Opinion
No. CV-04-4004588 S
July 25, 2005
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS
In this case the plaintiff has moved to dismiss counts one and two of the four-count complaint. The court will briefly discuss the factual and procedural background to this case. The plaintiff, who is an African-American, was employed by the New Haven Fire Department. The defendant Union is a municipal labor organization organized under state law and the individual defendants are officials in that union. In January 2002, the plaintiff was charged with violating department regulations. The union investigated the matter and notified the plaintiff that it would not represent him during the fire department's investigation. The plaintiff was then discharged and the union did appeal his grievance to arbitration which allowed him to retain private counsel before the State Board of Medication and Arbitration.
In July 2002 the plaintiff filed suit in federal district court. The complaint alleged violations of 42 U.S.C. § 1983 of the federal Reconstruction Acts against the union and also violations of the duty of fair representation under the federal Labor Management Relations Act, 29 U.S.C. § 185(a) and § 5-271 of the Connecticut General Statutes. Both claims were dismissed in April 2003.
In November 2003 a second suit was filed in federal district court against the union and its officers. There, as in this case, the plaintiff alleged according to the defendants "the same causes of action as alleged in the instant case: discriminatory treatment based upon his race (violation of 42 U.S.C. § 1981)." He also alleged violations of the duty of fair representation, breach of the covenant of good faith and fair dealing, intentional and negligent infliction of emotional distress. The district court granted the defendants' motion to dismiss based on res judicata.
The present complaint in state court alleges that as a result of the investigation of alleged violation of departmental regulations, the plaintiff had to appear "before the Board of Fire Commissioners concerning this investigation and was promptly thereafter terminated. Following his termination, the plaintiff appeared before the Connecticut Board of Mediation and Arbitration to contest the termination, as well as an unemployment arbitrator" (¶ 9). Paragraph 10 goes on to allege that the union refused to represent the plaintiff at any of these proceedings and therefore he had to retain his own lawyer. Ensuing paragraphs allege that the union had a duty to provide the plaintiff with representation which they failed to comply with since he was a dues paying member of the union in good standing.
Paragraphs 17, 18, 19 and 20 set forth the alleged motivation of the defendants in acting in the way they are alleged to have done and the basis therefore of the claim made in the first count (which is not described or characterized by the plaintiff) and the second count which relies on the first count's factual allegations and is styled as a "Breach of Implied Covenant." These referenced paragraphs state the following:
17. The acts or inaction of the agents, servants and/or employees of the defendant, as well as those of the co-defendants, which were directed toward the plaintiff, were in the nature of discriminatory and harassive conduct in substantial part because he is African-American of race and black of color.
18. Other white, Caucasian union members who were and are similarly situated to the plaintiff have never been subjected to the harassment, denial of benefits and/or services and the disparate treatment visited upon the plaintiff by the defendant, through its agents, servants and/or employees, as well as by the co-defendants.
19. The unfair and harassive conduct of the agents, servants and/or employees of the defendant towards the plaintiff, including those of the codefendants, in juxtaposition to their treatment of other Caucasian, white union members who have experienced disputes arising from the terms and conditions of their employment with the New Haven Department of Fire Services constituted disparate, discriminatory treatment and, accordingly, was illegal.
20. The fact is the defendant Union has, for many years, shown a pattern and practice of discrimination toward African-American firefighters such as the plaintiff by consistently refusing and failing to represent said firefighters in a multiplicity of hotly contested employment disputes which have arisen concerning the terms and conditions of their employment with the Fire Department.
He then claims to have suffered emotional, psychological, and financial, and physical injuries "stemming from the discriminatory acts of the defendant's agents . . . as well as those of the co-defendants."
(1)
The defendants have filed a motion to dismiss. They claim that the court lacks subject matter jurisdiction to entertain the first two counts. Our court has said that "once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." Gurliacci v. Mayer, 218 Conn. 531, 545 (1991); FDIC v. Peabody N.E., Inc., 239 Conn. 93, 99 (1996). The basis of the defendants' subject matter jurisdiction argument is the alleged failure of the plaintiff to exhaust administrative remedies. Drumm v. Brown, 245 Conn. 657, 676 (1998) is quoted from, which says:
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 an administrative forum.
The complaint itself does not allege that administrative remedies were exhausted but the plaintiff's reply brief concedes there was no resort to such remedies by arguing "the plaintiff was under no duty to exhaust" such remedies.
(a) CT Page 11725
The failure to exhaust argument has reference to two separate statutory schemes. So the question becomes what are the administrative remedies that the plaintiff failed to exhaust.
(i)
The defendants maintain count one explicitly alleges that the union's failure to represent him was motivated by racial discrimination. Sections 46a-58 to 46a-81 prohibit discriminatory employment practices and this state Fair Employment Practices Act, (FEPA), applies to both employers and unions. See § 46a-60(a)(3). The act mandates that a claim of racial discrimination be brought before the Commission on Human Rights and Opportunities (CHRO) within 180 days of the allegedly discriminatory conduct. § 46a-82(a). Section 46a-100 requires prospective plaintiff to secure a release from jurisdiction from the CHRO prior to suit in state court. Here, the defendants argue, the plaintiff failed to exhaust his remedies by following these statutorily required procedures but chose to go directly to federal court with two suits.
Thus on this basis there was a failure to exhaust under FEPA and this court has no jurisdiction.
The defendants argue that there was a failure to exhaust administrative remedies under another statutory scheme. It is noted by the defendants that another set of allegations in count one advance the argument that "the union failed in its duty of fair representation." The defendant union is subject to the Municipal Employee Relations Act (MERA), §§ 7-467 et seq. That act, in § 7-468(d) explicitly says that: "as the exclusive representative of employees in an appropriate unit (the union) shall have a duty of fair representation." The Federal Supreme Court has defined the concept; in Vacca v. Sipes, 386 U.S. 171, 190 (1967) it says: "a breach of the duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminating, or in bad faith." The State Labor Board has apparently relied on the federal definition. See Waterbury Firefighters v. State Board of Labor Relations, 1998 Ct.Sup. 5846, McWeeny J., also see Labbe v. Hartford Pension Comm., 239 Conn. 168, 193-95 (1996).
The defendants maintain the duty of fair representation is "codified" under § 7-468 of the general statutes and point to subsection (a). The court concludes the codification of the duty is really set forth in subsection (d) which the court has referred to above.
In any event the state Labor Board enforces the act (MERA) and § 7-470(b)(c) prohibits employee organizations from "breaching their duty of fair representation pursuant to § 7-468." As noted the allegations of this complaint clearly advance a lack of fair representation argument as defined by the case law under the collective bargaining agreement. See ¶¶ 12, 13, 14, 23, and 24 of complaint.
The defendants' argument which flows from all this is quite to the point:
It follows then, to the extent that the plaintiff fails to allege that he has exhausted those remedies available before the (State Board of Labor Relations) to remedy allegations that the defendants failed to represent him fairly under his collective bargaining agreement, this court lacks jurisdiction to hear such allegations. Count one, therefore, should be dismissed on such additional grounds.
In other words, the defendants argue there was a failure to exhaust under FEPA and MERA.
(ii)
The plaintiff of course admits that the Superior Court has no jurisdiction where an adequate administrative remedy exists and that remedy has not been exhausted. OG Industries v. Planning Zoning Comm., 232 Conn. 419, 425 (1995). But the plaintiff argues there is an exception to the exhaustion requirement; "a party is not required to exhaust all administrative remedies `where recourse to the administrative process is futile or provides an inadequate remedy.'" Savoy Laundry v. Stratford, 32 Conn.App. 636, 640 (1993); Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, fn. 3 (1990). The plaintiff, however, does not indicate how or why the administrative remedies provided the Fair Employment Practices Act or the Municipal Employee Relations Act would be inadequate or recourse to them futile.
The plaintiff also argues that the "exhaustion requirement is not strictly enforced when the plaintiff `can show that the union breached its duty of fair representation by acting arbitrarily, maliciously, or in bad faith' . . . Stosuy v. City of Stamford, 65 Conn.App. 221, 223 (2001). But Stosuy does not stand for any such general proposition; it concerned only the right of a union member to bring an action against a third party" the employer, based on violation of alleged rights under the collective bargaining agreement. It says nothing about exhaustion requirements when the union is the object of employee complaint. Every denial of fair representation based on claims of discriminatory and arbitrary acts of union officials, every racially discriminatory action or failure to act are by definition malicious and the product of bad faith if proven. The plaintiff's position would defeat the legislative purpose of providing for administrative remedies for alleged violations of MERA and FEPA.
The court cannot accept either of these arguments as reasons to avoid the failure to exhaust administrative remedies argument.
(iii)
However, the plaintiff makes a final observation in his brief — "to the extent Brantley claims a breach of contract theory, the breach is attributed to discriminatory practices pursuant to 42 U.S.C. § 1981(a) (Federal Civil Rights or Reconstruction statute) . . . "Accordingly, exhaustion of administrative remedies is not necessary for government or private employees under § 1981." Goss v. Revlon, 548 F.2d 405 (2nd Cir., 1976) is cited.
The plaintiff does not elaborate on why he concludes a § 1981 claim can be made based on the allegations of the complaint and the defendant cannot be faulted for failing to address the issue, since the complaint does not explicitly rely on § 1981 in violation of Practice Book § 10-3(a). The court will assume, only for the purposes of discussion, that such a claim can be made under the factual allegations of the complaint.
But two problems remain: (1) Can the court consider the fact that a § 1981 claim could have been made, or more exactly can be made, as a way to avoid the jurisdictional problem because of failure to exhaust administrative remedies — should the court rather go directly to the jurisdictional claim. Cf, FDIC v. Peabody NE, Inc., 239 Conn. 93, 99 (1996). (2) If a § 1981 action is brought in state court, is it subject to dismissal on jurisdictional grounds if state administrative remedies have not been resorted to by the 1981 plaintiff?
(b)
The court will try to address the second problem first. Interestingly enough the court could not find any cases directly dealing with the question of whether state administrative remedies must be exhausted when a § 1981 action is brought in state court. Goss v. Revlon, 548 F.2d 405 (2nd Cir., 1976), cited by the plaintiff is of no help because the § 1981 action was brought in federal district court and the Court of Appeals held that in such a case state administrative remedies or federal administrative remedies need not be exhausted. On this issue the case law is clear as regards 42 U.S.C. § 1983, another civil rights statute which along with § 1981 is part of the Reconstruction Statutes of 1866. In Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) the Supreme Court explicitly held that "exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983." Id., p. 516. The Maryland Supreme Court in Maryland-National Capitol Park Planning v. Crawford, 511 A.2d 1079, 1084 (1986) noted that: "While Patsy involved a § 1983 action brought in a federal court, the majority of state court decisions since Patsy have taken the position that the Patsy holding is applicable to a state court § 1983 action." Laurel Park, Inc. v. Pac, 194 Conn. 677, 690 (1984); Fetterman v. Univ. of Conn., 192 Conn. 539, 549 (1984); also see Steinglass, Section 1983 Litigation in State Courts, Vol. 2, § 17.5.
It would be difficult to argue for a different result when a § 1981 action is brought especially in light of the reasoning in Fetterman; at 192 Conn. p. 549 the court said:
In the Patsy case, decided subsequent to the trial court's issuance of its memorandum of decision in this case, the United States Supreme Court held that `[b]ased on the legislative histories of both [42 U.S.C.] § 1983 and § 1997e, we conclude that exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.' Id., 516. The defendant UConn would seek to limit the holding of this case to § 1983 actions brought only in the federal courts. The incongruous result of such a limited interpretation, however, would be to allow plaintiff's instituting federal court actions to do so without exhausting state administrative remedies, while requiring plaintiffs suing in Connecticut courts to first exhaust such remedies. Since it is clear that claims for liability for deprivation of federal constitutional rights under § 1983 are claims as to which there is concurrent jurisdiction; Maine v. Thiboutot, 448 U.S. 1, 3 n. 1 . . . (1980); Stratford v. Bridgeport, 173 Conn. 303, 306-11, . . . (1977); we think that such a limitation on the court's holding is inappropriate.
The same incongruity would present itself if exhaustion of state remedies were to be required in § 1981 actions brought in state court. Citing Plummer v. Chicago Journeyman Plumbers' Local Union No. 130 UA, 452 F.Sup. 1127 (N.D.Ill., 1978) which was reversed on other grounds, it is pointed out in 15 Am.JR.2d, "Civil Rights" at § 34 that "State remedies need not be exhausted before a claimant seeks relief in federal court under 42 U.S.C. § 1981."
As pointed out in Employment Discrimination, Larson Vol. 6, § 104.04(2), p. 104-7 the court in Monroe v. Pape, 365 U.S. 167, 183 (1961) "The federal remedy (§ 1983) is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Larson was specifically talking about actions by public employees but his reasoning applies to any § 1983 litigant. He goes on to say:
Thus a public employee need not resort to state judicial proceedings prior to filing a section 1983 suit, nor need he (she) await the termination of previously initiated state proceedings before brining a § 1983 claim, it appears that the same reasoning would apply to claims brought under other provisions of the Reconstruction Statutes. (Emphasis by this court.)
Larson really relied on federal Supreme Court analysis in the latter observation because what was said in Felder v. Casey, 487 U.S. 131 (1987) concerning § 1983 applies to § 1981; speaking of an exhaustion requirement in Wisconsin statutes the court said at page 148, in words applicable to a § 1981 action:
The dominant characteristic of a § 1983 action, of course, does not vary depending upon whether it is litigated in state or federal court, and States therefore may not adulterate or dilute the predominant feature of the federal right by imposing mandatory settlement periods, no matter how reasonable the administrative waiting period or the interests it is designed to serve may appear.
The court concludes that when a § 1981 action is brought in state court, there need be no allegation of exhaustion of state administrative remedies because no exhaustion requirement exists.
But can the plaintiff avoid dismissal for failure to exhaust state administrative remedies when he did not allege a violation of § 1981 in his state complaint? Should the court go directly to the jurisdictional question by only examining the legal claim made in the complaint. The court admits that the specter of FDIC v. Peabody NE, Inc., supra causes it some concern. But the case of Egri v. Foisie, 83 Conn.App. 243 (2004) leads the court to conclude that this motion to dismiss should be treated as a motion to strike. There at pages 247-48 the court discussed the different functions of a motion to dismiss and a motion to strike. A motion to dismiss "essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court . . . By contrast, the motion to strike attacks the sufficiency of the pleadings." The court went on to say that "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." This difference has practical consequences. When a motion to strike is granted a party can plead over.
In this complaint 42 U.S.C. § 1981 is not cited, although a § 1981 claim would avoid the jurisdictional attack based on failure to exhaust administrative remedies. It is not the case that the plaintiff cannot state a viable cause of action, it is merely that on the face of the pleadings he has not. It is true that Practice Book § 10-3(a) states that:
"When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number."
But regarding that Practice Book admonition, how is the situation now before the court different from that in Spears v. Garcia, 66 Conn.App. 669 (2001). There the court reversed the trial court's granting of summary judgment in favor of the city of Bridgeport and its Fire Department. It rejected the notion "that a statute abrogating governmental immunity must actually be pleaded, not simply relied on at some point in the proceedings." Id., page 675. The language of Practice Book § 10-3(a) is directory not mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 545 (2000). The court went on to hold that "although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." Id. (Emphasis by court.)
In this case the defendants' brief referred to two prior actions brought against these defendants in federal district court. The second action was characterized as being based on a violation of 42 U.S.C. § 1981 along with various state claims. The brief went on to say, "[T]he plaintiff now seeks to secure the same allegations against the same defendants involving the same transactions or incidents of fact in the Connecticut Superior Court in what vexatiously forms `Brantley III.'" The defendants also noted that under our law res judicata is not an appropriate grounds for a motion to dismiss citing Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985). During argument on this motion plaintiff's counsel referred to the fact that if a § 1981 claim were advanced, the exhaustion argument could not be used to deny the court's subject matter jurisdiction. The defendants knew or should have known at this early stage of the proceedings in this state action, a § 1981 claim could be, or even was being asserted against them.
The court will therefore treat this motion to dismiss as a motion to strike and strike the first count and therefore necessarily the second count. If upon pleading over a § 1981 claim is not made in these counts, the court would agree that it would not have subject matter jurisdiction and lack thereof can be relied upon by the court at any time to dismiss these counts.
Also, if a § 1981 claim is asserted the defendants retain the right to attack its legal sufficiency by means of a new motion to strike based on the facts alleged; the defendants would also retain the right to advance a res judicata argument against a § 1981 claim based on the actions of the federal district court.
In any event the court will strike the first and second counts for the reasons stated.
If this were a statute of limitations question, that is an argument was made that the limitations period had run because § 1981 was not asserted in the complaint, the test applied under the relation back doctrine would be clear. The whole purpose of that doctrine is to ameliorate the operation of the limitations statute. We follow Federal Rule 15c in applying this doctrine. An amendment asserting § 1981 would be allowed. The fact that an amendment changes the legal theory on which the action was brought or adds a new theory is of no consequence as long as the factual situation on which the action depends remains the same. Zagurski v. American Tobacco Co., 44 F.R.D. 440, 442-43 (D.C.Conn. 1967). See numerous cases cited in Federal Practice Procedure, Wright, Miller Kane, fns. 39 through 46 at pages 94-99, § 1497.
The result should not be any different here. The facts asserted in the present complaint give rise to the possibility of a § 1981 claim, if that claim is asserted its legal sufficiency and viability because of res judicata concerns could be raised, but the court's subject matter jurisdiction would not be in issue. The court should not foreclose the opportunity to test the viability of such a claim in this state action on the basis of an exhaustion doctrine that would not apply to such a claim in any event.
Corradino, J.