Opinion
No. CV 04-4001133-S
May 6, 2005
MEMORANDUM OF DECISION
Plaintiff, Maureen Reilly was a tenured teacher at Unified School District #1.
Unified School District #1 was created pursuant to General Statute § 18-99a to be an educational institution for prisoners within the State of Connecticut. Said District is supervised by defendant Lantz. The superintendent of schools for Unified School District #1 is defendant Barber. Educators within the Unified School District #1 are subject to a collective bargaining agreement ("Agreement") between the State of Connecticut and the Connecticut Employees Association, this Agreement is entitled Education Professions (P-3B) Contract and is effective as of July 1, 2001. A copy of same was provided the court by agreement of the parties.
On July 6, 2004, the defendant Barber sent to the plaintiff a letter via certified mail stating that she was terminated effective July 20, 2004. The letter stated that Unified School District #1 had conducted an Affirmative Action Investigation by which officials determined that the plaintiff had violated sexual harassment and workplace violence rules. The letter proceeded to state that the plaintiff had the right to appeal the determination within 15 days of the date of the letter. The appeal is to the Director of Personnel for the school district. Her termination was never appealed nor was there a request for a hearing pursuant to C.G.S. § 10-151.
On July 30, 2004, the plaintiff commenced this wrongful termination action against all the defendants. The plaintiff alleged that the defendants violated her due process rights under Article First § 8 of the Connecticut Constitution and 42 U.S.C. § 1983 because they did not follow General Statutes § 10-151 when terminating her. On September 30, 2004, the defendants filed this motion to dismiss asserting that the Agreement supersedes § 10-151 and the complaint is barred by the doctrine of sovereign immunity under Connecticut General Statutes § 4-165 and that the only method by which the plaintiff can challenge her termination is by following the grievance procedures of the Agreement.
"[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "[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.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "Jurisdiction of the subject-matter is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Once 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." (Citation omitted; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted.) Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
SOVEREIGN IMMUNITY AND § 10-151
The doctrine of sovereign immunity acts as a complete bar to unauthorized suits for monetary damages against the state or its agents in their official capacities for deeds committed within the scope of their employment. See Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981) (state can only act through its employees, thus, a suit against a state employee is in essence a suit against the state); but see Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977) (sovereign immunity does not apply when employees act in excess of their statutory authority); Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969) (the sole fact that employees are agents of the state does not mean sovereign immunity applies). In sum, it is uncontroverted that in Connecticut jurisprudence sovereign immunity is unavailable to the state or its agents as a defense when a statute clearly abrogates immunity.
The ability of the Connecticut legislature to simply waive sovereign immunity by statute is not a novel idea. See Martinez v. Dept of Public Safety, 263 Conn. 74, 82, 818 A.2d 758 (2003) ("[Where] the state has permitted itself to be sued in certain circumstances, this 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, this 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."); see also Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 269-71, 812 A.2d 95 (2002). In creating Unified School District #1, the legislature provided that "[t]he Commissioner of Correction may establish a school district within the Department of Correction for the education or assistance of any person confined in any institution of the department. The school district shall be known as State of Connecticut-Unified School District #1." General Statutes § 18-99a. The legislature further provided that "all provisions of the general statutes concerning education, except those provisions relating to the eligibility for noncompetitive state aid unless otherwise provided, shall apply to the operation of the . . . State of Connecticut-Unified School District #1 established pursuant to Section 18-99a within the Department of Correction . . ." General Statutes § 10-15d. Under Connecticut law "[e]ach school district shall be a body corporate and shall have power to sue and be sued . . . and to employ teachers, in accordance with the provisions of Section 10-151, and pay their salaries." (Emphasis added.) General Statutes § 10-241; Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982); Unified School District #1 v. Department of Education, 64 Conn.App. 273, 780 A.2d 154 (2004); cert. denied, 258 Conn. 910, 782 A.2d 1253 (2001).
Under the Connecticut Constitution, "[n]o person shall be compelled to give evidence against himself nor be deprived of life, liberty or property without due process of law . . ." Article First, § 8. The established precedent in this jurisdiction is that the purpose of § 10-151 is to provide a due process framework for terminating tenured teachers. See Mendillo v. Board of Education, 246 Conn: 456, 468-69, 771 A.2d 1177 (1998). Tenured teachers have a property right in their employment entitling them to due process in the event their positions are terminated. See Appleton v. Board of Education, 53 Conn.App. 252, 730 A.2d 88, affirmed in part and reversed in part, 254 Conn. 208, 757 A.2d 1059 (1999); Mendillo v. Board of Education, supra, 246 Conn. 456; Lacroix v. Board of Education, 199 Conn. 70, 505 A.2d 1233 (1986); Pagano v. Board of Education, 4 Conn.App. 1, 492 A.2d 197, cert. denied, 197 Conn. 809, 499 A.2d 60 (1985). Last, the fact that a collective bargaining agreement between a teachers' union and the state can in no way deprive a teacher of their right to due process under both the U.S. and Connecticut State Constitutions in fact is a widely accepted proposition of law. See Murphy v. Young, supra, 44 Conn.App. 680 ("The sole and controlling legislative enactment with respect to the employment and termination of tenured teachers is the tenured teacher's act").
Although § 10-151 provides a tenured teacher the right to appeal a termination decision to Superior Court, the right to appeal is not unfettered. With few exceptions, a tenured teacher must exhaust her administrative remedies set forth in § 10-151 when § 10-151 is designed to redress the harm complained of. See Mendillo v. Board of Education, supra, 246 Conn. 467 (teacher not required to follow 10-151 appeal procedures if they are inadequate, doing so would be futile or they were constructively discharged); Lacroix v. Board of Education, supra, 199 Conn. 81 (teacher not required to exhaust appeal procedures of § 10-151 when she made a timely request for a hearing which the board was unwilling to provide); See Appleton v. Board of Education, supra, 53 Conn. App. 252 (teacher not required to exhaust administrative remedies in collective bargaining agreement because the agreement expressly excluded termination disputes as a subject matter to be handled by the grievance procedures).
To fail to exhaust is fatal to the teacher's claim that due process was denied and will also deprive the Superior Court of subject matter jurisdiction to hear the appeal. See Drahan v. Board of Education, 42 Conn.App. 480, 492, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996) ("Where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test. In this case, the plaintiff's challenge of the allegedly wrongful termination of [her] contract seeks to address the very issue which the appeal mechanism authorized by § 10-151(f) was designed to test."); Murphy v. Young, supra, 44 Conn.App. 679-82 (dismissal of wrongful termination action affirmed because the teacher failed to request a hearing after she received notice of her termination and her right to a hearing regarding the termination); but see Lacroix v. Board of Education, supra, 199 Conn. 81.
The defendants move to dismiss the plaintiff's suit asserting that she was properly terminated in accordance with the Agreement as the Agreement controls the manner in which the plaintiff should have been terminated. In support of their position, the defendants first contend that, to the extent § 10-151 conflicts with the Agreement, General Statutes § 5-278(e) states that the termination provisions of the Agreement supercedes § 10-151. Hence, because the defendants adhered to the termination provisions of the Agreement, the plaintiff was terminated in accordance with the law and her only recourse to contest her termination is to pursue a hearing as set forth in the Agreement. Second, the defendants argue that the doctrine of sovereign immunity bars the plaintiff's action in Superior Court. The defendants claim that because Lantz and Berger were operating within the scope of their employment for the State and were not wanton, reckless or malicious in terminating the plaintiff, their actions were taken on behalf of the state. Therefore, as contended by the defendants, the state is the actual defendant or real party in interest and the plaintiff's suit is barred by sovereign immunity.
The plaintiff counters that the motion to dismiss should be denied because she is entitled to sue the defendants in Superior Court for violating her due process rights pursuant to General Statutes § 31-51bb. The plaintiff argues that her job as a tenured teacher in the Unified School District was a property right and, therefore, the defendants were required to follow § 10-151 in firing her, not the termination procedures set forth in the Agreement. The plaintiff further argues that because the defendant did not follow the termination procedures in § 10-151, they violated her due process rights embodied in Article First, Section 8 of the Connecticut Constitution. The plaintiff also maintains that sovereign immunity does not bar her suit for what are essentially two reasons. The plaintiff's first reason is that the action was commenced against Berger and Lantz individually as opposed to being against the State of Connecticut. The plaintiff's second reason for sovereign immunity not to apply here is that, assuming that the court determines that the action is against the State as opposed to being against Lantz and Berger individually, the State cannot invoke a sovereign immunity defense because sovereign immunity does not bar claims against the State for violations of due process.
The court lacks subject matter jurisdiction to hear the plaintiff's § 10-151 claim for several reasons. It is the plaintiff's burden to prove that subject matter jurisdiction is proper. The plaintiff has sued Lantz and Berger in their official capacities and has not alleged that they acted beyond their statutory authority. So this suit is indeed against the state. Sovereign immunity does not apply here because the state, by statute, effectively waived sovereign immunity to suit by equating Unified School District #1 with any other school district in Connecticut which can sue or be sued. Thus, the plaintiff is correct that Unified School District #1 can be sued in Superior Court.
The plaintiff carries her burden by proving that the Agreement does not prevent the plaintiff from bringing actions for violation of § 10-151 and 42 U.S.C. 1983. There is no conflict between § 10-151 and the grievance procedures in the Agreement. The Agreement, by its own terms, does not apply to the plaintiff's action regarding a violation of due process. Because the grievance procedures in the Agreement do not conflict with § 10-151 pursuant to § 5-278(e) as alleged by the defendants, the plaintiff is not relegated to the grievance procedures to redress her harm and is permitted to seek alternative means under the law to vindicate her due process rights.
"Each employee shall be protected in the full exercise of the rights of freedom of speech, assembly, due process, and equal protection under the provisions of this Agreement and the U.S. Constitution. Additionally, each employee shall be protected under the provisions of § 4-161d of the Connecticut General Statutes. (Whistle Blowing Statute.)"
"The inclusion of language in this Agreement concerning matters formerly governed by law, regulation, or policy directive shall not be deemed a preemption of the entire subject matter. Accordingly, statutes, rules, regulations, and administrative directives or orders shall not be constituted to be superseded by any provision of this Agreement except as provided in the Supercedence Appendix to this Agreement or where, by necessary implication, no other construction is tenable."
The plaintiff also carries her burden in establishing a prima facie case that the defendants ineffectively terminated the plaintiff because they did not follow § 10-151. The case law is clear that school districts must follow § 10-151 when terminating teachers. Here, this conclusion is supported by the language of the Agreement for various reasons. First, the Supercedence clause in Article 58 provides that the language of the Agreement is not meant to override statutes formerly governing areas which the Agreement purports to control. Section 10-151 has long been the benchmark for terminating a tenured teacher and it formerly controls how a teacher should be terminated. The logic that § 10-151 controls is further highlighted by the fact that nowhere in the Agreement does it state that § 10-151 is superseded by the Agreement but the Agreement rather states that "[e]ach employee shall be protected in the full exercise of the rights of . . . due process . . . under the provisions of this Agreement and the U.S. Constitution." This language forcefully instructs that a tenured teacher such as the plaintiff still possesses her right of due process which is artfully preserved under the tried and tested procedures of § 10-151. Furthermore, the Agreement as submitted by the parties does not contain a Supercedence Appendix stating that the termination procedures in the Agreement usurp the formal termination procedures in § 10-151. Considering these facts, a tenable and a fair reading of the Agreement is that § 10-151 controls how Unified School District #1 should have terminated the plaintiff.
Despite the ineffective termination of the plaintiff, this court, nonetheless, lacks subject matter jurisdiction to entertain the § 10-151 claims because she has not exhausted her administrative remedies.
This results chiefly because she has not proved that she exhausted her administrative remedies. The Superior Court only obtains jurisdiction over § 10-151 claims after the teacher first resorts to all the appellate procedures in § 10-151 or avails themselves to one of the limited exceptions to the exhaustion doctrine. This is so because the very purpose of § 10-151 is to ensure that tenured teachers receive due process during termination proceedings and the Superior Court must defer jurisdiction to administrative authorities to allow this to happen. The plaintiff has not alleged any of the exceptions to the exhaustion doctrine such as being constructively discharged, that the appeals procedures were inadequate or that appealing the decision would have been futile. She simply makes bald assertions that her due process rights were violated. These assertions, however, are insufficient to explain if the plaintiff made a request for a hearing as provided for in § 10-151 or that she took advantage of her right to appeal her termination to the Director of Personal which she was informed of in the July 6, 2004 letter of termination. Pursuing either mechanism would have provided an opportunity to be heard and, potentially, could have satisfied the tenets of due process. The plaintiff, without any explanation, simply bypassed the avenues in place to provide due process by filing suit in Superior Court. The plaintiff's failure to follow the appellate procedures of § 10-151 is synonymous with a failure to exhaust administrative remedies and the court is consequently without subject matter jurisdiction to hear the plaintiff's § 10-151 claim.
DUE PROCESS UNDER § 1983
The Supreme Court of the United States utilizes a malleable approach to resolving § 1983 due process claims. See Morrissey v. Brewer, 408 U.S. 471, 92, S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (court holding that "[d]ue process is a flexible concept requiring only such procedural protection as the particular situation demands"). In analyzing a § 1983 claim, the inquiry into whether procedural due process was afforded involves a consideration of (1) the "private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, (3) the probable value, if any, of additional or substitute procedural safeguards; and (4) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Harhay v. Town of Ellington Board of Education, 323 F.3d 206, 213-14 (2nd Cir. 2003).
The case of Narumanchi v. Board of Trustees of Connecticut State University, 850 F.2d 70, 72 (2nd Cir. 1988), is representative of how federal courts analyze alleged § 1983 claims of tenured teachers. In Narumanchi v. Board of Trustees of Connecticut State University; supra, 850 F.2d 72, a university sent notice to a teacher that it intended to suspend the teacher for insubordination but that the teacher had the right to contest the "intended" suspension within five days pursuant to the applicable collective bargaining agreement grievance procedures. Id., 71. The teacher scheduled a hearing, but skipped it and then filed a 42 U.S.C. 1983 claim in state court alleging, in part, a violation of procedural due process. Id., 70. The court held that the teacher was afforded due process because the pre-deprivation notice of intended suspension and the post-deprivation opportunity for a hearing, which the teacher failed to attend, were all due process required. Id., 71; see Harhay v. Town of Ellington Board of Education, supra, 323 F.3d 213-14 (2003), citing Narumanchi v. Board of Trustees of Connecticut State University, supra, 850 F.2d 72 (post-deprivation hearing provided for in a collective bargaining agreement is sufficient to satisfy due process); see also Strong v. Uniondale Free School District, 902 F.2d 208 (2nd Cir. 1990), cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 208 (1990) (court holding that due process was satisfied when pre-deprivation hearing was not provided but post-deprivation hearing was).
Furthermore, "[w]here a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test." Drahan v. Board of Education, 42 Conn.App. 480, 492, 680 A.2d 316 (1996). "An administrative remedy is adequate when it provides the plaintiff with the relief that she seeks and a mechanism for the judicial review of the administrative decision." Murphy v. Young, supra, 44 Conn.App. 681. Bearing these principles in mind, the United States Supreme Court has stated that plaintiffs are not required to first exhaust state administrative remedies before bringing a 42 U.S.C. § 1983 claim. Patsy v. Board of Regents, 457 U.S. 496, 73 L.Ed.2d 172, 102 S.Ct. 2557 (1982), on remand, 693 F.2d 558, 559 (5th Cir. 1982). Nonetheless, a plaintiff who has had an opportunity for due process but neglected to take advantage of that opportunity, cannot ingenuously allege that they were denied procedural due process under 42 U.S.C. § 1983. See Russo v. City of Hartford, 158 F.Sup.2d 214, 225 (Conn. 2001), cert. denied, 537 U.S. 879, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002).
The defendants move to dismiss the plaintiff's case on the grounds that the sovereign immunity bars the plaintiff's action in Superior Court and that the plaintiff's only means to challenge her termination is by following grievance procedures in the Agreement. The plaintiff counters that the Agreement does not bar her suit for an alleged violation of 42 U.S.C. § 1983. As already stated above sovereign immunity does not bar any aspect of the plaintiff's suit. Notwithstanding this conclusion, the plaintiff has not carried her burden by proving that she was denied due process under 42 U.S.C. § 1983.
Applying the § 1983 standards, the plaintiff's continued right to employment as a tenured teacher was without doubt important. Her ability to either appeal the manner in which she was terminated to the Director of Personnel or to request a hearing under § 10-151 both constituted sufficient procedural safeguards that would have reduced the erroneous risk of property right deprivation. Last, Connecticut, by way of enacting § 10-151, has expressed that it has a significant governmental interest in reducing the fiscal and administrative burdens of hearing cases such as the plaintiff's by denying the Superior Court jurisdiction over such claims until all other available § 10-151 appeals have been sought. Considering these factors, the plaintiff's § 1983 claim fails. Prior to her termination, the plaintiff was provided 15 days advance notice on July 6, 2004 that her position was being terminated. By way of the same letter the plaintiff was also advised of her right to appeal. Likewise, she also had the right to appeal under § 10-151. Under § 1983, the letter was sufficient notice that she was being terminated and the chance to appeal or to request a hearing under § 10-151 constituted adequate post-deprivation opportunities for the plaintiff to be heard. Based upon these facts, the plaintiff was afforded due process under § 1983.
Alternatively, even if by some stretch of the imagination it was determined that the plaintiff was denied due process under § 1983, the court still lacks subject matter jurisdiction. The plaintiff's problem regarding her § 1983 claim is not that she failed to exhaust her state administrative remedies. The plaintiff's problem is, just like the plaintiff in Russo v. City of Hartford, supra, 158 F.Sup.2d 223-35, that she alleges her due process rights were violated without explaining if she afforded herself the opportunity to obtain due process by either filing an appeal under the grievance procedures or requesting a hearing under § 10-151 which, again, she concedes applies. As a consequence, similar to Russo, the plaintiff is estopped from asserting her § 1983 claim.
The Motion to Dismiss is granted.
Hale, JTR