James Oliphant v. Vernon Public Schools (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS DATED SEPTEMBER 23, 2010

FACTS:

The plaintiff, who had been a school teacher at the Vernon Public Schools retired on or about August 1, 2009.   He has been paid and continues to be paid his pension, but he is seeking severance pay under the Early Retirement Incentive Plan under Article XIV of the collective bargaining agreement between the Vernon Board of Education and the Vernon Education Association which is in force from July 1, 2008 to June 30, 2011.   See Exhibit A which was admitted during the oral argument on the motion to dismiss.   When his request for severance pay under the Early Retirement Incentive Plan was denied, he filed this lawsuit.

On September 23, 2010 the Vernon Board of Education (hereinafter also “BOE”) filed a motion to dismiss the action claiming that the plaintiff had not exhausted his administrative remedies.   This Court granted the motion because the plaintiff failed to appear.   After a hearing as to why the plaintiff failed to appear, the Court vacated the granting of the motion to dismiss.   After hearing oral argument on January 5, 2011 the Court ordered the parties to submit briefs addressing specific issues.   Briefs were in fact filed by date of January 19, 2011.   No reply briefs were filed.

STANDARD OF REVIEW:

“The motion to dismiss ․ admits all well pleaded facts, the complaint being construed most favorably to the plaintiff.”  Duguay v. Hopkins, 191 Conn. 222, 227 (1983).

“Under the 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.”  Drumm v. Brown, 245 Conn. 657, 676 (1998).  “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.”   Stepney, LLC v. Fairfield, 263 Conn. 558, 563 (2003).

It is well settled law in Connecticut that there is a presumption of jurisdiction which must be overcome by the parties seeking dismissal.

It is also well settled law that if a contract is ambiguous, then that ambiguity must be held against the party drafting the contract.   The Court assumes that it was the BOE that drafted the Collective Bargaining Agreement.

ISSUES AND FINDINGS:

1. Was the Plaintiff Required to Exhaust his Administrative Remedies in Order to Qualify for the Severance Pay?

The short answer is No.

The leading case on this issue is Edwin Garcia v. City of Hartford et al., 292 Conn. 334 (2009) which held that “․ the trial court improperly determined that it lacks subject matter jurisdiction over the case, this Court having concluded that the grievance procedures of the Collective Bargaining Agreement did not apply to the plaintiff and that the plaintiff therefore could not have availed himself of those procedures;  the grievance procedures were specifically limited to current employees and the agreement could not reasonably be construed to require a retiree, like the plaintiff in the present case, to exhaust the grievance procedures before bringing a court action to enforce his rights to benefits under the agreement that accrued during his employment.”

The holding in the Garcia case differs in some respects with the case at bar, but not sufficiently to not use the Garcia case as an appropriate expression of the Connecticut Supreme Court on such an issue.   The following are some of the points in the present case which are similar or the same as in the Garcia case:

1. The Collective Bargaining Agreement indicates it pertains to current employees.   For example in the preamble of the Collective Bargaining Agreement it states in pertinent part the following:  “this Agreement is negotiated ․ to fix for its term the salaries and all other conditions of employment provided herein, and to encourage and abet effective and harmonious working relationships between the Board and the Professional Staff in order that the cause of public education may be served.”  (Emphasis added.)

2. Under Article II “the Board hereby recognizes the Association (union) as the exclusive representative, ․ for all certified professional employees who are employed by the Board in positions requiring a teaching certificate or holders of a Durational Shortage Area Permit ․” (Emphasis added.)

3 “․ the term ‘teacher ’ when used hereinafter in this Agreement shall refer to all employees in the above unit.”  (Emphasis added.)

4. Under Article IV, the grievance procedure, teacher is defined as “․ any certified professional employee covered by this agreement.”   Clearly the plaintiff was no longer a teacher or employee at the time that he sought severance pay.

5. Under the grievance procedure on page 3 “grievance shall mean a claim based upon an event or condition which affects the welfare or conditions of employment of a teacher or group of teachers and/or arising from the language of this agreement or an alleged breach thereof.”   Again, the plaintiff was no longer a teacher at the time he applied for severance pay, and the phrase “and/or arising from the language of this agreement or an alleged breach thereof” is sufficiently ambiguous to be held against the BOE which drafted the Collective Bargaining Agreement.   This is ambiguous as to whether it includes a retiree;  and holding the ambiguity against the defendant means it does not include a retiree.

Accordingly, this Court finds there are sufficient similarities to the Garcia case so that the Garcia case is binding precedent in this case, and the grievance procedure does not apply to the plaintiff.  (Emphasis added.)

2. Assuming Arguendo that the Grievance Procedure Does Apply to the Plaintiff, Did the Plaintiff take Reasonable Steps to Exhaust the Grievance Procedure?

The short answer is Yes.

Assuming that there was a requirement that the plaintiff take reasonable steps to exhaust the grievance procedure, it was impossible for him to do anymore than he did.   First, his attorney sent a letter to the attorney for the BOA claiming a grievance.¹  Further, the first three steps of the grievance procedure are meetings with the school principal, the superintendent of schools and the board of education.   However, the plaintiff was barred from school property because of alleged misconduct, and he was therefore prohibited from being able to exhaust the grievance procedure.   It was impossible for the plaintiff to follow the grievance procedures.

The BOE claims in its brief that while the Garcia plaintiff following the grievance procedure would have been futile, it is not so for the plaintiff.   As the Court just stated, being barred from the premises made any attempt at a grievance procedure futile which is similar to the Garcia case.

Additionally, the defendant in its January 19, 2011 brief states that “there is a provision that the severance benefits and early retirement benefits apply only to teachers who retire from teaching service in good standing and it shall not under any circumstances apply to a teacher whose employment is terminated or in the process of being terminated ․” (Emphasis added).   There is no evidence before this Court that the plaintiff was in the process of being terminated.   He certainly was not terminated.   He retired before he could be terminated, and this Court finds the provision “in the process of being terminated” a clear violation of the plaintiff's rights.   It is the same as someone being arrested but not convicted and the presumption of innocence applies and saying that because of the arrest the person is guilty.   Here there is not only no evidence that he was in the process of being terminated, but we don't know the results of the process, and he could have been found to not be terminated.   This Court finds that it is against public policy to deny benefits to someone who is only in the process of being terminated and rejects this claim by the defendant.

CONCLUSION:

For the foregoing reasons, including that there is a presumption of jurisdiction, the motion to dismiss is denied.

Rittenband, JTR

FOOTNOTES

FN1. This correspondence was never answered..  FN1. This correspondence was never answered.

Rittenband, Richard M., J.T.R.