Michael F. Patrick v. City of Groton et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION (# 103) TO DISMISS CLAIM OF DISCRIMINATION BASED ON PERCEIVED DISABILITY AND TO DISMISS COUNT THREE AGAINST LORRAINE E. SCHEETZ

The November 13, 2014 complaint of the plaintiff Michael F. Patrick alleging several violations of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a–58 et seq., was amended on December 17, 2014.   The present motion concerns count one, for alleged violation of § 46a–60(a)(1) by, according to paragraph 54, age discrimination.   The amended complaint adds eight words of substance—”and perceived physical disability,” repeated twice—to paragraph 54 of count one.

On January 7, 2015, the defendants, the City of Groton (“the city”) and Lorraine E. Scheetz (“Scheetz”), moved to dismiss the plaintiff's perceived physical disability discrimination claim and Scheetz moved to dismiss count three of the complaint, which claims violation by her of § 46a–60(a)(5) by aiding and abetting the city's discrimination.   The basis of the motion is the plaintiff's failure to exhaust his administrative remedies.   On January 21, 2015, the plaintiff filed a brief in opposition to the motion.   On February 11, 2015, the defendants filed a reply brief.   The motion was argued on March 9, 2015.   On July 7, 2015, the court issued an order granting what it erroneously ¹ perceived as only the city's motion to dismiss the perceived physical disability claim count one and granting Scheetz's motion to dismiss count three.

FACTS

When the court's jurisdiction is challenged by a motion to dismiss, the court must take the facts to be those alleged in, and necessarily implied by, the challenged pleading and construe those facts in the manner most favorable to the pleader.   Legassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   In this light, the basic facts relevant to the present motion are as follows.

The plaintiff, whose fifty-sixth birthday was during the period of the alleged discrimination against him, was employed by the city from 1985 to 2004 as a laborer in the Public Works Department.   In 1997, the plaintiff suffered an atrial fibrillation episode involving an irregular heartbeat.   He was hospitalized for that and missed several weeks of work.   He returned to his job as a laborer and was able to perform the arduous duties of that job with no restrictions or accommodations.   The plaintiff has experience in a variety of skills including operating construction equipment and carpentry.   He performed his duties satisfactorily and was never disciplined.

On or about September 6, 2004, the plaintiff transferred from his laborer position with the city to a non-union warehouseperson position at Thames Valley Communications, Inc. (TVC), a municipal telecommunications enterprise established by the city.   In that job, too, the plaintiff met or exceeded performance expectations and received commendations on his performance.

In early 2013, the city sold TVC to a private company.   At that time, the city “extended recall rights for City positions to non-union separating City employees” including a different process, compared to “outside candidates,” for former employees to regain employment by the city, including eighteen months (from the date of layoff) of recall opportunities based on seniority, i.e., the amount of prior permanent and full-time employment by the city—approximately 28 years in the plaintiff's case.

On February 1, 2013, the plaintiff was laid off by TVC and rehired by TVC's new owner.   On September 26, 2014, the plaintiff was laid off from his warehouseperson position with TVC's new owner.   By virtue of the “recall rights for City positions,” the plaintiff was eligible for recall opportunities for employment with the city.   The plaintiff applied for a number of available positions with the city for which he was qualified but, despite his 28 years' seniority, was never granted an interview, let alone rehired.

On February 14, 2014, the plaintiff filed a complaint—an affidavit of illegal discriminatory practice—with the state Commission on Human Rights and Opportunities (CHRO).²  The city was listed as the sole respondent.   As the CHRO found, the CHRO complaint alleges violations of § 46a–60, subsections (a)(1), the subject of count one in this case;  (a)(4), the subject of count two, which is not attacked by the present motion;  and (a)(5), aiding and abetting discrimination, the subject of count three.   The CHRO issued a release of jurisdiction on September 30, 2014.

DISCUSSION

Practice Book § 10–30(a) provides in relevant part:  “A motion to dismiss shall be used to assert:  (1) lack of jurisdiction over the subject matter ․” A motion to dismiss essentially asserts that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.   Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).

Subject matter jurisdiction is the authority of the court to adjudicate a claim.  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).   Subject matter jurisdiction may not be conferred by agreement of the parties and its lack may not be waived.  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).

It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has jurisdiction.  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).   That burden is lightened by the rule that, in determining whether a court has subject matter jurisdiction, every appropriate presumption favors finding such jurisdiction.   See Keller v. Beckenstein, supra, 305 Conn. 531.   That presumption underlies the law, stated above, that the court must take the facts to be those alleged and necessarily implied, construed in the manner most favorable to the pleader.  Lagassey v. State, supra, 268 Conn. 736.   On the other hand, neither conclusions of law nor opinions are taken as true.  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

Turning to the plaintiff's perceived physical disability claim, which is part of count one, the defendants argue it should be dismissed because the plaintiff's failure to include that claim in his CHRO complaint constitutes a failure to exhaust his administrative remedies.  “CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the [CHRO]. It is the [CHRO] that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 746, 84 A.3d 895 (2014).

That the CHRO complaint did not state perceived physical disability as a ground of illegal discrimination is undisputed.   Regarding count one, the court finds that the plaintiff only claimed age discrimination in violation of § 46a–60(a)(1):  the CHRO form included boxes for age and physical disability discrimination, among others, and the plaintiff only checked the age discrimination box.   There was no box on the CHRO form for perceived physical disability:  that ground of discrimination is not stated in § 46a–60(a)(1) and, when the plaintiff filed the CHRO complaint, was not recognized in Connecticut.   See Desrosiers v. Diageo North America, Inc., 137 Conn.App. 446, 456–57, 49 A.3d 233 (2012), rev'd, 314 Conn. 773, 105 A.3d 103 (December 16, 2014).   The plaintiff claims that his complaint provided the CHRO with sufficient notice of his claim of discrimination on the basis of perceived physical disability to trigger the CHRO's duty to investigate that claim.   Therefore, the plaintiff claims that he did exhaust his administrative remedies.

“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 Appellate Court has recognized a “reasonably related exception” to the exhaustion of administrative remedies doctrine.  Ware v. State, 118 Conn.App. 65, 83, 983 A.2d 853 (2009).   The exception is also known as the “loose pleading” exception.   See id.;   see also Resnick v. United Public Service Employees Union, Superior Court, judicial district of Middlesex, Docket No. CV–13–6009166–S (October 23, 2013) (57 Conn. L. Rptr. 89, 91).   In the present context, a claim is considered reasonably related if the conduct of which the CHRO petitioner complains is within the scope of the investigation that would reasonably be expected based on his CHRO complaint.   See Ware v. State, supra, 118 Conn.App. 82–83.

The plaintiff's amended complaint was filed one day after our Supreme Court reversed the Appellate Court's Desrosier decision, supra, and held that § 46a–60(a)(1) prohibits employers from discriminating based on perceived physical disabilities.  Desrosiers v. Diageo North America, Inc., supra, 314 Conn. 773, 794.³  The Supreme Court's decision neither relieved the plaintiff's burden of showing the CHRO would reasonably be expected to investigate his perceived physical disability claim nor, of course, of having to exhaust his CHRO remedy.

The plaintiff's CHRO complaint did allege that he suffered an cardiac episode in 1997, and that one city foreman told another that he did not want to hire the plaintiff because of the plaintiff's “age and heart condition.”   Those allegations are not enough to alert the CHRO that it should investigate a perceived physical disability claim, both because, in context, the plaintiff's § 46a–60(a)(1) claim was limited to age discrimination and because there was no legally recognized claim for discrimination based on perceived physical disability in September of 2014, when the CHRO released jurisdiction to bring this suit.

Turning to count three, against Scheetz for aiding and abetting a discriminatory practice in violation of § 46a–60(a)(5), Scheetz claims the court lacks subject matter jurisdiction because she was not named as a respondent in the CHRO complaint.   The plaintiff counters that the CHRO had adequate notice of an alleged violation of § 46a–60(a)(5) by Scheetz based on the allegations regarding Scheetz's actions as the city's Human Resources Director and because CHRO staff checked the box for § 46a–60(a)(5) on the CHRO form.   Again, the plaintiff invokes the reasonably related exception to the exhaustion doctrine.   This exception, however, confers subject matter jurisdiction over claims not expressly asserted in an administrative proceeding.   See Chassie v. Sprigs & Twigs, Inc., Superior Court, judicial district of New London, Docket No. CV–14–6020965–S (November 11, 2014) [59 Conn. L. Rptr. 350].   Where a plaintiff brings an action against a party who was not named as a respondent in the administrative proceeding, the identity of interests exception applies.  Id. Accordingly, the court lacks subject matter jurisdiction over count three unless its claim is within the “reasonably related” exception and Scheetz fits the identity of interests exception.   Courts have consistently refused to find the latter exception applies when the plaintiff was represented by counsel before the CHRO. See Heyward v. State, Superior Court, judicial district of Waterbury, Docket No. CV–13–6019925–S (February 4, 2014).   Here, as in Chassie v. Sprigs & Twigs, Inc., supra, the court apprehends no reason to depart from precedent that the identity of interest exception is unavailable to a plaintiff who was represented by counsel before the CHRO, as the plaintiff was.   For that reason alone, count three must be dismissed.

On the merits, the identity of interests exception permits an action against a party not named as a respondent in the administrative proceeding only if the underlying purposes of the doctrine of exhaustion of administrative remedies—i.e., that the administrative agency's jurisdiction is protected and the courts are relieved of premature claims—are otherwise satisfied.   See Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 213, 105 A.3d 210 (2014).   The court cannot conclude that those purposes were met sufficiently to find the identity of interests exception applies.   The plaintiff's allegations in count three that Scheetz aided and abetted the discriminatory conduct of the city in its repeated failure to grant the plaintiff interviews and its repeated rejection of his candidacy for positions and by failing to investigate his allegations of discriminatory hiring practices and of discriminatory remarks by one of the city's hiring managers were not included in the plaintiff's CHRO complaint.   Scheetz is mentioned only twice in the CHRO complaint—as asking the plaintiff about his work experience and as informing him that he was rejected for a laborer position because he did not have a commercial driver's license.⁴  Neither of these allegations imply, let alone expressly claim, that Scheetz aided and abetted the city's allegedly discriminatory hiring practices.   On the contrary, the plaintiff alleged that foreman Tim Umrysz, not Scheetz, made the hiring decision for a laborer position.   Therefore, for purposes of both the identity of interests exception and the “reasonably related” claim exception, count three is not within the scope of the investigation that would reasonably be expected of CHRO based in the CHRO complaint.

For the foregoing reasons, that part of count one claiming discrimination based on perceived physical disability and count three in its entirety are dismissed for lack of subject matter jurisdiction.

Cole–Chu, J.

FOOTNOTES

FN1. On July 10, 2015, the defendants moved for clarification of the July 7, 2015, order.   This memorandum on the motion to dismiss also grants the motion for clarification..  FN1. On July 10, 2015, the defendants moved for clarification of the July 7, 2015, order.   This memorandum on the motion to dismiss also grants the motion for clarification.

FN2. The complaint consists of a one-page “Affidavit of Illegal Discriminatory Practice” form (“the CHRO form,” with an administrative form as a second page) and a text affidavit, collectively referred to here as “the CHRO complaint.”.  FN2. The complaint consists of a one-page “Affidavit of Illegal Discriminatory Practice” form (“the CHRO form,” with an administrative form as a second page) and a text affidavit, collectively referred to here as “the CHRO complaint.”

FN3. The Supreme Court reasoned that, though § 46a–60(a)(1) did not expressly protect an employee from discrimination based on a perceived physical disability, “a literal application of the statutory language would lead to a bizarre result.   Namely, under the plain language of § 46a–60(a)(1), if an employee has a chronic disease, the employer may not discharge the employee on that basis.   If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of § 46a–60(a)(1) do not protect the employee from discharge on that basis, despite the fact that the employer's action, in both cases, was premised on the same discriminatory purpose.   Similarly ․ an employee who is discharged because his employer believes a rumor that he has a chronic impairment can pursue a cause of action, but only if the rumor is true and the employee actually has the chronic impairment.   If the rumor is false, and the employee does not have the impairment, but is merely believed to have the impairment, the employee has no recourse ․” Desrosiers v. Diageo North America, Inc., supra, 785..  FN3. The Supreme Court reasoned that, though § 46a–60(a)(1) did not expressly protect an employee from discrimination based on a perceived physical disability, “a literal application of the statutory language would lead to a bizarre result.   Namely, under the plain language of § 46a–60(a)(1), if an employee has a chronic disease, the employer may not discharge the employee on that basis.   If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of § 46a–60(a)(1) do not protect the employee from discharge on that basis, despite the fact that the employer's action, in both cases, was premised on the same discriminatory purpose.   Similarly ․ an employee who is discharged because his employer believes a rumor that he has a chronic impairment can pursue a cause of action, but only if the rumor is true and the employee actually has the chronic impairment.   If the rumor is false, and the employee does not have the impairment, but is merely believed to have the impairment, the employee has no recourse ․” Desrosiers v. Diageo North America, Inc., supra, 785.

FN4. The CHRO complaint does not allege that Scheetz knew that the commercial driver's license was waived for other, let alone only younger, candidates for employment, as the plaintiff claims in paragraphs 42 and 43 of the CHRO complaint he believes to be true..  FN4. The CHRO complaint does not allege that Scheetz knew that the commercial driver's license was waived for other, let alone only younger, candidates for employment, as the plaintiff claims in paragraphs 42 and 43 of the CHRO complaint he believes to be true.

Cole–Chu, Leeland J., J.