Opinion
No. CV 01-038 59 88 S
November 7, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On September 6, 2001, the plaintiff, Frank Gerardi filed a two-count complaint against the City of Bridgeport, Bruce Collins, and Leonard Bonaventura. In count one, Gerardi alleges that the city violated the civil service provisions of its own charter when it promoted the two named defendants above him even though they achieved lower scores on the civil service examination. Collins was promoted to fire marshall and Bonaventura was promoted to senior fire inspector. Gerardi was promoted to fire inspector, a position inferior to fire marshall and senior fire inspector. Gerardi alleges that he has suffered extreme emotional distress as a result of the city's failure to promote him to a higher position. In count two, Gerardi alleges that Collins and Bonaventura intentionally harassed and tormented him and thereby inflicted severe emotional distress.
On September 7, 2005, the city filed a motion to dismiss count one of Gerardi's complaint on the grounds that the court lacks subject matter jurisdiction because Gerardi failed to exhaust his administrative remedies. The city also filed relevant portions of the city charter, the affidavit of Ralph Jacobs the city personnel director and an uncertified portion of the plaintiff's deposition. Gerardi filed an opposition to the motion to dismiss count one on September 9, 2005. On September 26, 2005, Gerardi filed a supplemental memorandum in opposition to the motion to dismiss.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[A] motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). In deciding 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." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8.
The city moves to dismiss count one of Gerardi's complaint on the ground that the court lacks subject matter jurisdiction because Gerardi failed to exhaust administrative remedies set forth in the city charter. The city argues that under § 206(a)(4) of the charter, employees can contest any claims of improper promotions in the classified service before the civil service commission in that it provides that the commission shall "hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions, the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director." Because Gerardi never filed any complaint or appeal with the commission, the city argues, he failed to exhaust his administrative remedies. In support of its argument, the city relies on Lopiano v. Stamford, 22 Conn.App. 591, 577 A.2d 1135 (1990), where the plaintiff, a police officer, sought judgment declaring the promotional examination held by the police commission illegal after he took an examination for the position and was not promoted. In Lopiano, the Appellate Court dismissed the employee's complaint for lack of subject matter jurisdiction because the employee failed to follow the established procedures in the Stamford city charter for appealing examination results.
"[I]f an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief . . ." (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 87 Conn.App. 46, 48, 863 A.2d 754 (2005). "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 Supreme Court has] recognized, however, certain limited exceptions to the exhaustion requirement. Such exceptions include where the available relief is inadequate or futile . . . or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, 262 Conn. 84, 103, 809 A.2d 492 (2002).
Gerardi argues that the motion to dismiss should be denied because there is no established procedure under the city charter for bringing an appeal of a personnel decision before the commission. In this manner, Gerardi argues, the Bridgeport city charter differs from the Stamford city charter cited in Lopiano, where there was an established procedure for bringing appeals regarding personnel decisions. Gerardi also maintains that bringing an appeal before the commission would have been futile because the commission's rules do not provide an avenue of appeal of a personnel decision for a job applicant who was not promoted to his desired position.
This court lacks subject matter jurisdiction over the first count of Gerardi's claim because he did not exhaust the administrative remedies available to him under the city charter. "[T]he question of whether the [plaintiff] failed to exhaust [his] administrative remedies is to be determined by the express provisions of Bridgeport's city charter. It is well established that a city charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . It follows that agents of a city, including commissions, have no source of authority, beyond the charter." (Internal quotation marks omitted.) Bolton v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0409828 (April 29, 2004, Levin, J.). Section 206(a)(4) of the city charter provides that the commission is empowered to "hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions . . . and such other matters as may be referred to the commission by the personnel director . . ." (Emphasis added.) Because Gerardi's claim concerns the personnel department's decision to promote firefighters following its administration of a civil service exam, he is required to exhaust his administrative remedies under § 206(a)(4).
Section 206 of the Bridgeport city charter provides for the powers and duties of the civil service commission. It provides in relevant part:
(a) The members of the civil service commission shall hold regular meetings at least once each month and may hold additional meetings as may be required in the proper discharge of their duties. Said commission shall . . . (3) make investigations, either on petition of a citizen or on its own motion, concerning the enforcement and effect of this chapter, require observance of its provisions and the rules and regulations made thereunder; (4) hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions, the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director . . .
Gerardi's arguments in opposition to the motion to dismiss are unpersuasive, as § 206(a)(4) provides a vehicle for Gerardi to appeal the personnel department's promotional decisions to the commission. "If the available administrative procedure . . . provide[s] the [plaintiff] with a mechanism for attaining the remedy that [he seeks] . . . [he] must exhaust that remedy . . . The plaintiff's preference for a particular remedy does not determine the adequacy of that remedy. [A]n administrative remedy, in order to be adequate, need not comport with the [plaintiff's] opinion of what a perfect remedy would be." (Internal quotation marks omitted.) Bolton v. Bridgeport, supra, Superior Court, Docket No. CV 04 0409828. "The exhaustion of remedies doctrine implicates subject matter jurisdiction; a case must be dismissed if an administrative avenue of redress remains untried." Lopiano v. Stamford, supra, 23 Conn.App. 595.
Accordingly, the court grants the city's motion to dismiss count one as the court lacks subject matter jurisdiction under the doctrine of exhaustion of administrative remedies.