallacy in the holding that the issue of preclusion should be addressed as an affirmative defense. The District court noted, " In Grant [ v. Bassman, supra, 221 Conn. 465, ] the court reviewed the trial court's dismissal--for lack of subject matter jurisdiction--of a plaintiff's claim against his employer, seeking damages for personal injuries incurred on the job. Id., 465. The trial court had held that [ ] Gen[eral] Stat[utes] § 31-284(a), which shields employers from damages for workplace injuries suffered by their employees as long as the employers comply with the workers' compensation law, deprived the court of jurisdiction over plaintiff's lawsuit arising from an on-the-job injury. Id., 466, 468-69. The Connecticut Supreme Court reversed, holding that the statute did not impose a jurisdictional bar . . ." Oni-Orisan, supra .
As the Oni-Orisan court persuasively analyzed, " [§ ]31-284(a) eliminates certain employers' liability for damages on account of personal injury sustained by an employee arising out of and in the course of his employment, and provides a substitute remedy through the workers' compensation scheme . . . In other words, [§ ]31-284(a) eliminates a common-law cause of action and replaces it with an administrative remedy. By contrast, [§ ]31-290a(b) . . ." (the statute governing the case before this court)" . . . creates a cause of action that did not exist at common law--a claim of retaliation for seeking workers' compensation benefits--and provides a choice of forum in which the cause of action may be brought; but as discussed, it makes that choice irrevocable and exclusive. In short, the decision in Grant was based on a very different statute than the one at issue here, and thus does not call for treating the election requirement in [§ ]31-290a(a) as an affirmative defense. Section 31-290a(b) prevents a court from entertaining a retaliation claim that has already been presented to the Commission." Id. Since there is no appellate authority on the issue in Connecticut, the federal court determined, " that the Connecticut Supreme Court would conclude that it limits the court's jurisdiction." (Citations omitted; internal quotation marks omitted.) Id. So, " [a]s a matter of Connecticut law, then, [§ ]31-290a(b) operates as a jurisdictional bar." Id.
This reasoning is consistent with the plain language of § 31-290a which states a plaintiff must " either: (1) file . . . or (2) bring " their claim. (Emphasis added.) This holding finds that that the election is made at the outset by the plaintiff has a jurisdictional component. " By making the employee's election irrevocable, the statute preserves judicial and administrative resources and avoids duplication of effort." Oni-Orisan v. Hartford Dispensary, supra, United States District Court, Docket No. 3:15-CV-430 (MPS). Taking the language of § 31-290a, read in conjunction with the persuasive analysis by the Oni-Orisan court, it follows that § 31-290a is meant to be a jurisdictional bar rather than an affirmative defense.
As a jurisdictional component, the next question the court must determine is whether this court is with or without jurisdiction to hear this appeal. In deciding this issue, a majority of judges of the Connecticut Superior Court have held that under § 31-290a, it is up to the plaintiff to choose whether to bring his workers' compensation retaliation claim with the WCC or in state court, but once an election to proceed in one forum has been chosen, the plaintiff is precluded from asserting the same claim in the other forum. Ricketts v. Middlesex Hospital, Superior Court, judicial district of Middlesex, Docket No. CV-07-5002634 (September 27, 2007, Holzberg, J.) [44 Conn.L.Rptr. 278, ] (" Courts construing [§ 31-290a] have concluded that once an employee selects a particular forum within which to bring his claim under the statute, he cannot bring the same claim in the alternative forum" [internal quotation marks omitted]); Thibault v. Costco Wholesale Corp., Superior Court, judicial district of New Haven, Docket No. CV-96-0333704, (June 8, 1998, Skolnick, J.); Fortier v. C& M Technology, Inc., Superior Court, judicial district of New London, Docket No. unknown, (May 9, 1995, Hurley, J.); Caldeira v. State Dept. of Corrections, Superior Court, judicial district of Hartford (May 11, 1992, Shaughnessy, J.) [6 Conn.L.Rptr. 394, ] (" The plain language of . . . § 31-290a precludes seeking redress in one forum when another forum has already been selected . . . Moreover, in another context, it has been held that once a party has elected to pursue an administrative remedy, an independent civil action may not be brought to adjudicate the same issues." [Citations omitted.])
Therefore, in the present action, under § 31-290a and the supporting case law, from the outset, the plaintiff had to make a choice to bring her workers' compensation retaliation claim either to the WCC or to state court, but once that choice was made it was binding and irrevocable. Chiaia v. Pepperidge Farm, Inc., supra, 24 Conn.App. 364 n.5.
It should be noted that in Dunn v. EAO Switch Corp., Superior Court, judicial district of Fairfield, Docket No. CV-97-339665-S, (November 12, 1997, Thim, J.), the court, relying on contract principles, found that a plaintiff may change his forum selection at any time unless and until " the other party has materially changed his position in reliance on the original choice." Id. The court held there, that the plaintiff's " mere manifestation of an intention to pursue one remedy than another does not . . . preclude a party from making such a shift." Id. In that case, the plaintiff had requested an informal hearing with the WCC for his § 31-290a claim. Id. The plaintiff then brought a claim in the state court for the same matter under § 31-290a. Id. The court held that regardless of what the plaintiff had done thus far, because the defendants " failed to show that they ha[d] materially changed their position in reliance on the plaintiff's original choice of forum, " the plaintiff was not precluded from later pursuing his claim in state court. Id.
However it should be noted that no other court has followed Dunn . In fact, the court in Sousa v. Quest Diagnostics, Inc., Superior Court, judicial district of Hartford, Docket No. CV-08-4036611-S (December 11, 2008, Prescott, J.) (46 Conn.L.Rptr. 779, ), expressly rejected the reasoning in Dunn, concluding that " [t]he obligation to select a forum to pursue a § 31-290a claim . . . is not created by a contract but instead, is imposed by statute, and the court is not empowered to read into the statutory language an exception that does not exist." Id. The court in Sousa accordingly concluded that the plaintiff, who had previously filed a claim with the WCC, pursuant to § 31-290a, was precluded from later seeking a claim with the state court. Id. Additionally, under similar circumstances to the Sousa court and the case at hand, the court in Oni-Orisan v. Hartford Dispensary, supra, United States District Court, Docket No. 3:15-CV-430 (MPS) concluded that § 31-290a " sets forth an irrevocable exclusive forum selection scheme" and also declined to follow the reasoning in Dunn .
Further, the doctrine of exhaustion contradicts the contract theory presented by Dunn . Under the reasoning in Dunn, a potential plaintiff would be allowed to select the WCC as its forum, and then, as long as the defendant did not materially rely on this selection, the plaintiff could change his selection to the Superior Court at any time. This would defeat the purpose of the exhaustion doctrine. Under the doctrine of exhaustion, it is normally assumed that once a party starts an administrative remedy that administrative remedy must be followed to exhaustion. Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 623, 577 A.2d 1017 (1990). Connecticut courts have consistently reasoned that, " if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Id., 622. To follow the analysis presented by the Dunn court would directly contradict the doctrine of exhaustion, because once a plaintiff selects the WCC, an administrative agency, under the exhaustion doctrine, the plaintiff must follow the claim to its end in that forum. Therefore, a plaintiff may choose either remedy but if he selects an administrative remedy, he must follow it to exhaustion and that choice becomes irrevocable. It follows that if the same plaintiff chose in the alternative to pursue his claim in state court under § 31-290a, it would be equally irrevocable.
In the present case, the defendant argues that the plaintiff had first initiated her claim with the WCC and was, therefore, precluded from seeking redress in the state court. To support its legal argument, the defendant presented the following evidence: A letter dated March 4, 2015, from the plaintiff's attorney on behalf of the plaintiff to the WCC stating an intention to pursue a claim under § 31-290a for retaliatory discharge by the defendant. The letter also stated that the WCC chairman should follow the usual procedure in processing the complaint. This letter indicates an intention to file a complaint and to be heard on the matter by the WCC. Further, the defendant also presented a letter dated March 11, 2015 from the chairman of the WCC assigned the plaintiff's complaint to the second district. No objection was presented to this assignment by the plaintiff. Additionally, the defendant submitted a WCC hearing request form from the plaintiff claiming a violation of § 31-290a, showing an intent to present his claim to the WCC. These three in communications, taken together, establish that a complaint was initiated with the WCC.
The plaintiff argues that merely sending the letter and a hearing request form did not constitute institution of a claim and that, rather, it preserved the plaintiff's right to pursue a WCC claim if she decided to do so at a later date. However, the plain language of § 31-290a(b) lays out the procedure that the plaintiff and the WCC must follow when complaints are filed under § 31-290a(a). This procedure includes the complaint being filed with the chairman of the WCC, the chairman assigning the complaint to a commissioner, and that commissioner being located in the district in which the defendant has its principal office. The letter dated March 4, 2015, expressly states that the chairman of the WCC should " process the claimant's complaint in the usual fashion." This, in conjunction with a hearing request submitted to the WCC on behalf of the plaintiff, and the letter dated March 11, 2015, from the chairman assigning the plaintiff's complaint to the second district, indicate the plaintiff had in fact filed a complaint with the WCC, that the plaintiff intended it to be treated as a complaint and that the WCC treated as such. Because the plaintiff failed to rebut the defendant's evidence that she had begun her claim with the WCC, under § 31-290a, in conjunction with applicable case law, the plaintiff was precluded from bringing the same claim in state court.
CONCLUSION
Therefore, because the plaintiff chose the WCC as its forum and because this choice creates a jurisdictional bar, the court lacks jurisdiction to address the complaint. The plaintiff's election is binding and irrevocable. Accordingly, the motion to dismiss is granted.