Opinion
No. CV 02-0817587
April 13, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE AND MOTION TO DISMISS (#113, #113.10)
This is an action brought by the plaintiff, Dolores Miller, a nurse employed by the state of Connecticut Department of Mental Retardation (DMR) at the Southbury Training School (training school) against the defendants, Peter H. O'Meara, in his official capacity as commissioner of DMR; Fritz Gorst, executive director of the training school, individually; Thomas Harris, director of personnel at the training school, individually; Marianne Orazietti, a nursing consultant employed at the training school, individually; Kevin McDermott, a registered nurse employed by the DMR at the training school, individually; and DMR. On December 11, 2003, the plaintiff filed a five-count revised complaint against the defendants. The only count relevant to this motion to strike and motion to dismiss is count one, in which the plaintiff alleges a violation of General Statutes § 31-5m against DMR. and O'Meara.
Section 31-51m provides in relevant part: "(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action . . . The provisions of this subsection shall not be applicable when the employee knows that such report is false.
"(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office . . ."
On February 4, 2004, the defendants filed a motion to strike and motion to dismiss for lack of subject matter jurisdiction all five counts of the plaintiff's complaint. The defendants' motion was supported by a memorandum of law. The plaintiff filed a memorandum in law in opposition to the defendants' motion on May 28, 2004 and waived the fifth count sounding in defamation. The defendants filed a supplemental brief on June 29, 2004, and another supplemental brief on June 30, 2004.
On November 23, 2004, the court, Booth, J., issued a memorandum of decision addressing the defendants' motion to strike and motion to dismiss counts two through four. The only remaining count subject to the motion to strike and motion to dismiss is count one.
On November 24, 2004, the court, Booth, J., ordered reargument on the following issues relating to the defendants' motion to strike and motion to dismiss count one of the plaintiff's complaint: (1) the effect of the recent Connecticut Appellate Court decision, Egri v. Foisie, 83 Conn.App. 243, 848 A.2d 1266, cert. denied, 271 Conn. 931, 848 A.2d 1266 (2004), to the present case in regard to whether dismissal is appropriate where a plaintiff has failed to allege exhaustion of administrative remedies to support a waiver of sovereign immunity pursuant to § 31-51m; and (2) what, if any, administrative remedy was available to the plaintiff in the present case, and did she in fact exhaust this remedy? In response to the court's order for reargument, the defendants submitted a memorandum of law regarding reargument on December 13, 2004. The plaintiff submitted her response to the defendants' memorandum on December 27, 2004.
"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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002) "[I]n ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [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.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "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).
"[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The Practice Book does not support nor is there any "authority for [a] hybrid motion to dismiss and/or strike. [Nevertheless,] [t]he Supreme Court has approved the procedure of treating a motion to dismiss as a motion to strike where appropriate. McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991)." (Internal quotation marks omitted.) Henton v. State, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0274646 (December 16, 1993, Maiocco, J.).
As most recently articulated by the Appellate Court, "[t]he motion to dismiss is governed by Practice Book §§ 10-30 through 10-34. Properly granted on jurisdictional grounds, it 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." (Citations omitted; emphasis added.) Egri v. Foisie, supra, 83 Conn.App. 247. In Egri, the court further elaborated on the distinction between the two motions, by stating that: "[t]here 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." (Emphasis in original.) Id.
In count one, the plaintiff alleges that she was disciplined by the defendants for making several written complaints to the acting clinical director at the training school, McDermott, and the director of nursing services at the training school, Bonnie Derrivan, regarding the medical equipment at the training school, which was "missing parts and was inadequate for patient care" and "other deficiencies in the health care delivered" to the residents of the training school, and that this disciplinary action was a violation of § 31-51m. The defendants argue in their memorandum of law in support of their motion to strike and motion to dismiss that the plaintiff failed to allege exhaustion of administrative remedies and the claim is untimely and therefore fails to state a claim for relief. In response, the plaintiff argues that she has in fact exhausted her administrative remedy.
The defendants argue in their memorandum of law regarding reargument that Egri v. Foisie, supra, 83 Conn.App. 243, was wrongly decided by the Appellate Court and that a motion to strike should be treated as a motion to dismiss where the defendant is the state because sovereign immunity implicates subject matter jurisdiction. As such, the defendants contend that the plaintiff was required to allege exhaustion of administrative remedies, which included going to the claims commissioner. In response, the plaintiff argues that Egri was correctly decided, and that treating a motion to strike as a motion to dismiss is not appropriate where the plaintiff can state a cause of action. In addition, the plaintiff contends that she was not required to go before the claims commissioner as § 31-51m is a legislative waiver of sovereign immunity.
For the following reasons, the court will treat the motion to strike and motion to dismiss the first count as a motion to strike.
I CLAIMS COMMISSIONER CT Page 6447
The Connecticut Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004). "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "[I]n the absence of legislative authority . . . (the Supreme Court has] declined to permit any monetary award against the state or its officials [or agents]." (Internal quotation marks omitted.) Bloom v. Gershon, supra, 271 Conn. 107. "When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim." (Internal quotation marks omitted.) Id. "In other words, a plaintiff must exhaust his or her administrative remedies by proceeding through the claims commissioner. Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1998)." (Internal quotation marks omitted.) White v. Conte, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 03 0081299 (October 6, 2003, Holden, J.). "Section 4-142 thereof establishes the office of a `claims commissioner who shall hear and determine all claims against the state except . . . (2) claims upon which suit otherwise is authorized by law . . .'" Duguay v. Hopkins, 191 Conn. 222, 229, 464 A.2d 45 (1983).Connecticut has provided a statutory remedy for whistle-blower retaliation claims under General Statutes § 31-51m. "Section 31-51m . . . protects the employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation." Arnone v. Enfield, 79 Conn.App. 501, 506-07, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003). Section 31-51m waives sovereign immunity and is otherwise "authorized by law," and therefore a claimant is not required to bring a § 31-51m claim before the claims commissioner. DiNapoli v. Dept. of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV 01 0511044 (June 25, 2004, Cohn, J.). "The need to proceed through the Claims Commission would only arise if § 31-51m cases implicate the state's sovereign immunity . . . [T]he state has specifically waived sovereign immunity in § 31-51m(a)(2). Therefore there [is] no requirement that the plaintiff exhaust by filing a claim with the Claims Commission." Id. The court finds the reasoning followed by the more recent Connecticut trial courts to be the more logical. In the present case, the plaintiff was not required to bring her claim before the claims commissioner.
An employer is defined in § 31-51m(a)(2) as "a person engaged in business who has employees, including the state and any political subdivision of the state." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 219 n. 9, 828 A.2d 64 (2003).
See also Healey v. Dept. of Mental Retardation, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0559173 (September 11, 1997, Barry, J.); but see Greene v. Meachum, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 378623 (January 8, 1990, Stengel, J.) (suits under General Statutes § 31-51m "are not otherwise authorized by law because the construction of [§ 31-51m] specifically requires the exhaustion of administrative remedies").
The court notes that if the plaintiff had been required to present her claim to the claims commissioner pursuant to § 4-165, then failure to plead exhaustion of that particular remedy would be a jurisdictional defect subject to a motion to dismiss as the statute specifically calls for the allegation of exhaustion of this remedy. See Capers v. Lee, 239 Conn. 265, 272, 684 A.2d 696 (1996).
II ADMINISTRATIVE REMEDY
As stated above, § 31-51m expresses a "clear intention" of the legislature to waive sovereign immunity from suit, which thereby eliminates the need to present a monetary claim to the claims commissioner prior to bringing a claim to the Superior Court. Nevertheless, "where a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case." Novicki v. New Haven, 47 Conn.App. 734, 739, 709 A.2d 2 (1998). Section 31-51m specifically states that the claimant must exhaust "all available administrative remedies" before bringing suit in Superior Court, and Connecticut trial courts have strictly adhered to this statutory requirement.
"[B]ecause the state has permitted itself to be sued in certain circumstances, [the Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . Further, [the Supreme Court] has stated that the state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed . . ." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 549-50, 825 A.2d 90 (2003).
Trombley v. Convalescent Center of Norwich, Superior Court, judicial district of New London, Docket No. CV 99 543772 (June 30, 1999, Martin, J.); Holub v. Babcock King, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 0319683 (November 3, 1994, Levin, J.) ( 12 Conn. L. Rptr. 634); Brotherton v. Burndy Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 90 022481 (September 24, 1990, Fuller, J.) ( 2 Conn. L. Rptr. 508, 509-10); Greene v. Meachum, supra, Superior Court, Docket No. CV 90 378623.
"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563-64, 821 A.2d 725 (2003). "The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Id., 564. "A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It 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 . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. 564-65. "The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate . . . Because of the policy behind the exhaustion doctrine, we construe these exceptions narrowly." (Citations omitted; internal quotation marks omitted.) Id., 565; see also Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 687, 553 A.2d 1104 (1989).
Section 31-51m is clearly a statutory waiver of sovereign immunity, which makes it unnecessary for the plaintiff in the present case to present her claim to the claims commissioner before bringing a § 31-51m cause of action in Superior Court. Nevertheless, she must still exhaust "all available administrative remedies." Connecticut General Statutes § 31-51m(c). The plaintiff has not alleged in her complaint that she exhausted all available administrative remedies; however, she has asserted that she has in fact exhausted her administrative remedy. The court was not provided with any authority, nor could it locate any, to suggest that a party must not only exhaust any administrative remedies but also plead exhaustion of administrative remedies in order to confer jurisdiction on the court. Moreover, in Egri, the court held that a plaintiff who failed to allege the necessary jurisdictional facts to bring his claim within the purview of a statutory waiver of sovereign immunity, but who could establish these necessary facts, was subject to a motion to strike and not a motion to dismiss. Egri v. Foisie, supra, 83 Conn.App. 250. In other words, the mere failure to allege these jurisdictional facts did not go to the jurisdiction of the court. Id., 250-51. In light of the Appellate Court's ruling in Egri, the court finds that the failure of the plaintiff in the present case to allege that she exhausted her administrative remedies is not a jurisdictional defect and will therefore treat the motion to strike and motion to dismiss as a motion to strike. While the plaintiff can state a cause of action pursuant to § 31-51m if she has in fact exhausted her administrative remedy, she has not stated a cause of action for a violation of § 31-51m because she failed to allege that she exhausted that remedy. Accordingly, the motion to strike is granted.
The court is satisfied that the plaintiff has exhausted her administrative remedy by going through the union grievance process. The plaintiff asserts that she can allege this fact if the court deems it necessary in order to state a cause of action pursuant to § 31-51m.
See UNC, Inc. v. Dept. of Environmental Protection, Superior Court, judicial district of New London at Norwich, Docket No. CV 93 102376 (June 24, 1993, Teller, J.) ( 9 Conn. L. Rptr. 334). Although the UNC, Inc., court noted that it could not find any authority to "support the proposition that exhaustion must be specifically pled," it acknowledged that the plaintiff had sufficiently alleged that she exhausted her administrative remedy.
See also Wilson v. Troxler, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0281779 (August 19, 2004, Tanzer, J.); Mazzuca v. Sullivan, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08 CV 02 0190220 (September 12, 2003, Adams, J.) ( 35 Conn. L. Rptr. 482); Anderson v. Murphy, Superior Court, judicial district of Hartford, Docket No. CV 02 0814479 (May 1, 2002, Hennessey, J.).
The defendants cite to Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004), and Federal Deposit Ins. Corp. v. Peabody N.E., Inc., 239 Conn. 93, 680 A.2d 1321 (1996), to support their argument that the Appellate Court's decision in Egri is wrong; however, the court is not convinced. In Allison v. Manetta, supra, 84 Conn.App. 542, the Appellate Court reversed the trial court's granting of a motion to dismiss because it found that based on the facts of the case, the court had jurisdiction. Id. The fact that the court did not discuss whether the motion to dismiss brought in the lower court was procedurally improper is not a basis for ignoring or discounting the decision in Egri. In CT Page 6453 Federal Deposit Ins. Corp. v. Peabody N.E. Inc., supra, 239 Conn. 99-100, the Supreme Court held that the trial court lacked jurisdiction where the facts alleged did not bring the claim within the purview of the statutory waiver of sovereign immunity, and that the court should not have ruled on an amended complaint before determining whether it had jurisdiction. Id. The present case is factually different if the plaintiff is able to satisfy the requirement of the legislative waiver of sovereign immunity pursuant to § 31-51m because she has in fact exhausted her administrative remedy moreover there is no amended complaint before the court.
Kevin E. Booth, J.