Opinion
No. CV 09-5031646 S
January 28, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#103)
PROCEDURAL AND FACTUAL BACKGROUND
On September 8, 2009, the plaintiff, Gifford Roberts, filed a two-count complaint against the defendant, Area Cooperative Educational Services. The action arises out of the defendant's decision to terminate the plaintiff's employment with its organization on February 19, 2009. In count one, the plaintiff alleges that the defendant violated the Connecticut Family and Medical Leave Act, General Statutes § 31-51nn, by terminating the plaintiff's employment while he was on medical leave. In count two, the plaintiff alleges that the defendant violated General Statutes § 31-290a by firing him in retaliation for filing a workers' compensation claim.
On November 23, 2009, the defendant filed a motion to dismiss count one of the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the claim because the plaintiff failed to exhaust administrative remedies. The defendant filed a memorandum of law in support of his motion. The plaintiff did not file a brief in opposition to the defendant's motion. This matter was heard at short calendar on December 14, 2009, at which time the plaintiff failed to appear for argument on the motion.
Practice Book § 10-31(b) provides that "[a]ny adverse party who objects to . . . [the motion to dismiss] shall, at least five days before the motion is to be considered on the short calendar, file and serve . . . a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." The Supreme Court, however, has determined that "a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion [to dismiss]." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 12-13 n. 1, 578 A.2d 646 (1990). Further, in most cases, the Superior Court has used its discretion to reach the merits of the motion, rather than granting the motion solely on the basis that a party failed to comply with § 10-31(b). See, e.g., Whiting Mills, LLC v. Van Inwagen, Superior Court, judicial district of Litchfield, Docket No. CV 1810669 (November 22, 2006, Marano, J.) (court reached merits of substantive argument even though plaintiff failed to file memorandum of law in opposition to defendant's motion to dismiss); Foley v. Schemes, Superior Court, judicial district of Litchfield, Docket No. CV 04 4000361 (December 14, 2004, Brunetti, J.) (same); Bostick v. Willimantic, Superior Court, judicial district of Windham, Docket No. CV 01 0065265 (January 29, 2002, Potter, J.) (same); Bove v. Bove, Superior Court, judicial district of Windham, Docket No. CV 064139 (November 7, 2000, Foley, J.) (court considered merits of defendants motion to dismiss where plaintiff did not file objection to motion and did not appear at short calendar when motion was argued).
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "When a [trial] 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." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Further, it is "[t]he plaintiff [who] bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
In support of its motion to dismiss, the defendant argues that this court is the wrong forum for the plaintiff to pursue an action for a violation of the Connecticut Family and Medical Leave Act. The defendant argues that the plaintiff should have filed a complaint with the state Department of Labor pursuant to § 31-51qq-43 of the Regulations of Connecticut State Agencies, and that the plaintiff's failure to exhaust administrative remedies denies this court subject matter jurisdiction over count one. Further, the defendant argues that the court should dismiss count one on the ground that any remedy the plaintiff could have sought pursuant to General Statutes § 31-51nn is barred by the one hundred eighty-day statute of limitations set forth in § 31-51qq-43(c) of the Regulations of Connecticut State Agencies.
"Under [the exhaustion 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.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). "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.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004).
The issue of whether the Connecticut Family and Medical Leave Act requires an aggrieved employee to exhaust administrative remedies before filing a complaint in the Superior Court has not been previously addressed by Connecticut courts. Accordingly, this court begins its analysis by applying the principle that "[w]here a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the [exhaustion] doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Internal quotation marks omitted.) BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 123, 826 A.2d 1109 (2003).
While Connecticut state courts have not determined whether an aggrieved employee must exhaust administrative remedies before initiating a judicial proceeding, the United States District Court of Connecticut rendered a decision on this exact issue in Persky v. Cendant Corp., 114 F.Sup.2d 105 (D.Conn. 2000). In Persky v. Cendant Corp., supra, 114 F.Sup.2d 108, the court held that "the [p]laintiff must exhaust her administrative remedies under . . . [the Connecticut Family and Medical Leave Act] before bringing a direct cause of action to . . . [the] Court[s]." This court finds the District Court's analysis in Persky to be well reasoned and instructive.
"In April 1996, the Connecticut Legislature mandated that the Labor Commissioner adopt regulations, in accordance with the Uniform Administrative Procedures Act, to establish procedures and guidelines necessary to implement the provisions of the CFMLA including, but not limited to, procedures for hearings and redress, including restoration and restitution, for an employee who believes that his or her employer is violating the CFMLA." Persky v. Cendant Corp., 114 F.Sup.2d 105, 106 (D.Conn. 2000). "In adopting such regulations, the commissioner shall make reasonable efforts to ensure compatibility of state regulatory provisions with similar provisions of the federal Family and Medical Leave Act of 1993 and the regulations promulgated pursuant to said act." General Statutes § 31-51qq.
The adopted regulations provide in relevant part that "[a]ny employee . . . may file a complaint with the Labor Department if he believes that . . . his employer discharged or caused to be discharged, or in any manner discriminated against such employee . . ., because such employee has exercised the rights afforded to such employee under the Act." Regs., Conn. State Agencies § 31-51qq-43(a)(2). An analysis of the regulations demonstrates that the legislature intended to adopt the exhaustion requirement for claims brought under the Connecticut Family and Medical Leave Act. First, as the court in Persky v. Cendant Corp., supra, 114 F.Sup.2d 107, noted: "Had the legislature wanted to create a new, substantive, direct cause of action for Connecticut employees, the legislation [should] have so stated, as does the [federal] FMLA. The right is too important to be left unsaid and to be established by a court instead of the legislature." Furthermore, the use of the word "may" in the regulation means that "the employee `may' use the administrative process if [he] so chooses, but `may' elect to take no action if [he] so wishes." Id. It does not mean that one may use the administrative process or may, in the alternative, initiate a judicial proceeding. Id.
Moreover, the regulations adopted by the commissioner in §§ 31-51qq-43 through 31-51qq-47 of the Regulations of Connecticut State Agencies supply a sweeping or comprehensive "administrative scheme . . . that . . . provides a claimant the full panoply of rights and remedies [under the Act]." Id. "The Labor Commissioner has a broad range of remedies to offer a claimant, including restoration of rights and benefits, reinstatement, back pay and other monetary compensation for any loss which was a direct result of a violation of . . . [the Act]. This range of remedies is further confirmation that exhaustion of administrative remedies is required under the . . . [Act] prior to judicial action being initiated." Id. Further, it is "the Labor Department [who] is fully equipped with the expertise to adjudicate a claim under . . . [the Act] in the first instance, as it is responsible for such legislation, and has a full array of remedies to order." Id. Accordingly, this court adopts the holding in Persky and concludes that the Connecticut Family and Medical Leave Act requires the exhaustion of available administrative remedies before an aggrieved employee may seek judicial action.
In the present case, the plaintiff has not produced evidence demonstrating that he filed a complaint with the Department of Labor or that he otherwise exhausted available administrative procedures prior to filing this action. Therefore, the plaintiff has not met his burden of proving that this court has subject matter jurisdiction over his claim. Because "a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could have been provided through an administrative proceeding"; Garcia v. Hartford, supra, 292 Conn. 339; the court therefore grants the defendant's motion to dismiss count one of the plaintiff's complaint.
Because the court has granted the defendant's motion to dismiss count one on the ground that the plaintiff has failed to exhaust administrative remedies, it is not necessary for this court to address the defendant's argument that any remedy the plaintiff could have sought pursuant to General Statutes § 31-51nn is barred by the one hundred eighty-day statute of limitations set forth in § 31-51qq-43(c) of the Regulations of Connecticut State Agencies.