Preview
Ex N
DN-FBT-CV-11-6021982-S ‘SUPERIOR COURT
ROBERT SATAWHITE J.D. OF FAIRFIELD
V. :AT BRIDGEPORT
CITY OF BRIDGEPORT ‘January 15, 2013
OPPOSITION TO MOTION TO DISMISS
|. FACTS
The plaintiff Robert Satawhite was a school security officer for the City
of Bridgeport Board of Education. In his complaint he alleges that Defendants Director
of Labor Relations for the City of Bridgeport Lawrence Osborne; Melvin Wearing, the
former head of security for the Bridgeport Board of Education and Carole Pannozzo, the
former Human Resources Director for the Bridgeport Board of Education acted in such
a manner as to breach his alleged employment contract that plaintiff had with the City of
Bridgeport Board of Education. Specifically, plaintiff alleges that he was placed on
suspension in June 2006 for two weeks and indefinitely suspended for a period of seven
years which constitutes an illegal and improper employment condition imposed upon
him. Plaintiff further alleges that the defendants breached his employment contract
because defendants interfered with his duties and obligations as a security officer and
denied him his benefits; defendants suspended him without just cause; defendants
failed to provide him a work environment that was free of unprofessional and illegal
work demands and conditions; defendants failed to perform in accordance with plaintiff's
employment agreement and the purposes thereof; defendants failed to perform in a
1manner that would have resulted in the maximum benefit available to the plaintiff.
Plaintiff claims damages as a result of the defendants’ alleged conduct.
Defendants’ Motion to Dismiss, dated November 27, 2012, contends that this
court lacks subject matter jurisdiction to entertain the claims alleged in plaintiff's
complaint because the plaintiff allegedly failed to exhaust his administrative remedies.
The Defendants’ Motion should be denied because alternatively a) the plaintiff
did avail himself of his administrative remedy and b) the plaintiff did not need to exhaust
his administrative remedies because it would have been futile to do because said
administrative remedies were futile and inadequate under the facts and circumstances
of the instant case.
Il. ARGUMENT
The doctrine of exhaustion is grounded in a policy of 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. Connecticut Life & Health Ins.
Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59 (1977). The doctrine of exhaustion
furthers the salutary goals of relieving the courts of the burden of deciding questions
entrusted to an agency ... in advance of possible judicial review. Concerned Citizens of
Sterling v. Sterling, 204 Conn. 551, 557 (1987). However, “[d]espite the important public
policy considerations underlying the exhaustion requirement, we have grudgingly
carved several exceptions from the exhaustion doctrine. Cahill v. Board of Education
198 Conn 229 (1985). One of the limited exceptions to the exhaustion rule arises when
recourse to the administrative remedy would be demonstrably futile or inadequate. O &
G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419 (1995). Labbe v.
2Pension Commission, 229 Conn. 801 (1994)(Internal quotation marks omitted.) Hunt v.
Prior, 236 Conn 421 (1996). "An administrative remedy is futile or inadequate if the
agency is without the authority to grant the requested relief." Cannata v. Dept. of
Environmental Protection,215 Conn 616 (1990).
In the instant case, an exception to the exhaustion of administrative remedies
requirement applies because the issues in controversy between the plaintiff and the
defendants are separate and distinct from the issues contemplated by the collective
bargaining agreement between the City of Bridgeport and the National Association of
Governmental Employees, plaintiff's bargaining unit. Rather than imposing conditions
on plaintiff's employment or discipline, the defendant's conduct towards plaintiff was
illegal and improper. Plaintiff's complaint alleges that he was placed on administrative
suspension without pay for a period of twenty days, from Tuesday May 30, 2006 to
Tuesday June 20, 2006. Exhibit 1. Said action was in fact the subject of a subsequent
grievance filed by the plaintiff. (Case No. 2007-A-0029) Exhibit 2. In so doing, plaintiff
fully complied with the required administrative procedures. It is interesting to note that
said “discipline” was reduced to five days. Notwithstanding the resolution of plaintiff's
grievance, the plaintiff was not permitted to return to work on June 20, 2006. On that
date, plaintiff was sent home and an indefinite suspension was imposed. Exhibit 3 and
4. Said indefinite suspension has now continued to the present date and as such,
constitutes a constructive discharge from plaintiff's employment and outside the
parameters of the parties’ Collective Bargaining Agreement. Exhibit 5.Ill. CONCLUSION
For the reasons enumerated above, this court has subject matter
jurisdiction to consider and determine the claims alleged in plaintiff's complaint.
Plaintiff in fact, grieved his work related complaint. Moreover, given the facts and
circumstances of this case, plaintiff was not required to exhaust his administrative
remedies as said efforts would have been futile or inadequate.
THE PLAINTIFF
Robert Satawhite
By.
Jerald Barber
Williams and Barber
34 Wright Avenue
New Haven, Connecticut 06515
(203) 787-2236
(203) 821-7699
Juris No. 413651
jerald_s_barber@sbcglobal.netCERTIFICATION
| hereby certify that | have caused to be served a copy of the foregoing this 16"
day of January, 2013 via the court's electronic filing system and hand delivery, to the
following counsel and parties of record.
Attorney John Mitola
999 Broad Street
Bridgeport, Ct. 06604
Jerald BarberFBT CV 11 6021982
. ROBERT SATAWHITE
Vv.
CITY OF BRIDGEPORT, BT AL
EXCERPT
APPEARANCES:
Representing the Plaintiff:
ATTORNEY GERALD BARBER
34 Wright Avenue
New Haven, CT 06515
Representing the Defendant:
ATTORNEY JOHN MITOLA
999 Broad Street
Bridgeport, CT 06604
BEFORE THE HONORABLE DALE RADCLIFFE, JUDGE
Williams & Barber Law Offices
Office of the City Attorney
: SUPERIOR COURT
: JUDICIAL DISTRICT EX. 0
OF FAIRFIELD
AT BRIDGEPORT, CONNECTICUT
JANUARY 16, 2013 X
HEARING
Recorded By:
P’Shaunda D. Gibbs-Hopkins
Transcribed By;
P’Shaunda D. dibbs-Hopkins
Court Recording Monitor
1061 Main Street
Bridgeport, CT 066041
morning by five minutes.
This is the matter of Robert Satawhite versus
the City of Bridgeport, et al. The docket number is
11-6021982.
Will counsel identify themselves for the record
please, and indicate the party or parties they
represent?
ATTY BARBER: Yes. Good morning, Your Honor.
Gerald Barber for the plaintiff;
Robert Satawhite, who’s sitting right next to me.
THE COURT: All right, good morning.
MR. SATAWHITE: Good morning.
ATTY MITOLA: Good morning, Your Honor,
John Mitola for the City of Bridgeport.
THE COURT: Good morning, all right.
Gentlemen, I believe the operative pleadings in
this matter are the initial complaint returnable
August 10°*, 2011. There is an answer in special
defense dated December 19°, 2012 and there’s also an
answer dated January 13, 2012. I -- I assume one is
the request for leave to amend and a reply to the
special defenses which denies the special defenses,
which is an appropriate pleading notwithstanding the
amendment.
The amendment, it seems to me, adds accorded
satisfaction and a claim of lack of subject matter
THE COURT: Good morning. I guess it’s still goodTHE COURT: As -- as I read the complaint and the
exhibits to the motion to dismiss and your motion --
ATTY MITOLA: Yes, Your Honor.
THE COURT: -- as I understand it, it’s the
plaintiff’s position that he was subject to a
grievance procedure. The grievance procedure was, in
fact, held and completed. There was an agreement; a
handwritten agreement, signed by all of the parties
to that grievance pursuant to which his 20 day
suspension was reduced to five days. He was ordered
pack to work. He then reported to the Chief of
Security; Mr. Wearing, and was told that it would be
necessary for him to obtain a(cedice). examination)
prior to going back to work. It’s their position that
that constituted the constructive discharge based on
the indefinite suspension and was something not
covered by the written agreement.
At least that’s the way I understand it -
the -- and I’m sure Mr. Barber can adequately and
accurately speak for himself, but that’s the way I
understand the argument at this point.
ATTY MITOLA: And, Your Honor, that -- that may
be their argument, but a couple of things on that.
The way the City reads the complaint is it talks
about an administrative suspension in June of 2006
without pay and indefinitely suspended. If -- if you
look at defendant's -- excuse me, the plaintiff'sjurisdiction, which is really raised by way of a
motion to dismiss. The exhaustion doctrine having
been raised by way of special defense also in the
pleading of January 13, 2012.
Now subsequent to - I’m also in receipt of a
motion to dismiss filed on behalf of all of the
defendants dated November 27™, 2012, and there is an
objection to that motion dated January 15% -- and
exhibits, January 15, 2013.
Mr. Mitola, it’s your motion and I believe the
Court must decide the motion to dismiss prior to
moving to the merits of the issue, so I will hear
you.
ATTY MITOLA: Thank you and good morning,
Your Honor.
Yes, Your Honor, John Mitola for the City of
Bridgeport and the City of Bridgeport defendants.
This -- this is our motion to dismiss,
Your Honor. And the grounds, Your Honor, is -- is
that the plaintiff failed to exhaust his available
administrative remedies. What ~-- what the complaint
alleges, Your Honor, and it specifically states that
the plaintiff was placed on administrative suspension
in June 2006 without pay, and indefinitely suspended,
and he claims that constituted an illegal and
improper employment condition imposed upon -- on the
defendants, Your Honor.understand that it won't be raised or referenced in
any form except for such form to enforce the terms
and conditions of the agreement.
Now, the terms and conditions of this agreement
as I read it say nothing about him obtaining a
medical examination from anybody. Now, perhaps they
might have the ability to refer him for that and that
would be a separate grievance, but not as a condition
of going back to work,
ATTY MITOLA: And the -- the grievance dealt with
the 15 day suspension. It -- I didn’t put this in as
an exhibit because I’m going by what the complaint
says, Your Honor. I mean, there’s a notice about a
hearing for the grievance. It specifically references
a 15 day suspension. That’s what the grievance was
about, Your Honor,
THE COURT: Well, we can -- we can make it an
exhibit if you’d like for this hearing. Would you
like to make the --
ATTY MITOLA: I --
THE COURT: ~~ the document --
ATTY MITOLA: There’s no objection.
THE COURT: -- an exhibit?
ATTY MITOLA: I would like to.
Is that okay?
ATTY BARBER: Yeah; no objection.
THE COURT: All right.ATTY MITOLA; I’m gonna ~- I -- I appreciate,
Your Honor.
THE COURT: Because I think -- because, you know,
this really should have been the subject of a motion
to dismiss and the hearing at which evidence outside
the record seems clearly necessary in this sort of
thing, so I’m -- I’m not going to be draconian about
it and limit you or Mr. Barber to --
ATTY BARBER: Thank you, Your Honor --
THE COURT: -- what’s actually on the written
pages.
What I -- what I did note in my review of this
is that there is a -- says, settlement agreement
signed by Mr. Satawhite, signed by his representative
and signed by Mr. Osborne as a representative from
the City of Bridgeport.
ATTY MITOLA: That’s correct, Your Honor,
THE COURT: Consisting of one page.
ATTY MITOLA: That’s it, Your Honor.
THE COURT: All right.
Now, I have that here. I think I have two copies
actually. These two copies were appended to the
motion. So I’1l mark this a Court’s exhibit,
gentlemen, or we can make this an exhibit for the
plaintiff or the defendant.
ATTY BARBER: No objection, Your Honor.
ATTY MITOLA: There’s no objection.THE COURT: All right.
ATTY MITOLA: Court’s exhibit is fine.
THE COURT: Why don’t I make this a Court’s
exhibit, madame clerk, all right.
THE CLERK: That will be Court’s Exhibit A.
THE COURT: Court’s Exhibit A; right, will be the
settlement agreement of the -- of the grievance.
And once again as I said, I’1l give you some
latitude on this because a motion to dismiss of this
nature should be -- should be the subject of an
evidentiary hearing, and I don’t want anyone to feel
stampeded by this procedure. The determination of
this motion, of course, will determine whether the
case continues to trial.
ATTY MITOLA: Yes, Your Honor.
And -- and if your Honor would -- I’d like if
Your Honor would, I don’t think there’s an objection.
I -- I would like to --
THE COURT: Show it to -- show it to Mr. Barber.
ATTY BARBER: No objection.
ATTY MITOLA: Thank you.
THE COURT: All right.
Why don’t we mark that as Court’s Exhibit B.
ATTY MITOLA: Thank you.
THE, COURT: We’1l make both exhibits joint or
Court’s exhibits for purposes of this.
ATTY MITOLA: Thank you.10
the parties concerning the application, meaning or
interpretation of this agreement shall be settled
only in the following manner, then it has a whole
step and grievance process, Your Honor.
THE COURT: He did that; didn’t he?
ATTY MITOLA: Not --
THE COURT: He went -- he went to the -- he went
to the -- the grievance. There was an agreement on
April 10°, 2008. The agreement is Court's Exhibit
A, and Court’s Exhibit A says nothing about a medical
exam.
ATTY MITOLA: He -~ he didn’t grieve that part,
Your Honor. He grieved his 15 day suspension. And I
point to part of the -- part of the letter from Ar
Mr. Osborne dated May 26 references the 15 day
suspension and also that Mr, Satawhite should again
be referred forthwith to Doctor Justin Schecter for
an IME for -~ to make sure he’s fit for duty and that
he can do the job of a security guard at a -- ata
Bridgeport Public School.
THE COURT: Well, that’s -- that’s his letter,
that's not part of the agreement that’s Court's
Exhibit A though.
ATTY MITOLA: It’s - it’s not part of the
agreement and -- and --
THE COURT: And that agreement says that it’s a
full satisfaction of all claims.11
ATTY MITOLA: It’s a full satisfaction of all
claims with respect to the 15 day suspension. It
specifically --
THE COURT: No; with respect to that particular
grievance which is numbered, which is stated there. I
mean, it -- it’s your position that he grieved the
15 days period but didn’t grieve the fact that he had
to -- to have an examination?
ATTY MITOLA: It’s our position -- and if you
look at the exhibit we put in, it specifically
references only the 15 day suspension, Your Honor.
THE COURT: Let me -- let me see that; these two
exhibits if I might; thank you very much.
A second hearing has been scheduled for
April 10*,
ATTY MITOLA: It -- it -- and it sets forth what
the discipline was. It says, Your Honor, at the top a
15 day suspension,
THE COURT: Second hearing has been noted, I
don’t see that here. Yes; just -- it says, suspension
15 days and it gives the case number.
ATTY MITOLA: Correct.
THE COURT: All right, all right.
ATTY MITOLA: So the argument is, okay, your
suspension’s reduced but there’s still this other
part that you -~ we need you to comply with or want
you to do and it’s our position, Your Honor; the12
City’s position, that if he felt that the City had no
right or authority to do that, Your Honor, if he
felt, that is and he’s -- he alleges this in this
complaint, he felt that it was unjust discipline or
something to that effect, that needs to be resolved
through the collective bargaining process,
Your Honor. And it -- and it -- and it wasn’t. And
as Your Honor knows, the -- when you have a process
in place through collective bargaining in the
administrative process, that needs to be followed
before you -- you come to court, Your Honor.
Now, Your Honor, I don’t know why he didn’t do
that, Your Honor. He wasn’t -- he didn’t come back to
work, I mean, what happened is he was -- he was told
to go see this Doctor, apparently never did that and
never came back to work, Your Honor. But never went
to his union to file the grievance to complain about
it. We have no evidence of that, Your Honor, in this
case. So that’s the -- that’s the basis of the motion
to dismiss, Your Honor.
And I -- and I appreciate the Court looking at
the settlement agreement, but again, it’s the City’s
position that that dealt with the 15 day suspension
without pay, but it didn’t deal with this other
aspect of it, Your Honor.
THE COURT: Mr. Barber.
Oh, I’m sorry; were you finished Mr. -~13
ATTY MITOLA; I am all finished.
THE COURT: All right.
ATTY MITOLA: Thank you.
THE COURT: Mr. Barber,
+ ATTY BARBER: Yes, Your Honor. x
We filed a motion in opposition to dismiss
premised on two alternative arguments. The first one
being that Mr. Satawhite did fully comply with his
grievance procedures. He went through to arbitration
hearing and it was resolved through the agreement
that is in evidence.
THE COURT: Did he grieve the issue of a medical
examination or simply the 15 day suspension as
Mr. Mitola indicates?
ATTY BARBER: Your Honor, it -- it is our
position that he grieved the entire discipline
both -- yes; arising out of what happened on
May 20°, 2006 at the school. The fact that the
initial exhibit letters tied the two together are
instructive here and it was discussed. I can have
evidence from Mr. Satawhite about what was discussed
at the arbitration hearing.
But going to the issue of the motion to dismiss;
there is an exception to the exhaustion rule, If
there is a futile ~~ if it would be futile for
Mr. Satawhite to go through those procedures. I do
believe on the record there’s evidence that makes14
that point. The directive that Mr. Satawhite needs
an IME, the directive that Mr. Satawhite needs a
doctor to determine whether he can do the job of a
security officer; a doctor to determine how long or
how short the suspension could be. Mr. Satawhite
could not get any relief in that such a process
because --
THE COURT: Was there a request for a medical
examination prior to the incident of May 20°, 20087
ATTY BARBER: Yes, Your Honor.
THE COURT: There was?
ATTY BARBER: Yes.
THE COURT: So is that request independent then
of that incident and the 15 day suspension, or is it
part of it?
ATTY BARBER: It’s separate and we’re -~ we're
referencing something that happened several years ago
in another school if that’s what you're asking.
THE COURT: No; I’m -- they ~- here there's a
May 20%, 2008 incident that has been referred to.
ATTY BARBER: Yes.
THE COURT: That May 20°°, 2008 incident resulted
in a recommendation for a 20 day suspension, I
believe, which was --
ATTY BARBER: Yes.
THE COURT: -- reduced by 15 days to five -- toa
five day suspension.15
ATTY BARBER; Yes,
THE COURT: All right. vf
Now, the incident of May 20, 2008; is that
what generated the request for an examination by the
physician?
ATTY BARBER: I believe so. Yes; Your Honor,
THE COURT: Okay.
And that was indicated at the same time as the
15 day suspension?
ATTY BARBER: Well, as the record would show,
there was a recommendation by his superior --
THE COURT: Mm-hmm.
ATTY BARBER: -- which subsequently became --
well, now it’s more than a recommendation because on
June 20° when Mr. Satawhite reports back to work,
that’s when he’s sent home and said; no, you cannot
come back to work until you comply with what is now
more than a recommendation --
THE COURT: Okay,
ATTY BARBER: ~- it’s now a job requirement. And
that was done, and I think that’s Exhibit 3; that
Chief Wearing stated you cannot come back to work
until you do what we’ve asked. And Mr. Satawhite
could testify to the fact that the City makes the
appointment with the doctor. The City chooses the
doctor. And the, you know, the City at that point is
now creating -~ they’ re not conditions of employment;16
“a
they have nothing to do with being a security guard
at that point.
THE COURT: So --
ATTY BARBER: And it’s our contention that that’s
the breach; that’s the (inaudible).
THE COURT: So it seems to me that the City’s
position is notwithstanding this agreement, that the
suspension will be five days; that that is expressly
conditioned on his obtaining a satisfactory
psychological examination from a physician of the
City’s choice.
ATTY BARBER: Yes.
And even though that was never articulated or
communicated to Mr. Satawhite. He’s asked to comply
with something that 1s being created at the
supervisor level.
THE COURT: Is that the first time that the issue
of an examination was referenced; when he returned to
work?
ATTY BARBER: No, sir.
THE COURT: When was it first referenced?
ATTY BARBER: There’s a reference in the exhibit.
There’s a reference -- call your attention to
Exhibit 1, the second paragraph.
THE COURT: I --
ATTY BARBER: On the basis of the above, it is
hereby recommended that Mr. Satawhite be A; suspended17
without pay effective Tuesday May 30, 2006 to
Tuesday June 20°, 2006
THE COURT: Mm-hmm.
ATTY BARBER: And that’s in bold print.
And then B, which is not in bold print;
Mr, Satawhite should again be referred forthwith to
Dector Justin Schecter for an IME to determine his
current future work capacity as a security officer
with the Board of Education.
THE COURT: All right.
And this is in the letter of --
ATTY BARBER: The letter of May 26, 2006 from
Lawrence E. Osborne.
THE COURT: Right. That’s a -- that consists -~
May 26°, 2006 --
ATTY BARBER: Yes.
THE COURT: -- consists of two pages, correct?
ATTY BARBER: Yes.
THE COURT: All right.
And --
ATTY BARBER: And it is our position, Your Honor,
that if that was indeed the discipline as the City is
maintaining, then again, now referring the Court to
Exhibit 3, why does Mr. Satawhite appear at work on
June 20°, 2006 for the purpose of going back to
work, And that’s when Melvin Wearing, director of
school security says; no, you must go home because we18
have a recommendation for further discipline,
THE COURT: Is this incident that’s referred to
in the letter of May 26" separate and distinct from
the settlement agreement dated April 10°?
ATTY BARBER: It is our position, Your Honor,
that it is separate and distinct,
THE COURT: Madame clerk, this consists of
two pages. I’m going to ask that this be marked as
Court’s Exhibit Cc.
Is there objection?
ATTY MITOLA: Is that the May 26% letter?
THE COURT: That -- that’s the May 26 letter;
consists of two pages.
ATTY MITOLA: Yes, Your Honor.
THE COURT: I just want to make certain that when
we're referring to documents we have a record of
everything that’s being referred to and we're all on
the same page on this.
So this is something that occurred later in time
after this grievance on February 10°" 2008?
ATTY BARBER: Yes, Your Honor,
THE COURT: All right.
Now, the letter from Mr. Osborne; Exhibit Cs
Says that it’s recommended that he should again be
referred.
When was he referred the first time?
ATTY MITOLA: Back in 2003, Your Honor,19
THE COURT: Back in 2003,
ATTY MITOLA: Right; for --
THE COURT: All right.
ATTY MITOLA: -- something else that happened.
THE COURT: All right.
But that 2003 incident is certainly not part of
‘IN the May 20, 2008 suspension.
Now, he was -- apparently what I’m gathering
here and that’s why it’s very cumbersome to try to do
these motions to dismiss when something’s assigned
for trial. But what I’m gathering here is that there
was a suspension for leaving the school without
notifying the principal. That resulted in a appeal;
it resulted in a grievance procedure that went to the
State Board of Mediation and Arbitration. There was a
three member panel there.
ATTY BARBER: Right.
THE COURT: I see the names of the
three arbitrators. And this settlement agreement was
the result of that.
ATTY MITOLA: Correct.
THE COURT: That was on April 10%. He goes back
to work, I guess, five days later would put us
sometime the following week in April, right; and he’s
told by Melvin Wearing who is the head of security
for the Board of Education; no, you can’t come back
to work until you have seen a doctor, right?20
ATTY MITOLA: That’s correct.
THE COURT: All right.
And, Mr. Barber, it is your position, I take Ley
that that represents an additional condition not
covered by the arbitration agreement which they could
not impose and therefore it constitutes an exception
to the exhaustion rule.
ATTY BARBER: Yes, Your Honor.
THE COURT: All right.
Do you have any authority for that; I’1l hear
you. Now, I’ve got the facts I think,
Your claim, it seems to me is, that further
arbitration would pe(Gatiio)at that point.
ATTY BARBER: Yes, Your Honor, and I’m --
THE COURT: Why -- why -- and what basis could I
make a finding of futility?
ATTY BARBER: Your Honor, I’m looking for the
specific case that I’m referencing. The authority is
that the collective bargaining agreement and the
arbitration procedures address themselves to
conditions of employment.
THE COURT: Well, wasn’t the City making it a
condition of employment; that he receive the medical
examination, I mean, it’s -- you -- you’ve cited the
case of Kanata versus DEP (phonetic) at
215 Connecticut. It says; an administrative remedy is
futile or inadequate if the agency is without21
authority to grant the requested relief,
Now, didn’t they have the authority to withdraw
the request for a medical exam; I mean, you’re --
ATTY BARBER: Yes,
THE COURT: You're saying that -- that the -- the
result would’ve been futile. I assume you're saying;
hey we already did this. They suspended him for
15 days, we grieved it, we accepted it, we got an
agreement that’s a contract, that's executed by the
authorized bargaining representative and the
claimant. And you had no authority to add this
additional clause for the medical examination.
How does that render the addition; it may render
it illegal but does it render it futile?
ATTY BARBER: I understand the position that --
or the question of the Court. your Honor, my response
is futile in the sense that --
THE COURT: I mean, construing all facts most
favorable to you, is to say the least, disingenuous.
I’m doing -- I’m saying that construing all facts
most favorable to you, which I think I have to do in
a motion to dismiss. But is it -- does it necessarily
make it futile?
ATTY BARBER: Only with respect that if the --
the City has the discretion to impose an illegal
Girective and then take it back at -- at their leave
or whatever, I’d imagine that, you know, I understand
222
the Court’s position.
THE COURT: Because your complaint here, your
claim is wrongful discharge in which you're seeking
money damages and you’ re seeking a -- an order
returning the claimant to -- to work although I’m not
sure that the bargaining unit is a party to this. But
your -- your prayer for relief seeks only money
damages at this point.
ATTY BARBER: Yes, Your Honor.
THE COURT: So your -~ your claim is that of
wrongful discharge quhessmcoysteduby Gane ag PSSMen ETE
he wasn’t covered by an agreement, he'd be covered by
the employment at will doctrine which is the law in
the State of Connecticut. But your claim that you can
go to -- to court. You can say that he was wrongfully
discharged because further resort to administrative
remedies would be futile, and I’m trying to get to
the basis of your argument there.
ATTY BARBER: Yes.
THE COURT: And I’m going to hear Mr, Mitola and
his response in a minute.
ATTY MITOLA: Oh, I’m sorry, Your Honor.
ATTY BARBER: If -- if the administrative remedy
included an order that Mr. Satawhite be reinstated,
then you’re right; it would -- it would not be
futile, correct. However, I believe that my
understanding that a, you know, a dischargedZo
employee, you know, that employee employer
relationship has been severed at that (inaudible).
And in that sense, you know, he is not -- no longer,
you know, a member of the bargaining unit because
he’s been (inaudible) discharged.
THE COURT: What do you have to prove for a
constructive discharge; you’re not claiming that he
was actually terminated, you’re claiming he was
constructively discharged because the suspension was
indefinite?
ATTY BARBER: Yes, Your Honor.
THE COURT: And don’t you have to prove for a
constructive discharge that the employer did
something to in effect discharge him completely, I
mean this was a suspension, it wasn’t a discharge.
ATTY BARBER: You’re correct, Your Honor,
THE COURT: All right.
Mr. Mitola, anything further on the motion to
dismiss; I think we’ve strayed into the merits. I
don’t want to do that on the motion to dismiss any
more than I have to.
ATTY MITOLA: No, Your Honor.
I just -- with respect to che(ats39) argument,
if -- if the plaintiff and his union believe that the
City had no authority to send him to an IME, and that
he can’t come back to work until you have that IME,
That’s -- that is a condition of his employment.24
THE COURT: But isn’t that moving the goal post,
I mean, the -- the arbitration hearing said that the
arbitration panel didn’t decide this, but the
agreement says put him back to work after a five day
Suspension, we agree to the five day suspension, he
serves that. And they say oh, by the way there’s x
something else. That’s moving the goal post, isn’t
Lee
ATTY MITOLA: Well, I don’t -- I don’t think so,
Your Honor, with all due respect because it was cto
that that was in May 26*, 2006 that that was what
the City was going to do and that is --
THE COURT: But his -- his -- his conversation
with Chief Wearing, I’m sure, occurred well before
that. The ~- this was on the 10* of April, so it
would’ve occurred after he served his suspension
which was only five days. That puts it well before
May 20°,
ATTY MITOLA: Well, Your Honor, the -- he served
the -- the 20 day suspension, Your Honor, and then
grieved the suspension, Your Honor, and settled that
part of it when his grievance was --
THE COURT: Okay.
ATTY MITOLA: -- heard up in ~- in, you know, a
year and a half later, I believe, Your Honor.
THE COURT: I don’t have any evidence here as to
when the discussion with Chief Wearing occurred.25
ATTY MITOLA: Well, if you -- Exhibit 3, it’s
that --
THE COURT: All right,
ATTY MITOLA: -- June 20, 2006 letter,
Your Honor, where Wearing indicates that -~ that
Mr, Satawhite returned to work today and appeared in
my office at approximately 8:30. We discussed the
disciplinary action and our recommendation to see
Doctor Schecter to determine his Suitability to
perform his duties as a security officer. And then tt
Says; Mr. Satawhite stated that he did not comply
with the above mentioned recommendation because he
was unable to make an appointment. And then there was
consultation with Mr. Osborne and -- and it was
determined that Satawhite shall continue suspension
till notification from Doctor Schecter is received
that he’s able do to do this. And so it -~ it’s
at -- it’s at that point, Your Honor, that if —- ie
the union and the Plaintiff in this case believe that
the City had no authority to do that, that somehow
affected his work conditions, they had the right and
we argue, the obligation, to avail themselves to the
grievance process, Your Honor.
THE COURT: Is there a letter of April 1st,
that would be 2007. Iodon’t see, I mean, this -- this
all has to do with -- with an incident back in 2006
ATTY MITOLA: Right.26
Tt was an incident on May 24", 2006,
Your Honor, and we get that from Exhibit Number 1;
Mr. Osborne’s letter. Under the RE part is says;
Robert Satawhite incident of 5/24/06. So there was an
incident there and I think Your Honor referenced to
it where he without permission left his work post.
THE COURT: Right.
ATTY MITOLA: And that -- that was the incident
that started this thing.
THE COURT: And that was the incident that had
the grievance two years later on April 10°?
ATTY MITOLA: When it -- when it -~ it takes them
awhile to hear those things so yes.
THE COURT: Yes.
ATTY MITOLA: It went up to the labor board
two years later but that was only on the 15 day
suspension, Your Honor.
THE COURT: And he’d been -- he had been
suspended since 2006?
ATTY MITOLA: Well, yes, Your Honor, cause he
didn’t comply with the IME. And again, Your Honor, if
you felt that the City had no authority to make him
do that, then his remedy is -- and -- and as he’s
alleged in his complaint that that was unjust
discipline, that -- that action, then his remedy is
to -- to grieve that.
And there’s no futility argument, Your Honor,27
because this eventually goes up to the State Board of
Arbitration and Mediation, and Your Honor well knows
that it’s a -- a three member panel.
THE COURT: Right; I see it here,
There was a three member panel that was -- was
set, and a second hearing was set on Thursday;
April 10", according to Exhibit B. And in Exhibit A
there’s an agreement reached at that time between the
City, the bargaining unit and the claimant, and
Exhibit C goes back to 2006. So the two year -~ so
the settlement agreement, you're saying the City
wasn’t agreeing to put him back to work, they were
merely agreeing to reduce the time of the suspension,
and he still had to go for the examination.
ATTY MITOLA: That -- that’s right. That’s
correct, Your Honor.
THE COURT: So the grievance wasn’t designed to
put -- so the arbitration panel was —- was not an
unrestricted submission where they had the right to
put him back to work; because I don’t have the copies
of the submission or anything of that nature.
ATTY MITOLA: Well, what we know, Your Honor ~-
THE COURT: I mean, it says 15 day suspension,
That doesn’t mean that’s necessarily the only relief
they were seeking.
ATTY MITOLA: Well, the -- the document that is,
I believe, Court Exhibit 2 indicates that that’s what28
the grievance was about; a 15 day suspension,
Your Honor. And the one -- the one other thing,
Your Honor, I would add to all this.
THE COURT: All right.
ATTY MITOLA: The only thing I would add to this;
let's -- if -- if the plaintiff and the union
believed that the City was not complying with the
settlement agreement, if for some reason it felt that
not allowing him back to work violated the agreement,
there’s -~ there’s -- the -- the other remedy isn’t
running to court, Your Honor, it’s filing an -- a
municipal prohibit of practice act up at the labor
board. That’s what they remedy would be if, in fact,
that’s their position because if -- if there’s an
agreement entered into, and this grievance processes
a settlement agreement and one party believes the
other side is violating that agreement, the proper
remedy is to file an MPPR (phonetic), not come to
court and file a constructive discharge claim.
THE COURT: All right.
Mr. Barber, anything further?
ATTY BARBER: Your Honor, I would, you know,
just like to add another exhibit if I can to the
Court’s --
THE COURT: All right.
ATTY BARBER! -- record.
This is a dune 5™, 2006 letter.29
ATTY MITOLA: I have no objection,
THE COURT: All right.
We’1l mark that as --
ATTY MITOLA: I’m not sure what that adds.
THE COURT: -- Court’s Exhibit D.
ATTY BARBER: I believe that exhibit speaks for
itself, Your Honor.
Nothing further from the --
THE COURT: All right.
ATTY BARBER: -- plaintiff.
THE COURT: I‘1l take a look at that, all right
Well, the Court has heard the counsel and has
read the materials that have been marked as
Exhibits A, B, C and D for purposes of this -~ of of
this hearing limited exclusively to the -- to the
motion to dismiss.
i” I indicated at the outset, this matter was),
* assigned here for a trial based on a complaint
returnable July 11, 2011, and answer in special
defense has -- has been filed. And the two
special defenses are first that a failure to exhaust
remedies, and second an accord and satisfaction
issued in May of 2006. And the claimant is barred by
the doctrine of accord and satisfaction which would
mean that there was an offer by the City an
acceptance, and that prevents either party from
litigating that issue in the future.30
A motion to dismiss was filed in November of
last year; November 27**, The Court has also had an
Opportunity to read the plaintiff’s opposition to the
motion to dismiss dated January 15%, and to consider
several of the -- the exhibits filed here. And
construing the -- the facts and the -- the
information as I must in this particular instance on
a motion to dismiss the motion is -- is denied.
The Court finds that the plaintiff based upon
the allegations may prove his right to relief,
notwithstanding the collective bargaining agreement
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ATTY BARBER: Thank you, Your Honor.
(Whereupon the remaining proceedings were not
requested and/or transcribed at this time.)FBT Cv 11 6021982
ROBERT SATAWHITE
v.
CITY OF BRIDGEPORT, ET AL
Connecticut.
SUPERIOR COURT
JUDICIAL DISTRICT
OF FAIRFIELD
AT BRIDGEPORT, CONNECTICUT
JANUARY 16, 2013
CERTIFICATION
I hereby certify the foregoing pages are a true and
correct excerpt transcription of the audio recording of the
above-referenced case, heard in Superior Court, Judicial District
of Fairfield, Bridgeport, Connecticut, before the Honorable Dale
Radcliffe, Judge, on the 16" day of January, 2013.
Dated this 21° day of February, 2013 in Bridgeport,
P’Shaunda D. Gibbs-Hopkins
Court Recording MonitorEx P
ORDER 419018
DOCKET NO: FBTCV116021982S SUPERIOR COURT
SATAWHITE, ROBERT JUDICIAL DISTRICT OF FAIRFIELD
¥., AT BRIDGEPORT
BRIDGEPORT BOARD OF EDUCATION Et
Al 4/8/2013
ORDER
ORDER REGARDING:
01/16/2013 109.00 OBJECTION TO MOTION TO DISMISS
The foregoing, having been considered by the Court, is hereby:
ORDER:
The defendants in the above matter have reclaimed a motion to dismiss the plaintiffs claim for wrongful
discharge, which was denied by judge Radcliffe without prejudice in order to hold an evidential hearing.
Due to scheduling, the matter was not assigned, but continued for a scheduled trial date by the end of
April 2013. The defendants have reclaimed their motion to dismiss with a well-written memorandum
summarizing the obligation of a party to a collective bargaining agreement to submit to mediation as an
administrative remedy, which the defendant claims was not done. The plaintiff has argued that the initial
issue between the parties was submitted and settled through mediation, and this matter is simply a
continuation of the initial issue resulting in the plaintiff's discharge. As a practical matter, it is
universally recognized that the purpose of mediation is to expedite a dispute between contracting parties.
Regardless of the merits of the respective arguments, the issues in this case arose in 2006 and a request
for mediation may be found to have not been tolled. Is the finding of this court that the merits of the
finality of a court trial in three weeks supersedes the requirement that the plaintiff attempt to initiate a
mediation hearing which could be extended for an indefinite period of time, defeating the purpose of
mediation. For the above reason. The objection the motion to dismiss is sustained.
Judicial Notice (JDNO) was sent regarding this order.
419018
Judge: RICHARD P GILARDI
FBTCV116021982S 4/8/2013 Page | of 1Ex, Q
ORDER 419018
DOCKET NO: FBTCV116021982S SUPERIOR COURT
SATAWHITE, ROBERT JUDICIAL DISTRICT OF FAIRFIELD
V. AT BRIDGEPORT
BRIDGEPORT BOARD OF EDUCATION Et
Al 4/25/2013
ORDER
ORDER REGARDING:
03/19/2013 114.00 MOTION TO DISMISS
The foregoing, having been considered by the Court, is hereby:
ORDER: GRANTED
Short Calendar Results Automated Mailing (SCRAM) Notice was sent on the underlying motion.
419018
Judge: RICHARD P GILARDI
Processed by: William Gildea
FBTCV116021982S 4/25/2013 Page | of 1Luke
Robe: awlie
30 Avalon Drive
Unit 5124 ,
Milford, CT 6460
RE: HEALTH BENEFITS
We have been notified that you are no longer eligible for benefits through the Bridgeport Board of
Education. You have become ineligible due to one of the following:
a. termination of employment b. resignation c. leave of absence
Effective 8/31/2013 your health benefits with the Board of Education will be terminated.
Through the Federal Consolidated Omnibus Budget Reconciliation Act (COBRA) , you may elect to
continue your health benefits for up to 18 months. If you are "totally disabled" within the meaning of
the Social Security Act as of your employment termination date, you may continue coverage for up to
29 months. You must inform the Plan Administrator within sixty (60) days of the “disability
determination date" to qualify for this extended coverage, which will be at an increased premium. If
you are terminating employee coverage but choose to waive your own continuation of coverage, any
dependents on your policy may elect COBRA continuation coverage independently of your election
for up to 18 months.
This coverage will be the same as the coverage provided to you while under the group plan.
However, the following terms and conditions will apply:
1. You have sixty (60) days from the date of this notice to elect COBRA continuation coverage.
2. You may only continue the coverage that was in effect on the day of termination.
3. Dependent coverage under COBRA is extended only to those individuals covered at the time of
termination.
4. If you elect to continue coverage, the total cost must be paid by you. The Board of Education will
not supplement the cost.
5. Continuation of coverage under any plan will end on the earliest of the following dates
a. when you reach the end of your maximum eligibility period.
b. the date on which the City of Bridgeport / Board of Education ceases to provide the plan to any
active employee.
Gc. your failure to make timely monthly payments.Septem 2
To: Ro:
Effective 8/31/2013 your medical voverage with the Bridgeport Board of Eaucation will terminate.
You must inform us of your decision to continue your health, prescription, dental coverage by
a awhite
sh
41/10/2013. You currently have elected Health, Dental coverage.
| wish to continue the following coverage and send monthly payments for (please check):
[| Single(_) | Double(_) Family (_)
Health $647.53 $1,567.01 $1,916.66
Prescription 129.70 259.40 324.25
Dental 33.59 59.46 100.95
Vision (if applicable) | 2.83 5.65 9.09
Please list all eligible for which coverage is elected:
Name Date of Birth | Social Security Number
| Self xx-9308
Spouse
Dependent(s)
Please return this election form to:
You have forty-five (45) days from your election date to pay the premium for the initial coverage.
Your check for the initial payment must include all months, which have elapsed from the time you
became eligible for COBRA. As we do not send out billing notices, it will be your responsibility to
Angela T. Morton, Benefits Analyst
Payroll/Benefits Office
Bridgeport Board of Education
45 Lyon Terrace, Room 315
Bridgeport, Connecticut 06604
forward payment made to the order of the City of Bridgeport to the address listed above.ww, ‘thet. “1% Covere any otre aah ws oy virtue of yu.
employing:. ce spouse's oo: 21, if-this new Vdlag. CON: any limitations ut
coverage for p°.-€.1sting conditions. “iw you may con your COBRA coveraye until either tne
pre-existing cur..'uon limitations terrmuriates or your right ic vontinue expires.
e. the date you become eligible for Medicare. ’
6. If you elect to continue coverage, required premium payments are printed on the attached COBRA
Election Forms. You have 45 days from your election date to pay the premium for the initial coverage
period. Thereafter, payments must be made monthly. COBRA premiums are subject to change and
you will be notified as such.
If you have any questions regarding your COBRA benefits, please contact me at (203) 275.1058.
Angela T. Morton
Benefits Analyst
enc.
Preview
Ex N DN-FBT-CV-11-6021982-S ‘SUPERIOR COURT ROBERT SATAWHITE J.D. OF FAIRFIELD V. :AT BRIDGEPORT CITY OF BRIDGEPORT ‘January 15, 2013 OPPOSITION TO MOTION TO DISMISS |. FACTS The plaintiff Robert Satawhite was a school security officer for the City of Bridgeport Board of Education. In his complaint he alleges that Defendants Director of Labor Relations for the City of Bridgeport Lawrence Osborne; Melvin Wearing, the former head of security for the Bridgeport Board of Education and Carole Pannozzo, the former Human Resources Director for the Bridgeport Board of Education acted in such a manner as to breach his alleged employment contract that plaintiff had with the City of Bridgeport Board of Education. Specifically, plaintiff alleges that he was placed on suspension in June 2006 for two weeks and indefinitely suspended for a period of seven years which constitutes an illegal and improper employment condition imposed upon him. Plaintiff further alleges that the defendants breached his employment contract because defendants interfered with his duties and obligations as a security officer and denied him his benefits; defendants suspended him without just cause; defendants failed to provide him a work environment that was free of unprofessional and illegal work demands and conditions; defendants failed to perform in accordance with plaintiff's employment agreement and the purposes thereof; defendants failed to perform in a 1manner that would have resulted in the maximum benefit available to the plaintiff. Plaintiff claims damages as a result of the defendants’ alleged conduct. Defendants’ Motion to Dismiss, dated November 27, 2012, contends that this court lacks subject matter jurisdiction to entertain the claims alleged in plaintiff's complaint because the plaintiff allegedly failed to exhaust his administrative remedies. The Defendants’ Motion should be denied because alternatively a) the plaintiff did avail himself of his administrative remedy and b) the plaintiff did not need to exhaust his administrative remedies because it would have been futile to do because said administrative remedies were futile and inadequate under the facts and circumstances of the instant case. Il. ARGUMENT The doctrine of exhaustion is grounded in a policy of 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. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59 (1977). The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557 (1987). However, “[d]espite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine. Cahill v. Board of Education 198 Conn 229 (1985). One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419 (1995). Labbe v. 2Pension Commission, 229 Conn. 801 (1994)(Internal quotation marks omitted.) Hunt v. Prior, 236 Conn 421 (1996). "An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." Cannata v. Dept. of Environmental Protection,215 Conn 616 (1990). In the instant case, an exception to the exhaustion of administrative remedies requirement applies because the issues in controversy between the plaintiff and the defendants are separate and distinct from the issues contemplated by the collective bargaining agreement between the City of Bridgeport and the National Association of Governmental Employees, plaintiff's bargaining unit. Rather than imposing conditions on plaintiff's employment or discipline, the defendant's conduct towards plaintiff was illegal and improper. Plaintiff's complaint alleges that he was placed on administrative suspension without pay for a period of twenty days, from Tuesday May 30, 2006 to Tuesday June 20, 2006. Exhibit 1. Said action was in fact the subject of a subsequent grievance filed by the plaintiff. (Case No. 2007-A-0029) Exhibit 2. In so doing, plaintiff fully complied with the required administrative procedures. It is interesting to note that said “discipline” was reduced to five days. Notwithstanding the resolution of plaintiff's grievance, the plaintiff was not permitted to return to work on June 20, 2006. On that date, plaintiff was sent home and an indefinite suspension was imposed. Exhibit 3 and 4. Said indefinite suspension has now continued to the present date and as such, constitutes a constructive discharge from plaintiff's employment and outside the parameters of the parties’ Collective Bargaining Agreement. Exhibit 5.Ill. CONCLUSION For the reasons enumerated above, this court has subject matter jurisdiction to consider and determine the claims alleged in plaintiff's complaint. Plaintiff in fact, grieved his work related complaint. Moreover, given the facts and circumstances of this case, plaintiff was not required to exhaust his administrative remedies as said efforts would have been futile or inadequate. THE PLAINTIFF Robert Satawhite By. Jerald Barber Williams and Barber 34 Wright Avenue New Haven, Connecticut 06515 (203) 787-2236 (203) 821-7699 Juris No. 413651 jerald_s_barber@sbcglobal.netCERTIFICATION | hereby certify that | have caused to be served a copy of the foregoing this 16" day of January, 2013 via the court's electronic filing system and hand delivery, to the following counsel and parties of record. Attorney John Mitola 999 Broad Street Bridgeport, Ct. 06604 Jerald BarberFBT CV 11 6021982 . ROBERT SATAWHITE Vv. CITY OF BRIDGEPORT, BT AL EXCERPT APPEARANCES: Representing the Plaintiff: ATTORNEY GERALD BARBER 34 Wright Avenue New Haven, CT 06515 Representing the Defendant: ATTORNEY JOHN MITOLA 999 Broad Street Bridgeport, CT 06604 BEFORE THE HONORABLE DALE RADCLIFFE, JUDGE Williams & Barber Law Offices Office of the City Attorney : SUPERIOR COURT : JUDICIAL DISTRICT EX. 0 OF FAIRFIELD AT BRIDGEPORT, CONNECTICUT JANUARY 16, 2013 X HEARING Recorded By: P’Shaunda D. Gibbs-Hopkins Transcribed By; P’Shaunda D. dibbs-Hopkins Court Recording Monitor 1061 Main Street Bridgeport, CT 066041 morning by five minutes. This is the matter of Robert Satawhite versus the City of Bridgeport, et al. The docket number is 11-6021982. Will counsel identify themselves for the record please, and indicate the party or parties they represent? ATTY BARBER: Yes. Good morning, Your Honor. Gerald Barber for the plaintiff; Robert Satawhite, who’s sitting right next to me. THE COURT: All right, good morning. MR. SATAWHITE: Good morning. ATTY MITOLA: Good morning, Your Honor, John Mitola for the City of Bridgeport. THE COURT: Good morning, all right. Gentlemen, I believe the operative pleadings in this matter are the initial complaint returnable August 10°*, 2011. There is an answer in special defense dated December 19°, 2012 and there’s also an answer dated January 13, 2012. I -- I assume one is the request for leave to amend and a reply to the special defenses which denies the special defenses, which is an appropriate pleading notwithstanding the amendment. The amendment, it seems to me, adds accorded satisfaction and a claim of lack of subject matter THE COURT: Good morning. I guess it’s still goodTHE COURT: As -- as I read the complaint and the exhibits to the motion to dismiss and your motion -- ATTY MITOLA: Yes, Your Honor. THE COURT: -- as I understand it, it’s the plaintiff’s position that he was subject to a grievance procedure. The grievance procedure was, in fact, held and completed. There was an agreement; a handwritten agreement, signed by all of the parties to that grievance pursuant to which his 20 day suspension was reduced to five days. He was ordered pack to work. He then reported to the Chief of Security; Mr. Wearing, and was told that it would be necessary for him to obtain a(cedice). examination) prior to going back to work. It’s their position that that constituted the constructive discharge based on the indefinite suspension and was something not covered by the written agreement. At least that’s the way I understand it - the -- and I’m sure Mr. Barber can adequately and accurately speak for himself, but that’s the way I understand the argument at this point. ATTY MITOLA: And, Your Honor, that -- that may be their argument, but a couple of things on that. The way the City reads the complaint is it talks about an administrative suspension in June of 2006 without pay and indefinitely suspended. If -- if you look at defendant's -- excuse me, the plaintiff'sjurisdiction, which is really raised by way of a motion to dismiss. The exhaustion doctrine having been raised by way of special defense also in the pleading of January 13, 2012. Now subsequent to - I’m also in receipt of a motion to dismiss filed on behalf of all of the defendants dated November 27™, 2012, and there is an objection to that motion dated January 15% -- and exhibits, January 15, 2013. Mr. Mitola, it’s your motion and I believe the Court must decide the motion to dismiss prior to moving to the merits of the issue, so I will hear you. ATTY MITOLA: Thank you and good morning, Your Honor. Yes, Your Honor, John Mitola for the City of Bridgeport and the City of Bridgeport defendants. This -- this is our motion to dismiss, Your Honor. And the grounds, Your Honor, is -- is that the plaintiff failed to exhaust his available administrative remedies. What ~-- what the complaint alleges, Your Honor, and it specifically states that the plaintiff was placed on administrative suspension in June 2006 without pay, and indefinitely suspended, and he claims that constituted an illegal and improper employment condition imposed upon -- on the defendants, Your Honor.understand that it won't be raised or referenced in any form except for such form to enforce the terms and conditions of the agreement. Now, the terms and conditions of this agreement as I read it say nothing about him obtaining a medical examination from anybody. Now, perhaps they might have the ability to refer him for that and that would be a separate grievance, but not as a condition of going back to work, ATTY MITOLA: And the -- the grievance dealt with the 15 day suspension. It -- I didn’t put this in as an exhibit because I’m going by what the complaint says, Your Honor. I mean, there’s a notice about a hearing for the grievance. It specifically references a 15 day suspension. That’s what the grievance was about, Your Honor, THE COURT: Well, we can -- we can make it an exhibit if you’d like for this hearing. Would you like to make the -- ATTY MITOLA: I -- THE COURT: ~~ the document -- ATTY MITOLA: There’s no objection. THE COURT: -- an exhibit? ATTY MITOLA: I would like to. Is that okay? ATTY BARBER: Yeah; no objection. THE COURT: All right.ATTY MITOLA; I’m gonna ~- I -- I appreciate, Your Honor. THE COURT: Because I think -- because, you know, this really should have been the subject of a motion to dismiss and the hearing at which evidence outside the record seems clearly necessary in this sort of thing, so I’m -- I’m not going to be draconian about it and limit you or Mr. Barber to -- ATTY BARBER: Thank you, Your Honor -- THE COURT: -- what’s actually on the written pages. What I -- what I did note in my review of this is that there is a -- says, settlement agreement signed by Mr. Satawhite, signed by his representative and signed by Mr. Osborne as a representative from the City of Bridgeport. ATTY MITOLA: That’s correct, Your Honor, THE COURT: Consisting of one page. ATTY MITOLA: That’s it, Your Honor. THE COURT: All right. Now, I have that here. I think I have two copies actually. These two copies were appended to the motion. So I’1l mark this a Court’s exhibit, gentlemen, or we can make this an exhibit for the plaintiff or the defendant. ATTY BARBER: No objection, Your Honor. ATTY MITOLA: There’s no objection.THE COURT: All right. ATTY MITOLA: Court’s exhibit is fine. THE COURT: Why don’t I make this a Court’s exhibit, madame clerk, all right. THE CLERK: That will be Court’s Exhibit A. THE COURT: Court’s Exhibit A; right, will be the settlement agreement of the -- of the grievance. And once again as I said, I’1l give you some latitude on this because a motion to dismiss of this nature should be -- should be the subject of an evidentiary hearing, and I don’t want anyone to feel stampeded by this procedure. The determination of this motion, of course, will determine whether the case continues to trial. ATTY MITOLA: Yes, Your Honor. And -- and if your Honor would -- I’d like if Your Honor would, I don’t think there’s an objection. I -- I would like to -- THE COURT: Show it to -- show it to Mr. Barber. ATTY BARBER: No objection. ATTY MITOLA: Thank you. THE COURT: All right. Why don’t we mark that as Court’s Exhibit B. ATTY MITOLA: Thank you. THE, COURT: We’1l make both exhibits joint or Court’s exhibits for purposes of this. ATTY MITOLA: Thank you.10 the parties concerning the application, meaning or interpretation of this agreement shall be settled only in the following manner, then it has a whole step and grievance process, Your Honor. THE COURT: He did that; didn’t he? ATTY MITOLA: Not -- THE COURT: He went -- he went to the -- he went to the -- the grievance. There was an agreement on April 10°, 2008. The agreement is Court's Exhibit A, and Court’s Exhibit A says nothing about a medical exam. ATTY MITOLA: He -~ he didn’t grieve that part, Your Honor. He grieved his 15 day suspension. And I point to part of the -- part of the letter from Ar Mr. Osborne dated May 26 references the 15 day suspension and also that Mr, Satawhite should again be referred forthwith to Doctor Justin Schecter for an IME for -~ to make sure he’s fit for duty and that he can do the job of a security guard at a -- ata Bridgeport Public School. THE COURT: Well, that’s -- that’s his letter, that's not part of the agreement that’s Court's Exhibit A though. ATTY MITOLA: It’s - it’s not part of the agreement and -- and -- THE COURT: And that agreement says that it’s a full satisfaction of all claims.11 ATTY MITOLA: It’s a full satisfaction of all claims with respect to the 15 day suspension. It specifically -- THE COURT: No; with respect to that particular grievance which is numbered, which is stated there. I mean, it -- it’s your position that he grieved the 15 days period but didn’t grieve the fact that he had to -- to have an examination? ATTY MITOLA: It’s our position -- and if you look at the exhibit we put in, it specifically references only the 15 day suspension, Your Honor. THE COURT: Let me -- let me see that; these two exhibits if I might; thank you very much. A second hearing has been scheduled for April 10*, ATTY MITOLA: It -- it -- and it sets forth what the discipline was. It says, Your Honor, at the top a 15 day suspension, THE COURT: Second hearing has been noted, I don’t see that here. Yes; just -- it says, suspension 15 days and it gives the case number. ATTY MITOLA: Correct. THE COURT: All right, all right. ATTY MITOLA: So the argument is, okay, your suspension’s reduced but there’s still this other part that you -~ we need you to comply with or want you to do and it’s our position, Your Honor; the12 City’s position, that if he felt that the City had no right or authority to do that, Your Honor, if he felt, that is and he’s -- he alleges this in this complaint, he felt that it was unjust discipline or something to that effect, that needs to be resolved through the collective bargaining process, Your Honor. And it -- and it -- and it wasn’t. And as Your Honor knows, the -- when you have a process in place through collective bargaining in the administrative process, that needs to be followed before you -- you come to court, Your Honor. Now, Your Honor, I don’t know why he didn’t do that, Your Honor. He wasn’t -- he didn’t come back to work, I mean, what happened is he was -- he was told to go see this Doctor, apparently never did that and never came back to work, Your Honor. But never went to his union to file the grievance to complain about it. We have no evidence of that, Your Honor, in this case. So that’s the -- that’s the basis of the motion to dismiss, Your Honor. And I -- and I appreciate the Court looking at the settlement agreement, but again, it’s the City’s position that that dealt with the 15 day suspension without pay, but it didn’t deal with this other aspect of it, Your Honor. THE COURT: Mr. Barber. Oh, I’m sorry; were you finished Mr. -~13 ATTY MITOLA; I am all finished. THE COURT: All right. ATTY MITOLA: Thank you. THE COURT: Mr. Barber, + ATTY BARBER: Yes, Your Honor. x We filed a motion in opposition to dismiss premised on two alternative arguments. The first one being that Mr. Satawhite did fully comply with his grievance procedures. He went through to arbitration hearing and it was resolved through the agreement that is in evidence. THE COURT: Did he grieve the issue of a medical examination or simply the 15 day suspension as Mr. Mitola indicates? ATTY BARBER: Your Honor, it -- it is our position that he grieved the entire discipline both -- yes; arising out of what happened on May 20°, 2006 at the school. The fact that the initial exhibit letters tied the two together are instructive here and it was discussed. I can have evidence from Mr. Satawhite about what was discussed at the arbitration hearing. But going to the issue of the motion to dismiss; there is an exception to the exhaustion rule, If there is a futile ~~ if it would be futile for Mr. Satawhite to go through those procedures. I do believe on the record there’s evidence that makes14 that point. The directive that Mr. Satawhite needs an IME, the directive that Mr. Satawhite needs a doctor to determine whether he can do the job of a security officer; a doctor to determine how long or how short the suspension could be. Mr. Satawhite could not get any relief in that such a process because -- THE COURT: Was there a request for a medical examination prior to the incident of May 20°, 20087 ATTY BARBER: Yes, Your Honor. THE COURT: There was? ATTY BARBER: Yes. THE COURT: So is that request independent then of that incident and the 15 day suspension, or is it part of it? ATTY BARBER: It’s separate and we’re -~ we're referencing something that happened several years ago in another school if that’s what you're asking. THE COURT: No; I’m -- they ~- here there's a May 20%, 2008 incident that has been referred to. ATTY BARBER: Yes. THE COURT: That May 20°°, 2008 incident resulted in a recommendation for a 20 day suspension, I believe, which was -- ATTY BARBER: Yes. THE COURT: -- reduced by 15 days to five -- toa five day suspension.15 ATTY BARBER; Yes, THE COURT: All right. vf Now, the incident of May 20, 2008; is that what generated the request for an examination by the physician? ATTY BARBER: I believe so. Yes; Your Honor, THE COURT: Okay. And that was indicated at the same time as the 15 day suspension? ATTY BARBER: Well, as the record would show, there was a recommendation by his superior -- THE COURT: Mm-hmm. ATTY BARBER: -- which subsequently became -- well, now it’s more than a recommendation because on June 20° when Mr. Satawhite reports back to work, that’s when he’s sent home and said; no, you cannot come back to work until you comply with what is now more than a recommendation -- THE COURT: Okay, ATTY BARBER: ~- it’s now a job requirement. And that was done, and I think that’s Exhibit 3; that Chief Wearing stated you cannot come back to work until you do what we’ve asked. And Mr. Satawhite could testify to the fact that the City makes the appointment with the doctor. The City chooses the doctor. And the, you know, the City at that point is now creating -~ they’ re not conditions of employment;16 “a they have nothing to do with being a security guard at that point. THE COURT: So -- ATTY BARBER: And it’s our contention that that’s the breach; that’s the (inaudible). THE COURT: So it seems to me that the City’s position is notwithstanding this agreement, that the suspension will be five days; that that is expressly conditioned on his obtaining a satisfactory psychological examination from a physician of the City’s choice. ATTY BARBER: Yes. And even though that was never articulated or communicated to Mr. Satawhite. He’s asked to comply with something that 1s being created at the supervisor level. THE COURT: Is that the first time that the issue of an examination was referenced; when he returned to work? ATTY BARBER: No, sir. THE COURT: When was it first referenced? ATTY BARBER: There’s a reference in the exhibit. There’s a reference -- call your attention to Exhibit 1, the second paragraph. THE COURT: I -- ATTY BARBER: On the basis of the above, it is hereby recommended that Mr. Satawhite be A; suspended17 without pay effective Tuesday May 30, 2006 to Tuesday June 20°, 2006 THE COURT: Mm-hmm. ATTY BARBER: And that’s in bold print. And then B, which is not in bold print; Mr, Satawhite should again be referred forthwith to Dector Justin Schecter for an IME to determine his current future work capacity as a security officer with the Board of Education. THE COURT: All right. And this is in the letter of -- ATTY BARBER: The letter of May 26, 2006 from Lawrence E. Osborne. THE COURT: Right. That’s a -- that consists -~ May 26°, 2006 -- ATTY BARBER: Yes. THE COURT: -- consists of two pages, correct? ATTY BARBER: Yes. THE COURT: All right. And -- ATTY BARBER: And it is our position, Your Honor, that if that was indeed the discipline as the City is maintaining, then again, now referring the Court to Exhibit 3, why does Mr. Satawhite appear at work on June 20°, 2006 for the purpose of going back to work, And that’s when Melvin Wearing, director of school security says; no, you must go home because we18 have a recommendation for further discipline, THE COURT: Is this incident that’s referred to in the letter of May 26" separate and distinct from the settlement agreement dated April 10°? ATTY BARBER: It is our position, Your Honor, that it is separate and distinct, THE COURT: Madame clerk, this consists of two pages. I’m going to ask that this be marked as Court’s Exhibit Cc. Is there objection? ATTY MITOLA: Is that the May 26% letter? THE COURT: That -- that’s the May 26 letter; consists of two pages. ATTY MITOLA: Yes, Your Honor. THE COURT: I just want to make certain that when we're referring to documents we have a record of everything that’s being referred to and we're all on the same page on this. So this is something that occurred later in time after this grievance on February 10°" 2008? ATTY BARBER: Yes, Your Honor, THE COURT: All right. Now, the letter from Mr. Osborne; Exhibit Cs Says that it’s recommended that he should again be referred. When was he referred the first time? ATTY MITOLA: Back in 2003, Your Honor,19 THE COURT: Back in 2003, ATTY MITOLA: Right; for -- THE COURT: All right. ATTY MITOLA: -- something else that happened. THE COURT: All right. But that 2003 incident is certainly not part of ‘IN the May 20, 2008 suspension. Now, he was -- apparently what I’m gathering here and that’s why it’s very cumbersome to try to do these motions to dismiss when something’s assigned for trial. But what I’m gathering here is that there was a suspension for leaving the school without notifying the principal. That resulted in a appeal; it resulted in a grievance procedure that went to the State Board of Mediation and Arbitration. There was a three member panel there. ATTY BARBER: Right. THE COURT: I see the names of the three arbitrators. And this settlement agreement was the result of that. ATTY MITOLA: Correct. THE COURT: That was on April 10%. He goes back to work, I guess, five days later would put us sometime the following week in April, right; and he’s told by Melvin Wearing who is the head of security for the Board of Education; no, you can’t come back to work until you have seen a doctor, right?20 ATTY MITOLA: That’s correct. THE COURT: All right. And, Mr. Barber, it is your position, I take Ley that that represents an additional condition not covered by the arbitration agreement which they could not impose and therefore it constitutes an exception to the exhaustion rule. ATTY BARBER: Yes, Your Honor. THE COURT: All right. Do you have any authority for that; I’1l hear you. Now, I’ve got the facts I think, Your claim, it seems to me is, that further arbitration would pe(Gatiio)at that point. ATTY BARBER: Yes, Your Honor, and I’m -- THE COURT: Why -- why -- and what basis could I make a finding of futility? ATTY BARBER: Your Honor, I’m looking for the specific case that I’m referencing. The authority is that the collective bargaining agreement and the arbitration procedures address themselves to conditions of employment. THE COURT: Well, wasn’t the City making it a condition of employment; that he receive the medical examination, I mean, it’s -- you -- you’ve cited the case of Kanata versus DEP (phonetic) at 215 Connecticut. It says; an administrative remedy is futile or inadequate if the agency is without21 authority to grant the requested relief, Now, didn’t they have the authority to withdraw the request for a medical exam; I mean, you’re -- ATTY BARBER: Yes, THE COURT: You're saying that -- that the -- the result would’ve been futile. I assume you're saying; hey we already did this. They suspended him for 15 days, we grieved it, we accepted it, we got an agreement that’s a contract, that's executed by the authorized bargaining representative and the claimant. And you had no authority to add this additional clause for the medical examination. How does that render the addition; it may render it illegal but does it render it futile? ATTY BARBER: I understand the position that -- or the question of the Court. your Honor, my response is futile in the sense that -- THE COURT: I mean, construing all facts most favorable to you, is to say the least, disingenuous. I’m doing -- I’m saying that construing all facts most favorable to you, which I think I have to do in a motion to dismiss. But is it -- does it necessarily make it futile? ATTY BARBER: Only with respect that if the -- the City has the discretion to impose an illegal Girective and then take it back at -- at their leave or whatever, I’d imagine that, you know, I understand 222 the Court’s position. THE COURT: Because your complaint here, your claim is wrongful discharge in which you're seeking money damages and you’ re seeking a -- an order returning the claimant to -- to work although I’m not sure that the bargaining unit is a party to this. But your -- your prayer for relief seeks only money damages at this point. ATTY BARBER: Yes, Your Honor. THE COURT: So your -~ your claim is that of wrongful discharge quhessmcoysteduby Gane ag PSSMen ETE he wasn’t covered by an agreement, he'd be covered by the employment at will doctrine which is the law in the State of Connecticut. But your claim that you can go to -- to court. You can say that he was wrongfully discharged because further resort to administrative remedies would be futile, and I’m trying to get to the basis of your argument there. ATTY BARBER: Yes. THE COURT: And I’m going to hear Mr, Mitola and his response in a minute. ATTY MITOLA: Oh, I’m sorry, Your Honor. ATTY BARBER: If -- if the administrative remedy included an order that Mr. Satawhite be reinstated, then you’re right; it would -- it would not be futile, correct. However, I believe that my understanding that a, you know, a dischargedZo employee, you know, that employee employer relationship has been severed at that (inaudible). And in that sense, you know, he is not -- no longer, you know, a member of the bargaining unit because he’s been (inaudible) discharged. THE COURT: What do you have to prove for a constructive discharge; you’re not claiming that he was actually terminated, you’re claiming he was constructively discharged because the suspension was indefinite? ATTY BARBER: Yes, Your Honor. THE COURT: And don’t you have to prove for a constructive discharge that the employer did something to in effect discharge him completely, I mean this was a suspension, it wasn’t a discharge. ATTY BARBER: You’re correct, Your Honor, THE COURT: All right. Mr. Mitola, anything further on the motion to dismiss; I think we’ve strayed into the merits. I don’t want to do that on the motion to dismiss any more than I have to. ATTY MITOLA: No, Your Honor. I just -- with respect to che(ats39) argument, if -- if the plaintiff and his union believe that the City had no authority to send him to an IME, and that he can’t come back to work until you have that IME, That’s -- that is a condition of his employment.24 THE COURT: But isn’t that moving the goal post, I mean, the -- the arbitration hearing said that the arbitration panel didn’t decide this, but the agreement says put him back to work after a five day Suspension, we agree to the five day suspension, he serves that. And they say oh, by the way there’s x something else. That’s moving the goal post, isn’t Lee ATTY MITOLA: Well, I don’t -- I don’t think so, Your Honor, with all due respect because it was cto that that was in May 26*, 2006 that that was what the City was going to do and that is -- THE COURT: But his -- his -- his conversation with Chief Wearing, I’m sure, occurred well before that. The ~- this was on the 10* of April, so it would’ve occurred after he served his suspension which was only five days. That puts it well before May 20°, ATTY MITOLA: Well, Your Honor, the -- he served the -- the 20 day suspension, Your Honor, and then grieved the suspension, Your Honor, and settled that part of it when his grievance was -- THE COURT: Okay. ATTY MITOLA: -- heard up in ~- in, you know, a year and a half later, I believe, Your Honor. THE COURT: I don’t have any evidence here as to when the discussion with Chief Wearing occurred.25 ATTY MITOLA: Well, if you -- Exhibit 3, it’s that -- THE COURT: All right, ATTY MITOLA: -- June 20, 2006 letter, Your Honor, where Wearing indicates that -~ that Mr, Satawhite returned to work today and appeared in my office at approximately 8:30. We discussed the disciplinary action and our recommendation to see Doctor Schecter to determine his Suitability to perform his duties as a security officer. And then tt Says; Mr. Satawhite stated that he did not comply with the above mentioned recommendation because he was unable to make an appointment. And then there was consultation with Mr. Osborne and -- and it was determined that Satawhite shall continue suspension till notification from Doctor Schecter is received that he’s able do to do this. And so it -~ it’s at -- it’s at that point, Your Honor, that if —- ie the union and the Plaintiff in this case believe that the City had no authority to do that, that somehow affected his work conditions, they had the right and we argue, the obligation, to avail themselves to the grievance process, Your Honor. THE COURT: Is there a letter of April 1st, that would be 2007. Iodon’t see, I mean, this -- this all has to do with -- with an incident back in 2006 ATTY MITOLA: Right.26 Tt was an incident on May 24", 2006, Your Honor, and we get that from Exhibit Number 1; Mr. Osborne’s letter. Under the RE part is says; Robert Satawhite incident of 5/24/06. So there was an incident there and I think Your Honor referenced to it where he without permission left his work post. THE COURT: Right. ATTY MITOLA: And that -- that was the incident that started this thing. THE COURT: And that was the incident that had the grievance two years later on April 10°? ATTY MITOLA: When it -- when it -~ it takes them awhile to hear those things so yes. THE COURT: Yes. ATTY MITOLA: It went up to the labor board two years later but that was only on the 15 day suspension, Your Honor. THE COURT: And he’d been -- he had been suspended since 2006? ATTY MITOLA: Well, yes, Your Honor, cause he didn’t comply with the IME. And again, Your Honor, if you felt that the City had no authority to make him do that, then his remedy is -- and -- and as he’s alleged in his complaint that that was unjust discipline, that -- that action, then his remedy is to -- to grieve that. And there’s no futility argument, Your Honor,27 because this eventually goes up to the State Board of Arbitration and Mediation, and Your Honor well knows that it’s a -- a three member panel. THE COURT: Right; I see it here, There was a three member panel that was -- was set, and a second hearing was set on Thursday; April 10", according to Exhibit B. And in Exhibit A there’s an agreement reached at that time between the City, the bargaining unit and the claimant, and Exhibit C goes back to 2006. So the two year -~ so the settlement agreement, you're saying the City wasn’t agreeing to put him back to work, they were merely agreeing to reduce the time of the suspension, and he still had to go for the examination. ATTY MITOLA: That -- that’s right. That’s correct, Your Honor. THE COURT: So the grievance wasn’t designed to put -- so the arbitration panel was —- was not an unrestricted submission where they had the right to put him back to work; because I don’t have the copies of the submission or anything of that nature. ATTY MITOLA: Well, what we know, Your Honor ~- THE COURT: I mean, it says 15 day suspension, That doesn’t mean that’s necessarily the only relief they were seeking. ATTY MITOLA: Well, the -- the document that is, I believe, Court Exhibit 2 indicates that that’s what28 the grievance was about; a 15 day suspension, Your Honor. And the one -- the one other thing, Your Honor, I would add to all this. THE COURT: All right. ATTY MITOLA: The only thing I would add to this; let's -- if -- if the plaintiff and the union believed that the City was not complying with the settlement agreement, if for some reason it felt that not allowing him back to work violated the agreement, there’s -~ there’s -- the -- the other remedy isn’t running to court, Your Honor, it’s filing an -- a municipal prohibit of practice act up at the labor board. That’s what they remedy would be if, in fact, that’s their position because if -- if there’s an agreement entered into, and this grievance processes a settlement agreement and one party believes the other side is violating that agreement, the proper remedy is to file an MPPR (phonetic), not come to court and file a constructive discharge claim. THE COURT: All right. Mr. Barber, anything further? ATTY BARBER: Your Honor, I would, you know, just like to add another exhibit if I can to the Court’s -- THE COURT: All right. ATTY BARBER! -- record. This is a dune 5™, 2006 letter.29 ATTY MITOLA: I have no objection, THE COURT: All right. We’1l mark that as -- ATTY MITOLA: I’m not sure what that adds. THE COURT: -- Court’s Exhibit D. ATTY BARBER: I believe that exhibit speaks for itself, Your Honor. Nothing further from the -- THE COURT: All right. ATTY BARBER: -- plaintiff. THE COURT: I‘1l take a look at that, all right Well, the Court has heard the counsel and has read the materials that have been marked as Exhibits A, B, C and D for purposes of this -~ of of this hearing limited exclusively to the -- to the motion to dismiss. i” I indicated at the outset, this matter was), * assigned here for a trial based on a complaint returnable July 11, 2011, and answer in special defense has -- has been filed. And the two special defenses are first that a failure to exhaust remedies, and second an accord and satisfaction issued in May of 2006. And the claimant is barred by the doctrine of accord and satisfaction which would mean that there was an offer by the City an acceptance, and that prevents either party from litigating that issue in the future.30 A motion to dismiss was filed in November of last year; November 27**, The Court has also had an Opportunity to read the plaintiff’s opposition to the motion to dismiss dated January 15%, and to consider several of the -- the exhibits filed here. And construing the -- the facts and the -- the information as I must in this particular instance on a motion to dismiss the motion is -- is denied. The Court finds that the plaintiff based upon the allegations may prove his right to relief, notwithstanding the collective bargaining agreement sang idcapeshoabnag thay gughy in that the reliefety eesti MERSARB Sic Gaara PAN EROE SURE aah asthe foe sate FREEING SESAME TER LER Sway NOHOS SCTE Ets rand sHLERINS SAGER VLREES SSM ICE MPAA COR rook. ATTY BARBER: Thank you, Your Honor. (Whereupon the remaining proceedings were not requested and/or transcribed at this time.)FBT Cv 11 6021982 ROBERT SATAWHITE v. CITY OF BRIDGEPORT, ET AL Connecticut. SUPERIOR COURT JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT, CONNECTICUT JANUARY 16, 2013 CERTIFICATION I hereby certify the foregoing pages are a true and correct excerpt transcription of the audio recording of the above-referenced case, heard in Superior Court, Judicial District of Fairfield, Bridgeport, Connecticut, before the Honorable Dale Radcliffe, Judge, on the 16" day of January, 2013. Dated this 21° day of February, 2013 in Bridgeport, P’Shaunda D. Gibbs-Hopkins Court Recording MonitorEx P ORDER 419018 DOCKET NO: FBTCV116021982S SUPERIOR COURT SATAWHITE, ROBERT JUDICIAL DISTRICT OF FAIRFIELD ¥., AT BRIDGEPORT BRIDGEPORT BOARD OF EDUCATION Et Al 4/8/2013 ORDER ORDER REGARDING: 01/16/2013 109.00 OBJECTION TO MOTION TO DISMISS The foregoing, having been considered by the Court, is hereby: ORDER: The defendants in the above matter have reclaimed a motion to dismiss the plaintiffs claim for wrongful discharge, which was denied by judge Radcliffe without prejudice in order to hold an evidential hearing. Due to scheduling, the matter was not assigned, but continued for a scheduled trial date by the end of April 2013. The defendants have reclaimed their motion to dismiss with a well-written memorandum summarizing the obligation of a party to a collective bargaining agreement to submit to mediation as an administrative remedy, which the defendant claims was not done. The plaintiff has argued that the initial issue between the parties was submitted and settled through mediation, and this matter is simply a continuation of the initial issue resulting in the plaintiff's discharge. As a practical matter, it is universally recognized that the purpose of mediation is to expedite a dispute between contracting parties. Regardless of the merits of the respective arguments, the issues in this case arose in 2006 and a request for mediation may be found to have not been tolled. Is the finding of this court that the merits of the finality of a court trial in three weeks supersedes the requirement that the plaintiff attempt to initiate a mediation hearing which could be extended for an indefinite period of time, defeating the purpose of mediation. For the above reason. The objection the motion to dismiss is sustained. Judicial Notice (JDNO) was sent regarding this order. 419018 Judge: RICHARD P GILARDI FBTCV116021982S 4/8/2013 Page | of 1Ex, Q ORDER 419018 DOCKET NO: FBTCV116021982S SUPERIOR COURT SATAWHITE, ROBERT JUDICIAL DISTRICT OF FAIRFIELD V. AT BRIDGEPORT BRIDGEPORT BOARD OF EDUCATION Et Al 4/25/2013 ORDER ORDER REGARDING: 03/19/2013 114.00 MOTION TO DISMISS The foregoing, having been considered by the Court, is hereby: ORDER: GRANTED Short Calendar Results Automated Mailing (SCRAM) Notice was sent on the underlying motion. 419018 Judge: RICHARD P GILARDI Processed by: William Gildea FBTCV116021982S 4/25/2013 Page | of 1Luke Robe: awlie 30 Avalon Drive Unit 5124 , Milford, CT 6460 RE: HEALTH BENEFITS We have been notified that you are no longer eligible for benefits through the Bridgeport Board of Education. You have become ineligible due to one of the following: a. termination of employment b. resignation c. leave of absence Effective 8/31/2013 your health benefits with the Board of Education will be terminated. Through the Federal Consolidated Omnibus Budget Reconciliation Act (COBRA) , you may elect to continue your health benefits for up to 18 months. If you are "totally disabled" within the meaning of the Social Security Act as of your employment termination date, you may continue coverage for up to 29 months. You must inform the Plan Administrator within sixty (60) days of the “disability determination date" to qualify for this extended coverage, which will be at an increased premium. If you are terminating employee coverage but choose to waive your own continuation of coverage, any dependents on your policy may elect COBRA continuation coverage independently of your election for up to 18 months. This coverage will be the same as the coverage provided to you while under the group plan. However, the following terms and conditions will apply: 1. You have sixty (60) days from the date of this notice to elect COBRA continuation coverage. 2. You may only continue the coverage that was in effect on the day of termination. 3. Dependent coverage under COBRA is extended only to those individuals covered at the time of termination. 4. If you elect to continue coverage, the total cost must be paid by you. The Board of Education will not supplement the cost. 5. Continuation of coverage under any plan will end on the earliest of the following dates a. when you reach the end of your maximum eligibility period. b. the date on which the City of Bridgeport / Board of Education ceases to provide the plan to any active employee. Gc. your failure to make timely monthly payments.Septem 2 To: Ro: Effective 8/31/2013 your medical voverage with the Bridgeport Board of Eaucation will terminate. You must inform us of your decision to continue your health, prescription, dental coverage by a awhite sh 41/10/2013. You currently have elected Health, Dental coverage. | wish to continue the following coverage and send monthly payments for (please check): [| Single(_) | Double(_) Family (_) Health $647.53 $1,567.01 $1,916.66 Prescription 129.70 259.40 324.25 Dental 33.59 59.46 100.95 Vision (if applicable) | 2.83 5.65 9.09 Please list all eligible for which coverage is elected: Name Date of Birth | Social Security Number | Self xx-9308 Spouse Dependent(s) Please return this election form to: You have forty-five (45) days from your election date to pay the premium for the initial coverage. Your check for the initial payment must include all months, which have elapsed from the time you became eligible for COBRA. As we do not send out billing notices, it will be your responsibility to Angela T. Morton, Benefits Analyst Payroll/Benefits Office Bridgeport Board of Education 45 Lyon Terrace, Room 315 Bridgeport, Connecticut 06604 forward payment made to the order of the City of Bridgeport to the address listed above.ww, ‘thet. “1% Covere any otre aah ws oy virtue of yu. employing:. ce spouse's oo: 21, if-this new Vdlag. CON: any limitations ut coverage for p°.-€.1sting conditions. “iw you may con your COBRA coveraye until either tne pre-existing cur..'uon limitations terrmuriates or your right ic vontinue expires. e. the date you become eligible for Medicare. ’ 6. If you elect to continue coverage, required premium payments are printed on the attached COBRA Election Forms. You have 45 days from your election date to pay the premium for the initial coverage period. Thereafter, payments must be made monthly. COBRA premiums are subject to change and you will be notified as such. If you have any questions regarding your COBRA benefits, please contact me at (203) 275.1058. Angela T. Morton Benefits Analyst enc.