Opinion
No. CV10-6007437
June 28, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS — #101
I. Nature and History of the Proceedings
This case arises out of the plaintiff's alleged wrongful termination from his employment with the department of developmental services of the state of Connecticut. In his one-count complaint filed November 5, 2010, the plaintiff alleges that his employment with said department was terminated on May 9, 2010, and that his involuntary separation from the department constituted an interference with and restraint of the rights granted to him pursuant to General Statutes Section 5-248a, which is that portion of Connecticut's Family and Marital Leave Act (FMLA) applicable to state employees. Specifically, the plaintiff claims that he was granted benefits under that statute due to his own illnesses and that leaves of absence, of between three and five days per month, were approved in October 2008 and again in June 2009, based upon, inter alia, panic attacks, stress, hypertension, and diabetes. He further alleges, however, that on November 4, 2009, when he asked his supervisor for medical leave due to stress from an undisclosed work incident, apparently an oral confrontation with a fellow employee, the supervisor warned that he would be terminated if he used the statutory leave for that purpose. An investigation followed and resulted in a recommendation of a twenty-day suspension. However, upon review of that investigation and the recommended disciplinary action, the commissioner of the department rejected that recommendation and on May 9, 2010, terminated the plaintiff's employment.
This statute is part of Chapter 67 which is entitled the State Personnel Act. The relevant portions of the statute will be hereinafter discussed.
In Paragraph #3 of his complaint, the plaintiff states: "The plaintiff brings this complaint pursuant to authority set forth in Conn. Gen. Stats. Secs. 5-196; 5-248a; 31-51pp(a)(1); 31-51pp(a)(2); and 31-51pp(c)(2) . . ." Each of those statutes will be hereinafter referred to. Said paragraph also contains a somewhat unusual reference to two trial court decisions, Kenny v. State of Connecticut and Siuzdak v. Greater Bridgeport Community Mental Health Center, each of which will be appropriately addressed herein. The plaintiff cites both decisions as authority in support of his cause of action. Based upon the cited authorities the plaintiff claims that his termination was wrongful and in violation of the rights granted to him by Connecticut's FMLA. Specifically, in Paragraph #5, the plaintiff asserts: "The termination of the plaintiff is a violation of Conn. Gen. Stats. Sec. 5-248a, because the defendant employer interfered with, restrained, and denied the plaintiff's exercise of and attempt to exercise his rights to utilize intermittent family leave, which right is provided for under [said statute]." In Paragraph #12 the plaintiff states: The plaintiff has exhausted any and all administrative remedies available to him through the Commissioner of Labor.
The plaintiff seeks reinstatement to his former position, together with back pay, interest, lost benefits and seniority; attorneys fees and costs; and any "statutory damages" to which he may be entitled due to the department's alleged statutorily prohibited conduct.
On January 13, 2011, the attorney general's office on behalf of the department filed a Motion To Dismiss (#101) the plaintiff's complaint on the grounds that it is barred by the doctrine of sovereign immunity. A memorandum of law accompanied the motion. On February 22, 2011, the plaintiff filed his objection (#104) along with a supporting memorandum and several exhibits and trial court opinions. On March 4, 2011, the defendant filed its reply memorandum (#106). The court heard oral argument at the short calendar on March 7, 2011. After reviewing the memoranda submitted by the parties, the cases cited therein and the exhibits filed therewith and, after considering the arguments of counsel, the court agrees with the state's position and will therefore grant its motion to dismiss.
II. Motion To Dismiss
Recently, in Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 154-55 (2010), the appellate court had occasion to once again recite the standards for a trial court's determination of a motion to dismiss, particularly, one such as this which challenges subject matter jurisdiction: "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 When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. We are also mindful of the well settled principle that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal citations and quotation marks omitted.) If, in accordance with the above standards, the court finds that the cause of action pursued by the plaintiff against the state is barred by the doctrine of sovereign immunity, which the department is asserting in this case, the purpose of that doctrine mandates that the court dismiss the action for want of subject matter jurisdiction. Horton v. Meskill, 172 Conn. 615, 624 (1977); Sullins v. Rodriguez, 281 Conn. 128, 131 (2007).
III. Sovereign Immunity
In Horton, our Supreme Court instructed as to the etiology, nature and purpose of the doctrine of sovereign immunity: "In Connecticut, we have long recognized the validity of the common-law principle that the state cannot be sued without its consent and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state. This rule had its origin in the ancient common law, predicated on the principle that the king, being the fountainhead of justice, could not be sued in his own courts. 1 Pollack Maitland, History of English Law (2d Ed.) pp. 514-18. While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government where the source of governmental power and authority is not vested by divine right in a ruler but rests in the people themselves who have adopted constitutions creating governments with defined and limited powers and courts to interpret these basic laws. The source of the sovereign power of the state is now the constitution which created it, and it is now recognized that, as Mr. Justice Holmes wrote: `A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.' . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property . . . [However] adherence to the doctrine of sovereign immunity does not mean that all suits against government officers, since they are in effect suits against the government, must be barred. In those cases in which it is alleged that the defendant officer is proceeding under an unconstitutional statute or in excess of his statutory authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. Moreover, the government cannot justifiably claim interference with its functions when the acts complained of are unconstitutional or unauthorized by statute." Id., at page 623-24. (Internal citations and quotation marks omitted.)
Our Supreme Court has therefore recognized several limited exceptions to the state's immunity from suit. "A plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority or pursuant to an unconstitutional statute." Lyon v. Jones, 104 Conn.App. 547, 552, cert. granted, 285 Conn. 914 (2008). Emphasis added. In the absence of an express statutory waiver of sovereign immunity, a plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner, who is vested with the authority and the discretion to permit such an action.
General Statutes Section 4-160(a) provides: "When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact, under which the state, were it a private person, could be liable."
III. The Statutory Conflict
As noted, the plaintiff claims that the department violated the rights granted to him pursuant to General Statutes Sec. 31 — pp. Section 31 — kk through 31 — pp inclusive comprise Connecticut's Family And Medical Leave Act, which became law on January 1, 1997 via Public Act 96-140. The Act provides that any "employee," defined as one who has worked for at least one thousand hours during a twelve-month period for an employer, is entitled to take a total of sixteen work weeks leave during any twenty-four month for reasons listed in 31-51ll(a)(2). Included among those reasons are childbirth or adoption, care for a loved one, the employee's own serious health condition and an employee's service as an organ or bone marrow donor. Other provisions of the Act require certification by a healthcare provider as to a claim by an employee of serious health impairment, a guarantee of medical confidentiality and the protection of an employee's benefits when he or she chooses to claim the leave provided in the Act. Section 31-pp(a)(1) prohibits an employer to "interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under [the Act]." Subsection (a)(2) provides: "It shall be a violation of sections 5-248a and 31-kk to 31-qq, inclusive, for any employer to discharge or to cause to be discharged or in any manner discriminate, against any individual for opposing any practice made unlawful by said sections or because such employee has exercised the rights afforded to such employee under said sections." Emphasis added. Subsection (c)(2) provides a specific administrative remedy, including a mandated hearing, before the labor commissioner and an appeal process to the superior court by any person aggrieved by the labor Commissioner's adverse decision.
It is noteworthy that statutory rights to family and medical leave were granted to state employees via Public Act 87-291, effective July 1, 1988, now codified in General Statutes Section 5-248a.
Subsection (c)(2) of the statute provides: "Any employee aggrieved by a violation of this subsection may file a complaint with the Labor Commissioner alleging violation of the provisions of this subsection. Upon receipt of any such complaint, the commissioner shall hold a hearing. After the hearing, the commissioner shall send each party a written copy of the commissioner's decision. The commissioner may award the employee all appropriate relief, including rehiring or reinstatement to the employee's previous job, payment of back wages and reestablishment of employee benefits to which the employee otherwise would have been eligible if a violation of this subsection had not occurred. Any party aggrieved by the decision of the commissioner may appeal the decision to the Superior Court in accordance with the provisions of chapter 54."
Thus, the cited provisions would appear to provide the plaintiff with an appropriate administrative procedure and subsequent right of access to the superior court in order to have some tribunal hear his claim that his termination from the department violated the rights granted to him by Connecticut's FMLA. This would most assuredly be so were it not for Section 31-51kk(4) of the Act, which specifically excludes the state from the definition of employer. Since the plaintiff was a state employee, he is not covered by the FLMA, including the procedure provided therein for redress of any claims that the act was violated by his state employer, the department of developmental services.
In addition to the claim that Section 31-pp was violated by the department when it terminated the plaintiff, he alleges that the termination violated General Statutes Section 5-248a, which is captioned, "Family and medical leave from employment." This statute, which is part of Chapter 67, the State Personnel Act, permits leaves of absence to state employees and mirrors the FMLA both in the reasons allowed for leaves of absence and in the time restrictions provided. However, unlike the remedies provided to non-state employees for violation of the rights granted under the FMLA, this statute affords no such procedure to one such as the plaintiff who claims that the statute was violated by his state employer. Thus, the conflicting statutes appear to provide equal rights to leaves of absences to state and non-state employees, while providing a remedy to non-state employees for alleged violation of those rights which is not provided to state employees.
General Statutes Section 5-196(20) defines a permanent state employee, as "an employee holding a position in the classified service under a permanent appointment or an employee holding a position in unclassified service who has served in such a position for a period of more than six months, except employees in positions funded in whole or in part by the federal government as part of any public service employment program, on-the-job training program or work experience program."
IV. Claims of the Parties A. The Plaintiff's Claim
As noted in his complaint the plaintiff has referred to two trial court opinions, both of which are cited by each of the parties in their respective memorandum. A discussion of each is therefore warranted and instructive.
Kenney v. Dept. of Mental Health
As authority for his argument that the court does have subject matter jurisdiction to hear this case the plaintiff cites a 2007 decision by Judge Rittenband. In Kenney v. Dept. of Mental Health (CV02-0813589), Judicial District of Hartford at Hartford, October 24, 2007 [ 44 Conn. L. Rptr. 356], the court addressed the issue raised by these conflicting statutes. The plaintiff claimed that her termination from the department of mental health and addiction services (DMHAS) due to claimed excessive absenteeism was in violation of FMLA as she was absent due to pregnancy. In the first count of her complaint Kenney asserted, as does the plaintiff in this case, that her termination violated the rights granted to her in Sections 5-248a and 31-51pp. In its motion to strike that count DMHAS pointed out that the state was not an employer under 31-51pp and that 5-248a provides for family leave to state employees, but does not provide any enforcement provisions. Thus, DMHAS made the same argument in Kenney that DDS is making in this case. Judge Rittenband stated the issue: "Does the Family and Medical Leave Act Apply to the Plaintiff? The short answer is Yes." He then explained the plaintiff's dilemma and the statutory contradiction as follows:
Conn. Gen. Stat. § 31-51pp provides in pertinent part that it shall be a violation of §§ 5-248a and 31-51kk to 31-51qq inclusive for any employer to discharge . . . or in any manner discriminate against any individual . . .
However, under Conn. Gen. Stat. § 31-51kk(4) under the definition of "employer," it states in pertinent part ". . . but shall not include the state . . ." It is, therefore, clear that §§ 31-51kk through 31-51qq apply to private employers and not to state employees.
Even if one were to assume, arguendo, that the state was included in the definition of employer, Conn. Gen. Stat. § 31-51pp(c)(2) provides that any employee aggrieved by a violation . . . may file a complaint with the Labor Commissioner. In oral argument plaintiff's attorney stated that she had filed a complaint with the Labor Commissioner, but that it had been rejected because she was informed that the statute did not apply to state employees, an interpretation by the Labor Commission that C.G.S. § 31-51kk through § 31-51qq apply only to private employers.
Conn. Gen. Stat. § 5-248a, on the other hand, does refer to state employees. Said section states in pertinent part: "Each permanent employee, as defined in subdivision (20) of § 5-196, shall be entitled to a family leave of absence . . ." Conn. Gen. Stat. § 5-196(20) defines permanent employee as an employee holding a position in the classified service. This clearly means state employees and these statutes § 5-248a, et seq. are all under the title of State Personnel Act.
Section 5-248a merely provides for the length and conditions of family or medical leave.
However, there is no provision for enforcement of violation of § 5-248a. The contradiction comes in that the enforcement provision in § 31-51pp which states that it shall be a violation of §§ 5-248a and 5-196 but it excludes specifically from § 31-51pp the state." Emphasis included.
Is noteworthy that in this case as well, the plaintiff filed a complaint with the labor commissioner, which was rejected for the same reason given to Kenney. See Plaintiff's Exhibit #1. The court opined that if such a contradiction presented itself in contract law, the result would be an interpretation in favor of the plaintiff against the drafter of the contract language, but correctly concluded that since the drafter was the state legislature those contract principles would not apply. The court then cited several Supreme Court and appellate court decisions dealing with statutory interpretation that favored a reasonable and rational result and recommended the use of common sense with the goal of avoiding a result that would yield bizarre and nonsensical consequences. In reaching his decision to deny the motion to strike, Judge Rittenband concluded:
See Longley v. State Employees Retirement Commission, 284 Conn. 149, 172-73 (2007); Whittaker v. Commissioner of Correction, 90 Conn.App. 460, 490-91 (2005); Stamford Ridgeway v. Board of Representatives, 214 Conn. 407, 426-27 (1990); and Vibert v. Board of Education, 1, 260 Conn. 167, 177 (2002).
"Therefore, there is clearly a longstanding and unequivocal precedent to support the proposition that the court should interpret and construe statutes using common sense so as to arrive at a reasonable and rational result intended by the legislature. Further evidence of the intent of the legislature is that although § 31-51pp, et seq. is contradictory in that it states that a violation of C.G.S. § 5-248a is a violation of § 31-51pp but then goes on to say that this set of statutes does not apply to the state of Connecticut. However, it is clear by its language in § 31-51pp that the legislature intended that there be some enforcement provision although it did not spell it out as to § 5-248a. To enact § 5-248a and leave it without any enforcement provisions has to be an oversight by the legislature, and leaving § 5-248a alone without any enforcement provisions leads to a bizarre result. Using common sense to arrive at a reasonable and rational result would be to infer from this statutory scheme that the legislature intended for state employees to seek relief from a § 5-248a violation in the Superior Court. Every statute should have meaning and to leave § 5-248a alone without any enforcement provisions would make § 5-248a meaningless. This Court, therefore, by reasonable inference, concludes that the legislature intended to have a provision enforcing violations of § 5-248a, and this court concludes that § 5-248a should be interpreted to permit any state employee, including the plaintiff who claims violations of § 5-248a should and does have an enforcement action by bringing suit in the Superior Court. The court would hope that the legislature in the next session would adopt specific language providing for an appeal to the Superior Court in the event of a violation of C.G.S. § 5-248a. In the meantime, this Court is not going to strike the first count because of an oversight by the legislature which can easily be corrected. " Italics included. Bold type added.
A review of the cited statutes reveals that the action hoped for by Judge Rittenband has not occurred, although three legislative sessions have come and gone. The language of both statutes insofar as the issue before this court is concerned continues to present the conflict that was the subject of the opinion in Kenney. The plaintiff, conceding that under 31-51pp he has no remedy against DDS for his perceived wrongful termination, urges the court to do exactly what Judge Rittenband did in Kenney. The plaintiff asked this court to conclude that "by reasonable inference" and "by force of necessary implication" the legislature waived sovereign immunity when a violation of the statutory leave provided to state employees has allegedly occurred. The plaintiff argues that without the court's finding in his favor the plaintiff has no recourse by which he is able to redress this alleged wrongful termination. The crux of the plaintiff's argument is found on page 7 of his memorandum: "In this case, as in Kenney the plaintiff asserts a violation of section 5-248a, and the plaintiff has no other available enforcement remedy, although the legislature has clearly intended an enforcement remedy. The state's waiver of sovereign immunity must be necessarily implied from a reasonable reading of section 5-248a, and from the state's actions through the office of the Labor Commissioner."
Siuzdak v. Greater Bridgeport Community Mental Health Center
In Siuzdak (CV05-401-3170), Judicial District of Fairfield, at Bridgeport, October 13, 2009 [ 48 Conn. L. Rptr. 680], Judge Bellis was presented with the same dilemma that was addressed by Judge Rittenband in Kenney. The plaintiff brought a thirteen-count complaint against the defendant, a state agency, claiming, inter alia, that the defendant retaliated against her and subjected her to a hostile work environment as a result of her missing work and curtailing her hours as a supervisory registered nurse due to both a physical (hip fracture) and mental (bipolar) disorder. The plaintiff claimed that the defendant created the hostile work environment in order to force her resignation from a full-time position and then promised her a job as a day nurse, which never materialized. Count five was brought against the agency based upon a claim that the alleged retaliation violated her rights under Connecticut's Family and Medical Leave Act. The defendant filed a motion to dismiss that count on the ground of sovereign immunity. After discussing the general principles of the doctrine Judge Bellis then addressed the issue of statutory waiver:
As the plaintiff in the present case is not seeking declaratory relief or an injunction and does not allege that she received permission to sue from the claims commissioner, it is necessary for the plaintiff to demonstrate that the legislature has clearly provided a statutory right for her to bring suit. "[W]hen the legislature intends to waive immunity from suit, it knows how to do so explicitly . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Emphasis in original; internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 86, 818 A.2d 758 (2003). "[S]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . . . [When] there is any doubt about [the] meaning or intent [of statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 11, 950 A.2d 1247 (2008).
Since the plaintiff in Siuzdak based its waiver claim on Kenney, Judge Bellis then discussed the conflict between 31-51pp and 5-248a, concluding, as did Judge Rittenband: "Accordingly, [Sec.] 5-248a clearly provides that state employees are entitled to family and medical leave, but this statute provides no method for state employees to seek redress when they are denied their right to family and medical leave." After summarizing the rationale employed in Kenney and acknowledging Judge Rittenband's common sense approach to the dilemma posed by the conflicting statutes, Judge Bellis found that it was not necessary to resolve this ambiguity as she noted that "[u]nlike the plaintiff in Kenney the plaintiff in this case makes no corresponding allegation that the defendant's conduct violated [Sec.] 5-248a." Finding that Siuzdak only meant to bring suit under 31-51pp, that 31-51kk specifically excluded the state from the definition of "employer" and that there was no allegation that the plaintiff filed a complaint with the labor commissioner, Judge Bellis dismissed the fifth count. Thus, Judge Bellis, although acknowledging the dilemma created by the conflicting statutes and the rational approach adopted by Judge Rittenband, was not compelled to resolve the issue in order to resolve the motion to dismiss. Kenney remains the only authority that is supportive of the plaintiff's position in this case.
B. The Defendant's Position
The defendant, however, disagrees with Kenney and correctly points out that neither Kenney nor Siuzdak specifically addressed the issue of whether a claim brought pursuant to Sec. 5-248a is barred by the doctrine of sovereign immunity. The issue in Kenney, raised by a motion to strike, was whether the statute created a private cause of action. Although Siuzdak did involve a motion to dismiss, as explained above, the court was able to avoid confronting the statutory conflict. In this case, the defendant is claiming that the plaintiff's action is barred by the doctrine of sovereign immunity; its alleged waiver and subject matter jurisdiction are issues which this court must confront in deciding the motion to dismiss the plaintiff's complaint.
The defendant asserts, citing Bergner v. State, 144 Conn. 282, 286-87 (1957), that the issue of whether the legislature waived sovereign immunity is an issue to be resolved by the legislature and is not appropriate for judicial determination. As to the plaintiff's plea that the legislature must have intended to grant to state employees the same rights and remedies provided to employees in the private sector, the state cites Letelier v. Republic of Chile, 748 F.2d 790, 799 (2nd Cir) (1984); for the proposition that even if it is perceived that the legislature did create a right without providing a remedy to enforce that right, the court is nevertheless obligated to read the statute as expressed and should not judicially create what the legislature opted to omit.
As to the plaintiff's claim that direct access to the superior court is the only remedy available to him, the defendant counters that, pursuant to Connecticut's Uniform Administrative Procedure Act (UAPA), the plaintiff had a right to appeal the labor commissioner's refusal to hear his complaint ( Exhibit #1) to a court of law. The state argues that once the commissioner rejected the plaintiff's complaint it was a final agency decision relative to which the plaintiff, as a person aggrieved thereby, had a right to appeal to the superior court to seek a judicial review of the commissioner's action. Furthermore, the defendant asserts that the plaintiff had a right to challenge his termination pursuant to the applicable collective bargaining agreement.
General Statutes Sec. 4-183(a) provides: "A person who has exhausted all administrative remedies available within the agency and was aggrieved by a final decision may appeal to the Superior Court as provided in this section."
Finally, the defendant argues that even if the above avenues of redress were not available to the plaintiff, it does not follow that sovereign immunity was waived by necessary implication, which has been interpreted by our Supreme Court to mean: "[t]he probability . . . must be apparent, and not a mere matter of conjecture; but . . . necessarily such that from the words employed an intention to the contrary cannot be supposed." Ware v. State, 118 Conn.App. 65, 75 (2009). The defendant asserts that the statutes upon which the plaintiff relies do not meet that standard as neither of those statutes contains an express or implied waiver of the state sovereign immunity. The defendant cites Ware for the proposition that the absence of a provision creating a cause of action to enforce a statutory right does not amount to a waiver of sovereign immunity; the defendant argues that it would be inappropriate for this court to conclude that it does.
V. Discussion
As this court addressed at oral argument, it is noteworthy that what the plaintiff, as an aggrieved state employee, is asking this court to do is, by necessary implication, to afford a right to him that is greater or more expansive than that which is provided to private employees who claim that their rights under the FMLA have been violated. There is a significant difference in the function of a superior court when acting as the initial tribunal as opposed to its function in undertaking a judicial review of an administrative finding. As referred to herein, Sec. 31-51pp(c)(2) permits any private employee aggrieved by a perceived violation of the FMLA to file a complaint with the labor commissioner and to thereafter appeal any adverse decision to the superior court. In reviewing that administrative decision, however, the plaintiff's burden is to prove that the commissioner acted arbitrarily or capriciously based upon a review of the administrative record as a whole. The plaintiff in this case, however, is claiming that by necessary implication he should have a right of direct access to the superior court in a proceeding in which the plaintiff's burden would be that of a typical civil case, i.e., the preponderance of the evidence standard. Thus, the plaintiff in effect, is arguing not only that the legislature committed an oversight in not resolving the statutory conflict, but that it meant to provide to state employees a greater right than that provided to their private employee counterparts. The plaintiff is not seeking the same remedy available to private employees; the plaintiff is seeking a greater remedy. In this court's view, if such was the intention of the legislature in enacting Sec. 5-248a that body would have expressly and clearly said so.
Our Supreme Court has instructed as to the manner in which trial courts and appellate courts are to interpret statutes: "When construing a statute [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words we seek to determine in a reasoned manner the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply . . . In seeking to determine the meaning, General Statutes Sec. 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." McWeeny v. City of Hartford, 287 Conn. 56, 66 (2008).
In following this procedure this court finds no ambiguity in Sec 248a, as compared to Sec. 31-51pp. As noted, the former, unlike the latter does not include any language explicitly establishing a cause of action for persons deprived of the rights provided therein. "[S]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." Babes v. Bennett, 247 Conn. 256, 262 (1998). In this court's view, had the General Assembly intended to grant to state employees a direct right of access to the superior court for perceived violations of Sec 5-248a and thereby waive the state's sovereign immunity, it could have done so, for it is well settled that "[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from the similar statute concerning a related subject . . . is significant to show that a different intention existed . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the fact that its action or non-action will have upon any one of them." (Internal quotation marks omitted. Emphasis added.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 534 (2004); also see State of Connecticut v. B.B., 300 Conn. 748, 759 (2011). Moreover, the legislature is presumed to be aware of the effect that judicial decisions may have on its enactments. If that body disagrees with a judicial interpretation of a particular statute or becomes aware of a case, such as Kenney, wherein a perceived oversight by the legislature was judicially corrected, the legislature knows how to remedy that omission through its own corrective action. In fact, Judge Rittenband expressed the hope that the legislature would do just that by providing state employees with the same judicial access as their private counterparts. In this court's view, the fact that, after three sessions, the General Assembly chose not to amend Sec. 5-248a is clear evidence of their intent to leave things as they are. This court will not act contrary to that intent and will not create an additional avenue of redress for state employees which the legislature has opted not to do.
Our Supreme Court's recent decision in Keane v. Fischetti et al., 300 Conn 395 (2011) provides a useful analogy. The companion cases arose out of the horrific collision between two Waterbury fire trucks that occurred in Waterbury on May 19, 2007, at the intersection of East Aurora Street and the Route #73 connector to Route 8. Both trucks were proceeding to an emergency call. "Truck 1" was operated by William Mahoney. "Engine 12" was operated by Joseph Fischetti, in which John Keane was a front seat passenger. Mahoney was severely injured, but Keane lost his life. Mahoney and the dependents of Keane received workers' compensation benefits, however, Keane's widow, as administratrix of his estate, and Mahoney sought additional damages. The issue presented to the Court was whether General Statutes Sec. 7-308(b) violated the equal protection clause of the state and federal constitution by discriminating against firefighters in favor of other municipal employees and private employees because the statute prevented firefighters who are eligible for workers' compensation benefits from bringing an action against other firefighters for negligence in the operation of a motor vehicle during the course of employment, whereas other municipal employees and private employees are not similarly prevented from bringing such actions against their coworkers. In conducting a so-called "rational basis review" the Court agreed with the trial court that, "even though firefighters were treated differently, the equal protection clause was not violated by such a legislative distinction." Id., at page 405. The court then observed: "the problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think . . . Or the reform may take one step at a time, addressing itself to that phase of the problem, which seems most acute to the legislative mind . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others . . ."a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data." Id., at page 407. In concluding that the distinction between firefighters and other employees, state and private, passed the rational basis test, the Court instructed: "[R]ational basis review affords great deference to legislative choices and does not authorize this court to substitute its judgment, or that of the plaintiffs, for that of this state's elected representatives, as long as the classifications drawn by the legislature are reasonable." Id., at page 409.
The Court's opinion resolved an appeal in the companion case of Mahoney v. Fischetti et al.
The statute provides, in relevant part: "If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under [The Workers' Compensation Act] by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was willful and malicious . . ." (Emphasis added.) The Court agreed with the plaintiffs that "[b]ecause other municipal employees are permitted to bring motor vehicle negligence actions against coworkers while firefighters are not, we conclude that the state is treating firefighters differently from other municipal employees in this context." Emphasis added.
VI. Conclusion
This court will not second guess the General Assembly with regard to the issue discussed herein. This court will not substitute its judgment for that of those representatives elected by the people to enact the laws of our state. The legislature may have had a rational justification for the statutory conflict addressed herein. It may have reasoned, as the defendant has argued, that the Uniform Administrative Procedure Act and the rights granted to the plaintiff pursuant to the collective bargaining process available to state employees provide one who is in the plaintiff's position with adequate remedies to redress any grievances they may have as to a claimed violation of Sec. 5-248a. Those two avenues are not available to private employees who claim violations of Sec. 31-51kk-qq inclusive. The legislature may have had other legitimate motives. It is not the function of this court to speculate as to those motives and the purposes behind the FMLA legislation as it applies to state employees.
This court finds that the General Assembly did not expressly or by necessary implication waive sovereign immunity in enacting that statute. The defendant's Motion To Dismiss is therefore granted.