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Nickerson v. Town of New Milford

Superior Court of Connecticut, Judicial District of Danbury, Danbury

May 4, 2017



          OZALIS, J.



         On December 14, 2016, the plaintiff, Joseph Nickerson, filed the six count complaint in this action against the defendants, the Town of New Milford, Michael F. Zarba, the Director of Public Works, William J. Mayers, the Highway Superintendent, and Joseph W. Tillman, the Highway Foreman. The plaintiff is a former employee in the Highway Department of the Town of New Milford and alleges claims sounding in contract and tort.

         The plaintiff alleges the following facts. A collective bargaining agreement (CBA) defined the terms of his employment. Pursuant to the CBA, the defendants were obligated to promptly test the plaintiff on the safe operation of certain pieces of equipment. The defendants, however, breached this provision of the CBA, and then terminated the plaintiff when he had not completed the necessary safety tests by June 30, 2015. Moreover, the plaintiff alleges that the defendants also falsely represented to the plaintiff that he would not be terminated should the tests not be completed by June 30, 2015.

         On January 19, 2017, the defendants filed the present motion to dismiss on the ground that the court lacks subject matter jurisdiction. The motion is accompanied by a memorandum of law and several exhibits: an affidavit by Zarba; the termination letter sent to the plaintiff, dated June 30, 2015; the plaintiff's grievance report, dated July 28, 2015; the letter memorializing the denial of the plaintiff's grievance, sent from Zarba to the union business representative, dated August 25, 2015; and the CBA. The defendants argue that Article 16 of the CBA establishes the required procedures for any grievance filed by an employee, and that, pursuant to those procedures, the plaintiff was required to submit his grievance to arbitration. The defendants contend that the plaintiff's failure to exhaust his administrative remedies under Article 16 deprives the court of subject matter jurisdiction.

         On March 13, 2017, the plaintiff filed a memorandum of law in opposition to the motion to dismiss. The memorandum is accompanied by two exhibits: an affidavit by the plaintiff and a decision from the Employment Security Appeals Division concerning the plaintiff s claim for unemployment compensation. The plaintiff offers several arguments in opposition to the motion. First, the plaintiff argues that Article 15 of the CBA, which concerns discharged employees, controls the present case and that he exhausted his remedies under Article 15. Next, the plaintiff argues that Article 16 cannot bar his tort claims because Article 16 only applies to disputes arising out of the interpretation or application of the CBA. Finally, the plaintiff argues that because the defendants repudiated the terms of the CBA by failing to promptly schedule the necessary tests for the plaintiff, the defendants are estopped from claiming any benefit under the CBA. The court heard oral arguments at short calendar on March 27, 2017, and reserved judgment at that time.



         " 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). " Under [the exhaustion 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. ... The [exhaustion doctrine] is applied in a number of different situations ... including when an exclusive grievance or arbitration procedure is contained in a collective bargaining agreement and when an administrative appeal is taken." (Citation omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).

         " Notwithstanding the important public policy considerations underlying the exhaustion requirement, this court has carved out several exceptions from the exhaustion doctrine ... although only infrequently and only for narrowly defined purposes." (Citation omitted; internal quotation marks omitted.) Garcia v. Hartford, supra, 292 Conn. 340. " An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. ... In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee's cause of action." (Citations omitted.) Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Neiman v. Yale University, 270 Conn. 244, 252, 851 A.2d 1165 (2004). [1] Accordingly, " [a] plaintiff may file suit despite his failure to exhaust fully his contractual remedies ... when the employer repudiates the private grievance machinery ... (Internal quotation marks omitted.) Zeyer v. Board of Education, 98 F.Supp.3d 425, 441 (D. Conn. 2015); see also Vera v. Saks & Co., 208 Fed.Appx. 66, 68 (2d Cir. 2006); Schum v. South Buffalo Railway Co., 496 F.2d 328, 330 (2d Cir. 1974) .

         In the present case, Article 16 of the CBA establishes a three-step process to resolve " [a]ny grievance arising between the Employer and the Union or any employee represented by the Union ...." Step one requires the employee to present a written grievance to the steward and employer within thirty days of the alleged violation. The employer is then to meet with the employee and steward within six days to affect a resolution; if the matter is not resolved, the steward and employee must submit the written grievance to the union's business representative within five working days in order to move to step two. Step two requires that the business representative take the matter up with a representative of the employer within five working days of receiving the grievance. A decision must then be given to the business representative within five working days, and " [a]ny agreement settling the grievance shall be in writing and signed by the parties."

         Even assuming that the claims in the present case are governed by Article 16, which the plaintiff disputes, the exhibits submitted by the defendants indicate that the defendants did not adhere to the grievance procedures laid out in Article 16. Zarba's affidavit states that the plaintiff's grievance report, dated July 28, 2015, was received on July 29, 2015. There is nothing, however, to suggest that a meeting occurred within six days; rather, the affidavit indicates that a hearing was held on August 19, 2015. [2] The defendants thus repudiated step one of the grievance procedures laid out in Article 16. Furthermore, after determining that no violation of the CBA occurred, Zarba memorialized the denial of the plaintiff's grievance in a letter to the union business representative on August 25, 2015. Although Zarba's affidavit characterizes this letter as confirming " the understanding and agreement amongst the parties that there was no CBA violation, " it is not signed by the parties, and there is no evidence of a signed ...

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