Julie Sowell v. Deirdre DiCara et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

I

ISSUES

Whether count five of the complaint must be dismissed because the plaintiff failed to bring this action within the ninety-day limit allotted by General Statutes § 31–51m?   Whether count seven of the complaint must be dismissed because the plaintiff failed to exhaust administrative remedies outlined in General Statutes § 31–57v?

II

FACTS

This action arises from the discharge of the plaintiff, Julie Sowell, from her position as clinical director at Southbury–Middlebury Youth and Family Services, Inc. (YFS).  The defendant, Region 15 School District (the Region),¹ moves to dismiss counts five and seven of the plaintiff's complaint.²

The plaintiff alleges the following relevant facts.   The Region exercised complete financial control over YFS;  the Region and YFS constituted an integrated employer.   On February 7, 2012, a cardiologist ordered the plaintiff not to return to work for two weeks due to severe hypertension.   During a telephone conversation on February 15, 2012, the plaintiff informed her supervisor that she intended to return to work on February 21, 2012.   During that conversation, the plaintiff's supervisor stated that the plaintiff would not be permitted to return to work without a medical release.   The plaintiff then told her supervisor that she expected to obtain a medical release at a February 23, 2012 cardiologist appointment.   On February 16, 2012, the plaintiff received a letter from her supervisor, dated February 14, 2012, stating that YFS would appoint an interim clinical director until the plaintiff obtained a cardiologist's release to return to work.

By a letter dated February 21, 2012, the plaintiff provided notice to YFS that she would be resigning her position, effective June 30, 2012.   The letter cited insurance billing improprieties by YFS, a refusal by YFS supervisors to conduct an audit and unethical practices and mismanagement by YFS staff as reasons for her resignation.   A copy of the letter was sent to officials of the towns of Southbury and Middlebury, as well as officials of the Region.

On February 23, 2012, the plaintiff's cardiologist ordered her not to return to work because her hypertension would be exacerbated if she returned.   The next day, the plaintiff informed her supervisor that she had not yet been released to return to work but intended to as soon as circumstances permitted.   On February 25, 2012, the plaintiff was served a letter terminating her employment effective immediately.

The plaintiff filed a claim against YFS with the Connecticut Department of Labor (DOL) on May 18, 2012.³  Through a letter dated May 21, 2012, the plaintiff requested relief of the DOL Commissioner, including “[a] finding that the employee was discharged in retaliation for using paid sick leave in accordance with the employer's own paid sick leave policy in violation of General Statutes Section 31–57v(a) and Section 31–69b(a).   Pursuant to General Statutes Section 31–57v(c), the employer is ordered to pay the employee back wages ․ together with benefits to which the employee otherwise would have been eligible if the employee had not been subject to retaliatory personnel action.”   By a letter dated June 18, 2012, the DOL provided the plaintiff with a release of jurisdiction to bring a § 31–51m civil suit against YFS within ninety days.   The plaintiff's § 31–57v claim was not addressed in the DOL's release letter.

The plaintiff additionally filed an affidavit of illegal discriminatory practice against the Region with the Connecticut Commission on Human Rights and Opportunities (CHRO) on May 31, 2012.   In her affidavit, the plaintiff's allegations included:  “I believe that my physical disability was a factor in my discharge.   I also believe that my discharge was retaliatory because I reported to public bodies suspected violations of state laws or regulations, unethical practices and mismanagement by YFS.” ⁴ The CHRO, in a letter dated December 5, 2012, provided the plaintiff a release of jurisdiction and authorized her to bring a civil action in Superior Court within ninety days.

In count five, the plaintiff claims that she was discharged from her employment in retaliation for reporting suspected violations of state laws, unethical labor practices and mismanagement in violation of § 31–51m,⁵ the so-called whistle-blowing statute.   In count seven, the plaintiff alleges that, pursuant to § 31–57v,⁶ the Region is joint and severally liable with its co-defendants for payment of sick leave and back wages that the plaintiff would have been eligible for had she not been subject to a retaliatory discharge and discrimination.

On September 27, 2012, the defendant filed a motion to dismiss counts five and seven (# 101) on the grounds that the plaintiff failed to bring her § 31–51m claim within the ninety-day period provided by the statute, and failed to exhaust administrative remedies that are required to bring a § 31–57v civil action.   A memorandum of law accompanied the plaintiff's motion (# 102).   The plaintiff objected to the motion to dismiss (# 105) and filed a memorandum in opposition (# 106) on November 2, 2012.   The defendant and plaintiff filed respective reply briefs (# 107 & # 108) on November 6 and November 9, 2012.   Oral argument was heard on this matter at short calendar on March 25, 2013.   Pursuant to this court's request, both the plaintiff and the defendant respectively filed reply briefs (# 120 & # 121) on April 8, 2012, addressing the CHRO's December 5, 2012 release of jurisdiction.⁷  Additional facts are provided as necessary.

III

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a mattes 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).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).   Nevertheless, “[i]t 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).

A

Motion to Dismiss Count Five

In count five, the plaintiff sets forth a claim that the Region terminated her in violation of § 31–51m, the so called whistle-blower statute.   The defendant argues that the claim must be dismissed because the plaintiff did not commence this action within the ninety-day limitation period set forth in § 31–51m(c).  The plaintiff contends that her claim under § 31–51m is timely, in that it was commenced within ninety days of the date of a final administrative determination of the complaint she filed with the CHRO.

Ordinarily a statute of limitations defense “must be specially pleaded and cannot be raised by a [motion to dismiss] .” Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972);  see also Practice Book § 10–50.   Nonetheless, “[w]here ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone ․ [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived.”  (Internal quotation marks omitted.)  Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766–67, 628 A.2d 1303 (1993);  see also St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 815, 12 A.3d 852 (2011) (“[u]nlike a statute of limitations that is merely procedural, a subject matter jurisdictional statute of limitations may not be waived, and a court may address it sua sponte”).

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 or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred.   An employee's recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court ․” (Emphasis added.)

“Administrative adjudications can provide an opportunity for successful resolution of disputes without the time and costs associated with litigation.   They also serve to reduce the burden on judicial resources.   It therefore makes sense to toll a statute of limitation to allow parties to attempt to resolve their disputes first by administrative means.   A valid administrative remedy, however, must provide for ‘meaningful relief,’ otherwise litigation is merely postponed.   Under § 31–51m(c), the remedy provided for a violation of the statute is ‘reinstatement of his previous job, payment of back wages and reestablishment of employee benefits,’ as well as the possibility of court costs and reasonable attorneys fees.”  Campbell v. Plymouth, 74 Conn.App. 67, 82, 811 A.2d 243 (2002).

In Campbell v. Plymouth, supra, 74 Conn.App. 81–82, our Appellate Court considered what type of administrative remedies fall within the scope of § 31–51m.⁸  The plaintiff in that case argued that his § 31–51m civil action was timely because it was commenced within ninety days of the final administrative determination of his application for unemployment benefits.   The court stated:  “Unemployment compensation does not provide meaningful relief from a claim of wrongful discharge for ‘whistle blowing’ because it provides only partial wage compensation during periods of unemployment.   The unemployment compensation commission cannot provide reinstatement or continuation of employee benefits.”  Id., 82.   Because unemployment compensation could not provide the remedies afforded by § 31–51m(c), the court concluded that it was not the type of administrative remedy contemplated by the statute.  Id.

In the present case, the plaintiff filed a complaint with the CHRO pursuant to General Statutes § 46a–82.   The plaintiff has submitted a copy of the letter from the CHRO releasing its jurisdiction over her complaint.   The release letter is dated December 5, 2012, less than ninety days prior to the filing of the amended complaint on January 17, 2013.   Count five is therefore timely if the relief sought by way of an employment discrimination complaint filed with the CHRO is the type of administrative remedy contemplated by § 31–51m(c).

Connecticut appellate authority has not addressed whether the CHRO is an “available administrative remedy” under § 31–51m(c).  Superior Courts considering the issue have failed to reach a clear consensus.

In Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 4007847 (January 31, 2008, Ripley, J.T.R.), a housing authority maintenance worker filed a § 31–51m claim and, like the plaintiff in the present case, did not bring his civil suit until more than ninety days after his discharge.  Id. The defendant moved for summary judgment.  Id. Similar to the present plaintiff, however, the Daconto plaintiff had previously filed a claim with the CHRO, which then provided a release of jurisdiction.  Id. The plaintiff brought his civil action within ninety days of the CHRO release letter.  Id. The Daconto court examined whether the CHRO provided an available administrative remedy under § 31–51m “by examining the relief available pursuant to a discrimination complaint filed with the CHRO.” Id. The court held that the CHRO could have provided meaningful relief from a claim for wrongful discharge for whistle-blowing because “the remedies available to the plaintiff from the CHRO for employment discrimination included reinstatement of employment.”  Id. (Citing Campbell v. Plymouth, supra, 74 Conn.App. 81–82.)

In Santacapita v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 09 4028116 (August 9, 2011, Bellis, J.), the court held that the CHRO was not an “available administrative remedy” that a plaintiff must first exhaust before bringing a § 31–51m civil action.   In that case a high school assistant principal filed a claim under § 31–51m, which alleged that she was retaliated against for reporting child abuse.   Id. The defendant moved to dismiss on the ground that the plaintiff did not exhaust her remedies by filing a claim with the CHRO before filing a civil action.  Id. The Santacapita court denied the motion to dismiss, holding that the plaintiff was not required to first exhaust her remedies with the CHRO before bringing a civil action.  Id. The court 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 General Statutes §§ 46a–60 and 46a–81c.  Id. 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. Accord Kulmann v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 10 6010414 (January 4, 2012, Gold, J.) (53 Conn. L. Rptr. 294) (denying motion to dismiss § 31–51m claim for failure to exhaust administrative remedies because alleged retaliation against hospital employee for reporting patient safety concerns not within CHRO's jurisdiction);  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, 439) (“CHRO does not provide an administrative remedy for whistle-blowing claims based on the improper classification of an employee by an employer as an independent contractor”).

This court acknowledges that the Superior Court decisions on this matter are seemingly contradictory.   Under the facts of the present case, however, Daconto is convincing and procedurally on point.   Daconto addressed the exact issue now before this court:  whether a § 31–51m complaint must be dismissed when it is brought more than ninety days after an employee's termination, but nevertheless brought within ninety days of the CHRO's release of jurisdiction.   Moreover, Daconto convincingly applied the Appellate Court's remedy-based analysis from Campbell, the only appellate guidance on administrative remedies available under § 31–51m.

The cases cited by the defendant are inapposite.   Those cases considered a completely separate issue:  whether a plaintiff is required to first exhaust remedies with the CHRO before bringing a civil § 31–51m complaint.   In the present case, however, there is no contention that the plaintiff failed to exhaust her remedies before bringing a civil action.   The defendant instead argues that, because the CHRO cannot provide the plaintiff meaningful relief, the complaint must be dismissed because the action was brought more than ninety days after the plaintiff's termination.

In the present case, the plaintiff's allegation of disability discrimination and whistle-blowing complaints are intertwined.   In her affidavit to the CHRO, the plaintiff stated “I believe that my physical disability was a factor in my discharge.   I also believe that my discharge was retaliatory because I reported to public bodies suspected violations of state laws or regulations, unethical practices and mismanagement by YFS.” The defendants do not dispute that the CHRO has jurisdiction over discriminatory employment practices, including discharge from employment because of a physical disability, such as hypertension.⁹  General Statutes § 46a–60(a)(1).

The court now turns to Campbell 's remedy-based analysis.   The plaintiff claims payment of back wages and reinstatement of employee benefits as relief in count five.  “Under § 31–51m(c), the remedy provided for a violation of the statute is ‘reinstatement of his previous job, payment of back wages and reestablishment of employee benefits,’ as well as the possibility of court costs and reasonable attorneys fees.”  Campbell v. Plymouth, supra, 74 Conn.App. 82.   Section 46a–86(b), which governs the CHRO's determination of discrimination complaints, provides in relevant part:  “upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay ․” Although the plaintiff does not seek reinstatement, “an award of back pay under § 46a–86(b) is not dependent on an order of reinstatement.”  Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 136, 827 A.2d 659 (2003).   The CHRO could provide the plaintiff meaningful relief for her § 31–51m complaint.   The motion to dismiss count five is denied.

B

Motion to Dismiss Count Seven

In count seven, the plaintiff alleges that she was retaliated against for using paid sick leave in violation of § 31–57v.   The defendant argues that the court must dismiss count seven because the plaintiff failed to exhaust administrative remedies set forth in § 31–57v or follow the appeals process set forth in the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4–166 et seq.   The plaintiff maintains that count seven is properly before this court because the DOL elected not to hold a hearing regarding unpaid sick leave or back wages.   While the plaintiff admits she failed to pursue an administrative appeal through the UAPA, the plaintiff maintains she has exhausted all administrative remedies.   Because there was no “contested case” and therefore no “final decision” to appeal, the plaintiff contends she remains aggrieved and without remedy and must be allowed to resort to the Superior Court.

Section § 31–57v(a) provides in relevant part:  “No employer shall take retaliatory personnel action or discriminate against an employee because the employee ․ requests or uses paid sick leave either in accordance with sections 31–57s and 31–57t or in accordance with the employer's own paid sick leave policy, as the case may be ․” General States § 31–57v(c) provides in relevant part:  “Any employee aggrieved by a violation of the provisions of sections 31–57s to 31–57w, inclusive, may file a complaint with the Labor Commissioner.   Upon receipt of any such complaint, said commissioner may hold a hearing ․ Any party aggrieved by the decision of the commissioner may appeal the decision to the Superior Court in accordance with the provisions of chapter 54.”  (Emphasis added.)  “The Labor Commissioner shall administer this section within available appropriations.”  General Statutes § 31–57v(d).

Chapter 54 of the Connecticut General Statutes is the UAPA. “It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction ․ The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances ․ Judicial review of an administrative decision is governed by ․ § 4–183(a) of the UAPA, which provides that [a] person who has exhausted all administrative remedies ․ and who is aggrieved by a final decision may appeal to the superior court ․ A final decision is defined in § 4–166(3)(A) as the agency determination in a contested case ․ A contested case is defined in § 4–166(2) as a proceeding ․ in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held ․ Not every matter or issue determined by an agency qualifies for contested case status ․ If the agency was not under a statutory or regulatory mandate to conduct a hearing with respect to the plaintiff's allegations, there was no agency determination in a contested case.”  (Citations omitted, emphasis in original, internal quotation marks omitted.)  Evans v. Tiger Claw, Inc., 141 Conn.App. 110, 117–18, 61 A.3d 533 (2013).

Pursuant to § 31–57v(d), the DOL has jurisdiction over complaints alleging retaliatory employment action for requesting or using paid sick leave.   In the present case, there is no dispute that the plaintiff did not file an appeal to the Superior Court pursuant to § 4–183.   Both parties agree that the DOL has the discretion as to whether to hold a hearing under § 31–57v.   In the present case, the DOL elected not to hold such a hearing.  “If a hearing is not statutorily mandated, even if one is gratuitously held, a ‘contested case’ is not created.”  (Internal quotation marks omitted.)  Caterbury v. Rocque, 78 Conn.App. 169, 175, 657 A.2d 717 (2003).   Because there has been no hearing or other ruling regarding the plaintiff's 31–51v complaint, there has thus not been an appealable “final decision” by the DOL under § 4–183.   The plaintiff has indisputably failed to follow the procedures outlined in the UAPA to bring this action, the court must therefore dismiss count seven unless some exception to the exhaustion requirement exists.   See Peters v. Department of Social Services, 273 Conn. 434, 447, 870 A.2d 448 (2005) (“in the absence of a statute requiring that the department conduct a hearing with respect to the liens, the ‘[c]ontested case’ requirement of § 4–166(2) was not satisfied, and the trial court accordingly lacked subject matter jurisdiction under the UAPA” [emphasis in original] ).

The only remaining issue is whether the plaintiff's § 31–57v claim is nevertheless properly before this court despite the not filing an administrative appeal pursuant to the UAPA. The plaintiff claims that an exception to the exhaustion of administrative remedies doctrine exists in the present case.   The plaintiff argues that the action is properly before the court because there is no adequate administrative remedy for her to pursue.

“The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to [certain] exceptions ․ [W]e have recognized such exceptions [however] only infrequently and only for narrowly defined purposes ․ such as when recourse to the administrative remedy would be 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 ․ It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings ․ Thus, [i]f the available administrative procedure ․ provide[s] the [plaintiff] with a mechanism for attaining the remedy that [he] seek[s] ․ [the plaintiff] must exhaust that remedy ․ It is well established, moreover, that [t]he plaintiff's preference for a particular remedy does not determine the adequacy of that remedy.  [A]n administrative remedy, in order to be adequate, need not comport with the [plaintiff's] opinion of what a perfect remedy would be.”  (Citations omitted;  internal quotation marks omitted.)  Piteau v. Board of Education, 300 Conn. 667, 684–85, 15 A.3d 1067 (2011).

“An administrative remedy is adequate when it provides the plaintiff with the relief that she seeks and a mechanism for judicial review of the administrative decision.”  Murphy v. Young, 44 Conn.App. 677, 681, 692 A.2d 403 (1997).   It is true that “[w]here statutory right of appeal from administrative decision exists, aggrieved party may not bypass statutory procedure and, instead, bring independent action to test issue that appeal was designed to test.”  Id., 682.   In the present case, there was no DOL hearing regarding the plaintiff's § 31–57v retaliation claim.   The DOL has closed its review of the plaintiff's complaint.   Therefore, there is no appealable final decision from the DOL and no mechanism for judicial review.   The plaintiff remains aggrieved and without an adequate judicial remedy for her § 31–57v claim.   The administrative remedy available to the plaintiff is thus inadequate.¹⁰  The defendant's motion to dismiss count seven is denied.

III

CONCLUSION

The court denies the defendant's motion to dismiss count five and count seven of the plaintiff's amended complaint.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. This action was brought against the defendants YFS, the Region, Deirdre DiCara and Mary McClay.   This decision addresses the Region's motion to dismiss, therefore the Region is referred to as “the defendant” in this decision..  FN1. This action was brought against the defendants YFS, the Region, Deirdre DiCara and Mary McClay.   This decision addresses the Region's motion to dismiss, therefore the Region is referred to as “the defendant” in this decision.

FN2. The plaintiff commenced this action on August 17, 2012.   On January 17, 2013, the plaintiff filed the operative complaint (# 110), which included a new disability discrimination count against the Region, unrelated to the present motion.   The defendant's objection to the plaintiff's request to leave to amend the complaint was overruled on May 6, 2013 (# 111.15)..  FN2. The plaintiff commenced this action on August 17, 2012.   On January 17, 2013, the plaintiff filed the operative complaint (# 110), which included a new disability discrimination count against the Region, unrelated to the present motion.   The defendant's objection to the plaintiff's request to leave to amend the complaint was overruled on May 6, 2013 (# 111.15).

FN3. The Region was not named a defendant in the DOL complaint.   The plaintiff has conceded that she was not required to pursue administrative remedies with the DOL for her § 31–51m claim.   The Region has not challenged the plaintiff's DOL complaint regarding her 31–57v claim on the ground that it was not a named defendant..  FN3. The Region was not named a defendant in the DOL complaint.   The plaintiff has conceded that she was not required to pursue administrative remedies with the DOL for her § 31–51m claim.   The Region has not challenged the plaintiff's DOL complaint regarding her 31–57v claim on the ground that it was not a named defendant.

FN4. The plaintiff alleges that she was afflicted by hypertension, a disability that caused her to miss periods of work..  FN4. The plaintiff alleges that she was afflicted by hypertension, a disability that caused her to miss periods of work.

FN5. General Statutes § 31–51m provides in relevant part:  “(b) No employer shall discharge, discipline or otherwise penalize any employee because 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, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee ․ reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.“(c) 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 or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred.”.  FN5. General Statutes § 31–51m provides in relevant part:  “(b) No employer shall discharge, discipline or otherwise penalize any employee because 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, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee ․ reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.“(c) 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 or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred.”

FN6. General Statutes § 31–57v(a) provides in relevant part:  “No employer shall take retaliatory personnel action or discriminate against an employee because the employee (1) requests or uses paid sick leave either in accordance with sections 31–57s and 31–57t or in accordance with the employer's own paid sick leave policy, as the case may be, or (2) files a complaint with the Labor Commissioner alleging the employer's violation of sections 31–57s to 31–57t, inclusive.”.  FN6. General Statutes § 31–57v(a) provides in relevant part:  “No employer shall take retaliatory personnel action or discriminate against an employee because the employee (1) requests or uses paid sick leave either in accordance with sections 31–57s and 31–57t or in accordance with the employer's own paid sick leave policy, as the case may be, or (2) files a complaint with the Labor Commissioner alleging the employer's violation of sections 31–57s to 31–57t, inclusive.”

FN7. The plaintiff invites the court to deny the current motion to dismiss count five because the defendant only objected to her request for leave to amend as to count ten, and not count five, pursuant to Practice Book § 60(a)(3).   The court declines the plaintiff's invitation.   First, count five and count seven of the amended complaint are identical to the corresponding counts of the original complaint.   Next, the defendant has reclaimed its motion to dismiss three times since the plaintiff filed her request to revise.   Finally, subject matter jurisdiction may be raised at any stage of the proceedings and cannot be waived.   See Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011)..  FN7. The plaintiff invites the court to deny the current motion to dismiss count five because the defendant only objected to her request for leave to amend as to count ten, and not count five, pursuant to Practice Book § 60(a)(3).   The court declines the plaintiff's invitation.   First, count five and count seven of the amended complaint are identical to the corresponding counts of the original complaint.   Next, the defendant has reclaimed its motion to dismiss three times since the plaintiff filed her request to revise.   Finally, subject matter jurisdiction may be raised at any stage of the proceedings and cannot be waived.   See Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

FN8. The Appellate Court in Campbell was reviewing the defendant's motion for summary judgment and did not address the procedural propriety of the motion.   This court recognizes that the proper procedural vehicle for challenging the timeliness of a § 31–51m claim is a motion to dismiss, not a motion for summary judgment.   See Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766–67.   Our Supreme Court has said that when prior cases “did not address the propriety of the procedural posture,” those cases do not conclusively determine that the proper procedural vehicle was used.  Grant v. Bassman, 221 Conn. 465, 471, 604 A.2d 814 (1992).This court, therefore, considers the Appellate Court's legal analysis of “available administrative remedies” contemplated by § 31–51m(c) to be binding.   Moreover, that the defendant brought a motion for summary judgment, not a motion to dismiss, in Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 4007847 (January 31, 2008, Ripley, J.T.R.), does not lessen the persuasiveness of that decision's statutory analysis..  FN8. The Appellate Court in Campbell was reviewing the defendant's motion for summary judgment and did not address the procedural propriety of the motion.   This court recognizes that the proper procedural vehicle for challenging the timeliness of a § 31–51m claim is a motion to dismiss, not a motion for summary judgment.   See Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766–67.   Our Supreme Court has said that when prior cases “did not address the propriety of the procedural posture,” those cases do not conclusively determine that the proper procedural vehicle was used.  Grant v. Bassman, 221 Conn. 465, 471, 604 A.2d 814 (1992).This court, therefore, considers the Appellate Court's legal analysis of “available administrative remedies” contemplated by § 31–51m(c) to be binding.   Moreover, that the defendant brought a motion for summary judgment, not a motion to dismiss, in Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 4007847 (January 31, 2008, Ripley, J.T.R.), does not lessen the persuasiveness of that decision's statutory analysis.

FN9. This court now faces an entirely different issue than the one faced by the court in Benevides v. Roundhouse, LLC, supra, Superior Court, Docket No. CV 09 4045477.   The Benevides court held plaintiff was not required to exhaust her administrative remedies with the CHRO before bringing her § 31–51m complaint, despite bringing factually overlapping discrimination and whistle-blowing complaints.   In contrast, this court considers whether a plaintiff, having already exhausted remedies with the CHRO, may now bring a § 31–51m complaint within ninety days of the CHRO's release of jurisdiction..  FN9. This court now faces an entirely different issue than the one faced by the court in Benevides v. Roundhouse, LLC, supra, Superior Court, Docket No. CV 09 4045477.   The Benevides court held plaintiff was not required to exhaust her administrative remedies with the CHRO before bringing her § 31–51m complaint, despite bringing factually overlapping discrimination and whistle-blowing complaints.   In contrast, this court considers whether a plaintiff, having already exhausted remedies with the CHRO, may now bring a § 31–51m complaint within ninety days of the CHRO's release of jurisdiction.

FN10. This court will not address the defendant's contention that § 31–57v does provide a private cause of action;  the plaintiff has never put forward such an argument..  FN10. This court will not address the defendant's contention that § 31–57v does provide a private cause of action;  the plaintiff has never put forward such an argument.

Roche, Vincent E., J.