Friedman v. Office of Comptroller, Ruling on Resp.'s Motion to Dismiss

CHRO 0110195

Fed No. 16aa11058

Commission on Human Rights and Opportunities ex rel.
Sharon Friedman

v.

State of Connecticut, Office of the Comptroller, et al.

November 17, 2003

RULING ON RESPONDENT'S MOTION TO DISMISS

I. Background

The issues presented in this case, and by this motion had their origins in collective bargaining negotiations which occurred in 1999 pursuant to the reopener provisions of the 1997-2017 health and pension benefit agreement between the State and SEBAC, a coalition of unions representing a majority of State bargaining unit employees (Resp. Ex. 1, pg. 1-2). Failing agreement on one issue (aka "single issue arbitration"), that issue was submitted to arbitration in October 1999: to wit, "whether and how domestic partners should be covered by pension and welfare benefits". The state and SEBAC submitted their respective last best offers, and by statute the arbitrator was required to select one or the other.

It is important to note that SEBAC's offer (the state offered no coverage) defined the couples covered (as domestic partners) as follows: " A couple shall be eligible for domestic partner status only if the couple is unable to marry in Connecticut because Connecticut's marriage provisions distinguish between same sex and opposite sex couples. Should eligibility to marry in Connecticut no longer be precluded on the basis of this distinction, the following provision shall cease to be effective on that date…"(Resp. Ex. 1, pg. 3). The arbitrator adopted SEBAC's position in her award of January 31, 2000.

Shortly after the adoption of this award on July 24, 2000, the Complainant herein made application for domestic partner health benefits through her employer, the State of Connecticut Workers Compensation Commission. This application was denied on July 27, 2000 on the basis that domestic partner health benefits were available only to same sex partners, and in her case the individual concerned was male. As a result, Ms. Friedman filed an Affidavit of Complaint on November 17, 2000. Subsequently amended, the Complainant alleged that the Respondent discriminated against her on account of her sexual orientation (heterosexual) and marital status (single).

After investigation, and the failure of conciliation, reasonable cause was found and the complaint was certified to public hearing on or about October 30, 2002. A Hearing Conference was held on November 26, 2002, at which time it was agreed by the parties that the case presented little or no factual issues, but instead significant legal issues of first impression. Consequently, in order to determine such issues Respondent filed a Motion to Dismiss on January 8, 2003 with a supportive memorandum. The Commission (hereafter "CHRO") filed an objection, with supporting memorandum, on February 20, 2003, and oral argument on this matter was held on March 12, 2002. Pursuant to oral argument, the undersigned ordered the parties to submit supplemental and reply briefs to deal with questions raised during oral argument.

The parties requested, for good cause, various continuances in the dates for submission of their briefs, with the result that final reply briefs were filed and received on September 16, 2003. A Status Conference was also held on October 8, 2003 in order to confirm the positions of the parties as reflected in their written submissions.

This ruling, and decision, is based on a careful consideration of the legal arguments made in the briefs filed on this case, the arguments made, on March 12, 2003, and the exhibits already made part of the record.

II. Analysis

Section 4-61dd-15c(1) and (2) of the Regulations of Connecticut State Agencies provides in pertinent part that "the presiding officer may, on his own or upon motion by a party, dismiss a complaint…if the complainant fails to establish jurisdiction or (2) fails to state a claim for which relief can be granted". It is equally clear that an administrative agency should be given the opportunity to rule on its subject matter jurisdiction. Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439 (1989), and that "when the subject matter jurisdiction of the adjudicatory body is challenged, cognizance of it must be taken and the matter passed on before it can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction". Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297.

It is thus clear that there is both the obligation and the authority for the undersigned to rule on the Respondent's motion.

The arbitration award of January 31, 2000 is, as noted previously, central to the issues raised for consideration, and as such deserves further scrutiny in light of the arguments made by the parties. In that regard references to it will hereinafter use its pagination in Respondent's Exhibit 1.

Chapter 68, "Collective Bargaining for State Agencies", incorporating Section 5-270 to 5-280 of the Connecticut General Statutes, establishes the legal framework for bargaining between the State and its employees. In this particular case there is no dispute that the Complainant was at the time of the award, and is now, a member of SEBAC (hereinafter called the "union"). Therefore the union was the statutorily authorized "exclusive representative" of the Complainant in its negotiations with the State (C.G.S. 5-271).

Pursuant to a reopener provision in the 1997-2017 health and pension benefit agreement between the union and the State, negotiations commenced in 1999 over an unresolved issues, namely the union's proposal that the State extend their benefits to domestic partners and to their otherwise eligible children ("award" p. 2). What is important to note Is the fact that in these negotiations the union "sought domestic partner benefits for both same sex and opposite sex couples", and that there was "no dispute that when opposite sex couples are excluded, both the anticipated increase in health benefit enrollment and the overall cost to the employer drop dramatically" ("award" p. 16). In other words the possible extension of these benefits to qualifying, non-married heterosexuals was actively bargained for during the negotiations, and among other factors the projected costs calculated and considered.

However, as the record makes clear, the union narrowed its claim in making its "last best offer" to defining domestic partner eligibility as applying only to those situations where "the couple is unable to marry because Connecticut's marriage provisions distinguish between same sex and opposite sex couples" ("award" p. 3). In other words, the Complainant's own legal representative, the union, agreed to waive in the context of its labor negotiations the very benefits Complainant now seeks to obtain from the State through a process outside the scope of Chapter 68 of the Connecticut Statutes.

Seen in this light, the Respondent's adamant stance that the CHRO lacks jurisdiction to pursue this claim has merit in view of the statutory scheme laid out in Chapter 68 Connecticut General Statute 5-276a(e)(6), provides in clear language that "the award of the arbiter shall be final and binding upon the employer and the designated employee organization unless rejected by the legislature as provided in Section 5-278, except that a motion to vacate or modify such award may be filed in the Superior Court for Judicial District of Hartford within thirty days following receipt of such award. The court, after hearing, may vacate or modify the award if substantial rights of a party have been prejudiced because such award is:

It is undisputed that the legislature did not reject the award, and that no appeal was filed within the specified thirty-day period. Thus, the Respondent argues that no further legal attack can be made on the award and the Complainant's action in this case has no legal basis.

The CHRO counters by arguing that (1) it is not attacking the award per se but merely its "implementation" by the State (CHRO Reply Brief p. 7), and (2) that Connecticut General Statute § 46a-85 confers jurisdiction on it in Interest Arbitration (as here) as well as in Grievance arbitration.

Dealing with the latter point first, the CHRO argues that Connecticut General Statute § 46a-85(a), providing that "the submission of a claim to the arbitration process shall not bar a person from filing a complaint under this chapter", specifically provides it with jurisdiction in cases such as this, especially in light of the remedial nature of CHRO's enabling statutes and the concomitant requirement "to construe remedial statutes liberally in order to effectuate the legislature's intent" CHRO v. Sullivan Associates, 250 Conn. 763,781-2.

Respondent, however, argues, effectively in my judgement, that this statute in fact applies only to grievance arbitration and not to interest arbitration. In support of that position, Respondent notes that the CHRO itself concedes that Connecticut General Statute § 46a-85 was enacted (as P.A 75-214) in response to U. S. Supreme Court's decision in Alexander v. Gardner-Denver, 415 U.S. 36, 94 S. CT. 1011 (1974), which held that an employee's right to pursue a Title VII claim was not barred by his prior submission of a claim to a final arbitration under the non-discrimination clause of the collective bargaining agreement.

Respondent notes in its Post Argument Brief dated August 8, 2003 the legislative history of PA 75-214, which in pertinent part said the purpose "is to make the law of the State of Connecticut conform with the 1974 U. S. Supreme Court ruling in Alexander v. Gardner-Denver, case…amends the Fair Employment practices law to provide that persons who submit a grievance (emphasis added) to arbitration do not lose their statutory legal right to file an anti-discrimination complaint with the Commission on Human Rights and Opportunities…18 Conn. H.R. Proc., pt. #5, 1975 Sess. 2231-32 (May 1, 1975) (remarks of Rep. Clark). That this interpretation, limiting the applicability of this statute to grievance arbitration matters, is correct becomes more evident in reconciling its provisions with those of Chapter 68 in their totality.

As noted previously, Connecticut General Statute § 5-276a(e)(6) places strict limits on the ability of a party (emphasis added) to challenge an award Connecticut General Statute § 5-278(e) goes even further, stating in relevant part: "when there is a conflict between any agreement or arbitration award approved in accordance with the provisions of Section 5-270-5-280, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any general statute or special act or regulations adopted by any state agency, the terms of such agreement or arbitration award shall prevail…(emphasis added).

The Legislature clearly intended that its ratification of an agreement, or award, would have the effect of nullifying, or modifying, existing laws that might be deemed in conflict with an agreement or award. In effect ratification amounts to a modified statutory scheme as necessary to effectuate the results of the collective bargaining. Interestingly, Connecticut General Statute § 5-278(b) does provide for "approval of any provisions of the agreement which are in conflict with any statute or regulation of any agency". Testimony at the March 12, 2003 hearing by Linda Yelmini, Director of the Office of Labor Relations for the State of Connecticut, adduced the fact that collective bargaining agreements submitted for legislative notification are required to have attached "a supercedence appendix whenever there is an agreement outlining the statutes that the parties have agreed will be superceded" (Tr., p. 89, March 12, 2003).

However, Ms. Yelmini also testified that a supercedence appendix was not required when the submission contained an arbitration award as opposed to a collective bargaining agreement. (Tr. 96) in conformance with the agreed interpretation of Connecticut General Statute § 5-278(b) by counsel for the House and Senate. This logically confirms the legislature's intent, manifest in 5-278(e), that arbitration awards be freed from the prospect of legal challenges based on statutes in actual or potential conflict with an award.

As noted previously above, the CHRO has most recently contended, most especially in its Reply Brief dated September 11, 2003 (p. 7), that "neither the Complainant nor the Commission are attacking the award per se". This is, however, a disingenuous position and in direct conflict with the CHRO's earlier argument in its February 20, 2003 Memorandum in Opposition to the Respondent's Motion to Dismiss. In that Memorandum the CHRO devoted an entire section of its brief (p. 8-9) to the proposition that "the Arbitrator's Decision violates Public Policy". The CHRO's change in position was no doubt predicted on its realization that this was an untenable position in light of the relevant statutory and case law.

It is disingenuous to now arguably attack the "implementation" of the award, which unquestionably has been in total consonance with it, as opposed to the award itself. What is emphatically clear is that the Complainant, and the CHRO in her behalf, are trying to obtain precisely the benefits that her legal representative - the union - knowingly bargained away during the reopener negotiations and arbitration that derived from them. Allowing such a collateral attack on the arbitration award would plainly upend and circumvent the legislative policy established under Chapter 68 of the General Statutes.

Read in their entirety, Sections 5-270 through 5-280 of the Connecticut General Statutes establish clear and distinct procedures applicable to a limited universe of individuals, namely those covered by State collective bargaining. Those procedures specify the exact circumstances under which an award can be rescinded or modified, and enunciate a legislative priority for such final determinations to the extent that they can transcend existing, conflicting law where necessary for the limited universe covered by Chapter 68.

Since, for the foregoing reasons, the CHRO lacks jurisdiction as well as the ability to afford the relief requested, the Respondent's Motion to Dismiss must be granted. That being the case, it is unnecessary to further consider the Respondents' Motion to Vacate dated September 16, 2003 as it is now moot.

The motion to dismiss is granted.

Dated this 17th day of November 2003

___________________________
Gordon T. Allen
Presiding Human Rights Referee

cc.
Sharon Friedman
Cheryl Sharp, Asst. Commission Counsel
Sharon Scully, Asst. Attorney General
Gareth D. Bye, Director of Legal Affairs, OPM