Opinion
No. CV07-4027051S
March 4, 2008
MEMORANDUM OF DECISION
The defendant, Ronald Hobson, moves to dismiss the claims against him in this action, arguing that this court lacks subject matter jurisdiction. For reasons more fully set forth in this Memorandum of Decision, this court grants the motion.
In a five-count amended complaint, dated August 23, 2007, the plaintiffs, who were employed by the City of New Haven, Department of Police Services, the City of New Haven, Department of Health, and the City of New Haven Board of Education, allege that defendant Hobson, who was at all relevant times, President of Local 884, of Council 4, AFSCME, AFL-CIO, failed to act responsibly on their behalf.
Specifically, in Count One, the plaintiffs allege that the defendant refused to file grievances requested by the plaintiffs; refused to pursue work-related issues related to the plaintiffs' workloads and job reclassification; forced plaintiffs to submit written justifications for their requests for reclassification; openly humiliated and degraded plaintiffs; addressed plaintiffs with profanity; exhibited preferential treatment towards others; and evidenced a pattern of hostility and discrimination.
Plaintiffs Serena Huckaby, Marie Christina Diaz, Magalys Mayzonet, Kassi Young, Denise Spallone, Susan C. Frumento, Jean Claude Dore, Michele Clark, Shirley Conyers, Mildred Belton, Elaine Lesane, Maire Mancini, Barbara Nelson and Susan Lawry all assert allegations of misconduct against defendants Local 884 and Ronald Hobson in Count One of the Amended Complaint dated August 23, 2007. The plaintiffs in Count one allege that they were all employed by the City of New Haven, Department of Police Services as Data Entry Clerks.
In Count Two, plaintiff Lance James, who was employed by the New Haven Board of Education as a School Security Guard, alleges that the defendant refused to respond to or address the plaintiff's suspension; refused to file a grievance arising out of the plaintiff's suspension; threatened the plaintiff and evidenced a pattern of hostility and discrimination.
In Count Three, plaintiff Ralph Warner, who was employed by the New Haven Board of Education as a School Security Guard, alleges that the defendant assisted the plaintiff's employer in building a case against him; placed an anonymous telephone call accusing the plaintiff of threatening a co-worker; refused to file a grievance in a timely fashion; and evidenced a pattern of hostility and discrimination.
In Count Four, plaintiff Dolores Robinson, who was employed by the City of New Haven, Department of Police Services, as an Account Clerk IV, alleges that the defendant accused the plaintiff (an African American woman) of being racist; clashed with the plaintiff over her relationships with Caucasian union members; called the plaintiff a derogatory name (b*tch) and evidenced hostility towards her; arbitrarily removed plaintiff's name from a list of employees who were awarded pay raises; resolved a grievance of the plaintiff without her knowledge or consent; and evidenced a pattern of hostility and discrimination.
Plaintiff Delores Robinson is no relation to the under-signed.
And, in Count Five, plaintiff Roberta Taft, who was employed by the City of New Haven, Department of Health, as a Clerk Typist, alleges that the defendant misrepresented to the plaintiff that city was not reclassifying employees; refused to advance plaintiff's efforts regarding reclassification; entered into a Stipulation without plaintiff's knowledge or consent; mocked, ridiculed and stared plaintiff down.
Notwithstanding the various factual claims in the above-referenced counts, each of the five counts alleges that the defendant Hobson breached his duty of fair representation. As such, this court treats each of the five counts as a claim for a breach of a duty of fair representation, even though certain of the facts alleged could also support other civil causes of action(s).
In paragraph 4 of each of the counts, the plaintiffs allege that: "the defendant Union, acting by and through the defendant Ronald Hobson, has breached its duty of fair representation by failing to serve the interests of the plaintiffs without hostility or discrimination toward them . . ."
The defendant Hobson argues that the first, second, third, fourth and fifth counts should be dismissed because the various plaintiffs have failed to exhaust their administrative remedies. Having failed to exhaust their administrative remedies, the defendant contends that this court lacks subject matter jurisdiction. The plaintiffs, in opposition to the motion, argue variously that either administrative remedies were not available or that pursuing administrative remedies would have been futile. To prove their claims, they append various affidavits and letters. Neither party appended the operative Collective Bargaining Agreement, although there is no dispute that one was in effect at all pertinent times.
"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); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The standard governing a trial court's review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, 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.) Davis v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007475 (January 26, 2007, Tobin, J.) [42 Conn. L. Rptr. 691].
In order to decide whether this court has subject matter jurisdiction over the plaintiffs' claims, this court must determine first, whether the individual plaintiffs were required to exhaust their administrative remedies; second, whether they did exhaust their administrative remedies; and third, if they did not exhaust their administrative remedies, whether any exceptions to the exhaustion doctrine apply to their claims.
As previously noted, the plaintiffs all assert breach of the duty of fair representation claims against defendant Hobson. "[A] breach of duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminating or in bad faith." (Citations omitted.) Brantley v. New Haven Firefighters, Local 825 et al., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 044004588 (July 25, 2005, Corradino, J.) [39 Conn. L. Rptr. 701]. The Municipal Employee Relations Act (MERA), General Statutes, Section 7-467 et seq., codifies the duty of fair representation. The defendant, as union president, is subject to the mandates of MERA.
General Statutes section 7-471(5) provides that: "Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer or employee organization, the board shall consider that question . . . (D) for the purposes of hearings and enforcement orders under sections 7-467 to 7-477, inclusive, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the municipal employer and the employee organization shall have the right of appeal as provided therein."
"The legislative history of General Statutes § 7-468(d) (the duty of fair representation) shows the legislature's two related purposes in enacting it were as follows: first, to codify the existing duty of fair representation, as it had been recognized and defined in Connecticut case law up to 1993; and second, to make any breach of that duty a prohibited act or practice under subsection (3) of General Statutes § 7-470(b), which was added to that statute as part of Public Act 93-426, and thus require any employee claiming breach of that duty to file his claim initially as a complaint with the State Board of Labor Relations (SBLR) rather than an action in Superior Court . . .
"The new legislation was specifically intended to require all persons bringing claims for breach of fair representation to file their claims initially with the SBLR. The stated reason for imposing this requirement was to save time and money in resolving such claims, for both individual claimants and the courts . . . It can hardly be imagined that, in adopting this new procedural requirement, the legislature intended to except some unmentioned class or group of claims or claimants from its reach. Therefore, if the statute can fairly be understood to direct that all claims of breach of duty of fair representation be filed in the first instance with the SBLR, it must also be understood to apply the substantive requirements of the statute to all such claims." Long Ridge Paid Drivers Ass'n. v. Romaniello, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0163992 (August 6, 2002, Sheldon, J.) [32 Conn. L. Rptr. 675].
"`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.' (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998)." Kindschi v. Meriden, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 064022391 (October 10, 2007, Lopez, J.). See also, Stepney, LLC v. Fairfield, 263 Conn. 558, 564-65, 821 A.2d 725 (2003); and Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 11-12, 756 A.2d 262 (2000).
Generally, "[the Connecticut Supreme Court has] recognized . . . exceptions [to the exhaustion doctrine] only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative review would be futile or inadequate . . ." (Citations omitted; internal quotation marks omitted.) Neiman v. Yale, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004). However, although no appellate court has specifically addressed this issue, Connecticut trial courts have been reluctant to apply the narrowly defined exceptions to claims alleging breach of the duty of fair representation. See, Brantley v. New Haven Firefighters, supra, Superior Court, Docket No CV 044004588; and Busto v. AFSCME Council, 15, Loc. 1237, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 030481415 (April 15, 2004, Devlin, J.).
The legislative history of MERA supports trial courts' reluctance to apply exceptions to the statutory exhaustion requirements for breach of duty of fair representation claims. See, Long Ridge Paid Drivers Ass'n. v. Romaniello, supra, Superior Court, Docket No. X02 CV 97 0163992. In the Long Ridge decision, the trial court quotes Representative Lawlor's explanation of the purpose of the act that, "Senate Amendment `B' adjusts the duty of fair representation law imposing on all public employee unions a duty of fair representation. Also, [it] requires that any complaints . . . under a duty of fair representation complaint by an individual state employee or municipal employee be brought directly to the [state labor board] instead of to the Superior Court." 36 H.R. Proc. pp. 12898-99. Also "According to Representative Lawlor, the Labor Committee had approved the new legislation in response to a . . . Superior Court decision — Spadola v. Amity Regional Board of Education, Superior Court, judicial district of New Haven, Docket No. 0610642 (October 16, 1992, Levin, J.) [7 Conn. L. Rptr. 473] . . . which had permitted an employee to bring a lawsuit for breach of the duty of fair representation without first bringing his claim before the [state labor board]. The Committee believed that an administrative hearing before the [state labor board], with a later right of appeal to [the] [Superior Court], if necessary, was a less costly and more efficient way to resolve claims for breach of the duty of fair representation than a lawsuit." Id. The trial court in Long Ridge concluded "that the legislative history demonstrates an intent to require all persons bringing claims for breach of duty of fair representation to file with the state labor board. Neither the legislative history nor text of the statute provides for exceptions." Id.
I.
The facts before this court establish that plaintiffs in the First Count filed a Municipal Prohibited Practice Complaint (MPP) with the Connecticut State Board of Labor Relations (SBLR) against the defendant Hobson on April 21, 2006, alleging that Hobson violated his duty of fair representation in violation of section 7-467 of MERA. The MPP resulted in a Settlement Agreement between the parties, which obligated Hobson to "bring to the attention of the Director of Labor Relations the salary inequity that exists for Police Record Clerks." Pursuant to the Agreement, the complaint was withdrawn.
The plaintiffs claim that Hobson did not abide by the terms of the Agreement; and that when plaintiff Huckaby called Ron Napoli (Napoli), Investigator assigned to the MPP at the Department of Labor, in an attempt to enforce the Agreement, Napoli left a voicemail for plaintiff Huckaby stating he would contact Kip Lockheart (Lockheart) at Council 4. The plaintiffs claim that Lockheart never spoke with any plaintiff. And, they argue that the actions of both Napoli and Lockheart rendered the administrative process useless or futile.
Specifically, the plaintiff Huckaby argues that "Ms. Huckaby and the other plaintiffs perceived that based upon the amount of time that it took for Mr. Napoli to return her call, and the familial relationship he exhibited with Kip Lockheart prior to the MPP Hearing, it would be useless or futile to return to the Department of Labor for relief."
Because the complaint filed by the plaintiffs was withdrawn and thus, the State Board of Labor Relations never issued a final order, defendant Hobson contends that this court does not have subject matter jurisdiction. In response, the plaintiffs argue, as stated earlier, that exhausting the administrative process is not a prerequisite to a court's subject matter jurisdiction when the process would be useless or futile.
Given the requirements of MERA, it is clear that the plaintiffs were required to file a complaint with the SLBR. See, Busto v. AFSCME Council et al., supra, Superior Court, Docket No. CV 03-0481415; and Boynton v. Town of Bethel, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98-348808, (July 15, 1998, Mottolese, J.).
The plaintiffs attest that they took many affirmative actions and steps in an attempt to remedy the alleged wrongs committed by the defendant. For purposes of resolving this motion, this court deems those claims to be true. It is clear that the plaintiffs did file a complaint with the SLBR, which they subsequently withdrew as a result of the settlement agreement between the parties. It is equally clear that, in an attempt to enforce the agreement which the defendant allegedly failed to abide by, the plaintiffs contacted an Investigator at the Department of Labor, as well as the representative at Council 4. The plaintiffs also attempted to file a complaint with the National Labor Board and the Commission on Human Rights and Opportunities, both of which were dismissed. Although the plaintiffs took various affirmative steps to enforce the agreement, the SLBR maintained jurisdiction over the initial alleged breach of a duty of fair representation; and the subsequent alleged violation of the settlement agreement. Thus, the plaintiffs were required to file a prohibited practice complaint with the SLBR alleging that the defendant violated § 7-470(a)(6) (refusing to comply with grievance settlement) prior to initiating this action. Therefore, the plaintiffs have not met their burden of proving subject matter jurisdiction over the claims in Count I.
II.
Lance James (James), the named plaintiff in Count II, alleges that the defendant Hobson refused to file a grievance arising out of the plaintiff's suspension and threatened the plaintiff before he refused to file the grievance. In his affidavit, the plaintiff attests that grievances could only be filed through the defendant Hobson.
The plaintiff states: "That the protocol under the defendant Hobson for filing Grievances and MPP's was that they could only be filed through him to the exclusion of the Union Stewards and the Chairman of the Grievance Committee; That defendant Hobson never returned any of my calls about getting the Union's assistance to invoke such an administrative process on my behalf against him; [and] That I did not therefore have the ability to invoke the administrative process contemplated by the defendant Hobson." Paragraphs 5, 6 and 7 of Affidavit of Lance James, dated November 14, 2007 and attached to his Opposition to the defendant's Motion to Dismiss.
The defendant does not dispute the plaintiff's claims regarding the grievance procedure or regarding the filing of MPPs. Nor did he present any evidence at the oral argument that would contradict the factual assertion of James. Rather, he argues that James' failure to exhaust his administrative remedies results in a lack of subject matter jurisdiction.
Defendant Hobson states that: "neither I nor, upon information and belief, the State Board of Labor Relations are aware of any complaint filed by or on behalf of Lance James . . ." Paragraph 7 of Affidavit of the Defendant Ronald Hobson, dated October 1, 2007, attached to Motion to Dismiss.
Given that this court takes the plaintiff's factual assertions as true, in the absence of contradictory evidence, the court must consider whether these facts, alone, justify the failure of the plaintiff to file a complaint with the SLBR for a failure to provide fair representation. Though sympathetic to his situation, the court concludes that they do not. The law requires the plaintiff to then file with the SLBR a complaint against the defendant (as the plaintiffs in Count One and Count Three did) for a breach of a duty of fair representation. The plaintiff failed to do this.
Generally, affidavits are not sufficient to establish facts. However, when there is no challenge or dispute raised to facts attested to in an affidavit, then the court is free to conclude that the attestations are true. See, Adolphson v. Weinstein, 66 Conn.App. 591, 594 n. 3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002) ("Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issues to a material fact exists"). Therefore, in the absence of an indication that a material issue of fact exists as to the ability of a union member to file a grievance, this court is entitled to rely upon the representations made by the plaintiff in the affidavit.
Therefore, this court concludes that it does not have subject matter jurisdiction over the claims alleged in the second count because the plaintiff failed to exhaust his administrative remedies.
III.
Ralph Warner, the named plaintiff in Count III, filed a MPP complaint with the SLBR against the defendant Hobson on September 6, 2006. The complaint was withdrawn without prejudice on January 7, 2007 because the plaintiff Warner was allegedly advised by Napoli, the Department of Labor Investigator, that the complaint was an "internal dispute" between the plaintiff and the Union. Warner alleges that he contacted Council 4, a representative of which told him that his claim involved an "internal dispute." Notwithstanding the responses of both Napoli and Council 4, Warner claims that he then contacted the National representatives, but received no response to his inquiry. The defendant Hobson moves to dismiss on the grounds that the plaintiff failed to exhaust his administrative remedies.
Although the plaintiff took steps to avail himself of an administrative process, he did not exhaust his administrative remedies and he has failed to establish that the administrative remedies are inadequate or futile. Had the plaintiff's complaint been withdrawn, with prejudice, then this court could have concluded that Warner had exhausted his administrative remedies. Because the complaint was withdrawn without prejudice the plaintiff is/was obligated to file another complaint to pursue his claim through the available administrative procedures before resorting to legal action in civil court.
Notwithstanding the memorialized opinion of the executive director of Council 4 that the matter between the plaintiff and the defendant was a matter involving "an internal dispute," the plaintiff has not established that he was precluded from filing another complaint with the SLBR or that filing such complaint would be futile. "[The Connecticut Supreme Court has] held that utilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant." Neiman v. Yale, supra, 270 Conn. at 258-59. So, even considering the opinion expressed by the Local 884 Executive Director in the light most favorable to the plaintiff's position, this court cannot conclude, as a matter of law, that the plaintiff exhausted his administrative remedies or that he was excused from doing so. Accordingly, the plaintiff has failed to meet his burden in proving subject matter jurisdiction.
In a letter to Velsha Cloud, Secretary of AFSCME Local 884, dated April 25, 2007, Sal Luciano, Executive Director of Council 4, AFSCME, AFL-CIO, wrote that "[w]ith the agreement of both the President [Ronald Hobson] and the Vice-President [Ralph Warner], I attempted to mediate what appears to be an internal dispute."
As previously noted, because both parties treat Count Three as a claim for breach of duty of fair representation, this court does not address the issue of whether or not it would have subject matter jurisdiction over other claims, which could be pled based upon the factual allegations in Count Three.
IV.
Delores Robinson (Robinson), the named plaintiff in the fourth count, is employed by the City of New Haven, Department of Police Service, as an Account Clerk IV. She claims that "pursuant to a Memorandum of Understanding by and between [her] Union and the City of New Haven, Reclassifications are not grievable, thereby rendering that administrative process unavailable." Affidavit of Delores Robinson, dated November 14, 2007, paragraph 5. Therefore, she argues, implicitly, that she should be excused from the administrative exhaustion requirement. She also claims that the defendant failed to assist her with her non-reclassification employment issues and failed to file a grievance on her behalf. After the defendant refused to assist her, plaintiff Robinson claims that she turned to Council 4 for assistance and was told that grievances could only be filed through defendant Hobson.
The defendant argues that because the plaintiff did not exhaust her administrative remedies this court lacks subject matter jurisdiction. But, the defendant does not dispute that reclassifications are not grievable. Nor does the defendant dispute that all grievances must go though defendant Hobson.
Once again, however, the plaintiff has failed to provide an acceptable explanation as to why she did not file a complaint with the SLBR claiming that the defendant breached his duty of fair representation. Without an adequate representation that a complaint was filed with the SLBR or that one would have been futile, this court is without subject matter jurisdiction. Accordingly, this court concludes that it does not have subject matter jurisdiction over the claims alleged in the Fourth Count.
Because both parties treat Count Four as a claim for breach of duty of fair representation, this court does not address the issue of whether or not it would have subject matter jurisdiction over other claims which could be pled based upon the factual allegations in the complaint.
V.
Roberta Taft (Taft), the named plaintiff in the Fifth Count, alleges that the Union intentionally misrepresented that the City of New Haven was not reclassifying any of its employees and altogether refused to advance the plaintiff's efforts to be reclassified. The plaintiff further alleges that the defendant Hobson entered into a Stipulation without the plaintiff's knowledge or consent that resulted in a "paltry" $1,000 raise.
As noted earlier in this decision, Delores Robinson attested that pursuant to a Memorandum of Understanding, reclassifications are not grievable. Defendant Hobson does not and did not dispute this claim. Rather, the defendant asks the court to dismiss this count because the plaintiff failed to exhaust her administrative remedies.
Robinson's statement regarding the ability to grieve reclassification does not provide an adequate explanation as to why Taft did not file a complaint with the SLBR, claiming that the defendant had failed to adequately represent her; or why such a complaint would have been futile. For this reason, this court concludes that it is without subject matter jurisdiction over the Fifth Count.
In conclusion, this court finds that all of the plaintiffs have failed to establish that they exhausted their administrative remedies or that they were excused from doing so. Accordingly, defendant Hobson's motion to dismiss is granted.