Donald Berg v. City of Stamford et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Donald Berg, commenced the present action by service of process against the defendants, the city of Stamford (Stamford), Long Ridge Fire Company, Inc. (Long Ridge) and Robert Bennett Jr. (Bennett),¹ on December 23, 2008.   Because Long Ridge and Bennett are the only defendants involved in the present motion, the court will refer to them collectively hereinafter as the “defendants.”   The third amended complaint filed by the plaintiff on December 12, 2009 is the operative complaint.   It alleges the following relevant facts.

Long Ridge provides emergency and fire services in Stamford.   Bennett was the chief of Long Ridge at all times relevant to the present action.   The plaintiff was a firefighter with Long Ridge for thirty years, three in volunteer capacity and twenty-seven in paid capacity.   In 2003, in order to protect his personal financial interests, the plaintiff filed a complaint with the state department of labor against Long Ridge and his union, the Long Ridge Paid Drivers Association (the LRPDA).   The LRPDA represents Long Ridge's paid firefighters.   The basis for the plaintiff's complaint was the LRPDA's repudiation of its obligation to enforce the collective bargaining agreement between it and Long Ridge, in response to Long Ridge's refusal to fund and pay retroactive salary increases.   In 2006, the plaintiff filed a complaint with the state department of labor's division of occupational safety and health administration (OSHA), in which he alleged safety violations by Long Ridge.   OSHA subsequently launched an investigation, resulting in fines levied against Long Ridge for several safety and training violations.   Because the plaintiff was a “whistleblower” with respect to the issues of retroactive pay and safety violations, he was subject to harassment by his fellow firefighters and baseless disciplinary actions by Long Ridge.   The plaintiff was therefore compelled to file a retaliation complaint with OSHA in 2008.

On February 18, 2008, after the plaintiff had filed his retaliation complaint with OSHA, he was informed by Stuart Teitelbaum, the chairman of Long Ridge's Board of Trustees, that Long Ridge was considering whether he should be disciplined for a December 9, 2007 incident.   The discipline at issue involved a demotion from the rank of lieutenant to the rank of firefighter and a corresponding loss of overtime pay.   The discipline was imposed, and shortly thereafter, in March 2008, the plaintiff filed a complaint against the LRPDA with the state department of labor for the LRPDA's failure to represent him in the relevant disciplinary proceedings.

The plaintiff's termination from his employment with Long Ridge occurred over a period of time that began on June 2, 2008 and ended on September 29, 2008.   On June 2, 2008, during a monthly Long Ridge meeting, Teitelbaum asked the plaintiff about a May 29, 2008 incident in which the plaintiff stated on Long Ridge's radio frequency that he was leaving the district and that only one person was covering one of Long Ridge's two fire stations.   The plaintiff explained that he was concerned for public safety.   Bennett expressed skepticism in response, said that he was aware that the plaintiff had stopped for food while returning from a protective mask fit test and warned the plaintiff that he would be terminated if he engaged in such conduct again.   After the meeting, Bennett and the plaintiff had an argument, during which Bennett made the following two statements, in the presence of third parties.   First:  “You are mentally unstable or bi-polar and you are dangerous.   I can't have someone driving a fire truck in your condition.”   Second:  “You are mentally unstable.   You are not normal.   I can't have one of my drivers taking drugs and driving an engine in your mental condition.”   Bennett knew or should have known that the plaintiff had never been diagnosed as bipolar or mentally unstable, even though he took prescription medication for mild depression.

The plaintiff called the police immediately after his argument with Bennett.   When the police arrived on the premises, Bennett repeated the two statements at issue and said that the plaintiff had been “suspended” for the May 29, 2008 incident, even though no such suspension had been mentioned during the meeting.   Bennett also lacked the authority to suspend the plaintiff;  he only had authority over paid firefighters during fires, and furthermore, the collective bargaining agreement provides that a paid firefighter is entitled to a hearing before any disciplinary action is taken against him.   Nonetheless, based on the representations of Bennett and Captain Roman Balzar, who was the plaintiff's supervisor at all times relevant to the present action and who affirmed Bennett's representations, the police escorted the plaintiff off the premises.   Long Ridge subsequently placed the plaintiff on involuntary paid leave and requested that the plaintiff undergo a psychiatric examination.

A hearing was held pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), on September 17, 2008.²  The hearing was conducted in biased, unreasonable fashion.   For example, multiple Long Ridge representatives, most notably Teitelbaum, simultaneously served as accusers/questioners and decision makers.   Two incidents were presented as the basis for terminating the plaintiff's employment:  1) a May 4, 2008 incident, during which the plaintiff was alleged to have been “slow in responding to a call for emergency medical assistance, even though he assisted the first responder as the second person on the scene, and 2) the May 29, 2008 incident.   The plaintiff had no opportunity to challenge and respond to the evidence that was presented against him.   His employment was terminated, despite his counsel's argument that such a decision would be disproportionate and unfair.   An appeal under the collective bargaining agreement was denied by Teitelbaum.   The plaintiff was informed that his employment had been terminated by a letter dated September 29, 2008.

The following counts of the complaint are against the moving defendants.   Counts seven and eight are against Bennett and sound in slander per se and slander per quod, respectively.   Counts nine and ten are against Long Ridge and sound in negligent infliction of emotional distress and intentional infliction of emotional distress, respectively.   Count thirteen is against Long Ridge and sounds in liability under the respondeat superior doctrine for Bennett's slanderous and emotionally distressful conduct, as alleged in counts seven, eight, twenty-one and twenty-two.   Count fifteen is against Long Ridge and sounds in unpaid wages under General Statutes § 31–72.   Counts sixteen and seventeen are against Long Ridge and sound in negligent supervision and negligent training with respect to Bennett and Teitelbaum, respectively.   Count twenty is against Long Ridge and sounds in breach of contract.   Finally, counts twenty-one and twenty-two are against Bennett and sound in negligent infliction of emotional distress and intentional infliction of emotional distress, respectively.

The defendants filed the present motion to dismiss ³ along with a memorandum of law in support thereof and exhibits on April 18, 2011.   The plaintiff in turn filed an objection to the motion, a memorandum of law in support thereof and exhibits on June 15, 2011.   The defendants then filed a reply brief on August 3, 2011.   The plaintiff subsequently filed a supplemental brief on August 23, 2011.   In response, the defendants filed a surreply on September 29, 2011.   A hearing on the motion was held on October 3, 2011.

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).   “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ․ Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 213–14.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Id., 214.

“A fundamental tenet in our law is that the plaintiff's complaint defines the dimensions of the issues to be litigated.”  Pergament v. Green, 32 Conn.App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).   “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

“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.”  (Internal quotation marks omitted.)  Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).   Similarly, “[a] claim of federal preemption implicates a court's subject matter jurisdiction.   See Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 290, 439 A.2d 997 (1981) (‘The Superior Court has jurisdiction of all matters expressly committed to it and of all other judicially cognizable matters not within the exclusive jurisdiction of [a federal forum].’).   As such, preemption is properly raised by a motion to dismiss.   See Practice Book § 10–30.”   Citizens Regulatory Commission v. Downes, Superior Court, judicial district of Hartford, Docket No. CV 98 0581304 (November 5, 1998, Langenbach, J.).

The defendants move to dismiss counts seven, eight, nine, ten, thirteen, fifteen, sixteen, seventeen, twenty, twenty-one and twenty-two on three grounds.   The first ground on which the defendants move to dismiss the present action is that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies, specifically the option of arbitration available to the LRPDA under the collective bargaining agreement.   The second ground on which the defendants move to dismiss the present action is that the court lacks subject matter jurisdiction because the National Labor Relations Board (NLRB) has exclusive jurisdiction under the National Labor Relations Act (NLRA), due to the plaintiff's allegations of unfair labor practices, specifically retaliatory discrimination and termination for the complaints that he filed with OSHA and the state department of labor.   The final ground on which the defendants move to dismiss the present action is that all of the counts against them are preempted by § 301 of the Labor Management Relations Act (LMRA), because the court must interpret the collective bargaining agreement in order to resolve the issues raised by the counts.

The first ground on which the defendants move to dismiss the present action is that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies, specifically the option of arbitration available to the LRPDA under the collective bargaining agreement.  “It is well settled under both federal and state law that, before 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.”   (Internal quotation marks omitted.)  D'Agostino v. Housing Authority, 95 Conn.App. 834, 837–38, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006).

In the collective bargaining agreement, paragraphs 1, 2 and 5 of Article V, entitled “Disciplinary Action,” provide in relevant part:  “No permanent employee shall be removed, dismissed, discharged, suspended, fined, reduced in rank or disciplined in any manner except for just cause ․ If any employee is disciplined and in the judgment of such employee this action is taken by an Officer of the Company without just cause, he may, no later than seven (7) days after such action, appeal in writing to the Board of Trustees, or their designee.   If no decision is made after fifteen (15) days of that meeting, the Association may, no later than ten (10) days thereafter, submit such dispute for arbitration to the American Arbitration Association, under its Rules and Procedures.   Nothing contained herein shall prevent an employee from presenting his own grievance and representing himself, up through the step preceding arbitration, however, only the Association can proceed to arbitration.”   Def.'s Ex. E at 9.⁴

Paragraph 1 of Article VI, entitled “Grievance Procedure,” further provides:  “If any dispute shall arise between the Association and the Company in connection with the construction, interpretation, validity or performance of this agreement, the party seeking adjustment of such dispute shall submit a written statement thereof to the Chief of the Department or it's [sic] President or the Association's representative, including the Union President, as the case may be.   Within ten (10) days after receipt of any such statement, the matter shall be discussed between authorized representatives of both sides for the purpose of attempting to resolve the dispute.   If no agreement can be reached that is acceptable to both sides, either party may petition for mediation or arbitration.”   Def.'s Ex. E at 10.

The following facts, established by exhibits submitted in support of the plaintiff's objection to the present motion, are undisputed.   The plaintiff was informed of his termination by a letter dated September 23, 2008.   Ex. 6 to Pl.'s Objection.   He appealed his termination to Teitelbaum by a letter dated October 1, 2008.   Ex. 7 to Pl.'s Objection.   The plaintiff's appeal was denied by a letter dated October 13, 2008.   Ex. 8 to Pl.'s Objection.   Finally, Peter Rustici, on behalf of the LRPDA's Grievance Committee, wrote an e-mail to the plaintiff on November 6, 2008 to inform him that his request that the union submit his termination to arbitration had been denied.   Ex. 9 to Pl.'s Objection.

The complaint is replete with allegations that the defendants' conduct violated the collective bargaining agreement.   The plaintiff specifically alleges that the collective bargaining agreement was violated in the following ways.   The LRPDA failed to enforce the collective bargaining agreement when Long Ridge refused to fund and pay retroactive salary increases.   Pl.'s Complaint, Count 1 ¶ 17.   The plaintiff's June 2, 2008 “suspension was improper because neither Bennett nor Balzar “had the authority to suspend [the plaintiff] on the spot,” due to the collective bargaining agreement's requirement of “a [h]earing before any disciplinary action against a paid firefighter.”   Pl.'s Complaint, Count 1 ¶¶ 51, 52, 54, 59, Count 3 ¶ 87.   The plaintiff's demotion, deprivation of overtime pay, reduction in pay grade, placement on paid leave and termination were all without just cause.   Pl.'s Complaint, Count 19 ¶ 95.   The failure to pay wages owed to the plaintiff also violates the collective bargaining agreement.   Pl.'s Complaint, Count 19 ¶ 96.   Long Ridge has therefore breached the collective bargaining agreement “by imposing discipline on [the plaintiff] without just cause and by failing to pay wages due and payable to [the plaintiff].”   Pl.'s Complaint, Count 19 ¶ 97, Count 20 ¶ 94.   Paragraphs one through seventy-seven of the first count are incorporated into all twenty-two counts of the complaint.   All of the counts that the defendants seek to dismiss therefore involve “the construction, interpretation, validity, or performance” of the collective bargaining agreement and/or the issue of whether the plaintiff was suspended and terminated with “just cause.”   See Peters v. National Wholesale Liquidators of Orange, Inc., Superior Court, Docket No. CV 00 0070885 (March 6, 2002, Sequino, J.) (31 Conn. L. Rptr. 455, 457) (citing several Superior Court decisions in support of proposition that, per School Administrators Assn. v. Dow, 200 Conn. 376, 383, 511 A.2d 1012 (1986), “a ‘complaint sounding in tort will not in itself prevent arbitration if the underlying contract embraces the disputed matter’ ”).

The plaintiff argues that the exhaustion of administrative remedies doctrine is inapplicable for three reasons.   First, arbitration under the collective bargaining agreement was only available to the LRPDA, not its members.   Second, he exhausted his administrative remedies when he appealed his termination.   Finally, the futility exception to the exhaustion of administrative remedies doctrine applies because he has no cause of action against the LRPDA for breach of the duty of fair representation, due to his September 17, 2008 waiver of representation by the LRPDA.   See Ex. 4 to Pl.'s Complaint.   The court is unpersuaded.   The collective bargaining agreement provides that the LRPDA is “the exclusive representative and bargaining agent for the paid professional firefighters” of Long Ridge.   Def.'s Ex. E at 5. “[A]ctive employees are deprived of the ability to deal with or directly sue their employer when their bargaining agent has entered into a collective bargaining agreement with the employer ․” Flynn v. Newington, 2 Conn.App. 230, 238, 477 A.2d 1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984).   Furthermore, “[w]here 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 ․ The plaintiff did not bring a claim against the union alleging a breach of its duty of fair representation as a result of the refusal of the union to pursue ․ arbitration ․” Saccardi v. Board of Education, 45 Conn.App. 712, 722, 697 A.2d 716 (1997).  “An employee alleging a breach of the duty of fair representation under [General Statutes] § 7–468(d) ⁵ initially must seek relief before the board of labor relations, and jurisdiction lies in the Superior Court only for purposes of an appeal from an adverse final order of the board of labor relations.”  Piteau v. Board of Education, 300 Conn. 667, 686, 15 A.3d 1067 (2011).   Again, the plaintiff argues an action against the LRPDA for breach of the duty of fair representation would be futile, due to his September 17, 2008 waiver of further representation by the LRPDA.  “One could only speculate as to whether” such an action “would have resulted in a decision unfavorable to the plaintiff.   We certainly cannot say that he could not obtain a favorable decision.”   Saccardi v. Board of Education, supra, 45 Conn.App. 721.  “The mere possibility, or even likelihood, of an adverse decision does not render a remedy futile.   It is futile to seek a remedy only when such action could not result in a favorable decision ․” (Emphasis in original;  internal quotation marks omitted.)  Neiman v. Yale University, 270 Conn. 244, 260–61, 851 A.2d 1165 (2004).   The court also notes that, according to the record, the plaintiff's waiver of the LRPDA's representation was limited to the Loudermill hearing and did not extend to events that occurred after the hearing, such as the plaintiff's appeal of his termination and his request that the LRPDA submit his termination to arbitration.   Pl.'s Ex. 5 at 12.⁶  Furthermore, if the plaintiff had filed an action for breach of the duty of fair representation against the LRPDA, he could have simultaneously filed an additional action for breach of the collective bargaining agreement against Long Ridge with the state board of labor relations.   See, e.g., Piteau v. Board of Education, supra, 300 Conn. 676 n.12.

The court concludes that it lacks subject matter jurisdiction over all of the counts against the defendants because the plaintiff has not exhausted his administrative remedies.   The court therefore need not address the defendants' second and third grounds for dismissal, NLRA and LMRA preemption.⁷  For the foregoing reasons, the defendants' motion to dismiss is granted.

By the Court,

Dubay, J.

FOOTNOTES

FN1. Counsel for Bennett and Long Ridge filed a Notice of the Death of Defendant Robert Bennett on May 11, 2011..  FN1. Counsel for Bennett and Long Ridge filed a Notice of the Death of Defendant Robert Bennett on May 11, 2011.

FN2. “The Loudermill court stated, ‘We have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest’ ․ This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment ․ [T]he pretermination hearing, though necessary, need not be elaborate.   We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings ․ In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action ․ [T]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'   “ (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dortenzio v. Freedom of Information Commission, 48 Conn.App. 424, 432–33, 710 A.2d 801 (1998)..  FN2. “The Loudermill court stated, ‘We have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest’ ․ This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment ․ [T]he pretermination hearing, though necessary, need not be elaborate.   We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings ․ In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action ․ [T]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'   “ (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dortenzio v. Freedom of Information Commission, 48 Conn.App. 424, 432–33, 710 A.2d 801 (1998).

FN3. The present motion is formally titled “Amended Motion to Strike and Motion to Dismiss.”   The accompanying memorandum, however, only addresses the motion to dismiss, and indeed, the defendants represented during oral argument that the only motion presently before the court is the motion to dismiss..  FN3. The present motion is formally titled “Amended Motion to Strike and Motion to Dismiss.”   The accompanying memorandum, however, only addresses the motion to dismiss, and indeed, the defendants represented during oral argument that the only motion presently before the court is the motion to dismiss.

FN4. The parties have submitted two versions of the collective bargaining agreement.   The defendants' version provides that it was effective from July 1, 2001 to June 30, 2004.   The plaintiff's version provides that it was effective from July 1, 2004 to June 30, 2007.   The defendants argue that the plaintiff's version was never formally adopted by Long Ridge or the LRPDA and that their version was the operative version during all times relevant to the present action.   The plaintiff has conceded to the defendants' argument..  FN4. The parties have submitted two versions of the collective bargaining agreement.   The defendants' version provides that it was effective from July 1, 2001 to June 30, 2004.   The plaintiff's version provides that it was effective from July 1, 2004 to June 30, 2007.   The defendants argue that the plaintiff's version was never formally adopted by Long Ridge or the LRPDA and that their version was the operative version during all times relevant to the present action.   The plaintiff has conceded to the defendants' argument.

FN5. Section 7–468(d) provides:  “When an employee organization has been designated in accordance with the provisions of sections 7–467 to 7–477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”.  FN5. Section 7–468(d) provides:  “When an employee organization has been designated in accordance with the provisions of sections 7–467 to 7–477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”

FN6. “ATTORNEY MITCHELL:  As I understand it, at this point, all that you [the LRPDA] have been released from, as far as Mr. Berg is concerned, is representing him here tonight.   The issue of what do you do after tonight remains open.   Whether that release of your representation tonight would extend on or not might be a question of law that I don't have the ability to advise you on at the moment;  but it is possible, I think it's contemplated, that he may insist you represent him later on ․ Is that a fair statement, Ms. Rogers [plaintiff's counsel]?ATTORNEY ROGERS:  That's correct.”.  FN6. “ATTORNEY MITCHELL:  As I understand it, at this point, all that you [the LRPDA] have been released from, as far as Mr. Berg is concerned, is representing him here tonight.   The issue of what do you do after tonight remains open.   Whether that release of your representation tonight would extend on or not might be a question of law that I don't have the ability to advise you on at the moment;  but it is possible, I think it's contemplated, that he may insist you represent him later on ․ Is that a fair statement, Ms. Rogers [plaintiff's counsel]?ATTORNEY ROGERS:  That's correct.”

FN7. In his supplemental memorandum, the plaintiff argues that neither the NLRA nor the LMRA preempts the present action because Long Ridge qualifies as a “municipal employer” under the Municipal Employee Relations Act (MERA), and therefore, the court has subject matter jurisdiction because the plaintiff has already exhausted his administrative remedies by filing a retroactive pay complaint with the state board of labor relations, which the MERA vests with primary jurisdiction for labor disputes brought under its auspices.   The MERA, General Statutes § 7–467 et seq., by virtue of its plain language, governs actions against “municipal employers” when they are based upon a breach of the duty to bargain collectively under § 7–469 or upon any of the prohibited practices enumerated in § 7–467(1).   The harm for which the plaintiff seeks to recover in the present action is not alleged to have been caused only by Long Ridge's conduct in response to the complaints that he filed with the state department of labor in 2003 and 2008 or, for that matter, the complaints that he filed with OSHA in 2006 and 2008.   Instead, the plaintiff alleges that he has been harmed primarily by the conduct in which Long Ridge engaged pursuant to the “termination process” that began on June 2, 2008 and ended on September 29, 2008.   The court has already concluded, contrary to the plaintiff's argument, that the plaintiff has not exhausted his administrative remedies with respect to such conduct.   Furthermore, it has already noted that the plaintiff could have filed a hybrid action for breach of the duty of fair representation against the LRPDA and breach of the collective bargaining agreement against Long Ridge, if he wished to invoke the primary jurisdiction of the state board of labor relations.   The issue of Long Ridge's “municipal employer” status under the MERA is thus irrelevant to the resolution of the present motion, and even if it were relevant, the court would still reject the plaintiff's argument, for the reasons stated above..  FN7. In his supplemental memorandum, the plaintiff argues that neither the NLRA nor the LMRA preempts the present action because Long Ridge qualifies as a “municipal employer” under the Municipal Employee Relations Act (MERA), and therefore, the court has subject matter jurisdiction because the plaintiff has already exhausted his administrative remedies by filing a retroactive pay complaint with the state board of labor relations, which the MERA vests with primary jurisdiction for labor disputes brought under its auspices.   The MERA, General Statutes § 7–467 et seq., by virtue of its plain language, governs actions against “municipal employers” when they are based upon a breach of the duty to bargain collectively under § 7–469 or upon any of the prohibited practices enumerated in § 7–467(1).   The harm for which the plaintiff seeks to recover in the present action is not alleged to have been caused only by Long Ridge's conduct in response to the complaints that he filed with the state department of labor in 2003 and 2008 or, for that matter, the complaints that he filed with OSHA in 2006 and 2008.   Instead, the plaintiff alleges that he has been harmed primarily by the conduct in which Long Ridge engaged pursuant to the “termination process” that began on June 2, 2008 and ended on September 29, 2008.   The court has already concluded, contrary to the plaintiff's argument, that the plaintiff has not exhausted his administrative remedies with respect to such conduct.   Furthermore, it has already noted that the plaintiff could have filed a hybrid action for breach of the duty of fair representation against the LRPDA and breach of the collective bargaining agreement against Long Ridge, if he wished to invoke the primary jurisdiction of the state board of labor relations.   The issue of Long Ridge's “municipal employer” status under the MERA is thus irrelevant to the resolution of the present motion, and even if it were relevant, the court would still reject the plaintiff's argument, for the reasons stated above.

Dubay, Kevin G., J.