Opinion
No. CV-98-0582286S
March 31, 2003
MEMORANDUM OF DECISION
This action was tried to the court on December 18, 2002. Thereafter, pursuant to a briefing schedule, the parties submitted post-trial memoranda, the last dated February 24, 2003. After considering the evidence and the arguments, the court issues this memorandum of decision.
I. Background
The plaintiff, Robin A. Maxwell, commenced this matter by his four-count complaint, dated June 24, 1998. At trial, after the presentation of the plaintiff's case in chief, he withdrew the first, third, and fourth counts. See Trial Transcript, p. 50 (hereafter "Tr., p. _____."). Thus, this memorandum of decision addresses only the second count.
By amendment dated June 3, 1999, the plaintiff substituted a new paragraph 9 in the first count.
In the second count, Maxwell alleges the following facts. At the time of his complaint, he had been an employee of the defendant State of Connecticut Department of Mental Retardation (hereinafter State or DMR) since 1988, at the Southbury Training School in Southbury, Connecticut. Since 1988, he has been a member in good standing of New England Health Care Employees Union District 1199, AFL-CIO (Union).
The State entered into a collective bargaining agreement with the Union, wherein the Union was recognized as the employees' exclusive representative. See Plaintiff's Exhibit 1 and defendant's Exhibit D (CBA). The effective dates of the CBA were July 1, 1993 to June 30, 1997. The CBA prescribes mandatory grievance procedures which were applicable to Maxwell, as an employee, and to the State.
On June 8, 1995, Maxwell received a letter of warning, dated May 31, 1995, from the State, in which Maxwell claims it was alleged that, on May 11, 1995, Maxwell, and a school resident in his charge, wrongfully failed CT Page 4447-aa to return to the school grounds on time. See Complaint, second count, ¶ 6. Maxwell claims that he was grieved by the charge in the letter, which he contends was false and which he asserts was unsupported by the evidence, and was based on uncorroborated allegations from a DMR supervisor. See Complaint, second count, ¶ 7.
Maxwell further claims that he reduced his grievance to writing and timely submitted it to Step I of the grievance procedure as provided by the CBA. On July 18, 1995, DMR responded to the grievance by stating that no contract violation had occurred, in that prior to the written warning DMR had spoken to Maxwell about the same type of issue. Maxwell asserts that he appealed to Step II of the grievance process, which led to a conference on August 2, 1995, and a written response on August 6, 1995, which concurred with the Step I result.
In paragraph 11 of the second count, Maxwell alleges that, on August 14, 1995, he appealed to Step III of the grievance process and "filed this unresolved grievance appealing to the Director of Personnel and Labor Relations." He alleges that the Director of Personnel and Labor Relations "did not hold a conference within twenty-one days of receipt of the grievance as mandated by Step III, Section Three of the Grievance Procedure," Complaint, second count, ¶ 12, and has not done so.
Based on these facts, Maxwell claims that the State has breached the CBA, "depriving the plaintiff of the opportunity of exercising his contractual right to vindicate his position by refuting the non-factual and fabricated allegations contained in the Letter of Warning and to have the Letter of Warning removed from his Personnel File." Complaint, second count, ¶ 14. As a further consequence, he claims that he received a "Less Than Good" performance appraisal. Complaint, second count, ¶ 15. He claims to have been harmed by damage to his professional reputation, that his performance has been wrongfully evaluated, that he will not be able to compete in any promotional examinations, that he has been wrongfully admonished, and that he has been deprived of his annual salary increment. See complaint, second count, ¶ 16. In this paragraph, Maxwell alleges that the "unfairness, bias and bigotry" of the author of the letter of warning caused him to be wrongfully evaluated. See complaint, second count, ¶ 16.
See discussion of the merits below at pp. 11-13.
He seeks damages, the removal of the letter of warning from his personnel file, immediate eligibility to compete in promotional examinations, retroactive award of annual increments, and reasonable attorneys fees.
In response to the complaint, the State denies the allegations of CT Page 4447-ab liability, denies that it acted improperly, and pleads several special defenses. The State asserts that the May 11, 1995 incident set forth in the letter concerned Maxwell's failure to return from one location to another on school grounds with a client. It contends that all facilities referred to in the letter are on the Southbury campus. See Answer, dated June 22, 1999 (#106), second count, ¶ 6.
While the State admits that Maxwell and his representative signed an appeal to Step III of the grievance process, it denies that the plaintiff or the Union "submitted said appeal to the Office of Labor Relations, a necessary predicate step to a Step III hearing." Answer, second count, ¶ 11. While the State admits that no Step III hearing has been held, it denies the necessity for holding the same.
In its first affirmative defense, the State alleges that neither Maxwell nor the Union "submitted the Plaintiff's Step III appeal to the state's Office of Labor Relations ("OLR"), as is required for a Step III hearing to be scheduled." As a result, "the plaintiff and/or the plaintiff's union, and not the defendant, is responsible for the absence of a Step III hearing and ruling" as to the grievance referenced in Count II. Answer, first affirmative defense, ¶ 2.
In addition, in its fourth affirmative defense, the State contends that Maxwell cannot maintain his claim, since only the Union may bring an action alleging a violation of the CBA, and, if the Union fails to enforce the CBA, an employee may charge the Union with a breach of the duty of fair representation. Finally, in the fifth affirmative defense, the State asserts that when a grievance decision is not timely issued, it may be deemed denied and may then be appealed to the next step, including to arbitration. Therefore, the State alleges that Maxwell's claim is barred for failure to exhaust an available administrative remedy.
II. Discussion
A. Subject Matter Jurisdiction
"Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "[J]urisdiction of the subject matter is a question of law . . ." (Citations omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 35, 635 A.2d 168 (1995).
"Subject matter jurisdiction involves the authority of the court to CT Page 4447-ac 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." (Citations omitted and internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86 (2003).
"The termination of proceedings without a determination of the merits of the controversy is not favored, especially where that determination can be brought about consistent with the necessary rules of procedure . . ." Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001). Here, at the close of the evidentiary presentation at trial, the court directed the parties to address the issue of the court's subject matter jurisdiction in their post-trial briefs.
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 485.
"Ordinarily a court may entertain a suit by an individual employee to enforce the terms of a collective bargaining agreement only if the agreement so provides." (Internal quotation marks omitted.) Stosuy v. City of Stamford, 65 Conn. App. 221, 223, 782 A.2d 198 (2001).
"It has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195 (1962). Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement." DelCostello v. Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). "[H]owever, . . . this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding . . . Such a suit, as a formal matter, comprises two causes of action . . . Yet the two claims are inextricably interdependent. To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union . . . The employee may, if he chooses, sue CT Page 4447-ad one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." (Citations omitted; internal quotation marks omitted.) Id., 164-65.
At trial, each party presented as an exhibit excerpts from the CBA, which was in effect at the time of Maxwell's grievance. See Plaintiff's Exhibit 1 and Defendant's Exhibit D. On its face, the CBA states that it is a contract between the State of Connecticut and the New England Health Care Employees Union District 1199 AFL-CIO (Union), concerning the Professional (P-1) Health Care Employees Bargaining Unit and the Paraprofessional (NP-6) Health Care Employees Bargaining Unit, for the period July 1, 1993 through June 30, 1997. An individual employee is not a party to the CBA.
Article 32 of the CBA, entitled "Grievance and Arbitration Procedure," pages 91-97, provides for a four-step grievance process. An individual employee may submit a grievance "without Union representation . . ." CBA, pp. 91-92. Step I of the process involves a discussion with the employee's facility director or his/her designee. See CBA, p. 92.
If the grievance is not resolved there, the grievant and/or the Union may proceed to Step II, a meeting with the agency head or his/her designee. See CBA, pp. 92-93. A grievance which remains unresolved may then be presented at Step III, an appeal to the Director of Personnel and Labor Relations or his/her designee, who is required to hold a conference within twenty-one days of receipt of the grievance, and thereafter to issue a written response within seven days. See CBA, p. 93.
The CBA also provides for the advancement to arbitration, at the behest of either the Union or the State, of an unresolved Step III grievance, within fourteen days after the "State's answer" is due or no conference is timely held. See CBA, Step IV, p. 93. Individual employees may not invoke arbitration, "except that individual employees may submit to arbitration in cases of dismissal, disciplinary demotion or suspension of not less than (5) working days." See CBA, p. 93. The grievance at issue here does not involve such a case. The CBA also provides that in the event the employer fails to answer a grievance within the time specified, the grievance may be processed to the next higher level. See CBA, p. 94. In addition, it states that "[t]he grievant assents to the last attempted resolution by failing to timely appeal said decision, or by accepting said decision in writing." CBA, p. 94.
As to arbitration, the CBA requires the Union and the State to establish a panel of six arbitrators "who are experienced in health care and public sector relations." CBA, p. 94. An arbitrator's decision is CT Page 4447-ae final and binding on the parties in accordance with General Statutes § 52-418. Finally, the CBA preserves the right, post-arbitration, to seek judicial review under that statute. See CBA, p. 95.
General Statute § 52-418 provides, in pertinent part,:
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
Clearly, the CBA does not provide Maxwell with the right to personally bring an action against the State for breach of the CBA in connection with the type of grievance at issue. As noted, judicial review is limited to post-arbitration challenges brought pursuant to General Statutes § 52-418.
This court lacks subject matter jurisdiction over the second count unless Maxwell has shown that the Union breached its duty of fair representation. "An employee does . . . have standing to enforce the terms of a collective bargaining agreement if the employee claims that the union has breached its duty of fair representation . . . Where the collective bargaining agreement permits only the union to take a grievance to arbitration, the employee has no further remedy unless he can prove that the union breached its duty of fair representation by acting, arbitrarily, maliciously, or in bad faith . . ." (Citation omitted and internal quotation marks omitted.) Stosuy v. City of Stamford, supra, 65 Conn. App. 223.
Here, Maxwell has neither sued the Union for breach of its duty of fair representation nor proved such a breach. At trial, he offered no proof to the effect that the Union had breached that duty. To the contrary, he asserted that the Union had acted on his behalf, including representing him at Step II of the grievance process and assisting him in pursuing his grievance at Step III. Plaintiff's Exhibit 2 (and Defendants' Exhibit C), a copy of his grievance, contains, on the reverse side, the signature of Steve Thornton (identified by Maxwell as the Union representative who assisted him), indicating that an appeal to Step III was sought. See Tr., p. 90. Maxwell testified that all appropriate steps were taken, on his side, to pursue his grievance at Step III. He acknowledged that if a grievance is denied at Step II, the "union takes care of the whole thing as far as I know." See Tr., pp. 33-34. Here, he does not claim that the Union refused to take his grievance to Step III. See Tr., pp. 33-36. Instead, he contends that the State's failure to act caused him not to receive his contractual rights under Step III.
In his post-trial brief, Maxwell erroneously frames the issue as concerning sovereign immunity. In his analysis, he relies heavily on the court's decision in Connecticut Employees Union v. Weicker, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV91-702620 (May 14, 1992, O'Neill, J.) ( 6 Conn.L.Rptr. 828). In his CT Page 4447-af brief, at p. 5, he argues that here, in this case, as in Connecticut Employees Union v. Weicker, supra, "the state has waived any right to sovereign immunity for any claim pertaining to State employees and under the Agreement as alleged herein by virtue of the State Employees [Relations] Act, Conn. Gen. Stat. Section 5-270 et seq." This quotation from Connecticut Employees Union v. Weicker, supra, does not represent a finding of the court concerning the State Employees Relations Act (SERA). Rather, the quoted passage appears in the portion of the court's opinion which summarizes the "Facts Alleged" by the plaintiffs in that action.
In Connecticut Employees Union v. Weicker, supra, the posture of the case differed materially from that here. There, the plaintiffs included the union. Also, in contrast to the second count of the complaint here, which pleads a breach of the CBA, in Connecticut Employees Union v. Weicker, supra, the court found that the agreement was not before the court, stating, "[t]he defendants seem to think that the Agreement itself is before this court. It is not."
Maxwell also argues in his brief, at p. 5, that he "has shown a `violation of statute,'" again relying on Connecticut Employees Union v. Weicker, supra. In Connecticut Employees Union v. Weicker, supra, the court found that SERA does not grant an express waiver of sovereign immunity "for this type of action" and "[t]here is no waiver under SERA." The defendants' motion to dismiss the third count, which was brought under SERA, was granted. See id.
Similarly unavailing is Maxwell's reliance on Pina v. Cioffi, Superior Court, judicial district of Waterbury, Docket No. 123718 (March 15, 1995, Flynn, J.). There, the alleged contract was not a collective bargaining agreement between a state employee union and the state; rather, the plaintiff-employee alleged a breach of a contract between himself and the state under which the state was obligated to reinstate him as a Department of Public Safety employee.
Maxwell's argument also relies on the language of SERA, General Statutes § 5-271 (e), which provides, "[a]n individual employee at any time may present a grievance to his employer and have the grievance adjusted, without intervention of an employee organization, provided the adjustment shall not be inconsistent with the terms of a collective bargaining agreement then in effect. The employee organization designated as the exclusive representative shall be given prior notice of the grievance and shall be informed of the terms of the settlement." Nothing in this language provides for an individual employee to have the right to bring suit in the Superior Court against his employer, for breach of a CT Page 4447-ag collective bargaining agreement, in the event that the employee's grievance is not satisfactorily resolved, without proving that his union breached the duty of fair representation.
Just as in Stosuy v. City of Stamford, supra, 65 Conn. App. 223, Maxwell has brought an action against his employer for breach of the CBA. The CBA does not permit such actions in this context. The plaintiff neither brought a claim against the Union nor proved a breach of its duty of fair representation. Therefore, this court must conclude that the plaintiff lacks standing. Accordingly, the second count is hereby dismissed.
In view of this finding, the court need not address the State's contentions concerning exhaustion of administrative remedies and sovereign immunity. See defendant's trial brief, pp. 6-9, and 9-12. Likewise, the court need not determine whether, as contended by the plaintiff, in his brief, pp. 2-3, the defense of sovereign immunity must be raised in a special defense. See Connecticut Pharmaceutical Association, Inc. v. Milano, 191 Conn. 555, 559 n. 2, 468 A.2d 1230 (1983) (noting that the question of whether sovereign immunity involves CT Page 4447-aj subject matter jurisdiction or in personam jurisdiction has not been resolved and that the defense of governmental immunity ordinarily must be pleaded as a special defense); and Rivera v. Meriden, 72 Conn. App. 766, 775, 806 A.2d 585 (2002) (noting the distinction between governmental immunity and sovereign immunity).
B. The Merits
The court is mindful of our Supreme Court's direction that a termination of proceedings without a determination on the merits is not favored. See Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759 (1995). Accordingly, notwithstanding its finding that the plaintiff lacks standing, the court also sets forth its findings as to the merits.
As noted above, Maxwell contends that the letter of warning, dated May 31, 1995, contained the false charge that he and a training school resident wrongfully failed to return to the training school grounds on May 11, 1995. See Complaint, second count, ¶¶ 6-7; Plaintiff's Exhibit 3 (letter of warning); Defendant's Exhibit B. At trial, Maxwell did not sustain his burden of proof on this subject.
The letter of warning states that on May 11, 1995, at 8:30 a.m., Maxwell left training school building PV-19 with a resident who was under his supervision and was to return to that location at 11:30 a.m. Instead, according to the letter of warning. Maxwell and the resident did not return to PV-19 until 2:25 p.m. In addition, the letter of warning states that the alleged behavior did not represent a new issue; rather, previous similar incidents had occurred and Maxwell had been so informed. See letter of warning, Plaintiff's Exhibit 3. In addition, at page 2, the letter of warning states that, in a pre-disciplinary meeting which occurred on May 18, 1995, Maxwell "acknowledged that [his] activities during working hours had been addressed with [him] both by myself and Ms. Jackson." Plaintiff's Exhibit 3, p. 2. In addition, the letter of warning states that Maxwell admitted that he knew that he supposed to return to PV-19 at 11:30 a.m. on May 11, 1995. See letter of warning, Plaintiff's Exhibit 3, p. 2.
At trial, Maxwell denied the salient allegations of the letter of CT Page 4447-ah warning. He stated that he never left the grounds without permission. He also denied being spoken to previously about his working hours activities. In his testimony, he appeared to believe that the gravamen of the allegation as to the May 11, 1995 incident was that he had left the grounds. See Tr., pp. 9-10. This is not accurate; the letter of warning does not accuse him of that concerning the May 11, 1995 incident. Rather, it accuses him of not advising the staff of his and the resident's whereabouts and of returning to PV-19 hours after he was supposed to do so. At trial, Maxwell did not contend that the letter of warning was motivated by bias or bigotry. The court is unpersuaded by and does not credit Maxwell's conclusory testimony.
In contrast, the court credits the testimony of the author of the letter of warning, Regina Furuno, who has been a unit director at the training school since 1987 and who first became acquainted with Maxwell there in 1988. She credibly described previous instances in which Maxwell's accountability while on the job was questioned. See Tr., pp. 53-54. She spoke to him a number of times about the subject. See Tr., p. 57. She identified Defendant's Exhibit E, a copy of her memorandum to the staff, dated October 13, 1994, the subject of which was "Staff Leaving Grounds While On Duty." While this exhibit does not mention Maxwell by name, the court credits Furuno's statement that it was generated as a result of his behavior, over six months before the May 11, 1995 incident which led to the letter of warning. See letter of warning, Plaintiff's Exhibit 3, second paragraph, which references this memorandum; and see Tr., p. 61.
She also described meeting with Maxwell and his union representative concerning Maxwell's grievance over the letter of warning, at which Maxwell acknowledged the previous problems and admitted that he was supposed to return to PV-19 when alleged in the letter of warning. See Tr., pp. 55-57. The court finds that these statements of Maxwell to Furuno are admissions to the effect that the allegations in the letter of warning are not false.
Based on the evidence in the trial record, the court finds that Maxwell has not proved an essential element of his complaint, that the allegations in the letter of warning were false. He has not shown that he has a meritorious grievance. Accordingly, he has not proved a basic aspect of his case. As a result, the State is entitled to judgment on this ground as well.
Under the circumstances, the court need not determine whether Maxwell or his Union perfected an appeal to Step III of the grievance process or whether the fact that a Step III conference never occurred was the result of a breach of contract by the State.
CONCLUSION
For the foregoing reasons, the court find that it lacks subject matter CT Page 4447-ai jurisdiction due to Maxwell's lack of standing. Therefore, the second count, the only remaining count in the complaint, on which this matter was tried, is dismissed. In addition, since Maxwell has not proved an essential element of his case, the State is entitled to judgment on the merits of the second count as well. Accordingly, judgment may enter for the State and against Maxwell.
It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO
JUDGE OF THE SUPERIOR COURT