Malasky v. Metal Products Corp.

• Decision Date: 11 March 1997
• Docket Number: No. 15361,15361
• Court: Connecticut Court of Appeals
• Parties: Deborah MALASKY v. METAL PRODUCTS CORPORATION et al.

Page 1145

689 A.2d 1145

44 Conn.App. 446

Deborah MALASKY v. METAL PRODUCTS CORPORATION et al.

No. 15361.

Appellate Court of Connecticut.

Argued Dec. 16, 1996.

Decided March 11, 1997.

Jon D. Berman, with whom, on the brief, was Gerald M. Beaudoin, South Windsor, for appellant (plaintiff).

Brendan T. Flynn, with whom, on the brief, was Robert L. Hirtle, Hartford, for appellee (defendant Sidney Greenberg).

Before DUPONT, C.J., and FOTI and SCHALLER, JJ.

DUPONT, Chief Judge.

This is a sexual harassment case arising out of the plaintiff's employment with the defendants, Metal Products Corporation (Metal) and Birken Manufacturing Company (Birken). The third defendant, Sidney Greenberg, owns and operates both companies. The two corporations have common ownership, management and staff.

Deborah Malasky, the plaintiff, began working for Metal in November, 1987, as a certification and quality control clerk. She later worked for Birken. She alleges that, beginning in February, 1992, she was repeatedly subjected to sexual harassment by other employees and supervisors until she was compelled to leave her position on March 5, 1993.

On May 7, 1993, the plaintiff, without the assistance of an attorney, filed a complaint, pursuant to General Statutes § 46a-82 (a), ¹ with the commission on human rights and opportunities (CHRO) against Metal and Birken, alleging that she had been sexually harassed, retaliated against and constructively discharged in violation of General Statutes §§ 46a-58 (a), ² 46a-60 (a)(1), 46a60 (a)(4), and 46a-60 (a)(8), ³ and Title VII of the Civil Rights Act of 1964. On June 8, 1994, the plaintiff received a release of jurisdiction from the CHRO pursuant to General Statutes § 46a-101, ⁴ permitting her to bring a civil action against Metal and Birken in Superior Court pursuant to General Statutes § 46a-100. ⁵

On October 28, 1994, the plaintiff filed an amended three count complaint against Metal, Birken and Greenberg individually, as owner and president of Metal and Birken. The first count alleges violations of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes §§ 46a-51 et seq., by Metal and Birken only. The second and third counts allege intentional infliction of emotional distress and negligent supervision by all three defendants. As relief, the plaintiff claimed back pay, future earnings, reasonable attorney's fees, and punitive damages.

On January 16, 1995, the defendants moved to dismiss the complaint against Greenberg because the plaintiff had failed to exhaust her administrative remedies against Greenberg, thereby ousting the court of subject matter jurisdiction. The trial court granted this motion over the plaintiff's objection on June 7, 1995. The plaintiff appealed to this court from the granting of the motion to dismiss. ⁶

The plaintiff claims that the trial court improperly dismissed the action because (1) she did not fail to exhaust her administrative remedies as to Greenberg because he was expressly identified in her administrative complaint, (2) common law causes of action are not preempted by the administrative procedure, and (3) the administrative remedies available to her were inadequate. ⁷

The trial court, following the reasoning of Sullivan v. Board of Police Commissioners 196 Conn. 208, 491 A.2d 1096 (1985), dismissed the action against Greenberg because the plaintiff had not exhausted her administrative remedies as to him. The Sullivan court had reasoned that, "[r]ead in its entirety, the 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. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency. The plaintiff, having failed to follow the administrative route that the legislature has prescribed for his claim of discrimination, lacks the statutory authority to pursue that claim in the Superior Court." Id., at 216, 491 A.2d 1096.

The trial court in the present case stated that "[t]here is no unconditional private right of action under the CFEPA.... A party must follow the administrative route established by the legislature and failure to do so results in a lack of statutory authority to pursue such a claim in Superior Court.... The plaintiff never obtained a release to sue from the CHRO pertaining to Greenberg. The plaintiff's failure to follow the prescribed administrative route enunciated in General Statutes §§ 46a-100 through 46a-104 as to Greenberg results in this court's lack of subject matter jurisdiction. Accordingly, the defendants' motion to dismiss the plaintiff's complaint as to Greenberg is granted."

Practice Book § 143 governs motions to dismiss. ⁸ "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378, cert. granted on other grounds, 239 Conn. 907, 682 A.2d 998 (1996). "A ruling on a motion to dismiss is neither a ruling on the merits of the action ... nor a test of whether the complaint states a cause of action.... Motions to dismiss are granted solely on jurisdictional grounds." (Citations omitted.) Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 306-307, 635 A.2d 843 (1993).

The Superior Court lacks subject matter jurisdiction in a matter if an adequate administrative remedy exists, and it has not been exhausted. Simko v. Ervin, 234 Conn. 498, 503, 661 A.2d 1018 (1995); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977). The defendants argue that an adequate administrative remedy does exist against Greenberg and that the plaintiff did not exhaust that remedy because Greenberg was not named as a defendant in her complaint to the CHRO. We disagree.

It is not necessary for the purposes of this appeal to determine whether the plaintiff's complaint has stated a common law cause of action against Greenberg or whether, because her administrative remedy against Greenberg was inadequate, she can pursue other remedies in the trial court. Those determinations are not necessary because we conclude that the plaintiff did exhaust her administrative remedies against Greenberg, and, therefore, the court had subject matter jurisdiction. Our conclusion is based on the reasoning of Maturo v. National Graphics, Inc., 722 F.Supp. 916 (D.Conn.1989), which has a similar factual situation.

The Maturo plaintiff had filed a complaint with the CHRO and the federal Equal Employment Opportunities Commission (EEOC) alleging sexual harassment. At the time she made the complaint, the plaintiff was not represented by counsel, but a CHRO staff member helped her to draw up the CHRO complaint. The complaint listed only the employer company and the company's president as respondents. After the plaintiff obtained a notice of the right to sue from the EEOC, she filed suit in District Court, adding as defendants the employee supervisor who had allegedly harassed her and another supervisor.

"Generally, an action under Title VII can proceed only against those individuals named as respondents in the complaint filed with the EEOC. 42 U.S.C. § 2000e-5 (f)(1). The purpose of this exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of Title VII.... A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the EEOC complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied.... Specifically, the factors to be considered under this exception are '1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.' [Garcia v. Gardner's Nurseries, Inc., 585 F.Supp. 369, 372 (D.Conn.1984) ]." (Citations omitted.) Maturo v. National Graphics, Inc., supra, 722 F. Supp. at 924-25.

The Maturo court found that the plaintiff's complaint filed with the CHRO and the EEOC satisfied those requirements. Each of the individual defendants had actual notice of the complaint, and the CHRO complaint had identified by name the employee who had allegedly harassed the plaintiff. Thus, neither previously omitted defendant had suffered any prejudice from the lack of formal notice. In addition, for purposes of voluntary conciliation, the interests of the supervisors were substantially identical to those of the company and its president. Further, the allegedly harassing supervisor had represented to the plaintiff that he had the authority to affect her relationship with the company. Finally, the court considered the fact that the plaintiff had not been represented by counsel at the time she filed the administrative complaints and, instead, relied on the advice of a CHRO employee. Considering all of these...