Opinion
No. CV 08-4036611-S
December 11, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#102)
This is an action brought by the plaintiff, Jaime Sousa, against his former employer, Quest Diagnostics, Inc. ("Quest"), for money damages pursuant to General Statutes § 31-290. Section 31-290 prohibits an employer from discharging or discriminating against an employee who exercises his or her rights under the Workers' Compensation Act. Quest moves to dismiss the action on the grounds that (1) the plaintiff's prior election to bring this claim to the workers' compensation commission precludes him from bringing it in the Superior Court, and (2) the action is barred by the prior pending action doctrine. For the reasons set forth below, the motion to dismiss is granted.
General Statutes § 31-290a(a) provides in relevant part: "No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
FACTUAL AND PROCEDURAL BACKGROUND
The pleadings of the parties and the affidavits submitted in support and in opposition to this motion set forth the following facts. The plaintiff was employed as a courier by Quest from September 13, 2004 to March 30, 2006. On January 9, 2006, while working for Quest, the plaintiff slipped on ice while climbing off a delivery truck and injured his shoulder. Sometime thereafter, the plaintiff applied for and began receiving workers' compensation benefits pursuant to the Workers' Compensation Act.
On March 30, 2006, Quest terminated the plaintiff's employment. The following day, the plaintiff filed a claim with the workers' compensation commission, pursuant to General Statutes § 31-290a, alleging that Quest had fired him for exercising his rights to receive workers' compensation benefits. The plaintiff's claim provides in relevant part: "The reason I am writing you today is I feel that I was wrongfully terminated from my courier position at Quest Diagnostics . . . Since my injury I feel I've been mistreated, discriminated against and my character has been called into question." The following day, the plaintiff, representing himself before the commission, filed a request for an informal hearing on his claim.
On April 3, 2006, the commission assigned the plaintiff's discrimination complaint to the commission's eighth district for a hearing or other appropriate action. On September 1, 2006, Attorney Angelo Cicchiello filed an appearance on behalf of the plaintiff with the commission's eighth district. On November 3, 2006, counsel for the plaintiff requested that the informal hearing scheduled for the plaintiff's case, including his § 31-290a claim, be cancelled.
On December 31, 2007, the plaintiff and Quest entered into a "Full and Final Stipulation" of the plaintiff's workers' compensation case. Despite its label, however, the parties agreement explicitly provided that "[t]his stipulation excludes any claims under C.G.S. 31-290a, and the claimant reserves his right to pursue a 31-290a claim in the future." The agreement is silent as to what forum the plaintiff would prosecute his § 31-290a claim. As a result of this stipulation, the plaintiff's workers' compensation case was closed except for his § 31-290a claim, which remained pending with the commission's eighth district.
The plaintiff asserts that there is no § 31-290a claim pending before the commission. The court, as a factual matter, finds that the plaintiff's § 31-290a remains pending before the commission. First, there is no evidence in this record that the plaintiff has ever withdrawn his § 31-290a claim with the commission. In fact, the commission to this day still considers this claim to be pending. On July 8, 2008, the commission stated in a letter to the plaintiff's counsel that the "[31-290a] matter is still open."
On March 27, 2008, the plaintiff initiated this action in the Superior Court. The plaintiff's complaint alleges, in a single count, that Quest terminated his employment on account of his exercise of rights under the workers' compensation act in violation of § 31-290a.
On May 28, 2008, Quest filed this motion to dismiss claiming, among other things, that subsection (b) of § 31-290a requires that an employee seeking to bring a § 31-290a claim must select either the commission or the Superior Court to bring the claim and that once the plaintiff selects the forum he or she is prohibited from bringing it in the alternative forum.
On September 23, 2008, the court heard oral arguments on Quest's motion. Pursuant to Practice Book § 10-31, the court ordered the parties to submit, by October 14, 2008, affidavits regarding any facts relevant to the issues raised by Quest's motion. Both parties submitted affidavits in support of their respective positions.
STANDARD OF REVIEW
A motion to dismiss is properly used to claim lack of jurisdiction over the subject matter of the action. Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). In ruling on a motion to dismiss, the court may rely on affidavits to determine the jurisdictional issues and is not required to presume the validity of the allegations of the complaint. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
ANALYSIS
Section 31-290a(b) gives an employee the choice of two forums to bring a § 31-290a(a) claim: "Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court . . . or (2) file a complaint with the chairman of the Workers' Compensation Commission alleging violation of the provisions of subsection (a) of this section." Although there is no appellate authority extensively discussing this forum selection language, trial courts addressing this issue have almost universally concluded that the plain language of § 31-290a(b) requires an employee to select either the workers' compensation commission or the superior court when making a § 31-290a(a) claim. See, e.g., Ricketts v. Middlesex Hospital, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002634 (September 27, 2007, Holzberg, J.) (44 Conn. L. Rptr. 278); Hall v. Hebrew Home Hospital, Superior Court, judicial district of Hartford, Docket No. CV 04 0832534 (November 14, 2005, Miller, J.); Fortier v. CM Technology, Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 99233 (May 4, 1995, Hurley, J.).
In Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 710 n. 5, 708 A.2d 643, cert denied, 231 Conn. 908, 648 A.2d 151 (1994), the Appellate Court did state, without analysis, that § 31-290a "provides two alternative procedures under which an employee may commence a claim of wrongful discharge or discrimination. The employee may either bring an action in the Superior Court or file a complaint with the workers' compensation commission with the right to direct appeal to this court."
This court agrees with the defendant and the cases set forth above that plain language of § 31-290a(b) requires a plaintiff to select either the commission or the Superior Court to file his or her claim and that, having done so, may not then file a second action in the alternative forum. There is no language in subsection (b) that permits a plaintiff to revisit his or her decision as to which forum to file the claim in or otherwise provides any exception to the specific and clear forum selection language. It simply is not plausible that the legislature intended, by using the "either"/"or" language it employed in subsection (b) of § 31-290a, to permit a plaintiff to first file the claim in one forum and then subsequently file it in the other forum. The plaintiff's construction of the statute would needlessly promote the waste of precious judicial and/or administrative resources and the court will not construe a statute to yield such an absurd result. Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 728-29, 778 A.2d 899 (2001).
The plaintiff relies on one Superior Court decision; Dunn v. EAO Switch Corp., Superior Court, judicial district of Fairfield, Docket No. CV 97 339665 (November 12, 1997, Thim, J.); for the proposition that, even though he first elected to bring the claim at the commission, he may later file the same claim in the Superior Court. In Dunn, the court concluded that if the defendant fails to establish that it has materially changed its position in reliance on the plaintiff's original selection of a forum, the plaintiff is free to revisit its choice of forum. In reaching this conclusion, the court in Dunn relied on § 378 of the Restatement (Second) of Contracts, which establishes such a rule with respect to contractual forum selection clauses. The obligation to select a forum to pursue a § 31-290a claim, however, is not created by a contract but instead is imposed by statute, and the court is not empowered to read into the statutory language an exception that does not exist. Accordingly, the court in the present case does not find the Dunn decision persuasive and declines to follow it.
It is important to note that the plaintiff is not left without a remedy in this case. When the parties entered into a full and final stipulation of the underlying workers' compensation case, they expressly agreed that the plaintiff could continue to pursue his § 31-290a claim in the future. As noted above, his § 31-290a claim remains pending with the commission and he is free to pursue it there.
Accordingly, this action is dismissed.
In light of this conclusion, the court need not address the defendant's alternative claim regarding the prior pending action doctrine.