Gemmell v. City of New Haven
Gemmell v. City of New Haven
Opinion of the Court
The plaintiff unsuccessfully appealed to the trial court challenging the New Haven board of fire commissioners’ decision to terminate him from his position in the New Haven fire department.
The trial court found the following facts, which are not disputed. On January 11, 1986, and February 8, 1986, the plaintiff took the civil service examination for the position of firefighter III. He passed the examination and was placed on the eligible list.
On February 2,1988, the board decided to allow the plaintiff to participate in the March training course and extended his probationary period to one year from the commencement of the training class. The plaintiff attended the March training course until he was injured again on April 4, 1988, and his physician determined that he was physically unfit to continue training. After undergoing surgery that summer, the plaintiff was eventually determined to be fit to return to light duty beginning November 7, 1988.
The plaintiff appealed from the board’s decision pursuant to § 117 of the New Haven charter, which provides: “Any officer or employee aggrieved by the action of said board may make application to any judge of a court of competent jurisdiction within and for New Haven county in the nature of an appeal from such order of the board of commissioners.” In his complaint, the plaintiff alleged that he was a New Haven fire fighter and that the board improperly “terminated [him] as an employee.”
The plaintiff asserted at trial that he was a permanent employee of the New Haven fire department, that he possessed a property right to his job, and that the board illegally terminated him. Conversely, the defendants maintained that the plaintiff was not a permanent employee, and, were he a permanent employee, his failure to exhaust his administrative remedies under the collective bargaining agreement between New Haven and the fire fighters’ union deprived the trial court of subject matter jurisdiction.
Whether the plaintiff was a probationary or permanent employee working as a fire fighter, who was wrongfully terminated, the trial court lacked subject matter jurisdiction to hear his appeal. A party may not institute an action in the Superior Court without first exhausting available administrative remedies. Hyatt v. Milford, 26 Conn. App. 194, 197, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1993); Lopiano v. Stamford, 22 Conn. App. 591, 594-95, 577 A.2d 1135 (1990). If the applicable administrative remedies are not exhausted, the trial court does not have subject matter jurisdiction over the matter. Trigila v. Hartford, 217 Conn. 490, 493-94, 586 A.2d 605 (1991); Hyatt v. Milford, supra. The doctrine of exhaustion discourages piecemeal appeals from the decisions of administrative agencies thus “fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). Thus, the plaintiff was obliged to invoke the grievance procedures set forth in the collective bargaining agreement. His failure to do so deprived the trial court of subject matter jurisdiction over the appeal.
“Unions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship. That authority encompasses issues of law as well as of fact. . . . Before pursuing even alleged violations of state statutory procedures and of constitutional rights
Article VI, § 6.1, of the collective bargaining agreement provides: “In the event that any dispute arises between the City and the Union or any employee concerning the interpretation or application of any of the provisions of this agreement or concerning wages, hours, and conditions of employment which are provided for in this Agreement or in any statute, charter provision, ordinance regulation or policy, or concerning any matter or condition arising out of the employer-employee relationship, such difference or dispute shall be deemed a grievance and shall be settled in accordance with the process set forth herein.”
Assuming that the plaintiff achieved the status of a probationary employee or even a permanent employee, we conclude that his dispute would fall within § 24.1 of the collective bargaining agreement
The first step of the process provides for a letter of grievance to the chief of the fire department to be followed by a meeting with the grievant and the union representative and the chief or a designated representative. If the grievant is not satisfied, a written grievance may be filed with the board, which will meet with the grievant and the union to attempt to resolve the dispute. The third step provides that the grievant and union representative may meet with the director of labor relations, after presenting a written grievance and meeting with the director or a designated representative. None of these procedures was undertaken. The fourth step, arbitration, applies only to permanent employees.
The plaintiff argues that the grievance procedures were not available to him because his appeal to the trial court was grounded in a dispute relating to his initial appointment under General Statutes § 7-474 (g).
Section 7-474 (g) applies to the process of making initial appointments and promotions.
The plaintiff instituted an appeal to the trial court alleging that he was improperly terminated as a fire fighter. Thus, the present dispute involves the plaintiff’s termination, not his initial appointment. The plaintiff does not assert and did not allege before the trial court that the process by which he was appointed was improper in any manner. Rather, he alleged that his termination was illegal in that “the process by which it was accomplished was arbitrary, capricious, wrongful, contrary to statute, regulations and contract and deprived plaintiff of his right to due process of law and the equal protection of the laws.”
Therefore, steps I through III of the grievance process set forth in the collective bargaining agreement were available to the plaintiff. By not invoking these remedies before bringing an action before the trial court, the plaintiff failed to exhaust his available administrative remedies. The plaintiff’s failure deprived the trial court of subject matter jurisdiction.
We note that even if the trial court had possessed subject matter jurisdiction, the plaintiff would not have prevailed. In his complaint, the plaintiff alleged that he was a New Haven fire fighter. It was his burden of proof to establish this allegation, and he failed to do this. Szachon v. Windsor, 29 Conn. App. 791, 797, 618
Article XXIV, § 24.1, of the collective bargaining agreement provides: “To enable the Board of Fire Commissioners to exercise sound discretion in the filling of positions within the Fire Department, no appointment to the position of Firefighter in the Fire Department shall be deemed final and permanent until after the expiration of a period of twelve (12) months probationary service. During the probationary period of any employee, the Board of Fire Commissioners may terminate the employment of such employee if, during this period upon observation and consideration of his performance of duty, they shall deem him unfit for such appointment.”
The judgment is affirmed.
In this opinion the other judges concurred.
The defendants in this matter are the city of New Haven and the New Haven board of fire commissioners.
Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter.... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. . . .”
The civil service rules and regulations for the city of New Haven defines “eligible list” as “[a]n employment list established by open competitive examination.”
Two contracts between the International Association of Firefighters, AFL-CIO, and New Haven are involved in this case. The first governs the period from July 1,1984, to June 30, 1987, while the second governs the period from July 1, 1987, to June 30, 1991. It is the latter that pertains to this dispute.
We refer in this ease to the agreement effective July 1,1987, because the termination occurred in 1988.
Under the agreement effective July 1, 1984, through June 30, 1987, grievance procedures were not available to probationary employees: “Nothing contained herein shall be used to deny any employee of any rights or any benefits to which he may be entitled under this Agreement or under the pension provisions of the City Charter covering employees of the Fire Department, except that probationary employees shall not have recourse under Article 6, Grievance Procedure.”
General Statutes § 7-474 (g) provides: “Nothing herein shall diminish the authority and power of any municipal civil service commission, personnel board, personnel agency or its agents established by statute, charter or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from which appointments or promotions may be made to positions in the competitive division of the classified service of the municipal employer served by such civil service commission or personnel board. The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such
As originally enacted; Public Acts 1965, No. 159, § 8; General Statutes (Rev. to 1966) § 7-474 (g) provided in pertinent part: “The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining.”
Before 1982, § 7-474 (g) did not exclude only “initial appointments” from collective bargaining. It excluded “appointments.” In 1982, subsection (g) was amended to ensure that promotional examinations were fairly conducted. Public Acts 1982, No. 82-212, § 1; 25 H.R. Proc., Pt. 10,1982 Sess., pp. 3082-83, 3334, 3342; 25 S. Proc., Pt. 9, 1982 Sess., pp. 2758-59, 2763-64. The word “initial” was inserted before the word “appointment” to remove any doubt that the amendment applied only to promotions and not to persons employed by the municipality for the first time. 25 H.R. Proc., Pt. 10., 1982 Sess., p. 3338.
Indeed, Article I, § 1.1, states: “The City hereby recognizes the Union as the sole and exclusive bargaining agent for all the uniformed and investigatory positions within the Department of Fire Service, including non-uniformed personnel presently assigned to the building maintenance and apparatus maintenance . . . (Emphasis added.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.