Opinion
X06CV186044501S
06-12-2019
Kevin DINGLE et al. v. CITY OF STAMFORD et al.
UNPUBLISHED OPINION
OPINION
BELLIS, J.
The plaintiffs, four members of the Stamford Fire Department (the department), bring the present matter against the city of Stamford and three affiliated defendants, specifically: the Stamford Personnel Commission; the Stamford Director of Legal Affairs, Katherine Emmett; and the Stamford Director of Personnel, Clemon Williams, alleging that the plaintiffs were unfairly denied promotions within the department due to improper methodology employed in making promotional decisions. The defendants have moved to dismiss the plaintiffs’ complaint in its entirety, arguing that the plaintiffs have failed to first exhaust the administrative remedies available to them. For the reasons discussed herein, the defendants’ motion to dismiss is denied with respect to counts one through four of the plaintiffs’ amended complaint and is granted with respect to count five of the plaintiffs’ amended complaint.
The following facts are relevant to the determination of the defendants’ motion. Each plaintiff is a member of Stamford’s classified service. Pursuant to the charter of the city of Stamford (charter), the Director of Personnel is tasked with implementing and enforcing various rules pertaining to the classified service, including, inter alia, providing "[f]or open competitive or promotion examinations to test the relative fitness of applicants for such positions ..." Stamford Charter, § C5-20-10(2). The rules regarding such examinations are detailed in rule 5 of Stamford’s classified service rules, which provides in relevant part: "Objective measuring techniques and procedures, determined by the Director, shall be used in rating the results of tests and determining the relative ranking of candidates." The ultimate selection of candidates for promotion, meanwhile, is governed by rule 6 of Stamford’s classified service rules, which governs the creation of "eligible lists" for promotion and requires in relevant part: "Whenever a vacancy is to be filled, the Director shall certify the names of the persons with the three (3) highest scores on the appropriate eligible list to the appointing officer." Rule 6 of Stamford’s classified service rules also provides for the process of "banding" to be applied in certain cases and requires in relevant part: "Bands shall be established based on psychometric properties of the test score distribution or on job analysis information." Finally, rule 7 of Stamford’s classified service rules enumerates the procedures by which a candidate can appeal various grievances with the examination process. Rule 7.2 of Stamford’s classified service rules, entitled "General Appeal of Examination Results," provides in relevant part: "All appeals relating to Rule 5 should be made in writing to the Director and filed within thirty (30) days of the notification date of exam results."
The classified service encompasses all members of Stamford’s civil service, with the exception of enumerated elected and appointed officials as well as any positions specifically designated as unclassified. See § C5-20-15 of the charter of the city of Stamford.
"Band Scoring" is defined as "a technique that combines candidates with close test scores into one rank from which the hiring authority may appoint any member." Stamford classified service rules, Rule 2.
The plaintiffs allege that in mid-2017, the department held promotional examinations for the positions of fire lieutenant and fire captain. Two of the plaintiffs (Dingle and Wagoner) took the exam seeking promotion to captain, while the remaining two plaintiffs (Pickering and Whitbread) took the exam seeking promotion to lieutenant. Based on the raw scores of their exams, Wagoner and Dingle each allege that they alone were tied for the sixth-highest score among the candidates for captain. Pickering and Whitbread, meanwhile, allege that their raw scores placed them sixth and eighth, respectively, among the candidates for lieutenant.
The plaintiffs aver that "following the calculation of total scores, the Director rounded the total scores to whole numbers" and that this rounding created numerous additional tied exam scores among candidates. The plaintiffs allege that this practice of rounding scores had no basis in either the charter or the classified service rules, but that it was nonetheless employed in the creation of the eligible lists for the positions they sought, thus greatly expanding the pool of candidates eligible for appointment to these positions. The plaintiffs further allege that, ultimately, none of the plaintiffs were selected for the positions they had sought.
The plaintiffs initiated the present matter on July 18, 2018, and did not seek to resolve their concerns through any internal administrative appeal processes with the city of Stamford or any related entities. In their original seven-count complaint, the plaintiffs claimed that the defendants’ actions violated the charter and deprived the plaintiffs of their constitutional right to due process. On November 8, 2018, the plaintiffs filed a five-count amended complaint, clarifying their original claims and adding a claim that the defendants had engaged in discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60. Specifically, the defendants claimed: (1) violations of the charter; (2) violation of the plaintiffs’ equal protection rights as set forth in article first, § 20 of the Connecticut constitution; (3) that the court should issue a writ of mandamus appointing them to the positions originally sought; (4) that the court should issue a declaratory judgment determining the plaintiffs’ entitlement to the positions originally sought as well as the legal validity of the promotional procedures discussed previously; and (5) violation of § 46a-60.
With respect to the fifth count of their complaint, the plaintiffs allege that they have filed a related complaint with the Commission on Human Rights and Opportunities (the commission) but admit that they "have not yet exhausted their administrative remedies." Additionally, the plaintiffs allege that they suffered emotional harm in addition to economic loss as a result of the defendants’ purportedly discriminatory practices, and seek, inter alia, compensatory damages and attorneys fees.
The defendants filed the present motion to dismiss on January 29, 2019, arguing that the plaintiffs have failed to exhaust the administrative remedies available to them by (1) failing to challenge the aforementioned promotional policies through the process set forth in rule 7 of the classified service rules, and (2) failing to exhaust their administrative remedies before the commission prior to bringing their claims under § 46a-60. In support of their arguments, the defendants submitted an affidavit from Emmett attesting that none of the plaintiffs filed an internal appeal concerning the exams in question, as well as copies of the classified service rules in effect at the time of the exams and the charter.
The plaintiffs filed an objection to the present motion to dismiss on March 29, 2019, rebutting the defendants’ arguments with respect to the first four counts of the plaintiffs’ complaint by arguing (1) that resort to any available administrative remedies would be futile and (2) that, in any event, the defendants’ motion to dismiss should be barred by estoppel due to the defendants’ having concealed certain information pertaining to the plaintiffs’ cause of action. With respect to count five, the plaintiffs argue that the defendants’ employment practices constituted a continuing violation from which the plaintiffs would suffer immediate and irreparable harm if forced to exhaust their remedies before the commission. Additionally, the plaintiffs argued that they sought relief for the defendants’ allegedly discriminatory practices in the form of compensatory damages for emotional harm and attorneys fees, both of which the commission would be incapable of awarding. In support of their objection, the plaintiffs submitted several exhibits, including affidavits from two of the individual plaintiffs attesting, inter alia, that they had no concerns with their "score on the exam or with the manner in which the raw scores were calculated." The defendants filed a reply to the plaintiffs’ objection on April 26, 2019.
The plaintiffs offer numerous reasons why resort to any available administrative remedies would be futile. These reasons include that the plaintiffs’ status as members of a collective bargaining unit foreclosed their ability to utilize any relevant internal appeal processes, that the Stamford Personnel Commission lacked authority to grant the relief the plaintiffs sought, and that the defendants have long regarded the challenged procedures as being lawful and are unlikely to change this interpretation. Nevertheless, because the court is able to decide the relevant aspects of the present motion on the basis of the language contained in the charter and classified service rules alone, it need not address the validity of these arguments.
On May 17, 2019, the court heard oral arguments on the defendants’ motion. The plaintiffs’ argument focused largely on their assertion that the present matter arises as a result of the defendants’ creation of the eligible lists in question rather than the conduct of the promotional exams, and that the appeal process set forth in rule 7 is thus inapplicable.
DISCUSSION
Practice Book § 10-30(a) provides in relevant part: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..." "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). Nevertheless, while "[i]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
"Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). Nonetheless, this rule is not absolute, and "[w]e 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 ... or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Internal quotation marks omitted.) Id.
I. Internal Appeal Processes
The defendants first argue that each count of the plaintiffs’ complaint, with the exception of the fifth count alleging violation of § 46a-60, should be dismissed due to the plaintiffs’ failure to exhaust the administrative remedies available to them under either the classified service rules or the charter. Section C6-140-6 of the charter provides in relevant part: "It shall be the duty of the Personnel Commission ... (8) To hear appeals in accordance with the provisions of the Charter." Further, as previously discussed, rule 5.5 of the Stamford classified service rules provides in relevant part: "Objective measuring techniques and procedures, determined by the Director, shall be used in rating the results of tests and determining the relative ranking of candidates." Rule 7.2 of Stamford’s classified service rules, titled "General Appeal of Examination Results," meanwhile, provides in relevant part: "All appeals relating to Rule 5 should be made in writing to the Director and filed within thirty (30) days of the notification date of exam results." As explained by the Appellate Court, "[t]he plain unambiguous language of rule 7.2 provides the remedial procedure for redressing a violation of rule 5." Lopiano v. Stamford, 22 Conn.App. 591, 595, 577 A.2d 1135 (1990).
Notwithstanding the defendants’ correct observation that rule 7.2 provides the appropriate administrative remedy for disputes concerning rule 5, a review of the plaintiffs’ complaint and affidavits demonstrates that their claims do not concern the administration or scoring of their examinations and thus do not arise under rule 5. The present matter is thus distinguishable from Lopiano, which involved a straightforward claim by the plaintiff that he was improperly given an oral examination in violation of rule 5. Lopiano v. Stamford, supra, 22 Conn.App. 595 ("[t]he plaintiff’s complaint alleged that the police commission’s oral examination violated rule 5.1 of the city’s classified service rules"). In contrast to Lopiano, where "[t]he plaintiff unequivocally complained of the defendants’ failure to follow statutory procedures for administering an examination"; id., 596; the plaintiffs here expressly disclaim any grievances with the conduct of the exams themselves or the manner in which their scores were initially evaluated. Accordingly, rule 7.2, which provides the general appeal procedures for examination results, is inapplicable to the present dispute.
Instead of challenging the results of the examinations themselves, the plaintiffs allege that the defendants’ methodology in creating the pertinent eligibility lists violated the charter as well as statutory requirements surrounding the method by which the positions in question were to be filled. Rule 6 of the classified service rules, rather than rule 5, addresses the topic of eligible lists, and neither the civil service rules nor the charter provide for a specific method by which to appeal the methodology employed in creating an eligible list. Although the plaintiffs do refer sporadically to rule 5 in their complaint, the defendants’ argument that the plaintiffs’ claims arise under rule 5 takes too narrow a view of the plaintiffs’ allegations. "[T]he defendants do not only round the examination scores, nor do they only apply the rule of three to score groups. In other words ... the whole is more than the sum of its parts ... [T]hus, it is to the whole that we apply our analysis." (Citation omitted; emphasis in original.) Kelly v. New Haven, 275 Conn. 580, 602, 881 A.2d 978 (2005). Because the "whole" in question here is the defendants’ creation of an eligible list pursuant to rule 6, rather than the administration and scoring of an examination pursuant to rule 5, and neither the charter nor the classified service rules provide the plaintiffs with an administrative remedy for grievances arising under this rule, the defendants’ argument that the plaintiffs failed to exhaust their administrative remedies on these claims must fail. Accordingly, the defendants’ motion to dismiss counts one through four of the plaintiffs’ complaint is denied.
Notwithstanding the language in § C6-140-6(8) of the charter concerning the Personnel Commission’s general duty to hear appeals in accordance with the charter, the only explicit internal appeal methods in the charter refer to disciplinary matters or the general right of employees to appeal decisions of the Personnel Commission "to a court of competent jurisdiction ..." See Stamford Charter, § § C6-140-10 & C6-140-11. Because the present matter does not concern employee discipline or raise a challenge to an appeal made under § C6-140-11 of the charter, and because the charter does not provide either a general internal appeal procedure or one relating specifically to the creation of eligible lists, the defendants’ reliance on case law involving city charters containing broader language concerning appeals than that presently at issue is misplaced. Compare, e.g., Fitzgerald v. Bridgeport, 187 Conn.App. 301, 317, 202 A.3d 385 (2019) ("The language of the charter provides the commission with broad and wide ranging authority to ‘hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals ... concerning promotions ... and such other matters as may be referred to the commission by the personnel director’ ").
II. Commission Appeal Process
The defendants further argue that count five of the plaintiffs’ complaint, alleging violation of § 46a-60, should be dismissed due to the plaintiffs’ failure to exhaust the administrative remedies provided for cases alleging employment discrimination. Before bringing a claim for violation of § 46a-60 in the Superior Court, a party must file a complaint with the commission and obtain a release of jurisdiction from the commission. General Statutes § 46a-100. See also Sullivan v. Board of Police Commissioners, 196 Conn. 208, 215, 491 A.2d 1096 (1985) ("[t]he provisions of the [Connecticut Fair Employment Practices Act] that prohibit discriminatory employment practices ... must be read in conjunction with the act’s provisions for the filing of complaints concerning alleged discriminatory practices with the [commission]" [citation omitted]). The plaintiffs acknowledge that they have not yet exhausted their administrative remedies before the commission but contend that the exhaustion requirement should be waived in the present matter, either because the commission cannot award the compensatory damages and attorneys fees sought by the plaintiffs or because the plaintiffs will suffer immediate and irreparable harm if the court does not presently hear their claims under § 46a-60.
Looking to the plaintiffs’ first argument, it is established that the commission cannot award attorneys fees as damages nor can it award compensatory damages for emotional harm. Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 100, 653 A.2d 782 (1995). A split of opinion exists among Connecticut trial courts as to whether the commission’s inability to award these types of damages vitiates the exhaustion requirement of § 46a-100 when a plaintiff seeks relief in either of these forms. Compare Brightly v. Abbott Terrance Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-98-0148584-S (February 27, 2001, Rogers, J.) (29 Conn.L.Rptr. 102) (requiring release) with Delvecchio v. Griggs & Browne Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. 118659 (April 20, 2000, Hurley, J.) (27 Conn.L.Rptr. 89) (waiving requirement). Nevertheless, the more compelling view is the former one. As explained by the United States District Court for the District of Connecticut, "[t]he doctrine of exhaustion (of administrative remedies) is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions ... Particularly in light of the fact that the [commission] is so limited in the types of remedies it may award, [t]he exhaustion requirement would be meaningless if a plaintiff could avoid the statutorily prescribed process by seeking a remedy unavailable through the [commission]." (Citation omitted; internal quotation marks omitted.) Fanning v. Gold Systems, Inc., United States District Court, Docket No. 3:05CV1202 (JCH) (D.Conn. June 15, 2006). Accordingly, the plaintiffs are still required to exhaust their administrative remedies before the commission pursuant to § 46a-100 despite seeking attorneys fees and compensatory damages for emotional harm.
The plaintiffs’ second argument is that they will suffer immediate and irreparable harm if the court fails to excuse the plaintiffs’ failure to comply with the exhaustion requirement and grant injunctive relief in their favor. A party is entitled to injunctive relief only when lacking an adequate remedy at law. See Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 565, 630 A.2d 1304 (1993). In the context of injunctive relief generally, "[t]he required showing of ‘no adequate remedy at law’ typically refers to the availability of alternative relief in the form of monetary damages ... [I]f an injury can be appropriately compensated by an award of monetary damages, then an adequate remedy at law exists, and no irreparable injury may be found to justify specific relief ..." (Citation omitted; internal quotation marks omitted.) Mangiafico v. Farmington, 331 Conn. 404, 426 n.9, 204 A.3d 1138 (2019).
Here, the plaintiffs argue that the defendants’ promotional policies constitute a "continuing violation [that] is also causing continuing and irreparable harm" and allege that the plaintiffs will suffer "imminent and irreparable harm ... if their claims are not heard and adjudicated promptly." Nevertheless, outside of these conclusory statements, the plaintiffs fail to offer any explanation as to why the remedies available to them before the commission constitute an inadequate remedy at law. The commission is fully capable of hearing cases involving allegations of discriminatory failure to promote; see, e.g., Hartford v. Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain, Docket No. CV-03-0520745-S (February 19, 2004, Shapiro, J.); and, following a finding that an employer engaged in discriminatory conduct, may require, inter alia, "the hiring ... of any individual, with or without back pay." General Statutes § 46a-86(b). Accordingly, an adequate remedy at law does seem to exist for the plaintiffs’ claims under § 46a-60, and it is unclear how the plaintiffs will suffer immediate and irreparable harm if forced to exhaust their administrative remedies before the commission. Because it is undisputed that the plaintiffs have not yet exhausted these administrative remedies, the defendant’s motion to dismiss count five of the plaintiffs’ complaint is granted.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is denied with respect to counts one, two, three, and four of the plaintiffs’ amended complaint. The defendants’ motion to dismiss is granted with respect to count five of the plaintiffs’ amended complaint.