Judith Caldwell v. Area Cooperative Educational Services, Educational Center for the Arts (2014)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 109)

Pursuant to Connecticut Practice Book § 17–44 et seq., the defendant, Area Cooperative Educational Services, Educational Center for the Arts moves for summary judgment on the plaintiffs, Judith Caldwell complaint dated June 4, 2012 in which she alleges age discrimination and retaliation in violation of the Connecticut Fair Employment Practices Act (“CFEPA), Connecticut General Statutes § 46a–60(a)(1) and (4).   The defendant claims that summary judgment should be granted for the following reasons:

1. Plaintiff's failure to exhaust her administrative remedies by failing to raise age discrimination and/or retaliation during a hearing conducted pursuant to Connecticut General Statutes § 10–151(c) which defendant asserts deprives the court of subject matter jurisdiction.

2. The findings of the Subcommittee of the Governing Board of ACES made subsequent to the hearings conducted pursuant to Connecticut General Statutes § 10–151(c) are binding on the court pursuant to the doctrine of collateral estoppel.

3. Plaintiff's claims are, in part, untimely.

4. Plaintiff's age discrimination claim brought pursuant to the CFEPA, Connecticut General Statutes § 46a–60(a)(1) must fail because there is no inference that plaintiff was nonrenewed because of her age.

5. Even if plaintiff can establish a prima facie case, her age discrimination still fails because there is no evidence that the legitimate non-discriminatory reason is pretext for discrimination.

6. Plaintiff's retaliation claim brought pursuant to the CFEPA, Connecticut General Statutes § 46a–60(a)(4) must fail because plaintiff did not engage in any protected activity.

7. Even if plaintiff did engage in protected activity, her retaliation claim must fail because there is no causal connection between the protected activity and plaintiff's nonrenewal.

8. Even if plaintiff did engage in protected activity and a causal connection exists, plaintiff's retaliation claim must because there is no evidence that the legitimate non-retaliatory reason is pretext for retaliation.

Defendant thus asserts there is no genuine issue of material fact for a jury to decide and, therefore, summary judgment must be granted to the defendant.

The plaintiff objects to the motion and argues “there clearly exist disputed issues of material fact,” and that the plaintiff is not required to exhaust all administrative remedies.   Both parties submitted a memorandum.   Oral argument on the motion was heard on December 16, 2013.

Nature of the Proceedings

The court will first address the exhaustion of administrative remedies doctrine as it relates to this case.   With regard to the exhaustion of administrative remedies doctrine, the issue presented is whether the plaintiff must raise allegations of age discrimination both before the defendant school board during her statutory mandated nonrenewal hearing under the Teacher Tenure Act, codified in § 10–51 et seq. of the Connecticut General Statutes, and before the Connecticut Commission on Human Rights and Opportunities to avoid dismissal on exhaustion of administrative remedies guards.

Thereafter, the court will address the other grounds alleged by the defendant that it claims warrant an order of summary judgment.

I.

Subject Matter Jurisdiction

The defendant, Area Cooperative Educational Services, is a magnet school that employed the plaintiff as a nontenured music teacher.   Apparently, the defendant issued the plaintiff a letter informing her of the defendant's decision not to renew her teaching contract.   The plaintiff subsequently requested, through counsel, a statement of reasons for her nonrenewal pursuant to the Teacher Tenure Act (TTA).   Subsequently, the plaintiff, again through counsel, requested a public hearing pursuant to the TTA The defendant purportedly stated, both at the hearing and in writing, that the plaintiff's incompetence, insubordination, and disrespectful demeanor were the reasons she was not being renewed.   The defendant asserts that the plaintiff was represented by counsel at the hearing and had the opportunity to present any evidence supporting her position.   The defendant further argues that at no time—either during the hearing or in post-hearing briefs—did the plaintiff argue that her nonrenewal was arbitrary and capricious or, more importantly, that the defendant's decision not to renew was based on her age.   Because the plaintiff failed to raise age discrimination at her nonrenewal hearing, the defendant maintains that the plaintiff failed to exhaust her administrative remedies.

The plaintiff submits that she has exhausted her administrative remedies.   The plaintiff asserts that after her hearing, she filed a complaint of age discrimination and retaliation with the Connecticut Commission on Human Rights and Opportunities (CHRO).   She argues that she obtained a release of jurisdiction from the CHRO and subsequently filed the present action.   The plaintiff argues that in order to exhaust her administrative remedies in the present case—one sounding in age discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA), codified in General Statutes § 46a–51 et seq.—all she has to do is file a complaint with the CHRO and obtain a release of jurisdiction pursuant to CFEPA.   Having done that, the plaintiff maintains that she has satisfied the exhaustion doctrine.

II

PROCEDURAL CONSIDERATIONS:  PROPRIETY OF THE USE OF A MOTION FOR SUMMARY JUDGMENT

As a preliminary matter, the court must address whether a motion for summary judgment is the appropriate mechanism to contest subject matter jurisdiction.   The standard for summary judgment is well established.  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17–45.   “Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

The defendant argues that the plaintiff has failed to exhaust her administrative remedies.   Challenges on exhaustion grounds are challenges to the court's subject matter jurisdiction.  “[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.

Normally, the motion to dismiss, not the motion for summary judgment, is the proper procedural vehicle to carry a subject matter jurisdiction challenge.   “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).  “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).   Therefore, because the exhaustion doctrine implicates subject matter jurisdiction, a motion to dismiss is normally the proper vehicle to bring an exhaustion claim.

Nevertheless, because “[a]ny claim of lack of jurisdiction over the subject matter cannot be waived”;  Practice Book § 10–33;  and because subject matter jurisdiction “may be raised by a party ․ at any stage of the proceedings, including on appeal”;  (emphasis added;  internal quotation marks omitted) Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012);  it is appropriate to consider the exhaustion doctrine by way of a motion for summary judgment.   See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court”).   See also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003) (“[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  [Emphasis added;  internal quotation marks omitted] ).   Consequently, the court concludes that the defendant's use of a motion for summary judgment on exhaustion grounds is procedurally proper.

III

EXHAUSTION OF ADMINISTRATIVE REMEDIES

“[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).  “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.)  Levine v. Sterling, supra, 300 Conn. 528.

“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions.”   Mendillo v. Board of Education, 246 Conn. 456, 466, 717 A.2d 1177 (1998).   “Where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the issue that the appeal was designed to test.”   Murphy v. Young, 44 Conn.App. 677, 682, 692 A.2d 403 (1997).  “An administrative remedy is adequate [for purposes of exhaustion] when it provides the plaintiff with the relief that she seeks and a mechanism for judicial review of the administrative decision.”  Id., 681.   In cases involving the TTA, the Connecticut Supreme Court has held that “failure to request a hearing and to pursue ․ available remedies is ․ fatal to [a plaintiff's] cause of action.”  LaCroix v. Board of Education, 199 Conn. 70, 84, 505 A.2d 1233 (1986).

There are a number of exceptions to the exhaustion doctrine.  “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;  emphasis added;  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).  “Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine ․ We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes.”  (Citation omitted;  internal quotation marks omitted.)  Mendillo v. Board of Education, supra, 246 Conn. 467.

“One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate.”   (Internal quotation marks omitted.)  Id. “We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if ․ recourse to the administrative remedy would be futile or inadequate ․” (Internal quotation marks omitted.)   Johnson v. Statewide Grievance Committee, 248 Conn. 87, 103, 726 A.2d 1154 (1999).  “[I]t is futile to seek [an administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.”  (Internal quotation marks omitted.)  Hunt v. Prior, 236 Conn. 421, 433, 673 A.2d 514 (1996).   In the context of the TTA, the Appellate Court has held that “[a]n administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief.”  Mendillo v. Board of Education, supra, 246 Conn. 467.

Another exception to the exhaustion doctrine in the context of the TTA “involves a constitutional challenge to the propriety of the procedures followed by the administrative agency or board.”  LaCroix v. Board of Education, supra, 199 Conn. 79.   The Supreme Court utilizes this exception because “the board of education's ‘total default’ of its obligations under [the TTA] ․ excuse[s] a teacher's failure to follow the administrative remedies under the statute.”  Mendillo v. Board of Education, supra, 246 Conn. 470.   A board of education's “total default relieve[s] the plaintiff of the obligation to pursue further administrative steps, and permit[s] the plaintiff to invoke judicial remedies to vindicate his constitutional rights to due process,” notwithstanding the failure to exhaust.  LaCroix v. Board of Education, supra, 81.

The plaintiff has not alleged that she qualifies for any of the exceptions to the exhaustion requirement.   Instead, she argues that she has exhausted her administrative remedies by filing a CHRO complaint and timely obtaining a release of jurisdiction prior to filing the present action.  “The plaintiff does not concede that she has failed to exhaust her administrative remedies ․ Thus, she points us to no recognized exception to the exhaustion doctrine that could be used to save those counts from dismissal.”  Drahan v. Board of Education, 42 Conn.App. 480, 492 n.13, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).   Accordingly, the court must determine whether she did in fact exhaust her administrative remedies.

IV

THE TEACHER TENURE ACT

The action before the court arises from the defendant's termination of the plaintiff.  “When considering termination of a tenured teacher's employment contract, a school board acts, like an administrative agency, in a quasi-judicial capacity.”  (Emphasis added.)  Rogers v. Board of Education, 252 Conn. 753, 760, 749 A.2d 1173 (2000).   Therefore, the defendant qualifies as an administrative agency in the present case for purposes of the exhaustion doctrine.

“The sole and controlling legislative enactment with respect to the employment and termination of tenured teachers is [the Teacher Tenure] Act.” Murphy v. Young, supra, 44 Conn.App. 680.   The Act is set forth in General Statutes § 10–151 et seq.   The plaintiff never attained tenure, and was therefore a nontenured teacher.   The TTA provides rules and procedures for terminating tenured teachers, but also contains rules and procedures for terminating nontenured teachers.   The pertinent provision for tenured teachers is General Statutes § 10–151(d).¹  The pertinent provision for nontenured teachers is General Statutes § 10–151(c).²

Sections 10–151(c) and (d) contain similar protections for tenured and nontenured teachers.   For instance, both sections permit an aggrieved teacher to request from the school board a statement of the reasons for nonrenewal or termination.   Further, both sections permit the school board to nonrenew or terminate a teacher for any of the six grounds enumerated in § 10–151(d).  Finally, both sections permit an aggrieved teacher to request a hearing before the school board.   Notwithstanding these similarities, § 10–151(d) provides increased protection for tenured teachers.   The difference is primarily a matter of the scope of judicial review available to tenured teachers.   Any tenured teacher aggrieved under § 10–151(d) has a right to judicial review in the Superior Court pursuant to § 10–151(e).³  In contrast, only nontenured teachers terminated for “the reasons enumerated in subdivisions (3) and (4) of subsection (d) ⁴ ․ have a right to appeal in accordance with ․ subsection (e) ․” General Statutes § 10–151(c).  In the present case, the plaintiff was purportedly terminated for incompetence and insubordination, which means she was not entitled to an appeal pursuant to § 10–151(e).

Although the TTA distinguishes between tenured and nontenured teachers, and provides increased protections for tenured teachers, the courts have adopted the reasoning of cases involving tenured teachers when considering disputes over the rights of nontenured teachers.   See Stallworth v. Waterford, Superior Court, judicial district of New London, Docket No. CV 555312 (March 20, 2003, Leuba, J.T.R.) (“Though Mendillo [v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998),] discusses the administrative remedies available to a tenured teacher under General Statutes § 10–151(d), the analysis is nonetheless persuasive in the present cast.  General Statutes § 10–151(c) applies to the termination of teacher who have not attained tenure.   Nontenured teachers ‘may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section ․’ Though it does not contain all of the procedural safeguards of subsection (d), subsection (c) provides for a hearing to review the Board's decision under either scenario to ensure that it was not arbitrary or capricious.” [emphasis added;  footnote omitted] ).   Thus, the principles discussed in cases involving tenured teachers are informative for the court's analysis.

“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 ․ General Statutes § 10–151 [ (d) ] guarantees a tenured teacher the right to a hearing prior to termination in which the teacher can challenge the proposed board action, and § 10–151[ (e) ] provides the right to a direct appeal from an unfavorable decision after the hearing.”  (Citations omitted;  internal quotation marks omitted.)  LaCroix v. Board of Education, supra, 199 Conn. 83–84.  “A tenured teacher's challenge of an allegedly wrongful discharge is governed by and limited to the statutory appeal process provided by § 10–151[ (e) ] ․ Thus, the plaintiff cannot pursue a separate tort claim for wrongful discharge.   Instead, she is limited by the available administrative remedies under § 10–151 ․” (Citations omitted.)  Tomlinson v. Board of Education, 226 Conn. 704, 730, 629 A.2d 333 (1993).  “The Superior Court only obtains jurisdiction over § 10–151 claims after the teacher first resorts to all the appellate procedures in § 10–151 or avails themselves to one of the limited exceptions to the exhaustion doctrine.   This is so because the very purpose of § 10–151 is to ensure that tenured teachers receive due process during termination proceedings and the Superior Court must defer jurisdiction to administrative authorities to allow this to happen.”  (Internal quotation marks omitted.)   Niestemski v. Ramos, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001386–S (November 20, 2008, Bellis, J.) (46 Conn. L. Rptr. 684, 685).  “[I]n the absence of an applicable exception to the exhaustion doctrine, the failure by a tenured teacher to invoke the administrative procedures of § 10–151(d) deprives the court of jurisdiction over a claim of wrongful termination.”  Mendillo v. Board of Education, supra, 246 Conn. 464.

V

THE TEACHER TENURE ACT'S RELATION TO THE CONNECTICUT FAIR EMPLOYMENT PRACTICES ACT

The plaintiff alleges, and the defendant does not deny, that after her termination she filed a complaint with the CHRO. She alleges that she subsequently obtained a release of jurisdiction from the CHRO and filed the present action.   The plaintiff argues that these steps, mandated by CFEPA, demonstrate that she exhausted her administrative remedies and that therefore the motion for summary judgment should be denied.

CFEPA is codified in General Statutes § 46a–51 et seq.  Section 46a–60(a)(1) provides in relevant part:  “It shall be a discriminatory practice in violation of this section ․ (1) For an employer, by the employer or the employer's agent ․ 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 of employment because of the individual's ․ age ․” Section 46a–100 provides in relevant part:  “Any person who has timely filed a complaint with the [CHRO] ․ and who has obtained a release from the commission ․ may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred ․” Failure to follow the procedure provided for in § 46a–100 results in a failure to exhaust administrative remedies and exposes a plaintiff to dismissal.   See Hayes v. Yale–New Haven Hospital, 82 Conn.App. 58, 59 n.2, 842 A.2d 616 (2004) (“we conclude that the [trial] court properly dismissed count nine due to the plaintiff's failure to obtain a release from the commission”).

The interplay between the TTA and CFEPA has received judicial treatment.   In the recent landmark case Langello v. Board of Education, 142 Conn.App. 248, 260, 65 A.3d 1 (2013), the Appellate Court held that “any teacher who is terminated pursuant to the Teacher Tenure Act enjoys the protections of the Fair Employment Practices Act.” Langello involved a tenured teacher in the West Haven school district who suffered from a number of disabilities.   She was terminated pursuant to § 10–151(d) after a series of events called into question her ability to perform the essential functions of her profession.   A dispute arose as to whether she was entitled to protections under both the TTA and CFEPA and whether the court should read the provisions in conjunction with one another.   Recognizing the “public policy that prohibits discrimination on the basis of disabilities,” the court held that “a teacher who is discharged for any of the reasons enumerated in § 10–151(d) must be afforded the protections of § 46a–60.”  Langello v. Board of Education, supra, 260.   The court continued:  “A contrary conclusion—that a tenured teacher who is discharged from her employment because of her disability pursuant to § 10–151(d)(4) is outside of the protections of § 46a–60—would thwart the purpose of the Fair Employment Practices Act.” Id. This principle was repeated in a subsequent Appellate Court case from the same year:  “To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10–151(d) must be afforded the protections of § 46a–60.”  (Emphasis in original;  internal quotation marks omitted.)  Festa v. Board of Education, 145 Conn.App. 103, 113, 73 A.3d 904, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013).   Therefore, in addition to the procedures enumerated in the TTA, litigants aggrieved by a decision of a school board pursuant to the TTA are permitted to pursue remedies under CFEPA as of 2013.

VI

DISCUSSION

There is no dispute in the present case that the plaintiff attended a § 10–151 hearing and filed a complaint with the CHRO. The issue before the court is whether the plaintiff's failure to raise claims of age discrimination during her § 10–151 hearing precludes her, on exhaustion grounds, from pursuing those claims in subsequent CFEPA proceedings before the CHRO and superior court.   The defendant argues that the plaintiff “could have, and should have, challenged the nonrenewal by raising these issues [of age discrimination] during her § 10–151(c) proceedings.”   Def.'s Mem. Supp. Mot. Summ. J., 17.   The plaintiff's “failure to raise age discrimination and/or retaliation during her § 10–151 hearing,” the defendant argues, “deprives this Court of subject matter jurisdiction over the [p]laintiff's CFEPA claims.”   Def.'s Mem. Supp. Mot. Summ. J., 17.

There is abundant case law holding that when a plaintiff fails to raise claims before the CHRO and subsequently raises them in a Superior Court action pursuant to CFEPA, those claims are subject to dismissal.   See Collins v. University of Bridgeport,⁵ 781 F.Sup.2d. 59, 63 (D.Conn.2011) (holding plaintiff's administrative complaint alleging employment discrimination but not discrimination in place of public accommodation subjects latter claim to dismissal under exhaustion doctrine);  Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir.2003) (holding plaintiff not subject to dismissal for failure to explicitly raise race discrimination because plaintiff alleged preferential treatment to Irish–American employees which, read favorably to plaintiff, indicates allegations of racial discrimination).   However, there appears to be no case law addressing whether failure to raise a claim at a hearing before a board of education under the TTA subjects a plaintiff's subsequent CFEPA claims to dismissal on exhaustion grounds.

Typically, a plaintiff will fail to raise an issue before an administrative agency, attempt to bring that claim to the Superior Court pursuant to the underlying statutory framework, and have his/her claim dismissed for failure to exhaust.   Nevertheless, in the present case, the plaintiff allegedly failed to raise age discrimination before the defendant school board pursuant to the TTA's framework, subsequently raised the claim in a lateral move to a separate administrative agency pursuant to CFEPA's separate statutory framework, and now brings that claim before the court pursuant to the latter framework.   Because the Appellate Court held in Langello that “any teacher who is terminated pursuant to the Teacher Tenure Act enjoys the protections of the Fair Employment Practices Act”;  Langello v. Board of Education, supra, 142 Conn.App. 260;  the issue is significant because many teachers aggrieved by a school board under the TTA might have claims of employment discrimination as well.

The court recognizes that arguments exist in support of either position.   The defendant's argument that the plaintiff could and should have raised the discrimination issue during her § 10–151(c) hearing is supported by the case Devlin v. Bennett, 26 Conn.Sup. 102, 213 A.2d 725 (1965).   The plaintiff in that case was a nontenured teacher in Meriden whose contract was nonrenewed.   The issue in that case was whether the plaintiffs § 10–151(c) hearing comported with due process.   In dicta, the court expounded upon the purposes of the hearing and what factors a court should consider in evaluating the propriety of a hearing.   The court stated:  “The statutory requirements of a statement of reasons for nonrenewal and a hearing make it necessary and essential, in order to fulfil the intent and purpose of the statute, that a board of education must exercise a sound and reasonable discretion in making decisions to renew or not to renew the contracts of nontenure, probationary teachers.”  Devlin v. Bennett, supra, 26 Conn.Supp. 110.

The court continued:  “The fundamental purpose of the hearing is to give a probationary teacher who has already been acquainted with the reasons why a board of education has decided not to renew his contract a full and fair opportunity to persuade and convince the board that it is mistaken in that decision.”  (Emphasis added.)  Id., 111.  “The teacher may attempt to answer or rebut the reasons given.   He may attempt to show that the reasons given are mistaken in fact or are insufficient to justify the decision not to renew, and that it should be reversed and the teacher's contract renewed.”  Id. Finally, the court described the inquiry that it must conduct:  “The test which must be applied to this hearing is whether the plaintiff had a reasonable opportunity to hear and to be heard upon the question of the failure of the board to renew his teaching contract and whether the proceedings were conducted in a fair and impartial manner.”  Id., 118.

Because the “fundamental purpose of the hearing” is to give a teacher a “full and fair opportunity to persuade and convince the board that it is mistaken”;  id., 111;  it is arguable that the plaintiff should have brought the employment discrimination claims to the attention of the board during her hearing.   The plaintiff certainly had a “reasonable opportunity ․ to be heard.”  Id., 118.   Nevertheless, she did not avail herself of the opportunity to “show that the reasons given [were] mistaken in fact”;  id., 111;  by alleging and presenting evidence that the reasons given for her nonrenewal were simply pretext for age discrimination.   Having not done this, it would be reasonable to conclude that the plaintiff did not exhaust her administrative remedies.

That said, there are arguments to the contrary as well.   Preliminarily, there is an issue of agency authority.   The case law on exhaustion is clear that “[when] a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.”   (Emphasis added;  internal quotation marks omitted.)  Piteau v. Board of Education, 300 Conn. 667, 678, 15 A.3d 1067 (2011).   In the present case, the disputed wrong is age discrimination.   CFEPA is the statutory framework enacted to redress the “particular wrong” of employment discrimination.   The CHRO, not the school board, is the agency charged with administering CFEPA and redressing employment discrimination.⁶  See, e.g., Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976) (“[i]n the construction of statutes, great deference is to be accorded to the construction given the statute by the agency charged with its enforcement”);  Commission on Human Rights and Opportunities ex rel. Peoples v. Belinsky, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 88061209 (November 8, 1988, Riefberg, J.) (“the decisions of the CHRO, the agency charged with enforcing the anti-discrimination statutes, are entitled to great deference”);  Torres v. Connecticut Commission on Human Rights and Opportunities, Superior Court, judicial district of Fairfield, Docket No. CV 95–0323545–S (March 11, 1999, McWeeny, J.) (“[t]he Connecticut Commission on Human Rights and Opportunities ․ is an agency of the State of Connecticut charged ․ with the investigation and prosecution of discriminatory employment practices in Connecticut” [citations omitted] ).

In fact, if the defendant-board had considered issues of employment discrimination, it is entirely possible that its decision could be exposed to a legal challenge by the plaintiff.   It is a fundamental tenant of administrative law that an agency with a particular expertise, charged by the legislature to carry out the administration of a statute relating to that expertise, must act within the scope of its statutory authority and may not exceed such authority.  “It is well established that an administrative agency possesses no inherent power.   Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function. ”  (Emphasis added;  internal quotation marks omitted.)  Ethics Commission v. Freedom of Information Commission, 302 Conn. 1, 8, 23 A.3d 1211 (2011).  “It is a familiar principle that [an administrative agency] which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.”  (Emphasis added;  internal quotation marks omitted.)  Nizzardo v. State Traffic Commission, 259 Conn. 131, 156, 788 A.2d 1158 (2002).  “In the absence of a grant of authority from the legislature, any action taken by an agency is void.”  (Internal quotation marks omitted.)  Pereira v. State Board of Education, 304 Conn. 1, 41, 37 A.3d 625 (2012).

The defendant, as a school board within the purview of the TTA, is only entitled under Section 10–151(c) to review nonrenewal and termination under the grounds enumerated in Section 10–151(d).⁷  None of these grounds includes employment discrimination.   No where in the TTA is a school board like the defendant permitted to review instances of employment discrimination and remedy them.   Although the Act permits the defendant to “rescind a nonrenewal decision ․ if the board finds such decision to be arbitrary and capricious”;  Section 10–151(c);  the Act does not empower the defendant to “[c]ompile facts concerning discrimination in employment” or “[i]nvestigate and proceed in all cases of discriminatory practices ․” General Statutes §§ 46a–56(a)(2) and (a)(3).   Instead, employment discrimination is the province of the CHRO, as “particularly prescribed”;  Nizzardo v. State Traffic Commission, supra, 259 Conn. 156;  by our legislature in CFEPA.

Considering the holding in Langello that victims of employment discrimination are entitled to review under both the Act and CFEPA, if school boards made decisions on employment discrimination grounds, they could be exposed to challenges that their decisions are void on the ground that they exceeded their statutory mandate.   Applying these principles of administrative law coupled with Connecticut's statutory frameworks, the court concludes that the plaintiff's argument that she only needed to pursue her claims of age discrimination before the CHRO has merit.

In addition, public policy favors permitting the plaintiff to pursue her claim of age discrimination via CFEPA notwithstanding her alleged failure to raise the claim during her § 10–151(c) hearing.   As articulated by the courts in a myriad of decisions at all levels, Connecticut has a strong public policy favoring the prevention, elimination, and amelioration of employment discrimination.   See, e.g., Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 706, 802 A.2d 731 (2002) (“there exists a general public policy in this state to eliminate all forms of invidious discrimination, including sex discrimination”);  Langello v. Board of Education, supra, 142 Conn.App. 258 (“[i]t is axiomatic that Connecticut adheres to a public policy prohibiting discrimination on the basis of disabilities” [Internal quotation marks omitted] );  Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01–0509752–S (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72, 73) (“there is a strong public policy expressed by [CFEPA] prohibiting discrimination on the basis of race, sex or national origin”).   If the court were to rule in favor of the defendant, it would undermine the state's clearly articulated policy by creating a procedural trap that might prevent aggrieved litigants from having their day in court.

Finally, and as stated above, the Connecticut Appellate Court recently held that “a teacher who is discharged for any of the reasons enumerated in § 10–151(d) must be afforded the protections of § 46a–60.”  Langello v. Board of Education, supra, 142 Conn.App. 260.   While there is authority, as described infra, that a plaintiff's allegations before the CHRO must mirror those brought before the Superior Court pursuant to CFEPA, there is no authority that a plaintiff's allegations during a § 10–151(c) or (d) hearing must mirror the allegations raised before the CHRO.⁸

The plain language of § 10–151(c) states that nontenured teachers are entitled to a hearing.   The statute also states, however, that nontenured teachers are not entitled to an appeal of the decision to the superior court pursuant to § 10–151(e) unless they were nonrenewed or terminated for moral misconduct or disability.   In the present case, the plaintiff was purportedly nonrenewed for incompetence and insubordination.   Therefore, her only administrative remedy under the TTA is a hearing before the board.   By invoking her right to a hearing and attending the hearing—both of which are undisputed—the plaintiff pursued the only administrative remedy available to her under the TTA. Having gone to the hearing, the plaintiff exhausted under the TTA and now pursues remedies available under a different statutory scheme.   To preclude the plaintiff from pursuing her rights via CFEPA based on actions taken in a different administrative—and statutory—process, without appellate direction, would nullify the plaintiff's rights under CFEPA, and yield the Appellate Court's holding in Langello superfluous.

Finally, the law on the exhaustion doctrine is clear that “a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding ․” Levine v. Sterling, supra, 300 Conn. 528.   The remedies afforded under the two statutes implicated in the present case are different.   The remedy the plaintiff sought in her § 10–151(c) was a reversal of the decision to nonrenew her contract.   In contrast, the remedy sought in the present case under CFEPA is money damages for employment discrimination.   The plaintiff could not possibly obtain the same remedy under both statutory schemes because each scheme redresses wrongdoing in a distinct way.

VII

REMAINING CLAIMS

The defendant's second claim in support of it's motion for summary judgment is that of collateral estoppel.   The defendant argues that the findings of the subcommittee of the governing Board of Aces made subsequent to hearings concluded pursuant to Connecticut General Statutes § 10–151(c) are binding on this court.

“The fundamental principles underlying the doctrine of collateral estoppel are well established.   The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality ․ Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ․ Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment ․ Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.”  (Internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107 (2002).

“Before collateral estoppel applies [however] there must be an identity of issues between the prior and subsequent proceedings.   To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.”  (Emphasis added.)   Crochiere v. Board of Education, 227 Conn. 333, 345, 630 A.2d 1027 (1993);  see also Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813, 695 A.2d 1010 (1997) “[t]he present case presents a question of issue preclusion, which requires an identity of those issues between the prior and the subsequent proceedings”);  Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991) (“[i]n order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding”).   In other words, “[i]n order for collateral estoppel to apply ․ there must be an identity of the issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation.”  (Emphasis added;  internal quotation marks omitted.)  Connecticut National Bank v. Rytman, 241 Conn. 24, 38, 694 A.2d 1246 (1997).   Simply put, “collateral estoppel has no application in the absence of an identical issue.”  Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 261, 773 A.2d 300 (2001).

Turning to the allegations of the present case, the court concludes that the issue contested in the present case, i.e. whether the plaintiff's age or her prior complaints of age discrimination was a substantial motivating factor in her termination is not identical to the issue before the Governing Board of Aces when it recommended termination.   Thus, collateral estoppel does not apply.

The balance of the defendant's claims must be considered through the general framework of the rules governing summary judgment.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  Rickel v. Komaromi, 144 Conn.App. 775, 779 (2013).

The court is not persuaded the required showing has been met.   The court finds that genuine issues as to material facts exist.  Martinelli v. Fusi, 290 Conn. 347, 354–55 (2009), “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365 (2010).  “Issue finding, rather than issue—determination, is the key to the procedure.”  (Internal quotation marks omitted.)  Bararsso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803 (2004).

For the foregoing reasons, the motion for summary judgment is denied.

Vitale, J.

FOOTNOTES

FN1. General Statutes § 10–151(d) provides in relevant part:  “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons:  (1) Inefficiency, incompetence or ineffectiveness ․ (2) insubordination against reasonable rules of the board of education;  (3) moral misconduct;  (4) disability, as shown by competent medical evidence;  (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified ․ or (6) other due and sufficient cause ․ Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration and give such teacher a statement of the reasons for such consideration of termination.   Not later than ten calendar days after receipt of written notice ․ that contract termination is under consideration, such teacher may file ․ a written request for a hearing.”.  FN1. General Statutes § 10–151(d) provides in relevant part:  “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons:  (1) Inefficiency, incompetence or ineffectiveness ․ (2) insubordination against reasonable rules of the board of education;  (3) moral misconduct;  (4) disability, as shown by competent medical evidence;  (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified ․ or (6) other due and sufficient cause ․ Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration and give such teacher a statement of the reasons for such consideration of termination.   Not later than ten calendar days after receipt of written notice ․ that contract termination is under consideration, such teacher may file ․ a written request for a hearing.”

FN2. General Statutes § 10–151(c) provides in relevant part:  “The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section;  otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by May first in one school year that such contract will not be renewed for the following year.   Upon the teacher's written request ․ a notice of nonrenewal or termination shall be supplemented ․ by a statement of the reason or reasons for such nonrenewal or termination.   Such teacher, upon written request filed with the board of education ․ shall be entitled to a hearing ․ The teacher shall have the right to appear with counsel of the teacher's choice at the hearing ․ The board of education shall rescind a nonrenewal decision only if the board finds such decision to be arbitrary and capricious.   Any such teacher whose contract is terminated for the reasons enumerated in subdivisions (3) and (4) of subsection (d) of this section shall have the right to appeal in accordance with the provisions of subsection (e) of this section.”.  FN2. General Statutes § 10–151(c) provides in relevant part:  “The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section;  otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by May first in one school year that such contract will not be renewed for the following year.   Upon the teacher's written request ․ a notice of nonrenewal or termination shall be supplemented ․ by a statement of the reason or reasons for such nonrenewal or termination.   Such teacher, upon written request filed with the board of education ․ shall be entitled to a hearing ․ The teacher shall have the right to appear with counsel of the teacher's choice at the hearing ․ The board of education shall rescind a nonrenewal decision only if the board finds such decision to be arbitrary and capricious.   Any such teacher whose contract is terminated for the reasons enumerated in subdivisions (3) and (4) of subsection (d) of this section shall have the right to appeal in accordance with the provisions of subsection (e) of this section.”

FN3. Section 10–151(e) provides in relevant part:  “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) ․ may appeal therefrom ․ to the Superior Court.”.  FN3. Section 10–151(e) provides in relevant part:  “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) ․ may appeal therefrom ․ to the Superior Court.”

FN4. Section 10–151(d)(3) provides for termination on the ground of moral misconduct.  Section 10–151(d)(4) provides for termination on the ground of disability, provided competent medical evidence establishing disability is produced..  FN4. Section 10–151(d)(3) provides for termination on the ground of moral misconduct.  Section 10–151(d)(4) provides for termination on the ground of disability, provided competent medical evidence establishing disability is produced.

FN5. Connecticut courts frequently look to federal precedent when interpreting Connecticut antidiscrimination statutes.   See Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009) (“in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance”);  Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998) (“[i]n 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”);  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008) (“we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes”)..  FN5. Connecticut courts frequently look to federal precedent when interpreting Connecticut antidiscrimination statutes.   See Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009) (“in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance”);  Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998) (“[i]n 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”);  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008) (“we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes”).

FN6. General Statutes § 46a–56(a) provides in relevant part:  “The commission shall ․ (2) Compile facts concerning discrimination in employment ․ and ․* * *(3) Investigate and proceed in all cases of discriminatory practices as provided in this chapter ․”.  FN6. General Statutes § 46a–56(a) provides in relevant part:  “The commission shall ․ (2) Compile facts concerning discrimination in employment ․ and ․* * *(3) Investigate and proceed in all cases of discriminatory practices as provided in this chapter ․”

FN7. General Statutes § 10–151(d) provides in relevant part:  “The contract of employment of a teacher ․ may be terminated at any time for one or more of the following reasons:  (1) Inefficiency or incompetence ․;  (2) insubordination against reasonable rules of the board of education;  (3) moral misconduct;  (4) disability, as shown by competent medical evidence;  (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified ․;  or (6) other due and sufficient cause.”.  FN7. General Statutes § 10–151(d) provides in relevant part:  “The contract of employment of a teacher ․ may be terminated at any time for one or more of the following reasons:  (1) Inefficiency or incompetence ․;  (2) insubordination against reasonable rules of the board of education;  (3) moral misconduct;  (4) disability, as shown by competent medical evidence;  (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified ․;  or (6) other due and sufficient cause.”

FN8. The defendant relies on the case Diaco v. Norwalk Public School District, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 10–6007107–S June, 19, 2012 Karazin, J.) [54 Conn. L. Rptr. 218].   The defendant argues that this case stands for the proposition that failure to raise a claim of discrimination during a § 10–151 hearing compels the superior court hearing the claim via an action under CFEPA to dismiss the action on exhaustion grounds.   That was not the dispositive rationale in Diaco.   The Diaco court unambiguously stated:  “The plaintiff did not file a written request for a hearing ․ Accordingly ․ the plaintiff has failed to exhaust the administrative remedies afforded to him under the statute.”  Id. In the present case, it is undisputed that the plaintiff invoked her right to a hearing under the TTA and attended the hearing.   Thus, the two actions are not analogous factually.Although it was not the dispositive rationale, the Diaco court also stated that “the plaintiff's sole remedy to challenge his discharge ․ is the procedures outlined in § 10–151, and that the plaintiff cannot maintain a wrongful discharge cause of action based on a separate statutory scheme such as CFEPA.”  Diaco v. Norwalk Public School District, supra, Superior Court, Docket No. 10–6007107–S.   This is clearly no longer an accurate statement of the law given the Appellate Court's more recent holding in Langello..  FN8. The defendant relies on the case Diaco v. Norwalk Public School District, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 10–6007107–S June, 19, 2012 Karazin, J.) [54 Conn. L. Rptr. 218].   The defendant argues that this case stands for the proposition that failure to raise a claim of discrimination during a § 10–151 hearing compels the superior court hearing the claim via an action under CFEPA to dismiss the action on exhaustion grounds.   That was not the dispositive rationale in Diaco.   The Diaco court unambiguously stated:  “The plaintiff did not file a written request for a hearing ․ Accordingly ․ the plaintiff has failed to exhaust the administrative remedies afforded to him under the statute.”  Id. In the present case, it is undisputed that the plaintiff invoked her right to a hearing under the TTA and attended the hearing.   Thus, the two actions are not analogous factually.Although it was not the dispositive rationale, the Diaco court also stated that “the plaintiff's sole remedy to challenge his discharge ․ is the procedures outlined in § 10–151, and that the plaintiff cannot maintain a wrongful discharge cause of action based on a separate statutory scheme such as CFEPA.”  Diaco v. Norwalk Public School District, supra, Superior Court, Docket No. 10–6007107–S.   This is clearly no longer an accurate statement of the law given the Appellate Court's more recent holding in Langello.

Vitale, Elpedio N., J.