Opinion
CV156029009S
07-22-2016
Mary Hurley v. Naugatuck Board of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
Andrew W. Roraback, J.
I
FACTS
On November 17, 2015, the plaintiff, Mary Hurley, initiated this action pursuant to the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. In her single-count complaint against the defendant, Naugatuck Board of Education, the plaintiff alleges that she was a victim of age discrimination who was wrongfully subjected to a hostile work environment and constructively discharged from her employment by virtue of this discrimination.
This action was initiated following the issuance of a " Release of Jurisdiction" furnished to the plaintiff by the Commission on Human Rights and Opportunities (" CHRO") pursuant to General Statutes § 46a-101. That release followed consideration by the CHRO of a complaint filed with that agency on May 12, 2014 (" the CHRO complaint").
In the CHRO complaint, the plaintiff alleged that she worked with four women all of whom were younger than her. The plaintiff claimed that " [A]ll four of them made it their business to torment me because of my age." The four younger women were alleged to " insist on playing loud hard rock music." When the plaintiff complained or asked that they lower the volume, these four co-workers responded by " making comments about [her] age, to the effect that [she] was too old." This behavior persisted despite the plaintiff's complaints to those in positions of authority and responsibility at her workplace, which were ignored. On February 4, 2014, the plaintiff suffered an injury that prevented her from working at least until May 5, 2014. In her CHRO complaint, the plaintiff alleged that " I have every expectation that it [the behavior complained of] will resume when I am well enough to return to work."
In her complaint filed in the present action, the plaintiff restated the allegations contained in her CHRO complaint. She also added a new allegation not found in the original CHRO complaint, that " [A]s a result of the continued abuse described above, the plaintiff was forced to take an earlier retirement than she wished, because working conditions became unendurable."
On January 11, 2016, the defendant filed a motion to dismiss and an accompanying memorandum of law, arguing that this court lacks subject matter jurisdiction over this action because the plaintiff has failed to exhaust her administrative remedy with the CHRO with respect to her claim that she was forced to take an earlier retirement than she wished. The plaintiff submitted a memorandum of law in opposition to this motion on March 29, 2016. The matter was heard at short calendar on April 4, 2016.
II
DISCUSSION
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
In its memorandum supporting the motion to dismiss, the defendant argues that although the plaintiff received a release of jurisdiction from the CHRO, that release did not cover a constructive discharge claim, because that claim was not included in the written complaint she submitted to the commission on May 12, 2014. Therefore, the defendant asserts that this court lacks subject matter jurisdiction over the constructive discharge claim. In response, the plaintiff argues that administrative remedies need not be exhausted, because her complaint in this action arose out of the same factual allegations contained in her complaint to the CHRO.
" [W]here a motion to dismiss implicates subject matter jurisdiction, the court may dismiss portions of a complaint, including individual paragraphs within counts . . . Indeed, in Ware v. State, 118 Conn.App. 65, 78 n.4, 86-87, 983 A.2d 853 (2009), the Appellate Court reversed the trial court's denial of a motion to dismiss directed only at portions of counts, concluding that such portions should have been dismissed as barred by sovereign immunity. In directing that such portions be dismissed, the court did not require that the specific portions make out complete claims or causes of action . . . Further, several Superior Court cases have followed or approved of the example of Paragon Construction Co . and Ware, dismissing specific allegations over which the court lacks jurisdiction when they are commingled with allegations over which the court's jurisdiction is undisputed." (Citations omitted.) Cavaciuti v. Gnesda, Superior Court, judicial district of Hartford, Docket No. CV-14-6050720-S (May 28, 2015, Peck, J.) (60 Conn.L.Rptr. 457, 459, ).
" 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." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " Because 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.) Id.
" The doctrine of exhaustion is nevertheless subject to certain narrowly circumscribed but . . . recognized exceptions . . . One such exception permits the court to exercise jurisdiction over a charge that was not presented during an administrative [proceeding] as long as it is reasonably related to the conduct complained of during the administrative proceedings, such that the claim could have been reasonably expected to grow out of the original charges." (Internal citations omitted.) Tatro v. Cascades Boxboard Group Connecticut, LLC, Superior Court, judicial district of New London, Docket No. CV-09-4009597 (April 22, 2010, Martin, J.).
" [I]n matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance." Ware v. State, supra, 118 Conn.App. 82. As such, an examination of federal cases presenting facts and procedural postures most closely analogous to those presented in this case is instructive.
" Defendant alleges--and plaintiff does not deny--that plaintiff did not pursue, let alone exhaust, his administrative remedies with respect to a constructive discharge claim. [The plaintiff], however, argues that the exhaustion requirement should not apply to his constructive discharge claims because those claims are the culmination of, and part of, the continuing hostile work environment claim as to which he did exhaust his administrative remedies . . . Case law does not support plaintiff 's interpretation.
" The key to determining whether a claim must meet the procedural hurdles of the exhaustion requirement itself, or whether it can piggy-back on another claim that has satisfied those requirements, is whether the claim is of a 'discrete' act of discrimination or retaliation or, instead, of a hostile work environment. Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are individual acts that 'occur' at a fixed time . . . Accordingly, plaintiffs alleging such discriminatory action must exhaust the administrative process regardless of any relationship that may exist between those discrete claims and any others. Graham v. Gonzales, United States District Court, Docket No. CIV.A. 03-1951 (RWR), (D.D.C. September 30, 2005).
" In 2002, the Supreme Court in National Railroad Passenger Corporation v. Morgan, rejected the socalled continuing violation doctrines that allowed plaintiffs to recover for discrete acts of discrimination or retaliation that had not been separately exhausted but were 'sufficiently related' to a properly exhausted claim . . . The Morgan Court was emphatic that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law . . . and that recovery was precluded for discrete acts of discrimination or retaliation that occur outside the statutory time period . . . Since Morgan, courts in the District of Columbia Circuit have largely refused to take jurisdiction over unexhausted claims of discrete discriminatory acts, such as terminations that occur following the filing of an administrative charge.
" The key to determining whether a claim must meet the procedural hurdles of the exhaustion requirement itself, or whether it can piggy-back on another claim that has satisfied those requirements, is whether the claim is of a 'discrete' act of discrimination or retaliation or, instead, of a hostile work environment. Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are individual acts that 'occur' at a fixed time . . . Accordingly, plaintiffs alleging such discriminatory action must exhaust the administrative process regardless of any relationship that may exist between those discrete claims and any others." (Internal citations omitted; internal quotation marks omitted.) Terveer v. Billington, 34 F.Supp.3d 100, 112-13 (D.D.C. 2014).
Here, it is clear that the constructive discharge allegedly occurred subsequent to the filing of the CHRO complaint. That complaint expressly stated that the plaintiff, who at that time was recovering from an injury, had " every expectation that the [alleged discriminatory conduct] will resume when I am well enough to return to work." In light of the foregoing, the court may not properly exercise subject matter jurisdiction over the claim of constructive discharge in this action because the plaintiff has not exhausted her administrative remedy with CHRO regarding that claim.
III
CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is granted, but only with respect to paragraph 9 of plaintiff's complaint dated November 17, 2015.