Barbara J. Resnick v. United Public Service Employees Union et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 116

The plaintiff, Barbara J. Resnick, filed a six-count complaint on February 14, 2013.   The defendants in this action are the United Public Service Employees Union (UPSEU), the plaintiff's former employer, and Ronald D. Suraci, the plaintiff's former supervisor.   After filing a number of amended complaints, the plaintiff filed her third amended complaint on June 27, 2013, which is the operative complaint in the present action.

In the operative complaint, the plaintiff alleges the following relevant facts.   UPSEU, acting by and through Suraci, engaged in a continuing course of conduct constituting sexual harassment and discrimination against the plaintiff.   Specifically, Suraci made numerous unwelcome sexual advances and requests for sexual favors.   After repeatedly, and unsuccessfully, reporting Suraci's conduct to the President of UPSEU, the plaintiff filed a formal internal complaint with UPSEU detailing Suraci's conduct on or about February 6, 2012.   Thereafter, UPSEU and other employees of UPSEU, including but not limited to Suraci, retaliated against the plaintiff.   The plaintiff's employment with UPSEU was eventually terminated.

Subsequently, the plaintiff filed a complaint against UPSEU with the Connecticut Commission on Human Rights and Opportunities (CHRO) on March 27, 2012.   The CHRO complaint against UPSEU was amended once on July 9, 2012, and again on or about August 14, 2012.   Also on August 14, 2012, the plaintiff filed her first CHRO complaint against Suraci (the CHRO complaint).   In the CHRO complaint, the plaintiff detailed Suraci's alleged conduct and Suraci's and UPSEU's retaliatory responses to the plaintiff's informal and formal internal complaints.   The plaintiff alleged that this conduct violated General Statutes §§ 46a–60(a)(1) and 46a–60(a)(4).¹  After receiving a release of jurisdiction from the CHRO, the plaintiff commenced the present action.   In counts three and four of the operative complaint, the plaintiff alleges that Suraci aided, abetted, incited, compelled, or coerced UPSEU in discriminating against the plaintiff in violation of § 46a–60(a)(5).²

Suraci filed a motion to dismiss on July 3, 2013.   Suraci argues that the court is without subject matter jurisdiction over counts three and four of the operative complaint on the ground that the plaintiff failed to exhaust her administrative remedies against him.   Suraci argues that the plaintiff failed to raise alleged violations of aiding and abetting under § 46a–60(a)(5) in the CHRO complaint.   Further, Suraci argues that the CHRO complaint does not, in words or substance, indicate that Suraci “aided, abetted, incited, compelled or coerced” UPSEU, and therefore fails to allege in any way that aiding and abetting occurred.   Def.'s Mem. Supp. Mot. Dismiss, 5.

Because the plaintiff is raising allegations of aiding and abetting for the first time in the present case, Suraci argues, the plaintiff has failed to exhaust her administrative remedies with the CHRO. Suraci argues that exhaustion is a necessary prerequisite to the court's acquiring subject matter jurisdiction, that none of the exceptions to the exhaustion doctrine in the employment discrimination context apply, and that counts three and four therefore must be dismissed.   Suraci further argues that the only relevant exception to the exhaustion doctrine, the “allowance of loose pleading” exception, is inapplicable because it applies only to parties who were not represented by counsel in connection with their complaint to the CHRO and the plaintiff was represented by counsel at all relevant times.   Finally, Suraci argues that even if the plaintiff had not been represented by counsel, the exception would not apply because claims of aiding and abetting are not reasonably related to the claims that were brought before the CHRO.

The plaintiff filed a memorandum of law in opposition on July 12, 2013.   The plaintiff acknowledges that she did not cite § 46a–60(a)(5) in the CHRO complaint, but argues that she may raise it in the present case because it grows out of the original charge of discrimination filed with the CHRO. The plaintiff argues that the allegations in her CHRO complaint, specifically that Suraci, who was her supervisor, harassed her, retaliated against her, and ultimately played a role in her termination by UPSEU, would lead the CHRO to investigate aiding and abetting between Suraci and UPSEU, and therefore the claims of retaliation and aiding and abetting are “reasonably related” for purposes of exhaustion.

DISCUSSION

This case involves allegations under the Connecticut Fair Employment Practices Act, which is codified in General Statutes § 46a–60 et seq.   Connecticut courts routinely look to federal precedent for guidance in interpreting this statutory scheme.  “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 ․ and it has sought to keep our state law consistent with federal law in this area.”  (Citations omitted.)   Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009).  “[I]n matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance.”   Id. “In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to [General Statutes] § 46a–60.”  Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998).

“[W]hen a plaintiff fail[s] to follow the administrative route prescribed by the legislature for his claim ․ the plaintiff fails to exhaust his or her administrative remedies.”  (Citation omitted;  internal quotation marks omitted.)  Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 169, 745 A.2d 178 (2000).  “[T]he exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction ․” (Internal quotation marks omitted.)  Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).  “Under our 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.)  Id.

There are exceptions to the exhaustion doctrine in the employment discrimination law arena.  “Notwithstanding the important public policy considerations underlying the exhaustion requirement, this court has carved out several exceptions from the exhaustion doctrine ․ although only infrequently and only for narrowly defined purposes.”  (Citation omitted;  internal quotation marks omitted.)  Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009).  “The doctrine of exhaustion is ․ subject to certain narrowly circumscribed but well recognized exceptions.”  Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990).  “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 ․” Tatro v. Cascades Boxboard Group, Superior Court, judicial district of New London, Docket No. CV–09–4009597–S (April 22, 2010, Martin, J.), citing Ware v. State, supra, 118 Conn.App. 82.   Similarly, the Second Circuit Court of Appeals has held that “claims that were not asserted before the [Equal Employment Opportunity Commission, the federal administrative counterpart to the CHRO] may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency.”  (Internal quotation marks omitted.)  Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir.2003).

“Reasonable relation” is therefore the measuring stick used by both the Second Circuit Court of Appeals and Connecticut courts to determine whether they should hear claims not explicitly raised in an administrative complaint but later raised in a legal action.   The courts recognize three ways in which allegations not raised in an administrative complaint but raised in a legal action are “reasonably related” to the allegations of the administrative complaint for purposes of the exhaustion doctrine.   The first involves “a claim alleging retaliation by an employer against an employee for filing an EEOC charge ․” (Internal quotation marks omitted.)  Deravin v. Kerik, supra, 335 F.3d 201 n.3, quoting Butts v. New York Dept. of Housing, 990 F.2d 1397, 1402 (2d Cir.1993), superseded by statute on other grounds as recognized by Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir.1998).   The second involves “a claim where the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.”  (Internal quotation marks omitted.)  Deravin v. Kerik, supra, 201 n.3.

The third exception, which is the exception relevant to the present case, involves “claims not raised in the charge ․ where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.”  (Internal quotation marks omitted.)  Butts v. New York Dept. of Housing, supra, 990 F.2d 1402.   The court in Deravin v. Kerik, supra, 335 F.3d 201, explained the rationale for this exception as follows:  “This exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering.”  (Internal quotation marks omitted.)  Id. This exception recognizes the fact that “precise pleading is not required for Title VII exhaustion purposes ․” (Internal quotation marks omitted.)  Id., 202.  “[A] plaintiff need not use precise terms to classify the type of discrimination alleged before the administrative agency as long as the facts alleged give the agency adequate notice to investigate discrimination on [all] bases.”  (Internal quotation marks omitted.)  Collins v. University of Bridgeport, 781 F.Sup.2d. 59, 63 (D.Conn.2011).

There are two issues before the court.   First, the court must determine whether the fact that the plaintiff was represented by counsel while filing the CHRO complaint forecloses her from asserting the “loose pleading” exception to the exhaustion doctrine.   If it does not, the court must then determine whether a claim of aiding and abetting can reasonably be expected to grow out of the CHRO complaint.

In the present case, Suraci relies on Collins v. University of Bridgeport, supra, 781 F.Sup.2d 59, for the proposition that a party must have proceeded pro se before the administrative agency to benefit from the “loose pleading” exception to the exhaustion doctrine.   Suraci cites the following language from Collins:  “Because Collins' affidavit to the CHRO indicates that at the time of her CHRO complaint she was represented by [an attorney] ․ and there is no record that she made any effort to amend or correct her CHRO complaint after the CHRO issued its ruling, the ‘allowance of loose pleading’ principle is inapplicable.”  Id., 64–65.   Suraci argues that this passage establishes that the underlying purpose of the “loose pleading” exception is to give special consideration to pro se claimants who were not represented by counsel, but that the exception is inapplicable if the claimant had been represented by counsel.

In Collins, the plaintiff brought an action alleging, inter alia, that the University of Bridgeport denied her full and equal accommodations in a place of public accommodation because of her age.  Id., 62.   The university moved to dismiss the plaintiff's amended complaint, arguing, inter alia, that the plaintiff failed to exhaust her administrative remedies because her CHRO complaint did not contain allegations of age discrimination by a place of public accommodation.  Id. The court granted the motion to dismiss.   The court explained that the plaintiff's CHRO complaint raised claims under §§ 46a–58(a) and 46a–60(a), both of which pertain to employment discrimination, but did not contain a claim under §§ 46a–63 and 46a–64, the relevant statutes encompassing discrimination in a place of public accommodation.  Id., 64.   The court stated:  “Collins is not alleging different forms of employment discrimination;  her lawsuit alleges an entirely different kind of discrimination—discrimination in a place of public accommodation, which her complaint before the CHRO did not encompass ․ Because Collins failed to allege public-accommodation discrimination under Sections 46a–63 and 46a–54, and her allegations of employment discrimination ․ are not ‘reasonably related’ to claims of discrimination in public accommodations, she failed to exhaust her administrative remedies ․” Id., 64–65.   The court continued:  “It is equally clear from the CHRO's Merit Assessment Review of Collins' claim ․ that the scope of the CHRO's analysis did not contemplate the existence of any claim of age discrimination by a place of public accommodation ․ Because the CHRO focused exclusively on the fact that Collins did not work for the University, the scope of the CHRO's investigation could not reasonably have been expected to include whether the University was a place of public accommodation and whether, as such, it discriminated against Collins on the basis of her age.”  Id., 64.

Thus, the court's dicta in Collins relied on by Suraci was not the dispositive rationale.   The court engaged in a “reasonable relation” analysis, determined that the plaintiff had not exhausted her administrative remedies, and dismissed the action accordingly.   At no point did the court proclaim that parties represented by counsel are absolutely and universally precluded from benefitting from the “loose pleading” exception.

Contrary to Suraci's argument, representation by counsel in connection with the filing of a complaint with an administrative agency does not foreclose a party from the benefit of the “loose pleading” exception to the exhaustion doctrine in subsequent court proceedings.   In fact, several federal district court decisions within the Second Circuit have addressed this argument explicitly and have squarely rejected it.   See, e.g., Chen–Oster v. Goldman, Sachs & Co., United States District Court, No. 10 Civ. 6950(LBS)(JCF) (S.D.N.Y. January 10, 2012) (“Defendants argue that the foregoing reference to ‘employees without the benefit of counsel’ means that this exception is only available to plaintiffs who filed their EEOC charges without the advice of counsel.   We disagree ․ [W]e must therefore reject Defendants' argument that the exception is not available to plaintiffs who are represented by counsel when they file an EEOC charge”);  Alexander v. Turner Corp., United States District Court, No. 00 Civ. 4677(HB) (S.D.N.Y. January 4, 2001) (n.5) (“[A]lthough plaintiffs who completed their EEOC forms pro se are deserving of the most leniency in the assessment of their pleadings, the presence of counsel does not obviate the need for a somewhat broad reading of EEOC charges”);  Murray v. Board of Education, 984 F.Sup. 169, 177 (S.D.N.Y.1997) (“[T]he Second Circuit never has made the application of the loose pleading standard contingent on an EEOC charge actually having been filed pro se.  [The plaintiff] thus receives the benefit of loose pleading despite having been assisted by counsel in preparing and filing her EEOC charge.”   [Emphasis in original.] )   Accordingly, representation by counsel does not bar the plaintiff from asserting the “allowance of loose pleading” exception to the exhaustion doctrine in the present case.

The issue thus becomes whether the allegations in the CHRO complaint are “reasonably related” to the allegations raised for the first time in the operative complaint.   The plaintiff alleged violations of General Statutes §§ 46a–60(a)(1) and 46a–60(a)(4) in the CHRO complaint, which concern allegations of sexual discrimination and retaliatory discharge, respectively.   The motion to dismiss is directed at counts three and four of the plaintiff's complaint, which allege violations of § 46a–60(a)(5).   This provision concerns allegations of aiding and abetting.   The question is whether sexual discrimination and retaliation are “reasonably related” to aiding and abetting for purposes of the exhaustion doctrine.

The courts read administrative complaints broadly to ascertain whether the allegations in them are “reasonably related” to those in a subsequent lawsuit.  “[I]t is [the] substance of the charge and not its label that controls.”  Alonzo v. Chase Manhattan Bank, N.A., 25 F.Sup.2d 455, 458 (S.D.N.Y.1998).  “In determining whether a particular claim is reasonably related to the plaintiff's EEOC complaint, [w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.”  (Internal quotation marks omitted.)  Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir.1992).  “In determining whether claims are reasonably related, the focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving.”  (Internal quotation marks omitted.)   Deravin v. Kerik, supra, 335 F.3d 201.  “[T]he inquiry into whether a claim has been sufficiently exhausted must focus on the factual allegations made in the charge itself, describing the discriminatory conduct about which a plaintiff is grieving.”  Freeman v. Oakland Unifield School District, 291 F.3d 632, 637 (9th Cir.2002).   That said, in order for allegations “to serve as predicates for [other] allegations in the complaint,” the predicate allegation must be “[sufficiently] specific to enable the EEOC to investigate it.”   See Butts v. New York Dept. of Housing, supra, 990 F.2d 1403.   The underlying allegations must be “[capable] of inviting a meaningful EEOC response ․” Id.

In the present case, the plaintiff's CHRO complaint describes Suraci's alleged conduct, including sexual advances and innuendo.   In the CHRO complaint, the plaintiff alleges that as a result of Suraci's conduct, she filed a formal internal complaint to UPSEU.   CHRO Compl., ¶ 5.   The plaintiff alleges that prior to filing this internal complaint, UPSEU was aware of Suraci's conduct.   “On more than one occasion, prior to the filing of my formal written complaint, I complained about Mr. Suraci's conduct to the President of the UPSEU, and told him that my working conditions had been made intolerable by it.”   CHRO Compl., ¶ 6.   The plaintiff alleges that after filing complaints against Suraci, UPSEU “increased [her] workload unreasonably and unfairly ․ On information and belief, this was done on the basis of false information provided to management by Mr. Suraci about my workload.”  (Emphasis added.)   CHRO Compl., ¶ 44.   The plaintiff alleges that UPSEU submitted a report, purportedly investigating her allegations of harassment against Suraci, which “is a 69–page attack on my job performance, riddled with lies and misstatements, a great many of which are based on information solicited from [Suraci].”  (Emphasis added.)   CHRO Compl., ¶ 47.   The plaintiff also alleges that Suraci “misdirected an email he intended to send to UPSEU's president, Kevin Boyle, to me, apparently by mistake.   This message ․ made it clear that [Suraci] had been engaged in an ongoing campaign to convey misinformation to UPSEU about my job performance in an effort to force me out of my position.”  (Emphasis added.)   CHRO Compl., ¶ 40.   Finally, the plaintiff explicitly alleges that she has “been made physically and emotionally ill by UPSEU's and Mr. Suraci's conduct ․” CHRO Compl., ¶ 7.

The substance of the plaintiff's allegations is that Suraci's conduct was instrumental to UPSEU's alleged discriminatory acts.   Given these allegations, it is reasonable to conclude that the plaintiff's allegations in the CHRO complaint gave the CHRO adequate notice to investigate whether Suraci was aiding and abetting UPSEU's discriminatory conduct.   Accordingly, the plaintiff's allegations in the CHRO complaint are “reasonably related” to the allegations in the operative complaint.

CONCLUSION

For the foregoing reasons, Suraci's motion to dismiss counts three and four of the plaintiff's complaint is denied.

Domnarski, J.

FOOTNOTES

FN1. General Statutes § 46a–60 provides in relevant part:  “(a) It shall be a discriminatory practice in violation of this section ․ (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges or employment because of the individual's ․ sex ․* * * *(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding ․.  FN1. General Statutes § 46a–60 provides in relevant part:  “(a) It shall be a discriminatory practice in violation of this section ․ (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges or employment because of the individual's ․ sex ․* * * *(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding ․

FN2. General Statutes § 46a–60 provides in relevant part:  “(a) It shall be a discriminatory practice in violation of this section ․ (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so ․”.  FN2. General Statutes § 46a–60 provides in relevant part:  “(a) It shall be a discriminatory practice in violation of this section ․ (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so ․”

Domnarski, Edward S., J.