Opinion
No. X10 UWY-CV-03-4010269S (CLD)
May 18, 2006
MEMORANDUM OF DECISION
The defendant, St. Mary's Hospital Corp., (the "defendant") has filed a motion to dismiss counts five, six and seven of the plaintiff's amended complaint dated November 1, 2005, claiming the court lacks subject matter jurisdiction. The plaintiff, Christina Paylan (the "plaintiff") has brought various claims against the defendant arising out of the termination of the plaintiff's employment with the defendant as a resident physician. It is the defendant's position that, with regard to counts five, six, and seven of the plaintiff's complaint, the plaintiff failed to comply with the mandate of Conn. Gen. Stat. § 46a-103 by failing to serve the Commission of Human Rights and Opportunities (the "Commission") with a copy of its complaint at the same time that the defendants were served. With respect to count seven only, the defendant also contends that the plaintiff failed to assert its claim within 90 days from obtaining a release of jurisdiction from the Commission, as is required by Conn. Gen. Stat. § 46a-101(e). According to the defendant, these defects implicate the subject matter jurisdiction of the court and require dismissal of the challenged counts.
The following facts, for purposes of this motion to dismiss, can be gleaned from the plaintiff's amended complaint. The defendant hospital has a surgical residency program in which two residents are admitted for each year of a five-year residency program, the final year of which is served as Chief Resident. All of this is necessary for the successful resident to sit for exams for board certification as a general surgeon. The plaintiff entered the defendant's residency program as a fourth year resident, understanding there was an agreement that she would complete her fifth year as Chief Resident at St. Mary's. Near the conclusion of her fourth year, she (and the other fourth year resident) was informed by her superior that they would not be given Chief Residency responsibilities the next year; instead, they would be assigned to an incoming fourth year resident. That resident is a white male. Within the week following her filing of a written grievance, the plaintiff's employment with the defendant was terminated. The other incoming fifth year resident had signed the grievance; his employment was not terminated.
In count five of her complaint, the plaintiff claims that the defendant has violated the Connecticut Fair Employment Practice Act (Conn. Gen. Stat. § 46a-60(a)(1)) by discriminating against her based on her gender. In count six, the plaintiff claims that the defendant has violated the Connecticut Fair Employment Practice Act (Conn. Gen. Stat. § 46a-60(a)(1)) based on her color and national origin. She is Armenian, born in Turkey. Counts five and six were included in the plaintiff's original complaint of July 18, 2003; count seven was not. In count seven, the plaintiff claims that the defendant has violated the Connecticut Fair Employment Practice Act (Conn. Gen. Stat. § 46a-60(a)(4)) by retaliating against her for complaining that she was treated disparately because of her gender. These three counts all require releases from the Commission on Human Rights and Opportunities before an action under their respective statutory provisions can be instituted. Conn. Gen. Stat. § 46a-101(e) requires that such actions must be brought within ninety (90) days of such release.
On November 10, 2003 the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities. On April 22, 2005, the Commission issued written notice of its release of jurisdiction.
"Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763, 741 A.2d 956 (1999).
"[A] claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). "[P]arties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996).
"[I]n 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.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Woodward v. Woodward, 44 Conn.App. 99, 102, 683 A.2d 1010 (1997).
The plaintiff resists the motion to dismiss. As to the challenged counts, the plaintiff asserts that she has complied with the jurisdictional requirements of Conn. Gen. Stat. § 46a-103 by obtaining a release from the Commission, albeit after the lawsuit was filed. That statute provides "[the plaintiff] shall serve a copy of the complaint in an action brought in accordance with section 46a-100 on the commission at the same time all other parties in such action are filed." Defendant argues that plaintiff failed to comply with this provision. The plaintiff concedes that the notice of the lawsuit provided to the Commission was untimely under the statute. She asserts, however, that under the present facts late notice was sufficient to cure any jurisdictional defect. The court agrees with the plaintiff. The first issue is whether the plaintiff has sufficiently complied with these statutory mandates when she filed her complaint before she received the Commission release or, in the alternative, by seeking to amend her complaint to once again include counts five and six after she received the release. The court notes that the plaintiff filed a request to amend her complaint November 1, 2005 restating these two counts, as well as adding the retaliation claim at count seven.
Further, defendant suggested that plaintiff amend her complaint to cure these defects in an email in which its counsel wrote, "[P]erhaps we can resolve this by you filing a request for leave to amend and include the right to sue letter and amended complaint with these counts. This will correct the defect and then we won't have to argue the motion" (referring the defendant's earlier filed motion to dismiss counts 5 and 6 on the same grounds).
While the Supreme Court has not spoken on the issue, other trial courts have found that a plaintiff can cure a defect of failure to give notice by giving late notice. In Suarez v. Judicial Department, 1998 Conn.Super. LEXIS 94 (Jan. 7, 1998) (M. Hennessey, J.) ( 21 Conn. L. Rptr. 183), the court concluded that "simultaneous service upon the CHRO is not the essence of the purpose to be accomplished by the statute. The CHRO is not a necessary party, and notice to the CHRO is secondary to the main purpose of the statute, namely providing for actions between private parties on the ground of discrimination by employers. Thus, the language is not mandatory. Simultaneous notice to the CHRO, a non-necessary party, is a matter of convenience, and failure to comply does not compromise the purpose of the statute if cured, thus, the language of the statute is directory." Id., *8.
In the present case, the late notice was provided when the Commission was served on December 7, 2005, per the marshal's return appended to the plaintiff's memorandum. The purpose of the statute has been met with this late notice. The Commission's interest in receiving notice of the action has been satisfied. Certainly even within the context of the late notice there has been sufficient time for the Commission to appear and assert its interest if it had chosen to. The court agrees with Suarez, finding the statutory language of Conn. Gen. Stat. § 46a-103 directory, rather than mandatory, and accordingly finds that the plaintiff has satisfied its mandate. The motion to dismiss counts five, six, and seven for failure to comply with Conn. Gen. Stat. § 46a-103 is denied.
The defendant also seeks the dismissal of the seventh count (sounding in retaliation) because the plaintiff did not bring the claim within ninety (90) days of obtaining the release from the Commission. According to the defendant, this defect deprives the court of jurisdiction. It is undisputed that this count was not brought within the ninety-day period prescribed by Conn. Gen. Stat. § 46a-101(e). The plaintiff instead resists the motion to dismiss by asserting that the court still has jurisdiction because the cause of action is reasonably related to the original complaint and therefore relates back to the original complaint. The court agrees with the plaintiff on this claim as well.
There are two reported cases of note on this issue, both of which were discussed in the parties' briefs. The case supporting the defendant's view is Barton v. Connex International, Inc., 1997 Conn.Super. LEXIS 1070 (Apr. 23, 1997) (Stodolink, J.). In Barton, on remarkably similar procedural facts as to the issue at hand, the plaintiff had brought a case of action for violation of Conn. Gen. Stat. § 46a-100 and then sought to amend her complaint to add a count of retaliation more than 90 days following the CHRO `right to sue' letter. After quoting our Supreme Court for the proposition that "[o]ur jurisdiction generally follows a liberal policy in allowing amendments to complaints," Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987), the Barton court went on to hold that the claim of retaliation was outside the jurisdictional time limit, without analyzing whether the claim of retaliation was sheltered by the relation back doctrine Id." *6. The failure of the Barton court to consider and analyze the relation-back doctrine limits its value as persuasive precedent in the present case.
This court concludes that the analysis and reasoning employed by the Second Circuit court in Malarkey v. Texaco, Inc., 983 F.2d 1204 (2nd Cir. 1993) is more persuasive in deciding the circumstances of the facts at hand. In Malarkey, several years after the plaintiff had received her `right to sue' notice, and several years after bringing her action sounding in age and gender discrimination and intentional infliction of emotional distress, the plaintiff sought to amend her complaint to add a complaint for retaliation (by way of denial of promotion). The court considered whether the relation back doctrine would excuse the plaintiff from first returning to the EEOC before filing the new cause of action. The court concluded that, "a complaint alleging employer retaliation against an employee who has opposed discrimination may be considered reasonably related to allegations already raised with the EEOC." (Internal quotation marks and citations omitted.) Malarkey v. Texaco, Inc., supra, 983 F.3d 1208. While the analysis in Malarkey is not binding on this court, its circumstances are sufficiently analogous to be instructive.
In the present case, the plaintiff's complaint is that the defendant retaliated against her assertions of discriminatory treatment then terminated her shortly after her filing of a grievance alleging discriminatory treatment based on her national origin and gender. The court must determine if these allegations "relate back" to the original allegations of the plaintiff's complaint.
The relation back doctrine is well developed in Connecticut. "An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action." Jonap v. Silver, 1 Conn.App. 550, 555, 474 A.2d 800 (1984). "While an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations. Further, if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted. Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989)." Kaye v. Manchester, 20 Conn.App. 439, 444, 568 A.2d 459 (1990).
In order, then, to determine whether or not the retaliation count states a new cause of action within the meaning of the relation back doctrine, an analysis of the facts alleged in the original complaint must be made. In the statement of facts set forth in her complaint before the counts of specific legal causes of action, at paragraphs 48 and thereafter, the plaintiff asserts that her termination was in retaliation for her pursuit of the grievance process as to hostile and adverse treatment based upon her gender and national origin. "A cause of action is that single group of fact which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778; Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389. `A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.' Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725 . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same." Giglio v. Connecticut Light Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980).
In support of her additional legal claim of retaliation, the plaintiff relies upon the same single group of facts that she had alleged in her original complaint. "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). Because the same core facts alleged by the plaintiff in support of the original complaint are also the facts alleged in support of count seven for retaliation, the court finds that the defendant cannot claim that it was not on notice as to the factual circumstances of the claim; its preparation of a defense and its preservation of evidence as to the original claims necessarily involved the facts supporting this claim. Accordingly, the application of the relation back doctrine does not strip the defendant of the protection it would otherwise have been entitled to assert and seek if new facts in support of the claim were alleged. In this instance the assertion of the new count of retaliation is similar to the long line of trial court cases that have allowed the relation back doctrine to apply where alternate grounds of negligence have been sought on the same core facts of a case.
The defendant's motion to dismiss counts five, six and seven of the plaintiff's amended complaint dated November 1, 2005 is denied.