Opinion
No. CV-06-4023567S
January 16, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
Plaintiff has commenced this action against the State of Connecticut for wrongful termination of employment. Plaintiff was transferred on July 23, 2004 as a state employee from the Department of Children and Families to the Judicial Branch. Her employment was terminated on April 8, 2005.
The Plaintiff has brought this action in three counts. Count one alleges violation of Conn. Gen. Stat. §§ 5-196, 5-236 and 5-239. The claims in this count are essentially that the plaintiff was wrongfully treated as a temporary employee and not as a permanent employee who occupied a permanent position; that the defendant has wrongfully failed to return the plaintiff to her former position and has refused to place her on the re-employment list or, rehire her. These violations, according to the plaintiff, created an intimidating, oppressive, hostile and offensive work environment and failed to protect plaintiff from discrimination and retaliation, all of which caused the plaintiff to suffer pain and suffering and emotional distress.
Count two alleges a violation of Conn. Gen. Stat. § 46a-60 claiming that the plaintiff was subjected to discrimination and retaliation, thereby suffering pain and extreme mental anguish.
Count three alleges a breach by the defendant of an Implied Contract and an Implied Covenant of Good Faith and Fair Dealing.
The defendant has moved to dismiss the complaint by motion dated September 20, 2006 primarily claiming sovereign immunity as a defense.
STANDARD OF REVIEW
"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." CT Page 912 Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). The court must consider the allegations of the complaint in their most favorable light. Kozlowski v. Commissioner of Transportation, 247 Conn. 497, 501 (2005). "The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Novicki v. New Haven, 47 Conn.App. 734, 738-39 (1998); Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93 (1996). Because the doctrine of sovereign immunity implicates subject matter jurisdiction and is a basis for dismissal, Amore v. Frankel, 228 Conn. 358, 364 (1994), once brought to the attention of the court, regardless of the form of the motion, the court must act upon it. Cahill v. Board of Education, 198 Conn. 229, 238 (1985). "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it `can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.' " Baldwin Piano and Organ Company v. Vincent Blake et al., 186 Conn. 295, 297 (1982). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings." Brunswick v. Inland Wetlands Comm'n, 222 Conn. 541, 549, 610 A.2d 1260 (1990). Exhaustion of administrative remedies implicates subject matter jurisdiction, which must be decided as a threshold matter. Flanagan v. CHRO, 54 Conn.App. 89, 91 (1999).
ISSUES AND FINDINGS 1. Count One
The defendant claims that the Connecticut Supreme Court has recognized only two exceptions to sovereign immunity as a defense. They are (1) where 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 acted in excess of statutory authority or pursuant to an unconstitutional statute. However, in considering 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, in this case the plaintiff. See Lawton v. Weiner, 91 Conn.App. 698, 705 (2005).
The defendant is not entitled to sovereign immunity if it exceeds its statutory authority.
Conn. Gen. Stat. § 5-196(20)-(21) define permanent employee and permanent position as being in excess of six months of employment in the same position. The plaintiff was employed by the Judicial Branch from July 23, 2004 to April 8, 2005, a period of approximately eight months. Defendant points to regulations of the Judicial Branch and the collective bargaining agreement as to a probationary period being nine months. However, the general statutes as identified preempt the regulations and the collective bargaining agreement. Conn. Gen. Stat. § 5-236 requires the placing of the plaintiff on a re-employment list.
By codifying these obligations by the defendant to state's employees, the legislature has waived sovereign immunity. As stated by the defendant in its brief, sovereign immunity is waived where the legislature either expressly or by force of a necessary implication statutorily waives the state's sovereign immunity. This Court finds that at least by necessary implication codifying these obligations is a waiver of the state's sovereign immunity. Further, the Court, in addition to the facts alleged, must take those facts necessarily implied from the allegations. By alleging that the defendant violated these statutes, the Court must and does find a necessary implication from those allegations that the state acted in excess of its statutory authority.
Accordingly, this Court finds that the defendant is not protected by sovereign immunity as to Count One. The motion to dismiss Count One is, therefore, denied.
2. Count Two
In count two the plaintiff alleges discrimination in employment in violation of Conn. Gen. Stat. § 46a-60. Plaintiff claims that the defendant treated the plaintiff, a pregnant employee, differently than it treated other employees and, therefore, discriminated and retaliated against the plaintiff. The defendant fits the definition of Employer set forth in Conn. Gen. Stat. § 46a-51(10). " `Employer' includes the state and all political subdivisions thereof and means any person or employer with three or more persons in such person's or employer's employ." Clearly, the defendant employs more than three persons and the definition specifically includes the State of Connecticut. Moreover, Conn. Gen. Stat. § 46a-60 prohibits discriminatory employment practices by employers which, of course, includes the defendant. The plaintiff has alleged discrimination under this statute. Sovereign immunity does not apply. In its motion to dismiss, the defendant also claims that the plaintiff did not exhaust her administrative remedies. However, it is alleged by the plaintiff and the record shows that the plaintiff went before the Commission on Human Rights and Opportunities (hereinafter also "CHRO") and obtained and was provided a release of jurisdiction by the CHRO. Therefore, administrative remedies were exhausted. Conn. Gen. Stat. § 46a-100 states in pertinent part that "any person who has obtained a release from the CHRO may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred . . . except any action involving a state agency . . . may be brought in the superior court for the judicial district of Hartford."
Accordingly, the motion to dismiss count two is denied.
3. Count Three
Count three alleges breach of implied contract and implied covenant of good faith and fair dealing by the defendant, further alleging that by allowing the plaintiff to be wrongfully terminated of her employment and in violating the aforementioned statutes, the defendant breached the covenant of good faith and fair dealing and breached the contract between the plaintiff and the defendant for employment. In her prayer for relief, the plaintiff requests, inter alia, the following: "That the Plaintiff be reinstated to former position or to any other position/promotion to which she would be entitled had she not been terminated." The Court construes this Prayer for Relief as seeking injunctive relief. In Krozser v. New Haven, 212 Conn. 415, 421 (1989), the Court stated, "In addition, the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief." Accordingly, the motion to dismiss Count Three is denied.
4.
The defendant also has moved to dismiss in the Prayer for Relief the punitive damages claim. However, Conn. Gen. Stat. § 46a-104 states in the case of a civil action for discriminatory practice as follows: "The Court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs." This language is sufficiently broad to include punitive damages. Accordingly, this claim in the motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied in its entirety.