Opinion
FBTCV156053873
03-08-2017
Celeste Robitaille v. Town of Stratford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
Michael P. Kamp, J.
The issue before the court is the defendants' motion to dismiss the plaintiff's amended complaint, alleging discrimination, retaliation, and harassment based on her sex and sexual orientation, on the ground that the plaintiff has failed to exhaust her administrative remedies. For the reasons set forth below the defendants' motion is denied.
FACTS
The plaintiff, Celeste Robitaille, filed the three-count amended complaint in this action on January 21, 2016. The defendants in the present action are the Town of Stratford (the town), and Captain Francis Proudfoot (Proudfoot), who is alleged to have been the plaintiff's supervisor at all times relevant to the present case.
In count one of the amended complaint, the plaintiff alleges the following facts. The town has employed the plaintiff, who self-identifies as a female and a lesbian, in the Stratford Police Department (the department) for over twenty years, most recently as a decorated lieutenant. The plaintiff's sexual orientation and her marriage to another female officer is common knowledge in the department. The plaintiff is 5 feet, 4 inches tall and weighs 155 pounds. Proudfoot, who identifies as a male and a heterosexual, is 6 feet, 2 inches tall and weighs more than 220 pounds. The town discriminated against the plaintiff on the basis of her gender and sexual orientation, in violation of General Statutes § 46a-60(a)(1), in the following ways: (1) failing to submit documentation concerning a work-related injury the plaintiff suffered in a timely manner, which prevented her from continuing to receive medical treatment; (2) diminishing the plaintiff's role during an award ceremony at which she was honored, and inflating her male counterpart's role; (3) when Proudfoot confronted the plaintiff in her office about the award ceremony, he blocked the door, forcing the plaintiff to " 'squeeze[e]' around the taller, much heavier, Proudfoot" in order to leave the room, and when the plaintiff disputed Proudfoot's account of the award ceremony, he said, " [n] ow I have you on insubordination"; (4) issuing the plaintiff a verbal warning after Proudfoot charged her with insubordination; (5) Proudfoot treated the plaintiff differently than male officers when he charged her with insubordination, because male officers had been involved in similar interactions without such discipline; (6) agents of the town were informed about Proudfoot's discriminatory treatment by the plaintiff; and (7) the town did nothing to stop Proudfoot's conduct.
General Statutes § 46a-60(a)(1) provides in relevant part: " It shall be a discriminatory practice . . . [f]or an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . sex, gender identity or expression . . ."
In count two of the amended complaint, the plaintiff repeats the allegations concerning her own identity and stature, as well as Proudfoot's gender, sexual orientation, supervisory capacity, and size. She then re-alleges the first five instances of discriminatory conduct described in the preceding paragraph, adding allegations that it was Proudfoot, specifically, who failed to submit the documentation concerning the plaintiff's injury and diminished her role during the award ceremony. The plaintiff alleges that Proudfoot aided and abetted the town in its discrimination, in violation of General Statutes § 46a-60(a)(5).
General Statutes § 46a-60(a)(5) provides in relevant part: " It shall be a discriminatory practice . . . [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so."
Count three of the amended complaint states a claim for retaliation against the town, pursuant to General Statutes § 46a-60(a)(4). The plaintiff alleges that after she filed a complaint with the Commission on Human Rights and Opportunities (CHRO) on November 3, 2014, the town retaliated in the following ways: (1) attempting to prevent the plaintiff's promotion in January of 2015 by causing the eligibility list to expire earlier than warranted; (2) requiring the plaintiff, and no other patrol lieutenant, to attend a dayshift staff meeting on March 5, 2015, to explain what had occurred during the night shift; (3) denying the plaintiff " death in family" days after the death of her brother-in-law on June 12, 2015, and instead requiring her to take vacation time; and (4) passing over the plaintiff for the position of detective lieutenant in favor of a male lieutenant, despite the plaintiff's seniority.
General Statutes § 46a-60(a)(4) provides in relevant part: " It shall be a discriminatory practice . . . [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint . . ."
On February 2, 2016, the defendants filed a motion to dismiss the amended complaint on the ground that the plaintiff has failed to exhaust her administrative remedies, depriving this court of subject matter jurisdiction. The motion is accompanied by a memorandum of law as well as four exhibits: the affidavit the plaintiff submitted to the CHRO on October 31, 2014, along with the final page of the CHRO complaint form; the plaintiff's first amended complaint affidavit with attached record of counseling from the department, submitted to the CHRO on November 10, 2014; a release of jurisdiction from the CHRO, dated October 15, 2015, and the plaintiff's initial complaint to the Superior Court, dated December 2, 2015, and; an image of the plaintiff's counsel's website, dated February 2, 2016. The plaintiff filed a memorandum of law in opposition on April 13, 2016. The parties were heard at short calendar on November 14, 2016.
DISCUSSION
" 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). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
" If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
The defendants argue that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies. Specifically, the defendants contend that because Proudfoot was the only named respondent at the CHRO, the court lacks jurisdiction over counts one and three, which are directed against the town. The defendants argue that the identity of interests exception to the exhaustion requirement is unavailable in the present case, as counsel represented the plaintiff when she filed her complaint at the CHRO. The defendants further argue that the court should not apply this exception because the plaintiff's counsel specializes in employment law, and the intentional decision to name only Proudfoot should prevent the plaintiff from now pursuing an action against the town. In the alternative, the defendants contend that the allegations of retaliation in count three that post-date the CHRO are barred. The defendants also maintain that the court lacks jurisdiction over count two, because the theory of liability alleged, aiding and abetting, was not brought before the CHRO, and indeed could not have been considered, given that there was only one named respondent.
At short calendar, the defendant also argued that the identity of interests exception cannot save the present action because the interests of Proudfoot and the town are not identical, and because the town did not misrepresent its relationship with the plaintiff.
For the first time at short calendar, the defendants indicated that count three was not brought within ninety days of the CHRO's release, in violation of General Statutes § 46a-101(e). " Matters inadequately briefed fail or are considered abandoned . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Citations omitted; internal quotation marks omitted.) Mastej v. Lambert, Superior Court, judicial district of New Haven, Docket No. CV-05-4012607-S, (November 30, 2007, Silbert, J.). This court need not consider this argument in deciding the present motion.
In response, the plaintiff argues that the identity of interests exception saves the claims directed against the town, and also that another exception-the reasonably related exception-saves count two. With regard to the claims against the town, the plaintiff argues that whether counsel represented the plaintiff at the CHRO is not a threshold requirement for the identity of interests exception, and that the factors used to determine the applicability of the exception weigh in her favor. Additionally, the plaintiff contends that the reasonably related exception saves count two because the allegations concerning aiding and abetting would fall within the scope of the CHRO investigation, and could be expected to grow out of the discrimination claim.
" The provisions of . . . CFEPA that prohibit discriminatory employment practices . . . must be read in conjunction with the act's provisions for the filing of complaints concerning alleged discriminatory practices with the [commission]." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 745, 84 A.3d 895 (2014). " If a party has filed a timely complaint with the commission and has obtained a release of jurisdiction, General Statutes § 46a-100 allows that party to file an action directly with the Superior Court without a ruling from the commission . . . Read in its entirety . . . CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the commission. It is the commission that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination." (Internal quotation marks omitted.) Id., 746. " [A] plaintiff who fail[s] to follow the administrative route that the legislature has prescribed for [her] claim of discrimination . . . lacks the statutory authority to pursue that claim in the Superior Court . . ." (Internal quotation marks omitted.) Id., 747.
" Notwithstanding the important public policy considerations underlying the exhaustion requirement, this court has carved out several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes." (Citation omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009). " [The reasonably related] exception . . . confers subject matter jurisdiction over claims not expressly asserted in an administrative proceeding . . . Where a plaintiff brings an action against a party who was not named as a respondent in the administrative proceeding, the identity of interests exception applies." (Citation omitted; emphasis in original.) Patrick v. Groton, Superior Court, judicial district of New London, Docket No. CV-14-6022681-S (August 14, 2015, Cole-Chu, J.) [60 Conn.L.Rptr. 803, ].
Moreover, " Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws . . . Thus, in defining the contours of an employer's duties under antidiscrimination laws . . . we have looked for guidance to federal case law." (Citations omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 689-90, 41 A.3d 1013 (2012).
Counts One and Three: The Identity of Interests Exception
In Malasky v. Metal Products Corp., 44 Conn.App. 446, 689 A.2d 1145 (1997), the Appellate Court adopted the so-called " identity of interests" exception. " The purpose of [the] exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of [the employment discrimination statute] . . . A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the [administrative] complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied . . . Specifically, the factors to be considered under this exception are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the [administrative] complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the [administrative] proceedings; 3) whether its absence from the [administrative] proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party." (Internal quotation marks omitted.) Malasky v. Metal Products Corp., supra, 453-54. " Finally . . . we consider the fact that the plaintiff was not represented by counsel at the time she filed the complaint with the CHRO." Id., 455-56.
In the present case, the initial question is whether this exception may be applied, because counsel represented the plaintiff when she filed the CHRO complaint: The court in Malasky considered the question of representation as a final, rather than threshold, factor to consider. Malasky v. Metal Products Corp., supra, 44 Conn.App. 455-56. In the absence of binding authority, recent Superior Court decisions have viewed the question of the plaintiff's representation as a non-determinative issue. See Garcia v. Charter Oak's Favorite Chicken, LLC, Superior Court, judicial district of Hartford, Docket No. CV-14-6055552-S, (September 9, 2015, Peck J.); Churchill v. Farmington Woods Master Assn., Inc., Superior Court, judicial district of New Britain, Docket No. CV-11-6010999-S (March 27, 2014, Gleeson, J.) [57 Conn.L.Rptr. 837, ]; Bjorlin v. MacArthur Equities, Ltd., Superior Court, judicial district of Fairfield, Docket No. CV-116021296-S, (December 11, 2014, Bellis, J.). This court finds this approach persuasive. Accordingly, the plaintiff's representation at the CHRO is a significant, but not disqualifying, factor.
Of the four main factors laid out in Malasky, only the second and the fourth are in dispute in the present case; the parties agree that the first factor favors the defendants, and that the third favors the plaintiff. Given the relationship between Proudfoot and the town, the second factor appears to be neutral, if slightly in favor of the plaintiff. See Churchill v. Farmington Woods Master Assn., Inc., supra, Superior Court, Docket No. CV-11-6010999-S, (" [I]f the plaintiff's allegations were proven true in the CHRO proceeding, a conciliation agreement might have required [the employer] to take steps to ensure that [the agent's] conduct did not recur, which might have included disciplining or removing [the agent] . . . Therefore, this [second] factor is, at best, neutral and not dispositive"). The fourth factor, however, appears to favor the defendants, as there is nothing to indicate that the plaintiff, who was represented by counsel when she filed her complaint with the CHRO, was confused or misinformed about her relationship with the town. See Valle v. Riko's Norwalk, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-14-6024003-S, (June 1, 2015, Povodator, J.).
Importantly, the " underlying dual purposes of the exhaustion requirement"; Malasky v. Metal Products Corp., supra, 44 Conn.App. 453; are met in the present case. The town had actual notice of the plaintiff's CHRO complaint, and indeed, the release of jurisdiction lists the department as the respondent. Although it is admittedly a close determination, in view of the fact that the purposes underlying exhaustion are satisfied in the present case, and in consideration of the other factors favoring the plaintiff, the identity of interests exception applies to the present case, and the court has jurisdiction to hear claims brought against the town.
At short calendar, the defendants conceded that for the purpose of this motion, the town and department could be considered one entity, as neither the town nor the department were named in the CHRO complaint.
Counts Two and Three: The Reasonably Related Exception
" There are three types of claims that courts will find are 'reasonably related' to the ones asserted in an administrative filing: (1) claims where the conduct complained of would fall within the scope of the administrative investigation; (2) claims alleging retaliation by an employer against an employee for filing an administrative charge; and (3) claims where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the administrative charge." Zawacki v. Realogy Corp., 628 F.Supp.2d 274, 283 (D.Conn. 2009); see also Williams v. New York City Housing Authority, 458 F.3d 67, 70 and n.1 (2d Cir. 2006) (per curiam).
As for the first type, " a claim is considered reasonably related if the conduct complained of would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge that was made . . . In this inquiry, the focus should be on the factual allegations made in the [administrative] charge itself, describing the discriminatory conduct about which a plaintiff is grieving." (Internal quotation marks omitted.) Ware v. State, 118 Conn.App. 65, 82-83, 983 A.2d 853 (2009). " The central question is whether the complaint filed with the commission gave that agency adequate notice to investigate discrimination claimed in the present action." Id., 85.
In Williams v. New York City Housing Authority, supra, the court found that the plaintiff's gender discrimination claims were reasonably related to her retaliation claims. The court noted that although the plaintiff's claims " represent very different theories of liability . . . we conclude that these specific factual allegations put the EEOC on notice that, in addition to a retaliation claim, a gender discrimination claim may also exist. For that reason, because the factual underpinnings of a gender discrimination claim were presented in the complaint made to the EEOC, it was error to dismiss [the plaintiff's] claim for failure to exhaust her administrative remedies." (Citation omitted; internal quotation marks omitted.) Id., 71; accord Finn v. Shelton, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-14-6016875-S, (December 18, 2015, Hiller, J.T.R.) (aiding and abetting claims not explicitly raised before CHRO reasonably related to administrative complaint); Resnick v. United Public Service Employees Union, Superior Court, judicial district of Middlesex, Docket No. CV-13-6009166-S (October 23, 2013, Domnarski, J.) [57 Conn.L.Rptr. 89, ] (aiding and abetting reasonably related to sex discrimination and retaliation claims).
With regard to " claims alleging retaliation by an employer against an employee for filing an administrative charge"; Zawacki v. Realogy Corp., supra, 628 F.Supp.2d 283; " [The Second Circuit has] held repeatedly 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 . . . The reasonably related rule has been broadly construed to allow judicial redress for most retaliatory acts arising subsequent to an EEOC filing; at the same time we have cautioned that this standard is not to be read as granting an open season for litigating any sort of discrimination claim against the employer." (Citations omitted.) Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208-09 (2d Cir. 1993) (where plaintiff's retaliation claims were brought with unexplained delay that unfairly prejudiced defendant, retaliation claims not reasonably related). Nevertheless, " adverse employment action taken in retaliation ordinarily is deemed reasonably related to the original complaint." Id., 1209.
Furthermore, " [w]e see no reason why a retaliation claim must arise before administrative proceedings terminate in order to be reasonably related. Instead, the rule is that a claim must arise only after the EEOC complaint has been filed." Malarkey v. Texaco, Inc., supra, 983 F.2d 1209; compare Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 687 n.4 (2d Cir. 2001) (retaliation claim reasonably related to dismissed administrative complaint), and Zawacki v. Realogy Corp., supra, 628 F.Supp.2d 284 (exception does not apply to retaliation claim based on act that occurred before plaintiff filed administrative complaint).
In the present case, the plaintiff's aiding and abetting claim is reasonably related to the claims brought before the CHRO. Apart from the final allegation, which alleges generally that Proudfoot treated the plaintiff differently than male officers, the allegations in count two correspond directly to the factual allegations the plaintiff made in her administrative complaint; specifically, paragraphs five, seven, eight, ten, and twelve of the plaintiff's affidavit to the CHRO set forth the facts underlying the aiding and abetting claim. The defendants rely on a pair of Superior Court decisions- Forgione v. Skybox Lounge, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6050777-S, (November 10, 2015, Nazzaro, J.) and Ruggerio v. BJ's Wholesale Club, Inc., Superior Court, judicial district of Hartford, Docket No. CV-04-0834932, (February 21, 2008, Wagner, J.T.R.)-to argue that aiding and abetting must be specifically pleaded before the CHRO. Neither case, however, addresses the reasonably related exception to the exhaustion requirement. Although aiding and abetting was not specifically pleaded as a theory of liability at the CHRO, the plaintiff described the allegations pleaded in count two in her administrative complaint. Accordingly, the plaintiff cannot be said to have failed to exhaust her administrative remedies with regard to count two, because the claim for aiding and abetting is reasonably related to the discriminatory claims raised in her administrative complaint.
The allegations of retaliation in count three are also reasonably related to the plaintiff's administrative charges. The plaintiff's amended complaint alleges that after she filed her complaint with the CHRO on November 3, 2014, she was retaliated against by the town. As the factual allegations underlying count three arose after the plaintiff filed her administrative complaint, and there is no indication that the claims unfairly prejudice the defendants, the plaintiff's retaliation claim is reasonably related to her administrative complaint.
CONCLUSION
For the foregoing reasons the defendants' motion to dismiss is denied.