Opinion
No. HHD CV 10-6013363-S
September 1, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Gwendolyn Eaddy, filed this four-count complaint against the following eight defendants: the Department of Children and Families (DCF); Susan Hamilton, who was then the Commissioner of DCF; Amy Gionfriddo, a DCF social worker (collectively, the DCF defendants); the Meriden Board of Education and Mary Cortright, Joy Baker, Thomas Brown and Maggie Plant, who are employed by the board (collectively, the Meriden defendants). Count one is a claim for defamation against the Meriden defendants only. Count two is directed against all of the defendants for vexatious suit. Count three alleges intentional infliction of emotional distress against all the individual defendants, including Gionfriddo, in their individual capacities. Count four is directed against the DCF defendants for violations of General Statutes § 46a-71(a) and (b). The prayer for relief seeks injunctive relief, compensatory damages, punitive damages, attorneys fees and costs.
In general terms, Section 46a-71 prohibits discrimination in services performed by state agencies.
The complaint alleges the following facts. The plaintiff is an African-American female, who resides in Meriden, Connecticut. She has a ten-year-old son, E.A., and a kindergarten-aged daughter, J.A. E.A. is enrolled in the Meriden public school system. On May 8, 2008, E.A. did not return home from school on the school bus as expected by the plaintiff. The plaintiff telephoned E.A.'s school, the Casimir Pulaski School, to inquire as to the whereabouts of her son. The school's principal, Thomas Brown, informed the plaintiff that he had called DCF because E.A. alleged that the plaintiff had beaten him using a shoe, a belt and a blow dryer. The plaintiff then went to the school, where a department worker, Amy Gionfriddo, outlined the allegations of physical abuse that E.A. had made against the plaintiff.
A few days later, the plaintiff received a call from Gionfriddo. Gionfriddo asked the plaintiff if the plaintiff told E.A. that he could be "taken away" from her by the authorities. The plaintiff indicated that she had made that statement to E.A., and justified it by citing "new bullying laws, and legislation that supports [safety] and zero tolerance policies in schools"; E.A.'s disciplinary, medical and mental health issues as well as the realities facing special needs and African-American male students. Gionfriddo criticized the plaintiff's viewpoint, telling the plaintiff that she was "espousing racist views."
From the May 8, 2008 incident until December of 2008, the plaintiff was under investigation by DCF. At some point, the plaintiff informed school officials of her belief that E.A. should be enrolled in anger management and conflict resolution classes. The school officials, as well as "the doctor," told the plaintiff that E.A.'s "medication regimen had to be continued" and that "the topic of anger management might then be revisited after they get a `handle' on his medication." Despite disagreeing with this course of action, the plaintiff complied with it "in order to avoid being labeled as a `bad mom.'"
On June 11, 2008, DCF substantiated charges of emotional neglect and two counts of educational neglect against the plaintiff. Charges of physical abuse and physical neglect were not substantiated. A charge of educational neglect was also substantiated regarding J.A. As a result, the plaintiff learned that she would be placed on a registry for individuals against whom charges of child abuse and neglect had been substantiated. On June 20, 2008, the plaintiff appealed the substantiated findings of emotional and educational neglect against her. On December 31, 2008, the charges of emotional and educational neglect were overturned as a result of the administrative appeal.
It is unclear from the plaintiff's complaint if her appeal related to the charges substantiated regarding E.A. only, or E.A. and J.A.
Before the court is the DCF Defendants' motion to dismiss all the claims against them, which was filed on August 25, 2010. Specifically, they move to dismiss counts two and four on the ground of lack of subject matter jurisdiction, and count three as to Gionfriddo on the ground of lack of personal jurisdiction and statutory immunity under General Statutes § 4-165. The issues have been fully briefed. Oral argument was held at short calendar on May 9, 2011.
"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 . . . [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; Internal marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[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).
I COUNT TWO (Vexatious Suit As To All Defendants)
"[T]he purpose of the sovereign immunity doctrine is to protect the state from liability for private litigation that may interfere with the functioning of state government and may impose fiscal burdens on the state . . ." Gordon v. H.N.S. Management Co., 272 Conn. 81, 105, 861 A.2d 1160 (2004). "The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state's immunity from liability or suit . . . [T]his court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . [W]hen there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Emphasis in original; internal quotation marks omitted.) Hicks v. State, 297 Conn. 798, 801-02, 1 A.3d 39 (2010).
The DCF defendants argue that the plaintiff's claims against them in count two for vexatious suit are barred by the doctrine of sovereign immunity. In particular, they contend that the plaintiff's claim for monetary damages is barred by sovereign immunity and that her claim for injunctive relief is barred because the plaintiff fails to plead facts which would qualify this claim for any recognized exception to the doctrine. They also argue that the court lacks authority to grant injunctive relief due to the plaintiff's failure to file a verified complaint as required by General Statutes § 52-471(b). In her opposition, the plaintiff maintains that count two is not barred by sovereign immunity because she has alleged conduct by the DCF defendants that falls within two of the exceptions to sovereign immunity — the exception for conduct by state officials that violated the plaintiff's constitutional rights, as well as the exception for conduct by state officials in excess of their statutory authority.
"[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). "In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Id., 350.
In count two, a vexatious suit claim, the plaintiff incorporates the factual allegations in her statement of facts and further alleges that the DCF defendants lacked "probable cause to take actions to cause DCF to institute and/or [continue] the investigation of Plaintiff for emotional abuse and/or educational neglect," but proceeded to do so nonetheless.
The plaintiff does not contest the DCF defendants' assertion that her claim for monetary relief as to count two is barred by the doctrine of sovereign immunity. Indeed, under Connecticut law, "[i]n the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Columbia Air Services v. Department of Transportation, CT Page 18674 supra, 293 Conn. 351. "[T]he exception to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions seeking declaratory or injunctive relief, not to actions for money damages. When a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to [General Statutes §§ 4-141 through 4-165]. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). Since there is no indication in the complaint or motion papers that the plaintiff has received the requisite permission, the plaintiff's claim for monetary relief as to count two is barred by sovereign immunity.
Although the defendants argue that any purported claim by the plaintiff for injunctive relief as to count two is also barred by the doctrine of sovereign immunity, the court is not convinced that she has even properly stated such a claim. While the prayer for relief for the entire complaint seeks injunctive relief generally, the plaintiff makes no specific claim for such relief in count two. In fact, paragraph 47 merely notes that the plaintiff has been damaged. In any event, the plaintiff does not allege facts which would reasonably support a claim that the DCF defendants violated her constitutional rights or acted in excess statutory authority such as would overcome the bar of sovereign immunity. See Columbia Air Services v. Department of Transportation, supra, 293 Conn. 349-51. For all these reasons, the motion to dismiss count two of the complaint is, in all respects, granted for lack of subject matter jurisdiction.
II COUNT THREE
Count three is identified by the plaintiff parenthetically as "intentional infliction of emotional distress" as to "All Individual Defendants in their Individual Capacities." In support of its motion to dismiss this count, the DCF defendants point out, and the plaintiff concedes, as confirmed by the summons and return of service, none of the so-called individually-named defendants, including Gionfriddo, were served individually. "[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "[W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). "There is no substitute for `in hand' or abode service in accordance with General Statutes § 52-54, where jurisdiction over the person of a resident individual is sought . . ." White-Bowman Plumbing Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980). Suing state defendants in their individual capacities requires "that they be served at their ususal places of abode." Edelman v. Page, 123 Conn.App. 233, 243, 1 A.3d 1188 (2010). See also Setoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV 10 6012794 (April 15, 2011, Peck, J.).
The plaintiff asked the court to consider and grant her motion to extend the return date, which she filed with her opposition to the motion to dismiss, so that she could properly serve certain defendants in their individual capacities. The DCF defendants opposed the motion to extend, and, on May 12, 2011, this court denied it.
Because she was not properly served in her individual capacity, the court lacks jurisdiction over the person of Gionfriddo as to count three of the plaintiff's complaint. Therefore, the DCF defendant's motion to dismiss count three of the complaint as to Gionfriddo must be granted.
III COUNT FOUR
In count four of the complaint, the plaintiff alleges that the DCF defendants violated General Statutes § 46a-71(a) and (b). The DCF defendants maintain that the plaintiff's claims for monetary damages and injunctive relief in connection with these provisions are barred by the doctrine of sovereign immunity. The plaintiff did not specifically address count four in her memorandum in opposition.
The plaintiff does not specifically state upon which statutory provision upon which she brings her cause of action as § 46a-71 does not, itself, provide the basis for a private cause of action. However, she has attached a "Release of Jurisdiction" from the Commission on Human Rights and Opportunities (CHRO), dated April 13, 2010, pursuant to General Statutes § 46a-101, which authorizes a private cause of action pursuant to § 46a-100 for persons who have timely filed a complaint and obtained a release of jurisdiction from the CHRO. Practice Book § 10-3(a) provides, "[w]hen any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." "Although a plaintiff generally is required to identify specifically any statute on which a particular action is grounded; see Practice Book § 10-3(a); `our courts repeatedly have recognized that [this rule] is directory and not mandatory . . .' Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). The plaintiff is not barred from recovery thereby as long as the defendant sufficiently was apprised of the nature of the action. Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003); see also Caruso v. Bridgeport, 285 Conn. 618, 629, 941 A.2d 266 (2008) (`[t]he critical consideration under § 10-3(a) . . . is whether the [defendant was] on notice of the statutory basis for the plaintiff's claims'). Brewster Park, LLC v. Berger, 126 Conn.App. 630, 14 A.3d 334 (2011)." Smigelski v. Dubois, Superior Court, judicial district of New Britain, Docket No. CV 10 6007570 (March 21, 2011, Young, J.). Although for reasons discussed later on in this memorandum it is not clear whether the basis of her cause of action is § 46a-100 or § 46a-99 because of some overlap in these provisions, there is no question that she relies on one or both of these provisions as the basis of count four.
In count four, the plaintiff makes the following additional allegations: The DCF defendants discriminated against her on the basis of her race and they exceeded their statutory authority in their racially biased conduct and treatment of her. The plaintiff filed a complaint with the Connecticut commission on human rights and opportunities (CHRO), pursuant to General Statutes § 46a-82, in which she alleged claims for race and color discrimination under § 46a-71(a) and § 46a-71(b). The commission issued a release of jurisdiction over her complaint on April 13, 2010, pursuant to a notice of release of jurisdiction, a copy of which she attached to the complaint.
Section 46a-71 provides, in relevant part as follows: "(a) All services of every state agency shall be performed without discrimination based upon race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness; (b) No state facility may be used in the furtherance of any discrimination, nor may any state agency become a party to any agreement, arrangement or plan which has the effect of sanctioning discrimination . . ."
Although the statute itself does not expressly provide a private cause of action to a person claiming a violation, it must be read in conjunction with General Statutes § 46a-82, which provides in relevant part: "(a) Any person claiming to be aggrieved by an alleged discriminatory practice . . . may, by himself or herself or by such person's attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission . . ."
Further, § 46a-100 provides: "[A]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford." Lastly, § 46a-101 provides in relevant part: "(a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section."
Although the plaintiff does not recite these provisions in the text of her complaint, it is apparent that she relies on them as §§ 46a-82, 46a-100 and 46a-101 are expressly referred to in the notice attached to her complaint. Although the plaintiff's filings makes no reference to General Statutes § 46a-99, the court notes that this statute also provides a cause of action for alleged violations of various anti-discrimination statutes, including § 46a-71. Section 46a-99 provides: "Any person claiming to be aggrieved by any provision of sections 46a-70 to 46a-78, inclusive . . . may petition the Superior Court for appropriate relief and said court shall have the power to grant such relief, by injunction, or otherwise, as it deems just and suitable."
The Connecticut Supreme Court has determined, under the corollary statutory scheme involving claims of employment discrimination premised on violations of General Statutes § 46a-60, that § 46a-100, assuming proper compliance with the related provisions § 46a-82 and § 46a-101, constitutes an express waiver of sovereign immunity. See Lyon v. Jones, 291 Conn. 384, 400, 968 A.2d 416 (2009). Although the court in Lyon did not reach the claims brought under § 46a-70, the similarity of the relationship between § 46a-70 and § 46a-100 and § 46a-101, to that of § 46a-60 and those same provisions, is inescapable in situations where the CHRO has released its jurisdiction over a properly filed claim. Applying similar reasoning to that employed by the Supreme Court in Lyon v. Jones, at the very least, it would appear that § 46a-99 constitutes a similar waiver of statutory immunity at least with respect to injunctive relief.
In Lyon, the court noted that 46a-100, "is the primary vehicle allowing a complainant who has received a release from the commission to further prosecute her claim in court." Id., 400. The court quoted the statute and concluded, "from this language, and from the statute's place in the overarching statutory scheme, that § 46a-100 expressly waives sovereign immunity and creates a cause of action in the Superior Court for claims alleging a violation of § 46a-60 over which the commission has released its jurisdiction." Id. Section 46a-99 is also an integral part of the same "overarching statutory scheme" that led the court to conclude that § 46a-100 "expressly waives sovereign immunity" in connection with a claim "over which the commission has released its jurisdiction."
In Lyon, the court explained that its conclusion was consistent with General Statutes § 4-142, which "sets forth various exceptions to the claims commissioner's jurisdiction, and provides in relevant part: `There shall be a Claims Commissioner who shall hear and determine all claims against the state except . . . (2) claims upon which suit otherwise is authorized by law . . . (3) claims for which an administrative hearing procedure otherwise is established by law . . ." (Emphasis original.) Lyon v. Jones, supra, 291 Conn. 401-02. "[Section] 4-142(3) . . . specifically exempts from the jurisdiction of the claims commissioner `claims for which an administrative hearing procedure otherwise is established by law . . .' Section 46a-82(a) provides just such an alternative administrative procedure: `Any person claiming to be aggrieved by an alleged discriminatory practice . . . may . . . make, sign and file with the commission a complaint in writing under oath . . .' Thus, it is apparent that claims over which the commission has statutory jurisdiction are, by the express terms of § 4-142(3), excluded from the purview of the claims commissioner." Id., 402.
"Moreover, § 4-142(2), read together with § 46a-101, also operates to exempt a claim brought under § 46a-60 from the claims commissioner's jurisdiction. Section 46a-101(a) provides: `No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section.' Viewed as a limitation on the availability of a private cause of action, § 46a-101 implies that § 46a-100 creates that cause of action, rather than merely providing rules for determining the proper venue. A complaint brought before the commission alleging a violation of § 46a-60 is simply not `cognizable' by the claims commissioner . . . Section 46a-100 explicitly authorizes a plaintiff to file a discrimination action, over which the commission has released its jurisdiction, against the state in Superior Court without the approval of the claims commissioner. Indeed, a contrary construction would undermine the provisions of the act, leading to absurd and unworkable results, which the legislature clearly did not intend." (Citation omitted.) Lyon v. Jones, supra, 291 Conn. 403.
"The parties to this appeal, including the attorney general's office as appellee, agree with this conclusion. Indeed, this is the long-standing position of the office of the claims commissioner itself." Lyon v. Jones, supra, 291 Conn. 404.
Although the particular discriminatory practice at issue in Lyons v. Jones was employment discrimination, the language that the court employed in its analysis indicates that its conclusion was based on the statutory language and scheme that also apply to allegations of other discriminatory practices, such as those of the plaintiff in this matter, that were brought to and then released by the CHRO pursuant to §§ 46a-82 and 46a-100, respectively. In addition, to the extent that it may be argued that § 46a-99 is the only provision in the statutory scheme which provides a private cause of action for claims arising out of "discriminatory state practices" such as those set forth in § 46a-7l, the fact is that the language contained in § 46a-99 does not limit the form of recovery available to injunctive relief. Rather, the language of § 46a-99 is that a person "may petition the Superior Court for appropriate relief and said court shall have the power to grant such relief, by injunction or otherwise. (Emphasis added.)
In this regard, the court notes that § 46a-82 refers to "discriminatory practices," not only discriminatory employment practices.
Finally, the DCF defendants argue that the plaintiff's claim for injunctive relief as to count four should be precluded pursuant to General Statutes § 52-471(b) because she has failed to verify by oath the allegations made in her complaint. Section 52-471(b) provides: "No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness." "`[W]hile [§ 52-471(b)] requires the facts stated in an application for injunction to be verified by the oath of the plaintiff or some competent witness before the court may grant an injunction, it does not require the plaintiff to file a verified complaint or affidavit before the court may exercise jurisdiction over an action for an injunction.' Hiscox v. Peru, Superior Court, judicial district of New London, Docket No. CV-07 5003832 (October 22, 2008, Martin, J.). `A party seeking injunctive relief may be allowed to verify its allegations at the time of trial . . .' DeMartino v. DiSora, . . . Superior Court, Docket No. CV 90 030509 [(November 27, 1990, Curran, J.)]." Cooke v. Turnure, judicial district of Litchfield, Docket No. CV 08 4007577 (December 8, 2008, Roche, J.) ( 46 Conn. L. Rptr. 765, 766). Therefore, the plaintiff may verify the allegations made in her complaint at the time of trial. For all the foregoing, reasons, the motion to dismiss count four must be denied.
CONCLUSION
Accordingly, the DCF defendants' motion to dismiss counts two and three is hereby granted and the motion to dismiss count four is hereby denied.