Sidorova v. East Lyme Board of Education

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NATALIA SIDOROVA v. EAST LYME
BOARD OF EDUCATION ET AL.
(AC 36506)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued March 4—officially released August 4, 2015
(Appeal from Superior Court, judicial district of New
London, Devine, J.)
Robert T. Rimmer, for the appellant (plaintiff).
David S. Monastersky, with whom, on the brief, was
Alexandria L. Voccio, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff, Natalia Sidorova, appeals
from the summary judgment rendered in favor of the
defendants, the East Lyme Board of Education (board)
and the town of East Lyme (town), in this action arising
out of the termination of the plaintiff’s employment.
On appeal, the plaintiff claims that the trial court erred
in determining that (1) she lacked standing to pursue
a breach of contract claim alleging violation of the provi-
sions of the collective bargaining agreement
(agreement) between the board and the East Lyme
Teachers’ Association, (2) governmental immunity
applied to the superintendent’s conduct in terminating
the plaintiff, which conduct the court found to be discre-
tionary, and (3) the plaintiff had failed to allege suffi-
cient facts in support of her claims that the defendants
breached their duties of good faith and fair dealing. We
affirm the judgment of the trial court.
The following facts as either alleged in the complaint
or undisputed by the parties are relevant to this appeal.
The plaintiff was employed by the board as a French
teacher in the East Lyme public school system. She was
first hired as a substitute teacher in January, 2003, and
she obtained tenure in 2007. In 2009, the high school’s
principal, John Sullivan, told the plaintiff that she most
likely would be transferred to the middle school the
following year. Following that discussion, a town bud-
get referendum was passed that necessitated school
staff layoffs. On June 8, 2009, the plaintiff was called
to Sullivan’s office, and the superintendent of schools,
Paul Edward Smotas, handed her a letter dated June
4, 2009. In the letter, he notified the plaintiff that her
position had been eliminated and, thus, that her employ-
ment had been terminated. She was not provided
advance notice that her contract was under consider-
ation for termination, and thus she had no opportunity
to discuss the termination prior to its taking effect.
The following procedural history is also relevant. On
June 16, 2010, the plaintiff filed the present action
against the defendants. The operative complaint, the
fourth amended complaint, most recently was amended
on June 3, 2013, and contained twelve counts. Counts
one through four alleged breach of contract,1 counts
five and six alleged intentional infliction of emotional
distress, counts seven and eight alleged negligent inflic-
tion of emotional distress, and counts nine through
twelve alleged breach of the covenant of good faith and
fair dealing. On June 27, 2013, the defendants filed a
revised answer and special defenses. The defendants
subsequently filed a motion for summary judgment
accompanied by a memorandum of law, attached to
which were a number of documents, including excerpts
of the deposition transcripts of the plaintiff, Sullivan,
Smotas, and James D. Lombardo, the successor superin-
tendent. Also attached were, among other documents,
the June, 2009 termination letter and the agreement.
The plaintiff filed an objection to the defendants’ motion
for summary judgment, which was accompanied by a
memorandum of law.2 The defendants filed a reply
memorandum, and the court heard oral argument.
On January 21, 2013, the court issued its memoran-
dum of decision granting the defendants’ motion for
summary judgment as to all counts of the plaintiff’s
complaint. As to counts one through four, the court
determined that the plaintiff lacked standing to enforce
the provisions of the agreement. As to counts five and
six, the court concluded that the defendants were enti-
tled to immunity from liability pursuant to General Stat-
utes § 52-557n (a) (2) (A),3 and that, even if such
immunity were unavailable, there was no genuine issue
of material fact as to whether the defendants’ conduct
was extreme or outrageous as required to support a
claim for intentional infliction of emotional distress.4
As to counts seven and eight, the court concluded that
Smotas’ conduct in terminating the plaintiff’s employ-
ment was discretionary, such that the defendants were
entitled to immunity from liability pursuant to § 52-557n
(a) (2) (B).5 Addressing counts nine through twelve, the
court determined that there was no genuine issue of
material fact as to whether the defendants had engaged
in a bad faith impediment of the plaintiff’s rights as
required to support the claims for breach of the implied
covenant of good faith and fair dealing. It is from this
judgment that the plaintiff appeals.
‘‘We begin with the relevant standard of review con-
cerning motions for summary judgment. In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The test is whether a party would be
entitled to a directed verdict on the same facts. . . .
A motion for summary judgment is properly granted if
it raises at least one legally sufficient defense that would
bar the plaintiff’s claim and involves no triable issue of
fact. . . . Our review of the trial court’s decision to
grant a motion for summary judgment is plenary. . . .
‘‘[Practice Book § 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . Once the moving party has presented evidence
in support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue
. . . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book [§ 17-45].’’ (Citation omitted; inter-
nal quotation marks omitted.) Jahn v. Board of Educa-
tion, 152 Conn. App. 652, 657, 99 A.3d 1230 (2014).
I
The plaintiff first claims that the court erred in grant-
ing the defendants’ motion for summary judgment as
to counts one through four because it improperly
concluded that she lacked standing to bring a direct
action for breach of contract against the defend-
ants. Specifically, she argues that ‘‘it would be incong-
ruous for a party to be penalized for not exhausting an
administrative remedy process to which the party
had received no notice nor meaningful opportunity
in which to participate.’’6 She further argues that
the court improperly relied upon precedent involv-
ing claims that did not implicate General Statutes
§ 10-151 and that the court should have denied
summary judgment based on the law of the case.7
We disagree.8
The trial court granted the defendants’ motion for
summary judgment as to counts three and four after
concluding that the plaintiff lacked standing to pursue
a breach of contract claim alleging a violation of Article
VII of the agreement.9 The court explained: ‘‘Absent a
contrary provision or the union’s failure to adequately
represent its members, individual union members do
not have standing to enforce provisions of a collective
bargaining agreement entered into by a municipality
and a labor union.’’ Because the plaintiff could not iden-
tify any provision of the agreement granting her the
right to enforce the agreement, and because she did
not allege that the union had breached its duty of fair
representation, the court concluded that she lacked
standing. As to counts one and two, the court concluded
that, to the extent that those counts alleged a direct
action against the defendants for their failure to comply
with the statutory provisions of § 10-151, that statute
provided no such private right of action other than
through the administrative appeal process provided
therein.10
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless [one] has, in an individual or repre-
sentative capacity, some real interest in the cause of
action, or a legal or equitable right, title or interest in
the subject matter of the controversy. . . . If a party
is found to lack standing, the court is without subject
matter jurisdiction to determine the cause.’’ (Citation
omitted; internal quotation marks omitted.) Tomlinson
v. Board of Education, 226 Conn. 704, 717, 629 A.2d
333 (1993).
Our Supreme Court previously has articulated the
rules of standing applicable to employees seeking to
pursue breach of contract actions based on alleged
violations of collective bargaining agreements. ‘‘Ordi-
narily a court may entertain a suit by an individual
employee to enforce the terms of a collective bargaining
agreement only if the agreement so provides. . . . An
employee does, however, have standing to enforce the
terms of a collective bargaining agreement if the
employee claims that the union has breached its duty
of fair representation.’’ (Citation omitted.) Labbe v. Pen-
sion Commission, 239 Conn. 168, 182, 682 A.2d 490
(1996).
On appeal, the plaintiff in the present case fails to
identify any provision in the agreement permitting her
individually to enforce Article VII or any other provision
of the agreement. Moreover, she fails to allege that
the union has breached its duty of fair representation.
Rather than claiming that the present action satisfies
one of the exceptions discussed previously, the plaintiff
instead argues that the general principles of standing
for unionized employees do not apply to teachers who
receive protection under § 10-151, commonly known as
the Teacher Tenure Act. She claims that ‘‘Connecticut
courts have routinely allowed direct actions to be
brought pursuant to . . . § 10-151 under certain cir-
cumstances, most notably where the employer, itself,
has failed to follow the procedures set forth in . . .
§ 10-151.’’
We find it helpful to review the language of the stat-
ute. Section 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 . . . (5) elimina-
tion of the position to which the teacher was appointed
. . . if no other position exists to which such teacher
may be appointed if qualified . . . and provided further
that determination of the individual contract . . . of
employment to be terminated shall be made in accor-
dance with . . . a provision for a layoff procedure
agreed upon by the board of education and the exclusive
employees’ representative organization . . . .’’ Section
10-151 (d) further provides in relevant part: ‘‘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 calen-
dar days after receipt of written notice by the superin-
tendent that contract termination is under
consideration, such teacher may file with the local or
regional board of education a written request for a
hearing. . . .’’11 Section 10-151 (e) provides the right of
appeal to the Superior Court to any teacher aggrieved
by the decision of a board of education after a hearing
as provided in subsection (d).
We next turn to the case law cited by the plaintiff in
support of her claim that the defendants’ failure to
follow the statutory procedure results in her being per-
mitted to bring a direct action. ‘‘[A]ccess to the courts
under the Teacher Tenure Act is possible only on appeal
of a decision of the board of education. . . . Our
Supreme Court, however, has permitted the filing of
separate actions against boards of education for breach
of contract under limited circumstances.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Drahan v. Board of Education, 42 Conn. App.
480, 491, 680 A.2d 316, cert. denied, 239 Conn. 921, 682
A.2d 1000 (1996).
The plaintiff first relies on Tomlinson v. Board of
Education, supra, 226 Conn. 707, a case in which a
teacher’s employment was terminated as part of a work-
force reduction. The board had followed the statutory
procedures, and the plaintiff had requested and
received a public hearing before a single member panel,
the decision of which the plaintiff appealed to the Supe-
rior Court. Id., 711–12. On appeal, our Supreme Court
held that ‘‘[i]mplicit in [the] right to contest the termina-
tion [through a hearing], is the right to enforce the
tenured teacher’s underlying contract of employment.
Indeed, it is only by virtue of the employment contract
that the tenured teacher has any rights at all under § 10-
151 (d).’’ Id., 721. We agree with the defendants that
Tomlinson does not provide support for the plaintiff’s
claim that a direct action is permissible, because Tom-
linson involved the statutory administrative appeal con-
templated by § 10-151.
The plaintiff additionally cites LaCroix v. Board of
Education, 199 Conn. 70, 73, 505 A.2d 1233 (1986), a
case in which a tenured teacher received notification
in June that his employment would be terminated two
days later, and although he made a written request for
a hearing, one was not held. In October, the board voted
to approve his termination, effective the prior June, and
then notified him that on October 26 they would hold
the requested hearing, which he did not attend. Id. Next,
the board notified the plaintiff in a letter dated October
31 that his termination had been under consideration
by the board at its last meeting, and informed him of
his right, upon written request, to a hearing or a state-
ment of the reasons for the proposed termination. Id.,
73–74. The plaintiff made no such request nor did he
respond to the board’s letter, and he did not appeal the
board’s decision to the Superior Court. Id., 74. Instead,
the plaintiff brought a direct action against the board
alleging violation of his contract of employment and
deprivation of his right to due process of law as guaran-
teed by article first, § 8, of the Connecticut constitution.
Id., 71–72. The court concluded that the plaintiff had
‘‘presented a colorable constitutional challenge to the
defendant board’s actions by his allegation that the
board deprived him of due process in failing to schedule
a hearing until months after the June termination.’’
Id., 81.
Under the specific factual circumstances of LaCroix,
our Supreme Court recognized an exception to the doc-
trine of exhaustion of administrative remedies and held
that ‘‘the plaintiff’s failure to follow the administrative
appeal route to challenge the June termination did not
preclude him from bringing a collateral judicial action
to test this basic constitutional infirmity in the board’s
termination process.’’ Id. The court concluded that the
board’s ‘‘total default relieved the plaintiff of the obliga-
tion to pursue further administrative steps, and permit-
ted the plaintiff to invoke judicial remedies to vindicate
his constitutional rights to due process.’’12 Id. A review
of the LaCroix decision reveals that our Supreme
Court’s determination that the trial court had jurisdic-
tion in that case was limited to the narrow exception
available for constitutional due process challenges. See
id., 81 (‘‘[W]e conclude that the trial court had jurisdic-
tion to hear the plaintiff’s constitutional challenge to
the June termination. Having decided that the trial court
had jurisdiction to hear this due process claim, we need
not address the merits of the claim itself.’’). The plaintiff
in the present case does not allege a violation of her
constitutional right to due process, and thus her reli-
ance on LaCroix is misguided.
The remaining cases cited by the plaintiff likewise
do not support her position. In Cahill v. Board of Educa-
tion, 187 Conn. 94, 103, 444 A.2d 907 (1982), although
the plaintiff was permitted to bring a direct action alleg-
ing breach of contract against the board, the plaintiff’s
allegations included that the board had breached the
agreement by ‘‘failing to restore [the plaintiff] to a posi-
tion of like nature, seniority, status and pay after she
returned from her sabbatical leave . . . .’’13 (Internal
quotation marks omitted.) Our Supreme Court in
LaCroix recognized the effect of Cahill as limiting a
plaintiff’s ability to bring a claim alleging wrongful ter-
mination to the statutory appeal process provided by
§10-151, while permitting ‘‘direct judicial relief only with
respect to matters totally outside of the remedial scope
of § 10-151.’’ (Emphasis added.) LaCroix v. Board of
Education, supra, 199 Conn. 77–78; see also Mendillo
v. Board of Education, 246 Conn. 456, 467, 717 A.2d
1177 (1998) (applying an exception to the doctrine of
exhaustion of administrative remedies where the
administrative remedy would be futile or inadequate to
a case in which the ‘‘issues in controversy between the
plaintiff and the defendants are not the issues contem-
plated by a termination hearing held pursuant to § 10-
151 [d]’’).
In Petrovich v. Board of Education, 189 Conn. 585,
586, 457 A.2d 315 (1983), also cited by the plaintiff, a
nontenured teacher’s employment was terminated. She
was informed by letter on August 14 that her position
had been eliminated, and subsequently was informed
by letter on August 30 that her employment had been
terminated. Id., 586–87. After a formal hearing, her ter-
mination was ratified. Id., 587. She filed an action for
declaratory judgment and a mandatory injunction, and
judgment was rendered awarding her back pay for the
first school year following her termination. Id., 586.
The defendant challenged the plaintiff’s right to judicial
review, and our Supreme Court concluded that she was
not precluded from bringing an action for breach of
contract. Id., 589. Subsequently, our Supreme Court in
LaCroix distinguished Petrovich on the ground that
‘‘[a]s a nontenured teacher, she had no statutory right
under § 10-151 to appeal directly the termination or
nonrenewal of her contract.’’ LaCroix v. Board of Edu-
cation, supra, 199 Conn. 78. It further clarified the reach
of Petrovich as holding that, ‘‘in the absence of such a
statutory right, the teacher was not precluded from
bringing an appropriate action for breach of contract.’’
(Internal quotation marks omitted.) Id.
In applying the relevant case law to the facts of the
present case, we conclude that this case does not fall
within those limited circumstances under which our
Supreme Court has permitted the filing of a direct action
against boards of education and towns. The court prop-
erly concluded that the plaintiff lacked standing individ-
ually to enforce the provisions of the agreement, as
she failed to identify any provision in the agreement
permitting her individually to enforce the agreement,
and she failed to allege that the union had breached its
duty of fair representation. Moreover, the plaintiff did
not allege a violation of her constitutional right to due
process. Accordingly, the court did not err in rendering
summary judgment as to counts one through four.
II
The plaintiff next claims that the court erred in ren-
dering summary judgment as to counts seven and eight,
in which counts she alleged negligent infliction of emo-
tional distress.14 The plaintiff contends that the defen-
dants’ communication of the decision to terminate her
employment was a ministerial function, rather than a
discretionary function and therefore the court improp-
erly rendered summary judgment on the basis of govern-
mental immunity pursuant to § 52-557n. Specifically,
the plaintiff argues: ‘‘Pursuant to [certain provisions of]
the agreement,15 the [board] holds the responsibility for
determining if and when to discharge a teacher. The
superintendent merely holds the responsibility of noti-
fying the teacher of dismissal. Pursuant to Bonington
[v. Westport, 297 Conn. 297, 999 A.2d 700 (2010)], even
if the board’s decision to discharge were considered
discretionary, the mere notification of dismissal by the
superintendent is the epitome of a ministerial function.’’
(Footnote added.) The defendants contend that the
court properly concluded that the decision concerning
how to terminate an employee is discretionary, and,
thus, the defendants were entitled to governmental
immunity. We agree with the defendants.16
We begin with the principles of governmental immu-
nity. ‘‘[Section] 52-557n abandons the common-law prin-
ciple of municipal sovereign immunity and establishes
the circumstances in which a municipality may be liable
for damages. . . . One such circumstance is a negli-
gent act or omission of a municipal officer acting within
the scope of his or her employment or official duties.
. . . [Section] 52-557n (a) (2) (B), however, explicitly
shields a municipality from liability for damages to per-
son or property caused by the negligent acts or omis-
sions which require the exercise of judgment or
discretion as an official function of the authority
expressly or impliedly granted by law.’’ (Citation omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Edgerton v. Clinton, 311 Conn. 217, 229, 86 A.3d
437 (2014). ‘‘The hallmark of a discretionary act is that
it requires the exercise of judgment. . . . In contrast,
[m]inisterial refers to a duty which is to be performed
in a prescribed manner without the exercise of judg-
ment or discretion.’’ (Internal quotation marks omitted.)
Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d
1188 (2006).
‘‘Municipal officials are immunized from liability for
negligence arising out of their discretionary acts in part
because of the danger that a more expansive exposure
to liability would cramp the exercise of official discre-
tion beyond the limits desirable in our society. . . .
Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial acts, defined as acts to be performed in a prescribed
manner without the exercise of judgment or discretion.
. . . This is because society has no analogous interest
in permitting municipal officers to exercise judgment
in the performance of ministerial acts.’’ Swanson v.
Groton, 116 Conn. App. 849, 855–56, 977 A.2d 738 (2009).
The plaintiff cites only Bonington and provisions of
the agreement17 in support of her claim that the commu-
nication of her termination was a ministerial function.
In Bonington, our Supreme Court considered whether
certain acts of the defendant town were discretionary
or ministerial. Bonington v. Westport, supra, 297 Conn.
307. Those acts included ‘‘checking to see whether
required permits and forms have been obtained and
filed, inspecting and accurately reporting the result of
inspections for zoning violations and enforcing clear
violations of zoning regulations . . . .’’ Id., 308. In con-
cluding that such acts were discretionary, the court
stated: ‘‘[E]ven when the duty to respond to a violation
of law is ministerial because that specific response is
mandated, the predicate act—determining whether a
violation of law exists—generally is deemed to be a
discretionary act. A ministerial duty on the part of an
official often follows a quasi-judicial determination by
that official as to the existence of a state of facts.
Although the determination itself involves the exercise
of judgment, and therefore is not a ministerial act, the
duty of giving effect, by taking appropriate action, to
the determination is often ministerial.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 309.
The court in Bonington relied on Grignano v. Mil-
ford, 106 Conn. App. 648, 658, 943 A.2d 507 (2008), in
which this court found ministerial the duty to warn
invitees of known hazards because the ordinance in
question prescribed the manner in which the warning
was required to be issued. The court noted that ‘‘[t]he
form of the warning, i.e., by posting a notice or fence
or barricade and by lighting the hazard at night, as well
as the timing of the warning, i.e., immediately upon
discovery of the unsafe condition and until necessary
repairs are made, are set forth explicitly in the ordi-
nance.’’ Id., 658; cf. Silberstein v. 54 Hillcrest Park
Associates, LLC, 135 Conn. App. 262, 272, 41 A.3d 1147
(2012) (maintenance of road, drains and storm sewers
discretionary because tax district bylaws did not ‘‘pre-
scribe the specific manner in which the duty to maintain
and repair the roads, drains and storm sewers is to
be performed’’).
In the present case, the plaintiff claims only that
the manner of communication of the termination was
ministerial.18 She expressly states in her principal appel-
late brief that ‘‘[t]he plaintiff’s negligent infliction of
emotional distress claims rest upon the manner in
which the termination was communicated to her rather
than upon the termination itself.’’ Cf. Soderlund v. Mer-
rigan, 110 Conn. App. 389, 397, 400, 955 A.2d 107 (2008)
(concluding that it did not matter how the officer per-
formed the duty to vacate the warrant, as the issue was
not ‘‘whether the procedure to vacate the warrant was
mandatory, but whether it was mandatory to vacate
the warrant’’ [emphasis in original]). The agreement
mandates no specific form or timing for the communica-
tion of a termination. It does not prescribe the manner
in which the superintendent must communicate the
termination to the teacher. It merely provides that dis-
missal of teachers is a responsibility of the superinten-
dent. Thus, we agree with the court’s conclusion that
the superintendent’s manner of communicating the
plaintiff’s termination was a discretionary act to which
municipal immunity attached, and the court appropri-
ately granted summary judgment as to counts seven
and eight.19
III
The plaintiff last claims that the court erred in grant-
ing the defendant’s motion for summary judgment as
to counts nine through twelve of her complaint. She
claims that the court improperly concluded that she
had presented no evidence to support the cause of
action of breach of the covenant of good faith and fair
dealing and that the trial court made a factual ‘‘determi-
nation that the facts supporting this claim were insuffi-
cient. . . . This decision should have been reserved
for the trier of fact.’’ The defendants respond that the
court correctly concluded that there was no genuine
issue of material fact because the plaintiff failed to
present evidence of or even allege bad faith on the part
of the defendants. We agree with the defendants.
‘‘To constitute a breach of [the implied covenant of
good faith and fair dealing], the acts by which a defen-
dant allegedly impedes the plaintiff’s right to receive
benefits that he or she reasonably expected to receive
under the contract must have been taken in bad faith.
. . . Bad faith in general implies both actual or con-
structive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some inter-
ested or sinister motive. . . . Bad faith means more
than mere negligence; it involves a dishonest purpose.’’
(Citation omitted; internal quotation marks omitted.)
De La Concha of Hartford, Inc. v. Aetna Life Ins. Co.,
269 Conn. 424, 433, 849 A.2d 382 (2004). ‘‘Absent allega-
tions and evidence of a dishonest purpose or sinister
motive, a claim for breach of the implied covenant of
good faith and fair dealing is legally insufficient.’’ Alex-
andru v. Strong, 81 Conn. App. 68, 81, 837 A.2d 875,
cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
The plaintiff’s complaint is devoid of any factual alle-
gation that the defendants acted in bad faith. Counts
nine and ten alleged, inter alia, that ‘‘the plaintiff’s termi-
nation from employment by the defendants was wrong-
ful and constituted a breach of its implied covenant of
good faith and fair dealing by dismissing the plaintiff
without first giving her notice that her contract was
under consideration for termination and affording her
the right to a hearing under applicable law and as
required by contract between the parties.’’ Counts
eleven and twelve alleged, inter alia, breach of the
implied covenant of good faith and fair dealing ‘‘when,
pursuant to the requirements of Article VII of the
agreement, others should have been laid off before the
plaintiff.’’ The plaintiff, however, fails to set forth any
factual allegations that the defendants ‘‘committed a
fraud, sought to mislead or deceive the plaintiff, acted
with an improper motive, or . . . with a dishonest pur-
pose.’’ Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 132 Conn. App.
85, 100–101, 30 A.3d 38 (2011), aff’d, 311 Conn. 123, 84
A.3d 840 (2014).20 Thus, the court correctly concluded
that there was no genuine issue of material fact and
the defendants were entitled to summary judgment as
to counts nine through twelve.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Counts one through four alleged that the town and the board each
‘‘breached its contract with the plaintiff and violated the plaintiff’s rights
under the agreement and under applicable Connecticut General Statutes
. . . .’’
Counts one and two alleged that the defendants failed to comply with
General Statutes § 10-151, the provisions of which the plaintiff claimed were
incorporated into the agreement, in that they failed to provide her with
written notice that her contract of employment was under consideration
for termination and failed to provide her with an opportunity to be heard
at a hearing prior to her termination. The trial court construed these counts
as sounding in breach of contract in denying the defendants’ motion to
strike. For purposes of summary judgment, however, the plaintiff argued
that these counts were direct actions against the defendants for failure to
comply with § 10-151.
Counts three and four alleged that the defendants terminated the plaintiff
when, pursuant to Article VII of the agreement, others should have been
terminated before her.
2
The plaintiff attached to her memorandum additional excerpts of the
deposition transcripts and other documents.
3
General Statutes 52-557n (a) (2) provides in relevant part: ‘‘Except as
otherwise provided by law, a political subdivision of the state shall not be
liable for damages to person or property caused by: (A) Acts or omissions
of any employee, officer or agent which constitute criminal conduct, fraud,
actual malice or wilful misconduct; or (B) negligent acts or omissions which
require the exercise of judgment or discretion as an official function of the
authority expressly or impliedly granted by law.’’
4
On appeal, the plaintiff does not challenge the summary judgment ren-
dered as to counts five and six.
5
See footnote 3 of this opinion.
6
‘‘It is a settled principle of administrative law that, if an adequate adminis-
trative remedy exists, it must be exhausted before the Superior Court will
obtain jurisdiction to act in the matter. . . . This requirement reflects the
legislative intent that such issues be handled in the first instance by local
administrative officials in order to provide aggrieved persons with full and
adequate administrative relief, and to give the reviewing court the benefit of
the local board’s judgment.’’ (Internal quotation marks omitted.) Ridgefield
Housing Authority v. Ridgefield Water Pollution Control Authority, 131
Conn. App. 251, 259, 26 A.3d 150 (2011).
We note that the court, in rendering its summary judgment, did not base
its decision on the plaintiff’s failure to exhaust her administrative remedies.
It expressly stated: ‘‘Judge Martin ruled [when denying the defendants’
motion to dismiss] that the plaintiff was not required to exhaust the adminis-
trative remedies established by [General Statutes] § 10-151 in light of the
defendants’ failure to comply with the statute. . . . Yet, regardless of that
exception, the plaintiff must still prosecute a recognized legal cause of
action and have standing to do so.’’ (Citation omitted.)
7
The plaintiff references a November 25, 2011 order of the court, Martin,
J., denying the defendants’ motion to dismiss, and a January 18, 2013 order
of the court, Devine, J., denying in part the defendants’ motion to strike.
Both motions related to prior versions of the operative complaint. She argues
that the law of the case doctrine should have resulted in the denial of the
defendants’ motion for summary judgment on similar bases.
‘‘The law of the case doctrine expresses the practice of judges generally
to refuse to reopen what has been decided and is not a limitation on their
power. . . . Where a matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may treat that decision as
the law of the case . . . . As this court recently explained, the law of the
case doctrine does not preclude a judge from deciding an issue in a way
contrary to how it was decided by a predecessor judge in the same case.
. . . [It] provides that judges may treat a prior ruling as the law of the case
if they agree with the determination. He or she may, however, decide the
issue differently if he or she is convinced that the prior decision is wrong.’’
(Citation omitted; internal quotation marks omitted.) Sullivan v. Thorndike,
137 Conn. App. 223, 227–28, 48 A.3d 130 (2012).
‘‘A judge is not bound to follow the decisions of another judge made at
an earlier stage of the proceedings, and if the same point is again raised he
has the same right to reconsider the question as if he had himself made the
original decision.’’ (Internal quotation marks omitted.) Bridgeport v. Triple
9 of Broad Street, Inc., 87 Conn. App. 735, 741, 867 A.2d 851 (2005).
Moreover, motions to dismiss or strike are distinct from motions for
summary judgment. ‘‘A trial court applies different principles and a different
analysis when ruling on a motion to dismiss as opposed to a motion for
summary judgment.’’ Henderson v. Lagoudis, 148 Conn. App. 330, 339, 85
A.3d 53 (2014); Manifold v. Ragaglia, 94 Conn. App. 103, 120, 891 A.2d 106
(2006) (‘‘[w]hereas a motion to dismiss is decided only on the allegations
in the complaint and the facts implied from those allegations, summary
judgment is decided by looking at all of the pleadings, affidavits and docu-
mentary evidence presented to the court in support of the motion’’ [emphasis
in original]); see also Tracy v. New Milford Public Schools, 101 Conn. App.
560, 565–66, 922 A.2d 280 (‘‘a motion to strike will be denied if the allegations
of the complaint, if proven, would support a cause of action’’), cert. denied,
284 Conn. 910, 931 A.2d 935 (2007). Therefore, the circumstances of this
case render inapplicable the doctrine of the law of the case. See Henderson
v. Lagoudis, supra, 341.
8
The defendants also contend that the judgment should be affirmed on
the alternative ground that there existed no genuine issue of material fact
regarding whether the defendants breached the agreement. In light of our
resolution of the plaintiff’s claim, we need not reach the defendants’ alterna-
tive ground for affirmance.
9
Article VII, entitled ‘‘Reduction in Staff,’’ sets forth the policy and proce-
dures governing elimination of staff positions, including the order in which
staff members would be subject to layoff.
10
Although the plaintiff titled and at times argued to the trial court that
these counts alleged breach of contract, the trial court also analyzed them
as a direct action under § 10-151. See footnote 1 of this opinion. We review
both theories accordingly.
11
It is undisputed that the defendants did not provide the plaintiff with
notice that termination of her contract was under consideration. Although
the plaintiff incorporated the lack of notice into each count of her complaint,
she did not raise a claim that the board deprived her of due process by
failing to provide her with notice that the termination of her contract was
under consideration.
12
See also Tomlinson v. Board of Education, supra, 226 Conn. 730 n.19
(‘‘We have . . . permitted a plaintiff to bring a collateral judicial action
where the plaintiff did not deliberately bypass the statutory appeal route
and the defendant school board failed to provide a timely hearing. . . .
Under such circumstances, we held that the school board’s ‘total default’
relieved the plaintiff of the obligation to pursue further administrative steps,
and permitted the plaintiff to invoke judicial remedies to vindicate his consti-
tutional rights to due process.’’).
13
With respect to the argument of the defendant in Cahill that the plaintiff
had failed to exhaust administrative remedies, the court noted that the
agreement’s provisions for a grievance procedure did not extend to teacher
transfers, and, thus, the plaintiff’s ‘‘only remedy for contesting the defen-
dant’s decision to transfer her was the court process.’’ Cahill v. Board of
Education, supra, 187 Conn. 103–104.
14
‘‘To prevail on a claim of negligent infliction of emotional distress, the
plaintiff must prove: (1) the defendant’s conduct created an unreasonable
risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress
was foreseeable; (3) the emotional distress was severe enough that it might
result in illness or bodily harm; and (4) the defendant’s conduct was the
cause of the plaintiff’s distress.’’ (Internal quotation marks omitted.) Grasso
v. Connecticut Hospice, Inc., 138 Conn. App. 759, 771, 54 A.3d 221 (2012).
‘‘[I]n cases where the employee has been terminated, a finding of a wrongful
termination is neither a necessary nor a sufficient predicate for a claim of
negligent infliction of emotional distress. The dispositive issue in each case
[is] whether the defendant’s conduct during the termination process was
sufficiently wrongful that the defendant should have realized that its conduct
involved an unreasonable risk of causing emotional distress and that [that]
distress, if it were caused, might result in illness or bodily harm.’’ (Emphasis
omitted; internal quotation marks omitted.) Tracy v. New Milford Public
Schools, 101 Conn. App. 560, 571, 922 A.2d 280, cert. denied, 284 Conn. 910,
931 A.2d 935 (2007).
15
The plaintiff cites three provisions of the agreement in support of her
claim. First, she cites Article III, section L, paragraph 1, which provides in
relevant part: ‘‘Unless expressly limited by this [a]greement, the exclusive
functions and rights of the [b]oard include, but are not restricted to, the
right to . . . discipline, suspend or discharge teachers . . . .’’
The plaintiff second cites Article VII, section B, which provides in relevant
part: ‘‘It is recognized that the [board] has the sole and exclusive prerogative
to eliminate certified staff positions consistent with the provisions of the
state statutes. Elimination of certified staff positions may result from
decreases in student enrollment, changes in curriculum, severe financial
conditions, or other circumstances as determined by the [board].’’
The plaintiff third cites Article IV, section E, which provides: ‘‘The recruit-
ment, hiring, and notification of dismissal of teachers is the responsibility
of the [s]uperintendent of [s]chools.’’
16
The defendants also contend that the judgment should be affirmed on
the alternative ground that there existed ‘‘no genuine issue of material fact
regarding whether the defendants engaged in unreasonable conduct during
the termination process.’’ In light of our resolution of the plaintiff’s claim,
we need not reach the defendants’ alternative ground for affirmance.
17
The plaintiff claims that the superintendent’s ministerial duty to commu-
nicate the termination is created by the agreement. The defendants question
whether a collective bargaining agreement can create a ministerial duty,
noting that the plaintiff cites no authority for the proposition that it can.
The trial court assumed, without deciding, that a collective bargaining
agreement can create a ministerial duty and addressed the issue of whether
the manner of notification was discretionary or ministerial. Without deciding
that preliminary point, we address the ultimate issue because the trial court
addressed it and it was briefed by the parties. See Cumberland Farms, Inc.
v. Zoning Board of Appeals, 74 Conn. App. 622, 631 n.8, 814 A.2d 396, cert.
denied, 263 Conn. 901, 819 A.2d 836 (2003).
18
The plaintiff sets forth in her brief additional alleged facts in support
of her claim of negligent infliction of emotional distress. She claims that
when she was called to Sullivan’s office and handed her termination letter,
there were others present in the room, including the assistant principal,
two union representatives, and ‘‘three or four persons whose identities were
not known’’ to the plaintiff. Additionally, she claims that, during that meeting,
Smotas ‘‘refused to answer her questions regarding her rights as a tenured
teacher or her other options as a tenured teacher.’’ Lastly, she alleges that,
‘‘[a]s a result of being paraded in front of this room of people and given a
notice of termination without access to her statutorily and contractually
guaranteed right to a pretermination hearing, [the plaintiff] was caused to
suffer insomnia, depression and anxiety disorder.’’
19
The plaintiff also references a July 6, 2012 order by the court, Martin,
J., denying the defendants’ motion to strike a previously amended complaint.
The previous denial of the defendants’ motion to strike did not preclude
the court from rendering summary judgment in favor of the defendants as
to those counts. See footnote 7 of this opinion.
20
In her appellate brief, the plaintiff primarily relies on her argument that
the determination as to whether a party has acted in bad faith is a question
of fact, and thus summary judgment was inappropriate. Summary judgment
is proper, however, where the plaintiff has failed to allege facts to support
its cause of action. See Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 132 Conn. App. 97, 100–101 (affirming
granting of summary judgment rendered in favor of the defendants where
the plaintiff failed to include factual allegations of bad faith); Rafalko v.
University of New Haven, 129 Conn. App. 44, 52, 19 A.3d 215 (2011)
(affirming granting of summary judgment rendered in favor of the defendants
where the plaintiff failed to demonstrate evidence of bad faith). Moreover,
the court, Devine, J., had previously stricken, for ‘‘not set[ting] forth any
[supporting] factual allegations,’’ two counts of a previously amended com-
plaint, which were almost identical to counts nine and ten of the opera-
tive complaint.