Roger Kindschi. City of Meriden et al. CV S. Superior Court of Connecticut, New Haven. October 10, Caption Date: October 9, 2007

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1 Roger Kindschi v. City of Meriden et al. CV S Superior Court of Connecticut, New Haven October 10, 2007 Caption Date: October 9, 2007 Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lopez, Carmen L., J. Opinion Title: MEMORANDUM OF DECISION MOTION TO DISMISS (#113) I. FACTS The plaintiff, Roger Kindschi, is a firefighter, employed by the City of Meriden. He brings this action against three defendants, the City of Meriden, Louis DiGennaro, an Assistant Fire Chief, and Joseph Kamiski, an Assistant Fire Chief. As a firefighter employed by the Defendant City of Meriden, the Plaintiff, Roger Kindschi, is also a member of Meriden Fire Local #1148 of the International Association of Fire Fighters, the bargaining unit consisting of all uniformed and investigatory positions within the Meriden Fire Department. On December 11, 2006, the Plaintiff filed a Substitute Complaint dated December 7, 2006, consisting of ten counts. The Substitute Complaint was filed, following the granting of a motion to strike (Robinson, J.) addressed to several counts of the initial complaint on November 27, The operative complaint sets forth in 277 numbered paragraphs, the facts giving rise to the filing of legal action by the Plaintiff. The Plaintiff has been a member of the Meriden Fire Department since He attained the rank of Captain in 1994, the rank he currently holds. The plaintiff alleges that the City of Meriden maintains five separate fire stations and the fire personnel are assigned to a particular station on a regular basis. Once the fire fighter is assigned to the particular base, it becomes that fire fighter's base station. Plaintiff's base station was Engine Company Five. Meriden Fire Department policy allows individual fire fighters to "swap station assignments with another firefighter if both firefighters are on overtime and the swap places at least one of the firefighters at his or her respective assigned base station." (Plaintiff's complaint, paragraph 22). On November 27, 2005, the plaintiff swapped his assignment with a fellow fire fighter, fire fighter Paczek. Although the swap was approved by the plaintiff's supervising Assistant Fire Chief, the swap was not approved by Paczek's supervisor, Assistant Fire Chief DiGennaro. The plaintiff alleges that at the time of the swap, he did not know that DiGennaro had denied Paczek's request for permission to swap assignments. As a result of this incident, the plaintiff claims that DiGennaro began a hostile campaign against him. The plaintiff further claims that DiGennaro "has had a long record of exhibiting threatening and hostile behavior while in the City's Fire Department." (Plaintiff's complaint, paragraph 44a-o.) This hostile behavior has included physical assaults against fellow fire fighters, assaults on his own son, as well as screaming profanities and threats during public meetings and/or in public places. According to the plaintiff, as a result of the swapping incident, DiGennaro threatened to "do everything in my power to bring you down." (Plaintiff's complaint, paragraph 51). The allegations in the complaint describe DiGennaro's pattern of behavior towards the plaintiff as that of an out of control bully who is accustomed to intimidating everyone around him, including his supervisors. On November 28, 2005, the day following the swapping incident, the Chief of the Meriden Fire Department granted DiGennaro's request and convened a meeting to discuss the assignment swap. The plaintiff asked his union representative, Firefighter James Cosenza to attend the meeting with him. During this meeting, DiGennaro admitted that he tapes all of his conversations and that he was in the process of taping everything that was being said at the meeting. In addition, he stated that, unbeknownst to the plaintiff, he had taped his earlier telephone conversation with the plaintiff. During this meeting, the union representative attempted to discuss some of the issues regarding DiGennaro's inappropriate conduct, including failing to follow the chain of command by calling the plaintiff directly rather than calling the supervisor. The Chief did not allow the conversation to include a discussion of this issue. The complaint alleges that as of the date of the filing of the complaint, the issue has not ever been discussed with the Chief. The Chief ended the meeting by stating that the plaintiff had violated department policy by participating

2 in the swap. The plaintiff was advised that he was on notice that the swap was illegal. The Chief then granted DiGennaro's request for a private meeting immediately following the Chief's meeting. On December 4, 2005, six days following the meeting, the plaintiff was told by his supervising officer, Assistant Chief Burdick that the defendant, Assistant Chief Joseph Kaminski, was "spreading false rumors about plaintiff around the department." (Plaintiff's complaint, paragraph 139.) According to Burdick, Kaminski was telling people in the department that the plaintiff was having an affair with a co-worker. On December 6, 2005, the plaintiff, while on duty, received a telephone call from DiGennaro. In that conversation DiGennaro admitted that he had an anger problem, apologized to the plaintiff and informed that plaintiff that he would attend the EAP. (Plaintiff's complaint, paragraphs ) Following this conversation, the plaintiff learned that DiGennaro was telling his fellow fire fighters that "Thanks to the Plaintiff, the Department was now a touchy-feely place." (Plaintiff's complaint, paragraphs ) Given what the plaintiff experienced as a lack of support from anyone in authority within the Fire Department following his meeting with the Chief on November 28, 2005, the plaintiff once again complained to his union representative and to the union president, Lt. Greg Polanski. He informed them that none of his concerns regarding DiGennaro's hostile behavior towards him were being addressed by the City. On December 14, 2005, the union president, Polanski, in the presence of Assistant Chief Burdick informed the plaintiff of the Chief's position regarding the situation. Essentially the Chief did not believe that DiGennaro had threatened the plaintiff. Polanski further informed that plaintiff that since the Chief had determined that DiGennaro had not threatened the plaintiff, the union's executive board was satisfied with the steps taken by the City to address the problem. He further informed the plaintiff that, although he personally was not satisfied with what the union had done, the Executive Board considered DiGennaro's voluntary participation with the EAP as sufficient. DiGennaro was at all times a member of the Executive Board of the Union. On January 5, 2006, the plaintiff consulted with an attorney. In a letter to the Chief on January 19, 2006, Polanski, in his capacity as union president, advised the Chief that the union was satisfied with his actions on the case and that no grievance would be filed against DiGennaro in regards to his threatening behavior towards the plaintiff. (Plaintiff's complaint, paragraphs ) On February 2, 2006, plaintiff's counsel sent a letter to the City's Personnel Director, Ms. Beitman, setting forth the plaintiff's complaints. Ms. Beitman did not respond to plaintiff's counsel but rather communicated directly with the plaintiff In a letter dated February 10, 2006, Ms. Beitman directed the plaintiff to attend a meeting in her office on February 14, The plaintiff attended the meeting convened by Ms. Beitman along with his union representative, Cosenza as well as the union president, Polanski. The plaintiff was unable to contact his attorney due to the long holiday weekend. The plaintiff further alleges that Ms. Beitman started the meeting by informing him that he acted inappropriately when he retained the services of an attorney to look into his complaint. The plaintiff also alleges that Ms. Beitman limited the discussion during the meeting to the events following the November 28, 2005 meeting with the Chief. Neither the plaintiff nor the union representatives were given an opportunity to discuss any events that led to the meeting with the Chief on November 28, According to Ms. Beitman the issues leading up to the meeting with the Chief were resolved and would not be discussed any further. On April 21, 2006, the defendants, through the Personnel Director advised the plaintiff that their internal investigation revealed no evidence "of violations of the violence control policy." (Plaintiff's complaint, paragraph 261.) In the first count of the complaint, the plaintiff alleges a violation of Conn. Gen. Stat. Sec d (Illegal recording of telephone conversations.). This count, however, is not the subject of this motion to dismiss and will not be discussed in this memorandum. The remaining counts will be discussed as necessary in this memorandum.[1] In the second count, alleging defamation, the plaintiff asserts that during the course of his employment, the defendants wrongfully and intentionally published false statements about him. These statements, charging the plaintiff with a proclivity for non-truthfulness, non-trustworthiness and marital infidelity, were published to his fellow workers as well as to the community at large. In the third count, the plaintiff alleges that the defendants invaded his privacy by false light. In support of this claim, the plaintiff describes various instances in which the defendants "accused him of being a liar in front of an entire shift of firemen," warned" an entire shift of firemen that they should watch their backs because they would be next" and "spread false rumors throughout the entire Fire Department that the Plaintiff was having an affair." (Plaintiff's complaint, third count, paragraph 292a-c.)

3 In the fourth count of the complaint, the plaintiff alleges that the accusation of having an affair, "caused problems at home." In addition, the plaintiff alleges that the defendants told an "entire shift of firemen that the Plaintiff could not be trusted causing the plaintiff fear and anxiety of being injured at work." In paragraphs of the factual background of the complaint, the plaintiff recites instances in which his personal property has been intentionally and maliciously defaced while on the Fire Department property. Examples of personal property destroyed include, personal gym equipment, "plaintiff's bail-out system-which is used in case the plaintiff needs to bail out of a window during a fire-has been sabotaged on many occasions, " as well as the destruction of the valves located within the plaintiff's face mask. In the fifth count, the plaintiff lists several ways that he claims that the defendant, City of Meriden and the Fire Department, breached their duty to supervise DiGennaro and Kamiski. Among the examples provided in the complaint are that they allowed these two codefendants to threaten, harm and defame the plaintiff despite their actual knowledge their propensity for violent, threatening and defamatory conduct and that they did nothing to stop or prevent their offensive behavior once they knew about it. In the sixth count, the plaintiff claims that the defendants' conduct, which he claims was extreme and outrageous, was intended to inflict severe emotional distress on the plaintiff and that the defendants knew or should have known that their conduct would likely result in such distress. According to the plaintiff, this conduct caused him to suffer severe emotional distress. The plaintiff claims, in his seventh count, that the defendants owed him a duty to prevent, refrain from and correct violations of the City's workplace violence policy. By engaging in the conduct described in the complaint, the plaintiff asserts that the City was negligent in that it breached its duty to the plaintiff. The plaintiff further claims that the defendants made representations to him regarding their intent to investigate the behavior in question and to take steps to correct it. In the ninth count, the plaintiff alleges that the defendants never intended to correct the behavior, but rather they intended to induce the plaintiff to rely on those statements. Plaintiff alleges that he did rely on those statements, all to his detriment. Finally in the tenth count, the plaintiff claims that by promulgating a workplace violence policy statement, the city created a contract with the plaintiff. The terms of the contract included that the city would promote a safe working environment for the plaintiff and in exchange the plaintiff "agreed to supply defendant with his diligent services and satisfactory work product while the defendant agreed to compensate plaintiff for such work product under the terms and conditions set forth in the implied contract." (Plaintiff's complaint, count ten, paragraph 346.) The Defendants have moved to dismiss the Plaintiff's complaint, claiming that the Court lacks subject matter jurisdiction. They allege that Roger Kindschi failed to exhaust administrative remedies available to him under the collective bargaining agreement, before initiating this action. II. STANDARD OF REVIEW "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion unless the judicial authority otherwise directs." Practice Book "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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "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." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "[A] claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented... and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). "[P]arties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "The trial court... [can

4 determine] sua sponte that its subject matter jurisdiction [is] in question..." Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of InformationCommission, 227 Conn. 848, 851, 633 A.2d 305 (1993); see also Daley v. Hartford, 215 Conn. 14, 28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 573, 112 L.Ed.2d 525 (1990). ("[T]he question of subject matter jurisdiction... can be raised by any of the parties, or by the court sua sponte, at any time.") III. CONTRACT PROVISION DOES NOT BAR LEGAL ACTION BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES The Defendants maintain that the Plaintiff's claims should be dismissed, because Captain Kindschi failed to exhaust remedies provided to him under the applicable collective bargaining agreement. They claim that he did not follow the grievance procedure provided in Article V of the agreement. The agreement, in relevant parts, provides: 1090 Section 1. No permanent employee shall be removed, dismissed, discharged, suspended, fined or reduced in rank except for just cause. Should an employee or group of employees feel aggrieved concerning disciplinary action, his/her or their wages, hours or conditions of employment, as agreed to hereunder, all of which wages, hours and conditions are controlled by this contract, adjustment shall be sought as follows: 1100 (a) The Union shall submit such grievance in writing to the Chief of the Fire Department within ten (10) working days of the event giving rise to the grievance, setting forth the nature of the grievance, including specific reference to the clause or clauses of the Contract which the Union believes have been violated. Within five (5) working days after said Chief receives such grievance, the Chief shall arrange to and shall meet with the representatives of the Union for the purpose of adjusting or resolving such grievance (b) If such grievance is not resolved to the satisfaction of the Union by the Chief within seven (7) days after such a meeting, the Union may present such grievance in writing within seven (7) days thereafter to the Personnel Director. Within seven (7) days after said Personnel Director receives such grievance, the Personnel Director shall respond in writing or meet with the Union in an attempt to resolve the grievance (c) If such grievance is not resolved to the satisfaction of the Union by the Personnel Director, the Union may within ten (10) days thereafter submit the dispute to arbitration by the Connecticut State Board of Mediation and Arbitration (d) Nothing contained herein shall prevent any employee from presenting their own grievance and representing themselves. The Defendants maintain that the failure of the Plaintiff to pursue a grievance under the Contract, even in the face of Union hostility, and the refusal of the Union to advocate for him during the grievance proceedings, subjects his claim to dismissal. This claim is not well taken. A failure to exhaust administrative remedies under a collective bargaining agreement deprives a court of subject matter jurisdiction. School Administrators Assn. v. Dow, 200 Conn. 376, 382 (1986). Therefore, before resorting to judicial action, an employee, as a general rule, must at least attempt to exhaust grievance procedures, because use of the grievance procedure is encouraged as a matter of policy, in order to establish a uniform method of resolving disputes arising under a collective bargaining agreement. Labbe v. Pension Commission, 229 Conn. 801, 811 (1994). An exception to this general rule has been found to exist, however, where the remedy provided by the agreement is inadequate, or would be futile. Labbe v. Pension Commission, supra, 812; Cahill v. Board of Education, 198 Conn. 229, 241 (1985). A close examination of the collective bargaining agreement, demonstrates that the Union "shall submit" a grievance to the Fire Chief, and then "may present" a grievance to the Personnel Director, should the Chief's response not prove satisfactory. Although the Union refused to prosecute the Plaintiff's grievance, it maintains that the employee, pursuant to the agreement may present his own grievance, and may represent himself throughout the proceedings. Therefore, the Defendants argue, an available remedy existed, because the agreement should be read to substitute "employee" for "Union" wherever appropriate. Pursuant to the agreement, (clause 1100), only the Union is permitted to "submit" a grievance to the Chief of the Fire Department. This it has refused to do. Since "submitting" a grievance is a prerequisite to the right to "present" that grievance to the Personnel Director, the Plaintiff was prohibited from "presenting" the grievance, in light of the Union's refusal to "submit" it to the Chief of the Fire Department. No provision of the agreement gives to an employee the right to submit a grievance to the Chief of the Fire Department. An employee may only "present" a grievance, or "represent" himself, under the express terms of the agreement. (Clause 1130.) In order to read the agreement as the Defendant wishes, it would be necessary not only to substitute the

5 word "employee" for "Union" wherever it appears in Article V, but also to find that the words "submit" and "present" are synonyms, notwithstanding the use of both words in different clauses in Article V. Furthermore, given the fact that the Plaintiff did avail himself of the services of the Union, when he first raised the issue concerning the defendant DiGennaro's erratic behavior, it can not be said that he bypassed the bargaining unit, and resorted immediately to legal action. He brought the issue to the attention of the Union, despite the fact that DiGennaro was a member of the Union's Executive Committee. The issue was discussed thoroughly with the Chief of the Fire Department and with the Personnel Director. The chronology shows a letter from the Union to the Fire Chief on January 19, 2006, stating that the Union agreed with the Chief's finding that there was no merit to the plaintiff's complaints. The Plaintiff's lawyer sent a letter to the Personnel Director on February 2, 2006, and the Plaintiff met with the Personnel Director on February 14, 2006 as a result of that letter. futile. The motion to dismiss filed by the defendants, is hereby, Denied. Carmen L. Lopez, Judge Footnotes: [1]. The remaining counts are as follows: Second Count: Defamation; Third Count: Invasion of Privacy by False Light; Fourth Count, Invasion of Privacy by Intrusion Upon Seclusion; Fifth Count: Negligent Supervision; Sixth Count: Intentional Infliction of Emotional Distress; Seventh Count: Negligence; Ninth Count: Fraudulent Misrepresentation; Tenth Count: Breach of Contract. (The complaint does not include an eighth Count.) The Plaintiff attended the February 14th meeting with the Personnel Director, in the company of the Union representative, Cosenza and the Union President, Polanski. During the meeting, the Personnel Director deferred to the Chief's decision and stated that all issues had been resolved. Although not part of a formal grievance, given the Union's refusal to file a grievance on Roger Kindschi's behalf, the Plaintiff informally contacted all of the agency personnel who would have been involved in the initial steps of the grievance procedure. Given these efforts and the responses of the Fire Chief and the Personnel Director, the Plaintiff was justified in determining that further resort to the grievance procedure would prove futile. He should not, as the Defendants suggests, be subjected to the ordeal of representing himself pro se in a situation in which the outcome was predetermined, in order to exhaust administrative remedies. To so find, given the facts as alleged, would be to place an unnecessary and burdensome hurdle in the path of a potential litigant, who seeks redress for alleged injuries through the legal system. It is found that the Defendants have not demonstrated that the Plaintiff failed to exhaust his administrative remedies, in that he should not be required on these facts to represent himself, as a prerequisite to legal action, given the position of his Union. It is further found, that, even if there was a failure to exhaust administrative remedies, that failure is excused because resort to the grievance procedure would prove