Opinion
No. CV 07 4007290 S
February 15, 2008
MEMORANDUM OF DECISION
The plaintiff and the movants are employees of the Connecticut Department of Transportation. The movants seek dismissal of counts two through seven of the plaintiff's complaint based on the absence of subject matter jurisdiction. Counts two through four allege violations of General Statutes § 5-226 by L. Brian Castler, Vicki Arpin, and Diane Donato, in their official capacities, respectively. Counts five through seven allege, inter alia, violations of General Statutes § 46a-60(a)(1) against the same defendants, again in their official capacities.
Counts Five through Seven
To the extent that these counts pursue monetary damages based on violations of § 46a-60(a)(1), those claims must be dismissed because the complaint states that the movants were coworkers and not her employer. Perodeau v. Hartford, 259 Conn. 729, 737-38 (2002). "[I]ndividuals who are not employers may not be held liable under § 46a-60(a)(1)." Id.
To the extent that these counts attempt to assert claims under other subsections of § 46a-60(a), those claims are not the object of this motion to dismiss and remain extant.
Counts Two Through Four
As to these counts, the issue for the court is whether § 5-226 creates a private cause of action. Section 5-226 is part of the State Personnel Act, General Statutes Chapter 67. The Act lacks any provision expressly permitting civil actions by private individuals. Instead, General Statutes § 5-268 creates criminal penalties in the form of fines and incarceration for violators. The responsibility to enforce these criminal sanctions is delegated to the local state's attorneys.
When a statute fails to afford a private remedy explicitly, the court must evaluate three factors to determine whether such a remedy is implied. Pane v. Danbury, 267 Conn. 669, 679 (2004). Those factors are whether 1) the plaintiff falls within the class for whose benefit the statute was enacted; 2) the statutory language reveals a legislative intent to create a private remedy; and 3) the creation of such implied right is consistent with the underlying purposes of the statutory scheme. Id.
The movants have assumed that the plaintiff, as a state employee, satisfies the first factor, so the court will also assume, without deciding, that the plaintiff falls within the benefitted class. Regarding the second factor, the Act is devoid of any language or provision which supports the notion that a private cause of action is created implicitly. To the contrary, the statutory scheme contains only criminal penalties and even lacks provisions permitting civil fines or injunctive relief.
In addition, where governmental or sovereign immunity would otherwise obtain, statutes are to be strictly construed against finding waivers of that immunity inferentially. Durrant v. Board of Education, 284 Conn. 91, 109-10 (2007); Pane v. Danbury, supra, 680-81. It is well settled that state employees, acting in official capacity, are immune from suit unless such immunity is clearly abrogated by the legislature. Watson v. Pieszak, 98 Conn.App. 333, 335 (2006); Krozser v. New Haven, 212 Conn. 415, 420 (1989).
Therefore, the court holds that the State Personnel Act contains no implied private cause of action for violations of its provisions, including § 5-226. Counts two through four are dismissed.