Opinion
NNHCV166061151
08-03-2018
Chas J. MAVRELION v. NEW HAVEN BOARD OF EDUCATION
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On March 22, 2016, Chas J. Mavrelion, the plaintiff, filed a complaint against the New Haven Board of Education, the defendant. Count One of the complaint alleges the following.
The plaintiff is a tenured teacher at the Sound School Regional Vocational Aquiculture Center (school), and works in a classroom building at the school’s satellite facility in Hamden (premises). The defendant operates the school. The building is adjacent to a facility utilized by the New Haven Department of Parks and Recreation (department). The plaintiff has complained about the improper and unlawful use of hazardous chemicals by the department at the adjacent facility, which has endangered the health and safety of faculty and students in the building, to the Connecticut Department of Energy and Environmental Protection (DEEP), and Rebecca Gratz, the principal of the school.
The complaint further alleges the following. In retaliation for the plaintiff’s complaints, on February 22, 2016, Vallerie Hudson-Brown, the Labor Relations Officer for the defendant, initiated conversations about moving forward with a fitness test for the plaintiff (FFD exam) based on a witness’s account of the plaintiff having difficulty with his vision. On March 1, 2016, Hudson-Brown ordered the plaintiff to submit to a vision examination. In response, on March 7, 2016, the plaintiff submitted a written complaint to the mayor of New Haven wherein the plaintiff claimed that Hudson-Brown was retaliating against him for his complaints about the ongoing pesticide issue at the school. On March 14, 2016, Hudson-Brown told the plaintiff that if he failed to submit to an eye exam, the plaintiff’s refusal would be considered insubordination.
The complaint alleges that the actions of the defendant violate Connecticut’s Whistleblower Statute, General Statutes § 31-51m(b). As a result, the plaintiff has suffered fear, anxiety, and emotional distress.
General Statutes § 31-51m(b) provides: "No employer shall discharge, discipline or otherwise penalize any employee because (1) the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, (2) the employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action, or (3) the employee reports a suspected incident of child abuse or neglect pursuant to sections 17a-101a to 17a-101d, inclusive, or 17a-103. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false.
On July 26, 2016, the plaintiff filed his CONN-OSHA complaint with the department of labor (DOL). The CONN-OSHA complaint was stayed at the defendant’s request, and is still pending. The plaintiff has not filed a grievance pursuant to his collective bargaining agreement.
On April 4, 2018, the defendant filed a Motion to Dismiss Count One of the plaintiff’s complaint and a supporting memorandum. On April 6, 2018, the plaintiff filed an objection to the Motion to Dismiss and memorandum in opposition to the motion to dismiss. On April 9, 2018, the defendant filed a reply memorandum. Oral arguments were heard on May 21, 2018. The issue presented is whether the court should grant the defendant’s Motion to Dismiss Count One of the plaintiff’s complaint claiming violation of Connecticut’s Whistleblower Statutes, General Statutes § 31-51m, on the ground that the plaintiff failed to exhaust his administrative remedies.
On April 30, 2018, the plaintiff filed a surreply without permission from the court. On May 3, 2018, the defendant filed a reply to the plaintiff’s surreply. Both were considered by the court.
II.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (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).
"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.
The defendant argues that the court should grant its Motion to Dismiss because the plaintiff has failed to exhaust his administrative remedies by (1) failing to file a grievance in accordance with the terms of the applicable collective bargaining agreement, or (2) bringing a complaint with the Connecticut Department of Labor (DOL) pursuant to General Statutes § 31-51m(c) months after he commenced this action. The defendant further argues that the fact that the defendant obtained a stay from the DOL is not relevant to whether the court has subject matter jurisdiction, because (1) the act of obtaining the stay did not prevent the plaintiff from exhausting his administrative remedies prior to filing his complaint in the Superior Court, and (2) subject matter jurisdiction cannot be waived and the defendant, therefore, cannot be estopped from asserting its argument.
The plaintiff counters that he need not exhaust grievance procedures under the collective bargaining agreement, because the plaintiff has brought an independent claim for a statutory violation of General Statutes § 31-51m(b). Additionally, the plaintiff argues that the defendant should be estopped from arguing that the plaintiff failed to exhaust administrative remedies because the defendant requested a stay of the DOL matter, and obtained it. The plaintiff claims he was thereby prevented from exhausting administrative remedies due to the defendant’s actions.
The plaintiff also argues that the defendant concedes that the plaintiff filed a timely complaint with CONN-OSHA, which the court notes is a mischaracterization of the defendant’s argument.
A. GRIEVANCE PROCEDURES
The defendant first argues in its Motion to Dismiss that the plaintiff was required to exhaust grievance procedures under the collective bargaining agreement prior to bringing this action. General Statutes § 31-51m(c) provides in relevant part: "[a]ny employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office ..." (Emphasis added.) Thus, § 31-51m(c) "requires that an employee exhaust all available administrative remedies before a civil action can be brought. Until these remedies have in fact been exhausted, the plaintiff’s right to bring the action under the statute has not ripened and a court cannot hear the plaintiff’s case. Because the exhaustion of remedies requirement is jurisdictional, courts are quite strict in the enforcement of this requirement." (Footnotes omitted; internal quotation marks omitted.) S. Harris, 14 Connecticut Practice Series: Connecticut Employment Law (2005) § 1.7, p. 56.
"There is, however, a distinction between grievance procedures and administrative remedies and [§ ] 31-51m, in conjunction with [§ ] 31-51bb, does not require a plaintiff to exhaust his grievance procedures prior to bringing an independent statutory claim under [§ ] 31-51m." 14 S. Harris, supra, § 1.7, p. 56.
General Statutes § 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." Moreover, the legislative history of § 31-51bb specifically states: "if there was a claim made ... that the employee was being retaliated against, allegedly, because they used the provision of our whistleblower statute ... that employee would still be able to bring an independent action in state or federal court, regardless of whether or not they had exhausted the provisions of [a] collective bargaining agreement." 31 H.R. Proc., Pt. 13, 1988 Sess., p. 4565.
Our Supreme Court has held that "[b]oth the language of § 31-51bb and the legislative history indicate that the legislature intended to ... eliminate the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court." Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 481, 628 A.2d 946 (1993); see Cassotto v. Winchester Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV-93-0062801-S (November 16, 1994, Pickett, J.) (13 Conn.L.Rptr. 4, 6) (plaintiff’s claim that he was discharged for reporting wage violations in violation of § 31-51m was based on statutory violation independent of collective bargaining agreement, and plaintiff, therefore, was not required to exhaust all of his grievance procedures before pursuing claim in Superior Court).
In the present case, the plaintiff claims that the defendant was retaliated against for reporting environmental and safety violations, and is claiming a violation of § 31-51m, which is independent from the collective bargaining agreement. Accordingly, the plaintiff was not required to exhaust all of his grievance procedures before pursuing his claim for violation of § 31-51m in Superior Court. Based on the foregoing, this court rejects the defendant’s argument that its Motion to Dismiss should be granted on this ground.
B. DEPARTMENT OF LABOR: CONN-OSHA
The defendant next argues that the court should grant its Motion to Dismiss Count One because the plaintiff has failed to exhaust his administrative remedies at the DOL.
"The [DOL’s] Division of Occupational Safety and Health is referred to as CONN-OSHA. CONN-OSHA ... enforces occupational safety and health standards as they apply to all municipal and state employees ... CONN-OSHA does not enforce occupational safety and health standards in private businesses in Connecticut. In those businesses, OSHA standards are enforced by the U.S. Department of Labor, Occupational Safety and Health Administration (USDOL-OSHA)." Connecticut Department of Labor, "About CONN-OSHA," available at http://www.ctdol.state.ct.us/osha/aboutosh.htm (Last visited July 27, 2018).
Superior Courts have required that plaintiffs retaliated against by his or her private-actor employer for reporting OSHA violations exhaust administrative remedies through OSHA prior to initiating suit in Superior Court. See Trimboli v. Von Roll Isola USA, Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-4037507-S (April 15, 2010, Wilson, J.) (granting defendant’s motion to dismiss claim under § 31-51m because administrative remedy existed under OSHA statutes, and plaintiff had not exhausted those remedies); Burnham v. Gelb, P.C., Superior Court, judicial district of Hartford, Docket No. CV-94-0537069-S (March 7, 1997, Lavine, J.), aff’d., 252 Conn. 153, 745 A.2d 178 (2000).
In Campbell v. Plymouth, 74 Conn.App. 67, 81, 811 A.2d 243 (2002), our Appellate Court set forth a standard for determining whether an administrative remedy was of the type contemplated under § 31-51m(c). The court held that "[a] valid administrative remedy ... must provide for meaningful relief, otherwise litigation is merely postponed." (Internal quotation marks omitted.) Id., 82.
Following Campbell, the court turns to a remedy-based analysis. In the present case, the plaintiff claims violation of § 31-51m(c) because the defendant retaliated against him for "complaints of unlawful and environmentally dangerous practices"; Compl., count 2 ¶ 9; and "ongoing pesticide use" at the facility. (Internal quotation marks omitted.) Compl., count 1 ¶ 13. This court finds that the plaintiff’s complaints amount to reports of unsafe workplace practices, which are OSHA violations. General Statutes § 31-379 sets forth the remedies that CONN-OSHA may administer for retaliation by the defendant for the plaintiff’s complaints. General Statutes § 31-379 provides: "(a) No person shall discharge, discipline, penalize or in any manner discriminate against any employee (1) because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter [OSHA], (2) because such employee has testified or is about to testify in any such proceeding, or (3) because of the exercise by such employee on behalf of such employee or others of any right afforded by this chapter ... (c) The commissioner may award an aggrieved employee all appropriate relief, including rehiring or reinstatement of the employee to the employee’s former position, back pay and reestablishment of any employee benefits to which the employee would otherwise have been eligible if such violation had not occurred. The commissioner shall award a prevailing employee such employee’s costs, together with reasonable attorneys fees to be determined by the commissioner. (d) Any party aggrieved by the commissioner’s decision under subsection (c) of this section may appeal the decision to the Superior Court in accordance with the provisions of chapter 54." (Emphasis added.)
Section 31-51m(c) provides in relevant part: "Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may ... bring a civil action ... in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee’s recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court."
Thus, CONN-OSHA could provide the plaintiff meaningful relief for his § 31-51m(b) complaint because he could receive the exact same relief from CONN-OSHA and the Superior Court. Moreover, the relief is adequate because § 31-379(d) provides the plaintiff with a mechanism for judicial review of the administrative decision. See Murphy v. Young, 44 Conn.App. 677, 681, 692 A.2d 403 (1997) (in order to be considered adequate, relief must provide mechanism for judicial review of administrative decision). It follows that because CONN-OSHA can provide adequate relief, the plaintiff is required to exhaust his administrative remedies through CONN-OSHA first.
Based on the foregoing, this court grants the defendant New Haven Board of Education’s Motion to Dismiss Count One of the complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff was required to exhaust administrative remedies available at CONN-OSHA, but has failed to do so.
C. ESTOPPEL
The plaintiff argues that the defendant should be estopped from arguing failure to exhaust administrative remedies because the defendant stayed the proceedings at CONN-OSHA and thereby prohibited the plaintiff from exhausting those administrative proceedings.
"There are two essential elements to an estoppel- the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done ... Further, [i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge ... [T]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury." (Internal quotation marks omitted.) Campbell v. Plymouth, supra, 74 Conn.App. 84.
The plaintiff has not demonstrated any intended deception on the part of the defendant and has not adequately explained how he has been injured. Moreover, the plaintiff did not commence the CONN-OSHA proceeding until months after he filed this action. General Statutes § 31-51m(c) provides in relevant part: "[a]ny employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged. Plaintiff was required to exhaust all administrative remedies in his CONN-OSHA proceeding first, prior to the filing of this action. The stay of the CONN-OSHA proceeding is irrelevant as plaintiff filed this action months before he filed the CONN-OSHA proceeding. Accordingly, this court rejects the plaintiff’s estoppel argument.
Notwithstanding the foregoing, this court underscores that the CONN-OSHA proceeding should now move forward as there will no longer be a prior pending action argument to be made by the defendant as a ground to stay the proceeding. This court also notes that should the plaintiff receive an unfavorable outcome from the CONN-OSHA proceeding, he may appeal to the Superior Court pursuant to § 31-379(c).
III.
CONCLUSION
Based on the foregoing, this court grants the defendant New Haven Board of Education’s Motion to Dismiss Count One of the complaint on the ground that the plaintiff has failed to exhaust all of his administrative remedies.