Fetterman v. University of Connecticut, 11333

• Decision Date: 03 April 1984
• Docket Number: No. 11333,11333
• Citation: 192 Conn. 539,473 A.2d 1176
• Court: Connecticut Supreme Court
• Parties: , 17 Ed. Law Rep. 184 Elsie B. FETTERMAN v. UNIVERSITY OF CONNECTICUT et al.

Page 1176

473 A.2d 1176

192 Conn. 539, 17 Ed. Law Rep. 184

Elsie B. FETTERMAN v. UNIVERSITY OF CONNECTICUT et al.

No. 11333.

Supreme Court of Connecticut.

Argued Dec. 9, 1983.

Decided April 3, 1984.

Louis M. Winer, New Haven, with whom, on the brief, was Susan L. Gross, Atlantic City, N.J., for appellant (plaintiff).

Paul M. Shapiro, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen. and Kenneth G. Williams, Storrs, for appellees (named defendant et al.).

Joel M. Ellis, West Hartford, with whom, on the brief, was William S. Zeman, West Hartford, for appellee (defendant University of Connecticut Chapter of the American Ass'n of University Professors).

Before HEALEY, PARSKEY, SHEA, GRILLO and MENT, JJ.

GRILLO, Associate Justice.

The plaintiff, Elsie B. Fetterman, a former tenured professor at the University of Connecticut (hereinafter UConn), brought this action against UConn, the members of its board of trustees, certain officials at UConn, the members of the state employees' retirement commission, and the UConn chapter of the American Association of University Professors (hereinafter AAUP). She sought damages and declaratory relief for actions which she claims resulted in loss of salary, fringe benefits, pay for accumulated vacation and sick leave, and past and future retirement benefits. The trial court, Corrigan, J., granted the defendants' motions to dismiss on the ground that the court lacked subject matter jurisdiction since the plaintiff had failed to pursue and exhaust her administrative remedies prior to commencing the action. It is from this judgment that the plaintiff appeals.

The plaintiff's second amended complaint alleges the following facts: The plaintiff was a tenured professor at UConn and was a member of the AAUP at UConn from September 1, 1966, through the 1978-79 academic year. By 1979, she had become eligible for voluntary retirement under a state retirement plan. On March 18, 1979, the plaintiff accepted a position at the University of Massachusetts (hereinafter UMass) which represented a substantial professional advancement. In April of 1979, she sent a letter of resignation to UConn requesting that her date of resignation and retirement be December 31, 1979. She also requested permission to begin using 180 days of accumulated vacation and sick leave at UConn and to continue on the active payroll until the effective date of her retirement. Upon learning that the plaintiff was on the payroll of two universities at the same time, UConn began in June of 1979 to withhold the plaintiff's paychecks, keeping them in escrow pending the resolution of the matter. On November 1, 1979, the plaintiff was retired. However, since she was classified as an "eleven-month appointment" rather than a "nine-month appointment," ¹ she was denied accrued vacation or sick leave and credited with twelve years, six months of employment rather than thirteen years, two months.

The plaintiff claims that while she was in the process of moving from her position at UConn to her new position at UMass, and while she continued to hold her tenured appointment at UConn and to render the services required of her there, her salary was cut off prematurely, and that she was dismissed without requisite hearings and in violation of several state and federal constitutional protections. This dismissal resulted in both immediate losses and prospective losses. The immediate losses claimed are the loss of salary from June, 1979, through December, 1979, loss of fringe benefits during that period, and loss of pay for accumulated vacation and sick leave. The prospective losses relate to retirement income, because those factors on which retirement benefits are based were shortened: the date of retirement, the years of service and the average annual regular salary for the three highest- paid years of state service, with the resulting reduction of benefits to continue for the remainder of the plaintiff's life. The plaintiff sought the following relief under the Connecticut Declaratory Judgment Act; General Statutes § 52-29; and the Federal Civil Rights Act of 1871; 42 U.S.C. §§ 1983, 1985, and 1988; ² as to the defendants named in their official capacities only (including UConn, members of its board of trustees, and members of the state employees retirement commission), declarations of the lawful dates of the plaintiff's retirement, her term of state service, and her removal from the state payroll, as well as a declaration that the bases on which actions were taken to stop the plaintiff's salary were unconstitutional and invalid; as to the individual defendants, five university officials who acted to stop the plaintiff's salary and who are named as defendants both in their individual and official capacities, compensatory and exemplary damages, together with costs and attorney's fees, as a result of infringements of state and federal constitutional protections; and as to the defendant union AAUP, the collective bargaining unit for the faculty at UConn, compensatory and exemplary damages substantially similar to those sought from the individual defendants.

The plaintiff presents the following issues in this appeal: (1) whether the trial court erred by requiring the plaintiff to pursue and exhaust her administrative remedies as a condition to subject matter jurisdiction, (2) whether the trial court erred in failing to construe pertinent provisions of the Trustees' Rules and the collective bargaining agreements to determine whether the defendants were required to institute hearings before suspending the plaintiff's salary, and (3) whether the trial court erred in excluding affidavits offered by the plaintiff at the hearing on the motions to dismiss.

In a counter statement of issues and alternative grounds upon which the judgment could be affirmed, the defendants submit that the trial court's dismissal was proper since (1) the plaintiff did not exhaust the contractual remedies available to her, (2) the plaintiff did not exhaust the administrative remedies available to her under UConn's laws and bylaws, (3) a declaratory judgment could not be rendered because all persons having an interest were not given reasonable notice, and (4) sovereign immunity barred an award for damages against UConn and the defendants sued in their official capacities.

In order to facilitate an understanding of the plaintiff's claim, it is virtually essential to have at hand the sections of the relevant statutes and provisions of the collective bargaining agreements and UConn bylaws which were the subject of the motions to dismiss. Chapter 68 of the General Statutes is entitled "Collective Bargaining for State Employees" (hereinafter the act). Its provisions provide a comprehensive scheme for regulating the labor relations between state employees and the state as their employer. See General Statutes §§ 5-270 et seq. Under the authority of the act, UConn and AAUP entered into two successive collective bargaining agreements (hereinafter agreement[s] which governed the terms and conditions of the plaintiff's employment at UConn. Article 10 of each of the agreements makes provision for a grievance and arbitration procedure. A grievance is defined therein as "a dispute concerning the interpretation or application of the terms or provisions of this agreement." The three step procedure begins with an informal discussion between the employee and the immediate UConn official involved. At the option of the employee, the AAUP may join the discussion. The final step involves arbitration; the AAUP, at the request of the employee, may proceed to arbitration at step 3. The decision of the arbitrator is to be final and binding, subject to statutory review procedures. The plaintiff also cites article 10.3 which provides: "If prior to seeking resolution of dispute by filing a grievance under this contract, or while the grievance proceeding is in progress, a member seeks to resolve the matter in any other forum, whether administrative or judicial, the Board [of Trustees] shall have no obligation to entertain or proceed with this grievance procedure."

Article 10 also provides for a fifteen day time limitation for oral presentation and a thirty-seven day time limitation for written presentation at step 1. If a grievance is not so presented, it is not deemed a grievance under the agreement. This arbitration procedure does not apply to matters of policy or grievances involving the UConn board of trustees' bylaws. For these matters, the agreements provide that the employee is required to follow the grievance procedures contained in UConn's bylaws rather than the contractual grievance/arbitration policy.

The plaintiff also cites various portions of article X.L. of the UConn laws, bylaws, and rules of the board of trustees. In particular, a tenured appointment may be terminated only for cause and upon the affirmative vote of nine trustees; adequate cause for dismissal must relate directly and substantially to the professional fitness of the faculty member; pending final decision on dismissal proceedings, for which detailed hearing procedures are provided, the faculty member may be suspended from duty or reassigned only if immediate harm to himself or others is threatened by continued performance of duties and with salary to continue during suspension; and faculty members with tenured status who are dismissed for reasons not involving moral turpitude are to receive their salaries for at least one year from the date of notification of dismissal. Lastly, the plaintiff cites article X.L. 13: "No member of the professional staff or other employee in the service of the University shall devote to private purposes any portion of the time due the University without the consent of the President. Members of the professional staff may take on outside consulting and research activities only after the specific project has been approved by the President ...