Opinion
FBTCV196083042S
03-08-2019
James BULERIN, III v. CITY OF BRIDGEPORT et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendants City of Bridgeport, Civil Service Commission of the City of Bridgeport, and David J. Dunn, Personnel Director for the City of Bridgeport move to dismiss this action brought by Plaintiff James Bulerin, III. The plaintiff brought a one-count complaint, alleging that the defendants violated the Connecticut Palliative Use of Marijuana Act ("PUMA"), Conn. Gen. Stat. § 21a-408 et seq. when they disqualified the plaintiff from the eligibility list for firefighter. The defendants argue that there is no subject matter jurisdiction for the complaint because there is no private cause of action under PUMA, and even if there is a private cause of action, the plaintiff has not exhausted his administrative remedies with the defendant Civil Service Commission. The plaintiff argues in response that there is an implicit cause of action under PUMA and that as an independent cause of action, it is not an appeal from the decision of the defendant personnel director that is subject to exhaustion requirements. For the reasons that follow, the court denies the motion to dismiss.
Originally, the defendants also moved to dismiss on the grounds that the plaintiff would not suffer irreparable harm, but at oral argument on February 25, 2019, the defendants conceded that that issue does not go to subject matter jurisdiction except insofar as it relates to whether the administrative remedies they claim should be exhausted are futile and inadequate.
FACTUAL ALLEGATIONS
The plaintiff alleges in his complaint that he participated in an eligibility process conducted by the defendant City of Bridgeport for the purpose of selecting qualified candidates for its fire department. Complaint, ¶¶ 8-9. He was required as part of that process to complete and pass all eligibility requirements, including a psychological evaluation, a controlled substance test, physical fitness requirements, submission of medical certification forms, and background investigation, to be appointed to the position of probationary firefighter. Id., ¶ 10. He further alleges that on January 23, 2019, defendant Dunn removed his name from the eligibility list because he tested positive for marijuana. Id., ¶ 17 and Exhibit 3. The plaintiff filed an appeal of that disqualification with defendant Civil Service Commission. Id., ¶ 18 and Exhibit 4.
The plaintiff also alleges that he is a "qualified patient" who suffers from a "debilitating medical condition" and that he has a valid registration certificate from the Department of Consumer Protection pursuant to PUMA. Id., ¶¶ 22-28. He alleges that defendant Dunn disqualified him from the eligibility list "solely because of his status as a qualifying patient under Connecticut General Statutes § 21a-408 to 21a-408n." Id., ¶ 31. He then alleges that defendant Dunn violated the anti-discrimination provisions of PUMA and exceeded his authority under the Bridgeport City Charter. Id., ¶¶ 32-36. He further alleges that he has no adequate remedy at law and has suffered irreparable harm. ¶¶ 48-50.
Based on these allegations, the plaintiff seeks a temporary and permanent injunction (1) barring the defendants from removing the name of the plaintiff from the current eligibility list for the position of firefighter on the Bridgeport Fire Department, (2) barring the defendants from removing the plaintiff from the list of firefighter recruits selected by the defendants to attend the February 13, 2019 recruit class at the State of Connecticut Fire Academy for firefighter recruits, and (3) requiring the defendants to find the plaintiff is eligible for appointment to the position of firefighter on the Bridgeport Fire Department. He also seeks a declaratory judgment finding that (1) the plaintiff satisfies the eligibility requirements for appointment to the position of firefighter in the Bridgeport Fire Department, and (2) the defendants acted unlawfully when they refused to certify the name of the plaintiff as eligible for employment to the position of firefighter in the Bridgeport Fire Department. He also seeks attorneys fees and costs.
LEGAL ANALYSIS
I. STANDARD OF REVIEW
"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." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). The argument that PUMA does not create a private right of action for a violation of that statute implicates this court’s subject matter jurisdiction. Gerardi v. City of Bridgeport, 294 Conn. 461, 466-67, 985 A.2d 328 (2010). Moreover, if the remedy sought in this action could be provided through an administrative proceeding, this court does not have subject matter jurisdiction unless and until that remedy has been sought in an administrative forum. Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012).
The plaintiff bears the burden of proving subject matter jurisdiction. Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). In ruling on the motion, this court "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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). Every presumption favoring jurisdiction should be indulged. Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
II. PRIVATE CAUSE OF ACTION UNDER PUMA
PUMA was enacted in 2012. It permits a "qualifying patient" with a "debilitating medical condition" and who has a valid registration certificate from the Department of Consumer Protection to make "palliative use" of marijuana without being subject to arrest, prosecution or civil penalties under certain conditions. Conn. Gen. Stat. § 21a-408a. Each of the quoted terms above are defined in General Statutes § 21a-408. The plaintiff alleges in his complaint that he is a "qualifying patient" who has a "debilitating medical condition" who holds a valid registration certificate from the Department of Consumer Protection. Complaint, ¶¶ 22, 26, 27 and 28. He has sued for a violation of General Statutes § 21a-408p(b)(3), which prohibits employment discrimination based on a person’s status as a "qualifying patient":
No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this section shall restrict an employee’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.
The parties agree that this section of the statute does not provide an express private right of action, but the plaintiff argues that it implies a private right of action.
A. The Implied Private Right of Action Analysis
Our Supreme Court has provided the following rules for determining whether the plaintiff has established that there is an implied right of action exists under PUMA. "[T]here exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute." Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246-47, 890 A.2d 522 (2006).
Three factors are relevant to whether a private remedy is implicit in a statute. "First, is the plaintiff one of the class for whose ... benefit the statute was enacted ...? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997), overruled on other grds, Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).
After the Supreme Court decided Napoletano, the General Assembly enacted the "plain meaning rule" of statutory interpretation in Public Act 03-154, which is codified at General Statutes § 1-2z. The Supreme Court then modified how courts apply the Napoletano factors. "Consistent with the dictates of General Statutes § 1-2z, however, we do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right." Provencher v. Enfield, 284 Conn. 772, 778-79, 936 A.2d 625 (2007).
Finally, the Supreme Court has noted that when courts examine the three Napoletano factors, "each is not necessarily entitled to equal weight. Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [this plaintiff] to bring a private cause of action despite having failed expressly to provide for one ... Therefore, although the [plaintiff] must meet a threshold showing that none of the three factors weighs against recognizing a private right of action, stronger evidence in favor of one factor may form the lens through which we determine whether the [plaintiff] satisfies the other factors. Thus, the amount and persuasiveness of evidence supporting each factor may vary, and the court must consider all evidence that could bear on each factor. It bears repeating, however, that the [plaintiff] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action ..." (Citation omitted; internal quotation marks omitted.) Gerardi v. Bridgeport, 294 Conn. 461, 468-70, 985 A.2d 328 (2010).
B. The Federal Court Has Implied a Private Right of Action Under PUMA.
This court does not write on a blank slate when it considers whether PUMA implies a private right of action. The United States District Court for the District of Connecticut applied the Napoletano factors to PUMA and determined as a matter of first impression that there was an implied private right of action. Noffsinger v. SSC Niantic Operating Co., LLC, 273 F.Supp.3d 326, 338-41 (D.Conn. 2017, Meyer, J.). As in the present case, the Noffsinger plaintiff alleged in her complaint that she was a "qualifying patient" with a "debilitating medical condition" who had a valid registration certificate for "palliative use" of marijuana and who had been denied employment at a prospective job because she tested positive for marijuana. Id. at 331-32. She brought suit, alleging among other things, a violation of Section 21a-408p(b)(3). Id. at 332.
Although Noffsinger is a federal court case, the court applied the Connecticut state court analysis for whether to imply a private cause of action.
The federal court began its analysis by determining that the plaintiff had met the "threshold showing" that none of the Napoletano factors weighed against recognizing a private cause of action. Id. at 339. The court concluded that the plaintiff satisfied the first factor because she was a "qualifying patient" and therefore within the class for whose benefit the statute was enacted. Id. As to the second factor, the court held that there was no indication of legislative intent to deny a private cause of action. Id. In its analysis of the third factor, the court held that a private cause of action was not inconsistent with the underlying purposes of the legislative scheme. Id. at 340.
Moving beyond the threshold requirement that no factor weigh against an implied right of action, the court found it "most important" that, without a private cause of action, Section 21a-408p(b)(3) would have no practical effect because that section did not provide for any other enforcement mechanism. Id. In support of that point, the court quoted from the Appellate Court "[t]he absence of any enforcement mechanism militates in favor of authorizing a private right of action, thereby enabling those for whose benefit the statute was enacted to protect the rights conferred upon them by the legislature." Skakel v. Benedict, 54 Conn.App. 663, 688, 738 A.2d 170 (1999) (implying a private right of action for injunctive relief to enforce a right to confidentiality under General Statutes § 17a-688(c)). The Noffsinger court distinguished the cases that declined to imply a private cause of action because the statutes at issue created an alternate enforcement mechanism. 273 F.Supp.3d at 340. Finally, the court rejected the defendant’s argument that other sections of PUMA delegate authority to the Department of Consumer Protection, and the court held that the text of Section 21a-408p was a "clear exception." Id. Thus, it concluded that Section 21a-408p(b)(3) contains an implied private right of action. Id. at 341.
C. This Court’s Analysis
1. The First Factor
This court agrees with the federal court in Noffsinger that a plaintiff who can show that he or she is a "qualifying patient" definitely falls within the class for whose benefit the General Assembly drafted the language "[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient ..." Conn. Gen. Stat. § 21a-408p(b)(3).
2. The Second Factor
The second factor asks whether there is any indication of legislative intent to create or deny a private remedy. This court follows the Supreme Court’s guidance for how to apply this factor consistent with Section 1-2z, and finds that "there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy ..." Provencher, supra, 284 Conn. at 778-79, 936 A.2d 625. Section 21a-408p(b)(3) gives the discrete class of "qualifying patients" the right to be protected from employment discrimination based on their status, but it does not specify how to enforce that right. Because of this ambiguity, the court may consider legislative history. In Noffsinger, the federal court observed during its analysis of the second factor that the legislative history reflected comments by the legislators that this employment provision would provide protections to employees that would be enforceable in the courts. 273 F.Supp.3d at 339 and n.6. Although this court finds that most of those comments expressed concern that the "broad sweeping language" in favor of a "protected class" could cause problems for the state’s employers, the court agrees that the legislators foresaw "qualified patients" going to court to protect their rights. Id. at n.6. It is not as clear, however, that they expected those "qualified patients" to assert a private cause of action based on this statute. Id.
There is a presumption that there is no private cause of action if the General Assembly did not make it explicit in the statutory language. Asylum Hill Problem Solving Revitalization Assn., supra, 277 Conn. at 246-47, 890 A.2d 522. Indeed, the Supreme Court, in its 2010 decision on whether to recognize an implied private cause of action, observed that "[t]he stringency of the test is reflected in the fact that, since this court decided Napoletano, we have not recognized an implied cause of action despite numerous requests." Gerardi, supra, 294 Conn. at 469-70 and n.5, 985 A.2d 328. This court has reviewed the cases citing the Napoletano factors since Gerardi was decided in 2010 and has found no Connecticut cases recognizing an implied private right of action under any Connecticut statute except for the federal court decision in Noffsinger. Most of those attempts to imply a private cause of action failed this second factor.
The plaintiff here overcomes that presumption because, unlike those other cases, (1) there is express text here that implies a right without an express remedy, and (2) there is no express alternative enforcement mechanism. That was the issue of most concern to the Noffsinger court. That court distinguished many of the decisions finding no private cause of action on the grounds that in those cases there were alternative statutory remedies or enforcement mechanisms. It dismissed the argument that because other sections of PUMA referred to the Department of Consumer Protection, there was no need to imply a private right of action for Section 21a-408p(b)(3). This court finds that the Department is responsible for promulgating regulations under PUMA, overseeing registration of qualifying patients and primary caregivers who can issue written certifications to qualifying patients, licensing dispensaries and producers of marijuana for palliative use, creating a Board of Physicians knowledgeable about palliative use of marijuana, and regulating laboratories and research programs regarding marijuana. General Statutes § § 21a-408-408n, 408r-v. There is no mention of the Department in the anti-discrimination provisions of Section 21a-408p. Indeed, the powers and duties of addressing discrimination in education, housing and employment does not appear to fall within the powers and duties of the Commissioner of Consumer Protection. Therefore, this court agrees with the Noffsinger court that there is no remedy that a "qualifying person" who claims discrimination can pursue with the Department of Consumer Protection, nor is that Department empowered to enforce any rights against discrimination.
By contrast, in the two most recent cases where the Supreme Court was asked to imply a private right of action in the labor and employment context, the statutes provided a clear mechanism to enforce the right. In Perez-Dickson v. Bridgeport, the court held that there was no private right of action under General Statutes § 17a-101e, which authorized the Attorney General to bring enforcement actions in Superior Court:
(a) No employer shall discharge, or in any manner discriminate or retaliate against, any employee who in good faith makes a report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, testifies or is about to testify in any proceeding involving child abuse or neglect. The Attorney General may bring an action in Superior Court against an employer who violates this subsection ...
304 Conn. 483, 508, 43 A.3d 69 (2012). In Gerardi, the court considered General Statutes § 31-48d(b)(1), which required:
[E]ach employer who engages in any type of electronic monitoring shall give prior written notice to all employees who may be affected, informing them of their types of monitoring which may occur. Each employer shall post, in a conspicuous place which is readily available for viewing by its employees, a notice concerning the types of electronic monitoring which the employer may engage in. Such posting shall constitute such prior written notice.294 Conn. at 470, 985 A.2d 328. Subsection (c) of that same statute authorizes the Labor Commissioner to levy a civil penalty against employers who violate that statute, and based on that, the court did not imply a private right of action. As explained above, there is no express statement in PUMA that any state official can enforce any of the provisions of Section 21a-408p(b)(3).
The Noffsinger court did not consider whether there were any preexisting causes of action that a "qualifying patient" could use to enforce the right to be free from employment discrimination that the General Assembly conferred in Section 21a-408p(b)(3). The plaintiff in this case is seeking the following forms of relief: a declaratory judgment, an injunction, and an award of attorneys fees. As to the declaratory judgment, he could bring an action under the Declaratory Judgment Act, General Statutes § 52-29, but he would not be able to pursue injunctive relief without some underlying common-law or statutory cause of action. This court cannot identify a preexisting cause of action that the plaintiff could use to obtain an injunction based on employment discrimination in violation of PUMA.
Although the Connecticut Fair Employment Practices Act ("CFEPA") provides a private cause of action (after exhaustion of administrative remedies), it does not appear to protect the plaintiff or other "qualifying patients" from employment discrimination based on "palliative use" of marijuana. It prohibits discriminatory employment practices (Section 46a-60) based on numerous grounds, including being "physically disabled." The term "physically disabled" is defined in Section 46a-51(15) and has been interpreted broadly by Connecticut courts. See, e.g., Desrosiers v. Diageo North America, 314 Conn. 773, 105 A.3d 103 (2014). While the definition of being "physically disabled" could overlap with having a "debilitating medical condition" for PUMA, the discrimination that Section 21a-408p(b)(3) seeks to prevent is for the treatment of using marijuana, not the underlying medical condition. Accordingly, it does not appear that the plaintiff and other "qualifying patients" could bring an action under CFEPA to seek a remedy for discrimination in violation of Section 21a-408p(b)(3). The same analysis would apply to the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. because each of those focus on the discrimination based on disability rather than discrimination based on treatment.
The concern that statutory protection from discrimination would have no practical effect also was the motivating factor for a Rhode Island Superior Court to recognize an implied private right of action under its similar medical marijuana statute. In Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I.Super.Ct. May 23, 2017), the court carefully considered whether to imply a private right of action under the language "[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder." Id. at *2 (quoting Section 21-28.6-4(d)). That court ultimately was persuaded to imply a private right of action to enforce that language based on the principle that a court "will not ascribe to the General Assembly an intent to enact legislation which is devoid of any purpose, inefficacious, or nugatory." Id. at *2-*8.
This court agrees with the analysis of the Rhode Island Superior Court and the federal court. The text of Section 21a-408p(b)(3) expressly confers a right on "qualifying patients" to be free from employment discrimination, and it is illogical not to have an enforcement mechanism. Therefore, the court finds that the General Assembly intended for there to be a remedy.
3. The Third Factor
The third Napoletano factor considers whether it is consistent with the underlying purposes of the legislative scheme to imply a private cause of action. The overall purpose of PUMA appears to be to permit the palliative use of marijuana under specific circumstances. Section 21a-408p(b)(3) is intended to further that purpose by prohibiting employment discrimination against those who are using medical marijuana as permitted by the overall statutory scheme. Therefore, the court finds that it is consistent with the purposes of the legislation to imply a private cause of action to enforce that right not to be discriminated against in employment.
This court concludes that there is an implied private right of action to enforce Section 21a-408p(b)(3).
III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Even though the court has concluded that there is an implied private right of action to enforce the rights of "qualifying patients" to be free from employment discrimination, the court must also consider whether this action should be dismissed because the plaintiff failed to exhaust administrative remedies. The defendants point out that the plaintiff has filed an administrative appeal from the defendant personnel director’s action to the defendant Civil Service Commission. They argue that Section 212 of the Bridgeport City Charter provides in relevant part:
The personnel director may reject the application of any person for admission to a test or refuse to test any applicant or refuse to certify the name of an eligible for employment who is found to lack any of the established qualification requirements for the position for which he applies or for which he has been tested, or who is physically unfit to effectively perform the duties of the position ... or who has made a false statement of material fact or practiced or attempted to practice deception or fraud in his application or in his tests, or in securing eligibility for employment. Any such person may appeal to the civil service commission from the action of the personnel director in accordance with the rules established hereunder.
They also direct the court’s attention to Section 206(a)(4) of the Bridgeport City Charter, which empowers the commission to "hear and determine complaints or appeals respecting the administrative work of the personnel department ... [including] the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director."
The defendants argue that the plaintiff must exhaust his appeal with the Civil Service Commission or come within one of the exceptions to the exhaustion doctrine before bringing an action in this court. They quote from our Supreme Court that "[t]here are some exceptions to the exhaustion doctrine, although we recognized such exceptions only infrequently and only for narrow defined purposes ... We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if recourse to the administrative remedy would be futile or inadequate[, ] ... the procedures followed by the administrative remedy are constitutionally infirm ... or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Citations omitted; internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993). The defendants then argue that none of these exceptions apply. At oral argument, the defendants also pointed out that the civil service provisions were enacted as part of a 1935 Special Act (22 Spec. Acts 261, No. 407 (1935)) and that when the General Assembly later enacted PUMA, it was deemed to know about those administrative remedies. In essence, the defendants argue that the plaintiff’s remedies are limited to those that can be provided by the Civil Service Commission because the General Assembly did not carve those administrative remedies out of PUMA.
The plaintiff responds that PUMA provides rights and remedies beyond those available to him before the Civil Service Commission and that while he pursues his administrative remedies, he is free to bring a separate claim under PUMA in court. He argues that because PUMA does not provide for an administrative process, there is no requirement to exhaust administrative remedies. He further argues that the Civil Service Commission is a creature of statute with jurisdiction and authority limited to those set out in the statute that created it. In essence, the plaintiff argues that the defendants cannot graft the administrative remedies from the Bridgeport City Charter onto PUMA.
The court agrees with the plaintiff’s analysis. The starting point for the court’s analysis is the statute at issue in this suit, PUMA. The Polymer Resources, Ltd. analytical structure relied upon by the defendants does not apply here. In that case, the Connecticut Commissioner of Environmental Protection, as part of an administrative process under Title 22A, entered an order against the plaintiff. When the plaintiff went to court to seek an injunction against the Commissioner to keep him from enforcing his order, the Supreme Court held that there was no subject matter jurisdiction because the plaintiff had not exhausted its administrative remedies that could have afforded it the same relief. Similarly, the other cases cited by the defendants arise out of regulatory or union grievance matters and not out of claims based on statutes that do not have built-in administrative procedures.
By contrast, when the plaintiff here alleges a violation of PUMA, he is not making an end-run around an ongoing regulatory process that could provide him with the same relief. Instead, he is bringing an independent court action for an alleged violation of PUMA, and this court’s analysis should be based on that statute. The more appropriate analytical framework is the one discussed by the Supreme Court regarding the Connecticut Unfair Trade Practices Act ("CUTPA") in Fairchild Heights Residents Association, Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 82 A.3d 602 (2014). The court in that case reviewed the CUTPA enforcement provisions and concluded that there was no express or implied requirement in CUTPA that plaintiffs exhaust administrative remedies before pursuing relief in court. Likewise, PUMA does not set forth any administrative remedies that "qualifying patients" must exhaust.
Furthermore, "exhaustion is not required when an administrative remedy is futile or inadequate ... When an administrative remedy does not exist ... or is inadequate ... a party will be allowed to resort to the courts in the first instance. An administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief. In contrast, an adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Citations omitted; internal quotation marks omitted.) Id., 817-18, 82 A.3d 602. In Fairchild Heights, the court held that the Department of Consumer Protection had no authority to award the injunction, punitive damages, attorneys fees and costs that the plaintiffs were seeking and therefore concluded that they had "no practical or adequate administrative remedy which would require exhaustion." Id., 819, 82 A.3d 602.
In this action, the plaintiff seeks a temporary and permanent injunction (1) barring the defendants from removing the name of the plaintiff from the current eligibility list for the position of firefighter on the Bridgeport Fire Department, (2) barring the defendants from removing the plaintiff from the list of firefighter recruits selected by the defendants to attend the February 13, 2019 recruit class at the State of Connecticut Fire Academy for firefighter recruits, (3) requiring the defendants to find the plaintiff is eligible for appointment to the position of firefighter on the Bridgeport Fire Department. He also seeks a declaratory judgment finding that (1) the plaintiff satisfies the eligibility requirements for appointment to the position of firefighter on the Bridgeport Fire Department, and (2) the defendants acted unlawfully when they refused to certify the name of the plaintiff as eligible for employment to the position of firefighter in the Bridgeport Fire Department.
The defendant Civil Service Commission can hear and determine the plaintiff’s appeal from the rejection of an applicant for admission to an examination. Bridgeport City Charter, § 206(a)(3) and (4). The defendants argue that as part of this appeal process the Civil Service Commission can reinstate the plaintiff to the eligibility list and the next recruit class for the Fire Academy. However, the Civil Service Commission does not appear to have the authority to issue injunctions and declaratory judgments nor does have the authority to determine whether there was a PUMA violation and to remedy such a violation. Therefore, the remedies potentially available to the plaintiff in his appeal are not adequate, and he is not required to exhaust administrative remedies as a prerequisite to proceeding with this court action.
CONCLUSION
For the foregoing reasons, this court denies the defendants’ motion to dismiss.