Carol A. Longo v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

The defendant, Allied Mechanical Services, LLC seeks to dismiss the plaintiff's claims.   The plaintiff has alleged sexual discrimination.   The gravamen of the defendant's claim is that the plaintiff failed to exhaust her administrative remedies before the Connecticut Commission On Human Rights and Opportunities.   Hence, this court, the defendant argues, lacks jurisdiction to hear this case.   For the reasons set forth below, the motion to dismiss is denied.

FACTS

On February 28, 2013, the plaintiff, Carol A. Longo, filed a one-count complaint, pursuant to the Connecticut Fair Employment Practices Act, General Statutes §§ 46a–60 et seq., against the defendant, Allied Mechanical Services, L.L.C. In her complaint, the plaintiff alleges the following facts.   The plaintiff was employed by the defendant in January 2005.   During the course of her employment, the plaintiff always received a satisfactory or better rating in her job evaluations.   Beginning in 2006, the defendant's service manager, Ralph Acquarulo, “created an increasing hostile working environment based on sex.”   Acquarulo complained that his wife “didn't put out,” displayed pornography on his computer, asked the plaintiff for “a hug,” called her a “cunt” and made statements such as:  “Come on, we could do it right here on the table.”   The plaintiff persistently objected to these alleged behaviors.   In late 2011, Acquarulo told the plaintiff that he “had something to put in [her] mouth.”   After this incident, the plaintiff reported Acquarulo's behavior to the owners of the company, Eric Tsolis and Robert Ziedler.   Zielder, who often referred to female employees as “chicks,” informed the plaintiff that, although Acquarulo had been given a verbal warning, nothing had been put into writing.   As a result of the verbal warning, Acquarulo began saying that he needed to be careful before he got his “pee-pee slapped.”   On January 25, 2012, after the plaintiff asked him a question relating to a workers' compensation report, Acquarulo kicked the plaintiff's office door and yelled the “f” word at her before storming out of her office.   The plaintiff immediately reported the incident to Ziedler and informed him that she did not think that Acquarulo was stable.   The plaintiff further informed Ziedler that she should not be forced to work under such conditions.

The plaintiff goes on to allege that in response to her complaint, on February 15, 2012, the plaintiff was fired and escorted out of the building by Tsolis.   The plaintiff alleges that she has, as required by statute, timely filed a complaint with the Connecticut Commission on Human Rights and Opportunities (the commission and/or CHRO) and received a release of jurisdiction from the commission on December 3, 2012.

On April 24, 2012, the defendant filed a motion to dismiss the plaintiff's sex discrimination claim on the ground that the plaintiff failed to allege a claim of sex discrimination and exhaust her administrative remedies before the commission.   The motion is accompanied by a memorandum of law.   In support of its motion, the defendant submits a copy of the plaintiff's affidavit of illegal discriminatory practice filed with the CHRO. On May 13, 2013, the plaintiff filed a memorandum of law in opposition to the motion.   The defendant filed a reply memorandum on May 28, 2013.   The parties appeared for hearing before the court, Nazzaro, J. at short calendar on June 10, 2013.

DISCUSSION

“In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”   Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).   Practice Book § 10–31(a) provides in relevant part:  “The motion to dismiss shall be used to assert ․ lack of jurisdiction over the subject matter ․” “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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “The standard of review for a court's decision on a motion to dismiss is well settled ․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).  “[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).  “[T]he question of subject matter jurisdiction ․ once raised, either by a party or by the court itself ․ must be answered before the court may decide the case.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).

The defendant moves to dismiss the plaintiff's sex discrimination claim on the ground that the plaintiff failed to allege sex discrimination and exhaust her administrative remedies before the commission.   The defendant argues that, although the plaintiff received a release of jurisdiction from the commission, this release did not cover the sex discrimination claim because this claim was not brought before the commission and that the court, therefore, lacks subject matter jurisdiction over the claim.   The plaintiff counters that, because the defendant's motion is premised on the sentence in the plaintiff's complaint alleging that “the defendant discriminated against the plaintiff on the basis of her sex,” the proper motion would have been a request to revise and not a motion to dismiss.   In the alternative, the plaintiff argues that her sex discrimination claim is so closely related to the claims of retaliation and hostile work environment that “the failure to use those precise words in the administrative complaint would not be fatal to the claim.”   In reply, the defendant claims that, pursuant to Practice Book § 10–31, a motion to dismiss is the proper vehicle through which to assert lack of subject matter jurisdiction for failure to exhaust administrative remedies.   The defendant further claims that, because the plaintiff failed to provide any legal or factual basis that her sex discrimination claim is “reasonably related” to the other two claims brought before the commission, her sex discrimination claim must be dismissed for failure to exhaust administrative remedies.

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law ․ Under that 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.)  Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012).  “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)  Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).  “[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.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).  “[T]he well established notion [is] that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

As a general rule, under Connecticut law, an individual alleging violation of the Connecticut Fair Employment Practices Act (the act), General Statutes §§ 46a–60 et seq., must first file a claim with the CHRO and exhaust administrative remedies.  General Statutes § 46a–101(a) provides in relevant part:  “No action may be brought in accordance with section 46a–100 unless the complainant has received a release from the commission in accordance with the provisions of this section.” ¹  “The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.”  (Internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 813, 12 A.3d 852 (2011).  “One such exception permits the court to exercise jurisdiction over a charge that was not presented during an administrative proceedings as long as it is reasonably related to the conduct complained of during the administrative proceedings, such that the claim could have been reasonably expected to grow out of the original charges.”   Tatro v. Cascades Boxboard Group Connecticut, LLC., Superior Court, judicial district of New London, Docket No. CV 09 4009597 (April 22, 2010, Martin, J.).  “In drafting and modifying the Connecticut Fair Employment Practices Act ․ our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and it has sought to keep our state law consistent with federal law in this area.”  Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009).   Thus, “[i]n interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance.”  Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 579, 42 A.3d 478 (2012).  “Indeed, when the overlap between state and federal law is deliberate, as in this case, federal decisions are particularly persuasive.”   CHRO v. Savin Rock Condominium Ass'n, Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005).   Accordingly, Connecticut courts “have been reluctant to interpret state statutory schemes in a manner at odds with federal schemes on which they are modeled.”  Ware v. State, supra, 81.

“The United States Court of Appeals for the Second Circuit has recognized that [a] claim is considered reasonably related if the conduct complained of would fall within the scope of the [commission's] investigation which can reasonably be expected to grow out of the charge that was made.”  (Internal quotation marks omitted.)  Ware v. State, supra, 118 Conn.App. 82.   Thus, a claim “alleged in a complaint is reasonably related to conduct described in [a] ․ charge [before the commission] when it (1) is within the scope of the [commission's] investigation which can reasonably be expected to grow out of the charge of discrimination;  (2) would constitute retaliation for filing a timely ․ charge;  or (3) constitutes further incidents of discrimination perpetrated in precisely the same manner as alleged in the ․ charge.”   (Internal quotation marks omitted.)   Perez v. Jobin Machine, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 4031458 (January 7, 2008, Jerry, J.).  “In determining whether claims are reasonably related, the focus should be on the factual allegations made in the charge itself, describing the discriminatory conduct about which a plaintiff is grieving.”   (Internal quotation marks omitted.)  Perez v. Jobin Machine, Inc., supra.

In the present case, the plaintiff's affidavit of illegal discriminatory practice filed with the commission alleged a violation of General Statutes §§ 46a–58(a) and 46a–60(a).  Section 46a–58(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution or laws of this state ․ on account of ․ sex ․” Section 46a–60(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section ․ [f]or an employer, by the employer or the employer's agent ․ to discharge from employment any individual or to discriminate against such individual ․ because of the individual's ․ sex ․” General Statutes § 46a–60(a)(1).  Section 46a–60(a)(4) further makes it discriminatory for an employer to discharge an employee who “has opposed any discriminatory employment practice or because such person has filed a complaint” against the employer.

In her complaint filed with this court, the plaintiff has alleged an additional violation of discrimination on the basis of sex.   As previously noted, in determining whether the claims filed before the court are reasonably related to those filed before the commission, the court must look to whether the conduct complained of fell within the scope of the commission's investigation.   See Tatro v. Cascades Boxboard Group Connecticut, LLC., supra.   Thus, “[t]he central question is whether the complaint filed with the commission gave that agency adequate notice to investigate discrimination claimed in the present action.”  Ware v. State, supra, 118 Conn.App. 85.   In Ware v. State, the plaintiff brought a complaint against her employer alleging, inter alia, retaliation and discrimination based on sex.  Id., 83–84.   Her complaint before the commission, did not however, contain a claim for retaliation.  Id. The Ware court held that, because the plaintiff made no allegations in the complaint before the commission that she opposed the alleged discriminatory conduct or that she filed any prior complaint alleging the occurrence of the discriminatory practice, the plaintiff's retaliation claim was “not so closely related to the allegations in her complaint to the commission that they reasonably would have been investigated by the commission.”  Id., 85.

In contrast, in Perez v. Jobin Machine, Inc., the plaintiff's complaint before the commission alleged that the plaintiff was subjected to “various episodes of sexual harassment” from other employees, that she reported the discriminatory conduct to management and that her employment was subsequently terminated because of her complaints.  Perez v. Jobin Machine, Inc., supra.   Although she failed to file a retaliation claim before the commission, in ruling on the defendant's motion to dismiss, the Perez court held that it “cannot conclude that the plaintiff's allegations of retaliation and aiding and abetting are not reasonably related to the facts contained in her original complaint.”   (Internal quotation marks omitted.)  Id.

In the present case, in support of its argument that the plaintiff's sex discrimination claim is not reasonably related to her sexual harassment or retaliation claims, the defendant points to Farren v. Shaw Environmental, Inc., United States Court of Appeals, Docket No. 12–1008–CV (2d Cir. January 31, 2013).   In Farren, the Second Circuit affirmed the District Court's decision to grant summary judgment with respect to the plaintiff's disparate-treatment claim because the administrative complaint did not “state or suggest that [the defendant's] managers responded to [the plaintiff's] claims differently because of his sex.”  Id. The Second Circuit reached this conclusion because, in light of the fact that the plaintiff in Farren specifically stated that his employer “took no action to correct the situation,” the complaint filed with the federal Equal Employment Opportunity Commission did not provide it with adequate notice to investigate the plaintiff's subsequent disparate-treatment claim.  (Internal quotation marks omitted.)  Id. In contrast, in the present case, the plaintiff has alleged, in her affidavit of illegal discriminatory practice, that “Acquarulo created an increasingly hostile working environment based on sex”;  this allegation is sufficient to put the commission on notice to investigate discrimination based on sex.   In addition, the facts of the present case are distinguishable from those in Farren because, in Farren, the plaintiff, who was the same sex as the alleged perpetrators of the discriminatory conduct, failed to offer evidence that the complained of conduct was engaged in “on account of Farren's sex.”  Id. Here, the plaintiff has alleged facts, such as Ziedler “constantly referred to women as chicks” and that Acquarulo wanted to “do it right here on the table,” sufficient to indicate that these comments were made to her on the basis of her sex.

The facts of the present case are identical to those in Perez.   In the present ease, the plaintiff alleges that other employees subjected her to an “increasingly hostile work environment based on sex,” that she reported the harassing conduct to the supervisor, and that she was fired because she opposed the alleged discriminatory conduct.   In addition, unlike the plaintiffs in Ware and Farren, the plaintiff here has alleged sufficient facts in the affidavit of illegal discriminatory practice to provide the commission with adequate notice to investigate a claim of sex discrimination.   Furthermore, the plaintiff's sex discrimination claim is governed by §§ 46a–58(a) and 46a–60(a), both of which were listed by the plaintiff in the complaint filed before the commission.

CONCLUSION

Jurisdiction is proper.   Accordingly, the defendant's motion to dismiss is denied.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. General Statutes § 46a- 100 provides in relevant part:  “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities ․ and who has obtained a release from the commission in accordance with section 46a–83a or 46a–101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred ․”.  FN1. General Statutes § 46a- 100 provides in relevant part:  “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities ․ and who has obtained a release from the commission in accordance with section 46a–83a or 46a–101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred ․”

Nazzaro, John J., J.