Opinion
No. CV 08-4023011S
December 31, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (MOTION 105)
The plaintiff in this action filed an Application for Temporary Injunction and Order to Show Cause and Complaint dated November 20, 2007. In his Temporary Injunction Application the plaintiff is seeking to have the court order the defendant to desist and refrain from conducting any type of disciplinary hearing and/or imposing any type of discipline on the plaintiff until further order of the court. In his Complaint the plaintiff is seeking a temporary and permanent injunction prohibiting and restraining the defendants from conducting a hearing on the plaintiff's termination of employment.
The plaintiff is employed by the City of Bridgeport as a fire inspector for the City of Bridgeport Fire Department. The named defendants are the City of Bridgeport and Brian P. Rooney, fire chief for the City of Bridgeport.
In his Complaint, the plaintiff alleges the following:
(1) that the City, acting through its agents, servants and/or employees including Mr. Rooney, acquired vehicles for use of its fire inspectors and equipped said vehicles with global positioning systems (GPS);
(2) that the defendants never informed its fire inspectors, including the plaintiff that it was equipping the vehicles with a GPS;
(3) that the plaintiff operated one of said vehicles;
(4) that the defendant has alleged that the plaintiff was not properly performing his job based upon the GPS;
(5) that based upon the information gathered from the GPS, the defendants have brought a disciplinary proceeding against the plaintiff subjecting the plaintiff to potential discipline including discharge from his employment;
(6) that the defendants violated C.G.S. Sections 31-48b and 31-48d;
(7) that the plaintiff will be irreparably harmed.
The defendants filed a Motion to Dismiss (#103) dated December 17, 2007 claiming that the court does not have subject matter jurisdiction because the plaintiff has not exhausted available administrative remedies, particularly the mandatory grievance procedures set forth in the International Association of Firefighters Local 834 collective bargaining agreement between the union and the City.
"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. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); see also Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted; external citation omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
"It is the plaintiff's burden to prove that subject matter jurisdiction is proper." Fink v. Golenbock, 238 Conn. 183, 199, 680 A.2d 1243 (1996). See also Young v. Commissioner of Corrections, 104 Conn.App. 188 932 A.2d 467 (2007) and Reilly v. Lantz, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04-4001133-S (May 6, 2005 Hale, J.T.R.) 2005 Ct.Sup. 8536.
In Gerardi v. Bridgeport, 99 Conn.App. 315 (2007) 913 A.2d 1076 the court held that "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 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 . . . It also relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review." (Citation omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995)." Id., 318 "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." Girardi, supra p. 321.
In Santana v. Hartford, 94 Conn.App. 445 (2006) 894 A.2d 307 the court stated that "We recently stated that "[i]t is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements." Id., p. 462. See also Sobczak v. Board of Education, 88 Conn.App. 99, 103, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005); see also Neiman v. Yale University, 270 Conn. 244, 253-54, 851 A.2d 1165 (2004); Saccardi v. Board of Education, 45 Conn.App. 712, 715-16, 697 A.2d 716 (1997).
Nevertheless, our Supreme Court has "grudgingly carved several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile." Sobczak v. Board of Education, supra, 88 Conn.App. 103-04.
An action is futile when "such action could not result in a favorable decision and invariably would result in further judicial proceedings. The guiding principle in determining futility is that the law does not require the doing of a useless thing." Frank v. Dept. of Parks Recreation, 78 Conn.App. 601, 606-07, 828 A.2d 692, cert. granted on other grounds, 266 Conn. 914, 833 A.2d 465 (2003) (appeal withdrawn March 19, 2004); see also Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 19, 756 A.2d 262 (2000), overruled in part on other grounds, Waterbury v. Washington, 260 Conn. 506, 545, 800 A.2d 1102 (2002); Sobczak v. Board of Education, supra, 104.
Futility or inadequacy are exceptions to the exhaustion doctrine. However, the Supreme Court has held that administrative remedies "are . . . not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant." Neiman v. Yale University, 270 Conn. 244, 259, 851 A.2d 1165 (2004).
"It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . [The Supreme Court has] held that utilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant." (Citation omitted; internal quotation marks omitted.) Neiman v. Yale, supra, at 259. There is a presumption "that administrative board members acting in an adjudicative capacity are not biased." Simko v. Ervin, 234 Conn. 498, 508, 661 A.2d 1018 (1995). "To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias . . ." (Internal quotation marks omitted.) O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995). Arbelo v. Berger, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 06-40062145 (November 22, 2006, Aurigemma, J.) 2006 Ct. Sup. 21468.
There is a statutory exception to the exhaustion of administrative remedy, namely Connecticut General Statutes Section 31-51bb which reads as follows:
Sec. 31-51bb. Right of employee to pursue cause of action.
No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal Constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
"Both the language of 31-51bb and the legislative history indicate that the legislature intended to overturn our decision in Kolenberg v. Board of Education, supra, and thereby eliminate the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court. Section 31-51bb provides that a cause of action arising under the state or federal constitution or state statute cannot be lost solely because the employee is covered by a collective bargaining agreement. Plainly, therefore, an employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim. To hold otherwise would be to deny such an employee the right to pursue a statutory action solely because of the existence of a collective bargaining agreement." Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 481-82 (1993) 628 A.2d 946. The Statutes which the plaintiff claim have been violated are as follows:
Sec. 31-48b. Use of electronic surveillance devices by employers limited. Prohibition on recording negotiations between employers and employees.(a) For purposes of this section, "employer" means the owner or owners in the case of an unincorporated business, the partners in the case of a partnership, the officers in the case of a corporation or in the case of the state, any town, city or borough, or district, local or regional board of education, or housing authority or district department of health, the chief executive officer thereof.
(b) No employer or agent or representative of an employer shall operate any electronic surveillance device or system, including but not limited to the recording of sound or voice or a closed circuit television system, or any combination thereof, for the purpose of recording or monitoring the activities of his employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges.
(c) Any employer, who violates any provision of subsection (b) of this section shall, for the first offense, be fined five hundred dollars, for the second offense be fined one thousand dollars and for the third and any subsequent offense be imprisoned thirty days.
(d) No employer or his agent or representative and no employee or his agent or representative shall intentionally overhear or record a conversation or discussion pertaining to employment contract negotiations between the two parties, by means of any instrument, device or equipment, unless such party has the consent of all parties to such conversation or discussion.
(e) Any employer or his agent or representative or any employee or his agent or representative who violates any provision of subsection (d) of this section shall be fined one thousand dollars or imprisoned one year, or both.
Sec. 31-48d. Employers engaged in electronic monitoring required to give prior notice to employees. Exceptions. Civil penalty.
(a) As used in this section:
(1) "Employer" means any person, firm or corporation, including the state and any political subdivision of the state which has employees;
(2) "Employee" means any person who performs services for an employer in a business of the employer, if the employer has the right to control and direct the person as to (A) the result to be accomplished by the services, and (B) the details and means by which such result is accomplished; and
(3) "Electronic monitoring" means the collection of information on an employer's premises concerning employees' activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems, but not including the collection of information (A) for security purposes in common areas of the employer's premises which are held out for use by the public, or (B) which is prohibited under state or federal law.
(b)(1) Except as provided in subdivision (2) of this subsection, each employer who engages in any type of electronic monitoring shall give prior written notice to all employees who may be affected, informing them of the types of monitoring which may occur. Each employer shall post, in a conspicuous place which is readily available for viewing by its employees, a notice concerning the types of electronic monitoring which the employer may engage in. Such posting shall constitute such prior written notice.
(2) When (A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment, and (B) electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without giving prior written notice.
(c) The Labor Commissioner may levy a civil penalty against any person that the commissioner finds to be in violation of subsection (b) of this section, after a hearing conducted in accordance with sections 4-176e to 4-184, inclusive. The maximum civil penalty shall be five hundred dollars for the first offense, one thousand dollars for the second offense and three thousand dollars for the third and each subsequent offense.
(d) The provisions of this section shall not apply to a criminal investigation. Any information obtained in the course of a criminal investigation through the use of electronic monitoring may be used in a disciplinary proceeding against an employee.
Under the facts of this case, C.G.S. Section 31-48b does not apply, even when viewing the facts most favorably to the plaintiff. That statute applies "in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges." The facts of this case relate to installation of the tracking devise in a vehicle owned by the City of Bridgeport and operated by the plaintiff in the course of his employment. The next question is whether or not C.G.S. Section 31-48d applies under these facts. There are no cases in the state of Connecticut on point to the issue. There are a few cases regarding GPS systems in leased automobiles pertaining to fines imposed by the rental company for speeding. See Turner v. American Car Rental, 92 Conn.App. 123 (3005) 884 A.2d 7 and American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296 (2005) 869 A.2d 1198.
The question for the plaintiff to address on the applicability of this statute were: (1) is this monitoring "on an employer's premises"
If the statute does apply, then the burden shifts to the defendant under subsection (b)(2) to prove that the employer has "reasonable grounds to believe that the employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees . . ."
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 404, 405, 891 A.2d 959 (2006).
"Courts afford substantial weight to a legislator's description of the purpose of a statutory amendment if the description is direct and unequivocal and there is no indication of a contrary legislative intent. See, e.g., Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, supra, 253 Conn. 692 ("[i]n the absence of anything in the scant legislative history of [Public Acts 1999, No. 99-225 § 30], to contradict Representative [Patricia] Widlitz' direct and unequivocal statement regarding the amendment's clarifying purpose, we afford substantial weight to her characterization of its objective and effect"); see also Connecticut National Bank v. Giacomi, 242 Conn. 17, 40-41, 699 A.2d 101 (1997) (Court afforded substantial weight to a legislator's unequivocal remark that the purpose of a statutory amendment was "not to change the law, but to clarify what I would consider the law [to be] . . . It's not saying something different." [Internal quotation marks omitted.]); State v. Magnano, 204 Conn. 259, 281-82, 282 n. 11, 528 A.2d 760 (1987) (relying on multiple legislators' comments that public act would clarify existing law, would apply retroactively and was enacted in response to prior judicial decisions)." CT Page 22273 George Gordon Co. v. Ferrigno et al., Superior Court, judicial district of New Haven at New Haven, Docket No CV07-5012419S (Nov. 14, 2007, Silbert, J.)
This court has reviewed the transcripts of the House debate on this bill on Monday April 27, 1998 and Tuesday April 28, 1998. In all those discussions Rep. Fleischmann and Rep. Tulisano stated that if the monitoring occurs in a location held out for public use, no notice of the monitoring was required ("If it is a common area in which the public who is involved there is no posting at all required, no disclosure required," Rep. Tulisano at page 002283, page 144) ("This requires notice when there's monitoring going on, but not when such monitoring deals with common areas held out for public use," Rep Fleischmann at page 002330, page 23 of 4/28/98) (" . . . when we're talking about areas held out for the public, there's no notice requirement . . .," Rep. Fleischmann at page 002337 page 30 of 4/28/98). Also, the clear and unambiguous language of the statute is that the monitoring take place "on the premises" of the employer. Since 31-48d was enacted in 1998, the legislature has not amended the statute to include GPS systems, also such systems are and have been available to the public for many years.
In Oman v. Davis School District, (Utah 2003) United States District Court, D.Utah, Northern Division September 18, 2003 facts similar to the instant case arose. The plaintiff was employed by the school district. He also owned and operated an electrical contracting business. The claim against the plaintiff was that he was leaving the school job during the day to perform work related to his private business. A GPS system was placed in the car the plaintiff used in the course of his employment with the school. The Utah district court found that "In this case, the vehicle in which the GPS tracking device was placed was owned by the district and the district was involved in the decision to place the device. Plaintiff argues that this court should distinguish the Karo case on the grounds that the beeper in that case was in a container whereas in this case the device was in a vehicle that Plaintiff routinely used. The court does not find this distinction persuasive. In applying Karo to this case, the installation of the GPS tracking device did not constitute a search because it created only a potential invasion of privacy and did not constitute a seizure because it did not meaningfully interfere with Plaintiff's possessory interest. As in Karo, the only possible Fourth Amendment violation would need to occur as a result of the monitoring. However, in this case, the monitoring of the tracking device was of movements on public roads that could have been obtained through visual surveillance. The Karo Court recognized that monitoring revealing information that could be seen in plain view was decided and resolved in Knotts. In that regard, Knotts determined that there is no expectation of privacy as to travel on public roads and, thus, no constitutional violation. Therefore, the second issue determined by the Karo Court is factually irrelevant because there was no monitoring in this case that revealed information that could not have been obtained through visual surveillance." Id., page 7.
Therefore, the Motion to Dismiss is granted. The court finds that the statutes claimed by the plaintiff do not apply and that the plaintiff has not exhausted his administrative remedies.