Ware v. State

• Decision Date: 24 November 2009
• Docket Number: No. 28600.,28600.
• Citation: 983 A.2d 853,118 Conn.App. 65
• Court: Connecticut Court of Appeals
• Parties: Joy WARE v. STATE of Connecticut.

983 A.2d 853

118 Conn.App. 65

Joy WARE v. STATE of Connecticut.

No. 28600.

Appellate Court of Connecticut.

Argued April 27, 2009.

Decided November 24, 2009.

Beth Z. Margulies, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

Denise Bevza, New London, for the appellee (plaintiff).

LAVINE, BEACH and DUPONT, Js.

BEACH, J.

The defendant, the state of Connecticut, appeals from the judgment of the trial court denying its motion to dismiss the complaint of the plaintiff, Joy Ware. The defendant claims that the court improperly denied its motion to dismiss because (1) sovereign immunity bars the plaintiff's claims of wrongful termination and breach of implied contract, (2) the plaintiff failed to exhaust administrative remedies as to several of her claims brought pursuant to General Statutes § 46a-60 and (3) sovereign immunity bars claims for punitive damages against the state. We agree and reverse the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. On July 23, 2004, the plaintiff was transferred from a position with the department of children and families to a position with the office of victim services. The department of children and families is an agency within the executive branch of the state, and the office of victim services is within the judicial branch. In December, 2004, the plaintiff informed her supervisors that she was pregnant. On April 8, 2005, the plaintiff was discharged from her position at the office of victim services.

The plaintiff brought this action against the defendant by way of a three count complaint. In count one, the plaintiff alleged that the defendant improperly terminated her employment and failed to rehire her in violation of General Statutes §§ 5-196, 5-236 and 5-239 and "Connecticut Regulations § 5-239(b)...."¹ The plaintiff alleged that the defendant improperly subjected her to a nine month probationary period rather than the six month period provided in the State Personnel Act (personnel act), General Statutes § 5-193 et seq. The plaintiff also alleged that the defendant violated § 5-236 by failing to place her on the reemployment list and that the defendant's discriminatory conduct created a "hostile and offensive work environment...." In count two, the plaintiff alleged employment discrimination in violation of § 46a-60(a)(1), (4), (5) and (7), as well as the creation of a "hostile and offensive work environment...." In count three, the plaintiff alleged that the defendant "breached its express and implied contractual commitments to [her] by terminating [her] employment, without cause," and "breached the covenant of good faith and fair dealing by failing to take [the] rights afforded her ... seriously, and failing to place safeguards in the workplace that would prevent the [d]efendant from retaliating against [her]." Additional facts will be set forth as necessary.

We begin by noting the standard that this court applies in reviewing a trial court's ruling on a motion to dismiss. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... [O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous. See, e.g., Practice Book § 60-5; State v. Wiggs, 60 Conn.App. 551, 553, 760 A.2d 148 (2000). The determination as to which statutory and regulatory scheme governed the plaintiff's employment and whether sovereign immunity bars the plaintiff's claims are questions of law. "The question of whether a particular statute ... applies to a given state of facts is a question of statutory interpretation.... Statutory interpretation presents a question of law for the court.... Our review is, therefore, plenary." (Internal quotation marks omitted.) Atlantic Mortgage & Investment Corp. v. Stephenson, 86 Conn.App. 126, 131-32, 860 A.2d 751 (2004).

I

The defendant first claims that the court improperly denied its motion to dismiss as to the counts of the complaint alleging wrongful termination and breach of implied contract because the doctrine of sovereign immunity bars those claims.² We agree.

"It is a well-established rule of the common law that a state cannot be sued without its consent.... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.... The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." (Citations omitted; internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 78-79, 818 A.2d 758 (2003).

Our Supreme Court has held that "a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity ... or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 397, 968 A.2d 416 (2009). We will address each of these exceptions in turn.

A

With regard to the first exception to sovereign immunity, we must first determine which statutory scheme governed the plaintiff's employment with the defendant before we can determine whether sovereign immunity has been waived. The plaintiff argues that her employment with the defendant was governed by the personnel act. In particular, the plaintiff refers to § 5-196(20), which defines "permanent employee" as "an employee holding a position in the classified service under a permanent appointment or an employee holding a position in unclassified service who has served in such a position for a period of more than six months...." Section 5-196(21) defines "`[p]ermanent position,'" with limited exceptions that are not applicable here, as "any position in the classified service which requires or which is expected to require the services of an incumbent without interruption for a period of more than six months...." Section 5-196(25) defines "`[s]tate service'" as "occupancy of any office or position or employment in the service of the state, but not of local governmental subdivisions thereof, for which compensation is paid."

The defendant argues that the plaintiff's employment is governed by General Statutes § 51-12 rather than the personnel act. Section 51-12 provides in relevant part: "(a) With the exception of those employees whose compensation is fixed by statute, the judges of the Supreme Court shall, from time to time, prescribe the compensation plan for all employees of the Supreme Court and the Superior Court and other employees of the Judicial Department. (b) The compensation plan may include regulations concerning employee hiring and separation practices, sick leave, vacation leave, absences with and without pay, longevity payments, increments and all other matters regarding personnel policies and procedures. The judges of the Supreme Court shall establish such job classifications as they deem necessary as part of the plan...."

The defendant argues that within the powers prescribed by § 51-12, the judicial branch has promulgated its own personnel policies and procedures, including a nine month probationary period. In particular, the defendant refers to the judicial branch's administrative policies and procedures manual (manual), § 207, entitled "Probationary Periods," which provides in pertinent part: "Persons hired into permanent positions serve a probationary period, which is deemed an extension of the hiring process. Probationary periods are designed to provide the employee with an opportunity to demonstrate ability, interest, and skill.... The length of the probationary periods for bargaining unit employees are set forth in the Probationary Period articles of the collective bargaining agreements in a separate volume of this manual." Section 1(a) of article XI, entitled "Probationary Period," of the collective bargaining agreement between the judicial branch and the union of professional judicial employees AFT/AFT-CT AFL-CIO provides in pertinent part: "[P]ermanent status in a duly authorized full-time or part-time position will be attained by the employee after the conclusion of a satisfactory probationary period of nine (9) months of continuous employment...." (Emphasis added.)

The plaintiff's argument that her employment was governed by the personnel act rests on the broad language of that act, which speaks of employees in the "state service" and does not distinguish between the different branches of the state government. General Statutes § 5-194 provides in relevant part: "This chapter shall be so construed and administered as to provide a uniform and equitable system of personnel administration of employees in the state service...." As stated previously, § 5-196(25) defines "`[s]tate service'" as "occupancy of any office or position or employment in the service of the state, but not of local governmental subdivisions thereof, for which compensation is paid." On the basis of this language, the plaintiff asserts that "[...