Opinion
No. CV-020813590
November 13, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Before this court are a motion to dismiss and memorandum of law in support of said motion as well as an amended motion to dismiss with a memorandum of law, all filed by the defendant, Department of Correction. In response, the plaintiff has filed memorandum of law and a supplemental memorandum of law objecting to the defendant's motion to dismiss.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866, A.2d 599 (2005). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501.
This action was originally commenced on January 15, 2002, with a return date of February 5, 2002. The original complaint alleges in count one, unlawful race discrimination in the plaintiff's employment with the state, racial discrimination and retaliation in employment in count two, breach of contract and implied covenant of good faith and fair dealing in count three and in count four, negligent infliction of emotional distress. Attached to the original complaint is a release of jurisdiction issued by the Commission on Human Rights and Opportunities pursuant to General Statutes § 46a-100. Said release allows Gooden to bring a civil action in superior court against the Department of Correction, having timely filed a complaint pursuant to General Statutes § 46a-82.
Following a request to revise filed by the defendant in February 2002 and an objection filed by the plaintiff in March 2002, an amended complaint was filed nearly three years later, on March 10, 2005. An answer was filed by the defendant on May 19, 2005, wherein the defendant asserted as one of its defenses its sovereign immunity as to count four. The matter was subsequently submitted for arbitration on April 20, 2007 whereupon, following a decision rendered on May 30, 2007, the defendant filed its claim for a trial de novo. The defendant's motion to dismiss with memorandum of law was filed on June 11, 2007, and an argument on said motion was held on July 19, 2007. On that same day, the plaintiff filed its memorandum of law in opposition, and based on additional claims asserted by the defendant, the court allowed supplemental briefing, filed by the defendant and plaintiff, respectively on August 1, 2007 and August 2, 2007. The trial, originally scheduled for July 20, 2007, was rescheduled for November 14, 2007.
The defendant's motion to dismiss asserts that this court is without subject matter jurisdiction based on claims of sovereign immunity, lack of personal jurisdiction and failure to exhaust administrative remedies.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003). As such, and notwithstanding the eleventh hour filing of the motion to dismiss given the history of this case, the court is obligated to consider and determine issues implicating subject matter jurisdiction. Id. Practice Book § 10-33.
Unlike subject matter jurisdiction, however, which can be raised at any time, an issue implicating the court's jurisdiction over the person must be raised within thirty days or is deemed waived. Practice Book §§ 10-30 and 10-32. Here the defendant asserts defects in service of process, which implicate personal jurisdiction and therefore, does not, as the defendant claims, deprive the court of subject matter jurisdiction. Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). Given that an appearance by the state was filed over five years before this issue was raised in 2007, the court deems this claim waived.
Sovereign immunity, however, does implicate this court's jurisdiction over the subject matter. Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006). In asserting the defense of sovereign immunity, the defendant claims that the plaintiff cannot state a cause of action in count three because there is no enforceable contract between the state and its employees. In support of its claim, the defendant relies on Chotkowski v. State, 240 Conn. 246, 690 A.2d 368 (1997). For his part, the plaintiff asserts that there is a contract by virtue of the collective bargaining agreement and further, that "the state has waived its common law sovereign immunity as it applies to the Connecticut Fair Employment Practices Act."
The defendant's reliance on Chotkowski is misplaced. It is true that, in Chotkowski, the Supreme Court affirmed the trial court's judgment for the state based on the holding that state employees enjoy only statutory and not contractual employment rights. In relying on that portion of Chotkowski, however, the defendant essentially argues that by asserting a breach of contract against the state, the plaintiff has failed to state a cause of action upon which relief may be granted. While this argument may be compelling and appropriate for purposes of a motion to strike, it fails to the extent that the defendant seeks to dismiss the action based on a lack of subject matter jurisdiction. O'Marra v. Dept. of Public Safety et al, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 4001277 (February 17, 2005, Silbert, J.) [38 Conn. L. Rptr. 750] (argument that plaintiff fails to state a cause of action since individual state employees do not have contractual employment rights pursuant to a collective bargaining agreement is properly the subject of a motion to strike, and not a motion to dismiss). As such, this court cannot dismiss the breach of contract count based on this ground.
While the defendant has not distinctly raised the issue of whether or not the state has consented to be sued, the court is not relieved of its obligation to address, sua sponte, the question of its subject matter jurisdiction in the absence of consent. As our Supreme Court has observed, "jurisdictional matters must be addressed whether or not the parties have raised them in their pleadings." Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985).
With respect to his breach of contract count, the plaintiff has failed credibly to assert that "1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or 2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority or pursuant to an unconstitutional statute." 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 309, 875 A.2d 498 (2005). In 184 Windsor Avenue, LLC, the Supreme Court reviewed how money damages claims against the state may be brought where the actions sounds in breach of contract. Id. With respect to statutory waivers of sovereign immunity in contract actions, the Court noted that General Statutes § 4-61, entitled "Actions against the state on highway and public works contracts," is the " sole Connecticut Statute that expressly waives sovereign immunity for specifically enumerated contract actions." (Emphasis in original.) Id., 311. The court also rejected the plaintiff's claim that public policy supports a waiver of sovereign immunity to the extent that he asserted that the absence of a judicial forum renders contracts with the state illusory. To this the court observed that the statutes themselves are the expression of a public policy decision reserved to the legislature. Id., 313. Indeed, in the present case, the plaintiff has failed to assert a statutory provision relevant to his alleged employment contract which can be interpreted as a waiver of immunity. As such, in the absence of a statutory waiver of sovereign immunity, a plaintiff may not bring suit against the state for money damages without authorization from the claims commissioner to do so. Id.
The plaintiff's cursory reference in his memorandum to CFEPA ["the Connecticut Fair Employment Practices Act"], General Statutes § 46a-51 et seq., for purposes of saving his breach of contract count is unavailing. The plaintiff's discrimination claims under that statutory provision, specifically pursuant to General Statutes § 46a-60, are already encompassed in counts one and two. In contrast, his breach of contract count makes no reference to General Statutes § 46a-51 et seq. or CHRO's release of jurisdiction as clearly referenced in counts one and two. With virtually no authority or analysis as to his breach of contract count, the plaintiff vaguely suggests that permission he received to sue, as authorized by the Commission of Human Rights and Opportunities [CHRO], and pursuant to General Statutes § 46a-51 et seq., extends to common-law causes of action beyond the jurisdiction of the CHRO. It is well settled law that such statutory waivers must be strictly construed. 184 Windsor Avenue, LLC v. State, supra, 274 Conn. 312. Even if the plaintiff had referenced CFEPA and the permission to sue pursuant to General Statutes § 46a-51 et seq., the court cannot find it has subject matter jurisdiction over the breach of contract count. While the jurisdiction of the CHRO is expansive to the extent that it encompasses a wide range of discriminatory type claims in many different contexts, its statutory authority is nevertheless limited to its provisions and nowhere does it extend to common-law contract actions or any other common-law cause of action. See Barchant v. Azia, Superior Court, judicial district of New London, Docket No. 5001959 (May 11, 2007, Hurley, J.T.R.) (43 Conn. L. Rptr. 371, 372) ("The CHRO has jurisdiction to hear claims of discriminatory practices; General Statutes 46-82(a); but the Superior Court maintains original jurisdiction over common-law tort claims"); see also Kearns v. State Judicial Department, Superior Court, judicial district of New Britain, Docket No. CV 02 0515773 (June 24, 2003, Dunnel, J.) (35 Conn. L. Rptr. 138, 140) ("the CHRO cannot confer jurisdiction through a release over a claim which could not have been adjudicated by that agency").
Therein the plaintiff has specifically alleged that he timely filed a complaint with the Commission on Human Rights and Opportunities, who issued a release of jurisdiction and authorized the plaintiff to sue the state in superior court, under General Statutes §§ 46a-100 and 46a-101.
Moreover, at least one superior court decision acknowledged the viability of a sovereign immunity defense, notwithstanding the plaintiff's attempt to reference General Statutes § 46a-60 in his count for wrongful discharge. Torres v. State, Superior Court, judicial district of New Haven, Docket No. CV 05 4011817 (December 11, 2006, Corradino, J.) [42 Conn. L. Rptr. 513] As the Torres court observed, "[t]he state did consent to suits filed under § 46a-60(a)(1) and (4) and a remedy for discriminatory discharge is provided for in those statutes, but these sections are embedded in a statutory scheme to broadly deal with discriminatory practices, see § 46a-82 et seq., and sets out various procedural rules and requirements for advancing discrimination claims." Rejecting the claim that the state consented to be sued for wrongful discharge, the Torres court further observed that "the mere fact that this count references state statutes does not make it anything other than a common-law action." Id.
Finally, the plaintiff argues that because his claims for relief include reinstatement, in addition to money damages, he can avoid sovereign immunity. In his prayer for relief, the plaintiff requests that he "be reinstated to his former position or to any other position/promotion to which he would be entitled had he not been terminated." The Supreme Court has not addressed whether the remedy of reinstatement falls under the injunctive or declaratory relief exception to the doctrine of sovereign immunity. Cox v. Aiken, supra, 278 Conn. 218, n. 19 ("plaintiff has failed to meet his burden to show that a state official acted in excess of his or her authority, [so] we need not reach the defendants' claim that . . . the trial court and the Appellate Court improperly circumvented their sovereign immunity by construing the plaintiff's complaint, which had requested the relief of reinstatement . . . to imply a claim for injunctive relief"). The Superior Court has, however, construed requests for reinstatement as "seeking injunctive relief." See Colon v. State of Conn. Judicial Branch, Superior Court, judicial district of Hartford, Docket No. CV 06 5002208 (August 8, 2006, Tanzer, J.) ("[i]n his prayer for relief, the plaintiff seeks injunctive relief by way of reinstatement"); Raffin v. Dept. of Public Works, 50 Conn.Sup. 98, 101, 914 A.2d 617 (2006) ("plaintiff, in her claim for relief . . . asks for injunctive relief in the form of an order to reinstate the plaintiff to her former position"). In the present case, nevertheless, even if the court were to imply a claim for injunctive relief, this court must next determine whether the plaintiff has alleged a factual foundation in his complaint to support the applicability of this exception. "For a claim . . . alleging that an officer acted in excess of statutory authority, `the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations' . . . 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." (Citations omitted; internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 754, 878 A.2d 384 (2005). Count three of the plaintiff's complaint is devoid of any factual allegations that, if proven, would reasonably support his allegation that the defendant acted in excess of its statutory authority in breaching its employment contract with the plaintiff.
This court makes further note of the plaintiff's allegation that he was reinstated in his position eight months after he was terminated. While the plaintiff's prayer for relief includes both reinstatement to his former position and "any other position/promotion to which he would be entitled had he not been terminated," this court is hard pressed to determine why this issue is not moot. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Citations omitted; internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 79 Conn.App. 384, 390, 830 A.2d 767 (2003).
The defendant does invoke its sovereign immunity as to count four of the plaintiff's amended complaint, claiming negligent infliction of emotional distress, to the extent that the plaintiff has failed to assert that the state has consented to be sued. A plaintiff seeking to circumvent the doctrine of sovereign immunity must show that either that the legislature statutorily waived the state's sovereign immunity, or, "in an action for declaratory or injunctive relief, the state officer or officers acted in excess of statutory authority, or pursuant to an unconstitutional statute." 184 Windsor Avenue, LLC v. State, supra, 274 Conn. 313-14. The plaintiff merely asserts in his memorandum in opposition that the defendant, through its agents and employees, have acted beyond the scope of their authority. On its face, however, count four utterly fails to the extent that the only named defendant is the state of Connecticut, and as such, individual defendants were not named. The plaintiff has not pointed to any statutory authority whereby the legislature statutorily waived the state's sovereign immunity, nor has the plaintiff expressly claimed or clearly demonstrated an incursion upon constitutionally protected rights or claimed that the state acted in excess of its statutory authority. Moreover, this second exception is inapplicable to count four because the plaintiff claims general, compensatory and punitive damages. "When a plaintiff brings a cause of action for money damages against the state, [the plaintiff] must proceed through the office of the claims commissioner . . . 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). For these reasons, the court dismisses count four.
The plaintiff erroneously relies on Shay v. Rossi, 253 Conn. 134, 174-75, 749 A.2d 1147 (2000). Shay was overruled by C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250 (2007), to the extent that Shay held "that actions for monetary damages are not barred by sovereign immunity under the excess of statutory authority exception." Id., 259, n. 6. Rather, "this exception applies only to actions for injunctive or declaratory relief." Id., 259.
In supplemental briefing, the defendant asserts as to count two an exhaustion of remedies defense, which if viable, also implicates subject matter jurisdiction. "Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "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 . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). The defendant claims that to the extent that the plaintiff asserts retaliation as part and parcel of its second cause of action, the claim of retaliation was never before the CHRO and thus, the plaintiff has failed to exhaust his administrative remedies. The plaintiff has indicated in his complaint, however, that he has secured from the CHRO a release of jurisdiction and permission to sue. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). In the present case, the defendant has submitted no affidavits to support his claim that the issue of retaliation was never before the CHRO. Considering the allegations of the complaint in their most favorable light, the court presumes the validity of the plaintiff's allegations regarding his release of jurisdiction and permission to sue for the purposes of this motion to dismiss.
For the aforementioned reasons, the defendant's motion to dismiss counts three and four of the plaintiff's amended complaint is granted and the defendant's amended motion to dismiss count two is denied.