Loren Casertano et al. v. City of Shelton et al. (2011)

MEMORANDUM OF DECISION

The defendants, city of Shelton and the Shelton Police Department have moved to dismiss this action on the ground that the court lacks subject matter jurisdiction.   Specifically, the defendants argue that the court does not have jurisdiction due to the plaintiffs' failure to exhaust their administrative/arbitration remedies.

The plaintiffs, Loren Casertano and the Shelton Police Union, commenced this action against the defendants, the city of Shelton and the Shelton Police Department, seeking a writ of mandamus “compelling the defendants to erase all police records and records of any State's Attorney from the internal investigation reports of Glenn Investigations pertaining to the criminal charges against ․ Casertano” pursuant to General Statutes § 54–142a(a),¹ the erasure statute.

In their complaint dated September 8, 2011, the plaintiffs allege the following facts.   Casertano was employed as a patrol officer in Shelton at the time he was arrested and charged with larceny in the fifth degree on July 31, 2008.   Glenn Investigations was authorized by the defendants to conduct an internal investigation into this matter, and it prepared various reports using police and court records regarding the charge (internal investigation reports).   On May 11, 2011, Casertano applied for and was granted accelerated rehabilitation.   He completed his probation period on May 13, 2011, and the charge was dismissed.   Casertano was ordered to attend a pre-termination hearing on May 19, 2011 His employment was terminated thereafter.   He appealed his termination through the grievance procedure set forth in the applicable collective bargaining agreement.   As part of that process, hearings have been scheduled before the state board of mediation and arbitration.  “In anticipation of the grievance arbitration hearing” the plaintiffs formally requested that “all police records and court documents referencing the arrest of and/or charges filed against ․ Casertano [be] erased and/or redacted from the internal affairs investigation [reports].”   The defendants have “failed and/or refused” to erase the records from the internal investigation reports.   The plaintiffs commenced this action seeking to compel the defendants to so act.

On October 17, 2011, the defendants filed a motion to dismiss this action for want of subject matter jurisdiction due to the plaintiffs' “failure to exhaust administrative/arbitration remedies.”   It is undisputed that, although the plaintiffs allege in their complaint that hearings before the arbitrators were scheduled for certain dates that have already passed, the arbitration proceedings have been stayed pending the resolution of this action.   In support of their motion, the defendants presented copies of the pre-termination and termination letters given to Casertano, a certified copy of a transcript of a brief hearing before the arbitrators that occurred on August 30, 2011, and a copy of the applicable collective bargaining agreement.   The plaintiffs objected to the defendants' motion to dismiss in their memorandum in support of the writ of mandamus.   The court heard oral argument at the short calendar on November 14, 2011.

I.

“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).  “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.  “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion.”  (Internal quotation marks omitted.)   May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009).  “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 [plaintiffs'] claim.”  D'Agostino v. Housing Authority, 95 Conn.App. 834, 837, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006).

II.

The defendants argue that the court is deprived of jurisdiction over this action because it is evident from the plaintiffs' complaint that they have not yet exhausted their remedies under the collective bargaining agreement, which includes the arbitration proceedings.   The defendants argue that the arbitrators are empowered to rule on the admissibility of evidence, including the issues surrounding the “erased” records.   They argue further that the arbitration itself is the appropriate forum for the plaintiffs to seek the relief that they really seek, which is the prohibition of the use of any criminal records at the arbitration hearing.

The plaintiffs argue in response that when Casterano's case was dismissed, the defendants were required by the erasure statute to “erase” all police and court records pertaining to the charge that were in their possession, including those in the internal investigation reports.   In response to the defendants' motion to dismiss, the plaintiffs maintain that because there is no specific, adequate administrative remedy to address the defendants' failure to comply with the erasure statute, the court has jurisdiction.   Specifically, they argue that the exhaustion doctrine does not apply when the remedy would be “futile or inadequate,” which is the case when the agency is without the authority to grant the requested relief.   They argue further that the issue before the court is not the admissibility of the evidence before the arbitrators, but whether the arbitrators can compel the defendants to erase the challenged information.

The law in Connecticut is that a plaintiff's failure to exhaust available grievance procedures regarding a matter arising out of the employment relationship normally deprives the court of subject matter jurisdiction.   Hunt v. Prior, 236 Conn. 421, 431–32, 673 A.2d 514 (1996).  “[B]efore resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in [a] collective bargaining agreement ․ Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction ․ The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes.   A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it ․ [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances.   If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement.   A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements.”  (Citation omitted;  internal quotation marks omitted.)  Id., 431–32.

III.

The plaintiffs rely on one of the narrow exceptions to the exhaustion requirement by maintaining that the arbitrators are not empowered to afford to them the relief that they seek in this action.  “One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate ․ It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief.”  (Citations omitted;  internal quotation marks omitted.)  Neiman v. Yale University, 270 Conn. 244, 258–59, 851 A.2d 1165 (2004);  cf.  Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998) (holding that complaint alleging wrongful constructive discharge arising out of harassment resulting in plaintiff's resignation fell within exception because grievance procedures for wrongful termination did not apply to resignation).   A remedy is not rendered inadequate, however, merely because it does not “comport with the plaintiffs' opinion of what a perfect remedy would be.”  (Internal quotation marks omitted.)  Hunt v. Prior, supra, 236 Conn. 434.

The issue raised by the motion to dismiss is whether the plaintiffs' remedy lies with the arbitrators in the first instance.   It is well settled that “[u]nions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship.   That authority encompasses issues of law as well as of fact ․ Before pursuing even alleged violations of state statutory procedures and of constitutional rights to due process and equal protection, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Trigila v. Hartford, 217 Conn. 490, 494–95, 586 A.2d 605 (1991).

In Trigila v. Hartford, supra, 217 Conn. 490, the plaintiff union member was compelled to take an unpaid leave of absence while he ran for elected office.   Without exhausting his grievance remedies under the collective bargaining agreement after he returned to work, he commenced suit alleging that the defendant's violation of a statute that prohibited discriminating against candidates for elected office entitled him to recover the wages that he lost during the period of his involuntary suspension.  Id., 493.   The trial court ruled that it lacked subject matter jurisdiction to consider the claim.   Id., 493–94.   The Supreme Court agreed, stating that the trial court “correctly rejected the plaintiff's contention that the denomination of a claim as statutory automatically authorizes the bypass of collective bargaining procedures.”  Id., 495.   The court reasoned that the “[t]he right to contest the merits of a suspension, like the right to collect wages, is integral to the employer-employee relationship ․ [and] therefore agree[d] with the trial court's implicit holding that the parties in this case were empowered, in their collective bargaining, to negotiate a contract that included the plaintiff's statutory claim ․ within contractually defined grievance and arbitration procedures.”  (Citations omitted;  internal quotation marks omitted.)  Id., 495–96.   The court then examined the terms of the applicable agreement and concluded that the agreement unequivocally included in its grievance procedure disputes about the validity of a mandated unpaid leave of absence.  Id., 496–97.

The plaintiffs commenced this action seeking a writ of mandamus ordering the defendants to “erase” from the internal investigation reports all references to police and court records concerning the criminal charges against Casertano, which they maintain is relief that they are entitled to under the erasure statute.   Like the plaintiff in Trigila, the plaintiffs in the present case, in effect, seek to bypass the arbitration process and have the court decide a question of statutory construction in the first instance.   The right to contest the merits of Casertano's termination is integral to the employer-employee relationship.   Pursuant to Trigila, the parties are empowered to negotiate a contract that would submit to the arbitrators the question of whether the information contained in the internal investigation reports may be considered by the arbitrators, which includes the question of whether the defendants violated the statutory procedures set forth in the erasure statute.   The question becomes whether the parties so contracted.

Our Supreme Court has construed a clause in an arbitration agreement providing that “ ‘any dispute between the parties hereto as to the interpretation or application of the [a]greement’ [was] broad and all encompassing and persuasive evidence of the parties' intent to have their disputes resolved, not by the courts but by an arbitration panel.”  (Internal quotation marks omitted.)   Trigila v. Hartford, supra, 217 Conn. 496–97.  “The authority of the arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.”  (Internal quotation marks omitted.)  Local 1042, Council 4, AFSCME, AFL–CIO v. Board of Education, 66 Conn.App. 457, 460, 784 A.2d 1018 (2001).

In the present case, article twenty-four of the collective bargaining agreement is titled “grievance procedure and arbitration.”   Section 24.01 provides in relevant part that “[o]nly a complaint alleging that there has been a violation, misapplication or misinterpretation of the terms of this [a]greement shall constitute a grievance.”   Section 24.05 of the agreement provides:  “No employee shall be disciplined or discharged except for just cause.   Any disciplinary action taken shall be appealable through this grievance procedure.”   Section 24.03 provides that the three-step process outlined in § 24.04 of the agreement “shall be the sole means for resolving complaints and/or grievances between the parties with the exception of alternative [s]tate and [f]ederal statutory appeals procedures which are available.”   Section 24.04 outlines the three-step grievance process;  step three is the submission to binding arbitration.   Section 24.06 provides, in relevant part:  “The arbitrator shall not have the power to add to, subtract from, or modify the provisions of this [a]greement in arriving at a decision ․ and shall confine his decision solely to the alleged violation of this [a]greement and to the precise issue presented for arbitration ․”

There is no language in the agreement otherwise restricting the breadth of issues submitted to arbitration or reserving explicit rights, and there is no allegation that the plaintiffs' claim falls within the “exception of alternative ․ statutory appeals procedures” mentioned in § 24.03 of the agreement.   Rather, the plain language of the agreement manifests the parties' intent that the arbitrators to resolve in the first instance disputes arising out of whether an employee was terminated for “just cause.”   This necessarily includes the questions whether the challenged information contained in the internal investigation reports properly may be considered by the arbitrators, and whether the defendants violated the statutory procedures set forth in the erasure statute.   To hold otherwise “would undermine the state's policy favoring recourse to contract grievance procedures as a means of dispute resolution ․ and would defeat the express intent of the parties to the collective bargaining agreement that the grievance mechanism be utilized to settle such claims and disputes ․ [expeditiously].” ²  (Citations omitted.)  Hunt v. Prior, supra, 236 Conn. 435.   Because it is undisputed that the plaintiffs have not exhausted their remedy before the arbitrators, the court does not have jurisdiction over the plaintiffs' action.

For the foregoing reasons, the court grants the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction.

Matasavage, J.

FOOTNOTES

FN1. General Statutes § 54–142a(a) provides, in relevant part:  “Whenever in any criminal case ․ the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal ․”.  FN1. General Statutes § 54–142a(a) provides, in relevant part:  “Whenever in any criminal case ․ the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal ․”

FN2. Section 24.01 provides, in relevant part, that the purpose of the grievance procedure “is to establish effective machinery for the fair, expeditious and orderly adjustment of grievances ․” (Emphasis added.).  FN2. Section 24.01 provides, in relevant part, that the purpose of the grievance procedure “is to establish effective machinery for the fair, expeditious and orderly adjustment of grievances ․” (Emphasis added.)

Matasavage, Paul, J.