Garcia v. Hartford

Full title: EDWIN GARCIA v. CITY OF HARTFORD ET AL

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Apr 18, 2008

2008 Conn. Super. Ct. 6003 (Conn. Super. Ct. 2008)

Opinion

No. HHD-CV-04-4005152

April 18, 2008

MOTION TO DISMISS

JAMES M. BENTIVEGNA, JUDGE.[fn2] [fn2] ARTICLE II GRIEVANCE PROCEDURE Section 2.1 Any grievance or dispute which may arise between the parties concerning the application, meaning or interpretation of this Agreement, shall be settled in the following manner: Step 1 The aggrieved employee, who may be represented by an individual delegated by the Union Executive Board, if said employee so desires, shall take up the grievance or dispute with said employee's first level supervisor who is outside the bargaining unit within seven (7) working days of the date of the grievance or his knowledge of its occurrence. The first level supervisor outside the bargaining unit shall render his decision within seven (7) days. Such supervisors shall exercise whatever authority may be delegated to them to resolve grievances, and in the event that no such authority is delegated, such supervisor shall have no jurisdiction in the grievance procedure. Police Captains have all prior authority to rule on first step grievances and provide or deny permission to Union officers and/or Stewards to investigate and/or settle grievances. Step 2 If the grievance has not been settled, it shall be presented in writing, on forms provided by the City, to the Chief of Police by the employee and/or the individual delegated by the Union Executive Board 6004 within seven (7) working days after the supervisor's response is received. The written grievance, which must be signed by the grievant, shall include: (a) A statement of the grievance and facts involved. (b) The alleged violation of the specific provision of this Agreement. (c) The remedy requested. The Chief of Police or his designated representative shall render his decision in writing within 14 working days of the date the grievance was submitted to him. Step 3 If the grievance has not been settled, it shall be presented in writing to the City Director of Personnel within 5 working days after the decision of the Chief of Police is received. If he so determines, the Director of Personnel, or his designated representative, shall meet with the interested parties no later than 10 working days after the receipt of the grievance and in any case shall render his decision in writing within 15 working days of the receipt of the grievance. Step 4 If the Union is not satisfied with the decision rendered in Step 3, it shall notify the Director of Personnel within 10 working days after receipt of the decision that it intends to submit the grievance to arbitration; and shall simultaneously file notice of appeal with the State Board of Mediation and Arbitration, which shall act on such request in accordance with its rules and procedures. Said Board shall be limited to the express terms of the contract and shall not have the power to modify, amend or delete any terms or provisions of the Agreement, or render a decision contrary to law. The decision of the arbitrator shall be final and binding on the parties. The City and the Union shall each have the right to submit three grievances per fiscal year to the American Arbitration Association, single arbitrator, in lieu of the State Board of Mediation and Arbitration. The right to annual submission may not be accumulated. The cost of the American Arbitration Association and the arbitrator shall be divided equally between the parties. The decision of the arbitrator shall be final and binding on the parties. 6005 Nothing in this Article is intended to prohibit the City from processing a grievance through the grievance procedure up to and including arbitration. Such grievance shall be submitted in writing to the Union President. If not satisfactorily resolved within 14 days, such grievance shall be submitted to arbitration. The expense for the arbitrator's services and the proceedings shall be borne equally by the City and the Union. If either party desires a verbatim record of the proceedings, it may cause such a record to be made, providing it pays for the record and makes copies available without charge to the other party and to the arbitrator. Once a grievance has been submitted to arbitration, either the City or the Union may request an expedited hearing before the State Board of Mediation and Arbitration provided the provisions of this section are met and provided further that it is understood that the case will be heard by a single arbitrator. Section 2.2 Grievances involving discharge, suspension, and demotion, following disposition by the Chief of Police, shall be processed beginning at the third (3rd) step. Grievances involving documented counseling, oral and written reprimands shall be final at the third (3rd) step of the procedure, provided that after the following time limits in which no discipline has been issued for a similar offense; documented counseling six (6) months, oral reprimand one (1) year, written reprimand two (2) years; these incidents for the purpose of discipline will be disregarded in any future disciplinary action. No employee shall be suspended, discharged, demoted or disciplined except for just cause. Section 2.3 If the employee asks that he be personally represented by his own attorney at Step two or three in the grievance procedure, an individual designated by the Union Executive Board may also be present as an observer at the employee's request. If the employee is represented by the Union and desires his own attorney to be present as an observer at Step two or three, the attorney's presence as an observer will be subject to the approval of the City's representative. In accordance with Section 7-468(d) of Connecticut's Municipal 6006 Employee Relations Act, nothing herein is intended to preclude the employee from representing himself at any one of the first three steps of this procedure. Section 2.4 In order to avoid the necessity of processing at one time numerous grievances originating with the same event, the Union may file a single grievance at the appropriate step. When this occurs, all other grievances, if any, on the same event shall be held in abeyance, and the Union grievance shall be processed as a precedent. When such a grievance is resolved, the parties shall promptly review the other grievances, if any, that were held in abeyance in an effort to resolve them. This mutual review procedure shall not require more than five working days subject, however, to mutual extension of period for review if circumstances so require. If any such grievance cannot be settled on the basis of the precedent grievance, it shall be processed in accordance with the grievance procedure, and once more in accordance with the time limitations established in this Agreement. Section 2.5 Should the City and the Union differ about the applications, meaning or interpretations of Section 1.1 through 1.4 and Sections 6.1 through 6.10 of this Agreement that confer rights or benefits to the Union as an organization (and which do not confer rights or benefits to employees as members of the bargaining unit) such differences shall be reduced to writing by the Union and filed at the appropriate step and shall be subject to the foregoing grievance procedure. It is the intent of this paragraph to provide union access to the grievance procedure on contractual provisions granting rights or benefits directly to the Union as an organization. Section 2.6 Failure on the part of the City to comply with the time limitations for any grievance response set forth in Article II will be cause to allow the grievance to be filed at the next step of the grievance procedure.

I

CT Page 6007

STATEMENT OF CASE

The defendants move to dismiss the complaint for lack of subject matter jurisdiction on the grounds that the plaintiff has failed to exhaust administrative remedies provided for in Article II of the collective bargaining agreement between the defendant City of Hartford (city) and the Hartford Police Union (union).¹

In his complaint, the plaintiff alleges the following facts. The plaintiff was a sworn police officer employed by the City of Hartford, Police Department (police department) for sixteen (16) years from March 25, 1980 to June 26, 1996. As such, he was a member of the union. On July 1, 1994, the union and the city entered into a collective bargaining agreement (agreement) for the period between July 1, 1994 and June 30, 1999. The applicable agreement provided that "an employee, whose retirement becomes effective after July 1, 1994 may exchange a portion of his/her accumulated sick leave for up to four (4) years of additional pension service time for the purpose of computing the amount of his/her retirement allowance." Complaint ¶ 4. The plaintiff resigned from the police department on June 26, 1996. He became eligible for retirement benefits on March 25, 2000, the twentieth (20th) anniversary of his employment start date, and now receives retirement benefits.1 The complaint alleges that the plaintiff's requests to trade-in his accumulated sick time for increased pension benefits have been repeatedly denied. The plaintiff seeks damages and a writ of mandamus allowing the trade-in.

The defendants argue that Article II of the agreement provides for a grievance-arbitration procedure for any grievance or dispute arising between the parties concerning the application, meaning or interpretation of the agreement. Since the complaint alleges violations of the agreement, the plaintiff must first pursue the grievance process. The plaintiff admits he did not do so.

II DISCUSSION

"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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211. "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 . . ." (Citation omitted.) D'Agostino v. Housing Authority, 95 Conn.App. 834, 837, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006).

The defendants contend that the court lacks subject matter jurisdiction due to the plaintiff's failure to exhaust the grievance procedure. "Because of the importance of promoting the orderly settlement of grievances by the method chosen by the parties, [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 . . . 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 would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements." (Citations omitted; internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Ass'n., 259 Conn. 251, 282-83, 788 A.2d 60 (2002).

The exhaustion doctrine does have exceptions. "Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine . . . We have recognized such exceptions, however, 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 or inadequate." (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996). "It is futile to seek [an administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995).

In D'Agostino, the plaintiff former employee sued the defendant housing authority for damages claiming negligent misrepresentation and promissory estoppel after his position was eliminated and he was discharged. D'Agostino v. Housing Authority, 95 Conn.App. 836. The plaintiff first filed a grievance but then brought suit a few days later. Id. The defendant moved to dismiss the complaint based on the plaintiff's failure to exhaust the administrative remedies in the collective bargaining agreement. Id., 837. The trial court dismissed the case for lack of subject matter jurisdiction. Id. The Appellate Court found that the grievance procedure in the collective bargaining agreement specifically provided that "[a]ny difference or disagreement between the parties or between an employee and the [defendant] . . . involving discipline, suspension or discharge of any employee . . . shall constitute a grievance and shall be taken up in the manner hereinafter set forth." Id., 838-39. "[T]he plaintiff should have pursued his claims under the grievance provisions of the collective bargaining agreement before seeking redress in state court." Id., 839. "[T]he grievance procedure set forth in the agreement was his exclusive remedy." Id., 840. Given that "[t]he purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes," the case was properly dismissed for failure to exhaust administrative remedies. (Citation omitted.) Id., 841.

"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 . . . We must examine the complaint to determine whether [the plaintiff was] required to exhaust an administrative remedy before the Superior Court could entertain this action. Whether prior recourse to the agency will be required will depend on the injury alleged and the administrative remedy available." (Citations omitted; internal quotation marks omitted.) Maresca v. Ridgefield, 35 Conn.App. 769, 771-72, 647 A.2d 751 (1994).

In the present matter, the plaintiff claims injury based on the city's denial of his request to trade-in his accumulated sick time for increased pension benefits. Under Article II of the agreement, "[a]ny grievance or dispute which may arise between the parties concerning the application, meaning or interpretation of this Agreement, shall be settled" through the grievance procedure. As in D'Agostino, the plaintiff should have pursued his claims under the grievance provisions of the agreement before seeking redress in state court. The plaintiff is required to exhaust the grievance procedure before the Superior Court can entertain his claims.

The plaintiff seeks to invoke the exception to the exhaustion doctrine. He argues that it would have been futile for him to have pursued the issue through the grievance procedure and, therefore, he should be excused from failing to exhaust the remedies available to him under the agreement. In his complaint, however, the plaintiff alleges that "[n]otwithstanding the City Pension Commission's refusal to allow said trade-in of this it's accumulated sick time, the City Pension Commission has allowed other former employees to trade-in their accumulated sick time both under the said Hartford Police Union's Collective Bargaining Agreement and in situations where there was not yet any contractual or collective bargaining agreement requiring it do so." ¶ 13. The plaintiff fails to allege in the complaint that he did not have access to the grievance procedure under Article II of the agreement. Under these circumstances, it can hardly be argued that recourse to the grievance mechanism would necessarily have been futile or inadequate. The plaintiff's other objections to the motion to dismiss are not made with sufficient supporting affidavits. Practice Book § 10-31(b).

Accordingly, the complaint must be dismissed because the plaintiff has failed to exhaust administrative remedies provided for in the collective bargaining agreement. The court lacks subject matter jurisdiction.

III CONCLUSION AND ORDER

For the above-stated reasons, the defendants' motion to dismiss is granted.

SO ORDERED