Opinion
No. X01 CV-01-0806154-S
October 31, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS
In 1981, the plaintiff became employed by the City of Hartford Board of Education as an elementary and special education teacher in a self-contained classroom. In most of the school years 1999 and 2000, she was on medical leave but, in an affidavit dated April 30, 2001, she stated she intended to return for the 2000-2001 year. She further stated that, on July 25, 2000, she received a transfer letter indicating that, effective August 28, 2000; she would: be reassigned from her self-contained Grade 2 classroom at Milner School to being a "general special education" teacher at the same school. Her affidavit further stated she had "conversations with my Union representative thereafter they (sic) indicated that there was nothing they could or would do" on her behalf, that she would have to return to work in the new assignment in "order to pursue this matter through an administrative process," and that she had subsequent conversations with "representatives and agents for the City of Hartford, Board of Education," who repeated nothing more could be done and that, if she could not do the new job, she could not appeal (Paragraphs 7 and 8).
The court and opposing counsel agreed to treat this affidavit as current in view of the representation of plaintiff's counsel the named plaintiff is medically incapable of executing an affidavit at this time.
Thereafter, the plaintiff filed her initial complaint in March of 2001 alleging various causes of action stemming from what she claimed was a forced resignation in July of 2000. Essentially, she therein alleged the same violations of a collective bargaining agreement between the defendants and her exclusive bargaining agent, the Hartford Federation of Teachers ("HFT") as above claimed. The defendants filed a motion to dismiss that complaint and claimed the court lacked subject matter jurisdiction because the plaintiff had failed to exhaust collective bargaining grievance arbitration remedies. As to that claim, the court (on the regular docket) denied the motion but issued no opinion. The defendants also filed a motion to dismiss claiming the court lacked subject matter jurisdiction over her disability discrimination claim; the court granted that motion. It also directed the plaintiff to file an amended complaint — which the plaintiff did on November 19, 2001. As here next to be discussed, the plaintiff did not, however, remove the claim of disability discrimination. The case was then transferred to the Complex Litigation Docket where, at a status conference on April 22, 2002, Hodgson, J. and the parties agreed a second motion addressing the court's jurisdiction would be filed by June 27, 2002. The instant motion was filed on June 26, 2002. On December 24, 2002, the plaintiff re-filed a copy of the opposing memorandum of May 7, 2001, which memorandum had been filed in response to the first filed motion to dismiss. On August 12, 2003, the defendants filed a "Reply to Plaintiff's Opposition" and a Request for Adjudication which indicated the plaintiff had filed an objection on July 11, 2003 and May 7, 2001. Because the file contains neither an objection nor an opposing memorandum dated July 11, 2003, and because the court had nothing from the plaintiff in response to the defendants' second motion to dismiss dated June 26, 2002, this court directed its Court Officer to telephone plaintiff's counsel to indicate the court needed to receive from him whatever it was counsel wished the court to consider in opposition to the instant motion. On September 9, 2003, counsel faxed to the court the following:
The plaintiff merely changed the caption to indicate a Waterbury filing by striking "Hartford" and printing "Waterbury."
1) A copy of the memorandum in opposition dated May 4, 2001, as provided to the Hartford court in response to the defendant's first motion to dismiss;
2). A copy of the plaintiff's affidavit dated April 30, 2001, also earlier provided the Hartford court in response to the defendants' 2001 motion; and
3) A copy of a "Supplemental Memorandum" dated May 24, 2001. This filing merely transmitted a copy of O'Halloran v. Charlotte Hungerford Hospital et al., 63 Conn. App. 460 (2001), and noted that therein the Court "reverses the court's granting of a Motion to Dismiss and direct (sic) further proceedings." No analysis or discussion of that case is provided this court.
Because the defendants filed no objection to the plaintiff's re-filing of pleadings submitted two (2) years earlier in response to a prior motion and because plaintiff's counsel, in July of 2002, filed a motion indicating the plaintiff now resided in the Hebrew Home, suffered from a genetic defect that required round-the-clock care, and was thus unable to assist her counsel in any way, this court accepts and treats the prior filings as responses to the June 26, 2002, motion in the interest of justice. Oral argument was heard on October 24, 2003.
The amended Complaint consists of four (4) Counts:
1) Count I alleges violation of the collective bargaining agreement in that she was involuntarily transferred without prior consultation or notice and without stating a reason for the transfer, was discriminated against on the basis of her physical disability, was not provided her former position upon return despite the fact the same had not been eliminated, and that she had been denied longevity payments in accordance with the agreement.
2) Count II alleges violations of the agreement in that her resignation was forced without just cause or reason, was imposed when she was lawfully excused from work due to a work-related illness, and was in violation of a covenant of good faith and motivated by bad faith and/or malice or was accomplished in retaliation and therefore not in the public interest.
3) Count III alleges the denial of equal rights in violation of Article I, Section 20 of the Constitution of the State of Connecticut.
4) Count IV asserts the defendants acted willfully, maliciously, and recklessly with the intention to cause the plaintiff severe emotional distress.
As regards Counts I, II, and IV, the defendants assert the court is without subject matter jurisdiction because the plaintiff failed to avail herself of the exclusive remedy provided by the agreement — grievance arbitration before the American Arbitration Association. Article III of the agreement provides a multi-step grievance and arbitration procedure for final and binding disposition of disputes and claims arising under the agreement. It is initiated by informal discussions with school personnel and ends in submission of the grievance either to the American Arbitration Association or to a single arbitrator mutually agreed upon by the parties. There is no dispute that the plaintiff did not avail herself of the contract remedy. Paragraph 7 of Count I incorporated in all other counts — states, "The Plaintiff did not avail herself of any administrative proceeding insofar as the same was futile and not perceived as to (sic) having any cause or effect on the proceedings."
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624 (1983). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Shay v. Rossi, 253 Conn. 134, 140 (2000). "[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 facts 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 (1999). "The plaintiff bears the burden of proving subject matter jurisdiction . . ." Fink v. Golenbock, 238 Conn. 183, 199 n. 13 1996). "[W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case . . ." (Internal quotation marks omitted.) Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn. App. 757, 766 (2002); see also Practice Book § 10-33. A determination regarding a trial court's subject matter jurisdiction is a question of law. Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn. App. 578, 581 (2003), citing Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn. App. 632, 636-37 (2002).
A long line of Connecticut cases have held a public school employee's failure to exhaust available administrative remedies under the collective bargaining agreement deprives the court of subject matter jurisdiction. In School Administrators Association v. Dow, 200 Conn. 376 (1986), the Court stated that, as a matter of state law, "parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court." Id., at 382. It set aside the trial court's denial of a motion to dismiss and remanded the case with direction to dismiss the action for lack of jurisdiction. Id., at 385. In Kolenberg v. Board of Education, 206 Conn. 113 (1988), a tenured public school teacher claimed he was wrongfully deprived of his job and our Supreme Court concluded the reason for terminating him (failure to notify the defendant timely of his intent to return to work the following year) was not "for cause" under the specific statute the plaintiff claimed the defendant violated. It found, however, that the plaintiff (who, unlike this plaintiff, commenced the grievance procedure but did not pursue it) had an appropriate vehicle afforded by the collective bargaining agreement and that his failure to exhaust the grievance and arbitration procedures deprived the trial court of subject matter jurisdiction. Id., at 123.
Plaintiff claims, however, the futility of pursuing the grievance procedure innoculates her against dismissal. It is so that our Supreme Court has carved several exceptions from the exhaustion doctrine — one of which is where the administrative remedy is inadequate or futile. It is important to note there is no claim here that the grievance procedures established in the collective bargaining agreement were not capable of affording the relief requested. It has been held that an action is "futile . . . when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . The plaintiff's preference for a particular remedy does not determine the adequacy of that remedy." (Citation omitted; internal quotation marks omitted.) Breiner v. State Dental Commission, 57 Conn. App. 700, 705 (2000). Our Appellate Court has said the guiding principle in determining futility is that the "law does not require the doing of a useless thing." Frank v. Dept. of Parks Recreation, 78 Conn. App. 601, 607 (2003). Here, the litigant states only that the grievance and arbitration proceeding was "futile and not perceived as to having any cause or effect on the proceedings." Paragraph 7 of all counts. Apparently, that "perception" was based upon the recitations in paragraphs 7 and 8 of her affidavit — specifically, unidentified union representatives and/or agents indicated there was nothing the union could or would do on her behalf and that she would have to return to work in the new assignment — to "pursue this matter through an administrative process." Paragraph 7. Such statements are hearsay statements and, as such, insufficient to support the plaintiff's broad claim of futility. Of interest is that the unnamed "representative and agents" for the Board of Education referenced in Paragraph 8 of the plaintiff's affidavit advised her to "try to do this new job while any appeal process was ongoing." Assuming "appeal process" is a reference to the grievance and arbitration procedure of the argument, the advice went unheeded. The plaintiff never attempted to do the new assignment nor does she — either in her affidavit or her complaint claim she could not do it. Thus, the futility claim appears no more than an unsupported allegation — not, unlike the allegations of the plaintiff-teacher in LaCroix v. Board of Education, 199 Conn. 70 (1986). In that case, a tenured Bridgeport public school teacher had been notified by letter his contract was being terminated. He filed a written request for a hearing but none was scheduled. The Board of Education then formally approved his termination and set down a date for hearing. The plaintiff chose not to attend and the board then wrote him of his right to a hearing. The plaintiff's response was to file suit. In reversing the Appellate Court's finding the board's first attempt to terminate was ineffectual because it failed to comply with the procedural mandates of § 10-151 and that the plaintiff had not therefore been legally terminated, the Supreme Court found his failure to again request a hearing after a hearing had first been set down and to pursue his available remedies fatal to his present cause of action. 199 Conn. at 84. In the words of the Court, the litigant's remedies "are not rendered futile by the plaintiff's conclusory assertion that requesting and attending a hearing before the defendant board would have been pointless in the face of the board's earlier decision to terminate his employment." Id., at 84-85. "By not appearing before the board, the plaintiff not only deprived the defendant board of the opportunity to hear, analyze and review a matter within its responsibility and expertise, but also deprived [him] self of the opportunity to put on [his] case and to make a proper record on which to seek judicial relief in the event [he] was terminated." (Internal citation omitted.). Id., at 85.
The plaintiff's Amended Complaint did not include a Prayer for Relief and the relief sought in the original complaint is not applicable in view of the causes of action asserted there but not asserted in the governing complaint.
The plaintiff's citation to O'Halloran v. Charlotte Hungerford Hospital et al., 63 Conn. App. 460 (2001) without discussion is not helpful. There, the Appellate Court reversed the trial court's dismissal for failure to exhaust administrative remedies because the plaintiff's complaint asserted allegedly tortious conduct on the part of the defendants and the hospital's bylaws did not provide redress for the type of injury alleged (i.e., injury to reputation and medical standing). Id. at 464. Since there was no adequate remedy available through the administrative process, the pursuit of that process would have been "useless." Id., at 465. Here, there is no claim that the grievance/arbitration process did not afford an adequate remedy — only that it would have been "futile." Indeed, in the absence of a Prayer for Relief, such argument appears inappropriate.
The plaintiff also argues the defendants impliedly waived the exhaustion of remedies rule. P. 5 of memorandum. Without explicitly so stating, the conduct relied upon is presumably the union representative's and/or the board's representative telling the plaintiff nothing more could be done and she would have to take the new assignment before "appealing." The plaintiff cites to Mathews v. Eldridge, 424 U.S. 319 (1976) and Weinberger v. Salfi, 422 U.S. 749 (1975). It need first be said each of these two cases arises out of a claim for entitlement to benefits under the Social Security Act and the need to exhaust administrative remedies as required by 42 U.S.C. § 405. In Mathews, the issue before the court was whether the Due Process Clause of the Fifth Amendment required opportunity for a pre-deprivation evidentiary hearing before termination of Social Security disability benefit payments. 424 U.S., at 323. At the district court level, one of the grounds upon which the Secretary of Health and Human Services had moved to dismiss was the litigant's failure to exhaust available remedies. The Court reversed, finding the District Court had jurisdiction over the plaintiff's constitutional claim and that no pre-deprivation hearing was necessary before termination. On the issue of waiver, the Court noted that, though ordinarily only the Secretary had the power to waive exhaustion, this was a case "where the claimant's interest in having a particular issue promptly resolved is so great" that deference to the Secretary's judgment was inappropriate. Id. at 330. The opinion neither discussed "waiver" as a legal doctrine nor enlightened the reader with regard to how — or even if — there was a waiver by either party. All that is suggested is that the constitutional issue raised by the litigant (due process) rested on the proposition that full relief could not be obtained at a post-deprivation hearing and an erroneous termination would damage him in ways not recompensable through retroactive payments. Id., at 331. Thus, denying this claim "for other reasons" — i.e., failure to exhaust — would not answer his constitutional challenge. Id., at 331-32. The plaintiff in the case at bar does not rest her waiver argument on this claim. In Weinberger, there is likewise no discussion of waiver. The Court, in dicta, states however that the purposes served by the exhaustion doctrine have been served once the Secretary has been satisfied that the only issue is the constitutionality of a statutory requirement — (specifically, the constitutionality of the duration-of-relationship requirement of 42 U.S.C. § 416 (c)(5) and (e)(2)), an issue beyond the power of the Secretary to decide. Thus, further exhaustion would be futile. 422 U.S. 745, 765 (1975).
The plaintiff relies on Bowen et al. v. City of New York, 476 U.S. 467 (1986), for the proposition equity may require a court to excuse the failure to exhaust and to maintain jurisdiction. Page 6 of memorandum. The plaintiff neither analyzes Bowen nor offers a reason why this court should come to the same conclusion. The claim in Bowen was also brought under the Social Security Act and involved the denial of disability benefits. There as well, the Court was satisfied the claimants before them would be irreparably injured if required to satisfy all of the exhaustion requirements of 42 U.S.C. § 405 (g). It remarked that the Court "should be especially sensitive to this kind of harm where the Government seeks to require claimants to exhaust administrative remedies merely to enable them to receive the procedure they should have been afforded in the first place." Id., at 484. Here, there is no claim either that the grievance/arbitration procedure of the agreement was constitutionally defective or incapable of providing the relief requested. Furthermore, the Court in Bowen made clear the ultimate decision whether to waive exhaustion should be guided by the policies underlying exhaustion which it identified as:
a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors; to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. Id., at 484, citing to 422 U.S., at 765.
It also noted exhaustion "is the rule in the vast majority of cases." CT Page 11931 Id., at 486. Nothing in the plaintiff's memorandum suggests a rationale either for this court's excusal of the need to exhaust or a determination the defendants have somehow waived their right to insist upon the same.
Waiver is the intentional relinquishment of a known right. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 629 (1992). It need not be express but may consist of acts or conduct from which a waiver may be implied. Novella v. Hartford Accident Indemnity Co., 163 Conn. 552, 562 (1972). In order to sustain such a claim, the plaintiff would still have to make a showing the defendants knew of the agreement's requirement of exhaustion of the grievance/arbitration process but knowingly waived that requirement vis-a-vis this plaintiff. Under the circumstances of this case, waiver cannot be found. The court cannot presume the unidentified union or board "representative" was in fact either knowledgeable regarding the requirement of exhaustion or authorized to waive it. The comments attributable to him (or them) in the plaintiff's affidavit constitute hearsay and are neither admissible at trial nor sufficiently reliable or specific to premise a finding of waiver. As the defendants assert, waiver of the right to enforce the obligation to exhaust administrative remedies typically occurs when a party agrees that the dispute should be resolved in a court not an administrative forum or when a party fails to raise such a defense when suit is commenced. See, e.g. Berlin v. Nobel Insurance Co., 60 Conn. App. 56 (2000). Neither applies in the case before the court.
The plaintiff has failed to establish the futility of exercising her rights under the collective bargaining agreement nor has she established the defendants have waived their right to insist upon the same. Her failure to exhaust the remedies available to her — indeed even to initiate the process provided by the agreement under which she claims — deprives the court of subject matter jurisdiction and the motion to dismiss Counts I, II, and IV is granted.
Sheedy, J.