Linda Kulmann v. Yale–New Haven Hospital (2012)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS

The issue presented by the instant motion concerns whether the plaintiff exhausted all available administrative remedies prior to filing the present “whistleblower” action pursuant to General Statutes § 31–51m with the court.¹  The defendant contends that the plaintiff did not exhaust her administrative remedies because she failed to seek administrative relief from the Occupational Safety and Health Administration (OSHA), the Connecticut Commission on Human Rights and Opportunities (CHRO), and/or the Connecticut Department of Labor.   The plaintiff asserts that none of these agencies was available to her as a source of potential administrative relief under the particular circumstances of this case.   For the reasons set forth below, the court agrees with the plaintiff that none of the agencies referenced by the defendant in its motion was available for possible redress of her claims.   As a result and contrary to the assertion of the defendant, the plaintiff has not failed to exhaust her administrative remedies prior to commencing this action pursuant to § 31–51m.   Accordingly, the defendant's motion to dismiss count one of the plaintiff's complaint is denied.

FACTS

This action arises out of the suspension of the plaintiff, a registered nurse employed by the defendant, Yale–New Haven Hospital.   On April 21, 2010, the plaintiff filed a three-count complaint against the defendant.   In count one, which is the only count at issue in this motion to dismiss, the plaintiff alleges the following facts.   On October 29, 2009, the plaintiff filed a written internal complaint with the defendant in which she alleged “serious violations adversely impacting the health and safety of patients.”   Complaint, ¶ 5.   The plaintiff subsequently met with the defendant's senior vice president of patient services to discuss her allegations.   Complaint, ¶ 6.   In response to the plaintiff's complaints, the plaintiff alleges that the defendant falsely accused her of committing a “HIPAA violation” and falsifying documentation “by making a ‘late entry’ in a patient chart.”   Complaint, ¶ 7.   On January 6, 2010, the plaintiff filed a formal complaint with the Connecticut Department of Public Health (DPH) in which she repeated her allegations regarding the defendant's health and safety violations affecting patient well-being.   Complaint, ¶ 9.   The defendant is alleged to have received a copy of the plaintiff's DPH complaint on January 12, 2010.   Complaint, ¶ 10.   On January 27, 2010, the plaintiff alleges that the defendant suspended her without pay in retaliation for filing the complaint with DPH. Complaint, ¶ 11.

The plaintiff further alleges that the defendant's actions in suspending her violated General Statutes § 31–51m(b) and caused her economic losses as well as severe emotional distress.   Complaint, ¶ 14.   In addition, the plaintiff alleges that she “pursued her administrative remedies, which are minimal, seeking redress from the suspension without pay, and exhausted the said administrative remedies” by meeting with the defendant's patient services manager and manager of employee relations.   Complaint, ¶ 12.

On October 7, 2010, the defendant filed a motion to dismiss count one of the plaintiff's complaint on the grounds that the plaintiff has failed to exhaust her administrative remedies as required under § 31–51m and that the court therefore lacks subject matter jurisdiction.   The plaintiff filed an objection to the defendant's motion to dismiss and a memorandum of law in support of the objection.   The defendant filed a reply to the plaintiff's objection and a memorandum of law in support thereof.   The matter was heard at the short calendar on November 28, 2011.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “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).  “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).  “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.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).

“[T]he doctrine of exhaustion of remedies fosters an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions.   It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.”  (Internal quotation marks omitted.)  Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 483 n.10, 628 A.2d 946 (1993).   When a plaintiff has “available to him administrative remedies that could have afforded him meaningful relief ․ [h]is failure to [properly pursue those remedies] forecloses his access to judicial relief, because it deprive[s] the trial court of jurisdiction to hear his complaint.”  (Internal quotation marks omitted.)  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 168–69, 745 A.2d 178 (2000).  “It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.”  (Internal quotation marks omitted.)  Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003).

The issue raised here is not whether exhaustion of available administrative remedies is required by law (the plaintiff agrees that it is), or the extent to which those available remedies were sufficiently exhausted, but rather which administrative remedies, if any, were actually available to the plaintiff in this case.²  As noted above, the defendant contends that the plaintiff failed to file a complaint with three administrative agencies—OSHA, the CHRO and the Connecticut Department of Labor—each of which, the defendant asserts, possesses the authority to enforce § 31–51m.   The court does not agree.

Turning first to the defendant's reference to OSHA, the whistleblower provision of the Occupational Safety and Health Act, set forth in 29 U.S.C. § 660(c)(1), provides in pertinent part that:  “No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter ․” (Emphasis added.)   Therefore, in order to determine whether OSHA provided the plaintiff here with an available administrative remedy, the court must decide whether the nature of the complaint she lodged with the DPH raised claims either “under” or “related to” OSHA.

The plaintiff's complaint was certainly not made “under” OSHA. As just noted, the complaint that the plaintiff alleges led to her firing was filed not with OSHA, but with the DPH. As to whether the plaintiff's complaint to the DPH can be deemed “related to” OSHA, the language of the applicable federal regulations is of assistance in resolving this question.  Title 29 C.F.R. § 1977.1 provides that “[t]he Occupational Safety and Health Act of 1970 ․ is a Federal statute of general application designed to regulate employment conditions relating to occupational safety and health and to achieve safer and healthier workplaces throughout the Nation.”  (Emphasis added.)   Furthermore, although Title 29 C.F.R. § 1977.9(b) states that “complaints made to State or local agencies regarding occupational safety and health conditions would be ‘related to’ the Act,” that regulation goes on specifically to provide that such complaints “must relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health.”   (Emphasis added.)

In the present case, the plaintiff alleges that the complaint she filed with the DPH set forth her “concerns regarding serious violations adversely impacting the health and safety of patients.”   This DPH complaint therefore related not to conditions affecting workplace safety, but to the health and safety of the members of the general public who were patients of the defendant.   Because the general aim of the Occupational Safety and Health Act is to “regulate employment conditions relating to occupational safety and health” (emphasis added);  29 C.F.R. § 1977.1;  this court cannot conclude from the pleadings that OSHA has jurisdiction over the plaintiff's DPH complaint and could have afforded the plaintiff administrative relief.

In addition to its claim that OSHA was available to the plaintiff;  the defendant also contends that the CHRO has the authority to enforce § 31–51m and that the plaintiff therefore was required to exhaust her administrative rights at that agency as well.   The CHRO's authority, though broad, is not unlimited.   See Gen.Stat. § 46a–51 et seq.   As a result, the CHRO does not provide an available administrative remedy for all whistleblower claims brought under § 31–51m.   For example, in Benevides v. Roundhouse, LLC, Superior Court, judicial district of Hartford, Docket No. CV 09–4045477 (March 8, 2010, Peck, J.) [49 Conn. L. Rptr. 438], the court examined whether the plaintiff there was required to file a complaint with the CHRO regarding her allegation that she had been terminated in violation of § 31–51m for filing a complaint with the Connecticut Department of Labor.   The complaint filed with the Department of Labor in that case stated that the plaintiff's employer had improperly classified her as an independent contractor.  Id. In holding that the plaintiff was not obligated to file a complaint with the CHRO regarding her § 31–51m claim, the court stated:  “The purview of the CHRO is limited to discriminatory employment practices ․ [T]he exhaustion requirement of § 31–51m(c) only encompasses available administrative remedies and the CHRO does not provide an administrative remedy for whistleblowing claims based on the improper classification of an employee by an employer as an independent contractor.”  Id.

Similarly, in Santacapita v. Board of Education, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 09–4028116 (August 9, 2011, Bellis, J.), the court held that a plaintiff who alleged that she was retaliated against in violation of § 31–51m(b) for filing a report of child abuse was not required to pursue a remedy with the CHRO. The court there stressed that the CHRO's jurisdiction in the employment setting was limited solely to those claims in which an employer was alleged to have engaged in a discriminatory employment practice as defined in Gen.Stat. §§ 46a–60 and 46a–81c.³  Considering the nature of the plaintiff's claim in that case, the court concluded that “the plaintiff's action is not predicated on any alleged discriminatory practices by the defendant;  it is based on retaliatory conduct for reporting suspected child abuse.”  Id. As a result, the court held that “the CHRO does not have jurisdiction over the present claim ․ [and] does not provide an available administrative remedy to the plaintiff.”  Id.

Similar to the plaintiffs in Benevides and Santacapita, the plaintiff in the present case does not allege that her firing was based upon any of the types of discrimination within the jurisdiction of the CHRO. Rather, the plaintiff specifically alleges that she was retaliated against for reporting to the Department of Public Health issues relating to the health and safety of patients in the defendant's care.   Thus, in the court's opinion, the plaintiff's retaliation claim does not fall within the jurisdiction of the CHRO and the plaintiff was not required to file a complaint with that agency in order to exhaust her available administrative remedies.

Finally, the defendant argues that the plaintiff was further obligated to pursue an administrative remedy with the Connecticut Department of Labor.   In this regard, the defendant fails to provide, and the court is unable to locate, any statutory or case law authority to indicate that the Department of Labor possesses administrative jurisdiction under the circumstances present in this case and could afford meaningful relief to an employee who alleges retaliatory action by an employer.   Lacking such evidence, the court declines the defendant's invitation to conclude that the plaintiff failed to pursue an administrative remedy that was available to her at the Department of Labor.

CONCLUSION

As noted earlier, “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214.   Accordingly, and for the reasons set forth herein, the court rejects the defendant's contention that the plaintiff failed to comply with § 31–51m by not exhausting her available administrative remedies prior to commencing the present action.   The defendant's motion to dismiss count one of the present action is therefore denied.

THE COURT

Gold, J.

FOOTNOTES

FN1. Subsection (b) of Gen.Stat. § 31–51m(b) provides in relevant part:  “No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body ․” Section 31–51m(c) provides in relevant part:  “Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred ․”.  FN1. Subsection (b) of Gen.Stat. § 31–51m(b) provides in relevant part:  “No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body ․” Section 31–51m(c) provides in relevant part:  “Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred ․”

FN2. Although the parties in their respective briefs have cited to prior decisions that address issues related to the exhaustion of available administrative remedies within the context of actions brought under § 31–51m, none of the cases so referenced seems to deal directly with the question of which agency or agencies can be held to be available under the circumstances presented by the instant case..  FN2. Although the parties in their respective briefs have cited to prior decisions that address issues related to the exhaustion of available administrative remedies within the context of actions brought under § 31–51m, none of the cases so referenced seems to deal directly with the question of which agency or agencies can be held to be available under the circumstances presented by the instant case.

FN3. Section 46a–60(a)(1) provides in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [for an employer ․ to discriminate against [an] individual ․ in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental ․ or physical disability.”   Section 46a–81c provides in relevant part:  “It shall be a discriminatory practice ․ [for an employer ․ to discriminate against [an individual] ․ in terms, conditions or privileges of employment because of the individual's sexual orientation or civil union status.”.  FN3. Section 46a–60(a)(1) provides in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [for an employer ․ to discriminate against [an] individual ․ in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental ․ or physical disability.”   Section 46a–81c provides in relevant part:  “It shall be a discriminatory practice ․ [for an employer ․ to discriminate against [an individual] ․ in terms, conditions or privileges of employment because of the individual's sexual orientation or civil union status.”

Gold, David P., J.