Opinion
CV156058004S
03-28-2017
David Gorski, II v. Town of Cromwell et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sybil V. Richards, J.
This is a wrongful termination action filed by the plaintiff, David Gorski, a former police officer, against the defendant town of Cromwell, and Denise Lamontagne, formerly a police captain with the town (collectively referred to in the singular as the " defendant"). The plaintiff filed a four-count amended complaint alleging breach of contract (count one), breach of the covenant of good faith and fair dealing (count two), defamation against Lamontagne (count three) and tortious interference with contractual relations (count four) against the defendant. The defendant moves to dismiss counts one and two of the complaint and, alternatively, for summary judgment on all four counts. In its motion, the town argues, inter alia, that the court is without subject matter jurisdiction over the instant action because the plaintiff did not exhaust the administrative remedies provided for in the collective bargaining agreement (" CBA") between the town and the police union prior to commencing the instant action. In his objection, the plaintiff argues that, inter alia, the court is not deprived of subject matter jurisdiction because the defendant constructively discharged him in contravention of the progressive discipline protections encompassed in the CBA. On December 12, 2016, the court heard oral argument from the parties.
In its answer and special defenses dated January 21, 2016, the town admitted that Lamontagne is currently the town's police chief.
I. Factural History
The following underlying facts are not disputed by the parties. The plaintiff was employed as a police officer by the town of Cromwell from June 26, 2012 to July 21, 2014 and was a member of the International Brotherhood of Police Officers (IBPO) Local 357 bargaining unit. There is a certain collective bargaining agreement between the IBPO and the town (" CBA"). One of the controlling provisions is found in article 4, section 5 of the CBA, which provides that " [n]o employee shall obtain seniority rights under this [a]greement until he/she has been continuously employed by the [t]own as . . . a full time member of the [d]epartment for a period of one (1) year and he/she has completed the minimum basic training pursuant to Section 7-294e of the Connecticut General Statutes (C.G.S.). During such period, the employee shall be on probation. The discipline or discharge of any employee during such probationary period shall not be subject to the grievance procedure. Upon completion of an employee's probation period, his/her seniority shall be retroactive to the date of his/her original employment with the [t]own." Another controlling provision in the CBA further provides, in part, in article 13, section 1, that " no permanent officer shall be suspended, discharged or penalized except for just cause."
On June 12, 2013, while performing his duties as a police officer for the town, the plaintiff used deadly force against another human being. On or about June 22, 2014, the wife of a police officer employed by the town made a verbal complaint to Lamontagne that, when she was riding in a police vehicle with the plaintiff, the plaintiff was texting on his mobile phone while driving. During the internal affairs division's investigation, the plaintiff denied that she asked him to stop texting while he was driving and said that could not recall texting while driving. The investigating officer concluded that " he could not prove or disprove whether or not Officer Gorski was texting while operating a motor vehicle." Nevertheless, the investigating officer reached the conclusion that the plaintiff had been texting while driving in violation of state law, and charged the plaintiff with conduct unbecoming and violation of rules. Then, on July 1, 2014, an individual sent a letter to the police chief regarding a motor vehicle stop involving the plaintiff and himself. On August 26, 2013, the town's police chief issued the plaintiff a written reprimand and extended the plaintiff's probationary period for an additional six months until October 1, 2014 as a result of several, disputed employment-related incidents relating to the plaintiff and the general public as well as certain members of the town's police force. On July 11, 2014, the plaintiff was notified that there would be a pre-disciplinary hearing regarding such investigation that was scheduled for July 17, 2014. Shortly after the hearing concluded, the plaintiff resigned from his employment on July 21, 2014.
II. Defendant's Motion to Dismiss
The first argument that the defendant advances in the subject motion is that the court lacks subject matter jurisdiction over the breach of contract count (one) in the operative complaint because the plaintiff failed to exhaust the grievance process remedies outlined in the CBA before instituting the present litigation.
The court begins by setting forth the general rule of law in relation to a motion to dismiss. " Any defendant, wishing to contest the court's jurisdiction . . . shall do so by filing a motion to dismiss . . ." Practice Book § 10-30(b).
Practice Book § 10-30 further provides, in relevant part, that " [a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." It should be noted that, in this case, there is no dispute among the parties regarding the timeliness of the defendant's 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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).
" A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
A. Exhaustion of Administrative Remedies
i. Breach of Contract
" The rules governing contract formation are well settled. To form a valid and binding contract . . . there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). " To be enforceable, an agreement must be definite and certain as to its [essential] terms and requirements." (Internal quotation marks omitted.) Presidential Capital Corp. v. Reale, 231 Conn. 500, 506-07, 652 A.2d 489 (1994).
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other, and damages." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 15-16, 971 A.2d 90 (2009). " It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 225-26, 975 A.2d 1266 (2009).
" It 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 plaintiff's union." Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction. Id., at 22-23, 574 A.2d 194; see also Neiman v. Yale University, 270 Conn. 244, 253, 851 A.2d 1165 (2004). " 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 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." (Internal quotation marks omitted.) Labbe v. Pension Commission of the City of Hartford, 229 Conn. 801, 811-12, 643 A.2d 1268 (1994)."
With the above rules of law in mind, the court considers the facts alleged in the amended complaint most favorable to the pleader in its disposition of the instant motion and will address, at the onset, the defendant's argument that the plaintiff failed to follow the CBA's progressive discipline process. In reviewing the pleadings, briefs and exhibits presented in connection with the instant motion, the court makes further factual findings. There was a contract in place during the term of the plaintiff's employment with the town: the CBA. The progressive discipline process is provided in the CBA as follows:
Step 1. Any employee or the Union with a grievance shall within fifteen (15) calendar days of occurrence of same reduce the grievance to writing and submit it to the Chief of Police or his/her designee, who shall use his/her best efforts to settle this dispute. The Chief's or his/her designee's decision shall be submitted in writing to the aggrieved employee and the Union within ten (10) calendar days or receipt of the grievance.
Step 2. If the complainant and/or the Union are not satisfied with the decision rendered by the Chief or his/her designee, said complainant or the Union shall submit the grievance, in writing, to the Board of Police Commissioners no later than ten (10) calendar days following the Chief's decision at Step 1. The Commission shall meet thereon at its next regularly scheduled meeting after receipt of the Step 2 grievance or at a Special Meeting (in either case which shall not be longer than thirty-five (35) calendar days after the Police Commission's receipt of the Step 2 grievance) and within ten (10) calendar days after hearing the grievance shall submit its decision in writing to the complainant and the Union.
Step 3. If the Union is not satisfied with the decision rendered and elects further processing, it shall submit the grievance to the Connecticut State Board of Mediation and Arbitration, and the decision rendered by the arbitrator or arbitrators shall be final and binding upon both parties and it must be implemented within fifteen (15) working days except that the decision shall not amend or alter this Agreement in any manner. Neither party waives its right to legal appeal under the Connecticut General Statutes.
Nothing in the record has been presented by any of the parties that would indicate that the plaintiff challenged any disciplinary action imposed by the defendant by submitting a written grievance in accordance with step one of the CBA's progressive discipline process. In fact, the evidence reflects that the plaintiff acknowledges that he did not reduce any grievance he might have had to a written form. However, the plaintiff seeks to justify this apparent failure to comply with the steps set forth in the CBA by claiming that, when he tried to do so, police union representatives informed him that he was not eligible to grieve any discipline because he was a probationary employee and that any attempt to grieve any discipline would have been futile because of the defendant's retaliatory tactics. Thus, the court will now explore the question of whether the plaintiff's failure to exhaust the CBA's administrative remedies regarding progressive discipline deprives the court of subject matter jurisdiction as argued by the defendant.
" Notwithstanding the important public policy considerations underlying the exhaustion requirement, our Supreme Court has " grudgingly carved several exceptions" from the exhaustion doctrine; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 94, 448 A.2d 210 (1982); although " only infrequently and only for narrowly defined purposes." LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986); see also Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993). One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile. O& G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995); Labbe v. Pension Commission, supra, 229 Conn. at 814, 643 A.2d 1268.
" Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " 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." (Internal quotation marks omitted.) Id. " [T]he [exhaustion doctrine] is applied in a number of different situations . . . including when an exclusive grievance or arbitration procedure is contained in a collective bargaining agreement . . . In the collective bargaining context, [our Supreme Court has] stated that, [t]he 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." (Citations omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339-40, 972 A.2d 706 (2009). " It is well established that [u]nions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship." (Internal quotation marks omitted.) Id., at 340. If " the plaintiff was entitled to enforce the terms of the agreement under the grievance procedure, the court . . . correctly dismissed the complaint for lack of subject matter jurisdiction for failure to pursue that remedy." Id., at 341.
" The [exhaustion] doctrine is . . . subject to numerous exceptions . . . [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 565, 821 A.2d 725 (2003). " It is futile to seek a remedy only when such action could not result in a favorable decision and invaribly would result in further judicial proceedings." (Internal quotation marks omitted.) Sobczak v. Board of Education, 88 Conn.App. 99, 107, 868 A.2d 112 (2005). " Moreover, [f]utility is more than a mere allegation that the administrative agency might not grant the relief requested. In most instances, [the Supreme Court has] held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless." (Internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 104, 726 A.2d 1154 (1999). " The mere possibility, or even likelihood, of an adverse decision does not render a remedy futile." (Internal quotation marks omitted.) Sobczak v. Board of Education, supra, 88 Conn.App. at 107. " It is not the plaintiff's preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be what a perfect remedy would be." (Citation omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 434, 673 A.2d 514 (1996).
Applying the law to the above question, the court further finds that it is undisputed that the CBA details the manner in which employment disputes were supposed to be resolved administratively with the defendant. The court also finds that the CBA was the only remedy for employment disputes among the parties. As for the reasons asserted by the plaintiff, to excuse his failure to comply with the progressive discipline process, the court is not persuaded. Nothing in the record suggests that the plaintiff was prevented from filing a written grievance within the time allotted with the police chief or the police chief's designee independent of any assistance from or participation by the police union. That option remained open despite any misunderstanding the union representatives may have had about the plaintiff's employment status. With respect to the plaintiff's next contention, that any effort on his part to file a grievance would have been futile, the court finds it equally unavailing. The record does not support his subjective perception that lodging a written grievance would have been a waste of time. Moreover, his personal impression that there was a possibility, regardless of how remote or likely, of an adverse outcome is inadequate for purposes of surviving the defendant's motion to dismiss the plaintiff's breach of contract claim in count one of the operative pleading. The defendant also contends that the court lacks subject matter jurisdiction over the plaintiff's second count alleging a breach of the covenant of good faith and fair dealing.
ii. Breach of Covenant of Good Faith and Fair Dealing
Taking this to its next logical extension, the plaintiff's breach of the covenant of good faith and fair dealing allegation in count two of his amended pleading cannot survive the defendant's move to dismiss said second count.
" The relevant legal principles are well established. " [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive under the contract must have been taken in bad faith." (Emphasis added; internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007)."
" Bad faith has been defined in our jurisprudence in various ways. " Bad faith in general implied both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004). " [B]ad faith may be overt or may consist of inaction, " and may include " evasion of the spirit of the bargain . . ." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Ass'n, Inc., 63 Conn.App. 657, 667, 778 A.2d 237 (2001), quoting 2 Restatement (Second), Contracts § 205, comment (d) (1981); see also 23 S. Williston, Contracts (4th Ed. Lord 2002) § 63:22, p. 508 (" a party who evades the spirit of the contract . . . may be liable for breach of the implied covenant of good faith and fair dealing" [internal quotation marks omitted]).
In examining the parties' respective pleadings, motions and exhibits in support thereof, it is obvious that neither the plaintiff, on his own initiative, nor the police union, on the plaintiff's behalf, filed a written grievance against the defendant in connection with any disciplinary incidents involving the plaintiff. No evidence of a written grievance has been produced by either party. Therefore, the CBA's progressive discipline process was not complied with here. Ordinarily, the applicable law provides the consequence of such failure deprives the court of subject matter jurisdiction when administrative remedies are not exhausted prior to the start of litigation relating to employment disputes. But, the plaintiff offers two explanations that the court will explore in turn. The plaintiff argues, first, that he did not pursue his administrative remedies prior to filing the present action because two union representatives told him he was not allowed to do so because of his status as a probationary employee. Given the prevailing law, however, the court is not persuaded by this argument. The CBA afforded the plaintiff with the opportunity to grieve disciplinary actions taken against him by the town. He could have, on his own accord, filed a written grievance or requested that the police union file a written grievance on his behalf. In light of the narrow exception to the general rule that applies in this case, the court finds that this excuse is inadequate because there is no indication that the plaintiff endeavored to reduce any grievance he might have had to writing at any time or even after the two union representatives allegedly provided him contradictory or inaccurate information about his employment status as a probationary versus a permanent employee and eligibility to engage the progressive discipline process. The plaintiff claims, second, that it would have been futile to do so in light of the retalitory conduct of the defendant after the plaintiff was involved in an incident that resulted in a fatality. Yet, this explanation is equally as unpersuasive, in light of the narrow exception to the exhaustion of administrative remedies doctrine, because there is no evidence presented to support this assertion aside from the plaintiff's perception of discriminatory and/or retaliatory conduct by the defendant. Certainly, the plaintiff's counterarguments are inadequate to demonstrate bad faith on the part of the defendant. That is, the record fails to demonstrate that the defendant had a sinister motive with respect to any communication the defendant had with the plaintiff regarding the exercise of his rights under the CBA.
III. Defendant's Motion for Summary Judgment
Next, the court will address the defendant's motion for summary judgment on all four counts of the operative complaint.
" Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 333, 71 A.3d 492 (2013).
Having disposed of counts one and two of the plaintiff's amended complaint, now the court will focus on counts three (defamation against Lamontagne) and four (tortious interference with contractual relations) simultaneously as both counts relate to the same allegations. Several additional factual findings are necessary for this purpose. Late in 2014, the plaintiff applied for a position with the Hamden police department and signed an authorization for the release of his pre-employment and employment records. As a part of its background investigation, two Hamden police department personnel visited the Cromwell police department and spoke to Lamontagne. According to the transcript of Lamontagne's deposition, Lamontagne was unable to recall precisely what questions were asked but conceded that she may have informed the Hamden police officers that the plaintiff was " immature" and " arrogant" in response to said questions. At his deposition, the plaintiff testified that one of the Hamden police officers in charge of the plaintiff's background check informed him that Lamontagne mentioned that the plaintiff had refused to wear his department issued hat at a private duty job. Although the defendant argues that there are no genuine issues of material fact in connection with Lamontagne's communication with members of the Hamden police department, the evidence presented suggests otherwise. Indeed, a resolution of the plaintiff's defamation and tortious interference with contractual relations claims rests on whether Lamontagne's communication with the Hamden police contained untrue and derogatory remarks about the plaintiff's job history with the town of Cromwell police department. The defendant posits that Lamontagne provided the Hamden police with truthful answers. However, the issue of whether Lamontagne's answers were defamatory or truthful is for the trier of facts to decide. Again, in examining the pleadings, briefs and exhibits submitted by both parties, the court finds that there are genuine issues of material fact that still exist and, on that basis, it cannot rely on the proof presented by the defendant to hold that it is entitled to summary judgment as a matter of law. Therefore, the court finds that the defendant has not met its burden of demonstrating that there are no genuine issues of material fact remaining relative to counts three and four.
IV. Conclusion
For the foregoing reasons, the court grants the defendant's motion to dismiss counts one and two of the plaintiff's amended complaint and denies the defendant's motion for summary judgment to dismiss all four counts.