DocketNumber: No. CV94 0538675S
Citation Numbers: 1995 Conn. Super. Ct. 1639
Judges: WAGNER, J.
Filed Date: 2/17/1995
Status: Non-Precedential
Modified Date: 4/18/2021
On June 13, 1994, the plaintiff, Vivian Cross, filed a six count complaint sounding in wrongful discharge, defamation, etc., against the defendants, Robert Nearine [Nearine] and the Board of Education for the City of Hartford [Board]. In her complaint, the plaintiff alleges the following:
The plaintiff, previously employed by the City of Hartford's Education Department as a Curriculum and Staff Developer, was responsible for the development of programs to improve the cognitive skill levels of students and conducting professional development workshops for the Board's faculty members. On September 19, 1990, the plaintiff presented an overview of the effectiveness of cognitive instructional practices to the Board's Program Development and Evaluation Committee, which was subsequently adversely criticized by Nearine, who was employed by the Education Department as a Special Assistant in a memorandum that plaintiff claims was erroneous and maligned the plaintiff's veracity and competence. On October 29, 1990, the plaintiff filed a formal complaint with the Grievance Committee for the Hartford Federation of Teachers, requesting that Nearine publicly retract the memorandum which Nearine failed to do. Plaintiff alleges that Nearine "subsequently placed extreme restrictions upon the plaintiff's daily activities" and "engaged in a course of conduct designed to harass, vex and intimidate the plaintiff."
By letter, dated June 21, 1991, the plaintiff was notified that, due to budget problems, her position as a Curriculum and Staff Developer had been eliminated. Plaintiff claims that the Curriculum and Staff Development Department subsequently created a new position within the department which entailed identical responsibilities undertaken by the plaintiff in her prior position, and hired a less-qualified CT Page 1641 individual than the plaintiff to fill this position. The plaintiff was offered a position within the Hartford School System that was beneath her qualifications. Counts one and two of the complaint allege, respectively, that Nearine's publication of the statement regarding the plaintiff renders him liable to the plaintiff for defamation, and invasion of privacy for allegedly placing her in a false light. Count three alleges that Nearine is liable for failing to timely retract the statement. Count four alleges that Nearine is liable for intentional infliction of emotional distress. Count five alleges that the Board is liable for failing to take proper action when presented with the plaintiff's formal complaint, failing to properly supervise Nearine in allowing him to publish the allegedly defamatory statement against her, and failing to properly supervise Nearine in failing to retract, or force Nearine to retract, the statement. Count six alleges that the Board's actions in eliminating the plaintiff's position and creating a new, substantially identical position, which was later filled by another, less qualified individual, constituted wrongful discharge, and violated a number of the plaintiff's constitutional and statutory rights. Specifically, the plaintiff alleges that the Board discharged and/or effectively eliminated the plaintiff's position: a) on the basis of her sex and/or skin color, in violation of General Statutes §
Each of the six counts asserted against the defendants are brought pursuant to the accidental failure of suit statute, General Statutes §
In opposition to the motion to dismiss, the plaintiff relying on the sheriff's return asserts that because the agent indicated to the sheriff that she was authorized to accept service for Nearine, this court has "subject matter jurisdiction" over Nearine.
The motion to dismiss is the proper procedural vehicle by which to challenge a court's jurisdiction over the person. See Standard Tallow Corp. v. Jowdy,
Where a statute specifies the manner in which certain individuals may be served, the failure of a plaintiff to serve those individuals according to the requirements of said statute calls into question the jurisdiction of the court and requires the dismissal of the action, regardless of whether the defendant was prejudiced by such action. Tarnopol v.Connecticut Sitting Council,
Generally, there is no substitute for "in hand" or abode service, where jurisdiction over the person of a resident individual is sought. Tarnapol v. Connecticut SittingCouncil, supra,
General Statutes §
In response, the plaintiff argues that her defamation and invasion of privacy causes of action, contained in counts one and two of her complaint, derive from the common law and are thus independent of the collective bargaining agreement. Likewise, the plaintiff asserts that her discrimination, wrongful discharge, and retaliatory discharge claims, contained in count six, are independent of the collective bargaining agreement. Additionally, the plaintiff argues that the Workers Compensation Act does not bar her claim for intentional infliction of emotional distress. The arguments require detailed analysis.
Our Connecticut Supreme Court has recognized that before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiff's union. Daley v. Hartford,
Recently, however, the legislature itself carved out an exception to the exhaustion doctrine by enacting General Statutes §
No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute solely CT Page 1645 because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
Subsequently, our Supreme Court, in Genovese v. Gallo WineMerchants, Inc.,
A cause of action arising under the state or federal constitution or state statute cannot be lost solely because the employee is covered by a collective bargaining agreement. Plainly, therefore, an employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim. To hold otherwise would be to deny such an employee the right to pursue a statutory action solely because of the existence of a collective bargaining agreement.
Id., 481-82. Moreover, the court further read General Statutes §
Count six alleges that a number of the plaintiff's statutory and constitutional rights have been violated. In light of the language and legislative history of General Statutes §
Accordingly, defendants' motion to dismiss the plaintiff's complaint, on the ground that the plaintiff has failed to exhaust her administrative remedies under the collective bargaining agreement is rejected as to each of the statutory and constitutional claims set forth in count six.
Cahill does not stand for the proposition that libel and slander constitute separate, independent and distinct causes of action from collective bargaining agreements. No Connecticut case cited by the plaintiff indicates that common law causes of action should not be subject to the grievance procedures of collective bargaining agreements. In Trigila v.Hartford,
Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
Finally, the collective bargaining agreement in this case defines a grievance as:
a complaint by an employee that he/she has been subjected to arbitrary, capricious or discriminatory policy or practice or that his/her rights under the specific language of the administrative regulations or the directive of the administration, whether contained in Board Policy and Administrative Manual or in the Administrative Regulations Handbook or this Agreement have been violated or that as to him/her there is a misinterpretation or misapplication of the specific provisions of administrative regulations or the directive of the administration, or of this Agreement . . . .
The agreement then sets forth a multi-step grievance procedure, involving an initial informal procedure followed by more formal procedures. A complainant not satisfied with the result at any level of the process, may advance to the next level. The final step is arbitration, and the arbitration decision may then be appealed to Superior Court. See General Statutes §§
The plaintiff's claims of defamation, invasion of privacy based on false light, failure to supervise intentional infliction of emotional damages, constructive wrongful discharge, and breach of the implied covenant of good faith and fair dealing in this case arise directly from the relationship protected by the collective bargaining agreement. See Coiro v. Duran, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 382303 (April 20, 1992, Wagner, J.). The adverse Arbitrator's decision regarding the allegedly defamatory statement published against CT Page 1648 the plaintiff was not appealed to this court pursuant to General Statutes §§
We conclude that the defendants' motion to dismiss counts one through five, as well as those parts of count six relating to common law causes of action, is meritorious.
This court has previously ruled that where a plaintiff seeks relief beyond the power of the CHRO to grant, the court is not deprived of jurisdiction solely on the basis that administrative remedies were not initiated and exhausted before the agency. St. Germaine v. Ensign Bickford Co.
Superior Court at Hartford/New Britain at Hartford CV 0539310, (December 20, 1994, Wagner, J.). In this case, plaintiff claims punitive damages as well as monetary damages beyond the power of CHRO to grant. The motion to dismiss the claim under General Statutes §
(b) No state officer or employee, as defined in CT Page 1649 section
The defendants argue that the plaintiff lacks standing to sue under this statute, because there is no "state officer or employee" against whom the plaintiff can claim a violation of the statute. Additionally, the defendants argue that although the statute governs "threat[s] to take any personnel action against any state employee in retaliation," the plaintiff, as an employee of the Hartford Board of Education, was not a state employee.
Under General Statutes §
Although a town board of education is an agent of the state when carrying out the interests of the state, its members are not state but town officers. Similarly, teachers as employees of a town board of education are also not employed in the state government.
Accordingly, the plaintiff has failed to establish that she has standing to pursue a claim of retaliatory discharge under General Statutes §
In summary, defendants Nearines' Motion to Dismiss the complaint as against him dated August 2, 1994 is granted. CT Page 1650
Defendants' Motion to Dismiss dated August 19, 1994 is granted as to Counts One through Five and to all claims under count six, except those based on General Statutes §
Wagner, J.