Superior Court of Connecticut, Judicial District of Hartford, Hartford
Oskar Harmon et al.
University of Connecticut
MEMORANDUM OF DECISION RE MOTION TO DISMISS
A. Susan Peck, J.
The plaintiffs, Oskar Harmon, Rosanne Fitzgerald, and Vicki Knoblauch, all employees of the Economics Department at the University of Connecticut, filed a four-count complaint alleging discrimination and retaliation, pursuant to General Statutes § 46a-60(a)(1) and § 46a-60(a)(4), against the defendant, the University of Connecticut. The operative (second amended) complaint was filed on January 28, 2015, and alleges the following facts. In 2010, Metin Cosgel was appointed the head of the Economics Department which entrusted him with significant administrative responsibilities. Since Cosgel's appointment, he has engaged in an ongoing pattern of age discrimination against the plaintiff, Oskar Harmon, a full-time professor of economics since 1982. On two occasions, Cosgel met with Harmon to discuss his age and plans for retirement. In one meeting Cosgel expressed his belief that Harmon would struggle to meet the publication requirements of the department given Harmon's age. Further, throughout the years, Cosgel subjected Harmon to discriminatory treatment that younger members of the faculty were not, including failure to assign Harmon private office space for teaching and research; canceling sections of Harmon's classes which were part of a University sanctioned research project; removing Teaching Assistant support for Harmon's classes; doubling the size of Harmon's online courses without providing increased compensation as would be customary; refusing to consider two of Harmon's published articles for the publication requirements of the department; denying Harmon classrooms with the necessary technology to teach his courses; and attempting to persuade the registrar to deny compensation to Harmon following Harmon's filing of an age discrimination claim with the University's Office of Diversity and Equity (ODE). Since 2010 and the start of the discriminatory behavior, Harmon has brought complaints against Cosgel through the ODE, the Office of Audit, Ethics, and Compliance, the Office of the Ombudsman, and the Dean's office, but the University has failed and/or refused to do anything.
Further, as to the plaintiff, Roseanne Fitzgerald, a Program Assistant for the Economics Department since 2000, the complaint alleges the following facts. Fitzgerald has been subjected to an ongoing pattern of retaliation by Cosgel because she assisted Harmon, and another individual from the Economics Department, in filing their discrimination complaints against Cosgel. In 2013, Fitzgerald provided testimony in two discrimination complaints against Cosgel, including that of Harmon. Prior to her testimony, Fitzgerald had always received satisfactory or better performance reviews, but following her testimony, Cosgel stated to Fitzgerald that she had " thrown him under the bus" and then downgraded Fitzgerald in several categories on her annual review. Moreover, Cosgel subjected Fitzgerald to harassing conduct that other equivalent employees of the department were not subjected to, including refusal to allow Fitzgerald to work from home; refusal to allow her to set her lunch time at the end of the day to leave early as she was approved to do previously; refusal to allow Fitzgerald to keep her office door closed. In addition, Cosgel required Fitzgerald to use sick time when the Governor had issued a snow day for all non-essential state employees. Further, Cosgel threatened Fitzgerald with termination if she did not assist him in hiding a letter of support from the Promotion, Tenure & Reappointment committee regarding a faculty member and presented Fitzgerald with two letters regarding areas of needed improvement in her performance. In December 2013, Fitzgerald's known medical condition, lymphedmia, worsened which prevented her from lifting heavy objects, as such, she requested she no longer be responsible for mail deliveries. Cosgel refused to relieve Fitzgerald of mail duty and her reasonable accommodation request with the University was never granted. Finally, in March of 2014, Fitzgerald applied for a newly created position in the department which she was qualified for, however, Cosgel gave the position to another employee who was less qualified.
Finally, as to the plaintiff, Vicki Knoblauch, a full-time Professor of Economics in the department since 2001, the complaint alleges the following facts. Knoblauch suffers from trigeminal neuralgia and vertigo and requires certain accommodations for which Cosgel is aware. In March of 2013, Knoblauch testified on behalf of Harmon regarding his age discrimination claim against Cosgel. Following her testimony, she was subjected to an ongoing pattern of retaliation including changes of her schedule, denying opportunities to teach preferred courses, and not allowing her to use classrooms that accommodate her disability.
On April 10, 2015, the defendant filed a motion to dismiss portions of the complaint for lack of subject matter jurisdiction. The plaintiffs filed an objection to the motion on May 11, 2015. In response thereto, the defendant filed a reply on July 9, 2015. The matter was heard at short calendar on July 13, 2015.
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). Accordingly, " under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).
As a preliminary procedural matter, the plaintiffs have argued that because the motion to dismiss pertains only to portions of the complaint and not entire counts, it is improper. The court rejects this argument. " [W]here a motion to dismiss implicates subject matter jurisdiction, the court may dismiss portions of a complaint, including individual paragraphs within counts." Cavaciuti v. Gnesda, Superior Court, judicial district of Hartford, Docket No. CV-14-6050720-S (May 28, 2015, Peck, J.) [60 Conn. L. Rptr. 457, 2015 Conn. Super. LEXIS 1498]. See also Paragon Construction Co. v. Dept. of Public Works, 130 Conn.App. 211, 221 n.10, 23 A.3d 732 (2011) (" the appellate courts of this state have ordered the dismissal of portions of a count of a complaint . . ."); Ware v. State, 118 Conn.App. 65, 78 n.4, 86-87, 983 A.2d 853 (2009) (reversing the trial court's denial of a motion to dismiss directed only at portions of counts); Lennon v. Dolce Vida Medical Spa, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6017172-S (February 10, 2015, Kamp, J.) [59 Conn. L. Rptr. 739, 2015 Conn. Super. LEXIS 294] (entertaining motion to dismiss directed at only portions); Higbie v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021796-S (November 5, 2014, Tobin, J.) [59 Conn. L. Rptr. 283, 2014 Conn. Super. LEXIS 2764] (dismissing portions citing Ware and Paragon Construction Co.); Lloyd v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023491-S, 2011 Conn. Super. LEXIS 3226 (December 21, 2011, Young, J.) (dismissing eight paragraphs of a one-count complaint for lack subject matter jurisdiction because " there is nothing in the practice book precluding dismissal of certain claims within a complaint").
In support of its motion, the defendant argues the court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies to the extent the complaint contains claims that were not timely filed within the statutorily mandated 180 days. Therefore, the defendant moves to dismiss the portions of the complaint alleging actions that predate 180 days of each plaintiffs' CHRO filing, specifically paragraphs 12-26, 37-47, and 61-68.
In their objection, the plaintiffs argue that the complaint alleges a continuing or ongoing pattern of discriminatory and retaliatory conduct which implicates the continuing violation doctrine. The doctrine allows plaintiffs to rely on discrimination and/or retaliation occurring prior to the time limitations of the statute as long as the most recent adverse actions occur within the limitations period. Specifically, the plaintiffs contend that their complaint alleges a hostile work environment which Connecticut courts have stated does not occur on any particular day, but rather is created through often minor acts of hostility over a prolonged period of time. In the brief reply filed by the defendant, it argues, because the plaintiffs never included a claim for hostile work environment within their CHRO complaint, nor in the operative complaint, their entire objection relying on a hostile work environment claim, is irrelevant.
The Connecticut Fair Employment Practices Act (CFEPA) requires, " Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." General Statutes § 46a-82(f). Generally, our courts have held that " [e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Jackson v. Water Pollution Control Authority of Bridgeport, 278 Conn. 692, 706 n.12, 900 A.2d 498 (2006). However, the continuing violation doctrine is an exception to the general rule that discrete discriminatory acts, such as termination, failure to promote, and denial of a transfer, are not actionable if time barred by statute. " According to the continuing violation doctrine, if a plaintiff files an administrative charge that is timely as to any incident of discrimination that is in furtherance of an ongoing policy of discrimination, all claims of discrimination under that policy will be timely . . ." O'Hazo v. Bristol-Burlington Health District, 599 F.Supp.2d 242, 253 (D.Conn. 2009). See also Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 772 n.10, 886 A.2d 1248 (2005) (" According to the continuing violation doctrine, if a plaintiff has experienced a continuous practice and policy of [discrimination] . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it").
Our Supreme Court first recognized the continuing violation doctrine as to CFEPA claims in Board of Education v. CHRO, 177 Conn. 75, 411 A.2d 40 (1979) and reaffirmed it in State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 473, 559 A.2d 1120 (1989) (" discrete incidents occurring during a continuum of discriminatory employment practices may constitute fresh violations"). In addition, the Supreme Court stated in Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 271, 777 A.2d 645 (2001), " in interpreting the 180-day time limit to file a discrimination complaint under § 46a-82, we do not write on a clean slate. Section 46a-82(e) comes to us at this point in our jurisprudence with a well established judicial gloss." The court went on to summarize earlier holdings, noting the " well-established principle of equitable tolling of limitations periods based on an employer's continuing acts of discrimination." Id., 277. Further, in Hartford v. Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain, Docket No. CV-03-0520745-S, 2004 Conn. Super. LEXIS 366 (February 19, 2004, Shapiro, J.), the court upheld the CHRO commissioner's application of the continuing violation doctrine in connection with a failure to promote and unequal pay claim under CFEPA. Specifically, the court noted the doctrine was applicable where a female employee was discouraged from seeking reclassification/promotion years prior to her filing a claim, but continued to be paid less than her male coworkers while doing the same work within the 180 days prior to her CHRO filing.
The defendant argues that the continuing violation doctrine has been limited by the United States Supreme Court to hostile work environment claims and the plaintiff has not actually alleged a hostile work environment. The plaintiffs counter that even if the term " hostile work environment" is not used explicitly within the text of their complaint, the allegations and the use of the terms " continuous" and " ongoing" amount to a claim of a hostile work environment. The court agrees with the plaintiffs.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the United States Supreme Court distinguished between discrete discriminatory acts occurring outside the appropriate time period, which are not individually actionable, and repeated related discriminatory conduct by the employer, which creates an ongoing hostile work environment and is actionable if at least one discrete act falls within the statutory time period. Id., 112. " Provided that an act contributing to the claim [of discrimination] occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., 117. As our own Supreme Court has noted, in response to an argument similar to that of the present defendant, when some of the discriminatory acts complained of fall within the statutory time period it is appropriate for the court " to consider the entire scope of the hostile work environment." Patino v. Birken Mfg. Co., 304 Conn. 679, 682 n.3, 41 A.3d 1013 (2012).
While the plaintiffs do not use the words " hostile work environment, " certainly the import of their allegations is that the continuing acts and practices of the defendant, both inside and outside of the statutory time period, have created a hostile work environment. " [T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . ." Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, constrning them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). In their second amended complaint, the plaintiffs use phrases including " an ongoing ...