Opinion
No. CV07-4007953-S
August 18, 2009
MEMORANDUM OF DECISION
On November 7, 2007, the plaintiff, Mary Ann McMahon, commenced this action against the defendant, Unilever United States, Inc. The plaintiff filed her original single-count complaint on November 13, 2007 in which she alleges the following facts. The plaintiff has been employed in the defendant's Clinton, Connecticut facility since April 3, 1978. On August 16, 2005, the plaintiff injured her back while working on a packaging machine at the facility and received workers' compensation benefits in the form of medical treatment only. The plaintiff injured herself at work again on February 23, 2006, aggravating her previous back injury. As a result the plaintiff was out of work and received workers' compensation benefits in the form of medical treatment and temporary total disability benefits for a total of five weeks. On April 3, 2006, the plaintiff, upon being certified by her doctor to perform light duty work, returned to work and assumed a position on the assembly line that met her current physical restrictions, while also at the same time continuing to receive medical treatment. She remained in that position and continued to receive workers' compensation benefits in the form of medical treatment for approximately a year. At some point, the defendant attempted to terminate her workers' compensation benefits and on March, 29, 2007, the plaintiff filed an objection with the workers' compensation commissioner. The plaintiff also sought approval from the commission to change her treating physician despite the defendant's objection. On April 12, 2007, the plaintiff was informed by the defendant that it would no longer be able to accommodate her current physical job restrictions and that she was being placed on disability leave.
In her complaint, the plaintiff alleges that there was suitable light duty work available and that in refusing to allow the plaintiff to continue that suitable light duty work, the defendant has discriminated against the plaintiff in retaliation for exercising her rights under the Workers' Compensation Act in violation of General Statutes § 31-290a.1 The plaintiff further alleges that as a result of such discrimination she has suffered both income loss and emotional distress and asks for relief in the form of 1) money damages, 2) payment of back wages, 3) reinstatement to her previous job or front pay, 4) reestablishment of benefits, 5) attorneys fees, and 6) punitive damages.
In response to the plaintiff's allegations, on December 27, 2007, the defendant filed its first motion to dismiss on the grounds that the court lacked subject matter jurisdiction because the essential elements of the plaintiff's complaint, alleging that defendant refused to allow her to continue light duty work, fell exclusively within the jurisdiction of the workers' compensation commission. The defendant argued that the plaintiff must first exhaust its administrative remedies by pursuing the action with the workers' compensation commission before bringing an action in the Superior Court. This court, Holzberg, J., denied the defendant's motion to dismiss, finding that because the plaintiff was proceeding on the theory that she was terminated in retaliation for exercising her rights under the Workers' Compensation Act, that pursuant to General Statutes § 31-290a, she was not required to exhaust administrative remedies.
After the denial of its motion, on September 25, 2008, the defendant filed its answer along with its special defenses. The plaintiff filed her reply to the defendant's special defenses on October 10, 2008. On April 3, 2009, the defendant filed a second renewed motion to dismiss alleging the same grounds as it had in its first motion to dismiss. In its latest motion to dismiss, the defendant again alleges that this court lacks subject matter jurisdiction because the essential elements of the plaintiff's complaint, alleging that defendant refused to allow her to continue light duty work, fall exclusively within the jurisdiction of the workers' compensation commissioner and that plaintiff must first exhaust her administrative remedies by pursuing the action before the workers' compensation commission. The plaintiff filed its memorandum in opposition to the defendant's motion to dismiss on April 15, 2009. The matter was heard on the short calendar on April 20, 2009.
A Motion to Dismiss Standard
"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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, CT Page 14046 116, 914 A.2d 524 (2007). "Pursuant to the rules of practice, 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). "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 [plaintiffs] claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
"[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). Nonetheless, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). "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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). However, "if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [and/or] other types of undisputed evidence . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; internal quotation marks omitted). Conboy v. State, 292 Conn. 642, 651 (2009).
The defendant argues that the plaintiff's only claim is defendant's alleged refusal to maintain her on light duty work. It further argues that the plaintiff's claim of a refusal to make light duty work available falls within the purview of General Statutes § 31-3132 and as such is within the exclusive jurisdiction of the workers' compensation commissioner. Additionally, the defendant argues that it is entitled to attorneys fees from the plaintiff because the plaintiff's attorney acted in bad faith by not reasonably inquiring as to the plaintiff's alleged termination.
The plaintiff concedes that she was not terminated from employment. Instead she argues that the basis of her claim is that the defendant discriminated against her in that it forced her to leave her normal customary employment position because of filing of a workers' compensation claim against the defendant. The plaintiff argues that because she was able to perform her current customary work, the dispute does not concern the availability of light duty work and consequently General Statutes § 31-313 is not implicated. The plaintiff further argues that the court correctly decided the issue in the defendant's first motion to dismiss and absent any new or overriding circumstances, the court should treat that decision as binding. The plaintiff argues that the defendant has failed to present any overriding circumstance meriting a reversal of this court's first decision on the defendant's first motion to dismiss
B Second Motion to Dismiss
At the outset, the court must first address the plaintiff's argument that the court's decision as to the defendant's first motion to dismiss is binding. In regard to that argument, it is true that "[a] judge should hesitate to change his own rulings in a case . . ." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Indeed, "[n]ew pleadings intended to raise again a question of law which has already been presented on the record and determined adversely to the pleader are not to be favored." (Internal quotation marks omitted.) Id. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Id. "But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." (Internal quotation marks omitted.) Id. "[I]f the case comes before [the court] regularly and [the judge] becomes convinced that the view of law previously applied . . . was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." Id., 100.
The court is reluctant to revisit the defendant's second motion dismiss in which it raises the same basic claims as it did in its first motion to dismiss. However, given that this motion concerns the court's subject matter jurisdiction, that subject matter jurisdiction cannot be waived, and that the court may raise and review the issue at any time, the court believes it would be prudent to revisit the issue.3 See State v. Piper, Superior Court, Judicial District of New London, Docket No. CR2157349 (May 3, 1996, Purtill, J.) [ 17 Conn. L. Rptr. 155] (considering second motion to dismiss raising same grounds as first because subject matter jurisdiction was implicated).
Moreover, the first motion to dismiss was denied based on the plaintiff's representation, and court's understanding, that she was alleging wrongful termination. See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516. In the present motion, the defendant has argued without objection that the plaintiff was not terminated, leaving only a claim that the defendant discriminated against the plaintiff by refusing to make light duty available to her. Accordingly, because the court's understanding of the nature of the plaintiff's allegations has changed and because this change could effect the court's subject matter jurisdiction, the court will review the defendant's second motion to dismiss and reconsider the defendant's arguments.
C § 31-290a Claims
General Statutes § 31-290a provides in relevant part "(a) [n]o employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for Workers' Compensation Benefits or otherwise exercised the rights afforded to him pursuant to this chapter. (b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office or (2) file a complaint with the chairman of the workers' compensation commission alleging violations of subsection (a) of this section." Thus, § 31-290a allows an individual who successfully alleges discrimination because they have filed a workers' compensation claim the option of either pursuing their claim directly in the Superior Court or with the workers' compensation commission.
General Statutes § 31-313, on the other hand, provides in relevant part that "(a)(1) [w]here an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available, during the time that the employee is subjected to medical treatment . . . (2) The commissioner shall conduct a hearing upon the request of an employee who claims his employer has not transferred him to such available suitable work. Whenever the commissioner finds that the employee is so disabled, and that the employer has failed to transfer the employee to such available suitable work, he shall order the employer to transfer the employee to such work. (b) The commissioner shall conduct a hearing upon the request of an employee claiming to be unable to perform his customary or most recent work because of physical incapacity resulting from an injury or disease." Thus, § 31-313 places disputes over the availability of light duty squarely within the exclusive jurisdiction of the workers' compensation commissioner.
A review of case law reveals that Superior Courts4 have routinely concluded that where a plaintiff simply alleges that he was discriminated against because the defendant refused to provide the plaintiff with light duty work, when adequate light duty was available, these allegations are claims that fall under the purview of General Statutes § 31-313 and not § 31-290a. Lopez v. Walnut Hill, Inc., Superior Court, judicial district of New Britain, Docket No. CV 99 0498763 (November 30, 2001, Quinn, J.); Wright v. Turner Seymour Manufacturing Co., Superior Court, judicial district of Litchfield, Docket No. 54079 (June 25, 1991, Pickett, J.); Robinson v. Connecticut Rental Centers, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 99 0087536 (August 7, 2000, Gordon, J.). For example, in Robinson, the court considered whether the plaintiff could allege a violation of § 31-313, as a basis for his discrimination claim under § 31-290a. The court concluded that the plaintiff's allegation that his employer discriminated against him by failing to make light duty work available was insufficient to bring a cause of action under § 31-290a. The court found that there was no "allegation that the plaintiff [was] bringing this action because he otherwise exercised the rights afforded to him pursuant to the provisions of the [workers' compensation statute]." (Emphasis in original). Id. The court explained that in order to use a violation of § 31-313, or a claim that the defendant discriminated against him by failing to make light duty available, as a basis for alleging a § 31-290a cause of action the plaintiff "must first exhaust his administrative remedy under [§ 31-313] . . .
In Lopez v. Walnut Hill, Inc., supra, Superior Court, Docket No. CV 990498763, the court rejected the plaintiff's argument that the defendant employer's failure to make light duty work available constituted a violation that would form a basis for a retaliation claim under § 31-290a. The court noted that while the parties differed over whether the plaintiff could perform the essential functions of her job, there was no question that medically she was only cleared for light duty work. The court concluded that "gravamen of [the plaintiff's] complaint [was] that the defendant failed to allow her to retain permanent light duty" and that because the essence of her claim was that her employer had failed to transfer her to permanent work suitable to her condition, § 31-313 was the appropriate remedy.
In the present case, in her complaint, the plaintiff alleges that "[i]n refusing to allow the plaintiff to continue light duty work, the defendant has discriminated against the plaintiff in retaliation for her filing a workers' compensation claim and exercising her rights under the Workers' Compensation Act in violation of [§ 31-290a]." In the present case, similar to the plaintiff in Lopez, the "gravamen of [the plaintiff's] complaint is that the defendant failed to allow her to retain permanent light duty" and similar to the plaintiff in Lopez this claim falls squarely within the ambit of § 31-313. Moreover, similar to the plaintiff in Lopez, there is no allegation that the plaintiff has exhausted her administrative remedy and because she has not done so, the court is without subject matter jurisdiction in the present case.
The plaintiff also cites to Collins v. Bridgeport Resco Co., Superior Court, judicial district of Fairfield, Docket No. CV 93 308533 (February 28, 1994, Pittman, J.) ( 9 C.S.C.R. 297) in support of her argument. The plaintiff's reliance on Collins, however, is misplaced as Collins is both procedurally and factually distinguishable from the present case. In Collins, the plaintiff brought an action against his employer pursuant to § 31-290a after his employer terminated him in lieu of the employer finding light duty work for him to do. The court rejected the defendant's argument that the plaintiff's cause of action fell exclusively under § 31-313. In rejecting the argument, however, the court explicitly noted that because it was ruling on a motion to strike, the court was limited to the four corners of the complaint which alleged only that the defendants discharged the plaintiff for his exercise of rights under the Workers' Compensation Act. In denying the motion to strike, the court stated that "[i]t may be, as counsel for the defendants stated at oral argument, that there will be evidence of [a dispute concerning the availability of light duty work]; but that is an issue of proof, not pleading." Id.
In the present case, unlike in Collins, the motion before this court is a motion to dismiss. On a motion to dismiss, unlike on a motion to strike, the court is not limited to the four corners of the complaint, the court is free to examine " undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [and/or] other types of undisputed evidence" and "the . . . court . . . may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . ." (Citations omitted; internal quotation marks omitted). Conboy v. State, supra, 292 Conn. 651.
More importantly, the plaintiff's complaint, unlike the complaint before the court in Collins, does not simply allege that the plaintiff was retaliated against for filing a workers' compensation claim. It explicitly alleges that the defendant discriminated against the plaintiff in failing to continue to provide light duty work.
The plaintiff further attempts to distinguish her case from the holdings in Robinson and Lopez by arguing that her case does not concern a dispute pertaining to light duty because she could and was performing her customary and most recent work. This argument is equally unpersuasive. The plaintiff attempts to characterize her claim as a simple claim of retaliation in that she was performing her current customary work and was stopped from doing so in retaliation for filing a workers' compensation claim. The plaintiff's complaint does not make or support these allegations. Instead, in her complaint, the plaintiff explicitly alleges that "[o]n April 27, 2007 and since that time there was suitable light duty work available at the [defendant's] facility for which the plaintiff was qualified" and the defendant "[i]n refusing to allow the plaintiff to continue light duty work . . . has discriminated against the plaintiff in retaliation for her filing a workers' compensation claim and exercising her rights under the Workers' Compensation Act in violation of [§ 31-290a]."
Nothing in the plaintiff's complaint supports the proposition that she was continuing her customary position. The complaint alleges that after her second injury on February 23, 2006, she returned to work, after being certified for light duty by her physician. It further alleges that she was assigned suitable work that met the physical restrictions delineated by her physician. There is some discrepancy, however, as to whether the plaintiff could perform the essential functions of her current position. In her deposition testimony, the plaintiff states that she is able to perform the essential functions of her current position, and attaches a satisfactory performance evaluation in support of this. The plaintiff appears to argue that, because she was performing her current position well, this somehow transforms the position from a modified light duty position into her customary work. This argument is misplaced. The plaintiff does not dispute that after her injury her employment position changed or was modified to meet her physical restrictions. In her deposition testimony, the plaintiff described how, prior to her injury, she performed three different operator positions at any given time. The plaintiff further describes how after her injury she could only perform one of those operator positions and was specifically assigned to that position to accommodate the physical restrictions placed upon her by her physician. The plaintiff has not provided any evidence refuting that she was not moved from her original position after she was injured. Nor has the plaintiff provided any evidence that she was cleared for regular work or that her physician had allowed her to perform anything other than light duty work. See Lopez v. Walnut Hill, Inc., supra, Superior Court, Docket No. CV 99 0498763. While it may be true that the plaintiff was performing her current position satisfactorily, both the evidence and allegations in the complaint show that she had been moved from her original position after her physician certified her for light duty work only.
To argue that the plaintiff can perform the essential functions of her light duty employment well does not somehow transform that position into the plaintiff's customary job. For example, if an individual works on an assembly line and is later transferred to office work to accommodate a work related injured, just because that individual performs his office work well does not somehow change the fact that he is performing a different position because of his injury.
Additionally, disputes over whether an employee can perform her customary work, which appears to be the dispute here, seem to also fall within the ambit of § 31a-313, which permits the commissioner to determine whether an employee can perform their customary work. Further, there is no question that the basis for her discrimination claim, as alleged in her complaint, is that the defendant discriminated against her by refusing to continue to provide light duty. On a motion to dismiss, while the plaintiff can present evidence outside the confines of her complaint supporting her complaint, she cannot attempt to change the basis of her cause of action.
D Attorneys Fees
Finally, the court must address the defendant's request for attorneys fees. In regard to that request, "[the Supreme Court] . . . has recognized a bad faith exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). "It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Maris v. McGrath, 269 Conn. 834, 844, 850 A.2d 133 (2004). The Supreme Court has declined to "uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . ." (Internal quotation marks omitted.) Id., 845. "Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established . . ." (Emphasis in original; internal quotation marks omitted.) Id.
There is nothing to indicate that the plaintiff acted in bad faith. Although, the plaintiff was not terminated from her position, as proved by the defendant, § 31-290a does not require that an individual be terminated in order to exercise their rights under the statute. The plaintiff still might have had a colorable claim under § 31-290a regardless of whether she was terminated or not. Although, the defendant prevailed, and the law is fairly well-settled on this issue there is some room for interpretation and admittedly there is no direct binding precedent that would make the plaintiff's claim so frivolous as to merit attorneys fees. Accordingly, the defendant's request for attorneys fees is denied.
Accordingly, the motion to dismiss is granted.
SO ORDERED.
1 General Statutes § 31-290a provides in relevant part "(a) [n]o employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for Workers' Compensation Benefits or otherwise exercised the rights afforded to him pursuant to this chapter. (b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office . . . or (2) file a complaint with the chairman of the workers' compensation commission alleging violations of subsection (a) of this section."
2 General Statutes § 31-313 provides in relevant part that "(a)(1) [w]here an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available, during the time that the employee is subjected to medical treatment . . . (2) The commissioner shall conduct a hearing upon the request of an employee who claims his employer has not transferred him to such available suitable work. Whenever the commissioner finds that the employee is so disabled, and that the employer has failed to transfer the employee to such available suitable work, he shall order the employer to transfer the employee to suck work. (b) The commissioner shall conduct a hearing upon the request of an employee claiming to be unable to perform his customary or most recent work because of physical incapacity resulting from an injury or disease."
3 As stated in the Practice Book, "[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. Thus, "it is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] courts lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007).
4 The plaintiff correctly points out that there is no direct appellate authority on the issue. While, Chia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 362-64, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991), and Chernovitz v. Preston Trucking Co., 52 Conn.App. 570, 50-71, 574, 729 A.2d 222 (1999), do not directly address the issue, these cases are "instructive on the issue of whether the plaintiff must first exhaust [her] administrative remedy under [§ 31-313] if [she] is going to use this as a basis for alleging a § 31-290a cause of action." Robinson v. Connecticut Rental Centers, Inc., supra, Superior Court, Docket No. CV 990087536. In both of these cases, the plaintiffs had alleged discrimination because the defendant had terminated them after they were absent from work due to a lack of availability of light duty work. Notably, in these cases the plaintiffs did exhaust their administrative remedies first. The plaintiffs filed claims with the workers' compensation commission and the commissioner did address the employee's claims. See id. The Supreme Court intimates as much in Mele v. Hartford, 270 Conn. 751, 772-73, 855 A.2d 196 (2004). In determining whether the workers' compensation commission correctly concluded that the plaintiff had successfully alleged a claim for discrimination under § 31-290a, the court examined whether the plaintiff by requesting certain accommodations for her physical disabilities exercised her rights under the act such that the commissioner could have appropriately found a claim of discrimination. Id. The court determined that because the plaintiff did not file a claim with the commissioner pursuant to § 31-313 and because her request for accommodation did not amount to requests for light duty, the commissioner was incorrect in finding that the plaintiff had exercised her rights under the workers' compensation act thereby invoking a § 31-290a claim. Id.
The court is mindful that some case law from the federal district court for Connecticut suggests that a retaliatory discharge action may be brought under § 31-290a where claims of a failure to provide light duty are implicated. In Clouston v. On Target Locating Services, No. 3:1CV2404 (D.Conn. August 15, 2005), the plaintiff asserted a discrimination claim under § 31-290a after, the defendant, his employer demoted him for objecting to the defendant's failure to observe his physical restrictions for his return to light duty. The court in Clouston, however, distinguished its holding from the general line of cases that have concluded that a plaintiff must exhaust his administrative remedies under § 31-313 before he can allege a discrimination claim on the basis of a failure to provide light duty. The court noted that in the case presently before it, § 31-313 was not implicated because the plaintiff was not alleging that he was discriminated against because of a failure to provide light duty but rather, he was alleging that he was discriminated against because he was demoted in retaliation for asserting this right.