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EDWIN GARCIA v. CITY OF HARTFORD ET AL. (SC 18205)
Rogers, C. J., and Katz, Vertefeuille, Zarella and McLachlan, Js. Argued April 22--officially released June 30, 2009

Robert F. Ludgin, for the appellant (plaintiff). Catharine H. Freeman, assistant corporation counsel, with whom, on the brief, was John Rose, Jr., corporation counsel, for the appellees (defendants).

Opinion

KATZ, J. The sole issue in this appeal is whether the plaintiff, Edwin Garcia, a retired police officer, is required to seek relief through the grievance procedures under the collective bargaining agreement (agreement) between the named defendant, the city of Hartford,1 and the Hartford police union (union) before he can bring a mandamus action to compel the defendant to comply with a provision in that agreement allowing the defendant's employees to trade in accumulated unused sick time in order to increase their monthly pension benefits.2 The trial court concluded that, because the plaintiff was required to exhaust the remedies provided under that agreement and had not pleaded facts to establish an exception to the exhaustion requirement, the court lacked subject matter jurisdiction over the case, and, accordingly, dismissed the action. We conclude that the trial court improperly determined that the agreement can be interpreted to require a retiree to exhaust the remedies available to employees therein. Accordingly, we reverse the trial court's judgment. The record reveals the following facts alleged by the plaintiff, which are accepted as true for purposes of a motion to dismiss, and procedural history. The plaintiff resigned from the defendant's police department on June 26, 1996, after sixteen years of service. On the date of his resignation, he was a member of the union and was covered by the agreement between the union and the defendant in effect for the period of July 1, 1996, to June 30, 1999. Although, at the time of his retirement, he did not yet qualify for pension benefits, pursuant to the terms of the agreement, the plaintiff applied for and began to collect pension benefits upon the twentieth anniversary of his start date. Under the agreement, as set forth in the plaintiff's complaint, ``an employee, whose retirement becomes effective after July 1, 1994, may exchange a portion of his/her accumulated sick leave for up to four (4) years of additional pension service time for the purpose of computing the amount of his/her retirement allowance.'' Thereafter, the plaintiff made several unsuccessful attempts to have the defendant's pension commission and personnel department staff allow him to trade in the number of days of his accumulated sick time that correlated to four additional years of pension service time so as to increase his retirement allowance. Concluding that he did not have standing to bring a grievance pursuant to the agreement because he lacked employee status, the plaintiff subsequently filed the present action seeking a writ of mandamus. The defendant moved to dismiss the action, claiming that the trial court did not have jurisdiction over the matter because the plaintiff had failed to exhaust the remedies provided under the agreement. Specifically, the defendant contended that the plaintiff was required

to pursue relief through the grievance procedures under the agreement before he could bring any judicial action. The plaintiff contended in response that, because he did not have standing to pursue the grievance procedure, as he was no longer an ``employee'' under the terms of the agreement, any attempt to avail himself of administrative remedies would have been futile. In support of his memorandum of law in opposition to the defendant's motion to dismiss, the plaintiff submitted, inter alia, a copy of relevant portions of the agreement. See footnote 4 of this opinion. The trial court concluded that, because the plaintiff had alleged violations of the agreement, he fell under the general rule requiring that he exhaust the procedures set forth therein. The court rejected the plaintiff's argument that resort to the grievance procedures would have been futile because he no longer was an employee covered under the agreement in light of the facts that the plaintiff had: (1) alleged in his complaint that the defendant had allowed other former employees to trade in their accumulated sick leave; and (2) failed to allege that he did not have access to the grievance procedure under the agreement. Accordingly, the trial court dismissed the mandamus action, and this appeal followed.3 The plaintiff claims that the trial court improperly concluded that he was required to exhaust the grievance procedures under the agreement. We conclude that, because the plaintiff could not avail himself of those grievance procedures, the trial court improperly determined that it lacked subject matter jurisdiction over the case. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings. We first set forth the well established standard of review and our relevant jurisprudence regarding the doctrine of exhaustion of remedies (exhaustion doctrine). ``In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the [exhaustion doctrine] implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim. . . . [B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.'' (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250

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