Opinion
HHBCV156031553S
02-21-2017
City of Bridgeport v. Connecticut State Board of Labor Relations et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
These two administrative appeals are brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183, to challenge the interlocutory ruling of the defendant State Board of Labor Relations (board), which denied two motions to dismiss on collateral estoppel grounds filed in the same underlying administrative proceeding, which had been brought to the board by defendant George Vivo. The court concludes that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion in declining to apply the doctrine of collateral estoppel, and accordingly, the appeals are dismissed.
FACTS AND PROCEDURAL HISTORY
Vivo is a police officer employed by the plaintiff city of Bridgeport (city), which is the plaintiff in Docket No. HHB-CV-15-6031553-S, and he is a member of Bridgeport Police Union Local 1159, the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, Council 4 (union), which is the plaintiff in Docket No. HHB-CV-15-6031578-S. Vivo brought the underlying proceeding, Case No. MPP-30, 401, as a hybrid action pursuant to Piteau v. Board of Education, 300 Conn. 667, 15 A.3d 1067 (2011). In the first count of his complaint to the board, Vivo alleged that the union failed to present numerous grievances he had filed concerning (1) the violation of the collective bargaining agreement between the union and the city as it pertained to the terms and conditions of his employment, (2) being bypassed for overtime assignments from 2008 through 2011, (3) not being called to investigate fatal accidents when it was his turn on the list, and (4) not being paid overtime compensation to which he was entitled. In the second count of his complaint to the board, Vivo alleged that he had a contractual right, pursuant to the collective bargaining agreement between the city and the union, to work overtime and to be paid for it. He alleged that the city had breached the terms of the collective bargaining agreement when it denied him overtime assignments to which he was contractually entitled and failed to pay him for overtime assignments to which he was entitled.
Vivo's complaint to the board alleges that he is a member of Bridgeport Police Union Local 1159, AFSCME Council 15. On the first day of the hearing before the board (May 15, 2015), counsel for the city commented to the hearing panel that there was an ongoing dispute between the city and AFSCME Council 15 and AFSCME Council 4 regarding which council represented Local 1159. Return of Record (ROR), Tr. 5/15/15, p. 7. The chairman of the hearing panel indicated that the dispute as to which council represented the local was not before the panel in the hearing on Vivo's complaint. On the second day of the hearing (September 3, 2015), the chairman of the hearing panel indicated that Council 4 had been permitted to intervene in the hearing of Vivo's complaint. ROR, Tr. 9/3/15, p. 4. It appears to be undisputed that Council 4 properly brought the appeal in HHB-CV-15-6031578-S.
The hearing on Vivo's complaint commenced on May 15, 2015, and was continued to September 3, 2015. At the hearing on September 3, 2015, counsel for the city made an oral motion to dismiss, claiming that collateral estoppel barred Vivo from asserting a claim that he was entitled to overtime as a member of the police department's traffic division. The city and the union thereafter filed separate written motions to dismiss, to which Vivo responded. The board issued its decision on October 27, 2015.
The case on which the collateral estoppel claim is based was brought in 1997 by Vivo and another officer, John Galpin, against the city, the Bridgeport Board of Police Commissioners, Thomas Sweeney, AFSCME Council 15, and Wilbur Chapman, then the city's police chief. See Vivo v. Bridgeport, U.S. District Court, District of Connecticut, Docket No. 3:97-cv-01910-PCD (federal case). In the federal case, Vivo alleged that the defendants violated the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Connecticut Fair Employment Practices Act, and 42 U.S.C. § 1983. The parties entered a settlement agreement on October 11, 2000, that was approved by Judge Peter C. Dorsey.
In relevant part, the settlement agreement provided that " [t]here shall be no retaliation against plaintiffs by any defendant" (paragraph 6) and that " [p]laintiff Vivo shall be placed by defendant City, Board and Chief in the Fatal Team assignment that he formerly occupied so long as he desires that assignment, he performs to an acceptable level, and he is physically capable of performing the essential duties of that assignment with or without reasonable accommodation." (Paragraph 9.) The settlement agreement contained no provisions relating to overtime. The district court retained jurisdiction to resolve disputes " concerning the meaning, effect and application of this agreement." (Paragraph 13.)
On August 26, 2010, Vivo filed a motion for contempt in the federal case, in which he argued that the defendants were in contempt of the settlement agreement. He alleged that the defendants had failed to submit a report analyzing department job descriptions; that they continued to discriminate against him on account of his disability and to retaliate against him on account of his opposition to their discriminatory practices; and that they failed to provide him with certain specific overtime opportunities in violation of his rights under the ADA and the explicit provisions of the settlement agreement.
In response to Vivo's contempt motion, the city submitted a brief that was supported by several affidavits, including an affidavit by Joseph L. Gaudett, Jr., who was then the city's acting police chief. Gaudett attested that Vivo had been placed in the fatal team assignment, as required by the settlement agreement, since the settlement agreement was entered. He further attested, however, that Vivo was not a full member of the traffic division because he had never bid for assignment to that division as required by the collective bargaining agreement. He attested that under the collective bargaining agreement, assignments to the traffic division were made based solely on the seniority of officers who bid for those assignments, and that he had no discretion under the collective bargaining agreement to assign anyone to the traffic division who had not bid for such an assignment. Overtime assignments within the traffic division were given out pursuant to a rotation list comprised of regular members of the traffic division. Vivo was not on that list, according to Gaudett, because he was not a regular member of the traffic division.
Gaudett further attested that, as a result of the settlement agreement, Vivo had physically located in the traffic division because that was where the computers needed to do the fatal team assignment were located, but that he was technically assigned to the department's sick and injury management division. In 2009, Vivo requested that he be assigned to the traffic division because he wanted a command structure and a chain of command to report to with respect to the work he was doing. Gaudett attested that to do the fatal team assignment, an officer does not have to work out of the traffic division but can be assigned anywhere. In consultation with Vivo and Vivo's attorney, Gaudett decided that it made sense to transfer Vivo to the traffic division for convenience, supervision purposes, and to accommodate his desire to have a command structure. On April 6, 2009, Gaudett issued an order transferring Vivo to the traffic division, retroactive to August 12, 2007. Gaudett represented, however, that as fatal team coordinator, Vivo did not perform the duties of a regular member of the traffic division and was not entitled to the overtime offered to such regular members. He represented that Vivo was entitled to overtime opportunities in fatal team assignments and had in fact been afforded such opportunities.
Judge Dorsey denied Vivo's motion for contempt on December 16, 2010. He analyzed the issue regarding Vivo's claim for overtime as follows:
Vivo asserts that he is a member of the Traffic Division, and, as such, he is entitled to overtime opportunities within that division. This assertion is inaccurate. Under the terms of the [2000 Settlement] Agreement, Vivo is entitled to a Fatal Team assignment. He is not entitled to full status as a member of the Traffic Division, but to what constitutes an administrative placement. By requesting the opportunity to work on overtime assignments within the Traffic Division, Vivo is requesting more than the Agreement provided. Because Vivo is not a regular member of the Traffic Division, he is not entitled to the overtime associated with that division.
Memorandum of Decision on Motion for Contempt in No. 3:97-cv-1910 (PCD), filed December 16, 2010.
The plaintiff filed his complaint to the board on or about June 5, 2013. In the administrative proceeding, the city asserted that Judge Dorsey's ruling on the motion for contempt established that Vivo is not entitled to overtime as a member of the traffic division, and that Vivo is therefore collaterally estopped from asserting a breach of contract claim against the city based on the denial of overtime. The union subsequently filed its own motion to dismiss, arguing that, in a hybrid action to the board under Piteau, a complainant must be able to prove both a breach of contract and a breach of the duty of fair representation in order to prevail. The union argued that because collateral estoppel barred Vivo from relitigating the issue of his entitlement to overtime in the traffic division, he could not prevail in his claim against the city for breach of the collective bargaining agreement. Both the city and the union argued that the complaint to the board should be dismissed on collateral estoppel grounds. Vivo argued, in opposition, that there was not an identity of issues between the claims presented in the motion for contempt, which claims were based on the settlement agreement, and the claims presented in his complaint to the board, which are based on the collective bargaining agreement.
On October 27, 2015, the hearing panel issued a written decision unanimously denying both motions to dismiss. It concluded that the city had not established the " identity of issues" necessary for a motion to dismiss based on collateral estoppel. It further concluded that the union's motion to dismiss was dependent on the city prevailing on its motion. The city and the union thereafter each filed an appeal pursuant to § 4-183.
ANALYSIS
These appeals are brought and must be reviewed pursuant to the UAPA. " Under the UAPA, it is [not] the function . . . of this court to retry the case or to substitute its judgment for that of the administrative agency . . . Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013). " [C]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . ." Id.
Although, as a general rule, an aggrieved party can appeal only from a final decision in a contested case under § 4-183(a), § 4-183(b) allows a person to appeal " a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling, and (2) postponement of the appeal would result in an inadequate remedy." This is an appropriate appeal under § 4-183(b) in that the essence of a collateral estoppel claim is that the party asserting preclusion has the right not to be put to the expense of litigating for a second time an issue that has previously been fully litigated and resolved in its favor. See Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194-95, 544 A.2d 604 (1988) (" [T]o postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve . . . If the defendant is correct that the plaintiffs are precluded from relitigating their [claim], it would be unfair to require the defendant to expend its resources to defeat the plaintiffs' claims on the merits").
" [C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action . . . For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Citations omitted; emphasis in original; internal quotation marks omitted." Pollansky v. Pollansky, 162 Conn.App. 635, 650-51, 133 A.3d 167 (2016).
" An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined." (Emphasis added; internal quotation marks omitted.) Id., 651. " An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly entered." (Emphasis added; internal quotation marks omitted.) Id., 652. " If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Internal quotation marks omitted.) Pitchell v. Williams, 55 Conn.App. 571, 578, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).
In the prior federal court action, Vivo moved for a finding of contempt based upon the settlement agreement entered in 2000. In that motion, there is no mention of his rights under any collective bargaining agreement. He did not claim that the city breached a collective bargaining agreement, but that it breached the settlement agreement. He further asserted that as a member of the fatal team, he was entitled to overtime under the settlement agreement.
The plaintiffs argue, nevertheless, that Judge Dorsey actually and necessarily decided whether Vivo was entitled to overtime under the collective bargaining agreement when he wrote: " Because Vivo is not a regular member of the Traffic Division, he is not entitled to the overtime associated with that division." Vivo and the board disagree, arguing that the plaintiffs wholly disregard the context of the decision on the motion for contempt. Read in context, they argue, Judge Dorsey was only deciding Vivo's rights under the settlement agreement. In support of this argument, they emphasize Judge Dorsey's statement that " [u]nder the terms of the [2000 Settlement] Agreement, Vivo is entitled to a Fatal Team assignment. He is not entitled to full status as a member of the Traffic Division, but to what constitutes an administrative placement." The question presented by Vivo's complaint to the board, in contrast, is whether Vivo is entitled to traffic division overtime under the collective bargaining agreement even though he is placed in the traffic division for administrative purposes only. In other words, he now claims that although the settlement agreement did not entitle him to placement in the traffic division, he was in fact subsequently placed in the traffic division, and he claims that as a result of that administrative placement he is entitled to the rights of a traffic division member under the collective bargaining agreement. The resolution of that claim does not depend on the terms of the settlement agreement but on an interpretation of the collective bargaining agreement.
The issue presented here is similar to that in Corcoran v. Dept. of Social Services, 271 Conn. 679, 859 A.2d 533 (2004). In Corcoran, the plaintiff brought an administrative appeal from a decision of the Department of Social Services discontinuing her Medicaid benefits. The department in that case had determined that the funds in a trust were available to the plaintiff and disqualified her for Medicaid. The plaintiff argued that the department should have been estopped from construing the trust because the Probate Court had issued a decision construing the trust as a " special needs" trust that was not available to the state or other creditors of the trust beneficiary. The trial court had rejected the plaintiff's collateral estoppel argument and, on appeal, the Supreme Court affirmed. It acknowledged that there was " some area of overlap" in the issues presented in the two proceedings. It noted, however, that " the linchpin of collateral estoppel is the identity of the issues decided by both tribunals, " id., 691, and it was not persuaded that the issues were identical. The Probate Court had determined that the trust was not available to the plaintiff's creditors, including the state, but it had not expressly determined that the trust was not available to the plaintiff herself.
Similarly, in this case, there is an overlap between the issue presented in Vivo's motion for contempt in the federal court action and his complaint to the board in this case; in both cases he has claimed that he was improperly denied overtime opportunities. But it is not clear that Judge Dorsey based his denial of the motion for contempt on the collective bargaining agreement. His short decision does not mention the collective bargaining agreement. He did not necessarily have to decide Vivo's rights under the collective bargaining agreement to determine that the 2000 settlement agreement did not require the city either to make Vivo a regular member of the traffic division or to afford him particular overtime opportunities. While he may have relied on Gaudett's affidavit and the city's analysis of Vivo's rights under the collective bargaining agreement, he may also simply have decided, as he stated, that Vivo was requesting more than the 2000 settlement agreement provided. In view of the fact that Judge Dorsey's decision does not even mention--much less analyze--the collective bargaining agreement, it is not clear that there is an identity of issues between the federal contempt motion and the current complaint to the labor board.
Although Judge Dorsey's decision does contain language indicating that Vivo was not entitled to overtime because he was not a regular member of the traffic division, Judge Dorsey was only required to determine whether the settlement agreement afforded Vivo a right to overtime and whether the defendants were discriminating against Vivo because of his disability or his complaints about disability discrimination. In light of the standard to be applied in UAPA cases even as to questions of law, the court concludes that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion in denying the motion to dismiss on the ground that the city had not established an " identity of issues."
In Piteau v. Board of Education, supra, 300 Conn. 667, the Supreme Court held that the board has jurisdiction over hybrid actions that assert both a breach of the duty of fair representation against a union and a breach of a collective bargaining agreement against an employer. It noted that to prevail on a hybrid claim, an employee must " prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union, and vice versa." (Internal quotation marks omitted.) Id., 689; and see id., 676 n.12. In this case, the union's motion to dismiss was based solely on the city's claim that collateral estoppel prevented relitigation of Vivo's right to overtime. Because the city's claim fails, the union's claim fails with it.
CONCLUSION
Collateral estoppel does not preclude relitigation of an issue that is similar but not identical to an issue that was previously litigated. Nor does it preclude relitigation of an issue that was previously determined but not essential to the decision in the earlier case. The board did not clearly err in concluding that the issues in the federal contempt motion were not identical to the issues in the current complaint. Accordingly, the appeals of the city and the union are dismissed.