Opinion
HHDCV156062296S
08-30-2016
Raymond Ostasiewski v. State of Connecticut Department of Revenue Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion to dismiss filed by the defendant, state of Connecticut Department of Revenue Services (state). The state seeks to dismiss the gender and race discrimination claims which the plaintiff, Raymond Ostasiewski, alleges in his employment discrimination action against the state. Ostasiewski's age discrimination claim, which the state concedes was properly before the Connecticut Commission on Human Rights and Opportunities (" CHRO") when it issued its release of jurisdiction for Ostasiewski to file suit against the state, is not the subject of this motion to dismiss.
In moving to dismiss the gender and race discrimination claims, the state asserts that this court lacks subject matter jurisdiction because Ostasiewski failed specifically to request a release of jurisdiction from the CHRO as to those claims. Ostasiewski does not dispute that he failed specifically to make those requests, but instead, argues that the mere reference to the gender and race attributes of the individuals who received preferential treatment from the state is sufficient to put the CHRO and the state on notice as to his gender and race discrimination claims. This court disagrees with Ostasiewski and dismisses the gender and race discrimination claims.
DISCUSSION
" In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [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). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . 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 Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
" 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. Furthermore, " [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).
A. Exhaustion of Administrative Remedies
The state argues that Ostasiewski never raised claims of gender or race discrimination in his CHRO complaint and that he only alleged age discrimination. Therefore, the state claims that Ostasiewski must exhaust his administrative remedies by filing a race and gender charge with the CHRO and receiving a release of jurisdiction. Furthermore, the state argues that Ostasiewski's age discrimination filed with the CHRO is not reasonably related to his gender and race discrimination claims. Nowhere in the CHRO complaint or in the four amendments filed by Ostasiewski does he allege gender or race discrimination. Rather, he alleges solely age discrimination and checks off the " age" box on the relevant form.
In response, Ostasiewski argues that his race and gender discrimination claims are reasonably related to the allegations in his CHRO complaint because the complaints contain relevant facts which raise an inference of gender and race discrimination. Moreover, the same facts alleged in Ostasiewski's superior court complaint to support his race and gender discrimination claims were also contained in his CHRO complaint.
Ostasiewski specifically alleges that both the superior court complaint and the CHRO complaint allege the following: Ostasiewski is a white male; he applied for a promotion; the state promoted Kathryn Lewis, a female, instead of Ostasiewski; the state promoted Andrea Taylor, a black female, instead of Ostasiewski; the state discriminated against Ostasiewski in violation of General Statutes § 46a-60(a)(1).
" Section 46a-100 provides in relevant part that [a]ny person who has timely filed a complaint with the [commission] . . . and who has obtained a release from the commission . . . may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford. The requirement that a plaintiff must first obtain a release of jurisdiction before bringing an action in Superior Court is codified at General Statutes § 46a-101(a), which provides that [n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section. Accordingly, § 46a-100 expressly waives sovereign immunity and creates a cause of action in the Superior Court for claims alleging a violation of § 46a-60 over which the commission has released jurisdiction . . . Thus, only a plaintiff who has first obtained a release is entitled to take advantage of the state's statutory waiver of sovereign immunity." (Citation omitted; emphasis in original; internal quotation marks omitted.) Ware v. State, 118 Conn.App. 65, 80, 983 A.2d 853 (2009).
Connecticut courts routinely look to federal precedent for guidance in interpreting this statutory scheme. " In drafting and modifying the Connecticut Fair Employment Practices Act . . . our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 . . . and it has sought to keep our state law consistent with federal law in this area.*** The United States Court of Appeals for the Second Circuit has recognized that [a] claim is considered reasonably related if the conduct complained of would fall within the scope of the [commission's] investigation which can reasonably be expected to grow out of the charge that was made . . . In this inquiry, the focus should be on the factual allegations made in the [CHRO] charge itself, describing the discriminatory conduct about which a plaintiff is grieving . . . The central question is whether the complaint filed with the [CHRO] gave that agency adequate notice to investigate discrimination on both bases . . . The reasonably related exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that [CHRO] charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the [CHRO] to the discrimination that a plaintiff claims [he] is suffering . . . This determination will in large part rest on our interpretation of the plaintiff's pleadings, which is always a question of law for the court . . ." (Citations omitted; internal quotation marks omitted.) Id., 82-83.
There are three types of claims that courts will find are " reasonably related" to the ones asserted in an administrative filing: (1) claims where the conduct complained of would fall within the scope of the administrative investigation which can be reasonably expected to grow out of the charge of discrimination; (2) claims alleging retaliation by an employer against an employee for filing an administrative charge; and (3) claims where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the administrative charge. See O'Hazo v. Bristol-Burlington Health District, 599 F.Supp.2d 242, 254 (D.Conn. 2009). " [T]he requirement to exhaust administrative remedies under the [Connecticut Fair Employment Practices Act] is satisfied with respect to retaliation claims if the claim is reasonably related to the allegations of discrimination that were previously filed with the commission on human rights and opportunities." Tatro v. Cascades Boxboard Group Connecticut, LLC, Superior Court, judicial district of New London, Docket No. CV-09-4009597-S, (April 22, 2010, Martin, J.). The plaintiff argues that his race and gender discrimination claims fall into the first reasonably related exception.
In this case, Ostasiewski asserts that because the same facts alleged in the superior court complaint are also alleged in the CHRO complaint, the CHRO had notice of the race and gender claims. The case law is quite clear, however, that " courts in the Second Circuit have generally held that claims alleging discrimination based upon a protected classification which are different than the protected classification asserted in administrative filings are not reasonably related. See, e.g., Gronowicz v. College of Staten Island, 359 F.Supp.2d 243, 249 (N.D.N.Y. 2005) ('plaintiff's administrative complaint alleging discrimination based on age could not reasonably be expected to have triggered an investigation into the allegations of national origin discrimination under Title VII'); Culbertson v. Charosa Foundation Corp., United States District Court, Docket No. 03-CV-3742 (SJF) LB, (E.D.N.Y. October 18, 2004) (finding that 'plaintiff's administrative complaint alleging discrimination based on gender could not reasonably be expected to have triggered an investigation into allegations of age, racial, and religious discrimination she now raises'); Murray v. Brooklyn Public Library, United States District Court, Docket No. 96-CV-2786 (JG) (E.D.N.Y. June 13, 1997) (dismissing gender discrimination charge where administrative complaint had only alleged discrimination on the basis of race and age); Mitchell v. Fab Industry., Inc., United States District Court, Docket No. 96 CIV. 00095 (RWS), (S.D.N.Y. July 25, 1996) ('claims of discrimination based upon race and national origin are not reasonably related to the original claims religious and sexual discrimination under the loose pleading allowance described in Butts ')." Pleau v. Centrix, Inc., 501 F.Supp.2d 321, 326-27 (D.Conn. 2007) aff'd 343 Fed.Appx. 685 (2d Cir. 2009) (holding that plaintiff's argument that his gender discrimination claim was reasonably related to his age discrimination claim failed); contra Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (holding that national origin discrimination claim reasonably related to race discrimination because the two substantially overlap or can even be indistinguishable depending on the specific facts of the case). Thus, because Ostasiewski alleges discrimination based upon protected classifications that are different from the protected classification alleged in the CHRO complaint, his race and gender discrimination claims made here are not reasonably related to his age discrimination claims made with the CHRO.
Furthermore, Ostasiewski's argument that both the superior court complaint and the CHRO complaint allege the same factual allegations is unavailing. Namely, both contain the following allegations: (1) Ostasiewski was a white male; (2) the state refused to offer Ostasiewski a promotion to a position for which he was qualified; (3) instead of Ostasiewski, the state promoted Kathryn Lewis to the position, a female who was significantly less qualified than Ostasiewski; (4) instead of Ostasiewski, the state promoted Andrea Taylor to the position, a black female who was significantly less qualified than Ostasiewski; and (5) the state's promotion of Lewis and Taylor instead of Ostasiewski violated General Statues § 46a-60(a)(1). These allegations are insufficient to give the CHRO notice to investigate claims of race and gender discrimination.
Ostasiewski's use of the phrases " white male" and " African American female" are merely descriptors of himself and the individuals promoted to the position. Use of these descriptors, by itself, is insufficient to establish that the CHRO was put on notice of potential race and gender discrimination claims. See Warshun v. New York Community Bancorp, Inc., 957 F.Supp.2d 259, 268-69 (E.D.N.Y. August 1, 2013) (stating that " [t]he only reference to race in the EEOC charges were the Plaintiffs' respective self-descriptions as Caucasian, which, in the Court's view, is not sufficient to establish that the EEOC was put on notice of potential racial discrimination"). Moreover, in Ostasiewski's CHRO complaint, there is no direct reference made to race or gender discrimination; rather, Ostasiewski only checked the box for age discrimination. While checking only the age discrimination box is not dispositive of the fact that only age discrimination was alleged, in all four amendments to his CHRO complaint, Ostasiewski states that he " filed an age discrimination complaint, " and he is " hereby amending [his] age discrimination complaint." No reference is ever made to race or gender discrimination. Finally, throughout his CHRO complaint, Ostasiewski emphasizes by italicizing, bolding, or underlining certain words or phrases that are indicative of age discrimination; no such emphasis is used to discuss or highlight potential race or gender discrimination. Even when Ostasiewski is identifying himself and the individuals promoted, he does not emphasize the word White, African American, female, or male.
Thus, because Ostasiewski's present race and gender discrimination claims are not reasonably related to his age discrimination claim filed with the CHRO, for which he received a release of jurisdiction, this court grants the motion to dismiss those claims. Furthermore, Ostasiewski's race and gender discrimination claims also must be dismissed on the ground that he did not exhaust his administrative remedies.
B. Sovereign Immunity
Next, the state argues that Ostasiewski's claim for punitive damages should be dismissed because, based on Ware v. State, supra, 118 Conn.App. 87, waiver of sovereign immunity does not extend to punitive damages. In response, Ostasiewski claims that his request for punitive damages pursuant to General Statutes § 46a-104 should survive a motion to dismiss because the Supreme Court granted certiorari specifically on that issue in Tomick v. United Parcel Service, Inc., 317 Conn. 916, 117 A.3d 854 (2015). Section 46a-104 provides in relevant part: " The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs."
Notably, Ostasiewski's action is against the state. In Connecticut, there is a strong " public policy against permitting punitive damages against the state. See City of Hartford v. International Ass'n of Firefighters, Local 760, 49 Conn.App. 805, 817-18, 717 A.2d 258 ('[w]hile the public is benefited by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is penalized for the acts of its agents over which it is able to exercise but little direct control' [internal quotation marks omitted]), cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). In addition, the United States Supreme Court has held that punitive damages are unavailable against municipalities in actions brought pursuant to 42 U.S.C. § 1983. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ('Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct . . . Under ordinary principles of retribution, it is the wrongdoer himself who is made to suffer for his unlawful conduct. If a government official acts knowingly and maliciously to deprive others of their civil rights, he may become the appropriate object of the community's vindictive sentiments . . . A municipality, however, can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.' [Citations omitted; emphasis in original.])." Ware v. State, supra, 118 Conn.App. 89. Thus, the court in Ware held that § 46a-104 does not authorize punitive damages against the state as it is not explicitly provided for them in the statute. Id., 87 n.14, 88. Tomick, on which Ostasiewski relies to preserve his claim for punitive damages, can be distinguished from the present case in that Tomick involved an action against a private party, not the state. Because this court is bound by the authority of Ware, this court also grants the motion to dismiss Ostasiewski's claims for punitive damages.