Opinion
CV176084947S
08-07-2018
Susan MEHALICK v. EASTERN CONNECTICUT STATE UNIVERSITY
UNPUBLISHED OPINION
OPINION
Cobb, J.
The defendant, Eastern Connecticut State University, moves to dismiss this action on the ground that the court lacks subject matter jurisdiction because the action is barred by sovereign immunity. The plaintiff, Susan Mehalick, brings this action in two counts. Count one alleges a violation of General Statutes § 31-51m, commonly referred to as the whistleblower statute, based on her claim that she did not receive a permanent teaching position after she reported alleged child abuse to the Department of Children and Families (department). Count two alleges a violation of General Statutes § 31-51q, and claims that the defendant’s actions violated her free speech rights under article first, § 4, of the Connecticut constitution. In particular, in its motion to dismiss, the defendant claims that count one must be dismissed as untimely commenced, and count two is barred by the doctrine of collateral estoppel because this claim was fully litigated and decided in the prior action between these parties. The plaintiff has opposed the motion. The court grants the motion to dismiss in part and denies it in part. Subject matter jurisdiction is implicated because these statutes waive sovereign immunity and must be strictly construed, and the plaintiff’s claim and conduct must fall with the statute’s purview. See Skinner v. Angliker, 211 Conn. 370, 377, 559 A.2d 701 (1989).
FACTS
In the fall of 2016, the plaintiff and Tashanna Edwards initiated an action against the defendant. Edwards v. Eastern Connecticut State University, Superior Court, judicial district of Hartford, Docket No. CV-17-6073592-S (prior action). The plaintiff’s claims in the prior action were essentially the same as they are in this action, as pleaded in the first amended Complaint, dated December 21, 2017. In the prior action, on March 13, 2017, the defendant moved to dismiss the plaintiff’s claims brought under § 31-51m on subject matter jurisdiction grounds, arguing that the action was untimely and the plaintiff failed to allege that she had exhausted her administrative remedies. The plaintiff opposed the motion and the court, Dubay, J., denied it without a written opinion or explanation as to which ground for dismissal he relied upon or his rationale for dismissing the first count.
Tashanna Edwards is not a party to the present action.
On August 22, 2017, in the prior action, the defendant filed a second motion to dismiss count two, asserting violation of her first amendment rights under § 31-51q, for lack of subject matter jurisdiction, arguing that the plaintiff’s claim did not fall within statute’s purview because the plaintiff was not disciplined or discharged, and, therefore, the statutory waiver did not apply and, the count was barred by sovereign immunity. The court, Robaina, J., agreed with the defendant and dismissed the remaining counts of the complaint.
Rather than appeal the dismissal of the action, which constituted a final judgment, the plaintiff chose to refile her action under the accidental failure of suit statute, General Statutes § 52-592. In the present action, brought in two counts, the plaintiff alleges the same facts and the same statutory claims that were advanced in the prior action.
The court inquired of the parties at oral argument as to the applicability of the accidental failure of suit statute under these circumstances, when the case had been dismissed on subject matter jurisdiction grounds. The defendant agrees with the plaintiff that the statute applies here to allow this second action, and states in her brief the issue cannot be raised without consent, except as a special defense. The plaintiff has not consented.
The defendant has filed a motion to dismiss both counts of the complaint. Although in the first action the defendant claimed that the whistleblower count should be dismissed as untimely and for failure to allege exhaustion, the present motion primarily asserts the first ground, untimeliness. Nor does the defendant argue that the first count is barred under the doctrine of collateral estoppel. This court’s decision only addresses the single ground raised by the defendant as to count one, untimeliness.
As for count two, brought under § 31-51q, the defendant asserts that it is barred under the doctrine of collateral estoppel and in the alternative, for the reasons stated by Judge Robaina in the prior action- that the plaintiff’s claims do not fall with the contours of the statute and, therefore, sovereign immunity bars the claim.
As to count one, the court finds that the action was timely commenced under the statute and denies the motion to dismiss. As to count two, the court finds that the claim is barred by collateral estoppel as it was actually litigated and decided in the prior action.
DISCUSSION
I
COUNT ONE
Count one of the first amended complaint asserts an alleged violation of § 31-51m. Section 31-51m provides in relevant part: "(b) 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 ... (c) Any 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, 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 ..."
In the present case, the defendant claims, as it did in the prior action, that the action is untimely under § 31-51m(c) and the court therefore lacks jurisdiction. The plaintiff claims that she suffered a violation of § 31-51m when the defendant refused to hire her to a full-time position after she reported a child abuse violation to her human resources department and to the department. The defendant notified the plaintiff that she would not be hired to a permanent positon on August 26, 2016. The plaintiff’s last day of work was September 1, 2016. The plaintiff commenced her original action on November 30, 2016. The issue then is whether the 90-day limitation period in the statute began to run when the plaintiff learned that she would not be hired as a permanent employee on August 26, 2016 or from her last day on the job, September 1, 2016.
Because Judge Dubay did not issue a memorandum of decision or any written explanation on the first motion to dismiss in the prior action, this court does not know his reasons or whether the dismissal was based on the exhaustion or the untimeliness claims.
As stated previously, § 31-51m(c) provides in relevant part that "[a]ny employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may bring a civil action ... within ninety days of such violation ..." (Emphasis added.) The phrase "such violation" is not defined in the statute, and the defendant has not provided any persuasive authority to support its position that under the statute "such violation" occurs, for purposes of the limitation period, when the plaintiff is notified that her employment will not be renewed.
The court finds persuasive the Appellate Court’s analysis in Vollemans v. Wallingford, 103 Conn.App. 188, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579 (2008). There, the Appellate Court found, under a different employment statute, that the time to sue begins to run when the plaintiff’s employment ends, not when she is notified that it will end. In Vollemans, the Appellate Court held that under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq., "the filing period contained in [General Statutes] § 46a-82(e) commences upon actual cessation of employment, rather than notice thereof." Id., 219. In reaching its holding, the court was guided by the principles that, as a remedial statute, CFEPA must be liberally construed in favor of those individuals who are protected thereunder, and Connecticut law has expressed a policy in favor of resolving a dispute on its merits. With these considerations in mind, the Appellate Court reasoned, on the basis of case law from other jurisdictions, that (1) an employer’s allegedly unlawful act remains subject to change until the actual date of termination; (2) requiring an employee to file a complaint while still employed may inject hostility into the workplace; (3) determining when an employee received adequate notice of the employment decision "can be a daunting task" that encourages "tortuous litigation and hairsplitting"; and (4) the time period contained in § 46a-82(e) is "very short," while "the entirety of the termination process is within the control of the employer." Id., 213-19.
Appling that analysis to the present case, the court concludes that, under the circumstances of this case, the ninety-day limitations period in § 31-51m began to run on September 1, 2016, the plaintiff’s last day on the job. Accordingly, the action was timely commenced and the motion to dismiss count one is denied.
In its supporting memorandum of law, the defendant also argues that count one is untimely because the plaintiff has not alleged that she exhausted an administrative remedy available to her, which would otherwise toll the limitations period of § 31-51m(c). This argument is moot because, as discussed in part I of this memorandum, the plaintiff’s claim under § 31-51m is timely, even in the absence of any tolling provisions.
II COUNT TWO
Count two of the first amended complaint asserts an alleged violation of § 31-51q. Section 31-51q provides in relevant part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages ..."
In its motion to dismiss, the defendant first argues that that collateral estoppel or issue preclusion applies to bar this count because the issue of whether the plaintiff was disciplined or discharged was actually litigated and necessarily determined between the same parties in the prior action. The defendant does not claim that this action is barred by res judicata or claim preclusion. The court agrees with the defendant, and therefore dismisses count two.
"[A]lthough most defenses cannot be considered on a motion to dismiss, a trial court can properly entertain a ... motion to dismiss that raises collateral estoppel grounds." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 223, 982 A.2d 1053 (2009). "The fundamental principles underlying the doctrine of collateral estoppel are well established." (Internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004). "[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim." Efthimiou v. Smith, 268 Conn. 499, 506-07, 846 A.2d 222 (2004). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, 137 Conn.App. 540, 549, 49 A.3d 770 (2012). "To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 110 Conn.App. 110, 115, 954 A.2d 235, 238 (2008). In addition, "the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Internal quotation marks omitted.) Wight v. Southington, 43 Conn.App. 654, 659, 685 A.2d 686 (1996). Ultimately, "[t]he doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).
The court concludes that collateral estoppel applies to bar count two of the plaintiff’s complaint. The parties in this action and the prior action are the same. The issue litigated in the prior action and the issue being litigated here is the same- whether the defendant’s failure to hire the plaintiff as a permanent employee constituted "discipline" or "discharge" under § 31-51q. This issue was raised by the defendant’s motion to dismiss in the prior action, and was actually litigated by the parties and decided by Judge Robaina in the defendant’s favor in a well-reasoned memorandum of decision. The determination of the issue was a final judgment that could have been appealed and was essential to the court dismissal of that count in the prior action.
The plaintiff’s reliance on Santorso v. Bristol Hospital, 308 Conn. 338, 345-54, 63 A.3d 940 (2013), is misplaced because that case involved a claim of res judicata, or claim preclusion, not collateral estoppel. For res judicata to bar a subsequent action the "existing final judgment [must have been] rendered upon the merits without fraud or collusion by a court of competent jurisdiction." Id. Where res judicata applies, it bars any subsequent claims in the second action that were actually made or might have been made in the prior action. Id., 63; State v. Bacon Construction Co., Inc., 160 Conn.App. 75, 86, 124 A.3d 941, cert. denied, 319 Conn. 953, 125 A.3d 532 (2015). Res judicata would not apply here because a dismissal on jurisdictional grounds is not considered to be a final judgment on the merits. Davis v. Board of Education, 3 Conn.App. 317, 320, 487 A.2d 1114 (1985) ("The question of [subject matter jurisdiction] does not involve an inquiry into the merits of the case." [internal quotation marks omitted] ).
Because the defendant’s motion is not based on res judicata, these res judicata principles do not apply. Rather, "a court always has jurisdiction to determine its own jurisdiction ... and determinations that the court necessarily makes in rendering a final judgment in the exercise of that jurisdiction have the same preclusive effect as those made in the course of rendering any other final judgment. A valid final judgment for lack of jurisdiction ... does not bar relitigation of the claim, but does bar relitigation of the issues actually litigated and necessarily decided ... The policies furthered by the collateral estoppel doctrine are equally served when the doctrine is applied to jurisdictional questions as to the merits." (Citations omitted; emphasis added; internal quotation marks omitted.) Dana Investment Corp. Bankruptcy Estate v. Robinson & Cole, Superior Court, judicial district of New Britain, Complex Litigation Docket, Docket No. X03-CV-02-0515043-S (January 9, 2003, Aurigemma, J.).
The court is not persuaded by the plaintiff’s argument that collateral estoppel should not apply because the plaintiff was unable to amend her complaint in response to the motion to dismiss filed in the prior action. The issue raised by the defendant in the motion to dismiss implicated the court’s subject matter jurisdiction. That issue was appropriately raised in a motion to dismiss, where subsequent amendments are not allowed. "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 ... [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Schub v. Dept. of Social Services, 86 Conn.App. 748, 750, 862 A.2d 382, cert. denied, 273 Conn. 920, 871 A.2d 1029 (2005). "[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. That should be done, instead, by a motion to strike ... the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
In addition, the court finds this claim somewhat disingenuous. Compared to the operative complaint in the prior action, the plaintiff did not amend the complaint in the present case as to her § 31-51q claim in any material way. This suggests that even if amendments to the complaint had been allowed in the prior action, they would have made no material change to the allegations.
Finally, although revised pleadings are not allowed in response to a motion to dismiss or a decision dismissing a case, in litigating a motion to dismiss, the parties may rely on the pleadings, matters outside of the pleadings, or if necessary, facts established at an evidentiary hearing on the jurisdictional issue. See Conboy v. State, 292 Conn. 642, 649-54, 974 A.2d 669 (2009). The plaintiff did not submit any affidavits or other appropriate documents or seek a hearing in opposition to the defendant’s motion to dismiss.
Thus, the court finds that collateral estoppel applies to bar count two and, in particular, to preclude the plaintiff from relitigating the issue of whether sovereign immunity forecloses this action because the plaintiff was not discharged or disciplined under § 31-51q.
CONCLUSION
For all of the foregoing reasons, the motion to dismiss is denied as to count one and granted as to count two of the first amended complaint.