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BRIAN O’TOOLE v. EYELETS FOR INDUSTRY, INC.

(AC 24729)

Gruendel, Keller and Borden, Js.

Argued November 14, 2013—officially released February 25, 2014

(Appeal from Superior Court, judicial district of

Waterbury, Pittman, J.)

Eric R. Brown, for the appellant (plaintiff).
Opinion

BORDEN, J. In this uncontested wrongful termination action, the plaintiff, Brian O’Toole, appeals from

the trial court’s sua sponte dismissal of his complaint

for lack of subject matter jurisdiction. The plaintiff

claims that the trial court improperly dismissed his

complaint because the court had (1) concurrent jurisdiction to decide his claim brought pursuant to 38 U.S.C.

§ 4301 et seq., and (2) subject matter jurisdiction to

adjudicate his common-law claims of breach of the

covenant of good faith and fair dealing, and intentional

infliction of emotional distress. We agree with the plaintiff, and therefore reverse the judgment of the trial

court.

On January 29, 2003, the plaintiff served a copy of

the complaint against the defendant, Eyelets For Industry, Inc. The defendant did not appear, and the court

subsequently granted the plaintiff’s motion against the

defendant for default for failure to appear. Following

a hearing in damages to the court, the court sua sponte

dismissed the action for lack of subject matter jurisdiction. The plaintiff filed a motion to reargue, which the

court denied. This appeal followed.

A more detailed account of the relevant procedural

history is as follows. The first count alleged that the

plaintiff is a member of the United States National

Guard and, accordingly, he performs ‘‘service in the

uniformed services,’’ as defined in 38 U.S.C. § 4303 (13).

The complaint further alleged that the plaintiff was

employed by the defendant as a toolmaker until October, 2002, at which time his employment was terminated

due to ‘‘lack of work.’’ The complaint alleged that the

reason cited for the plaintiff’s termination of employment was pretextual, and that, in actuality, the defendant unlawfully terminated the plaintiff due to his

military status, in violation of 38 U.S.C. § 4301 et seq.,

the Uniformed Services Employment and Reemployment Rights Act of 1994 (act). The second count

of the complaint alleged that the defendant’s unlawful

termination of the plaintiff’s employment constituted a

breach of the covenant of good faith and fair dealing

implied in the contractual employment relationship

between the parties. The third count of the complaint

alleged that the defendant’s discriminatory conduct

constituted intentional infliction of emotional distress.

The defendant failed to respond in any way to the

plaintiff’s complaint. Consequently, the plaintiff filed

a motion for default for failure to appear against the

defendant. The court granted this motion, and the case

proceeded to a hearing in damages before the court.

Following the hearing in damages, however, the court

dismissed the complaint sua sponte for lack of subject

matter jurisdiction. The court’s memorandum of decision stated that the act ‘‘provides for a private right of
action for damages against a private employer. 38 U.S.C.

§ 4323 (a) (2) (A). The statute restricts jurisdiction over

actions by an employee against a private employer to

the United States District Courts. 38 U.S.C. § 4323 (b)

(3). The only jurisdiction a state court may exercise is

in the case of an action against a state when the state

is an employer accused of discrimination. 38 U.S.C.

§ 4323 (b) (2). Accordingly, the court finds that it lacks

subject matter jurisdiction and sua sponte dismisses

the action.’’ Subsequently, the plaintiff filed a motion

to reargue in accordance with Practice Book § 11-11,

which the court denied.

On appeal, the plaintiff claims that the court improperly dismissed his complaint because the act does not

confer exclusive jurisdiction upon the federal courts.

Accordingly, the plaintiff argues that the court had concurrent subject matter jurisdiction to adjudicate his

claim under the act. Additionally, the plaintiff claims

that even if the court lacked subject matter jurisdiction

to adjudicate his claim under the act, it improperly

dismissed the complaint with respect to counts two

and three—breach of the covenant of good faith and

fair dealing, and intentional infliction of emotional distress—because these are state common-law claims over

which the court retained subject matter jurisdiction.

We agree.

We begin by setting forth the standard of review for

a motion to dismiss for lack of subject matter jurisdiction. ‘‘A motion to dismiss tests, inter alia, whether, on

the face of the record, the court is without jurisdiction.

. . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides

a jurisdictional question raised by a pretrial motion to

dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard,

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. . . . The motion to dismiss

. . . admits all facts which are well pleaded, invokes

the existing record and must be decided upon that

alone. . . . In undertaking this review, we are mindful

of the well established notion that, in determining

whether a court has subject matter jurisdiction, every

presumption favoring jurisdiction should be indulged.’’

(Internal quotation marks omitted.) MacDermid, Inc.

v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).

We first consider the plaintiff’s claim that the court

improperly dismissed his wrongful termination claim,

brought pursuant to the act, a federal statute enacted in

1994. ‘‘[The act] is the latest in a series oflaws protecting

veterans’ employment and reemployment rights going

back to the Selective Training and Service Act of 1940.

[The act’s] immediate predecessor was commonly
referred to as the Veterans’ Reemployment Rights Act

(VRRA), which was enacted . . . [in] 1974. In enacting

[the act], Congress emphasized [its] continuity with the

VRRA and its intention to clarify and strengthen that

law. . . .’’ 20 C.F.R. § 1002.2. The act ‘‘protects individuals performing, or who performed, uniformed service in

accordance with 38 U.S.C. [§ 4301 et seq.] from adverse

employment discrimination on the basis of their uniformed service, and provides for their prompt restoration to civilian employment when they return to civilian

life.’’ Presidential Memorandum, July 19, 2012, 77 Fed.

Reg. 43,699 (July 25, 2012); see also 38 U.S.C. § 4301.

Under the act, a protected individual who suffers

an adverse employment action (or the United States

bringing the claim on behalf of such individual) has the

right to sue his or her employer (private or state). The

act’s enforcement provisions vary depending on who

the parties are to the suit. The statute provides in relevant part: ‘‘(1) In the case of an action against a State

(as an employer) or a private employer commenced by

the United States, the district courts of the United States

shall have jurisdiction over the action. (2) In the case

of an action against a State (as an employer) by a person,

the action may be brought in a State court of competent

jurisdiction in accordance with the laws of the State.

(3) In the case of an action against a private employer

by a person,the district courts of the United States shall

have jurisdiction of the action.’’ (Emphasis added.)

38 U.S.C. § 4323 (b). The plaintiff’s claim was brought

pursuant to the third provision.

Although the interpretation of the act’s enforcement

provisions is an issue of first impression for our courts,

our analysis is guided by an expansive body of case law

establishing well settled principles for distinguishing

between statutes that confer exclusive versus concurrent jurisdiction. ‘‘The general principle of state-court

jurisdiction over cases arising under federal laws is

straightforward: state courts may assume subject-matter jurisdiction over a federal cause of action absent

provision by Congress to the contrary . . . . This rule

is premised on the relation between the States and the

National Government within our federal system. See

The Federalist No. 82 (Hamilton). . . . It is black letter

law . . . that the mere grant of jurisdiction to a federal

court does not operate to oust a state courtfrom concurrent jurisdiction over the cause of action.’’ (Citations

omitted; footnote omitted.) Gulf Offshore Co. v. Mobil

Oil Corp., 453 U.S. 473, 477–78, 101 S. Ct. 2870, 69

L. Ed. 2d 784 (1981). Thus, ‘‘[t]o give federal courts

exclusive jurisdiction over a federal cause of action,

Congress must, in an exercise of its powers under the

Supremacy Clause, affirmatively divest state courts of

their presumptively concurrent jurisdiction.’’ Yellow

Freight System, Inc. v. Donnelly, 494 U.S. 820, 823, 110

S. Ct. 1566, 108 L. Ed. 2d 834 (1990); see Burt v. Titlow,

U.S. , 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013);
Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432, 435 (2d

Cir. 1998); State v. Sebastian, 243 Conn. 115, 140–41,

701 A.2d 13 (1997), cert. denied, 522 U.S. 1077, 118 S.

Ct. 856, 139 L. Ed. 2d 756 (1998); Shea v. First Federal

Savings & Loan Assn. of New Haven, 184 Conn. 285,

289–90, 439 A.2d 997 (1981). Exclusive federal jurisdiction can be created expressly or by implication. See

Mims v. Arrow Financial Services, LLC, U.S. ,

132 S. Ct. 740, 748, 181 L. Ed. 2d 881 (2012); Stratford v.

Bridgeport, 173 Conn. 303, 310–11, 377 A.2d 327 (1977).

In light of this precedent, we presume that state

courts have concurrent jurisdiction to adjudicate claims

brought pursuant to the act. The question becomes,

then, whether Congress defeated this presumption by

expressly or impliedly creating exclusive federal jurisdiction. To resolve this question, we must apply the

principles of statutory interpretation. Ordinarily, our

analysis would begin with the plain meaning rule, set

forth in General Statutes § 1-2z. Because the act is a

federal statute, however, ‘‘principles of comity and consistency require us to follow the plain meaning rule for

the interpretation of federal statutes because that is the

rule of construction utilized by the United States Court

of Appeals for the Second Circuit.’’ (Internal quotation

marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285

Conn. 381, 401, 941 A.2d 868 (2008).

Before turning to the task of determining whether

the act’s language is plain and unambiguous, however,

we recognize that this act does not come to us

unadorned by prior interpretation. In Tsang v. Kan, 173

F.2d 204 (9th Cir.), cert. denied, 337 U.S. 939, 69 S. Ct.

1515, 93 L. Ed. 1744 (1949), the United States Court of

Appeals for the Ninth Circuit considered whether the

defendant had the right to sue his private employer in

a California state court after he was denied reinstatement to his employment position, in violation of the

reemployment provisions of the Selective Training and

Service Act of 1940 (STSA)—the original progenitor of

the act. Under the enforcement provision of the STSA,

‘‘the district court of the United States for the district

in which such private employer maintains a place of

business shall have power . . . to specifically require

such employerto comply with [the statutory] provisions

. . . .’’ (Emphasis added.) 50 U.S.C. § 308 (e) (1940).

The courtreferred to the United States Supreme Court’s

decision in Claflin v. Houseman, 93 U.S. 130, 23 L. Ed.

833 (1876), with respect to the principle that ‘‘[t]he mere

giving of . . . jurisdiction to the federal courts does

not thereby exclude that of the state courts.’’ Tsang v.

Kan, supra, 205. Accordingly, the court concluded that

state courts retain their concurrent jurisdiction under

the STSA. Id., 206. Because the act is an extension

of the STSA, and indeed, was enacted ‘‘to clarify and

strengthen that law’’; 20 C.F.R. § 1002.2; we regard this
case as persuasive authority that the act does not confer

exclusive federal jurisdiction.

We now return to an examination of the language of

the act and its interpretation under the guidance of the

United States Court of Appeals for the Second Circuit.

‘‘[W]e begin with the text of the statute to determine

whetherthe language at issue has a plain and unambiguous meaning. . . . A particular statute’s plain meaning

can best be understood by looking to the statutory

scheme as a whole and placing the particular provision

within the context of that statute. . . . [W]e attempt

to ascertain how a reasonable reader would understand

the statutory text, considered as a whole. . . . If we

can ascertain the plain meaning of the statutory text

by examining it in the context of the statute as a whole,

we need proceed no further. If, however, the plain

meaning is ambiguous, we may consult other sources.

Extrinsic materials have a role in statutory interpretation . . . to the extent they shed a reliable light on

the enacting Legislature’s understanding of otherwise

ambiguous terms. . . . We turn to the legislative history only when the plain statutory language is ambiguous or would lead to an absurd result.’’ (Citations

omitted; internal quotation marks omitted.) Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d

Cir. 2012).

We will consult the legislative history fortwo reasons.

First, we conclude that the act is not plain and unambiguous. It does not expressly state that federal courts

have exclusive jurisdiction. In Tafflin v. Levitt, 493 U.S.

455, 471, 110 S. Ct. 792, 107 L. Ed. 2d 887 (1990) (Scalia,

J., concurring), Justice Scalia identified three phrases

typically used by Congress to expressly confer exclusive federal jurisdiction: ‘‘In the standard fields of exclusive federal jurisdiction, the governing statutes

specifically recite that suit may be brought only in federal court . . . that the jurisdiction of the federal

courts shall be exclusive . . . or indeed even that the

jurisdiction of the federal courts shall be exclusive of

the courts of the States . . . .’’ (Citations omitted;

internal quotation marks omitted.) Id. (citing various

federal statutes using this specific language to confer

expressly exclusive federal jurisdiction). The act does

not utilize any of this paradigmatic language, but

instead, states that ‘‘the district courts of the United

States shall have jurisdiction of the action.’’ 38 U.S.C.

§ 4323 (b) (3). Accordingly, the statute does not plainly

and unambiguously confer exclusive federal jurisdiction.

Second, reading the act as a whole, a reasonable

reader would find that the plain statutory language

yields an absurd result. For instance, as to those claims

brought pursuant to 38 U.S.C. § 4323 (b) (1) and (3),

the statute provides that ‘‘the district courts of the

United States shall have jurisdiction . . . .’’ (Emphasis
added.) By contrast, pursuant to 38 U.S.C. § 4323 (b)(2),

claims brought by an individual against a state employer

‘‘may be brought in a State court of competent jurisdiction in accordance with the laws of the State.’’ (Emphasis added.) Generally, ‘‘when the same [statute] uses

both may and shall, the normal inference is that each

is used in its usual sense—the one act being permissive,

the other mandatory.’’ (Internal quotation marks omitted.) Weinstein v. Albright, 261 F.3d 127, 137 (2d Cir.

2001); see also Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 346, 125 S. Ct. 694, 160

L. Ed. 2d 708 (2005). If this ‘‘normal inference’’ were

applicable to the act, then 38 U.S.C. § 4323 (b)(3) would

effectively confer exclusive federal jurisdiction because

the word ‘‘shall’’ would require aggrieved parties to

bring suit in federal court.

Here, however, this inference leads to an absurd

result. Specifically, reading the word ‘‘may’’ in 38 U.S.C.

§ 4323 (b) (2) as permitting an aggrieved individual to

sue a state employer in either state or federal court

would violate the doctrine of sovereign immunity set

forth in the eleventh amendment to the United States

constitution. See U.S. Const., amend. XI. This doctrine

limits judicial authority under article three of the United

States constitution and, accordingly, bars an individual

from suing a state in federal court on grounds not set

forth within the fourteenth amendment to the United

States constitution. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 59–72, 116 S. Ct. 1114, 134 L. Ed.

2d 252 (1996). Thus, as a matter of law, the word ‘‘may’’

in 38 U.S.C. § 4323 (b) (2) of the act is not a permissive

term, thereby defeating the normal inference that when

‘‘may’’ and ‘‘shall’’ appearin the same statute, the former

is permissive and the latter mandatory. We thus examine the act’s legislative history to illuminate the meaning

of 38 U.S.C. § 4323 (b) (3).

The legislative history of the act demonstrates that

Congress did not intend to confer exclusive federal

jurisdiction. The act was amended in 1998 to respond

to concerns that it violated the doctrine of sovereign

immunity, in light of the United States Supreme Court’s

decision in Seminole Tribe of Florida v. Florida, supra,

517 U.S. 44. See Townsend v. University of Alaska, 543

F.3d 478, 482–84 (9th Cir. 2008) (discussing legislative

history of the act amendments of 1998), cert. denied,

556 U.S. 1166, 129 S. Ct. 1907, 173 L. Ed. 2d 1058 (2009);

H.R. 3213, 105th Cong. (1998). In the United States

House of Representatives, Representative Jack Quinn

stated that ‘‘[t]his bill would substitute the United States

for an individual veteran as the plaintiff in enforcement

actions in cases where the Attorney General believes

that a State has not complied with [the act]. . . . Individuals not represented by the Attorney General would

be able to bring enforcement actions in State court.’’

(Emphasis added.) 144 Cong. Rec. at H1398 (1998). He

further stated, ‘‘[i]n summary . . . we are looking at
State employees to be granted the same rights under

[the act] as any other veteran or member of the Guard

and Reserve who works in the private sector or the

Federal Government.’’ (Emphasis added.) Id. Because

Congress expressly stated that state employees have

the right to sue their employers in state court, and that

the intent of the 1998 amendments was to grant state

employees the same rights as employees in the private

sector, it follows that employees have the right to sue

their private employers in state court under the act.

Our conclusion is also consistent with the United

States Supreme Court’s policy that the STSA ‘‘is to be

liberally construed for the benefit of those who left

private life to serve their country in its hour of great

need.’’ Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946).

The Supreme Court further stated that courts must

‘‘construe the separate provisions of the [STSA] as parts

of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious

interplay of the separate provisions permits.’’ Id.; see

also Feore v. North Shore Bus Co., 161 F.2d 552, 553–54

(2d Cir. 1947) (STSA must be liberally construed ‘‘to

effectuate the congressional purpose of insuring that

the returning veteran be not penalized employmentwise

because of his military service’’). This policy of liberal

construction is applicable to the act, to the extent that,

in enacting the act, ‘‘Congress . . . emphasized that

Federal laws protecting veterans’ employment and

reemployment rights for the past fifty years had been

successful and that the large body of case law that had

developed under those statutes remained in full force

and effect, to the extent it is consistent with [the act].’’

20 C.F.R. § 1002.2. It follows, then, that in light of prior

case law broadly interpreting the STSA as conferring

concurrent jurisdiction, such as Tsang v. Kan, supra,

173 F.2d 206, the act must also be construed liberally

to permit concurrent jurisdiction.

Finally, the court also improperly dismissed the plaintiff’s second and third counts. They are simply state

common-law claims over which our courts have long

exercised subject matter jurisdiction.

The judgment is reversed and the case is remanded

for a new hearing in damages and for further proceedings according to law.

In this opinion the other judges concurred.