Opinion
No. 4003794
August 3, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 120)
The plaintiff, Victor Wright, by way of amended complaint dated February 2, 2006, brings this one-count complaint against the defendant, Paul Eccard, alleging retaliatory discrimination in violation of General Statutes § 46a-60(a)(4), the Connecticut Fair Employment Practices Act (CFEPA). Specifically, the plaintiff alleges that his employment with the Waterford Police Department was terminated in retaliation for his complaints regarding an uneven distribution of shift allocation amongst community service officers.
General Statutes § 46a-60(a) provides: "It shall be a discriminatory practice in violation of this section . . . (4) For 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 or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
On March 9, 2006, the defendant filed a motion to dismiss accompanied by a memorandum of law in support. The defendant moves to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over this action because the plaintiff failed to exhaust his administrative remedies. In response, on March 16, 2006, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. The matter was heard at short calendar on April 10, 2006.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . ." (Emphasis added; internal quotation marks omitted.) Broadnax v. City of New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
In his memorandum in opposition to the motion to strike, the plaintiff argues that the defendant's motion to dismiss must be denied because the motion was not filed within thirty days of filing the original appearance. This argument is without merit. A claim that the court lacks subject matter jurisdiction cannot be waived and can be raised at any stage in the proceedings. See Broadnax v. City of New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
"[B]ecause 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.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 812 A.2d. 725 (2003). "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." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes." (Internal quotation marks omitted.) D'Agostino v. Housing Authority, 95 Conn.App. 834, 898 A.2d 228 (2006), citing Labbe v. Pension Commission, 229 Conn. 801, 811, 643 A.2d 1268 (1994).
In the present case, the defendant argues in his motion to dismiss that the plaintiff's failure to obtain a release to sue from the Connecticut Commission on Human Rights and Opportunities (CHRO) deprives this court of subject matter jurisdiction to consider the claim. "Generally, [w]hen a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the [administrative] appeal was designed to test . . . However, a plaintiff is not required to [r[esort to administrative remedies . . . when the administrative remedy is clearly inadequate . . . An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." (Citations omitted; internal quotation marks omitted.) Brightly v. Abbott Terrance Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 98 0148584 (February 27, 2001, Rogers, J.) ( 29 Conn. L. Rptr. 102, 103). The CHRO is without authority to award a prevailing party attorneys fees, costs, punitive or compensatory damages or damages for emotional distress. See Bridgeport Hospital v. Commission on Human Rights and Opportunities, 232 Conn. 91, 102, 111, 653 A.2d 782 (1995); see also Delvecchio v. Griggs Browne Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 99 0118659 (April 17, 2000; Hurley, J.T.R.) ( 27 Conn. L. Rptr. 89).
"Sections 46a-100 and 46a-101 of the General Statutes set forth the administrative route a plaintiff must follow when alleging a discrimination claim under General Statutes § 46a-60." St. Germaine v. Ensign-Bickford Co., Superior Court, judicial district of Hartford, Docket No. CV 539310 (July 11, 1997, Hale, J.) ( 20 Conn. L. Rptr. 232, 233). "If a plaintiff fails to follow the administrative route that the legislature has prescribed for . . . [claims] of discrimination, [that plaintiff] lacks the statutory authority to pursue that claim in the Superior Court." Brightly v. Abbott Terrance Health Center, Inc., supra, 29 Conn. L. Rptr. 103. In Brightly, the court granted the defendant's motion to dismiss holding that "§§ 46a-100 and 46a-101(a) are mandatory and require the plaintiff to obtain a release from the CHRO prior to initiating a private cause of action under CFEPA." Id., 104. See also Calinescu v. Pegasus Management Company, Superior Court, judicial district of Meriden, Docket No. CV 98 262742 (December 30, 1998, Beach, J.) ( 23 Conn. L. Rptr. 605, 607-08) (where the court granted the defendant's motion to dismiss concluding that the release to sue requirements set forth in §§ 46a-100 and 46a-101 are mandatory).
General Statutes § 46a-100 provides: "Any person who has timely filed a complaint with the [CHRO] in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford."
General Statutes § 46a-101 provides in relevant part: "(a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section."
In the present case, there is no allegation in the complaint that any administrative remedies were pursued under the CFEPA or that the plaintiff secured a right to sue letter from the CHRO. Furthermore, because there is no prayer for relief attached to the plaintiff's amended complaint, the court does not know what relief the plaintiff seeks. Inasmuch as the plaintiff's complaint asserts a claim for retaliatory discrimination in violation of CFEPA, count one of the plaintiff's complaint must be dismissed for failure to exhaust administrative remedies. Accordingly, the defendant's motion to dismiss is granted.