Opinion
No. CV 08 4040537 S
February 11, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#172)
The principal issue raised in this motion to dismiss is whether the State has waived its sovereign immunity from suit in General Statutes § 31-290, which prohibits an employer, including the State, from discriminating against an employee on account of the employee's filing a claim for workers' compensation benefits. Because the court concludes that the State has waived its sovereign immunity from suit, the motion to dismiss is denied.
FACTS
This action arises out of the termination of the plaintiff, Michael Gardner, from his position as a youth services officer at the Connecticut Juvenile Training School (CJTS). On October 15, 2008, the plaintiff filed a complaint against the defendant, the State of Connecticut, pursuant to General Statutes § 31-290a, which prohibits an employer from discharging or discriminating against any employee because the employee has filed a claim for workers' compensation benefits. Following the court's grant of the defendant's motion to strike, the plaintiff filed a substitute complaint on July 17, 2009, alleging the same cause of action as the original complaint, while expanding the factual allegations.
In his substitute complaint, the plaintiff alleges, inter alia, the following facts. In October 1998, the plaintiff was employed by the defendant as a youth services officer at the Connecticut Juvenile Training School. In addition to his full-time employment at CJTS, the plaintiff worked occasionally as a licensed home improvement contractor. Over the course of his employment at CJTS, the plaintiff suffered several injuries that resulted in workers' compensation claims. These claims were processed by GAB Robins, Inc. ("GAB") and accepted by the State.
In 2004, the State reported to GAB that the plaintiff was engaged in home improvement activities while receiving workers' compensation benefits. As a result, GAB began an investigation and surveillance of the plaintiff. On June 19, 2007, GAB, at the instruction of the State, notified the Workers' Compensation Fraud Control Bureau of the Chief State's Attorney's Office of the plaintiff's activities. The plaintiff was then arrested for workers' compensation fraud on April 4, 2008. Following an internal investigation by the State, the plaintiff was terminated from his employment at CJTS on July 1, 2008.
On November 13, 2009, the State filed a motion to dismiss this action on the following grounds: (1) the state has waived only its immunity from liability, and not its sovereign immunity from suit; (2) the plaintiff's failure to exhaust his grievance rights deprives the court of subject matter jurisdiction; (3) the plaintiff's complaint is not yet ripe; and (4) the action should be stayed until the arbitrator has ruled in a pending grievance proceeding filed by the plaintiff.
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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2009). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
Sovereign Immunity
The State argues that the court should dismiss the plaintiff's complaint because, even though it waives the State's sovereign immunity from liability, General Statutes § 31-290a does not waive the State's sovereign immunity from suit. The plaintiff counters that § 31-290a explicitly waives the State's sovereign immunity from suit by permitting any employee to bring a civil action against his employer, including the State of Connecticut, for alleged discrimination on account of having filed a workers' compensation claim.
The State is immune from suit unless it consents to be sued. Capers v. Lee, 239 Conn. 265, 267 n. 3, 684 A.2d 696 (1996). The General Assembly through legislation may "waive the state's sovereign immunity from suit and authorize suits against the state." Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). Thus, "[t]he state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." Martinez v. Dept. of Public Safety, 263 Conn. 74, 86, 818 A.2d 758 (2003).
"Sovereign immunity is comprised of two concepts, immunity from liability and immunity from suit . . . Legislative waiver of a state's . . . immunity [from suit] merely establishes a remedy by which a claimant may enforce a valid claim against the state and subjects the state to the jurisdiction of the court. By waiving its immunity from liability, however, the state concedes responsibility for wrongs attributable to it and accepts liability in favor of a claimant . . . [A] statute that explicitly [waives] immunity from suit should be construed as implicitly waiving immunity from liability, because, otherwise, the waiver of suit would be meaningless . . . [I]t would be utterly useless and meaningless to permit a suit which could not end otherwise than in a judgment for the defendant . . . Thus . . . the waiver of immunity from suit impliedly [includes] a waiver of immunity from liability." (Citations omitted; internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 550-51, 825 A.2d 90 (2003).
In St. George, however, our Supreme Court held that "an explicit waiver of immunity from liability [does] not implicitly include a waiver of immunity from suit." Id., 551. When the State has waived its immunity from liability alone, a plaintiff's "claim [may] be satisfied only by the filing of a claim with the claims commissioner, and not by filing suit." Id.
Consequently, the issue presented here is whether, as a matter of statutory construction, the legislature has waived its sovereign immunity from suit by enacting General Statutes § 31-290a. When construing a statute, the court must first look to its text, as directed by General Statutes § 1-2z, which 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 construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." (Internal quotation marks omitted.) Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998).
Section 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter. (b) Any employee who is so discharged or discriminated against may . . . [b]ring a civil action in the superior court for the judicial district where the employer has its principal office . . ." Thus, this section explicitly and unambiguously authorizes an employee to bring a suit in superior court against his or her employer.
Within Chapter 568, the Workers' Compensation Act, the legislature specifically defined an "employer" to include the State of Connecticut. Specifically, General Statutes § 31-275(10) defines "employer" to mean "any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, [and] the state . . ." (Emphasis added.)
The State's assertion that it has not explicitly waived its sovereign immunity from suit in § 31-290a borders on the frivolous because it asks the court to ignore the fact that the legislature has plainly and unambiguously included the State within the definition of an employer in § 31-275(10), and § 31-290a explicitly authorizes an employee to bring a suit in superior court against his or her employer. Although the court recognizes that a statute in derogation of sovereign immunity must be strictly construed, the State's argument here invites this court to read § 31-290a in total isolation from another provision within the same chapter that is specifically intended to define terms used throughout the rest of the chapter. The court inclines to do so.
This court's interpretation of § 31-290a is not a novel one. Colon v. State, Superior Court, judicial district of Hartford, Docket No. CV 06 5002208 (August 8, 2006, Tanzer. J.) ("Reading both sections together, . . . it is clear that the legislature intended that the state not be immune from a § 31-290a claim."); Carson v. Ragaglia, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 076213 (June 27, 2002, Moran, J).
The State's reliance upon St. George v. Gordon, supra, 264 Conn. 538; is misplaced. In St. George, our Supreme Court held that General Statutes § 5-141d waived the State's immunity from liability, but not its liability from suit. Section 5-141d(a) provides in relevant part: "The state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
Importantly, the court in St. George noted that § 5-141d did not include any language authoring a suit against any individual or entity, including the State: "[U]nlike many other statutes, § 5-141d makes no reference to allowing a suit against the state. A review of analogous statutes demonstrates that when the legislature has intended to waive immunity from suit in other contexts, it clearly has expressed such an intent through explicit language in the text of the statute." St. George v. Gordon, supra, 264 Conn. 552. As discussed above, and unlike St. George, § 31-290a clearly authorizes a suit against in the Superior Court against an employer, which, under § 31-275, explicitly includes the State. Accordingly, St. George v. Gordon is distinguishable from the present case. Accordingly, the State's sovereign immunity claim is without merit.
Failure to Exhaust
Because sovereign immunity does not bar the present action, it is necessary to examine the State's contention that the complaint should be dismissed because the plaintiff has failed to exhaust his grievance rights under a collective bargaining agreement. Specifically, the State argues that an employee's failure to exhaust his grievance rights under a collective bargaining agreement deprives the court of subject matter jurisdiction. The plaintiff responds that General Statutes § 31-55bb allows an employee covered by a collective bargaining agreement to assert a statutory cause of action, without the need to exhaust available grievance procedures.
The plaintiff's complaint is silent regarding the existence of any available grievance procedures or whether the plaintiff in fact has exercised any grievance or arbitration rights. The State asserts in its brief that the plaintiff has grieved his dismissal and that an arbitration hearing has in fact been conducted. This contention, however, is not supported by any affidavit or competent evidence. Despite the State's failure to support its motion to dismiss with competent evidence, the court will assume for argument sake that the plaintiff does have certain grievance rights under a collective bargaining agreement and that he has in fact exercised some of those rights.
The State's arguments that the plaintiff's complaint is not ripe and that the State is entitled to a stay of this action until the arbitrator has ruled are subject to the same analysis as its failure to exhaust claim. Accordingly, it is not necessary to specifically address them in light of the court's conclusion that the plaintiff is permitted to proceed with this action even though he has not fully exhausted the applicable grievance procedures.
"[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 be 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." Santana v. Hartford, 94 Conn.App. 445, 461-62, 894 A.2d 307 (2006), aff'd, 282 Conn. 19, 918 A.2d 267 (2007).
Our legislature, however, has created a significant exception to the general rule that an employee must fully exhaust his or her remedies through the grievance procedures before resorting to suit. Section 31-51bb 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 Connecticut Supreme Court has interpreted this statutory provision to permit an employee to bring an action in superior court regardless of whether the employee has access to, or even is in the process of utilizing, grievance procedures under a collective bargaining agreement if the cause of action available to the employee directly arises out of a state statute. Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 493, 628 A.2d 946 (1993). As the court in Genovese stated: "[T]he language of § 31-51bb . . . supports the conclusion that the legislature intended to permit an employee, despite his prior voluntary submission of a related claim to final arbitration under a collective bargaining agreement, to pursue a statutory cause of action in the Superior Court."
Indeed, Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 487-88, specifically arose under the very statute the plaintiff asserts in this case, § 31-290a. The Supreme Court's holding in Genovese is clear: § 31-55bb was intended to permit employees to go directly to court even though such employees have pursued (or could pursue) a grievance under the collective bargaining agreement: "[Section] 31-290a, upon which the plaintiff's action is based, is a remedial statute that was intended to guarantee the rights afforded to injured employees under our workers' compensation laws. Section 31-290a provides broad remedies to an employee improperly discharged for filing for workers' compensation benefits, including reinstatement, back wages, compensatory damages, attorneys fees, costs and punitive damages. The creation of the substantive right to bring an action for unjust dismissal, and the inclusion of these broad remedies, indicate that the legislature intended that employees should be able to enforce judicially their right to workers' compensation benefits by subjecting employers to the significant liability that can be imposed only in an action brought pursuant to § 31-290a . . . The creation of the substantive rights and remedies in § 31-290a, therefore, reflects a legislative preference for a full judicial determination of an employee's § 31-290 claim." Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 487-88 (emphasis added).
The plaintiff in this case brought the present action pursuant to § 31-290a. Accordingly, pursuant to § 31-55bb, the fact that the plaintiff has not fully exhausted his grievance rights under the collective bargaining agreement or that he may still have a grievance pending does not bar this action. The State's motion to dismiss, therefore, is denied.